Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc
[2000] NSWCA 65
•31 March 2000
NEW SOUTH WALES COURT OF APPEAL
CITATION: REPATRIATION COMMISSION v VIETNAM VETERANS' ASSOCIATION OF AUSTRALIA NSW BRANCH INC. & ORS [2000] NSWCA 65
FILE NUMBER(S):
40380/99
40382/99
HEARING DATE(S): 03/02/00, 04/02/00
JUDGMENT DATE: 31/03/2000
PARTIES:
Repatriation Commission
Vietnam Veterans' Association of Australia NSW Branch Inc.
Specialist Medical Review Council
Repatriation Medical Authority
JUDGMENT OF: Spigelman CJ Meagher JA Handley JA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 30133/96, 30139/96
LOWER COURT JUDICIAL OFFICER: Greg James J
COUNSEL:
P J Hanks QC (Appellant)
M B Smith (Respondent 1)
D E J Ryan SC / C Champion (Respondent 3)
SOLICITORS:
Australian Government Solicitor (Appellant)
T Murphy, Legal Aid Commission of NSW (Respondent 1)
Australian Government Solicitor (Respondent 2)
Australian Government Solicitor (Respondent 3)
CATCHWORDS:
ADMINISTRATIVE LAW
veterans’ pensions
Statements of Principle
formulation by the Repatriation Medical Authority
Veterans’ Entitlements Act 1986 (Cth), s196B
ADMINISTRATIVE LAW
veterans’ pensions
Statements of Principle
review by the Specialist Medical Review Council
Veterans’ Entitlements Act 1986 (Cth), s196W and s196Y
ADMINISTRATIVE LAW
veterans’ pensions
"available"
Veterans’ Entitlements Act 1986 (Cth), s196W
ADMINISTRATIVE LAW
veterans’ pensions
"sound medical-scientific evidence", "meets the criteria"
Veterans’ Entitlements Act 1986 (Cth), s5AB(2)
ADMINISTRATIVE LAW
veterans’ pensions
"reasonable hypothesis"
"reasonable satisfaction"
Veterans’ Entitlements Act 1986 (Cth), s120(1), s120(3) and s120(4).
ADMINISTRATIVE LAW
procedural fairness
obligation to limit statutory review to matters raised in the application.
LEGISLATION CITED:
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth)
Veterans’ Affairs (1994-95) Budget Measures Legislation Amendment Act 1994 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
DECISION:
PROCEEDINGS No. 40380 of 1999
1 Appeal allowed.
2 Vacate the orders of Greg James J in Proceedings No S30139 of 1996.
3 Each party to bear its own costs of the proceedings including the costs of the appeal.
PROCEEDINGS No. 40382 of 1999
1 Appeal allowed in part.
2 Vacate the orders of Greg James J in Proceedings No. S30133 of 1996.
3 Declare that Para 1 of the Declaration made on 22 December 1995 by the Specialist Medical Review Council is void.
4 Order the Appellant to pay one half of the costs of the First Respondent’s costs of the appeal and one half of the said Respondent’s costs below.
JUDGMENT:
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL40380/99
40382/99SPIGELMAN CJ
MEAGHER JA
HANDLEY JAFriday 31 March 2000
REPATRIATION COMMISSION v VIETNAM VETERANS’ ASSOCIATION OF AUSTRALIA NSW INC. & ORS
Under the Veterans’ Entitlements Act 1986 (Cth) (the Act) the Repatriation Medical Authority (RMA) is required to determine, based on “sound medical-scientific evidence”, “Statements of Principles” (SOPs) in relation to a particular injury, disease or death (s196B(2) and (3)). SOPs are “quasi-legislative” instruments which contain the minimum requirements for a connection between military service and injury, disease or death. When requested to do so the Specialist Medical Review Council (SMRC) must carry out a review of an SOP, using the information “available” to the RMA. The First Respondent requested the SMRC to review four SOPs. The SMRC did so but found no “sound medical-scientific evidence”, which would warrant altering the SOPs in the manner requested. However, it also found that “sound medical evidence” did not justify one of the factors that had been included by the RMA in one SOP.
The Appellant (the body that administers the Act) appealed against the findings of the trial judge (Greg James J) that the SMRC’s declarations in relation to the four SOPs were invalidly made. The Appellant also appealed against the finding that the First Respondent had been denied procedural fairness by the SMRC with respect to one SOP.
The Appellant contended that the definition of “sound medical-scientific evidence” in s5AB(2) of the Act, requiring that in the case of information about causation that the information “meet the criteria for assessing causation currently applied in the field of epidemiology”, means that a causal relationship must be established.
Held
Appeal allowed in part and dismissed in part.
Reasoning
a “Available”
(per Spigelman CJ, Meagher and Handley JJA agreeing)
The “information available” to the RMA refers to information that was in fact before the RMA.
b Construction of s5AB(2)
(per Spigelman CJ, Handley JA agreeing; Meagher JA dissenting)
It is not necessary that a causal relationship be established in accordance with the science of epidemiology.
1 It is often the case that the most important aspect of a statutory definition is the word being defined. Eastleigh Brough Council v Betts [1983] 2 AC 613 at 628B; Delaney v Staples [1992] 1 AC 687 at 692A applied. The use of the word “evidence” indicates that the legislation focuses on material appropriate to be taken into account in a decision-making process.
2 The relevant decision-making processes are those conducted by the RMA and the SMRC. This is the context in which the defined word must be applied. It supports a construction that information be regarded as appropriate to be taken into account in deciding issues of causation.
3 Dicta in Deledio v Repatriation Commission (1997) 47 ALD 261, as approved in Repatriation Commission v Deledio (1998) 83 FCR 82, not followed.
4 Criteria applied by epidemiologists for determination of issues of causation discussed.
(per Meagher JA)
5 Since s196B depends on the concept of “sound medical-scientific evidence”, s5AB(2) governs the interpretation of s196B and not the other way round.
6 “Meets the criteria” means “satisfies”, “passes” or “complies with”. The decision-maker is not required to ask whether the particular information is assessable by reference to the relevant criteria.
c SMRC Decisions
(per Spigelman CJ)
1 With respect to SOPs 95 and 96 the SMRC asked itself the wrong question by requiring that a causal relationship be established.
2 In the case of SOP 96 the legal error made no substantial difference to the decision and remittal for reconsideration would be futile. The Court, in the exercise of its discretion, should allow the appeal in relation to SOP 96.
(per Handley JA)
3 With respect to SOP 95, the reasons and consequent findings of the SMRC are invalid and in excess of its jurisdiction as a result of errors of law.
4 The Council’s findings support its decision in relation to SOP 96.
(per Spigelman CJ, Handley JA agreeing)
5 With respect to SOPs 245 and 246, it was not possible to identify and error of law.
d Procedural Fairness
(per Spigelman CJ, Meagher and Handley JJA agreeing)
The first Respondent was denied procedural fairness in relation to SOP 95.
e Power to Recommend
(per Spigelman CJ, Meagher and Handley JJA agreeing)
The SMRC’s recommendation that the RMA consider certain information, was a valid exercise of the power in s196W(5) of the Act.
Orders
Proceedings No 40380 of 1999:
1 Appeal allowed.
2 Vacate the orders of Greg James J in Proceedings No S30139 of 1996.
3 Each party to bear its own cost of the proceedings including the costs of the appeal.
Proceedings No. 40382 of 1999
1 Appeal allowed in part.
2 Vacate the orders of Greg James J in Proceedings No. S30133 of 1996.
3 Declare that Para 1 of the Declaration made on 22 December 1995 by the Specialist Medical Review Council is void.
4 Order the Appellant to pay one half of the costs of the First Respondent’s costs of the appeal and one half of the said Respondent’s costs below.
- 97 -
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL40380/99
40382/99SPIGELMAN CJ
MEAGHER JA
HANDLEY JAFriday 31 March 2000
REPATRIATION COMMISSION v VIETNAM VETERANS’ ASSOCIATION OF AUSTRALIA NSW INC. & ORS
JUDGMENT
SPIGELMAN CJ: This is an appeal from a judgment of Greg James J. His Honour made orders to the effect that certain Declarations, purportedly made pursuant to the provisions of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), were invalid and void.
In Vietnam Veterans’ Affairs Association of Australia New South Wales Branch Inc v Cohen & Ors (1996) 70 FCR 419 Tamberlin J held that the Administrative Decisions (Judicial Review) Act 1977 (Cth) did not extend to the Declarations here in issue, as they were not decisions of an administrative character. His Honour further held that jurisdiction under s39B of the Judiciary Act 1903 (Cth) could not be invoked because each of the relevant decision-makers was a body corporate (and accordingly, was not “an officer of the Commonwealth”) and the individuals who constituted the respective bodies corporate did not make the impugned decisions. Following the judgment of Tamberlin J, the Vietnam Veterans’ Association of Australia New South Wales Branch Inc (“Vietnam Veterans’ Association”) instituted proceedings in this Court.
This Court can give appropriate relief in the case of the exercise of a “quasi-legislative” power. (See eg Bread Manufacturers of NSW v Evans (1981) 180 CLR 404; Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552; Minister of Health v The King (on the Prosecution of Yaffe) [1931] AC 494; R v Secretary of State for Social Services; Ex parte AMA [1986] 1 WLR 1; and R v Secretary of State for Health; Ex parte United States Tobacco International Inc [1992] QB 353). No suggestion to the contrary was made before his Honour or in this Court.
