Repatriation Commission v Gorton

Mr Gorton's claim 13 On 5 September 1996 Mr Gorton lodged a claim for a Disability Pension based (relevantly for present purposes) on hypertension due to excessive alcohol abuse which commenced during his service in the Navy. On 14 February 1997 the Commission, after applying the then current SoPs, including SoP No 83 of 1995 concerning hypertension, determined that Mr Gorton's hypertension was not war-caused. That decision was affirmed by the VRB on 13 April 1999.

AAT decision 14 On 18 June 1999 Mr Gorton lodged an application for review by the AAT. The application came on for hearing on 11 August 2000. It was common ground before the AAT that the applicable SoP on hypertension was No 83 of 1995. 15 Mr Gorton contended that his hypothesis satisfied cl 1(b) of No 83 of 1995, a provision which refers to "psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension". He conceded that he did not consume alcohol literally every day, but contended that the word "daily" in cl 1(b) should not be read literally. The AAT found that the word "daily" in cl 1(b) of No 83 of 1995 "should be taken to mean what it literally says". Although the material before the AAT pointed to a hypothesis connecting hypertension with service through the consumption of alcohol, the hypothesis was not upheld by the SoP because the consumption of alcohol was not "daily". It followed that a reasonable hypothesis was not raised and Mr Gorton's hypertension was not war-caused.

The primary judge's reasoning 16 At the hearing at first instance, Mr Gorton contended, relevantly for present purposes, that: · the AAT erred in law by engaging in premature fact finding; · notwithstanding the concession at the AAT hearing, the AAT was bound to consider two hypertension SoPs which succeeded No 83 of 1995 (Nos 64 of 1998 and 25 of 1999) and which were in force at the time of the AAT decision. Both the later SoPs had as a factor "… alcohol dependence … involving consumption of an average of at least 200 grammes per week of alcohol … at the time of the accurate determination of hypertension". This was a less onerous criterion than "daily consumption" in the sense adopted by the AAT; · the AAT erred in its interpretation of "daily" in SoP No 83 of 1995. 17 In relation to those contentions the primary judge held: · the AAT did not indulge in "illicit fact finding"; · the AAT was obliged to consider Mr Gorton's claim in the light of the current SoP (No 25 of 1999) unless the earlier SoP (No 83 of 1995) was more favourable; · it was neither necessary nor possible to give a precise meaning to the word "daily" in cl 1(b) of SoP No 83 of 1995, but "just about daily" would be sufficient for the hypothetical facts to fit the description of daily consumption in cl 1(b). 18 The reasoning of the primary judge on the issue of which SoP applied was as follows: "23. In my opinion, it is not necessary where the later statement of principles is more beneficial, to rely on the reasoning that led the Court in Keeley to lean towards applying the earlier (and more beneficial) Statement of Principles. In particular, the decision in Keeley was based, in part, on the view that, with beneficial legislation such as the Act, a construction of substantive provisions least likely to cause unfairness is to be preferred. The decision in Keeley is not authority for the principle that, when choosing among current or revoked statements, the revoked statement is the one that applies. The Act provides in s 196B(7) and (8) for the continual updating of Statements of Principle so that current statements embody sound medical-scientific evidence against which claims are assessed. In providing for the Board to review decisions of the Repatriation Commission on the merits taking into account not only material considered by the Commission but also additional evidence, the Act evinces an intention for the claim to be assessed in the light of all available evidence, including medico-legal evidence as embodied in the most recent Statement of Principles; ss 138 and 139. The AAT also has the duty to review decisions of the Board on the merits and conduct a complete rehearing of the claim. As Bowen CJ and Deane J commented in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 in relation to appeals to the AAT, 'The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.' The decision of the Court in Keeley can thus be seen as an exception to this position, dictated by the beneficial nature of the legislature to which the Court referred. The exception applies to preserve the benefit of an existing entitlement to be assessed in the context of a more favourable Statement of Principles. In my opinion, the AAT is obliged to consider the applicant's claim in the context of the Statement of Principles No 25 of 1999 unless Instrument 83 is more favourable. If the latter position is the case, then the applicant's claim must be considered in the context of Instrument 83."

