YRXW and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2024] AATA 2681

YRXW and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2024] AATA 2681 (31 July 2024)

Division:VETERANS' APPEALS DIVISION

File Number:          2023/7854

Re:YRXW

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:31 July 2024

Place:Hobart

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

..............................[signed]..................................

Senior Member D. J. Morris

Catchwords

VETERANS’ ENTITLEMENTS – where the applicant served in the Royal Australian Navy – where the applicant has several medical conditions accepted as service-caused – where the applicant was assessed as having a combined impairment rating of 80 points – where the applicant received an additional payment for two eligible young persons under s 80 of the Military Rehabilitation and Compensation Act 2004 – where liability was accepted for a further service-caused condition – where the applicant was assessed as having 89 impairment points – where a delegate determined applicant had received the maximum compensation payable under s 80 – where the applicant sought review of that determination – where the Veterans’ Review Board affirmed the determination – where the applicant sought review by the Tribunal – construction of s 80 of the Act – beneficial nature of the Act – submissions about extrinsic material – explanatory memorandum wording – meaning of the word ‘whenever’ – legislative intention is clear – decision under review is affirmed

Legislation

Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Veterans’ Recognition (Putting Veterans and Their Families First) Act 2019 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth) (rep)
Guide to Determining Impairment and Compensation 2016 – Instrument 2016 No MRCC 37 – 15 December 2022, Registered 1 February 2023
Military Rehabilitation and Compensation Act 2004 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Pfeiffer v Stevens (2001) 209 CLR 57
Re Health and Re Compensation (Commonwealth Government Employees) Act 1971 (1981) 61 FLR 13
Robinson v Greene 14 R.I. 181 (R.I. 1883)
SZTAL v Minster for Immigration and Border Protection [2017] HCA 34

Secondary Materials

Parliament of the Commonwealth of Australia – Explanatory Memorandum – Military Rehabilitation and Compensation Act 2003 (circulated by the authority of the Hon. Danna Vale, MP, Minister for Veterans’ Affairs)

REASONS FOR DECISION

Senior Member D. J. Morris

31 July 2024

1. At the request of the Applicant, not objected to by the Respondent, the Tribunal made an order under s 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) that the name of the Applicant not be published. He will be referred to by the anonym ‘YRXW.’ The reason for the order is that the reasons disclose certain private medical information.

2. The factual background that precedes this matter being brought to the Tribunal for review is of common ground between the parties.

3. YRXW is aged 40. He served in the Royal Australian Navy (RAN) from 2002 to 2022, when he was medically discharged. YRXW has nine medical conditions which have been accepted as service-caused under the Military Rehabilitation and Compensation Act 2004 (‘the Act’).

4. In March 2020, the Applicant submitted a liability claim for a condition which was later accepted by the Veterans’ Review Board (‘the Board’) as service-related reflux oesophagitis, by a decision of the Board on 12 January 2021.

5. On 6 August 2021, the Applicant was assessed as having a combined impairment rating of 80 points for the reflux oesophagitis and seven other medical conditions which had earlier been accepted as service-caused.

6. YRXW has two daughters, who he confirmed to the Tribunal are now aged 12 and 9. On 12 August 2021, a delegate of the Commission (the Respondent party in this application) determined that YRXW was entitled to receive an additional payment for each dependant eligible young person, pursuant to s 80 of the Act. On 12 August 2021, a payment was paid to the Applicant, under s 80, for his two dependent daughters, in the amount of $186,947.74.

7. On 19 July 2022, the Commission accepted liability for another medical condition, major depressive disorder, with effect from November 2018.

8. On 2 February 2023, the Applicant was assessed as having a combined impairment rating of 89 points, incorporating the nine medical conditions which had been accepted as service-caused. At the same time, a delegate of the Commission determined that YRXW had already received the maximum compensation payable, pursuant to s 80 of the Act on 12 August 2021.

9. YRXW requested a review of the 2 February 2023 determination, by the Board. On 20 July 2023, the Board affirmed the determination. The Board was satisfied that s 80 of the Act provides for one payment in respect of each person who is a dependant and an eligible young person, on the date on which the impaired person’s combined impairment rating is first determined to be at least 80 impairment points. The Board found that as the Commission had granted payments in respect of YRXW’s two daughters on 12 August 2021, he was not entitled to further payments under s 80.