Error of law within jurisdiction was not a ground for judicial review at common law unless certiorari was available to quash for error of law on the face of the record. It is not necessary to consider the difficult issues which sometimes arise in determining whether an error is jurisdictional. The relevant principles are not in doubt. In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Jordan CJ said:
“… the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction … But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply ‘a wrong and inadmissible test’ … or to ‘misconceive its duty’ or ‘not to apply itself to the question which the law prescribes’ … or ‘to misunderstand the nature of the opinion which it is to form’ … in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law”.
More recently, in the joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v South Australia (1994-1995) 184 CLR 163 their Honours said at 179:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question … and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
It was an error of this character which was found by Greg James J and which was contested on this appeal.
The impugned decisions were reviews of four Statements of Principles, (“SOPs”) which are quasi legislative instruments formulated in accordance with a statutory regime under the Act to which I will presently refer, and which, once formulated, play a central role in the determination of the entitlements of veterans in accordance with the legislative scheme for the payment of benefits. This legislative scheme constitutes the context in which the Court must determine the proper construction of the provisions which authorise and require the formulation of, and the review of, the Statements of Principles with which this appeal is concerned.
The Legislative Scheme
The context in which the particular provisions of the Act fall to be construed is, in general terms, the following:
(i) The Commonwealth is liable to pay pensions in accordance with the Act (s13).
(ii) Liability arises in the case of death of a veteran that was war caused (s8) and in the case of incapacity from war caused injury or war caused disease (s9).
(iii) Claims for pensions may be made by a veteran or a dependent of a deceased veteran (s14).
(iv) The Appellant, the Repatriation Commission (“the Commission”), is obliged to consider all matters that, in its opinion, are relevant to a claim, to determine the claim and to assess the rate or rates at which the pension is payable (s19).
(v) In the case of claims in certain circumstances, to which it is convenient to refer as “operational service” by the veteran, the Commission is obliged to determine that the death, injury or disease was war caused “unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination” (s120(1)).
(vi) In a case of operational service, the Commission is to be satisfied beyond reasonable doubt that there is no sufficient ground for making the determination, if the Commission forms an opinion “that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person” (s120(3)).
(vii) Subsection 120(1) and s120(3) contain a “Note” that “this subsection is affected by s120A”. Notes form part of the subsections (s5U).
(viii) A hypothesis connecting an injury, disease or death with the circumstances of any particular service rendered by the person “is reasonable only if there is in force”, relevantly, an SOP determined under the Act (s120A(3)).
(ix) In the case of all claims in circumstances other than those which relate to operational service, to which it is convenient to refer as “eligible service”, the Commission is obliged to decide the matter before it “to its reasonable satisfaction” (s120(4)). This is a balance of probabilities test. Subsection 120(4) contains a Note that it is “affected by s120B”.
(x) With respect to claims related to eligible service, the Commission may only be reasonably satisfied that injury, disease or death was war caused if, relevantly, there is in force an SOP determined under the Act (s120B(3)).
(xi) The Repatriation Medical Authority (“RMA”) established by the Act is empowered to formulate SOPs with respect to certain kinds of injury, disease or death (s196B).
(xii) The Specialist Medical Review Council (“SMRC”) established under the Act is obliged, if requested to do so, to review an SOP (s196W).
The statutory powers, the exercise of which are the subject of these proceedings are found in s196W of the Act. That section relevantly provides:
“196W(1) This section sets out the functions of the Review Council.
(2) If the Council is asked under section 196Y to review:
(a) the contents of a Statement of Principles in respect of a particular kind of injury, disease or death; or
(b) a decision of the Repatriation Medical Authority not to determine a Statement of Principles under subsection 196B(2), or a Statement of Principles under subsection 196B(3), in respect of a particular kind of injury, disease or death;
subject to subsection (3), the Council must, for that purpose, carry out a review of all the information that was available to the Authority when it:
(c) determined, amended, or last amended, the Statement of Principles; or
(d) decided, or last decided, not to determine a Statement of Principles;
in respect of that kind of injury, disease or death.
(3) If the Council has been asked to review the contents of a Statement of Principles, the Council may carry out a review under subsection (2) only if:
(a) the period within which the Statement of Principles may be disallowed under section 48 of the Acts Interpretation Act 1901 has ended; and
(b) the Statement of Principles has not been disallowed.
(4) If after carrying out the review, the Council is of the view that there is sound medical-scientific evidence on which the Authority could have relied:
(a) to amend the Statement of Principles in force in respect of that kind of injury, disease or death; or
(b) to determine a Statement of Principles under subsection 196B(2), or a Statement of Principles under subsection 196B(3), in respect of that kind of injury, disease or death;
the Council must make a declaration in writing stating its views, setting out the evidence in support and:
(c) directing the Authority to amend the Statement of Principles, or determine a Statement of Principles (as the case may be), in accordance with the directions given by the Council; or
(d) remitting the matter for reconsideration in accordance with any directions or recommendations of the Council.
(5) If, after carrying out the review, the Council is of the view:
(a) that there is no sound medical-scientific evidence that justifies the making of a Statement of Principles, or an amendment of the Statement of Principles in force, in respect of that kind of injury, disease or death; or
(b) that the sound medical-scientific evidence available to the Authority is insufficient to justify the making of a Statement of Principles, or an amendment of the Statement of Principles, in respect of that kind of injury, disease or death;
the Council must make a declaration in writing to that effect giving the reasons for its decision. The Council may include in the declaration any recommendation that it considers fit to make about any future investigation that the Authority may carry out in respect of that kind of injury, disease or death.”
The decision-making power of the RMA, the exercise of which is reviewed by the SMRC, is found in s196B which provides:
“196B (1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB(2).
………
(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a) eligible war service (other than operational service) rendered by veterans; or
(b) defence service (other than hazardous service) rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB(2).
………
Note 3: For factor related to service see subsection (14).
Investigation
(4) If the Authority:
(a) receives a request under section 196E to carry out an investigation in respect of a particular kind of injury, disease or death; or
(b) of its own initiative, decides that a particular kind of injury, disease or death ought to be investigated for the purposes of this Act to find out whether a Statement of Principles may be determined in respect of it;
the Authority must carry out an investigation to obtain information that would enable the Authority to establish:
(c) how the injury may be suffered, the disease may be contracted or the death may occur; and
(d) the extent (if any) to which the injury, disease or death may be war-caused or defence-caused.
………
(5) If, after carrying out the investigation, the Authority is of the view that there is sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3), in respect of that kind of injury, disease or death, the Authority must do so as soon as practicable.
Note: This subsection does not mean that the Authority must carry out an investigation before it can determine a Statement of Principles under subsection (2) or (3).
(6) If, after carrying out the investigation, the Authority is of the view:
(a) that there is no sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death; or
(b) that the sound medical-scientific evidence on which it can rely is insufficient to allow it to do so;
the Authority must make a declaration in writing:
(c) stating that it does not propose to make a Statement of Principles; and
(d) giving the reasons for its decision.
Subsequent investigation and review of determinations concerning Statement of Principles.
(7) If the Authority:
(a) is asked under section 196E to review:
(i) the contents of a Statement of Principles; or
(ii) a decision of the Authority not to make a Statement of Principles in respect of a particular kind of injury, disease or death; or
(b) thinks that there are grounds for such a review; or
(c) is directed by the Review Council under subsection 196W(7) to carry out an investigation in respect of a particular kind of injury, disease or death;
the Authority must, subject to subsection 196C(4) in a case where paragraph (a) applies, carry out an investigation to find out if there is new information available about:
(d) how the injury may be suffered, the disease may be contracted or the death may occur; or
(e) the extent to which the disease, injury or death may be war-caused or defence-caused.
(8) If, after carrying out the investigation, the Authority is of the view that there is a new body of sound medical-scientific evidence available that, together with the sound medical-scientific evidence previously considered by the Authority, justifies the making of a Statement of Principles, or an amendment of the Statement of Principles already determined, in respect of that kind of injury, disease or death, the Authority must:
(a) determine a Statement of Principles in respect of that kind of injury, disease or death under subsection (2) or (3); or
(b) make a determination amending the Statement of Principles determined under subsection (2) or (3) in respect of that kind of injury, disease or death; or
(c) revoke the Statement of Principles determined under subsection (2) or (3), and determine a new Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death;
as the case requires.
Note: For sound medical-scientific evidence see subsection 5AB(2).
(9) If, after carrying out the investigation, the Authority is of the view:
(a) that there is no new sound medical-scientific evidence about that kind of injury, disease or death; or
(b) that the new sound medical-scientific evidence available is not sufficient to justify the making of a Statement of Principles, or an amendment of the Statement of Principles already determined in respect of that kind of injury, disease or death;
the Authority must make a declaration in writing:
(c) stating that it does not propose to make a Statement of Principles, or amend the Statement of Principles already determined (as the case may be); and
(d) giving the reasons for its decision.
(10) If the Review Council has, by a decision notified in the Gazette, directed the Authority to amend a Statement of Principles in respect of a particular kind of injury, disease or death, the Authority must make a determination amending the Statement of Principles determined in respect of that kind of injury, disease or death in accordance with the directions of the Council.