The decision in Keeley 19 In their joint judgment Lee and Cooper JJ noted that the primary judge had referred to s 50 of the Acts Interpretation Act 1901 (Cth) which provides: "Where an Act confers power to make regulations, the repeal of any regulations which have been made under the Act shall not, unless the contrary intention appears in the Act or regulations effecting the repeal: (a) affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulations so repealed; or (b) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any regulations so repealed; or (c) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or regulations had not been passed or made." 20 The primary judge had held that s 50 had the effect that the revocation of an SoP could not affect a right obtained under the VE Act unless the Act provided a contrary intention. There were no express words to that effect and no contrary intention could be found by necessary implication. His Honour considered the relevant elements of the case were not distinguishable from those considered by the High Court in Esber v Commonwealth (1992) 174 CLR 430. Lee and Cooper JJ went on to hold (at [35]): "When the respondent lodged her claim for a pension under the Act, the respondent obtained a right to have that claim determined under the Act according to law. The right that accrued was a right to which s 50 applied." 21 Their Honours (at [38]) referred to the statement of the majority in Esber (Mason CJ, Deane, Toohey and Gaudron JJ at 440) that a right to have a decision reconsidered and determined by the AAT was not merely a power to take advantage of an enactment nor a mere matter of procedure; it was a substantive right that may be said to have accrued under the enactment. Lee and Cooper JJ rejected the argument of counsel for the Commission that determinations made by the RMA under s 196B were procedural in character and not substantive. Their Honours said at [40]: "An analysis of the provisions of ss 120A and 196B, however, shows that those provisions involved more than alterations of a procedural character in that they purport to define the scope of liability of the Commonwealth under the Act by, in effect, confining the claim a claimant may present." 22 On further analysis of s 120A(2) their Honours concluded at [46]: "Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent's claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood: (See Esber per Mason CJ, Deane, Toohey, Gaudron JJ at 440-441.) 23 The other member of the Court was Kiefel J. Her Honour considered (at [76]) that: "… the Statement of Principles operate generally as a bar or threshhold test. The bar or limitation operates on the right to a pension itself because the Statements of Principles determine the connexion between death and service as a minimum, in each case (see Maxwell v Murphy, 278. It cannot therefore be described as relating only to procedure (see Pedersen v Young (1964) 110 CLR 162,169. The introduction of the second SoP affected the right to pension under s 13, as the first had." 24 Her Honour also said (at [81]) under the heading "Whether Contrary Intention": "The essence of the appellant's argument was that one might derive from the provisions of the Act that it was intended to present current scientific and medical knowledge as the requirement of evidence of connexion. One may put to one side, for the present, the question whether this contextual setting for the second SoP was sufficient for an intention to be derived from it, as the repealing provision, as the Interpretation Act requires. His Honour the primary Judge considered that the underlying view, that a new law is considered to be an improvement on the old, could be applied to virtually all amending or repealing legislation. Further, the need for consistency of decisions of lay tribunals is equally met by applying the SoP existing at the time of the primary decision. I respectfully agree."

Should Keeley be reconsidered? 25 In Transurban City Link Limited v Allan (1999) 95 FCR 553 a Full Court of this Court consisting of five members (Black CJ, Hill, Sundberg, Marshall and Kenny JJ) had to consider whether an earlier Full Court decision be reconsidered. It is instructive that their Honours identified this issue [at 26] as "whether this Court should embark upon a reconsideration of the previous Full Court decision". That this is a preliminary, threshold issue needs to be kept firmly in mind. If the subsequent Full Court immediately sets sail into a detailed examination of the issues considered by the earlier Full Court, it may come to the conclusion that it disagrees with the earlier decision. It would therefore follow that the earlier decision, in the view of the later Full Court, is wrong. It is then but a short and almost irresistible step to conclude that the earlier decision should not be followed. How can it be right to follow a decision now established to be wrong? But such an approach can result in the frequently repeated rule of restraint being given little more than lip service. In Transurban the Full Court continues: "[27] It is not in doubt that a Full Court of this Court has power to decline to follow the previous decision of a differently constituted Full Court. The Court is not bound to perpetuate error if error there be. Nor is it in doubt that while the Court has that power, it is a power which should be exercised with great care. The doctrine of precedent, which is fundamental to the common law, brings with it the consequence that decisions of an intermediate court of appeal will be binding on single judges within the same court