JOHN SCHULZ and REPATRIATION COMMISSION
[2012] AATA 561
[2012] AATA 561
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0749
Re
JOHN SCHULZ
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy RFD
Date 27 August 2012 Place Brisbane The decision under review is affirmed.
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Senior Member Dr K S Levy RFD
CATCHWORDS
VETERANS’ AFFAIRS – Pensions – Application for recognition of war-caused diseases – Statements of Principle – Section 180A Veterans Entitlement Act 1986 – Determination can be made by Repatriation Commission by Legislative Instrument – Words denoting obligatory or discretionary power to make a determination – Delegation of power – Power not delegated to the Administrative Appeals Tribunal to make a determination – Failure to make determination not a reviewable decision – Decision under review affirmed
LEGISLATION
Legislative Instruments Act 2003 (Cth) ss 5, 8, 42, 50, 58,
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 9, 120A, 175, 180A,
CASES
Australian Capital Television Pty Ltd v Minister for Transport and Communication (1989)
86 ALR 119
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Repatriation Commission v Deledio (1998) 83 FCR 82
Tasker v Fullwood [1978] 1 NSWLR 20
Victoria v Commonwealth and Connor (1975) 134 CLR 81
Ward v Williams (1955) 92 CLR 496
SECONDARY MATERIALS
Statement of Principles concerning Ischaemic Heart Disease, No. 89 of 2007
Veterans’ Affairs (1994-1995 Budget Measures) Legislation Amendment Bill 1994 (Cth)
REASONS FOR DECISION
Senior Member Dr K S Levy RFD
27 August 2012
The applicant, John Schulz, has applied for recognition of a number of conditions, which he contends are war-caused, under s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). These conditions are peritoneal adhesions, hypertension and ischaemic heart disease (IHD).
The Repatriation Commission, by decision dated 11 April 2011, rejected the applicant’s claim that his peritoneal adhesions, hypertension and IHD were war-caused conditions. Dr Schulz appealed that decision to the Veterans’ Review Board. On 7 February 2012, the Veterans’ Review Board affirmed the Repatriation Commission decision in regard to the his claim for hypertension and IHD, but set aside the decision in regard to his peritoneal adhesions and decided that the condition was war-caused as defined in s 9 of the Act. Dr Schulz now applies to this Tribunal for review of the decision to reject his claim for Hypertension and IHD.
ISSUES
The respondent set out the issues arising from the decisions against which the applicant has appealed; that is, the clinical onset of the conditions and the application of the Statement of Principles issued by the Repatriation Medical Authority (RMA).
The applicant stated in his opening remarks to the Tribunal that he now frames his appeal based on two grounds:
(1)That he was denied natural justice; and
(2)That the Veterans’ Review Board failed to apply all relevant sections of the Act in reaching its decision.
Specifically, Dr Schulz argues that taking account of material which lead to an amendment to the Act in 1994, the Repatriation Commission (and the Veterans’ Review Board) was obliged to apply s 180A of the Act and to draft a legislative instrument making him eligible for a pension for the conditions of hypertension and IHD which, on his submissions, resulted from exposure to Agent Orange in South Vietnam.
EVIDENCE
The background facts can be briefly stated:
(1)Dr Schulz is a qualified medical practitioner, now aged almost 77 years.
(2)He served in South Vietnam with the Royal New Zealand Army Medical Corps from 9 February 1971 to 26 August 1971 a total of 178 days. He served in South Vietnam in an area proximate to 173 Airborne Brigade, a United States military formation. He says he had a 25 week exposure to Agent Orange. He has given evidence previously that he travelled through defoliated areas there and he also contends the groundwater was contaminated by chemicals as a result of spraying Agent Orange by the American Forces.
(3)He subsequently joined the Australian Army as a medical officer and initially served with Army Reserve Units.
