Repatriation Commission v Reid, A

Case •

[1989] FCA 687

•

06 NOVEMBER 1989

No judgment structure available for this case.

Re: REPATRIATION COMMISSION
And: ALAN REID
No. VG263 of 1988
FED No. 687
Defence - Veterans - Pensions

COURT

IN THE FEDERAL COURT OF AUSTRALIA


VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)
CATCHWORDS

Defence - Veterans - Pensions - Assessment - Special rate - Entitlement - Proceedings commenced before legislative amendments - Retrospectivity.

Acts Interpretation Act 1901

Administrative Appeals Tribunal Act 1975

Repatriation Act 1920

Repatriation Acts Amendment Act 1979

Repatriation Legislation Amendment Act 1984

Social Security and Veterans' Entitlements Amendment Act (No. 2) 1987

Veterans' Affairs Legislation Amendment Act 1987

Veterans' Entitlements Act 1986

Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986

Jebb v. Repatriation Commission (1988) 80 ALR 329

HEARING

MELBOURNE

#DATE 6:11:1989

Counsel for the Applicant : Dr. C.N. Jessup Q.C. and

Mr. R.M. Downing

Counsel for the Respondent : Mr. N. Moshinsky Q.C. and

Mr. K. Bell

Solicitors for the Applicant : Australian Government Solicitor

Solicitors for the Respondent : Remington & Co.

ORDER

The appeal will be dismissed with costs.

JUDGE1

Appeal from a decision of the Administrative Appeals Tribunal.

  1. The respondent Alan Reid was granted a pension under the Repatriation Act 1920 from 23 May 1961 in respect of incapacity due to "anxiety neurosis with dyspepsia", which had resulted from his war service. That entitlement continues. On 26 February 1986 liability to pay pension in accordance with that Act was also determined by the Repatriation Commission to have arisen in respect of Mr. Reid's incapacity due to a cerebrovascular accident, to "essential hypertension", to chronic bronchitis and to tinea. That entitlement continues. On 6 April 1987 the Veterans' Review Board decided that the Commonwealth was liable under the Veterans' Entitlements Act 1986 to pay pension to Mr. Reid in accordance with that Act "from and including 26 July 1980 for incapacity from polyarthritis of rheumatoid type". The Veterans' Review Board also assessed the rate of pension payable to Mr. Reid at the special rate prescribed by s.24 of that Act. The Repatriation Commission made application, pursuant to s.175(1)(b) of that Act, for review by the Administrative Appeals Tribunal of that decision of the Veterans' Review Board, which had been made in substitution for a decision of the Commission which the Board set aside. Before the Administrative Appeals Tribunal the applicant Commission did not seek to displace the conclusion of the Board that Mr. Reid's inflammatory polyarthritis of rheumatoid type should be taken to be "a war-caused disease", within the meaning of that expression in the Veterans' Entitlements Act 1986. But the Commission contended that pension was not at any time payable to Mr. Reid at the special rate prescribed by s.24, and that the date as from which the Commonwealth was liable to pay pension to Mr. Reid for incapacity from polyarthritis was a date later than 26 July 1980. The Administrative Appeals Tribunal rejected those contentions. The Tribunal fixed dates earlier than 26 July 1980 as from which the Commonwealth was liable to pay pension and liable to pay pension at the special rate respectively.

  2. The Veterans' Review Board ("the Board") had for review two decisions of the Commission, each of which involved rejection of Mr. Reid's contention that his arthritis had been caused by his war service. The first of those two decisions had been made on 26 July 1984, in performance of a duty imposed on the Commission by s.107VM(1) of the Repatriation Act 1920 and s.49(1)(a) of the Repatriation Acts Amendment Act 1979 to reconsider a claim made by Mr. Reid and rejected by the Commission in 1960. The duty to reconsider at that time arose whenever further evidence should be submitted, in writing, to the Commission at any time after the making of a decision of a War Pensions Entitlement Appeal Tribunal made on an appeal, under s.64 of the Repatriation Act 1920 as in force before 1 July 1979, against a decision of the Commission, and the Commission should be satisfied that the further evidence is evidence that would have been relevant to the making of a decision in the proceeding before the Commission, the decision in which was affirmed by the War Pensions Entitlement Appeal Tribunal : see s.107VM of the Repatriation Act 1920 as in force from 28 March 1979 (inserted by s.26 of the Repatriation Acts Amendment Act 1979) and ss. 2, 47 and 49(1)(a) of the Repatriation Acts Amendment Act 1979.

  3. Mr. Reid had appealed, pursuant to s.64, to a War Pensions Entitlement Appeal Tribunal against the Commission's determination of 1960 refusing his claim to a pension in respect of his arthritis. That Tribunal had affirmed the Commission's decision on 28 April 1961. As to the relevance of the further evidence, submitted in writing to the Commission on 28 June 1984, to the making of the decision of 1960 the Commission was satisfied, but upon reconsideration of the claim the Commission rejected it on the ground that the arthritis was unconnected with Mr. Reid's war service.

