Oldacres-Dear and Repatriation Commission
[2012] AATA 818
•15 November 2012
[2012] AATA 818
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4598
Re
PHILIP OLDACRES-DEAR
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal The Hon Robert Nicholson, Deputy President
Date 15 November 2012 Place Perth Decision Summary
1.The decision of the Veteran’s Review Board dated 7 October 2011 is set aside.
2.The Tribunal substitutes a decision that the applicant’s diabetes mellitus is related to his service.
........................................................................
The Hon Robert Nicholson, Deputy President
CATCHWORDS
Catchwords
REPATRIATION PENSION– incapacity arising out of or attributable to service – veteran contracting diabetes mellitus – enlisted aged 15 years and commencing smoking prior to age 16 – whether requirement of Statement of Principles established – whether smoking defence-caused.
LEGISLATION
Legislation
Veteran’s Entitlement Act 1986, ss9, 196B.
CASES
Cases
Roncevich and Repatriation Commission (2005) 222 CLR 115.
SECONDARY MATERIALS
Secondary Materials
Statement of Principles No 90 of 2011
REASONS FOR DECISION
The Hon Robert Nicholson, Deputy President
15 November 2012
The principal issue raised by this application is whether the applicant’s diabetes mellitus arose out of or was attributable to his service or was contributed to in a material degree by, or was aggravated by, that service, specifically by his smoking during that service while he was aged between 15 and 18. The applicant claims that it was so caused and therefore seeks review of a decision to the contrary effect made by the Veteran’s Review Board on 7 October 2011.
RELEVANT REQUIREMENTS OF THE LAW
At the time of the applicant’s enlistment as an apprentice on 7 January 1975, s70(1) of the Veterans’ Entitlements Act 1986 (Cth) (‘VEA’) provided that the Commonwealth was liable to pay a pension by way of compensation to a member of the armed forces who had become incapacitated from ‘a defence-caused’ injury. Sub-section (5)(a) provided that an injury was to be taken to be a defence-caused injury if it arose out of, or was attributable to, any defence service of the member.
In Roncevich and Repatriation Commission (2005) 222 CLR 115 it was held that a tribunal should ask whether the injury arose out of, or was attributable to, any defence service of the soldier. In particular that ‘defence-caused’ should be given a broad meaning and is not necessarily to be circumscribed by considerations such as whether the relevant act of the claimant was one that he was obliged to do as a soldier.
The provisions of the VEA (as amended) both at the date of the applicant’s claim (28 January 2011) and now are identical. In s 70(1) each VEA provided (relevantly) for liability in the Commonwealth where a member of the Forces is incapacitated from a defence-caused injury. In the case of the incapacity of the member, the liability is to pay pension by way of compensation in accordance with the VEA. Section 9 now relevantly provides that an injury suffered by such a veteran shall be taken to be a defence-caused if it ‘arose out of, or was attributable to, any eligible war service.’ Section 196B(14) also provides further that it ‘was contributed to in a material degree or aggravated by’ the applicant’s defence service. It is not contended by the respondent that the application of these provisions is precluded by any exclusionary provision.
The parties agree that the applicable law under which this application for review should be decided are the provisions of the VEA Act and the Statement of Principles (SOP’s) applicable to diabetes mellitus in force now. An SOP in force is to be used to determine a matter unless the SOP in force at the time of the decision under review is more advantageous to the applicant. In this case it is not contended there is any advantage to the applicant from the earlier SOPs for diabetes mellitus.
The relevant SOP is No. 90 of 2011 relating to diabetes mellitus. In par 6 of that SOP it is stated:
The factor that must exist before it can be said that, on the balance of probabilities, diabetes mellitus or death from diabetes mellitus is connected with the circumstances of a person’s relevant service is:
(a)…
(b) for type 2 diabetes mellitus only,
(i)…
(ii)…
(iii) smoking at least ten pack-years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within ten years of cessation; or……
This same condition appears again in par 6 (j).
Par 7 provides that par 6(j) (among others) applies only to material contribution to, or aggravation of, diabetes mellitus where the person’s diabetes mellitus was suffered or contracted before or during (but not arising out of) the person’s relevant service. The applicant’s claim is that his diabetes mellitus did arise out of his relevant service, so that no reliance is placed on par 6(j).
Par 9 includes among various definitions the following:
‘Pack-years of cigarettes, or the equivalent thereof in other tobacco products’ means a calculation of consumption where one pack-year of cigarettes equals twenty tailor-made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor-made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack-year of tailor-made cigarettes equates to 7300 cigarettes, or 7.3 kilograms of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination.