(4)The previous determinations by the Repatriation Commission and the Veterans’ Review Board considered the relevant Statement of Principles (SoPs). Under the SoP for Hypertension (Instrument Numbers 11 of 2008 and No. 35 of 2003), it was not apparent that any factors specified there were satisfied by Dr Schulz. With respect to the SoP for IHD (Instrument No. 89 of 2007; No. 43 of 2009; and No. 96 of 2010), Factor 6(va) refers to the chemicals 2, 4-D and 2, 4, 5-T, which are known to be components of Agent Orange. It was not accepted that he satisfied the relevant factors for IHD. Therefore, he failed to demonstrate a connection between those conditions and his military service in Vietnam.
The major submissions to this Tribunal include, inter alia:
(1)Dr Schulz now submits the Repatriation Commission and the VRB were wrong in not pursuing his claim under s 180A of the Act. He says:
a. He has never claimed that he satisfied the SoP.
b. In relation to step 4 of Repatriation Commission v Deledio (1998) 83 FCR 82 (the fact determination stage), extracts of the Parliamentary debate and second reading speech pertaining to the Veterans’ Affairs (1994–1995 Budget Measures) Legislation Amendment Bill 1994 (it became Act No. 98 of 1994) reveal a need to accept medical evidence other than the RMA determinations.
c. The then Minister for Veterans’ Affairs regarded that the power to further recognise conditions of veterans outside an SoP as pronounced by the RMA under s 196B of the Act, is available under s 180A of the Act.
(2)The respondent said there is no dispute about Dr Schulz satisfying the requirements of having served on operational service (s 6C(2) of the Act). Likewise, there is no dispute that Dr Schulz has hypertension and IHD. Hypertension was diagnosed in 1988; and evidence of IHD was presented to the Veterans’ Review Board. While there is some indication that he previously claimed some symptoms of that latter condition at an earlier date, the medical evidence shows he did not satisfy Factor 6 of the relevant SoP.
(3)The respondent also said such a power to strike a legislative instrument under s 180A of the Act has not been delegated. It further said that the answer to the applicant’s case rests on considering three other issues:
a. Is the Commission required to invoke s 180A to further assess an applicant’s claim;
b. If it does not make a determination pursuant to s 180A, is that a “reviewable decision” under s 175 of the Act; and
c. If the claim is refused and the respondent does not make a determination under s 180A, can the Tribunal make a determination under that section?
(4)The respondent further argued that there is no power for the Tribunal to make such a decision as the power in that section has not been delegated to the Administrative Appeals Tribunal (see Instrument No. R05/11 dated 17 October 2011). In addition, the Secretary says to invoke such a power, the Commission will first need to have a submission to enable it to assess the need for a determination and any terms relevant to its issue.
CONSIDERATION
I have considered all of the evidence submitted by the parties. I note the merits of the applicant’s case in respect of hypertension and IHD as set out by the relevant SoP, and that those claims were not made out under s 120A(3) of the Act in the determinations of the Repatriation Commission and the Veterans’ Review Board. The applicant has not put in issue a determination based on the statutory law and the SOPs but submits alternative bases for acceptance of his submissions.
Accepting that Dr Schulz has the two conditions which have been rejected by the Repatriation Commission and the Veterans’ Review Board, the substantive questions here are those set out in the Issues section as amplified by the respondent’s submissions outlined in paragraph 7(3) above.
The Relevant Law
The applicant’s major contentions are based on s 180A of the Act which provides that a determination under that section can be made by the Commission where an applicant veteran cannot satisfy the SoP (and therefore cannot succeed under those standard provisions) and also where the Commissioner is of the opinion the veteran should be entitled to a pension in respect of that type of injury or disease. Then, “the Commission may, in its discretion, make a determination ….. (as the case requires)” (sub 180A(1). Under sub 180A(2), a determination must be made by Legislative Instrument (subs 180A(3) has the same requirement). If such a legislative instrument is made, various factors causing or contributing to such a disease or injury must be related to service and then particularised in the instrument as required by sub 180A(7).
Having regard to those statutory provisions and the submissions made by the parties, I consider the two broad issues for determination below. In respect of Issue 2, I deal with it by analysing the three subsidiary issues raised by the respondent.