  4. When on 28 March 1985 Mr. Reid sought a review of that decision of the Commission, the Repatriation Act 1920 had been extensively amended by the Repatriation Legislation Amendment Act 1984, which had come into operation on 1 January 1985. Section 55(2) of the latter Act provided:

"Where a person would, but for the repeal of Part IIIA of the Repatriation Act, have had, on or after the commencing day, a right to make application under section 107VC or section 107VD of that Act to the Tribunal for a review of a decision of the Commission made before that day, application may, subject to sub-sections (3) and (4) of this section, be made under section 107VC of the Repatriation Act as amended by this Act to the Veterans' Review Board for a review of that decision."

The expression "Repatriation Act" had in s.55(2) the defined meaning "Repatriation Act 1920 as in force immediately before the commencing day", that is 1 January 1985. Sub-sections (3) and (4) of s.55 had no application in the circumstances of this case. But for the repeal of Part IIIA of the Repatriation Act, as defined, Mr. Reid would have had, on and after the commencing day, a right to make application under s.107VC of that Act to the Repatriation Review Tribunal established under that Act (that being the body signified by the words "the Tribunal" in s.55(2)). Section 107VC had until it was repealed by the Repatriation Legislation Amendment Act 1984 conferred on Mr. Reid a right to make application to the Repatriation Review Tribunal for a review of the Commission's "decision refusing a claim .... for a pension .... under this Act arising out of the incapacity (of Mr. Reid) on the ground that the incapacity .... did not arise out of (and) .... was not attributable to his war service" : see s.107VC(1)(c). The decision which the Commission had made on 26 July 1984 was a decision of that description. Accordingly the somewhat imprecisely worded documents furnished on Mr. Reid's behalf to the Department of Veterans' Affairs on 28 March 1985 were treated as making application by him under s.107VC of the Repatriation Act 1920 as amended by the Repatriation Legislation Amendment Act 1984 to the Veterans' Review Board for a review of the Commission's decision of 26 July, 1984.

  1. When on 6 April 1987 the Veterans' Review Board gave its decision on that review further extensive amendment of the relevant statutory law had been made. The Repatriation Act 1920 as from time to time amended was repealed by the Veterans' Entitlements Acts 1986, which came into force on 22 May 1986, as did the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986. Section 19(1) of the latter Act provided that an application made to the Veterans' Review Board under s.107VC of the Repatriation Act 1920 that had not been determined under that Act before 22 May 1986 should, on and after that date, be treated as if it were an application that had been made to the Veterans' Review Board under s.135 of the Veterans' Entitlements Act 1986 and should be heard and determined accordingly. Sub-section 21(1) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 provided:

"Where a decision is made by the Commission, the Board or the Administrative Appeals Tribunal under the Veterans' Entitlements Act, including a decision so made by virtue of a provision of this Act, granting a pension, increasing or reducing the rate of a pension or granting an allowance or another pecuniary benefit, a date, which may be a date before the commencing date, may be fixed, in accordance with the relevant provisions of the Veterans' Entitlements Act, as the date as from which payment of the pension, payment of the pension at the increased or reduced rate or payment of the allowance or other benefit is approved."

  1. In that Act and in the Veterans' Entitlements Act 1986 "Board" means the Veterans' Review Board.

  2. Sub-sections 157(1) and 157(2) of the Veterans' Entitlements Act 1986 provided:

"(1) Where the Board, upon its review of a decision of the Commission refusing to grant a pension to a person, sets aside that decision and substitutes for it a decision to grant a pension to the person, the Board may fix, as the date from which its decision is to operate -

(a) if the person made application for the review within 3 months after service on him of a copy of the decision of the Commission - a date not earlier than the earliest date from which the Commission could, if it had not made that decision, have approved payment of a pension to the person; or

(b) in any other case - a date not more than 6 months before the date on which the person's application for review of that decision was received at an office of the Department in Australia.

(2) Where the Board, upon its review of a decision of the Commission assessing a rate or increased rate of pension or refusing to increase the rate of a pension, sets aside that decision and substitutes for it a decision that increases the rate of that pension, the Board may fix, as the date from which its decision is to operate, a date not earlier than the earliest date which the Commission could, if it had not made that decision, have fixed as the date from which pension at that increased rate was to be payable."

  1. Mr. Reid may have received a letter dated 7 August 1984 from a Deputy Commissioner of the Repatriation Commission, in these terms:

"Dear Mr Reid

The Repatriation Commission has considered the further evidence in support of your claim for acceptance of Rheumatoid Arthritis. When further evidence is submitted in respect of a claim which has previously been unsuccessful at the Tribunal level, the Repatriation Commission must initially consider the further evidence and decide if it would have been relevant to the making of its earlier decision in respect of the claim had this further evidence been available at that time. If the Commission considers the further evidence would have been relevant, it is then required to reconsider the case in its entirety, that is, to determine on the basis of all the evidence in the case whether or not the incapacity or death is related to service. If the Commission adheres to its earlier decision that the incapacity or death is not related to service, you have a right to apply to the Repatriation Review Tribunal for a review of the Commission's decision. Although the Commission considered the further evidence submitted in your case to be relevant to your claim, it is still unable, having regard to this evidence and all the other evidence in your case, to accept Rheumatoid Arthritis as being related to service. You may apply to the Repatriation Review Tribunal for a review of the Commission's decision, and if you choose to make such an application, it must be lodged in writing, at this office."