hierarchy. They will be relied upon by the broader community and the profession. Decisions of a Full Court of this Court are entitled to due respect and will not be lightly departed from. [28] In Nguyen v Nguyen (1990) 169 CLR 245 at 268-269, Dawson, Toohey and McHugh JJ, observed that the extent to which the appellate court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself, citing the judgment of Bowen CJ and Foster J in Chamberlain v The Queen (1983) 72 FLR 1 at 8-9, and noted also that the Full Court of the Federal Court will depart from a previous decision if convinced that it is wrong. Their Honours then said: 'Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability of the law …'. See also Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 [29] A differently constituted Full Court would, of course, decline to follow the decision of another Full Court if it concluded that the previous decision was clearly erroneous. It would be wrong to do this merely because the matter was one on which minds might differ: cf Magman International v Westpac (1991) 32 FCR 1 at 20 per Hill J. [30] What their Honours said in Nguyen must be read in the context of their previous remarks. The statement of principle in Chamberlain v The Queen, cited with evident approval by their Honours, was qualified by the word 'normally'. The use of expressions of this nature leaves the way open for an approach that is appropriate to the circumstances of a particular case: see La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204. Towards the conclusion of their joint judgment in Nguyen, Dawson, Toohey and McHugh JJ, noting that appeals to the High Court were now by special leave only, and that the appeal courts of the Supreme Courts of the States and of the Federal Court were, in many instances, courts of last resort for all practical purposes, observed (at 269-270): 'In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this Court, rigid adherence to precedent is likely on occasion to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty." 26 Subsequently another Full Court in Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 was faced with the same question. The majority (Branson and Finkelstein JJ) gave a valuable reminder that the doctrine of stare decisis rests on policy grounds beyond mere conservatism. Their Honours said (at [23]): "The doctrine of stare decisis takes its name from the Latin phrase 'stare decisis et non quieta movere' which translates as 'stand by the thing decided and do not disturb the calm'. It is a doctrine based on policy. The rationale for the doctrine can be grouped into four categories: certainty, equality, efficiency and the appearance of justice. Stare decisis promotes certainty because the law is then able to furnish a clear guide for the conduct of individuals. Citizens are able to arrange their affairs with confidence knowing that the law that will be applied to them in future will be the same as is currently applied. The doctrine achieves equality by treating like cases alike. Stare decisis promotes efficiency. Once a court has determined an issue, subsequent courts need not expend the time and resources to reconsider it. Finally, stare decisis promotes the appearance of justice by creating impartial rules of law not dependent upon the personal views or biases of a particular judge. It achieves this result by impersonal and reasoned judgments." 27 Relevantly for present purposes their Honours also discussed the issue in the context of a case, like the present one, where statutory construction is involved. Their Honours said (at [27-28]): "[27] The problem is very real when what is at issue is the construction of a statute. For one thing, statutory language is often ambiguous. Courts can struggle to determine the legislative intent. It is often impossible to discover any legislative intent. In many instances the generality of the statutory language is deliberate and allows the courts to develop a body of law to fill the gaps. This may lead to disagreement among judges about what the statute means. It would be sound policy that once that intent has been discerned by an appellate court then that should be the end of the matter. [28] The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand. In other areas of the law a precedent may be reconsidered if its underlying reasoning is outdated or is inconsistent with other legal developments. Perhaps, with some modification, in some instances these factors could also be applied to cases concerned with the construction of statutes. Accordingly, we venture to suggest it would be on a rare occasion that an intermediate appellate court (contrast the position of the High Court, as to which see Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1) will allow an issue concerning the construction of a statute, past and closed and especially a repealed statute, to be thrown open, producing as it clearly will, uncertainty, disruption to the conduct of affairs, a sense of grievance in those whom may consequently receive treatment less favourable than that received by others under the same statute and additional cost and expense. In this case, the number of individuals who will relevantly be affected by the construction of the statute may be assumed to be, by reason of the passage of time, relatively small." 28 In my opinion, there are compelling reasons for not embarking upon a reconsideration of Keeley. 29 First, Keeley was a considered decision of three judges of the Court continuing a decision at first instance. Senior Counsel for the Commission properly conceded that Keeley was not a decision per incuriam, such as occurs when some relevant statute or authority has been overlooked. 