Issue 1: Has Dr Schulz been denied natural justice in that an order under s 180A has not been made?
Natural justice or procedural fairness (as it is now commonly known) requires an opportunity for an applicant to be heard before a final decision is made which is adverse to him or her. In the case submitted to the Repatriation Commission, the Veterans’ Review Board and now to this Tribunal, there is no evidence that I am aware of that the applicant has been denied an opportunity to be heard.
While a determination has been made in the Repatriation Commission and the Veterans’ Review Board, those decisions were decisions made on the basis of the law as set down by statute and its subordinate instruments (SoPs). The opportunity to be heard and to obtain a decision which the applicant seeks depends on an application being made to the Repatriation Commission under s 180A and providing all the information necessary for the Commission to make such a determination. While the applicant’s case has been submitted to the Veterans’ Review Board and now to this Tribunal, a determination under s 180A can, however, only be made by the Commission as the law presently stands. The procedural fairness in issue is subject to certain procedural requirements under s180A but these have not been undertaken by Dr Schulz to date. I deal with the substantive requirements of s180A under Issue 2 below but, subject to what is said there, I cannot find any absence of procedural fairness.
Issue 2: Have the decision makers of the decisions under review failed to apply all relevant sections of the Act?
As stated earlier, this question is to be answered by the 3 subsidiary questions as set out in paragraph 7(3) above. I deal with the interacting provisions in a composite way below.
In relation to the applicant’s submissions about the Explanatory Memorandum to the Amendment Bill and the references to the various views about the legislation as espoused by Members of Parliament in connection with the veterans’ entitlements under the Act, I have concluded that while they are relevant, ultimately, the proper approach is to determine the meaning of those provisions by the usual rules of statutory interpretation. The Explanatory Memorandum and any other secondary legislative materials are legitimate sources of information to help in the interpretation process, but the words of the Act must be the primary influence.
A determination made under s 180A of the Act must be by legislative instrument (subs 180A(2) and/or (3)) and that instrument must be in writing (s 5 of the Legislative Instruments Act2003 (Cth)). Subsection 180A(1) provides that the Commission may make a determination (by legislative instrument) if it is of the opinion that such action is required. To satisfy subs 180A(2),(3) and (7), it is clear that a case must first be put to the Commission for it to consider whether such a determination should be made.
If a case is put to the Commission, then, the Commissioner “may, in its discretion, make a determination under sub 180A(1). Does the use of the word “may” place an obligation on the Commission to make a determination as submitted by the applicant? Ultimately, if a determination is made, the Commission must have sufficient information to justify making a determination by legislative instrument, and it must specify the class of veterans or members to whom it would be relevant (see subs 180A(2)(a) and 180A(3)(a)) and an acceptable basis of claim (e.g. because of operational service – see sub 180A(2)(b)(i); or because of eligible war service – see sub 180A(3)(b)(i)). If any determination is made, it must be able to set out the factors which must exist as a minimum to be relevant to the defence service rendered by a veteran (see sub 180A(7)). As I understand it, no submission which would justify making a determination under s 180A has been put to the Secretary of the Department or the Commission.
The applicant argued that this Tribunal should make an order for the Repatriation Commission to draft such a legislative instrument. That is clearly impermissible for the following reasons:
(1) Even if such a submission was made by the applicant to the Repatriation Commission, Section 180A provides only that it “may” make such a “determination”. It has been long recognised that some words have an obligatory effect (e.g. when the words “will” or “shall” are used) and some have a discretionary effect; that is, that the authorized decision maker has some latitude when to invoke the power granted (e.g. when the word “may” is used). The High Court of Australia has referred to this rule of construction in many cases; for example see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 which emphasised the more appropriate modern distinction of “obligatory” or “discretionary” provisions. (see also Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24; Victoria v Commonwealth and Connor (1975) 134 CLR 81 at 161-162 per Gibbs J; and Australian Capital Television Pty Ltd v Minister for Transport and Communication (1989) 86 ALR 119 at 146 per Gummow J).