Par 4 provides that the basis for determining the factors is that diabetes mellitus can be related to relevant service rendered by veterans or members of the Forces under the VEA or members under the Military Rehabilitation and Compensation Act 2004 (Cth) (‘MRCA’). “Relevant service’ is defined in Par 9 to mean eligible war service (other than operational service) under the VEA or defence service (other than hazardous service) under the VEA or peacetime service under the MRCA. It has not been contended for the respondent that the applicant was not engaged in eligible war service.
EVIDENCE
The applicant enlisted on 7 January 1975 as an apprentice in the Royal Australian Air Force. He served in the Royal Australian Air Force until 6 January 1984 and in the Royal Australian Navy from 14 May 1985 to 13 March 1989.
The applicant was aged 15 years on his enlistment. A psychologist’s view of the applicant given on 3 September 1974 was that he was ‘a bit boyish – fair hair – neatly dressed.’ On the same date a recruiting officer found him to be ‘a very keen young fellow’ with ‘a liking to weapons and armament duties.’
At the date of his enlistment the applicant weighed only 49kgs and was 164 cms (5’4.1/2”) tall.
Smoking:
The applicant’s evidence is that some time into 1975 he commenced smoking and gradually increased this until he was smoking 10-12 cigarettes per day until 1977. Around then he advanced to a packet of 20 cigarettes per day and by 1981 he was smoking 25 cigarettes per day. From 1983 to 2005 he smoked 20-25 cigarettes per day. In 2006 he ceased smoking. It was in 2010 that his diabetes mellitus manifested itself clinically. It is common ground that the diabetes is type 2.
The respondent contended that it was more probable than not that the applicant commenced smoking when he was aged 16 years. The applicant firmly adhered to his recollection of having commenced before he attained the age of 16 years. I accept his evidence on that fact.
Upon enlistment apprentices were subject to certain conditions of service which had been agreed upon when the apprentice training scheme was established at RAAF Wagga. Part of those terms and conditions included a provision in the following terms under the heading ‘accommodation’:
“Apprentices are accommodated separately from men….Consumption of intoxicating liquor by apprentices is prohibited on or off duty. Permission to smoke while off duty may be given to apprentices above the age of eighteen.’
The respondent stated that it had no issue that cigarettes were available notwithstanding those rules.
At the time of the applicant’s enlistment the Juvenile Smoking Suppression Act of 1903, No 11 (‘JSS Act’) was in force in the New South Wales, in which Wagga is located. It provided that:
‘any dealer in tobacco, cigars, or cigarettes, and any licensed tobacconist, or other person who supplies any person actually or apparently under the age of sixteen years with tobacco in any shape or form, cigars, or cigarettes, shall be liable to a fine not exceeding ten dollars.’
‘Boredom’:
The applicant’s accommodation was in a 4 room unit. He shared it with Mark Nixon, a fellow 15 year old from Western Australia, and two others. Due to their age they did not have motor vehicle licences and the lack of public transport resulted in them seeking transportation with older apprentices to get to town, a place too far to access by walking. These conditions often resulted in boredom as they were all in a ‘foreign’ place with nowhere to go. This was exacerbated by the refusal to allow apprentices from Western Australia to travel home on extended breaks, such as Easter and other long weekends.
Bastardization:
During the first six months of his training the applicant suffered bastardisation at the hands of senior apprentices. This included being thumped, forced to do laundry washing, having his bed short-sheeted and being tipped out of bed whilst sleeping. Such instances occurred every night and continued from the outset until the senior apprentices left at various times from mid-year onwards.
The applicant said that these occurrences caused him, as a young, small, fragile applicant, to become frightened and to have difficulty sleeping while awaiting the inevitable next raid. He did not report any incidents because of his fear of retribution or worsening of the situation.
The applicant subsequently inflicted similar punishment on the next annual intake of apprentices and was charged when the victim reported him. As the result, the applicant received a ‘Formal Warning’ dated 21 April 1976.
The respondent argues that the applicant did not take early opportunities to refer to his problems with bastardization. It submitted that his claims of bastardization seemed to follow from his having come into possession of the book by Coulthard-Clark. His application for review requires that all relevant evidence be now placed before this Tribunal. It is not now to be judged on the basis of what he may not have done in the progression of the application before various bodies. I see no reason not to accept his evidence of bastardization.