(11) If, after reviewing a decision of the Authority not to determine a Statement of Principles under subsection 196B(2) in respect of a particular kind of injury, disease or death, the Review Council has, by a decision notified in the Gazette, directed the Authority to make such a Statement of Principles, the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out, in accordance with the directions of the Council:
(a) the factors that must as a minimum exist; and
(b) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note: For factor related to service see subsection (14).
(12) If, after reviewing a decision of the Authority not to determine a Statement of Principles under subsection 196B(3) in respect of a particular kind of injury, disease or death, the Review Council has, by a decision notified in the Gazette, directed the Authority to make such a Statement of Principles, the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out, in accordance with the directions of the Council:
(a) the factors that must exist; and
(b) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
Note: For factor related to service see subsection (14).
(13) A determination under subsection (10) amending a Statement of Principles, or a Statement of Principles under subsection (11) or (12) is to be taken to have had effect from the day on which the decision of the Review Council was notified in the Gazette. The determination or Statement of Principles must specify that day.
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
(e) in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or
(f) in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or
(g) in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service.”
The concept of “sound medical-scientific evidence” plays a central role in this decision-making scheme. It is defined in s5AB as follows:
“5AB(1) ………
sound medical-scientific evidence, in relation to a particular kind of injury, disease or death, has the meaning given by subsection (2).
(2) Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:
(a) the information:
(i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and
(b) in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology.”
It is also relevant to set out the relevant provisions of s120, 120A and 120B as follows:
“120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) Where a claim under Part IV:
(a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
………
Note 2: This subsection is affected by section 120A.
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c) the death of a person is war-caused or defence-caused; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
………
“120A(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
………
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
120B(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note: Subsection 120(4) is relevant to these claims.
………
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person; or
as the case may be.”
The Primary Decisions
The decisions of which the Vietnam Veterans’ Association sought judicial review were constituted by two sets of Declarations made by the SMRC, with respect to two sets of SOPs made by the RMA. Each set consisted of two SOPs relating, respectively, to operational service - to which a “can be related” test applied - and eligible service - to which a “more probable than not” test applied.
On 8 March 1995 the RMA issued Statement of Principles 95 and Statement of Principles 96 of 1995 with respect to malignant neoplasm of the prostate (prostate cancer).
By SOP 95 of 1995 the RMA determined under s196B(2) of the Act that either of two factors must exist before it could be said that a reasonable hypothesis has been raised connecting prostate cancer with the circumstances of service, namely:
“(a) Being exposed to herbicides in Vietnam; or
(b) Inability to obtain appropriate clinical management for the malignant neoplasm of the prostate.”
The formulation “being exposed to herbicides in Vietnam” was defined in SOP 95 as a series of alternative factual circumstances which it is unnecessary to set out.
By SOP 96 of 1995, the RMA determined, under s196B(3) of the Act, that the factor that must exist before it can be said that on the balance of probabilities prostate cancer is connected with the circumstances of service is:
“(a) Inability to obtain appropriate clinical management for malignant neoplasm of the prostate.”
It can be seen that the alternative in SOP 95 of “exposed to herbicides in Vietnam” does not appear in SOP 96. This reflects the differences in the applicable statutory formulae. In the opinion of the RMA the exposure to herbicides in Vietnam passed the “can be related” test, but not the “more probable than not” test.
The Vietnam Veterans’ Association made a request under s196Y of the Act for a review of SOP 95. On 22 May 1995 another Association, not party to the present proceedings, the Australian Veterans and Defence Services Council, sought a review of both SOP 95 and SOP 96.
The SMRC proceeded to take the various steps required to conduct a review and, subject to the issue of procedural fairness to which I will refer below, nothing turns on the details of those steps.
On 22 December 1995 the SMRC made the Declarations in relation to SOPs 95 and 96 which are the subject of the present proceedings. The SMRC also published Reasons for Decisions with respect to those Declarations. The Declarations were:
“1 In relation to the Repatriation Medical Authority Statement of Principles, Instrument No 95 of 1995 concerning malignant neoplasm of the prostate and death from malignant neoplasm of prostate, made under subsection 196B(2) of the Veterans’ Entitlements Act 1986 (the Act), the Specialist Medical Review Council (the Council) declares, under subsection 196W(5) of the Act, that:
(a) the Council is of the view that there is insufficient sound medical-scientific evidence to justify the making of that Statement of Principles to include, as a factor, ‘being exposed to herbicides in Vietnam’; and
(b) the Council recommends that the Repatriation Medical Authority reconsider the inclusion of ‘being exposed to herbicides in Vietnam’ as a factor having regard to the Reasons for Decisions of the Council, the information that was available to the Repatriation Medical Authority when it made that Statement of Principles, together with any further information that may arise from any further studies that might be undertaken following the recommendation in the MacLennan and Smith Report relating to malignant neoplasm of the prostate; and
(c) the Council is of the view that there is no sound medical-scientific evidence that justifies any other amendment of that Statement of Principles.
2 In relation to the Repatriation Medical Authority Statement of Principles, Instrument No 96 of 1995 concerning malignant neoplasm of the prostate and death from malignant neoplasm of the prostate, made under subsection 196B(3) of the Act, the Council declares, under subsection 196W(5) of the Act, that the Council is of the view that there is no sound medical-scientific evidence that justifies an amendment of that Statement of Principles.”
On 21 June 1995 the RMA promulgated two SOPs, being Nos 245 and 246 of 1995, concerning motor neurone disease.
SOP 245, with respect to operational service, was a determination by the RMA under s196B(2) of the Act that the factor that must exist before it can be said that a reasonable hypothesis has been raised connecting motor neurone disease with service is:
“(a) Inability to obtain appropriate management for motor neurone disease.”
In SOP 246 the RMA made a determination under s196B(3) that the same factor must exist before it can be said on the balance of probabilities that motor neurone disease is connected with service.
On 29 August 1995 the Vietnam Veterans’ Association made a request under s196Y of the Act for a review of SOPs 245 and 246. Pursuant to that request the SMRC took the various steps required to be taken under the Act and conducted a review.
On 26 October 1996 the SMRC made the following Declarations and published Reasons for Decision with respect to SOPs 245 and 246:
“1 The Specialist Medical Review Council (‘the Review Council’) established pursuant to Part XIB of the Veterans’ Entitlements Act 1986 (‘the Act’), having reviewed the contents of the Statements of Principles numbered 245 and 246 of the 1995 made under section 196B of the Act by the Repatriation Medical Authority (‘RMA’) established under Part X1A of the Act, HEREBY DECLARES
(a) that it is of the view that the sound medical-scientific evidence available to the RMA at the time it made the Statement of Principles No 245 of 1995 is insufficient to justify the making of an amendment to that Statement of Principles;
(b) that it is of the view that the sound medical-scientific evidence available to the RMA at the time it made the Statement of Principles No 246 of 1995 is insufficient to justify the making of an amendment to that Statement of Principles;
(c) that it recommends however that the RMA further investigate exposure to solvents as a possible factor for the purposes of subsections 196B(2) and 196B(3) of the Act, having regard to the reasons for decision of the Review Council in its review of the above Statements of Principles, the information that was available to the RMA when it made those Statements together with any further information which has since become available to the RMA and which may become available between the date of this Declaration and the completion by the RMA of its investigation.”
In the case of SOPs 95 and 96 the Vietnam Veterans’ Association had sought to add smoking as a relevant factor. This was rejected by the SMRC. However, as noted above, the SMRC went further than the Association’s submissions and made a Declaration that a factor identified by the RMA, namely exposure to herbicides in Vietnam, should no longer be a factor.
In the case of SOPs 245 and 246 with respect to motor neurone disease, the Vietnam Veterans’ Association sought a review to add war-caused trauma and exposure to solvents as causal factors. The SMRC rejected these submissions.
The rejection of the Respondent’s case with respect to SOPs 95 and 96 was expressed in terms of “there is no sound medical-scientific evidence that justifies” the amendment. This employs the terminology of s196W(5)(a).
The rejection of the Respondent’s case with respect to SOPs 245 and 246 was expressed in terms of “the sound medical-scientific evidence … is insufficient to justify” the amendments. This employed the terminology of s196W(5)(b).
The declaration with respect to the factor “being exposed to herbicides in Vietnam” was expressed in terms of “there is insufficient medical-scientific evidence to justify the making of” the SOP including that reference. This employed the terminology of s196W(5)(b).
It will be necessary to refer to further aspects of the two Reasons for Decision in the context of dealing with the submissions made to this Court.
Decision of the Trial Judge
Greg James J made orders declaring that the Declarations made by the SMRC on 22 December 1995 and 26 October 1996 were invalidly made and are void. His Honour ordered the Council to hear and determine according to law, the requests for review which had been made to it originally by, inter alia, the present Respondent.
Four aspects of his Honour’s judgment have been raised on appeal.
The first issue is the proper construction of the phrase “the information that was available to the authority”, which the SMRC was required and authorised to “review” pursuant to s196W(2) of the Act. In its reasons for decision in the case of SOPs 95 and 96, the SMRC indicated that it proceeded on the basis that the word “available” means:
“… the information that was actually before the Repatriation Medical Authority at the relevant time rather than all the possible information that the Repatriation Medical Authority might have been able to obtain.”