10. On 18 October 2023, the Applicant lodged an application for review of the Board’s decision by the Tribunal.

    HEARING

11. A hearing was held by telephone on 22 July 2024, as is permitted under s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’).

12. The Applicant made submissions on his own behalf. Ms Lindsay Cooper of The Australian Government Solicitor represented the Respondent. No oral evidence was heard. The Tribunal took into account the following documents which had been lodged by the parties:

    (a)Applicant’s Statement of Issues – Exhibit A1;

    (b)Applicant’s Additional Submissions – Exhibit A2;

    (c)Documents submitted under s 37 of the AAT Act (TD) – Exhibit R1;

    (d)Supplementary documents submitted under s 38AA of the AAT Act – Exhibit R2;

    (e)Respondent’s Statement of Facts, Issues and Contentions (SFIC) – Exhibit R3

    APPLICANT’S ORAL SUBMISSIONS

13. YRXW said his claim relates to the determination dated 2 February 2023. He submitted that the Act is designed to be applied beneficially in respect of veterans, and that the object of the legislation is the one that should be adopted by a decision-maker, citing s 15AA of the Acts Interpretation Act 1901 (‘the AIA’).

14. The Applicant noted that the purpose of the Act is the treatment, rehabilitation of, and compensation for, members or former members of the Australian Defence Force. He submitted that a beneficial interpretation is to be preferred to each other interpretation. The Applicant said that the Tribunal should adopt a ‘reasonable standard of proof’ in how it approaches the task of interpreting s 80.

15. YRXW noted that liability had been accepted for his service-caused medical conditions, the level of impairment had been accepted, and the level was at least 80 points, and determined to be 89 points.

16. He noted that the Board in its decision stated that the payments to eligible young persons under s 80 are to be made “the first time” a person reaches 80 impairment points, and submitted that this wording is not in the Act. YRXW said that the Minister’s second reading speech for the Bill which became the Act, and the Explanatory Memorandum for the Safety, Rehabilitation and Compensation Bill 2003 (‘EM’), tabled in Parliament at the time, support his argument. He submitted that the Respondent in its SFIC ignored his submissions about the EM in relation to s 80 of the Act and submitted that, in explaining the clause in the Bill, the EM referred to the eligible young person payment being payable “whenever”, which he submitted, based on dictionary definitions of that word, means ‘every time’.

17. He submitted that as he was allocated 89 impairment points on 3 February 2023, compensation is payable under s 80, because it is payable ‘whenever a person meets 80 points’, and that the simple wording of the Act supports his claim.

18. YRXW said, if the interpretation of the word “whenever” is ‘every time,’ then his latest claim comes into effect when he is allocated 89 points. He further submitted that if the interpretation that the Board adopted of it meaning ‘the first time,’ the Respondent has to argue that s 437 of the Act does not mean ‘any’.

    RESPONDENT’S ORAL SUBMISSIONS

19. Ms Cooper submitted that the factual matters are not in dispute. She submitted that the task of the Tribunal in interpreting s 80 is one of legal construction, not adopting a particular standard of proof.

20. Ms Cooper submitted that the starting point is the text of s 80 and, thence, the extrinsic material and the broader purpose and functions and operation of the Act.

21. In respect of s 437 of the Act, the Respondent submitted that this section is not relevant to the Tribunal’s task as it relates to a miscellaneous section of the Act. Ms Cooper submitted that there is a similar clause in the old Compensation (Commonwealth Government Employees) act 1971, which preceded the Safety, Rehabilitation and Compensation Act 1988, known colloquially as the ‘1971 Act’, and drew the Tribunal’s attention to the decision of Northrop J in Re Heath and Re Compensation (Commonwealth Government Employees) Act 1971 [1981] 61 FLR 13.

22. Ms Cooper urged the Tribunal to put s 437 of the Act to one side, because it does not assist in interpreting s 80. The Respondent agreed that if the Tribunal finds in favour of the interpretation urged by the Applicant, compensation would be payable again. However, she submitted that compensation under this section is not enlivened a second time.