That letter does not in my opinion answer the description "a copy of the decision of the Commission", in s.157(1)(a). That phrase in s.157(1)(a) no doubt refers primarily to a document of the kind which s.34 of the Veterans Entitlements Act 1986 requires that the Commission make and cause to be served on the person specified in sub-section 34(2). But in and after July 1984, when the relevant decision of the Commission was made, until 1 January 1985 s.47A of the Repatriation Act 1920 as then in force imposed a similar requirement on the Commission, as did a section of the same number which was substituted by s.14 of the Repatriation Legislation Amendment Act 1984 which came into force on 1 January 1985. That legislation, as in force from time to time until the Veterans' Entitlements Act 1986 commenced on 22 May 1986, referred to "service .... of a copy of the decision of the Commission" in description of what s.47A required. Sub-section 22(1) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 provided:

"Section 34 of the Veterans' Entitlements Act extends to a decision made by the Commission before the commencing date under a repealed Act, being a decision of a kind similar to a kind of decision to which that section applies."

Paragraph 22(4)(a) of that Act provided:

"For the purposes of the Veterans' Entitlements Act and of this Act -

(a) any reasons for a decision in respect of a pension other than a service pension duly given and served by the Commission in accordance with a provision of a repealed Act shall have effect on and after the commencing date as if given and served under section 34 of the Veterans' Entitlements Act;"

A document satisfying the requirements of s.47A, and of s.34, was made by the delegate of the Commission who made the decision of 26 July 1984. A copy of that document, dated 26 July 1984, which does in my opinion answer the description, "a copy of the decision of the Commission", in s.157(1)(a), was in evidence before the Administrative Appeals Tribunal, but there was no direct evidence, nor any explicit finding by that Tribunal, that a copy of the document had been served on Mr. Reid. On the contrary, it may be inferred from its reasons for decision that the Administrative Appeals Tribunal considered that receipt of the letter dated 7 August 1984 satisfied the words "service on him of a copy of the decision of the Commission", and did not consider the question whether the written record of the decision containing a statement of the reasons for the decision, which the Commission's delegate made and signed and dated 26 July 1984, was ever served on Mr. Reid. In my opinion the evidence before the Administrative Appeals Tribunal would not support a finding that service of a copy of that document on Mr. Reid had been effected before he made application for review of the Commission's decision on 28 March 1985. Not only does the letter dated 7 August 1984 not answer the description "written record of its decision", within the meaning of s.47A or s.34, or the description "a copy of the decision" in s.157, being rather a notification that the decision has been made and a summary statement of its content, but the terms of that letter raise an inference that no "copy of the decision" or copy of "the written record of its decision" was sent to Mr. Reid until after he had communicated with the Commission in March 1985. There was a hearing of Mr. Reid's application for review of the Commission's decision, in Melbourne on 6 April 1987, at which he, his wife and a member of "Ballarat Legacy" were present. That circumstance would in my opinion justify an inferred finding that before the Veterans' Review Board made its decision on the application on 6 April 1987 Mr. Reid had received a copy of the decision of the Commission. But, even if it could not be found that Mr. Reid had ever received "a copy of the decision of the Commission", the condition specified by the introductory clause of paragraph 157(1)(a) - "if the person made application for the review within 3 months after service on him of a copy of the decision of the Commission" - would in my opinion have been fulfilled. The words of that condition are in my opinion to be so construed that they are satisfied in the event that service of a copy of the Commission's decision on the person making application for review is not effected. It could hardly have been the intention of Parliament that the Commission's failure to comply with the statutory requirement of service should deprive an applicant who succeeds on review by the Board of the advantage which accrues to an applicant within paragraph (a) of sub-section 157(1) over an applicant within paragraph (b) of that sub-section. The intention which I think must be imputed to Parliament is given effect by understanding the introductory clause thus : "if the person made application for the review before the expiration of 3 months after service on him of a copy of the decision of the Commission".

  1. Whether it be in sub-section 157(1)or in sub-section 157(2) that the Commission's decision be correctly described, the date from which the Board's decision may operate is specified in the same terms : "a date not earlier than the earliest date which the Commission could, if it had not made that decision, have", in the case of paragraph 157(1)(a), "approved payment of a pension to the person", and in the case of sub-section 157(2), "fixed as the date from which pension at that increased rate was to be payable".