His Honour found that this construction was incorrect and that the word “available” extends to information “extant in the discipline … whether actually provided to (the RMA) or not” [48]. The Appellant challenges his Honour’s construction. The Respondent supports it.
The second aspect of His Honour’s reasons challenged in the appeal is whether the SMRC misconstrued the legislation and determined an issue other than the issue which the statute obliged it to determine. The Appellant put this issue forward in terms of the construction of s5AB(2).
His Honour adopted a construction of s5AB(2)(b) that the words “meets the applicable criteria for assessing causation” meant no more than “capable of being assessed” by such criteria.
His Honour referred to a number of aspects of the two statements of Reasons for Decision by the SMRC which, in his Honour’s opinion, indicated that the Council had proceeded on an incorrect construction which his Honour identified.
The Appellant put its case on the second issue in alternative ways:
(i) The trial judge erred in his construction of s5AB(2)(b).
(ii) The SMRC did not commit the error identified by his Honour.
The submissions of both the Appellant and the Respondent focussed, as did his Honour’s reasons, on the construction of s5AB(2)(b). It was in the course of construing that provision that the error, if any, was said to occur. The consequence of this error which enlivened the jurisdiction of the Court on judicial review was, however, the conclusion that the SMRC failed to perform the function that the statute required it to perform. This kind of legal error is sometimes referred to in terms of whether the administrative decision-maker “asked the wrong question”.
With respect to the second way in which the Appellant put its case, it will be necessary to consider the actual reasoning of the SMRC.
The third issue raised in this appeal concerns the decision of the SMRC to make a Declaration that there was insufficient evidence to justify the inclusion as a factor in SOP 95 “being exposed to herbicides in Vietnam”, together with a recommendation that the RMA reconsider the inclusion of that factor. His Honour found that the Vietnam Veterans’ Association had been denied procedural fairness with respect to that decision-making process, in the circumstances which I will hereinafter set forth.
The Appellant does not challenge the obligation of the Council to afford procedural fairness to the Vietnam Veterans’ Association. It contends that, in all of the circumstances of the case, no breach of that obligation occurred.
The fourth issue raised in the proceedings was put forward by the Vietnam Veterans’ Association by means of a Notice of Contention. The Respondent contends that the decision of Greg James J with respect to SOP 95 should be affirmed on the basis that the power which the SMRC purported to exercise, being s196W(5) of the Act, did not authorise the making of the Declaration which the SMRC purported to make. The Appellant submitted that s196W(5) did support the Declaration. Alternatively, it contended that the Declaration could be supported by s196W(4) and that the misdescription of the power was not such as to invalidate the decision-making process.
What Does “Information Available” Mean?
The relevant statutory formula in s196W(2) is:
“The Council must … carry out a review of all the information that was available to the authority when it …
determined … the Statement of Principles …”The word “available” may be used, relevantly, in two senses: “capable of being used” or “in fact used” by the RMA.
The Appellant submitted that there were strong textual indications that the SMRC was limited to the information in fact used by the RMA.
Mr P Hanks QC, who appeared as Counsel for the Appellant, placed particular reliance on the use in s196K of an identical formulation with that in s196W(2):
“196K The Repatriation Medical Authority must, within 28 days after being notified that the Review Council has been asked to review:
(a) Statement of Principles …
send to the Council a copy of all the information that was available to it when it …(d) determined … the Statement of Principles.”
Section 196K and s196W(2) link directly with each other in the statutory scheme. It can be assumed that the drafter employed the same terminology with the same meaning. It could hardly have been intended that the RMA was under an obligation to transmit information of which it was unaware, or which was not already in its possession.
Mr Hanks QC submitted that this construction was reinforced by s196C, which provides:
“196C(1) The Repatriation Medical Authority may not, for the purposes of an investigation, carry out any new research work (including any test or experiment).
(2) The Authority may, for the purposes of an investigation, ask the Secretary:
(a) to forward to the Authority any information;
(i) in the possession of the Secretary; or
(ii) that the Secretary may obtain;
relating to the kind of injury, disease or death under investigation; or
(b) to carry out research (including any test or experiment) to obtain, confirm or disprove, specific information about that kind of injury, disease or death and forward a report to the Authority.
(3) In forming any view during the investigation, the Authority:
(a) may rely only on sound medical-scientific evidence:
(i) that has been submitted to it; or
(ii) that it has obtained on its own initiative or from the Secretary (under subsection (2)) or from a consultant; and
(b) must consider and evaluate all the evidence so made available to it.”
The concluding words of par 196C(3)(b) make use of the word “available” in the context of “so made available to it”. That occurs in the context of par (a) of that subsection which, by use of the word “only”, restricts the scope of the information to which the RMA may have regard.
These textual indicators strongly support the Appellant’s contentions in this respect.
Mr M Smith who appeared as counsel for the Vietnam Veterans’ Association directed the Court’s attention to s196ZN and s196ZO which contemplate an applicant for a review by the SMRC obtaining “documentary medical evidence”. Relevantly the two sections provide:
“196ZN(1) The Commonwealth may, subject to this section, pay to an applicant who asks the Review Council to conduct a review as provided for by this Part an amount to cover the medical expenses incurred by him or her in respect of relevant documentary medical evidence obtained for the purposes of the review and submitted to the Review Council.”
and
“196ZO(1) If an applicant has had to travel to obtain any relevant documentary medical evidence submitted to the Review Council, the applicant is, subject to this section, entitled to be paid in relation to that travel the travelling expenses that are prescribed.”
These sections do suggest that “relevant documentary medical evidence”, for the purposes of the SMRC, is not strictly confined to the documents formally before the RMA and formally transmitted by the RMA to the SMRC. Nevertheless they are of limited use for purposes of adopting the wide ranging concept of “available” information for which the Respondent contends.
By s196ZN(2) the quantum of the payment, for which s196ZN(1) provides, is limited to $425. Furthermore, by force of s196ZN(5) and s133 of the Act, “relevant documentary medical evidence” is defined in a very restrictive manner as follows:
“… certificates, reports or other documents from:
(a) a medical practitioner; or
(b) a hospital, or similar institution, in which the veteran or deceased veteran received medical treatment;
about a medical condition of the veteran or deceased veteran and reasonably used in support of the application.” (Emphasis added)
Mr Smith placed primary reliance on the general proposition that a review such as that conducted by the SMRC should take into account all relevant and up-to-date information.
The process of statutory construction may often, indeed perhaps usually, lead to a conclusion that an administrative decision-maker should make a decision on the basis of the most current material available to that decision maker (see eg Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 at 45.5). However that interpretation is not open when the statutory provision restricts the relevant information to that which was “available” to a different decision-maker at an earlier point of time.
In addition to the two textual indications to which the Appellant has made reference the following factors, in my opinion, support the more restrictive concept of “available” information:
(i) The use of the word “review”, both in the title of the Specialist Medical Review Council and in the function it is obliged to perform under s196W(2), indicates a reference to the process of decision-making conducted by the RMA. It does not suggest a new process of decision-making conducted at large.
(ii) There is no ambiguity as to the date at which information must be relevantly “available”. That date is the date on which the RMA made the relevant determination of an SOP. On any view, the Parliament has excluded from consideration by the second decision-maker information that came into existence after the date of the first decision.
In my opinion these factors, together with the express provisions of s196K and s196C(3), indicate that s196W(2) requires the SMRC to restrict its consideration to information that was in fact before the RMA.
Construction of s5AB(2)
The words that must be construed are: “meets the applicable criteria for assessing causation currently applied in the field of epidemiology”. His Honour held, in various formulations, that these words meant no more than that information was “capable of being assessed” against such criteria. He said:
“… the definition in s5AB(2)(b) … deals with information about how particular kinds of injury, disease or death may be caused. The information must be capable of having the criteria for assessing the potential for a factor to be causative applied to it. It is not whether the factor is causative that is the focus of the definition. It is the capability of application of the criteria to the information and whether the application of those criteria will permit assessment of how the condition may be caused by the factor.” [72]
and
“… it is the capability of the information of allowing the assessment of causation that is in question, not whether in fact a factor is causative.” [78]
and
“Where the aetiology of a disease, injury or death is uncertain, and there is information as to factors which are capable of assisting the determination of whether that kind of disease, injury or death can be related to war service, such information will be sound medical-scientific evidence if it meets the criteria in s5AB(2)(a) and (b) and insofar as that information is about the causative capacity of a factor, i.e. whether it is capable of causing that disease, injury or death, if it is not excluded by the current epidemiological criteria and is assessable by them.” [81]
The Appellant contended that the word “meets” means “satisfies”. The Respondent contended that the word “meets” means “touches” or “relates to”. The Respondent submitted that the test was only one of relevance, that is to say information will “meet the criteria” if an epidemiologist regards such information as relevant to the decision-making process of causation. A test of mere relevance is probably indistinguishable, in its practical operation, from the “capable of assessment” formulation of Greg James J.
The approach of the Appellant is not without its own difficulty because the word “satisfy” has more than one relevant meaning. One can “satisfy criteria” in the sense of attaining some minimum standard, as in “satisfied the examiners”. However one can also “satisfy criteria” in the sense that each of a number of matters is actually found to exist.