Training:
The applicant’s training was split into approximately 8 lessons a day and punctuated with breaks to accommodate the lessons being at different locations. They also were frequently sent outside to ‘set ourselves on fire’ due to yawning, exhaustion and lack of sleep.
A Half-Yearly Progress report on the applicant from January to June 1975 showed he had attained 4 ‘good’ and 2 ‘satisfactory’ grades. His Squadron Leader commented that he was ‘a quiet well behaved lad, who was adapted to Service life’ but that he would have to make a great effort if he was to complete his apprenticeship. His Commanding Officer, while describing his start as satisfactory, said that more effort was required with theory work. A report for the July-December 1975 period showed that the applicant had attained 2 ‘excellent’ and 4 ‘good’ marks. A similar report for the period January to June 1976 showed he had attained one ‘excellent’ mark, 3 ‘good’ marks and 2 ‘satisfactory’ marks. His Squadron Leader described this as the completion of ‘a very successful apprenticeship’ in which the applicant had maintained the above-average standard he had attained in the previous term.
Another aspect to the applicant’s experience was practical arms training using live ammunition and explosives. He continued his smoking because of his work as an armament fitter, which he described as ‘a scary job.’ He considered that some apprentices, due to their age and size, found it difficult to have any control over the weapons. On one occasion one apprentice experienced a malfunction when firing an F-1 machine-gun. He turned around on the firing line with a loaded weapon, resulting in all the apprentices ‘hitting the dirt.’ He found that sort of incident ‘very frightening.’
The respondent argued that the applicant had not previously made any allegations of stress occurring to him as a consequence of being involved with armaments. For the reason given above in relation to the applicant’s evidence concerning bastardization, I see no reason not to accept his evidence given to this Tribunal concerning this stress. The respondent also contended that the applicant had not established how the incident at the firing range had materially contributed to his smoking. In my opinion the applicant was submitting that the stresses of service created the need for him to smoke and on that basis the evidence should be received.
Other features of his time at Wagga were that he and others were not allowed to leave Wagga until they had attained 17 years of age even though they had completed their training. Additionally he was required to attend the funeral of two fellow apprentices who had been killed in a motor vehicle accident and to participate in firing rifles as part of an honour guard. Also, while undergoing training at Wagga the applicant said he was routinely sworn at, shouted at and ridiculed along with the other apprentices as part of their training, especially during drill. Further, he found aspects of communal living confronting and was forced to scrub urinals, toilets and floors on a routine basis.
Other evidence:
The applicant’s statement attached three statements from persons who had been at Wagga with the applicant. Paul McNamara was an apprentice armament fitter in the RAAF, joining in 1976. He said that the applicant had been charged with bastardization because he had someone do his washing. He also stated that the apprentices experienced shooting all types of firearms using live ammunition. The recoil from the F1 and M60 guns was ‘quite scary.’ He considered the stress of being away from home, difficult leaving the base due to our age and not having cars, pressure to achieve and a variety of personal reasons seemed to have exasperated the situation. As a result he had begun to smoke cigarettes ‘which were freely available from our canteen.’ He added that during training the apprentices would constantly be sent outside for a smoko break.
Peter La Brooy was an armament fitter in the RAAF from 1959 to 1978, posted to Wagga as an instructor of adult trainees as well as apprentices. He stated that ‘there were no rules or regulations regarding the apprentices smoking that I recall and adult trainees and apprentices were treated no differently regarding cigarettes.’ He recorded that the apprentices were given a break between classes and allowed to go outside for a cigarette, (optional) and a drink. He also stated that bastardization was not condoned at Wagga; however it was part and parcel of the process.
Mark Nixon joined the RAAF in 1975 as an apprentice at age 15 and was stationed at Wagga for the first 2 years. From arrival at Wagga the apprentices were permitted to purchase cigarettes and smoke freely, the purchase being from the canteen on the base. He stated that at no time were they informed or ordered to stop smoking or denied purchasing cigarettes at the canteen. He said he had also been held at Wagga after he completed training and until he reached 17.
MEDICAL EVIDENCE
The applicant relied upon a letter from Dr Fellows-Smith but did not call him as a witness. The letter was dated 15th May 2012. It recited circumstances pertaining to the applicant. Of these the respondent states that they repeat the applicant’s evidence so that the doctor becomes an advocate for the applicant. The doctor’s opinion was:
‘The traumatic incidents that [the applicant] describes in particular occurring when he was a junior apprentice were likely to have led to the commencement of smoking in the context of causing significant anxiety and distress. He discovered a link between the calming effects of nicotine and this appears to have reinforced his smoking behaviour.’