  2. Although on and before 26 July 1984, when the Commission's decision was made which the Board reviewed, Mr. Reid had been receiving a pension in respect of incapacities caused by conditions other than arthritis, the Commission's decision of that date was in my opinion "a decision .... refusing to grant a pension", within the meaning of those words in s.157(1). It will be recalled that the Commission's decision was made upon a reconsideration it had undertaken of a claim for a pension made and rejected, first by the Commission in 1960 and then on appeal by a War Pensions Entitlement Appeal Tribunal on 28 April 1961. It was after the latter date that a pension was first granted to Mr. Reid.

  3. In my opinion the language of s.157(1)(a), like the similar language of s.157(2) is apt to comprehend any date, even a date that precedes the commencement of the Veterans' Entitlements Act 1986, which answers the description "the earliest date from which the Commission could, if it had not made that decision, have approved payment of a pension to that person". And in my opinion the words which follow the words "the earliest date" require that it be the statute law in force at the time the Commission's decision refusing to grant a pension was made which determines what that "earliest date" is. That construction of the language of s.157 accords, in my opinion, with sub-section 21(1) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986.

  1. When on 28 July 1984 the Commission refused to grant Mr. Reid the pension which he claimed in respect of the arthritis from which was suffering s.107VZG(1) of the Repatriation Act 1920 prescribed "a date not earlier than 4 years (or such longer period as the Commission .... considers appropriate in the special circumstances of a case) before the day on which the relevant decision is made" as the earliest date from which a decision of the Commission under s.107VM of that Act could have been expressed to operate. The latter section, it will be recalled, was in July 1984 the source of the duty imposed on the Commission of reconsidering Mr. Reid's claim. The Board in fact specified 28 July 1980 as the date from which the Commonwealth should be liable to pay pension to Mr. Reid for incapacity from polyarthritis of rheumatoid type.

  2. Section 175(1) of the Veterans' Entitlements Act 1986 provides:

"Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review -

(a) of the decision of the Commission that was so affirmed;

(b) of the decision of the Commission as so varied; or

(c) of the decision made by the Board in substitution so set aside, as the case may be."

The review by the Veterans' Review Board in this case was not "upon a request made under section 135", or any other section of the Veterans' Entitlements Act 1986. But s.19(1) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 provided that an application of the kind Mr. Reid had made on 28 March 1985 should, on and after 22 May 1986, "be treated as if it were an application that had been made to the Board under section 135 of the Veterans' Entitlements Act". Neither party submitted that s.175(1) and s.27(1) of the Administrative Appeals Tribunal Act 1975 conferred no right on the Commission to apply to the Administrative Appeals Tribunal for a review of the Board's decision of 6 April 1987 and I think those sub-sections may be understood to confer such a right. Section 176(2) of the Veterans' Entitlements Act 1986, as in force when application was made by the Commission, on 21 July 1987, for review of the Board's decision, provided:

(2) For the purposes of the application of section 27 of the Administrative Appeals Tribunal Act 1975 to and in relation to a reviewable decision:

(a) if that decision is a decision of the Commission as varied by the Board - the Commission shall be taken to be a person whose interests are affected by that reviewable decision; and

(b) if the Board has set aside a decision of the Commission under section 19 or 31 of this Act and made another decision in substitution for the decision so set aside - the Commission shall be taken to be a person whose interests are affected by the decision of the Board to set aside the decision of the Commission and by the decision of the Board made in substitution for the decision so set aside."

Section 27(1) of the Administrative Appeals Tribunal Act 1975 provides:

"Where this Act or any other enactment provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision."

No decision of the Commission under s.19 or s.31 of the Veterans' Entitlements Act 1986 was ever made in relation to Mr. Reid. Section 19(1) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 required the application Mr. Reid had made on 28 March 1985 under s.107VC of the Repatriation Act 1920 to be treated as if it were an application that had been made to the Board under s.135 of the Veterans' Entitlements Act 1986. But I am not aware of a statutory provision which would require that it be pretended that Mr. Reid had been the subject of a decision of the Commission under s.19 or s.31. But, if s.176(2) be put aside, the scheme of the legislation relating to veterans' entitlements in my opinion shows clearly enough that the Commission is a "person ... whose interests are affected by the decision", within s.27(1).

  1. Section 177 of the Veterans' Entitlements Act 1986 makes provision with respect to the dates as from which various classes of decisions by the Administrative Appeals Tribunal may take effect. None of the provisions made by that section were thought by the Administrative Appeals Tribunal to relate to a decision of a kind made by the Tribunal in this case. Sub-section 177(1) provides:

"This section is in addition to, and not in substitution for, any of the provisions of section 43 of the Administrative Appeals Tribunal Act 1975 in their application to proceedings for a review by the Administrative Appeals Tribunal of a reviewable decision."