23. Ms Cooper submitted that a payment (or, where there is more than one eligible young person, payments) under s 80 is a distinct additional payment that sits apart. If more points over 80 points triggered a further payment, this would change the character of this part of the Act, which is centred on a veteran having certain dependants at a particular point in time.

24. The Respondent said it was accepted that YRXW had an increase in his permanent impairment rating from 80 points to 89 points with the acceptance of his major depressive disorder condition, but that he has been compensated for the maximum amount.

25. Ms Cooper said to allow the Applicant’s interpretation would be to allow double compensation. She submitted that YRXW’s submissions endeavour to use the EM to replace the text of s 80 and that the EM does not provide assistance because the words of it cannot be taken and used to replace words in the Act.

26. Ms Cooper said that it has been accepted that YRXW’s depressive disorder condition existed at the time he was allocated 80 impairment points. She submitted to the Tribunal that, had he put all his service-caused conditions in for assessment at once, the Applicant’s own argument could not succeed, because he would have been allocated 89 points at once. Hypothetically, the Respondent submitted, a claimant could choose when to lodge claims and thereby get multiple compensation payments.

27. Ms Cooper said the Respondent does not cavil with the Applicant’s submissions about the purpose of the Act, and that the legal intention is that maximum compensation amounts should be payable for permanent impairment. She submitted that s 80 is not compensation for a degree of impairment, because a veteran might have 89 points but no dependent child.

    APPLICANT’S SUBMISSIONS IN REPLY

28. YRXW said he did not rely on s 437 of the Act to support his case. He said he cites it as evidence to support his claim about ‘any’ amount of compensation. The Applicant submitted that when s 80 of the Act is examined, it refers to additional amounts of compensation, not double compensation. He submitted that there is nothing in s 80 about it being applicable on the first occasion a person reaches 80 points.

29. YRXW submitted that the Tribunal should accept that his initial entitlement for a s 80 payment was when he first reached 80 points, and that his contention was that the entitlement was again met at a separate date when his major depressive disorder condition was accepted (and he was thence allocated 89 points). He submitted that a person cannot reach 80 points without putting in a claim, but that a person is not precluded from lodging a claim after they had been allocated 80 points.

30. YRXW said that the EM is ‘the sole document’ for interpreting s 80 and that the use in the EM of the word “whenever” has not been argued in the Respondent’s written submissions. He said that he accepted that maximum impairment has been reached but that he was allocated 89 points on 3 February 2023 which was ‘a time’ in respect of the application of s 80 of the Act.

31. He submitted that his service-caused conditions cost him his job, and has affected his relationship and his children, which is the basis on which compensation is payable. He submitted that the interpretation that benefits the veteran and achieves the Act’s purpose should be followed.

    RESPONDENT’S FURTHER REPLY

32. Ms Cooper said the trigger for the application of s 80 of the Act is 80 points and the person having dependent children, and that 80 points is the minimum bar. She said once the Commission had determined that a person had reached 80 points, and the other parts of s 80 were relevant, the liability to make a payment was made, and that the EM cannot be used to supplant what s 80 of the Act says.

    CONSIDERATION

33. As I say above, YRXW’s entitlement to service-caused compensation for permanent impairment because of his time in the Royal Australian Navy is not in issue. What the Tribunal is being asked to decide is whether the Board has correctly interpreted the application of s 80 of the Act, that the payments are payable ‘the first time’ a veteran reaches 80 points, or whether the Applicant is right, and that s 80 payments may be payable on another occasion if a veteran has lodged a further claim relating to a service-caused condition which is accepted, and his or her rating increases from 80 points to a higher rating.

34. The Respondent’s SFIC cited the High Court decision relating to the principles of statutory construction in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, where the plurality (Kiefel CJ, Nettle and Gordon JJ) said, at [14]:

    The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is hard to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is normally understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory… context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

35. The Respondent submitted that the Act is beneficial legislation and should be construed accordingly and that, if there is ambiguity that cannot be reconciled by standard means of construction, a beneficial construction which promotes the purpose of the Act is to be preferred. Ms Cooper particularly drew the Tribunal’s attention to the Australian Veterans’ Recognition (Putting Veterans and Their Families First) Act 2019, in this regard.