APPLICANT’S and RESPONDENT’S CASES
The applicant contends that his application should succeed on all or any of the following considerations;
(1) The existence of a duty of care by the RAAF to him as a person to whom it was in loco parentis;
(2) The stress, boredom and pressure to which he was exposed during basic training, including the presence and effect of bastardization practices and engagement with hazardous experiences;
(3) The continued and repeated exposure to a hazardous environment in the RAAF.
He submits that each of these factors on their own would be sufficient to make out his case to the requisite standard of proof, namely reasonable probability.
The respondent accepts that the applicant smoked ten pack-years from some date in 1975 to 2006 and that the date of clinical onset of the applicant’s diabetes mellitus was 2010. The respondent therefore accepts that the requirements of the factor in par 6(b)(iii) of the SOP relating to diabetes mellitus have been met. The respondent’s case is therefore directed to whether the applicant has established that the factor was connected with the circumstances of the applicant’s relevant service.
THE DUTY OF CARE ARGUMENT
Applicant’s arguments
The applicant seeks support for his contention that the RAAF owed him a duty of care by reference to Agendum No. 6768 titled ‘Promulgation of Letter No S.S.56 to Minister for Air from Minister for Defence dated 21 January 1947. In this the latter Minister, on the basis of conclusions of the Defence Committee, concurred, in principle, with the introduction of the proposed apprenticeship training scheme in the RAAF subject to uniformity being obtained as far as possible in regard to rates of pay and conditions of service for Australian Military Forces and RAAF apprentices. By Minutes dated 21st September 1945 the Air Board had approved of the RAAF Apprenticeship Training Scheme. Ministerial and Governmental approval for the institution of the Apprenticeship Scheme was confirmed on 21 January 1947. In the Minute (Air Board Agendum No. 6768 to supplement No. 3) dated 31 July 1947 the Board approved the conditions of entry and service of Aircraft and Radio Apprentices. Par 10 of the conditions has been quoted above. The conditions also specified that the conditions of entry were that the entrant be between 15 and 16 years. It is par 10 which the applicant relies upon to contend that for the period from the commencement of his enlistment as an apprentice on 7 January 1975 until he attained 18 years of age he was in the position of being having a duty of care owed to him by the RAAF.
Further, the applicant relies on the report of the Commonwealth and Defence Force Ombudsman No. 04/2005 in respect of the Management of Service Personnel Under the Age of 18 Years (‘the Report). In the Report it is stated:
‘2.20 For the purposes of this investigation, the ADF’s in loco parentis duty was taken to be the obligation owed to any personnel under the age of 18 years whom it is reasonably foreseeable would be injured – physically, emotionally or psychologically- by a lack of care to that person. In determining what is ‘reasonably foreseeable ‘, the protections contained in legislation relating to minors, including State/Territory legislation, and societal expectations have been taken into account.’
However, the applicant agrees with the respondent that the Report identifies there was little agreement within and across the armed forces about the nature of the duty of care that attached to minors. This was the case although the Report stated that ‘all staff interviewed acknowledged that Defence had a duty of care to minors.’
The applicant also referred to the Defence Instructions (General) ‘PERS 33-4’ of April 2008 (‘the DI (G) PERS’) as supporting a finding that the RAAF stood in loco parentis during his service at the RAAF base from January 1975 and by inference related to service conditions and requirements established a loco parentis relationship in 1975. The applicant submits that the relevance of the DI (G) PERS is that they provide for rules, restrictions and regulations which should have been in place by Defence in 1975. His submission is that the common law duty of care and loco parentis are common law principles which have existed before legislation was published. He argues that they show an acceptance of what should have been in place when the Apprentice Training Scheme was established.
The applicant submits that the duty of care owed to minors is not new. He states the regulations establishing the Apprentice Training Scheme provided specific rules and regulations for several aspects of their upbringing, these including restrictions on both alcohol and the purchase and smoking of cigarettes. He argues that the fact the Department of Defence either ignored their own regulations or failed to enforce them (as he says was discovered by the Report) goes to support his submission that it was negligent. He accepts that the existence of regulations both before and after the relevant time would undoubtedly support the hypothesis proposed by him.