In its submissions the Appellant identified the purpose of s5AB(2) to be to identify the pool of information to which regard may be had for the respective operations of the Act to which the concept of “sound medical-scientific evidence” applies.
The Appellant contended that epidemiology is the form of science chosen by Parliament as decisive in the identification of how particular kinds of injury, disease or death may be caused. The science of epidemiology was chosen by Parliament as the filter of what is “sound medical-scientific evidence”. The administration of that filter was entrusted to experts in medicine and science.
It submitted that the information to which regard may be had for this purpose is information that establishes a causal relationship in accordance with the science of epidemiology. The Appellant distinguished judgments about causation in epidemiology from other forms of scientific “proof”.
The Appellant referred to passages in the judgment of Greg James J in which his Honour rejected a construction of s5AB(2)(b) that it was concerned with “actual causes” or “scientifically proved causes” or an “actual causal effect” (at [69], [72], [77] and [95]). The Appellant did not contend for such a construction.
In its written submissions, the Appellant said:
“When epidemiology concludes that there is a cause and effect relationship between (say) a diet high in animal fact and prostate cancer, then it might be said that such a diet has been ‘scientifically established to have that effect’ [Greg James J at [70]]. Because epidemiology uses a distinctive form of scientific method and is practised by highly qualified experts in medicine, public health and mathematics, it is a science. But the relationship has not been ‘scientifically established’ in the sense of absolute or positive proof: it remains a conclusion about the risk of prostate cancer in a population formed as a matter of opinion on the basis of evidence collected by a study of that population or some part of it, and is not a conclusion reached in the controlled conditions of a laboratory.”
The Appellant submitted that the relevant test is whether exposure to an agent will - not may - increase the incidence of a disease in the population generally. Unless that test is “met”, in accordance with the approach of epidemiology, then information about causation is, by the definition, excluded from the pool of information to which regard may be had whenever the Act refers to “sound medical-scientific evidence”.
The history of the Veterans’ Entitlements Act and its predecessor has been set out in a number of authorities. It is unnecessary to reiterate the history here. (See East v Repatriation Commission (1987) 16 FCR 517 at 518-527; Deledio v Repatriation Commission (1997) 47 ALD 261 at 262-286).
The provisions which fall to be construed in the present case were inserted by the Veterans’ Affairs (1994-95) Budget Measures Legislation Amendment Act 1994 (Cth) (“the 1994 Act”). The intention of the amendments was to impinge upon the practical operation of the pre-existing legislation as that operation had been determined by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. Those cases were concerned with s120(1) and s120(3) to which a “reasonable hypothesis” standard applied. The amendments also applied the new regime to s120(4), to which the “reasonable satisfaction” standard applied.
The amendments do not purport to alter the construction of the prior terminology or alter the relevant tests - “reasonable hypothesis” and “reasonable satisfaction” - for application to the circumstances of an individual case. Rather, by force of s120A, impinging upon s120(1) and s120A(3), and of s120B, impinging on s120(4), a precondition is introduced for the operation of the pre-existing subsections.
The effect of Bushell and Byrnes was to determine that a “reasonable hypothesis” could exist so long as it was not “contrary to proved scientific facts or to the known phenomenon of nature” or “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous” (Bushell at 414; Byrnes at 570). A hypothesis may still be reasonable even if an association between the injury or disease and the facts which constitute the relevant incidents of the service of the veteran is “not demonstrated or even if it is shown to be uncommon” or “a connection has not been proved” between the kind of injury and the relevant incidents of service” or “the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists” (Bushell at 414).
On this basis it was held:
“… the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.” (Bushell at 414-415, see also at 430).
Even a 20 to 1 chance could not be dismissed as unreasonable. (Byrnes at 572).
The practical effect of the 1994 amendments with respect to operational service was to transform a two-stage process identified by the High Court in Byrnes at 571 to a four-stage process identified by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 and adopted in McKenna v Repatriation Commission (1999) 86 FCR 144 at 150. (Note the comments in Repatriation Commission v Gosewinckel [1999] FCA 1273 at [26]).
The first stage is, as it has been since the “reasonable hypothesis” standard was introduced in 1985: does the material before the decision-maker - the Commission or the Administrative Appeals Tribunal - give rise to a reasonable hypothesis connecting the injury, disease or death with the service rendered. As the High Court put it “[p]roof of facts is not in issue at this point” (Byrnes at 571, see also Deledio at 97E).
After 1994, the next two stages are to determine whether an SOP is in force with respect to the injury, disease or death and if so whether “the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SOP” (Deledio at 97 F-G). Thereafter, the decision-maker must determine the facts to decide whether the case is disproved beyond reasonable doubt (Byrnes at 571, Deledio at 97-98).
The final stage is the consideration under s120(1) of whether the decision-maker is satisfied, beyond reasonable doubt, that a fact necessary to support the hypothesis is disproved or a fact inconsistent with the hypothesis is proved (Byrnes at 571, Deledio at 97-98).
The purpose of the new SOP system turning on an assessment of “sound medical-scientific evidence” was expressed in the Explanatory Memorandum for the 1994 Act, in part, as follows:
“This change is aimed at ensuring that medical opinions, supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion.
It will not mean that only mainstream medical opinion would be regarded as reasonable, but it would require any alternative opinions to have a sound medical or scientific basis.”
This explanation was reinforced in the Minister’s Second Reading Speech (Australia, House of Representatives 1994, Debates, vol HR195) when he said at 1808:
“I stress that the opinion of a single medical expert may still be sufficient to constitute a ‘reasonable hypothesis’, provided that such opinion has a sound medical-scientific basis as determined by the Authority.”
The Minister also referred, at 1809, to the continued role of a “reasonable hypothesis” test, including the rejection of one of the key recommendations of the advisory committee:
“These changes maintain a beneficial repatriation system, including a ‘reasonable hypothesis’ standard, as modified as I have already outlined, for deciding compensation claims for death or disease relating to eligible war service. There has not been a return to a civil standard of proof, as recommended by the Baume committee, which would have had the potential to reduce the success rate of claims, which currently stands at above 70 per cent, to the pre-1977 rate of approximately 30 per cent. The government acknowledges the special status of veterans. It is hoped that these changes will be effective in overcoming the maverick and fringe claims that have interfered with the integrity of an extremely generous repatriation system, without having to return to a civil standard of proof for the determination of claims.
The changes are intended to ensure that the credibility of the repatriation system is maintained and that medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion. It will not mean that only mainstream medical opinion would be regarded as reasonable, but it will require any alternative opinions to have a sound medical or scientific basis.”
The Explanatory Memorandum also said:
“In effect, it will be necessary, before an hypothesis can be found to be reasonable, for it to be based on sound evidence from the field of medical science: that is, an hypothesis to be accepted would need to be based on a degree of medical-scientific acceptability.
As an example, an hypothesis would not be able to be found reasonable if it were espoused by a medical practitioner whose views on the medical-scientific issues involved were speculative, fanciful, unsound or were undermined by the views of his or her peers.
On the other hand, full scientific proof will not be required for an hypothesis to be reasonable and more than a single hypothesis of causation in relation to a disease, injury or death can be reasonable.”
The 1994 amendments created both the RMA and the SMRC. The RMA consists of a chairperson, who must be a medical practitioner or medical scientist of at least 10 years experience (s196M), and four other persons, one of whom must have at least 5 years experience in epidemiology (s196L(3)).
The SMRC consists of such number of members as the Minister determines to be necessary for the proper exercise of its functions, (s196ZE(1)). The Minister is obliged, when making appointments, to have regard to branches of medical science expertise necessary for deciding matters referred for review and must ensure that the number of councillors having such expertise is sufficient for the proper exercise of the Council’s function (s196ZE(3)). The Minister must appoint from a list of nominees submitted by the colleges, or similar bodies, of medical practitioners or medical scientists (s196ZE(4)), provided that the person is a registered medical practitioner or medical scientist with at least 10 years experience (s196ZF).
The jurisdiction of the SMRC is triggered by a request for “review” of “the contents of a Statement of Principles” (s196Y). (I pass over the parallel statutory regime for review of a decision not to make an SOP). Upon such a request the Council is obliged “for that purpose” to conduct a review of “all the information that was available to the authority when it … determined, amended or last amended the Statement of Principles” (s196W).
The actual powers which the SMRC can exercise are set out in subsections 196W(4) and 196W(5), in a manner which intermingles the various types of decisions made by the RMA. Decisions by the RMA to make and not to make an SOP or to amend or not to amend an SOP are not linked with any clarity to the specific powers exercisable by the SMRC in the respective cases. No submissions were made to this Court which require the Court to disentangle these provisions, if they can be disentangled.
The case proceeded on the basis that it was open to the SMRC to suggest or require amendments to an SOP by either deletion (as the SMRC recommended) or by addition (as the Respondent sought). It is appropriate to determine the case on that basis.
Nevertheless it is pertinent to note that the operative terminology reflected in the name of the SMRC and its primary statutory function, is “review”. The focus is on the product of the RMA. The result of an SMRC review is not an operative decision made by the SMRC. The end result of a decision by the SMRC is, in certain defined circumstances, an amendment to, or promulgation of, an SOP by the RMA. (See ss196B(7)(c), (10), (11) and (12)).