    The legislative scheme

36. The Act provides, in Chapter 4, for compensation for members and former members of the Australian Defence Force. Section 319 provides that a person may make a claim for compensation.

37. Part 2 of Chapter 4 of the Act provides (s 68) that the Commonwealth (i.e. the Commission) is liable to pay compensation to a person if liability has been accepted for one or more service injuries or diseases, and the Commission is satisfied that the person has suffered an impairment, that the impairment is likely to continue indefinitely, that the person’s compensable condition has stabilised, and the person has made a claim under s 319.

38. Section 69 provides that compensation is only payable under s 68 if an impairment constitutes at least 10 impairment points (with three stipulated exceptions at s 68(1) which allows compensation in those cases when a person has at least 5 impairment points).

39. Section 70 provides for compensation in relation to aggravations in specified circumstances.

40. Section 74 of the Act sets out what is the maximum weekly amount of compensation payable to a person. The maximum weekly amount is provided within the Guide toDetermining Impairment and Compensation2016 (‘Guide’), which is a legislative instrument published under s 67 of the Act. The Guide relevantly provides that medical impairment is expressed in impairment points, where zero corresponds to no impairment or negligible impairment from accepted conditions and 100 points corresponds to death. The Guide goes on to state (page 223):

    Chapter 23

    Calculating Permanent Impairment Compensation

    Section 67 of the Military Rehabilitation and Compensation Act 2004 provides that this Guide can specify how the Military Rehabilitation and Compensation Commission is to determine the compensation payable to a person under Part 2 of that Act.

    Different factors apply for any combination of impairment (no rounding up or down) and lifestyle effect (where rounding to nearest integer is allowed). Once a rating of 80 impairment points is achieved no lifestyle needs to be calculated as this rating pays the maximum weekly payment under the Act. The maximum payment is payable at 80 points for all types of service.

    (Emphasis added)

41. YRXW conceded in his submissions to the Tribunal that he has received the maximum amount payable as he met 80 impairment points on 6 August 2021. (The maximum amount of compensation payable is set out under ss 74 and 71 of the Act.)

42. Section 80 of the Act states:

    Additional amounts payable if maximum compensation paid

    (1)This section applies to a person (the impaired person) who has been paid, or is entitled to be paid, compensation under this Part. If the Commission has determined that the degree of impairment suffered by the person as a result of one or more service injuries or diseases constitutes at least 80 impairment points.

    (2)The Commonwealth is liable to pay the impaired person $60,000 for each person who is both a dependant of the impaired person and an eligible young person at the later of:

    (a)the date determined by the Commission to be the date on which the impairment suffered by the impaired person constitutes at least 80 impairment points; or

    (b)either:

    (i)   if the person has a single service injury or disease – the date on which a claim was made under s 319 for acceptance of liability for the injury or disease; or

    (ii)  otherwise – the date on which the most recent claim was made under section 319 for acceptance of liability for one of the service injuries or disease concerned.

    Note: The amount of $60,000 is indexed under section 404.

    (3)The amount specified in subsection (2) is also payable in respect of a child of the impaired person:

    (a)who was born alive on or after the later of those times but who was conceived before that time; or

    (b)who was adopted on or after the later of those times but in respect of whom adoption proceedings were begun before that time.

43. Therefore, to be paid additional amounts under s 80, the veteran being compensated, or who is entitled to be compensated, must have a determination from the Commission allocating 80 impairment points for one or more service injuries or diseases. YRXW met this when his reflux oesophagitis condition was accepted by the Board, and he was granted a combined impairment rating of 80 points (TD, p 50). The entitlement commenced on 6 August 2021 and is ongoing (TD, p 52).

1. As a consequence, on 12 August 2021 a review officer of the Department of Veterans’ Affairs (‘Department’) wrote to the Applicant (TD, p 55). The review officer referred to the determination of 6 August 2021 and noted that under s 80 of the Act a person who has 80 impairment points is entitled to an additional payment for each dependant who is an eligible young person, known as the Eligible Young Person Payment.

2. The review officer was satisfied, based on information the Applicant had previously provided, that YRXW was entitled to a payment in relation to two named children, with an effective date of 9 March 2020 and that the indexed amount payable in relation to each child was $93,473.87.