Section 43(1) of the Administrative Appeals Tribunal Act 1975 authorizes the Tribunal to exercise, for the purpose of reviewing a decision, all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. One of the powers conferred on the Veterans' Review Board, at the time when the Board made its decision, was the power conferred by s.157(1)(a) of the Veterans' Entitlements Act 1986, as has been seen. At the time when the Tribunal made its decision s.40 of the Veterans' Affairs Legislation Amendment Act 1987 had repealed s.157 and substituted for it another section of the same number, as from 5 June 1987. But the substituted section conferred the same power, in terms not relevantly different from those of the repealed section. In my opinion that was a power which s.43(1) authorized the Tribunal to exercise.

  1. The Tribunal concluded that s.43(1) authorized it to exercise the power conferred, as it thought, by s.157(2) on the Board. The temporal extent of the power is, as has been observed, the same whether the source be that sub-section or paragraph 157(1)(a) as in force when the Board's decision was made, or the later, substituted s.157. The Tribunal fixed, in purported exercise of that power, 9 March 1972 as the date from which its decision, that Mr. Reid was entitled to payment of pension from the war caused disease of polyarthritis of rheumatoid type at 100 per centum of the general rate of pension, was to operate. In my opinion the circumstances found by the Tribunal were such that no error of law vitiated that decision, unless some fixed date later than 9 March 1972 were legislatively prescribed as the earliest date from which the Tribunal could have approved payment to Mr. Reid. I did not understand counsel for the Commission to submit to the contrary. Their submission was that such a later, fixed date was legislatively prescribed. That submission was grounded on the assumption, which the Tribunal had adopted, but which I have held to have been erroneous, that service on Mr. Reid of a copy of the Commission's decision of 26 July 1984 had been effected more than 3 months before he made application for review of that decision by the Veterans' Review Board.

  2. It was not submitted by either party on this appeal that s.177(2) of the Veterans' Entitlements Act 1986 did specify a decision of a description which the Tribunal made. That sub-section provides:

(2) Where the Administrative Appeals Tribunal, upon application made under subsection 175(1) for a review of a decision of the Commission that has been affirmed or varied by a decision of the Board or a decision of the Board made in substitution for a decision of the Commission, grants a pension (not being a service pension) or attendant allowance, or increases the rate at which a pension (not being a service pension) is to be paid, the Tribunal may approve payment of the pension or of attendant allowance, or payment of the ension at the increased rate, as the case may be:

(a) if the application is made within 3 months after service on the applicant of a document setting out the terms of that decision of the Board - from a date not earlier than the derliest date as from which the Board could, if it had granted a pension or attendant allowance or increased the rate of the pension, have approved payment of the pension or attendant allowance, or payment of the pension at an increased rate, as the case may be; or

(b) in any other case:

(i) if the review relates to a claim in accordance with section 14 - from a date not more than 6 months before the date on which the application under subsection 175(1) was made; or

(ii) if the review relates to an application in accordance with section 15, or to an application for attendant allowance - from the date on which the application under subsection 175(1) was made."

It is, I think, arguable that the Tribunal "grants a pension", within the meaning of that expression in sub-section 177(2), when it sets aside, as it did set aside, the decision of the Board and makes in lieu thereof a decision that from an earlier date than the Board had fixed Mr. Reid was entitled to pension in respect of the disease of polyarthritis. But it is in my opinion not to be thought that Parliament intended that s.177(2) should apply to an application made by the Commission. If the sub-section did apply to an application by the Commission, the advantage offered by paragraph 177(2)(a) to the veteran might be denied him by the Commission's failure to make application under s.175(1) within the time prescribed by that paragraph. In fact that might have been so in this case, it would seem. There was evidence before the Tribunal that service on the Commission "of a document setting out the terms of" the Board's decision was effected on or about 10 April 1987. The Commission's application for review of the decision was made on 21 July 1987. In my opinion s.177(2) is to be construed as referring to an application under s.175(1) by the veteran or dependant affected by the Board's decision. However, if I were wrong in that opinion, the preponderance of the evidence was that service on the Commission was not effected until 22 April 1987, less than 3 months before the Commission's application for review was made.