The applicant also relies upon a statement in the book by Coulthard-Clark titled From the Ground Up: The training of RAAF technical ground staff 1948-1993 in which it is stated at p17 that the ‘normal responsibilities of Guardians’ in context was in respect of ‘social, spiritual and recreational welfare’ and claimed that such a function specifically meant that access to alcohol could be denied. The text also states that the attention the RAAF gave to detail (such as making provision for free provision of extra food) ‘typified the degree of seriousness to which the RAAF attached to the responsibility it recognised it was assuming in regard to the young men coming under its care.’ At p33 it based this view on the fact that the RAAF had assumed the role of guardian from the parents of the under-age youths and so became responsible for providing all physical necessities of food, shelter and clothing, ‘as well as ensuring that the form and nature of their continued upbringing was to an acceptable standard.’ At p34 it asserted that smoking for apprentices aged under 18 was banned and those over 18 who wished to smoke off-duty had to apply for permission and have already obtained written authorization from their parents. The applicant did not produce any evidence that his parents had authorized the RAAF to act as guardian of him.
Respondent’s contentions
The respondent denies that the applicant had any duty of care in the nature of a loco parentis relationship owed by the RAAF to the applicant. It submits that the RAAF did ‘not assume the normal responsibilities of Guardians’ because the nature of the relationship was one of a contract of employment. It submits that any exercise of authority over an apprentice, including a minor, arose either under statute and associated regulations applicable to an employee or upon the express or implied terms and conditions of the contract of employment. It is argued that the Defence Act 1903 (Cth) and regulations were promulgated to provide those terms and conditions.
Further the respondent submits that the applicant’s submissions are not directed at the statutory test in respect of which the Tribunal must be satisfied. Additionally that the Report was not expressly or impliedly concerned with what pertained at the RAAF base at Wagga during the period of the applicant’s service. It is submitted that the Report therefore has no relevance to the issue to be determined by the Tribunal.
With regard to the DI (G) PERS, the respondent submits that these have no relevance to the issue to be determined by the Tribunal.
With reference to the extract from From the Ground Up by Coulthard-Clark, it is submitted for the respondent that prohibition on consumption of alcohol did not require that there be a relationship in loco parentis: rather the RAAF through regulation of the contract of employment and control over the RAAF base facility had power to prohibit the same whether in respect of an apprentice or indeed any serving member or civilian when at the base. The respondent contends that the book authored by Coulthard-Clark was not tested in evidence. It was submitted for the respondent that the book had no relevance because it dealt with the period from 1948 to 1960, preceding the applicant’s enlistment in 1975. Also because when rules were broken parents were then prepared to take action and did so. At p39 of his book, Coulthard-Clark wrote that bastardization practices prevailed at least into the early 1960s, when oral evidence suggests a significant decline took place due to the amount of damage being caused to buildings and property.
The respondent accepts that in consequence of the contract of employment the applicant was owed a non-delegable duty of care to ensure that as far as was reasonable and practicable he was provided with a safe system of work – that is, a place to live and undertake his training. It is submitted that such a duty is different to responsibilities of a parent or a person who stood in loco parentis. Reliance is placed by the statement of Barwick CJ in Hahn v Conley (1971) 126 CLR 276 at 277 that ‘the moral duties of conscientious parenthood do not as such provide a child with any cause of action arising from their neglect.’
Resolution
The issues for decision on this application are (1) whether the applicant’s injury from diabetes mellitus arose out of or was attributable to any eligible war service or was contributed to in a material degree by, or was aggravated by, that service and (2) whether the applicant has proved on the balance of probabilities the factor referred to in SOP No 90 of 2011, namely that during his eligible war service he smoked at least ten pack-years of cigarettes or the equivalent thereof before clinical onset of his diabetes mellitus. Those are issues of fact. Whether or not there was a duty of care does not resolve those questions.
I agree with the submissions of the respondent that the recommendations made by the Report do not and cannot establish these contentions of the applicant and have no relevance here.
Further I agree with the submissions of the respondent that the same is the position in relation to DI (G) PERS, which also has no relevance to resolution of the application.
Additionally I do not consider the evidence has established the existence of any regulations at the time the applicant commenced his training. The most that can be inferred from the evidence, specifically par 10 of the terms and conditions said to apply on his entry into training, namely that permission to smoke while off duty may be given to apprentices above the age of eighteen, is that there may have a policy to that effect.
In my opinion the applicant’s submissions do not make out his claim for the existence of a duty of care or the related contention concerning locus parentis. Even if they did so, that would not resolve the issues raised relating to the application of the statutory tests applicable.