3. The review officer advised that his decision was reviewable if an application for review was made within 12 months.

4. On 19 July 2022, another review officer of the Department, in response to YRXW’s claim dated 31 August 2021, accepted a claim for major depressive disorder with effect from 9 November 2018. She advised that this decision was reviewable in the next 12 months.

5. On 2 February 2023, YRXW having left the RAN, was advised that his claim for Permanent Impairment compensation received on 25 July 2022 had been assessed and accepted. The Department officer relevantly advised (TD, p 62):

   The compensation you have already received fully compensates you for your current level of impairment. No additional compensation is payable.

   …

   Maximum Compensation

   For a person to receive maximum compensation they require a minimum 80 impairment points. I have noted that a previous determination assessed you at 80 impairment points and you were paid maximum compensation. Therefore no additional compensation is payable.

   Please note that should you claim additional conditions, or your existing conditions deteriorate, no further MRCA permanent impairment compensation is payable.

   Additional Compensation for Severe Impairment

   Under Section 80 of the MRCA, a veteran assessed at 80 or more impairment points may be entitled to a further lump sum amount for each eligible dependant who is also dependent. Section 80 states this is determined on the date the Commission determines the impairment suffered constitutes at least 80 impairment points.

   …

   I note in your previous permanent impairment determination dated 6 August 2021 you were assessed at 80 impairment points. A Section 80 determination for [name redacted] and [name redacted] was made on 12 August 2021 and payments made to you accordingly.

   (Emphasis added.)

6. On 2 February 2023, a Combined Impairment Report advised that YRXW’s combined impairment rating from that date is 89 points (TD, p 67).

7. YRXW objected to the wording in the officer’s letter of ‘a further lump sum for each eligible dependant who is also dependent.’ I see no reason for this to be objected to. While it is a precis of the provisions of s 80 as they apply to someone like YRXW with two young dependants, it is not inaccurate. It also echoes the wording of the Minister in the second reading speech, which the Board in their reviewable decision referred to, where she said, in relation to members who are entitled to the maximum permanent impairment compensation,

   In addition they will receive a lump sum payment for each dependent child.

8. But I do not need the reassurance of the wording of the second reading speech to be satisfied that the interpretation of s 80 is that the floor, or threshold, which triggers an entitlement to an Eligible Young Person Payment is attainment of 80 points. YRXW met that threshold, the Respondent knew he had two minor daughters which rendered him eligible, and a payment was made for each of them.

9. The Applicant’s submissions about the word ‘payments’ being in the plural lending support to his argument cannot be accepted. That is just the grammar relevant to a case where an eligible veteran might have more than one dependent child.

10. In Pfeiffer v Stevens (2001) 209 CLR 57 the High Court (Gleeson, CJ, McHugh, Gummow, Kirby and Hayne JJ) said, per Gleeson CJ and Hayne J at [56]:

    An intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself. It was so held in Blue Metal Industries Ltd v Dilley, a case involving the takeover provisions of the Companies Act 1961-1964 (NSW). The issue in Dilley was whether a section dealing with the transfer of shares in “a company” to “another company” attracted the presumption in the Interpretation Act 1899 (NSW) that a reference to the singular includes the plural. The Judicial Committee of the Privy Council held that the Companies Act showed an intention to apply to a transfer to only one company. Consequently, the Interpretation Act was inapplicable. The Privy Council said:

    “Word in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.”

    In support of that proposition, the Privy Council referred to Sin Poh Amalgamated (HK) Ltd v Attorney-General of Hong Kong, where the Board held that interpretation Acts are:

    “intended to avoid multiplicity of verbiage and to make the plural cover the singular case except in such cases as one finds in the context of the legislation reason to suppose that the legislature, if offered such amendment to the bill, would have rejected it.”

11. The reference to payments in the plural in s 80 properly refers to the fact that there might be, in a particular case, more than one eligible young person, as is clear from the wording of s 80(2) where the liability of the Commonwealth is to pay $60,000 for each person who is both a dependant of the impaired person and an eligible young person. The plural use of the word in the heading does not support the contention of YRXW that the Parliament intended there to be successive payments, which is the interpretation he is urging. My satisfaction about that is bolstered by the remarks in Pfeiffer that the section in its setting in the Act must be considered, and the substance and tenor of the Act as a whole.