30 Secondly, special leave to appeal to the High Court was refused on 28 November 2000. 31 Thirdly, Keeley has been applied in at least one subsequent Full Court judgment: Repatriation Commission v Thompson (2001) 32 AAR 514. It is reasonable to infer also that in the large volume of administrative decision making under the VE Act Keeley has been applied in practice since the decision of the primary judge on 13 August 1999, that is to say some three years ago. 32 Fourthly, Keeley is an application in a particular legislative context of a familiar construction exercise which applies general principles that are not in doubt. It is a construction task often encountered by court. In Maxwell v Murphy (1957) 96 CLR 261 at 267 Dixon CJ, speaking of the distinction between laws which affect rights and those which merely affect procedures for enforcing those rights, said: The distinction is clear enough in principle and its foundation in justice is apparent. Difficulties have always attended its application." 33 The fact that there is usually (as there is in the present case) room for argument suggest that it will be that harder to argue that a particular result reached by one Full Court is "clearly wrong" or shows "patent error". 34 Fifthly, Keeley does not produce irrational or unintended consequences. There is nothing irrational or surprising about statutes or regulations expressly providing, or being construed by courts to provide, that pre-existing rights or obligations are not affected. In an administrative context, this produces consistency and predicability rather than the reverse. Assume for the moment that Mrs Keeley's hypothesis was "upheld by" the SoP in force at the time of her claim (an issue which was not necessary for the Full Court to decide). Assume that another claimant widow of a veteran with essentially the same factual history as Mr Keeley made a claim and a different delegate of the Commission (properly) found the hypothesis upheld by the SoP and not disproved beyond reasonable doubt and thus allowed the claim. It seems only fair that Mrs Keeley should not be any the worse off because she had to pursue her claim to the AAT to have it correctly determined. Like cases should be treated alike. 35 Sixthly, the reconsideration and overruling of Keeley would not necessarily provide any greater certainty. It would be open to litigants to contend that Gorton was wrong and that Keeley was right after all and request that a five member bench be convened. It is a long-standing and well known practice in this Court for the Chief Justice to be asked to convene a Full Court of five members where there are conflicting Full Court decisions or where it is sought to have an earlier Full Court decision reconsidered. As already noted, Transurban was such a case. Other recent examples are Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 and Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915. As far as I am aware, there was no request for a bench of five to be convened in the present case. Indeed the Commission's written submissions filed before the hearing do not address at all the criteria for reconsideration of earlier Full Court decisions. 36 There is moreover an unusual feature in the present case. The primary argument of the Commission was that s 120A does not oblige the AAT to apply the SoP in force at the time of review or to depart from that obligation where an earlier SoP might be thought to be "more favourable" (submissions par 18); Keeley was correct and means that the AAT had to apply the SoP in force at the time of claim. It was the Commission's alternative argument that Keeley was not correct, and that the 1994 amendments introducing the SoP system displaced any presumption which would protect a "so-called 'accrued right' of an applicant for review to have the review conducted by reference to the SoP in force at the time of the primary decision": see submissions par 38-43 which are headed "An alternative approach: applying the most recent SoP in all cases". In essence the Commission attacked what it regarded as her Honour's "more favourable SoP" approach: submissions pars 16.1 and 16.2. It argued that in all cases the AAT should apply the earlier SoP (Keeley right) or, alternatively, the later SoP (Keeley wrong). So far from contending that Keeley was "manifestly wrong" or "clearly erroneous" (see Queensland v Commonwealth (1977) 139 CLR 585 at 620 et seq), the primary case of the Commission is that this Court should reverse the primary judge on the basis that Keeley is correct. 37 Seventhly, unlike private litigants adversely affected by a Full Court decision on the construction of the Trade Practices Act or the Patents Act, the Commission is in a position to secure legislative amendments if it considers the decision in Keeley operates against the public interest. This could be done either by explicit provision in SoPs themselves or by amendment to VE Act. The former case would simply be doing expressly what s 50 of the AI Act contemplates may be done by necessary implication. The transcript of the special leave application hearing shows that this factor was regarded as significant by the members of the High Court (Gaudron and Hayne JJ). 38 Eighthly, that part of the Commission's case which attacks Keeley centres on the contention that SoPs are evidentiary in character because they reflect "current medico-scientific knowledge". They do not have "immutable authoritative status. When the evidence supporting it is undermined, an SoP ceases to represent proved or known scientific fact and must be repealed" (submissions par 40). 