As explained above, the focus of the SMRC’s attention is on “information available to the” RMA (ss196W(2), (4), (5) and (6)). There is a separate legislative regime for a review by the SMRC of a decision by the RMA not to conduct an investigation with respect to a particular kind of injury, disease or death. In the course of such a review of this latter kind the SMRC may have regard to new evidence. Those provisions are of no relevance to the present case.
The Appellant placed particular reliance on some observations of Heerey J in Deledio (47 ALD at 275), in a passage expressly approved by the Full Court (83 FCR at 96):
“The SOP function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent - so that the SOP can ‘uphold’ the hypothesis … the SOP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SOP is applicable, it is a statute-backed declaration of what is proved or known scientific fact”.
Although not accepting that epidemiological judgments of causation are “proved scientific facts”, counsel for the Appellant relied on this passage as supportive of the Appellant’s case that “meet the criteria” means “satisfy the criteria” in the sense of a judgment by epidemiologists that causation is established.
The passage in Bushell, which uses the word “proved”, (where second appearing on p414, to which I believe his Honour was referring) and the passage in Byrne, which uses the word “known”, both use the words in a negative sense. That is, a hypothesis is not reasonable if it is “contrary” to either “proved” or “known” “scientific facts”. (See Bushell at 414.9, Byrnes at 571.2; and see Heerey J’s formulation in the paragraph denoted (i) at 275.5).
When employed in this negative sense, the relevant “scientific fact” would not, virtually by definition, find its way into an SOP, which is required by s196B(2) and s196B(3) to state the factors which must be present before a reasonable hypothesis can be raised connecting a particular kind of injury, disease or death with service, or before the balance of probabilities test can be satisfied. The passage from Heerey J, approved by the Full Court, does suggest that the permissible content of an SOP is a scientific fact which has been positively “proved” or is positively “known”. It was in this way that the Appellant sought to rely on this passage, adapted in the case of causation to the nature of “proof” in the science of epidemiology.
I hesitate before qualifying the reasoning of the Federal Court with respect to a statute with which the judges of that court are familiar. However, the positive sense in which the Appellant seeks to use that passage is not supported by the passages in Bushell and Byrnes to which Heerey J referred.
It is one thing to say that an SOP may not contain a fact which is “proved” or “known” to be wrong. It is quite another thing to suggest that an SOP may only contain facts which are “proved” or “known” in the sense of established to the satisfaction of a particular body of medical scientists.
I do not understand Heerey J to have been addressing this issue. Although on one view his Honour’s comments do suggest a conclusion of the character for which the Appellant contends, it did not arise for decision in those proceedings and I do not regard this Court as bound to adopt his Honour’s characterisation of the contents of an SOP. In Ogden Industries Pty Ltd v Lucas [1970] AC 113 Lord Upjohn, delivering the judgment of the Privy Council, said at 127:
“… in a common law system of jurisprudence which depends largely upon judicial precedent and the earlier pronouncement of judges, the greatest possible care must be taken to relate the observation of a judge to their precise issues before him and to confine such observations, even though expressed in broad terms, to the general compass of the facts before him, unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression could only lead to the opposite result of uncertainty or even obscurity as regards the case in hand.
These general principles are particularly important when questions of construction of statutes are in issue.
It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.
No doubt a decision on particular words binds inferior courts on the construction of those words on similar facts but beyond that the observations of judges on the construction of statutes may be of the greatest help and guidance but are entitled to no more than respect and cannot absolve the court from its duty of exercising an independent judgment.”
It was common ground between the parties that the criteria currently applied in the field of epidemiology are those frequently referred to as the “Bradford Hill criteria”. These are derived from the paper by Sir Austin Bradford Hill, Professor Emeritus of Medical Statistics of the University of London in his Presidential Address to the Section of Occupational Medicine of the Royal Society of Medicine. (Bradford Hill “The Environment of Disease: Association or Causation?” (1965) 58 Proc of the Royal Soc of Med 295).
In each of the Reasons for Decision given by the SMRC, first for SOPs 95 and 96 and, secondly, for SOPs 245 and 246, the SMRC identified the Bradford Hill criteria which it was to apply to be as follows:
Strength of Association;
Dose Response Effect;
Consistency of Findings;
Time Relationship;
Biological Plausibility;
Specificity of Association; and
Coherence of Evidence.
No criticism was addressed to the identification of the criteria in this way by the SMRC.
100 The paper by Sir Austin Bradford Hill to which the Court was asked to have regard indicates the nature of these criteria at some length. In that paper Sir Austin outlined the issue he was addressing by reference to a circumstance in which an association is found to exist between some form of exposure and injury or disease. He posed the question in the following words (at 295):
“In what circumstances can we pass from this observed association to a verdict of causation? Upon what basis should we proceed to do so?
and
“Our observations reveal an association between two variables, perfectly clear-cut and beyond what we would care to attribute to the play of chance. What aspects of that association should we especially consider before deciding that the most likely interpretation of it is causation.”
101 There are nine criteria in Bradford Hill’s paper. Two are not always applicable and no criticism was directed at the SMRC for not referring to them. Sir Austin Bradford Hill’s conclusion at 299 was:
“Here then are nine different viewpoints from all of which we should study association before we cry causation. What I do not believe - and this has been suggested - is that we can usefully lay down some hard-and-fast rules of evidence that must be obeyed before we accept cause and effect. None of my nine viewpoints can bring indisputable evidence for or against the cause-and-effect hypothesis and none can be required as a sine qua non. What they can do, with greater or less strength, is to help us to make up our minds on the fundamental question - is there any other way of explaining the set of facts before us. Is there any other answer equally, or more likely than cause and effect.”
102 It is plain from this description that the identification of a causal relationship is a matter of judgment and in this respect differs from other scientific statements of causation. In a publication, Hennekens and Buring Epidemiology in Medicine 1987, to which the Court was referred without objection, the following description of the process occurs:
“Finally a judgment is made as to whether that statistical association represents a cause-effect relationship between exposure and disease. Such a judgment requires inferences far beyond the data from any single study and involves consideration of criteria that include the magnitude of the association, the consistency of findings from all other studies, and biological credibility.” (4)
and
“In epidemiologic research, causation must always remain a matter of belief or judgment based on all available evidence in accordance with the framework and criteria discussed in this chapter. In a field characterised by as much uncertainty as epidemiology, however, it is rare for the evidence on the presence of the cause-effect relationship to be as unequivocal as that for cigarette smoking and lung cancer. In chronic disease, there has never been as firm an epidemiological basis to judge a cause-effect relationship. Thus there must often come a point at which it becomes prudent to act on the premise that a causal relationship exists rather than await further evidence.” (50)
103 Epidemiology is the study of disease in human populations, sometimes referred to as general causation. It is not concerned with the causation of disease in an individual case, sometimes referred to as specific causation. (See generally Seltsam Pty Ltd v McGuinness [2000] NSWCCA 29 at [60], [78]-[79], [98]-[101]). Furthermore, the “criteria” are not scientific statements but uncomplicated statements of commonsense propositions. (Seltsam v McGuinness at [138]-[140]).
104 It is often the case that the most important aspect of a statutory definition is the word being defined. (See Eastleigh Borough Council v Betts [1983] 2 AC 613 at 628B; Delaney v Staples [1992] 1 AC 687 at 692A; Bennion Statutory Interpretation (3rd ed) pp434-435). Here it is a composite term: “sound medical-scientific evidence”. The most revealing word is the last: “evidence”. The legislation is not focussing on proof or on an ultimate decision, but on material appropriate to be taken into account in a decision-making process.
105 The second textual indication that s5AB(2)(b) is not concerned with proof is the description of the information with which the paragraph is concerned. It refers to information about how the injury, etc “may be caused”.
106 The relevant decision-making processes are those conducted by the RMA and the SMRC. They provide part of the context, internal to the legislative scheme, in which the words must be construed.
107 The Australian law of statutory interpretation requires a court to consider context in the first instance, not merely after “ambiguity” is identified. (See R v Wilson; Ex parte Kisch (1934) 52 CLR 234 at 244; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1980-1981) 147 CLR 297 at 304, 319-320; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315, 321; CIC Insurance Ltd v Bankstown Football Club Ltd (1996-1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at [69]).
108 As Sir Anthony Mason put it in K & S Lake City Freighters supra at 315 (in dissent, but not with respect to the law of statutory interpretation):
“Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.”
109 In the case of words in a definition section, the context entitled to particular weight is constituted by the section or sections in which the defined words appear. Consideration of these sections in the Act presently under consideration, in my opinion, confirms the conclusion suggested by the use of the word “evidence” itself: s5AB(2) is concerned with information appropriate to be taken into account by the RMA and the SMRC.
110 The first purpose for which the information that answers the description in s5AB(2) is to be used is the performance by the RMA of the functions conferred upon it by s196B. With respect to the two situations to which the different standards of proof apply, and to which I have referred as “operational service” and “eligible service”, s196B(2) and s196B(3), respectively, apply:
(2) “If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
… operational service …
………
the Authority must determine a Statement of Principles, …
(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
… eligible war service …
the Authority must determine a Statement of Principles …” (Emphasis added)
111 In each case the use of the formulation “can be related to” is a test of possibility. In the case of subsection (2) it is sufficient that there is evidence that “indicates” the possibility. There is some tension in the case of subsection (3) between a test of possibility and a “more probable than not standard”, a tension which does not exist in subsection (2). Nevertheless, in each case the pool of information to which reference can permissibly be made, is material to which regard is to be had for the purpose of establishing whether, in the opinion of an expert body, injury, disease or death “can be related” to certain forms of service, either simpliciter or on a “more probable than not” test.