WHETHER SUPPLY OF TOBACCO ILLEGAL
The applicant contends that the JSS Act applied on the base at which he was apprenticed and established that the supply to him of tobacco while he was under 16 years of age was an illegal act.
The respondent submits that to consider the effect of the JSS Act it is necessary to have regard to the Commonwealth Places (Application of Laws) Act 1970 (Cth) (‘the CP Act’). Section 4 of the CP Act provides:
(i) The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time.
(ii) This section does not:
(iii) extend to the provisions of a law of a State to the extent that, if that law applied, or had applied, in or in relation to a Commonwealth place, it would be, or have been, invalid or inoperative in its application in or in relation to that Commonwealth place otherwise than by reason of the operation of section 52 of the Constitution in relation to Commonwealth places; or
(iv) operate so as to make applicable the provisions of a law or State in or relation to a Commonwealth place of that law would not apply, or would not have applied, in or in relation to that place if it were not, or had not been, a Commonwealth place.
‘Commonwealth place’ is defined by s3 of the CP Act, subject to manifestation of contrary intention, as:
Commonwealth place means a place (not being the seat of government) with respect to which the Parliament, by virtue of section 52 of the Constitution, has, subject, to the Constitution, exclusive power to make laws for the peace, order, and good government of the Commonwealth.
Section 52 of the Commonwealth of Australia Constitution Act (‘the Constitution’) provides:
The parliament shall, subject to the Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(i)The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;
(ii)Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth;
(iii)Other matters declared by this Constitution to be within the exclusive power of the Parliament.
Notwithstanding, the respondent submits that:
The parliament without express declaration has, to the exclusion of the States, express power over defence department matter and property. S 51(vi) of the Constitution provides the primary power, whether in times of peace or war, for the parliament to make laws in respect of matters inter alia concerning enlistment: conditions of service; provisioning; munitions and the establishment and operation of defence facilities (Australian Communist Party v The Commonwealth (1951) 83 CLR 1).
The respondent submits that for the purposes of the CP Act, s52(iii) does not apply in respect of the definition of ‘Commonwealth place’. Further, that s52(ii) has no application to the Department of Defence because it was not transferred to the Executive, s69 of the Constitution having transferred the control of State departments concerning the armed services to the Commonwealth: Residential Tenancies Tribunal of NSW v Henderson; Ex parte the Defence Housing Authority (1997) 190 CLR 410.
In relation to s52(i) the respondent submits:
In order for s52(i) of the Constitution to apply for the purposes of the CP Act the RAAF Base would have to have been ‘acquired by the Commonwealth for public purposes’. Evidently the RAAF Base was established under the Empire Air Training Scheme created to meet RAAF training needs for World War II. Whilst the details of the acquisition of the property for the RAAF is not readily ascertainable, it is more probable than not that the land upon which the RAAF Base was acquired by the Commonwealth was for the purposes of s51(i) of the Constitution acquired for a public purpose. That being the case, then the Commonwealth by virtue of s51(i) of the Constitution, had exclusive power to make laws in respect of the RAAF Base (see R V Phillips (1970) 125 CLR 93).
It is submitted that the RAAF Base falls within the ambit of s. 52 of the Constitution and that the RAAF Base is a ‘Commonwealth place’ for the purposes of the CP Act.
The respondent’s submissions continue:
Section 4(1) of the CP Act, prima facie’ applies to the RAAF Base. However, s4(2) of the CP Act relevantly provides that the whole of s 4 does not extend to the provisions of a law of a State to the extent that, if that law applied to a Commonwealth place, it would be invalid or inoperative in its application otherwise than by reason of s 52 of the Constitution.
Two questions arise:
was the JSS Act invalid or inoperative as to the operation of the RAAF Base because the States do not have specific legislative powers which might be construed as authorising them to restrict or modify the executive capacities of the Commonwealth?; and
does the CP Act exhibit an intention of the Commonwealth parliament that a State law creating a criminal offence was to apply at the RAAF Base?
On question a), the respondent argues as follows:
The RAAF Base is administered through the exercise of the executive power of the Commonwealth and the application of Commonwealth statues: principally, ss 8 and 9 of Defence Act 1903 and associated regulations and directives: relevantly via ‘Defence Instructions’. A State legislature has no power to ‘impair’ the capacities of the Commonwealth Executive but it is recognised that the Commonwealth might be regulated by State laws of general application in those activities which it carried on in common with other citizens (Commonwealth v Cigmatic Pty Ltd (In Liq) (1962) 108 CLR 372): Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410).