12. YRXW rightly submits, and the Respondent endorsed, that the purpose and object of the Act is to provide a regime of support for ADF members and former members who have service-caused conditions. But within that tenor, the Tribunal must also consider the architecture set out in relation to assessment of impairment of a veteran.

13. There is no suggestion at all that YRXW arranged to lodge his claims for different conditions to contrive a situation where he reached the threshold of 80 impairment points and then was allocated more impairment points later on, but Ms Cooper in her oral submissions at the Tribunal hearing made the logical point that if it were to be accepted that s 80 allows payments each time a veteran was assessed as having a service-caused condition which entitled him or her to further impairment points (having met the threshold), it could lead to an outcome where several Eligible Young Person Payments were paid. That interpretation cannot be accepted because, as the Privy Council said, quoted in Pfeiffer above, the Parliament would not have intended that result in the interpretation of s 80. 

14. Section 80 payments are to be made to each eligible young person of a veteran when that veteran has crossed the threshold of 80 impairment points, regardless as to whether the veteran has crossed that threshold iteratively by the acceptance of a number of conditions as service-caused (as is the case with YRXW), or whether the impairment assessed under the Guide in regard to a single service injury or disease immediately constitutes 80 or more points. That is clear from s 80(2)(b)(i) and (ii).

15. I am amply satisfied that the Parliament’s intention in including section 80 in the Act was to acknowledge additional pressures on, and needs of, a veteran who has become permanently incapacitated and who has young children. I cannot say how the quantum of the original lump sum amount of $62,000 for each child was arrived at, but the Parliament also decided it should be indexed, so it is reasonable to glean that it is in the nature of eligible compensation for household and other costs. But there is nothing in s 80 that supports a conclusion that more than one payment is made in relation to an eligible child after (a) the veteran has reached the threshold of 80 points and (b) a payment has been made.

16. In fact, s 80(3) of the Act emphasises that ‘the amount’ is payable in respect of a child who was living or in utero, or in the process of being adopted at the date the Commission determined the person had been assessed as having at least 80 impairment points, either by an accumulation of accepted conditions or a single condition.

17. Section 80(1) sets out that the person must have ‘at least’ 80 impairment points. That is, 80 points or more. The Commonwealth’s liability in s 80(2) is to pay $60,000 for each person who is both a dependant and an eligible young person at the date the Commission determined the person’s impairments constituted at least 80 impairment points. There is no room in the plain language of the section which would support the Applicant’s submissions that payments under this section are made more than once. The threshold having been met, and the child or children being a dependant, the payments are liable to be made.

18. The Tribunal is satisfied to interpret the clauses of s 80 as set out above. Because of this, it is not necessary for the Tribunal to revert to the EM. Recourse to extrinsic material, such as the EM or the Minister’s second reading speech or Hansard is just that – it is a recourse which the Courts have held is available to decision-makers and the Courts themselves to interpret legislation where the legislative provision might be unclear, or may not knit with another part of an Act.

19. It is made clear in s 15AB of the AIA that extrinsic material may be used to confirm the meaning of a provision taking into account its context in the Act and the purpose or object underlying the Act, or to determine the meaning of a provision when it is ambiguous or obscure, or the ordinary meaning, taking into account the context of the Act and the Act’s purpose or underlying object, leads to a result that is manifestly absurd or unreasonable. But I make the point that an EM or second reading speech cannot be used to replace wording in a statute which is otherwise clear, and in particular cannot be used to import into a statute an effect that would be inconsistent with the overall object of the statute in question. That is why s 15AA is included in the AIA.

20. I do not think that the provisions in s 80 of the Act are ambiguous or obscure, or that their plain meaning, when read in the context of the purpose of the Act, would lead to a manifestly absurd or unreasonable result. The purpose of s 80 is because the Parliament understood (as the Applicant rightly said in his oral submissions) that service-caused conditions, when a veteran who is adjudged to be permanently incapacitated has young dependent children, have a particular affect not only on the veteran him or herself, but on their child or children.

21. However, as YRXW centres his submissions on the EM, which he submits supported his interpretation of s 80, I will address that here.