112 In the case of s196B(2), it is of further significance that the identification of “evidence that indicates” the possibility of a relationship occurs for the purpose of the application of a statutory test expressed in terms of a “reasonable hypothesis”. Parliament maintained that test after the 1994 amendments. A requirement that information as to how a particular kind of injury, disease or death “may be caused” (s5AB(2)(b)), should establish a causal relationship, appears to exclude every hypothesis with respect to causation which would be regarded as “reasonable”, but not established. Although Parliament intended to restrict the operation of the reasonable hypothesis test as that term had been construed by the courts, it did not intend to deprive the test of practical operation. To a substantial extent, that appears to me to be the effect of the Appellant’s contentions.
113 The final purpose for which the information that answers the description in s5AB(2) is to be used is the performance by the SMRC of the functions conferred upon it by s196W. After carrying out a review, the SMRC is empowered to make certain declarations if it forms the view that:
(i) “… there is sound medical-scientific evidence on which the Authority could have relied to … amend … or to determine a Statement of Principles” (s196W(4)) or
(ii) “… that there is no sound medical-scientific evidence that justifies the making of … or an amendment of the Statement of Principles” (s196W(5)(a)) or
(iii) “… that the sound medical-scientific evidence available to the Authority is insufficient to justify the making of a … or an amendment of the Statement of Principles” (s196W(5)(b)) or
(iv) “… there appears to be a new body of sound medical-scientific evidence … that has not been previously considered by the Authority … and that new body of evidence together with the sound medical evidence available to the Authority could justify the making of a … or an amendment of the Statement of Principles” (s196W(7)).
114 The focus of attention of the SMRC, as I have shown above, is the decision-making by the RMA. Accordingly, the SMRC is concerned, as is the RMA, with the existence of evidence on the basis of which it can determine whether injury, disease or death can be related to the respective forms of service. In the case of operational service this is on a “reasonable hypothesis” test. In the case of eligible service, this is on a “more probable than not” test.
115 In view of the purposes to be served in the legislative scheme by the definition in s5AB(2), the Appellant’s construction should, in my opinion, be rejected. A requirement that epidemiological evidence must establish that a particular exposure will increase the incidence of a particular injury or disease or of death, is too high a standard for purposes of deciding whether such a consequence “can be related to” the exposure, at least in the case to which a “reasonable hypothesis” test applies. A requirement that causation be established in the sense contended for by the Appellant, would mean that the decision-maker could only find that a factor can be related if, in effect, it found that it was related. In my opinion, the Parliament did not intend such a result.
116 The words actually used - “meets the criteria” - are words of considerable generality and indeterminate reference. They involve what is often referred to in the case law as an “ambiguity”. The use of the word “ambiguity” in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful. (See Bowtell v Goldsborough Mort & Co Ltd (1905) 3 CLR 444 at 456-477; Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273 at 287-288; Cross on Statutory Interpretation (3rd ed 1995) pp83-84; and my Sir Ninian Stephen Lecture “Statutory Interpretation: Identifying the Linguistic Register” at pp4-6 to be published in the Newcastle Law Review, accessible at In cases such as the present, which involve reading down general words (see R v Young (1999) 46 NSWLR 681 at [23]-[25]), I would identify the difficulty for the interpreter as one of “inexplicitness” rather than one of “ambiguity”.
202 If a person claims that he suffers an injury due to operational service, s.120(1) of the Act applies, and that sub-section is interpreted in the light of s.120(3), which in effect provides that he is entitled to his pension if there is a “reasonable hypothesis” of connection between the claimed injury and the relevant operational service.
203 If, on the other hand, he claims that he suffers an injury due to eligible war service, s.120(4) provides that the claim is to be upheld if that claim is proved to the Commission’s “reasonable satisfaction”. This is a balance-of-probabilities test.
204 It is against this background that one must consider the function and operation of Statements of Principle. In the case of a claim for an injury due to operational service, an hypothesis “is reasonable only if there is in force” a Statement of Principle of relevance: that is provided by s.120A(3). In the case of a claim for an injury due to eligible war service, the Commission can be reasonably satisfied that the injury was war-caused, if, relevantly, there is in force a Statement of Principle: that is provided by s.120B(3).
205 Thus, statements of Principle control decision making under s.120 of the Act. The Act requires those responsible for making Statements of Principle - that is, initially, the Repatriation Medical Authority (RMA), and, on review, the Specialist Medical Review Council (SMRC)- to make these statements in accordance with “sound medical-scientific evidence” (see s.196B(2) and (3) in respect of operational service and eligible war service respectively). And it is in the definition of that term in s.5AB(2) of the Act that the core of the present controversy lies.
206 Section 5AB(2) is in the following terms:
Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:
(a) the information:
(i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subject to a peer review process; or
(ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and
(b) in the case of information about how that kind of injury, disease or death may be caused-meets the applicable criteria for assessing causation currently applied in the field of epidemiology.
207 The trial judge spent much time in his judgment pointing out that s.5AB(2)(b) is not concerned with setting out scientifically established causes; his Honour rejects this proposition “that a causal link be demonstrated such that the principles of epidemiology would regard that link as established before such a factor is included in a statement of Principle”. But to state that is to state a proposition which nobody disputes, certainly not the SMRC nor the RMA, nor the appellant in the case. Nor is that what epidemiology is all about. His Honour does, however, go on to make a statement which the appellant does challenge: all that s.5AB(2)(b) does require for inclusion in a Statement of Principle is that it must have a value which “is assessable under the criteria relevant to the potential or capacity of a factor”, in other words that information would only be excluded if it were “incapable of being assessed for the potential of a factor to be caused by the applicable criteria for the assessment of causation as currently applied in field of epidemiology”.
208 Learned Senior Counsel for the appellant Commission Mr Hanks QC has made a number of telling criticisms of the trial judge’s reasoning on this issue, all of which I think should be upheld. The first is that it disregards the plain, and (be it stressed) unambiguous language of the paragraph. The paragraph is not expressed in obscure language. It simply requires one to identify the relevant criteria and then ask whether the relevant information meets those criteria (emphasis added), nor whether it is assessable by reference to those criteria (emphasis added). Secondly, it replaces a simple statutory test with an obtuse and impossible one: what information is incapable of being assessed by reference to the relevant criteria? Yet, however tortured the workings of Parliaments mind, it simply cannot have intended all the information in the world to turn up in a Statement of Principle. Thirdly, it misstates the relationship between s.196B and s.5AB: s.5AB is not to be read restrictively so as to comply with a generous interpretation of s.196B; rather, since s.196B depends on the concept of “sound medical-scientific evidence”, and that phrase is meaningless unless one goes to s.5AB, it is s.5AB which governs the interpretation of s.196B, and not the other way round. A statutory definition always governs sections of the Act in which the defined term is used. That is the function of a definition.
209 There are two other points which should, I think, be made. One is that I have been unable to discover, either in legislation or in literature, any use of the expressions “meet the tests”, “meet the criteria” or other cognate expressions in the sense contended for by the trial judge “capable of being assessed by the tests (or criteria)”. The other is that to give the words their ordinary meaning fulfils the evident purpose of s.5AB: to achieve some measure of objectivity, to eliminate scientifically unsustainable claims, and to remove purely medical and scientific matters from laymen (including lawyers) and place them where they belong, in the hands of skilled doctor and scientists.
210 The orders I should make are as follows:
In the matter of CA No 40382/99 (SC. 30133 of 1996):
1. Declare that the review made on 22 December 1995 by the Specialist Medical Review Council of Statement of Principle No 95 is void.
2.Otherwise appeal allowed.
3.The orders made below be set aside.
4.The summons below be dismissed.
5.The first respondent to pay one-half of the appellants costs of the appeal and one-half of the appellants’ costs of the proceedings below.In the matter CA No 40380 of 1999 (SC 30139 of 1996):
1. Appeal allowed.
2.Orders below be set aside.
3. Dismiss summons below.
4. The first respondent pay the appellant’s costs of the appeal and of the proceedings below, but to have a certificate under the Suitors’ Fund Act.
211 HANDLEY JA: In these appeals I have had the benefit of reading the reasons for judgment of the Chief Justice and Meagher JA. I agree with the reasons of the Chief Justice, and with the orders he has proposed, but will add additional reasons for my conclusion that the Special Medical Review Council (the Council) asked itself the wrong question and exceeded its jurisdiction when dealing with Statement of Principles 95, the topic dealt with by the Chief Justice in paragraphs 118-163 of his reasons.
Smoking and prostate cancer
212 The Council reviewed the available studies and the reports including the 26 year follow-up study of US veterans which showed a positive association between smoking and prostate cancer although in the most recent analysis the relative risk was only 1.1 (AB75-6).