However, whilst it may be as a general proposition, that State legislation in respect of the sale of cigarettes to a minor is a law of general application: a contract between a dealer/seller and buyer; the provisioning of the RAAF Base and the passing of and/or application of any law going to the provisioning of the armed forces and distribution of provisions provided to or made available to a member of the armed forces is, nonetheless, within the exclusive power of the Commonwealth parliament and the exercise if the capacities of the Executive. The JSS Act created a misdemeanour offence in respect of the sale of cigarettes to a minor. Cigarettes are made available to members of the armed services, and the JSS Act would encroach upon the Executive’s exclusive power to determine what provisions: in the wider sense; that can be provided or made available to the armed services and in what circumstances. Thus it is submitted the JSS Act was inoperative at the RAAF Base.
As to question b), the respondent contends:
It is submitted, that having regard to the capacities of the Executive in respect of the provisioning of the armed services that, absent express provision, the CP Act does not disclose such an intention, and the JSS Act could not have applied to the defence services on its promulgation in 1903.
For the sake of completeness, the respondent submits that the JSS Act is not ‘picked up’ by s64 and/or s79 of the Judiciary Act 1903 (Cth) by the terms of those provisions.
Understandably and relevantly the applicant does not make submissions on these issues of law. The consequence is that I should accept the respondent’s submissions and conclude that the JSS did not have application to the RAAF base on which the applicant was situated so as to fetter the Executive Power of the Commonwealth in the provisioning of members of the armed forces. Accordingly, it did not itself render illegal the supply of cigarettes there to any person under 16 years of age.
REGULATION ISSUE
The respondent submits as follows on this issue:
Save for the ‘Defence Instruction (General) (22 April 2008)’ relating to ‘Management and administration of Australian Defence Force members under 18 years of age’ (‘the 2008 Regs’), investigations have not revealed the existence of any regulation concerning the conditions of entry and service in respect of RAAF apprentices. Evidently, the 2008 Regs are subsequent to like regulations issued in 2002 and amended in 2005. The latter 2005 regulations were cancelled and replaced by the 2008 Regs.
The Applicant relies on the implementation of Annexure 1 of the RAAF Apprenticeship Training Scheme approved by the then Air Board (‘the RAAF Scheme’) as having force and application in 1975 when he commenced his apprenticeship. It appears from the statement of Mr. La Brooy (Retired RAAF Sergeant [Armaments Fitter]) that there were no rules regarding apprentices smoking that he could recall, and apprentices were treated no differently. He further states that: ‘I would have been told to pass on the message in the classroom if there were any restrictions on apprentices smoking’.
Mr. Nixon states that as an apprentice stationed at the RAAF base with the Applicant that cigarettes were able to (be) purchased from the canteen and apprentices were permitted to smoke freely.
The RAAF Scheme by 1975 appears not to have governed the conditions of employment applicable to the Applicant.
I accept the evidence of Messrs La Brooy and Nixon as establishing that cigarettes were available to the applicant and that he was permitted, as were others, to smoke freely. I do not draw from that evidence an inference that there were not regulations which governed the conditions of employment applicable to the applicant; only that if there were such regulations, they were not applied or enforced. However, the evidence shows that there was more probably than not a policy that permission could be given to apprentices over 18 to smoke. Further, that more probably than not there was a policy that with respect to enlistees aged between 15 and 18 years, namely that permission to smoke was not available to them but only available ‘to apprentices above the age of eighteen.’
CONNECTION WITH THE CIRCUMSTANCES OF THE APPLICANT’S RELEVANT SERVICE
Assuming further that the allowance by the RAAF of such access breached its policy in respect to smoking by persons of that age, there still remains the question whether the applicant’s smoking was connected with the circumstances of the applicant’s relevant service.
This requires a return to the reasoning in Roncevich. In the joint reasons of McHugh, Gummow, Callinan and Heydon JJ at par 23 it was stated:
‘As Dixon J said in the passage from Henderson cited by Heerey J in the Full Court, whether an event arises in the course of an activity, or as here, out of “an activity”, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be a casual and not merely temporal one.’