  1. The second of the two decisions of the Commission which the Veterans' Review Board had for review arose out of a claim lodged by Mr. Reid on 11 April 1985 in pursuance of the Repatriation Act 1920 as then in force. One of the diseases specified in that claim as causing incapacity was "Osteo and Rheumatoid Arthritis". The Commission rejected the claim, in so far as it related to arthritis, on 26 February 1986. On 15 April 1986 Mr. Reid made application to the Veterans' Review Board for review of the Commission's decision to reject the claim. When in April 1987 Mr. Reid's application came before the Veterans' Review Board for hearing and determination, that Board had also before it for hearing and determination Mr. Reid's application for review of the Commission's decision of 26 July 1984. Having made a decision in Mr. Reid's favour on its review of the latter decision, the Veterans' Review Board made no decision of the application for review of the Commission's decision of 26 February 1986. If the Veterans' Review Board had made such a decision, its power to do so would have derived from s.19(1) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, which required that Mr. Reid's application for review of the Commission's decision of 26 February 1986 should, on and after 22 May 1986 (when that Act and the Veterans' Entitlements Act 1986 commenced) be treated as if it were an application that had been made to the Veterans' Review Board under s.135 of the Veterans' Entitlements Act 1986, and required that it "should be heard and determined by the Board accordingly". If in compliance with that requirement the Board had set aside the Commission's decision of 26 February 1986 and had substituted its own decision to grant a pension in respect of "Osteo and Rheumatoid Arthritis", and consequently to increase the rate of pension payable to Mr. Reid, s.157 of the Veterans' Entitlements Act 1986 would have prescribed the date which the Board might have fixed as the date from which its decision was to operate. The Board's authority would have been to fix as the date from which its decision was to operate a date not earlier than the earliest date from which the Commission could, if it had decided to grant a pension in respect of "Osteo and Rheumatoid Arthritis", have approved payment of that pension or, if the Commission's decision were regarded as of a description contained in sub-section 157(2), the earliest date from which the Commission could, if it had decided to increase the rate of pension, have fixed as the date from which pension at that increased rate was to be payable. In the former case that "earliest date" would have been 4 December 1984, by reason of the operation of s.24(4) of the Repatriation Act 1920, as in force between 1 January 1985 and 22 May 1986, upon the circumstance that the formal claim of 11 April 1985 had been preceded by an informal claim on Mr. Reid's behalf by Dr. A.J. Carless of Ballarat, which was received by the Department of Veterans' Affairs on 4 March 1985. In the latter case that "earliest date" would have been 4 March 1985, by reason of the operation of s.26(6) of the Repatriation Act 1920 upon that same circumstance.

  2. The Veterans' Review Board had decided that the rate of pension payable to Mr. Reid, on and after the date from which its decision was to operate, should be what in the legislation is called "the special rate". On review of that decision the Administrative Appeals Tribunal, exercising powers the Board had, also decided that pension at the special rate should be paid to Mr. Reid, but from 1 January 1974. Mr. Reid had ceased to undertake remunerative work in December 1973, on a date which the evidence did not disclose.

  3. Sub-section 24(1) of the Veterans' Entitlements Act 1986 (the side-note to which refers to "special rate of pension") provides:

"(1) This section applies to a veteran, other than a veteran to whom section 25 applies, if -

(a) there is in force in respect of the veteran a determination under this Act determining that the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is 100 per centum;

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason in incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity."

The provisions of s.21(1) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, which I have quoted, will be recalled. Sub-section 7(1) of that Act provides:

"(1) Where, after the commencing date -

(a) approval is given by the Commission, the Board, or the Administrative Appeals Tribunal for payment of a pension, or for payment of a pension at a higher or lower rate, to be made from a date before the commencing date; or

(b) the Commission, the Board or the Administrative Appeals Tribunal is reviewing the rate at which a pension was payable before the commencing date, the rate at which that pension may be paid at any time before the commencing date shall be assessed by reference to the relevant provisions of the repealed Acts as in force at that time but otherwise in accordance with the provisions of the Veterans' Entitlements Act and the principles applicable under that Act."

The Board was subject to the legislative direction, expressed in s.19(1) of that Act, to treat Mr. Reid's application as if it were an application that had been made to it under s.135 of the Veterans' Entitlements Act 1986 and to hear and determine the application accordingly. Perhaps conscious of the difficulties which those directions might occasion, Parliament added, in sub-section 19(4), this adjuration:

"The decision of the Board or of the Administrative Appeals Tribunal upon an application to which sub-section (1) or (2) applies shall be such decision as the Board, or the Tribunal, considers to be, in all the circumstances of the particular case, in accordance with the provisions of the Veterans' Entitlements Act and of this Act."

One of the duties imposed on the Board, in the exercise of its review function upon application under s.135, is expressed in s.139(4) of the Veterans' Entitlements Act 1986, thus:

"Where the Board sets aside a decision of the Commission refusing to grant a pension to a person and substitutes for it a decision granting a pension to the person, the Board shall assess the rate at which the pension is to be paid to the person or remit the matter to the Commission to assess the rate at which the pension is to be paid to the person."

In my opinion the decision of the Commission which the Board set aside on 6 April 1987 was "a decision of the Commission refusing to grant a pension to a person", within the meaning of that phrase in s.139(4). That opinion rests on the same ground as I have already stated for my conclusion that the Commission's decision was "a decision ... refusing to grant a pension", within the meaning of those words in s.157(1).

  1. In my opinion the final phrase of sub-section 7(1) - "but otherwise in accordance with the provisions of the Veterans' Entitlements Act and the principles applicable under that Act" - require that the conditions of eligibility for entitlement to pension at the special rate be the conditions specified in s.24 of the Veterans' Entitlements Act 1986. The question then is as to the date or dates as at which the Board was to consider whether those conditions of eligibility were satisfied.