The meaning of the word “may” in a statute signifies a discretion and this is soundly entrenched in the canons of statutory interpretation. An onus of proof will be placed on any person propounding an interpretation contrary to a meaning denoting a discretion (Ward v Williams (1955) 92 CLR 496 at 505; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 138).
(2) Section 58 of the Legislative Instruments Act 2003 (Cth) provides the Secretary may, by signed instrument, delegate his power to an employee of the Australian Public Service.
(3) Section 8 of Legislative Instruments Act 2003 (Cth) provides the Secretary may further delegate that power.
That provision is designed to overcome the common law principle of delegatus non potest delegare, which, prima facie, does not empower a delegate to further delegate his or her delegated power.
There is evidence to show that the Commission has not delegated its power to deal with reviews of s 180A matters to this Tribunal (see Instrument No. R05/11 dated 17 October 2011 which was tendered at the hearing of this matter). Therefore, the Tribunal does not have the power to deal with the applicant’s case in the manner in which he asserts. The power of s 180A of the Act and the provisions of the Legislative Instruments Act 2003 (Cth) supports that conclusion. Only by an applicant or others making such a case about conditions or scope of conditions not covered by the SoPs, could the power contained in s 180A be initiated and/or determined.
I note the existence of Instrument numbers 1 to 4 of 1995, made under s 180A of the Act, have been previously authorised by the Commission. Those Instruments as well as Instruments No R05/11 of 17 October 2011 clearly show this is the outcome of the process mentioned in s 180A of the Act.
That conclusion is also consistent with the purpose of having the RMA issuing SoPs so that there is a uniform approach with dealing with veterans’ claims and so that they are treated consistently no matter where they make application in Australia. There is nothing in the Explanatory Memorandum referred to by the applicant which contradicts that approach.
There is also another matter which reinforces that interpretation. If a case was made for a determination under s 180A of the Act, then the determination must be made as a “legislative instrument”. Such instruments, when made, are laid on the table of the House of Parliament. If not disallowed within a statutory period of 15 days, then they become legislative instruments (s 42 of the Legislative Instruments Act 2003 (Cth)); they have a sunset clause, generally speaking, of 10 years (s 50 of the Legislative Instruments Act 2003 (Cth)); and such an instrument made under subs 180A(2) or (3) of the Act would undoubtedly be of a legislative character under s 5 of the Legislative Instruments Act2003 (Cth). The fact that they have legislative force as subordinate legislation demonstrates that the statutory process prescribed requires adherence to robust procedural and merit standards because of the extraordinary power delegated by the Parliament to the Commission; and thence from the Secretary to an officer of the Australian Public Service if necessary (s 58 of the Legislative Instruments Act 2003 (Cth)). The extraordinary nature of that power is clearly intended to be closely controlled to ensure the achievement of a consistent and equitable approach and only used if it can be shown that a case exists outside the SoPs determined by its expert medical statutory authority (the RMA). This is evidenced by the fact that determinations under s180A have been rarely made. That power has not been delegated to this Tribunal.
In answer to the subsidiary questions which encapsulates the scope of Issue 2, I find:
(1)The Repatriation Commission is not “required” to invoke s 180A of the Act to further answer an applicant’s claim;
(2)The purpose of s180A of the Act is to provide a fair and consistent process for veterans where exceptional circumstances show the most competent and well researched expert evidence (provided by the RMA in SoPs) is not sufficiently comprehensive or equitable. I therefore consider the failure to make a determination is not a “reviewable decision” under s 175 of the Act because the legislative provisions do not make it mandatory for the Commission to make a decision under that section. It has a duty to consider any applications under that section but its discretion is consistent with the important reasons underlying the legislative policy.
(3)The Tribunal cannot make a determination under s 180A of the Act as there is no legislative power (or instrument of delegation) for it to do so.
DECISION
I therefore determine that the decision under review must be affirmed.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD
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Associate
Dated 27 August 2012
Date of hearing 28 June 2012 Applicant In person Advocate for the Respondent Bruce Williams
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