213 The Authority, and on review the Council, may make or direct a Statement of Principles (SOP) for the purposes of s 196B(2) in respect of operational service rendered by veterans etc, or for the purposes of s 196B(3) in respect of other service by veterans etc. In the former case an SOP must set out the factors which must as a minimum exist, and identify those which must be related to service “before it can be said that a reasonable hypothesis has been raised connecting” an injury, disease or death of a particular kind with the circumstances of that service. (emphasis supplied)
214 In the latter case an SOP must set out the factors which must exist and identify those which must be related to service “before it can be said that, on the balance of probabilities” an injury, disease or death of that kind is connected with the circumstances of that service. (emphasis supplied)
215 The Council were clearly entitled to find, on their assessment of the medical-scientific evidence referred to in their reasons, that it was not “more probable than not” that prostate cancer “can be related to” the types of service referred to in s 196B(3). In particular in my judgment the Council were entitled on their findings to conclude in terms of s 196W(5)(b) that the sound medical-scientific evidence was “insufficient to justify the making of a Statement of Principles” under s 196B(3). In fact they found that there was no such evidence (79) that justified an SOP under either s 196B(2) or (3).
216 The difficult issue arises in relation to their assessment of the medical-scientific evidence to determine, for the purposes of s 196B(2), whether such evidence “indicates that (prostate cancer) can be related to” operational service so that “a reasonable hypothesis” can be raised connecting that cancer with smoking.
217 The test of “can be related to” in s 196B(2) and the reasonable hypothesis could be limited, as a matter of construction, to those injuries or diseases which were known to have a number of established causes, eg lung cancer, which can be caused by smoking, or asbestosis etc. There being a number of known causes the Authority could find that each “can be related to” lung cancer so that a reasonable hypothesis is raised in a particular case of lung cancer, that its cause was eg exposure to asbestos in a ship’s engine room, or to smoking on operational service.
218 However that is not the correct construction of these provisions. A reasonable hypothesis for the purposes of s 196B(2) and other provisions of the Act can be raised where there is no known cause of the injury or disease. As the Chief Justice has shown, the decisions in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 established that a reasonable hypothesis could exist so long as it was not contrary to proved scientific facts or to the known phenomenon of nature, and was not obviously fanciful, impossible, incredible, not tenable, too remote or too tenuous. An hypothesis may be reasonable even if an association between the injury or disease and the service is not demonstrated, is uncommon, has not been proved, or has little support in the medical profession or among scientists.
219 The extracts from the Explanatory Memorandum and the Second Reading speech for the amending legislation quoted by the Chief Justice establish that the promoters of the legislation did not intend to restrict the factors allowed in SOPs for the purposes of s 196B(2) to those supported by “mainstream medical opinion”. Other factors would be allowed if they had “a sound medical or scientific basis”.
220 When assessing the medical-scientific evidence for a link between smoking and lung cancer against the Bradford Hill criteria, the Council said that the strength of association criterion had not been met because a weak association had been found in only a few studies, which could be accounted for by other factors (emphasis supplied). As I read their reasons the Council found that this criterion was not satisfied because an alternative hypothesis was available which could explain the positive findings. However the existence of one reasonable hypothesis to explain the data showing a positive association cannot establish that every other hypothesis is unreasonable.
221 The Council should have asked themselves whether the evidence justified a reasonable hypothesis supporting a causal link. By asking themselves whether there was an alternative hypothesis inconsistent with a causal link and treating the existence of such an hypothesis as determinative the Council asked themselves the wrong question and undertook a task other than that assigned to them by the Parliament.
222 The Council said that the dose response relationships were “inconsistent or weak” and the results could be accounted for by confounding. Once again the Council relied on the existence of an alternative hypothesis to find that there was no dose response effect “of any significance”. Again in my judgment the Council asked themselves the wrong question and undertook a task other than that assigned to them by the Parliament.
223 Since no association had been found in a substantial number of studies, and a positive association in only a few, the Council concluded that there was no sufficient consistency. I can discern no legal error in this conclusion. On the last of the criteria, the coherence of the evidence, the Council said:
“Overall, the evidence of an association between smoking and prostate cancer is weak and inconsistent, being largely restricted to one or two studies in North America that, in the investigators’ own opinions, are only tentatively findings. The inconsistency of the studies, together with the failure to satisfy other epidemiological criteria, means that there is not a coherent synthesis supporting the proposition”.
224 The fact that in the studies where a positive association was found the investigators’ conclusions were only tentative cannot exclude a reasonable hypothesis in accordance with those conclusions, and the Council again asked themselves the wrong question. While the finding based on the inconsistency of the studies is not legally flawed, the findings that other epidemiological criteria were not satisfied were legally flawed, as I have attempted to demonstrate. Their final conclusion that there was no “coherent synthesis supporting the proposition” was also legally flawed in the context of s 196B(2). The question the Council had to decide in that context was whether there was a coherent synthesis which excluded a reasonable hypothesis of a causal link.
225 The Council stated in their formal conclusion that there was no sound medical-scientific evidence that justifies the inclusion of cigarette smoking as a factor in an SOP concerning prostate cancer. In my judgment this finding is invalid and in excess of jurisdiction as a result of the errors of law I have previously identified, but only in relation to an SOP for the purposes of s 196B(2). But for those errors of law the Council may have found that another three of the criteria were satisfied, perhaps only just satisfied, and may have concluded that overall there was sufficient compliance with the criteria to make the hypothesis of a causal link between smoking and lung cancer a reasonable one.
226 On the other hand the Council’s finding supports its decision under s 196W(5)(a) that there was no sound medical-scientific evidence that an amendment justified the Statement of Principles for prostate cancer to include a statement that it is more probable than not that it can be related to smoking for the purposes of s 196B(3).
Herbicides and prostate cancer
227 The Council in their reasons reviewed the available studies and the reports on those studies including MacLennan & Smith (post 1993) “Veterans and Agent Orange - Health Effects of Herbicides used in Vietnam”, Blair et al (1992), and Morrison et al both on farmers and prostate cancer mortality. MacLennan & Smith concluded that the studies on farmers and those in related occupations and the study of mortality in Vietnam veterans did not provide sufficient evidence of statistical association “hence prostate cancer should be included in the inadequate/insufficient category”. Morrison concluded:
“Study findings of an association between herbicides and prostate cancer should be considered tentative because of the relatively low increases in risk and because an association has not been noted previously. However the cohort design obviates recall bias concerns. The positive association between herbicides and prostate cancer is not likely to have resulted from the types of biases to which a study of this nature is vulnerable”.
228 The Council added:
“… it can be seen that the evidence of an association between herbicides and prostate cancer is scanty indeed. The researchers acknowledge significant problems with accepting the results of their studies. They acknowledge that there have been very few studies conducted in relation to the issue, and that they are inconsistent. The Morrison study appears to be the only one of any substance that has shown a positive association, and then only for the highest level of exposure by farmers”.
229 When assessing the medical-scientific evidence, the Council considered the strength of association criterion and noted the tentative conclusion of Morrison and the existence of possible confounding factors and continued:
“In light of these difficulties and the weakness of the association, there cannot be said to be sufficient strength of association in relation to herbicides and prostate cancer to satisfy this criterion"”
230 The tentative nature of the findings, and the hypothesis that the positive results are due to confounding factors, cannot exclude as unreasonable the hypothesis of a causal link between exposure to herbicides and prostate cancer. When considering the dose response effect the Council said that the Morrison study had found a statistically significant dose response but it was only one study and cannot be given much weight and on its own did not meet this criterion. These reasons demonstrate that on this criterion the causal link failed the balance of probabilities test, but they do not establish that the hypothesis that there is such a link is unreasonable. Indeed that was the hypothesis of Morrison.
231 On the consistency of findings criterion, the Council said that the Morrison study was the first of sufficient size to be of any relevance, and that the previous studies had been few and smaller and as a result “there is insufficient information on which to find that this study is consistent with other studies dealing with the same suggested association”. However since there are no inconsistent studies of comparable size, a hypothesis based on the Morrison study cannot be said to be unreasonable when tested against this criterion.
232 There was no information before the Authority which indicated a mechanism by which prostate cancer might arise from herbicides, but there was no information which excluded any such mechanism either.
233 In dealing with the coherence of the evidence, the Council noted that Thune & Lund, which established a negative correlation between physical activity and prostate cancer, “might” add to the Blair study on farmers, “but it cannot be said to particularly add to the coherence of the suggested herbicide association”. They also referred to the alternative hypothesis of confounding which “makes it difficult to achieve a coherent synthesis supporting the proposition”. This reasoning demonstrates that a finding of a causal association has not been shown to be more probable than not, but it fails to establish that the hypothesis that such an association exists is unreasonable.
234 The Council’s ultimate conclusion on this question was expressed as follows:
“… there was insufficient information available to the … Authority for it to have included in the statements of principles a factor relating to herbicides. This view is supported by the conclusion of MacLennan & Smith”.
235 In my judgment this finding, and earlier findings previously referred to, are invalid and in excess of jurisdiction as a result of the errors of law I have previously identified, but only insofar as the Council was reviewing the decision of the Authority to include exposure to herbicides in SOP 95 dealing with prostate cancer under s 196W(5)(b) for the purposes of s 196B(2) (“reasonable hypothesis”). The Council’s findings and reasons amply support its decision under s 196W(5)(a) in respect of SOP 96 for the purposes of s 196B(3).
236 The orders proposed by the Chief Justice should be made.
**********
LAST UPDATED: 03/04/2000
29
10
4