  2. Section 24, of which I have quoted sub-section (1), falls within Part II of the Veterans' Entitlements Act 1986. That Part ordains not only the criteria of eligibility for different classes of pensions (other than service pensions) for veterans and their dependants and the rates of those several classes, but also the procedures in accordance with which those claiming entitlement make their claims and the procedures in accordance with which the Commission considers and determines those claims. Within that Part s.14 makes provision for the making of a claim for a pension and s.15 makes provision for an application for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased. Section 17 prescribes investigation and thereafter submission to the Commission of such claims and applications. The first three sub-sections of s.19 are in these terms:

"(1) In this section, 'claim' means a claim made in accordance with section 14 or an application made in accordance with section 15.

(2) Subject to subsection (2A), where a claim is submitted to the Commission in accordance with sub-section 17(2), the Commission shall consider the claim and, after consideration of all matters that, in the opinion of the Commission, are relevant, including, but without limiting the generality of the foregoing, the evidence and documents that were submitted with the claim in accordance with sub-section 17(3), any evidence subsequently submitted to the Commission in relation to the claim, and any evidence, documents or other material furnished to the Commission under section 32, shall, subject to sub-sections (3), (4), (5) and (7) of this section, determine the claim.

(2A) In determining whether the rate of pension payable to a veteran should be the rate applicable under section 23 or 24, the only relevant consideration is whether the veteran was a veteran to whom that section applied on the application day in relation to the veteran.

(3) Where -

(i) a claimant, being a veteran, has refused or failed to undergo a medical examination for the purpose of the investigation of the claim or the consideration of the claim by the Commission; or

(ii) to comply with a request under paragraph 32(1)(c) to furnish material to the Commission, the Commission may, if it is of the opinion that the medical examination, information or material is likely to affect the decision it will make in respect of the claim, defer further consideration of the claim until the veteran has undergone the medical examination, or the claimant has consented to the release of the information or furnished the material, as the case may be, and, if it does so, the Commission shall serve on the claimant a notice, in writing, informing the claimant that the claim has been so deferred."

Section 12, the first in Part II, provides:

"In this Part, unless the contrary intention appears: 'application day', in relation to a veteran who has made a claim for a pension or an application for an increase in the rate of a pension or a veteran on whose behalf such a claim or application has been made, means the day on which the claim or application was received at an office of the Department in Australia or, if subsection 20(2) or 21(2) applies to the veteran, the day on which the claim or application referred to in paragraph 20(2)(a) or 21(2)(a) was so received; 'pension' means a pension under this Part."

It was the submission of Dr. Jessup Q.C., who appeared with Mr. Downing for the Commission, that sub-section 19(2A) gave the answer to the question as to what the date was at which the Administrative Appeals Tribunal was to consider whether the conditions of eligibility specified in sub-section 24(1) were satisfied. He could not advance that submission in relation to the Board's decision of 6 April 1987 because on that date neither the definition of "application date" nor sub-section 19(2A) had been enacted. The Social Security and Veterans' Entitlements Amendment Act (No. 2) 1987 gained royal assent on 16 December 1987, but that Act provided that s.63, by which the definition of "application day" was inserted, and s.64, by which sub-section 19(2A) was inserted and the introductory words, "Subject to subsection (2A), where", were substituted in sub-section 19(2) for the word "Where", should be deemed to have come into operation on 22 May 1986, on which date the Veterans' Entitlements Act 1986 commenced. When in June 1988 the Administrative Appeals Tribunal was making its decision of the review it had undertaken of the Board's decision it was obliged by s.19(2A), Dr. Jessup submitted, to consider, in determining whether the rate of pension payable to Mr. Reid should be the rate applicable under s.24, only whether Mr. Reid was "a veteran to whom that section applied on the application day in relation to the veteran".

  1. If that submission were accepted, the dates which might answer the defined meaning of "the application date" were, according to Dr. Jessup, in 1960, when Mr. Reid was engaged in remunerative work for many more than 8 hours per week, and in 1985, when Mr. Reid was 68 years old and, according to the evidence before the Tribunal, in circumstances which made it improbable that the conditions specified in paragraph 24(1)(c) could be found to have been satisfied. No such a finding had been made, the Tribunal having directed its attention to a much earlier time.

  2. In Jebb v. Repatriation Commission (1988) 80 ALR 329 Davies J. held that, if sub-section 19(2A) and s.24A (a provision yet to be discussed) were put out of account, the legislation of which the Veterans' Entitlements Act 1986 may be regarded as the principal element authorized ascertainment by the Administrative Appeals Tribunal, on review in pursuance of s.175(1), of the veterans's eligibility for pension at the special rate on each day during the period commencing on the date from which the Tribunal was authorized to approve payment of pension or payment of pension at an increased rate, as the case may be, and concluding on the date of its decision, and also authorized decision by the Tribunal that pension be paid at the special rate for the period in respect of which it had ascertained that eligibility existed. I respectfully accept his Honour's opinion, substantially for the reasons which he states. If that were the authority the Tribunal had, the period during which Mr. Reid's eligibility for pension at the special rate was to be ascertained was the period commencing on 9 March 1972 and ending on the date of the Tribunal's decision, 27 June 1988.