In Roncevich their Honours said in par 24 there was little doubt that there was a requirement, albeit not one to be found in formal military orders, and an expectation, of attendance at the Sergeants’ Mess and the consumption in some quantity, even perhaps to the point of intoxication short of physical incapacity, of alcoholic drinks. Likewise of the need for the appellant’s return to his quarters to prepare his uniform for the next day were regarded as capable of having been attributable to his defence service. The remaining question arising there was whether his climbing on to the box to expectorate through the open window and his falling because he was inebriated similarly either arose out of, or was attributable to his defence service. Their Honours also said in par 26 that it was also of relevance that the inebriation of the appellant occurred on the Base. As Kirby J said in agreeing at par 96, the issues which required consideration were whether, whatever the legal or disciplinary obligations, attendance by the appellant in the Mess function was expected of him, with the consequence that he would become involved in drinking with colleagues and might become intoxicated because of the social, cultural and environmental norms to which he was subjected at such an event.
At par 28 their Honours said that a causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
In written submissions for the respondent the ratio of Roncevich is described as requiring ‘what the applicant was required or expected to do to carry out his actual duties or something that was ancillary or incidental to them to cause him to become addicted to smoking.’ This seems to me to be a slightly tight description of the ratio. The words ‘ancillary or incidental’ do not flow from the reasoning of the High Court. What flows is the view that ‘the expressions “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier’: Roncevich at 126.
In any event, on this application, and not in the circumstances requiring consideration in Roncevich, it is also necessary to give consideration to the application of s196B(14) of the VEA. That provides that a factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if ‘it was contributed to in a material degree by, or was aggravated by, that service.’
The evidence which supports a finding that the applicant’s smoking arose out of or was attributable to his service is as follows and I find the following as facts.
His employment required him to undertake duties which, for him, occasioned stress and anxiety. He worked in a hazardous environment (dealing with armaments) and this had that effect upon him. The evidence of his academic progress does not negate the evidence of the fact that he was at the same time experiencing stress and anxiety.
Additionally he experienced boredom on the base in being unable to leave it on recreation and this induced for him stress and anxiety. His stress was also activated by bastardization practices which his testimony established had occurred to him in his time.
Because of the stress and anxiety which he felt, he took to smoking and escalated his quantity of consumption of cigarettes. He was not ordered to smoke. However, he was in classes which were given adjournments for breaks.He was in the company of peers who all smoked. His more senior equivalents were smokers.
Of paramount importance is the fact that the RAAF maintained the availability of cigarettes on the base in unlimited quantities and did so for persons aged from 15 to 18. If the cigarettes had not been readily available on the base the applicant would not had had any regular opportunity to obtain them. If it had not been that the service with which he was engaged maintained the ready and continuing supply of cigarettes on the base, it may be doubted whether his consumption could have attained the level required by the Statement of Principles.
The picture disclosed by the evidence is of the applicant having been occasioned by his service to develop symptoms of stress and anxiety and turning to cigarettes on the base to relieve those symptoms. In my opinion the applicant’s smoking is shown to have arisen out of or been attributed to by his service. Alternatively or additionally, the applicant’s smoking was contributed to in a material degree by, or was aggravated by, that service.
I do not consider that this is a case of mere temporal connection without causal effect. The applicant’s condition was connected to his service and led him to become a smoker and to increase his smoking. It is not a material consideration that the applicant in a civilian life could or could not have become a smoker. The material consideration is that he became and continued as a smoker as a consequence of the stress and anxiety created by his service and as a consequence of the ready and ongoing availability of cigarettes on the base.
I accept that in contrast with the circumstances in Roncevich, there is not here evidence of expectation of smoking as part of service. However, even the absence of that evidence does not preclude the link with service arising in other ways. Here the link comes from the maintenance by the RAAF of ready and continuing supply of cigarettes as part of life at the base. That, coupled with the applicant’s work at the base and its affect upon him, resulted in the circumstances of his service occasioning him to become a smoker.
CONCLUSION
For the above reason I conclude that the applicant’s evidence establishes the factor in SOP No 90 of 2011 so that his diabetes mellitus is shown to be connected with his eligible war service. His injury by diabetes mellitus is therefore established as having arisen out of or been attributable to any eligible war service rendered by the applicant or as being related to his service because of the contribution to a material degree of his service or the aggravation from that service. I therefore consider that the application for review of the decision of the Veterans’ Review Board of 7 October 2011 should be allowed and his application for acceptance of his diabetes mellitus as service related be granted.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Robert Nicholson.
...(sgd) T. Freeman.....................................................................
Associate
Dated 15 November 2012
Date(s) of hearing 6 July 2012 Applicant In person Counsel for the Respondent Mr J Wallace Solicitors for the Respondent Ms T Ling
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