22. The EM for clause 80 of the Bill (which became the Act) states:

    Clause 80 – Additional amounts payable if maximum compensation paid

    This clause provides that whenever a person’s impairment from service injuries or diseases constitutes at least 80 points, additional compensation of $61,800 is payable to any dependants who are eligible young persons on the later of the date the Commission determined the impairment was at least 80 points and that date on which claim was made for the condition which led to that impairment.

    The payment can also be made for a son or daughter conceived before the date of the claim and born live after that date and in situations where adoption proceedings were commenced before that date and were concluded after that date.

23. YRXW submits that ‘whenever’ in the EM should be interpreted by the Tribunal to mean “each time.” I do not accept that submission. The words ‘claim’ in the EM link to when the Respondent made a determination that the veteran had impairment of at least 80 points. That is the threshold for an additional payment or payments to eligible young persons under s 80. In addition, the EM in the second paragraph refers to ‘the payment’ (echoing s 80(3)) for an eligible son or daughter of a veteran.

24. The word ‘whenever’ in the EM’s text means ‘as soon as,’ not “each time.” Relevant to this point is the decision of the Supreme Court of Rhode Island in Robinson v Greene 14 R.I. 181 (R.I. 1883) where trustees of an estate had asked the Court to advise in relation to a clause in a will where a testator had said “whenever the youngest child of any daughter” reaches the age of 21, monies could be distributed. The youngest child of one of the testator’s daughters had reached that age, and the trustees wanted an order from the Court to distribute funds. The Court found that there was ambiguity and that the will clause meant that the youngest child of all of the daughters had to have reached 21 years of age before distribution could occur. In so deciding, the Court stated:

    The word “whenever” is often used as equivalent to “as soon as.” It is contended here the word was so used…The word “whenever,” however, though often used as equivalent to “as soon as,” is also often used whether the time intended by it is, and will be, until its arrival, or for some uncertain period at least, indeterminate.”

25. In either of these judicial interpretations of the word ‘whenever,’ the EM does not help YRXW’s argument. I am satisfied that the EM meant, in other words, ‘as soon as’ the veteran reached the threshold of 80 points and had an eligible dependent child, the additional payment was payable. I accept that it would have been better if the EM had used the word ‘when,’ instead of ‘whenever,’ or some other formulation. But I do not think it is unclear.

26. This is the correct interpretation of s 80, because there are two mandatory criteria which must be met before a payment can be made for a dependant young person under this section. The first criterion is that the veteran must have a dependant young person who is living, or who was in utero or in the process of being adopted. The second criterion is that the veteran must have had impairments of ‘at least’ 80 points.

27. YRXW met both of those criteria on 12 August 2021, and the Commission correctly made payments to each of his two dependants of the amount, as indexed at the time. The Applicant does not dispute that. If the Applicant’s interpretation were to succeed, s 80 would have to say either that an additional amount is payable each time these two preconditions are met, or perhaps that some additional payment is payable if a veteran has impairment of at least 80 points and then has a further impairment accepted as service-caused. But the section does not say either of those things, nor does any other provision in the Act.

28. The Tribunal makes one observation about the Board’s decision. YRXW is correct to say that the words ‘the first time’ do not appear in s 80. It might have been more accurate if the Board had said ‘as soon as,’ because 80 impairment points is the activator of the additional payments. But this infelicity does not undermine my view that the Board was correct in its interpretation that s 80 payments are payable on a single occasion to any dependant who is an eligible young person.

29. The Tribunal will affirm the decision of the Board dated 20 July 2023. The Tribunal notes and appreciates the articulate and comprehensive submissions made by both parties and the cordial way in which they were presented at the hearing. The Tribunal also acknowledges with thanks the service of the Applicant in the Royal Australian Navy.

    DECISION

30. Pursuant to s 43(1)(a) of the AAT Act, the Tribunal affirms the decision of the Veterans’ Review Board dated 20 July 2023.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................................[sgn].....................................

Associate

Dated: 31 July 2024

Date of hearing:	22 July 2024
Applicant:	In person
Advocate for the Respondent:	Ms Lindsay Cooper
Solicitors for the Respondent:	The Australian Government Solicitor