  3. Section 24A of the Veterans' Entitlements Act 1986 was inserted into that Act by the Social Security and Veterans' Entitlements Amendment Act (No. 2) 1987, s.65, which was, like ss. 63 and 64, deemed to have come into operation on 22 May 1986. Section 24A provides:

"Where the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:

(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;

(b) in the case of a veteran to whom section 23 applies:

(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or

(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking - the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or

(c) in the case of a veteran to whom section 24 applies - the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week."

Davies J. held, in Jebb v. Repatriation Commission, supra, that s.19(2A) should be understood as giving a direction only in respect of a determining authority's consideration of the question whether on the date on which a claim or an application was made eligibility for pension at the special rate (or, in relation to s.23, at what is called "the intermediate rate") existed, and understood as directing such an authority which has answered that question in the affirmative to eschew enquiry, except such an enquiry as paragraphs 24A(b) and 24A(c) authorize, concerning eligibility after that date. His Honour said (80 A.L.R. at 3421): "I read the new s.19(2A) as dealing solely with the question of entitlement as at the date of application ..... I do not read s.19(2A) as dealing with the question of entitlement during the period prior to the date during which the decision may be backdated or during the period from that date to the date of the decision". (It may be that the sense of the passage quoted is clearer if the phrase "prior to the date" is understood as "prior to that date".)

  1. It was subsmitted by Dr. Jessup Q.C. that s.19(2A) did not fall within sub-paragraph 15AB(1)(i) or 15AB(1)(ii) of the Acts Interpretation Act 1901 and that therefore the recourse Davies J. had, in construing s.19(2A), to the second reading speech of the Minister of State for Veterans' Affairs on the bill for the Social Security and Veterans' Entitlements Amendment Act (No. 2) 1987 was not justified. The plain meaning of s.19(2A) should in Dr. Jessup's submission be accepted as affording its proper construction and I should decline to accept the construction Davies J. had adopted. If that were done, the only dates to which the Tribunal might have given consideration were dates on which Mr. Reid's eligibility for pension at the special rate could not have been found to have existed.

  2. I would not decline to accept a carefully considered conclusion about the proper construction of a statutory provision by another judge of the court unless convinced that it was wrong. I am not so convinced. Further, there is another way by which in my opinion the conclusion may be reached that the reasoning of the Administrative Appeals Tribunal in this case did not contravene any requirement of s.19(2A). It will be recalled that the word "claim" is by sub-section 19(1) defined to mean, in that section "a claim made in accordance with section 14 or an application made in accordance with section 15". Accordingly, although the expression "application day" is defined in s.12, not in s.19, the words "claim" and "application" in that definition are in my opinion to be understood in the senses given them by sub-section 19(1) when the expression "application day" is considered in the process of construing s.19(2A). (That expression is not found elsewhere in Part II.) No claim or application had ever been made by Mr. Reid "in accordance with" s.14 or s.15 or any other provision of Part II. In my opinion s.19(2A) had no application to the Tribunal's determination whether the rate of pension payable to Mr. Reid should be the rate applicable under s.24 because there was no "application day" in relation to Mr. Reid.

  3. The considerations discussed in the preceding paragraph recall to mind the curious phrase with which sub-section 7(1) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 concludes -

"7.(1) Where, after the commencing date -

(a) approval is given by the Commission, the Board, or the Administrative Appeals Tribunal for payment of a pension, or for payment of a pension at a higher or lower rate, to be made from a date before the commencing date; or

(b) the Commission, the Board or the Administrative Appeals Tribunal is reviewing the rate at which a pension was payable before the commencing date, the rate at which that pension may be paid at any time before the commencing date shall be assessed by reference to the relevant provisions of the repealed Acts as in force at that time but otherwise in accordance with the provisions of the Veterans' Entitlements Act and the principles applicable under that Act."

A direction to act "in accordance with the provisions of" a statute is an unsurprising legislative command. The addition of a direction to act also "in accordance with .... the principles applicable under" that statute is not a common legislative form. Nor is the direction contained in sub-section 19(4) of that Act:

"19.(4) The decision of the Board or of the Administrative Appeals Tribunal upon an application to which sub-section (1) or (2) applies shall be such decision as the Board, or the Tribunal, considers to be, in all the circumstances of the particular case, in accordance with the provisions of the Veterans' Entitlements Act and of this Act."

Both sub-sections in my opinion suggest that the legislature anticipated difficulties of the kind which s.19(2A) may be thought to cause in this case and intended that such difficulties be resolved by choosing a construction of the legislative provisions causing difficulty which would accord best with "the principles" underlying the Veterans' Entitlements Act 1986. In my opinion a construction of s.19(2A) which leaves the Administrative Appeals Tribunal free to make the decision which it did make in this case gives effect to that intention.

  1. The appeal will be dismissed with costs.

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