39 I accept that this proposition is arguable and one on which reasonable minds may differ. Nevertheless I do not agree with it. An SoP is sui generis as a form of legislative instrument. Counsel were not able to point to anything similar, either in Australia or overseas. But on first principles an SoP seems to be substantive, something which determines rights rather than a procedural measure relating to the enforcement of those rights. The SoP is a "statute backed declaration of what is proved or known scientific fact": Deledio, supra at 96. True it is that the particular subject matter with which SoPs are concerned is medico-scientific knowledge. But that does not change the legal nature and effect of the instrument. As Kiefel J notes in Keeley, most amending legislation is thought to be an improvement on what went before. It is however an ancient principle that amending legislation, however desirable, ought not to be taken to affect existing rights unless it clearly says so. 40 The SoP regime has the effect that the existence or otherwise of stipulated facts will have legal consequences for VE Act pension claimants. To take the present case as an example, Mr Gorton's material must "raise" (in the sense discussed in the authorities) a hypothesis which includes daily consumption of alcohol. If it does not, no pension. If it does, the Commission may disprove, beyond reasonable doubt, daily consumption of alcohol by Mr Gorton. In that event, no pension. 41 The VE Act provides for pensions and other entitlements as a matter of right, and not discretion, dependent on the claim fitting certain facts (see Keeley at [73]). Often these facts are matters which are not self-evident. For example "operational service", the concept of service in war or war-like operations, is defined in ss 6 to 6F. The definitions are complex but for the most part require the veteran to have been serving in stipulated geographical areas during stipulated periods of time. These are legislatively determined factual criteria which determine rights. Claimants cannot call evidence from military historians to show that hostilities in fact occurred at other places and times. Amendment to the VE Act to restrict the definition would not, unless provided otherwise, affect existing claims. The SoP regime is not relevantly different. The requirement of a reasonable hypothesis is something unique to the VE Act. As Deladio establishes, it is not the same as proof of facts. But there is nevertheless a prescribed relationship between a stipulated fact and a right, whether that fact has to be "raised by material" as part of a hypothesis or disproved beyond reasonable doubt.

Consistently with Keeley can a later SoP nevertheless apply? 42 I have framed the question in this way because in my view the problem does not involve any question of election on the part of a claimant. Rather the system operates in the following way. Assume an SoP in force at the time of the claim is revoked by another SoP which is in force at the time of the AAT decision. The starting point is that the AAT must consider the reasonableness of the hypothesis advanced by reference to the SoP which "is in force": s 120A(3); see s 43 AAT Act. If the current SoP "upholds" the claimant's hypothesis then the AAT moves, pursuant to s 120(1), to consider whether it has been disproved beyond reasonable doubt. 43 If, however, the current SoP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SoP. If that contention is accepted then again the hypothesis has to be disproved beyond reasonable doubt under s 120(1). 44 The claim for a pension under s 13 is in respect of death which was war-caused or incapacity from a war-caused injury or disease. The claim is not in respect of death or incapacity based on any particular SoP or on any particular characterisation of a medical condition or cause of death. Keeley and the present case concern SoPs which are sequential in point of time or, so to speak, in a vertical relationship to each other. However there may well be in respect of any particular claim, horizontally applicable SoPs. In respect of the one death or disease or injury a claimant is entitled to advance more than one hypothesis based on more than one SoP. As already discussed, SoPs operate as delegated legislation to determine conclusively in relation to a particular disease what factors can constitute a reasonable hypothesis. If at the time of claim a claimant could raise one hypothesis consistent with the factors in that SoP, the capacity to rely on that hypothesis is a right which a later revoking SoP does not affect because an intention to do so does not appear: AI Act s 50. 45 Thus I would reach the same result as the primary judge.

Daily consumption of alcohol 46 The primary judge addressed the issue in these terms [at 27]: "The AAT's reasons for its view are expressed in the extract quoted at [14] above ["the use of the word 'daily' in cl 1(b) should be taken to mean what it literally says"]. As mentioned above, I do not find those reasons helpful. The statement that the word means what it says assumes that it has only one meaning and no shades of meaning. This is rarely if ever the case and certainly not in this case. Prima facie the word 'daily' means 'every day', London County Council v South Metropolitan Gas Company [1903] 2 Ch 532 per Joyce J at 537-538. However, as Barry J commented in Foster v Howard [1949] VLR 311 at 311, it is an adjective 'the precise meaning of which is to be ascertained from the context in which it is used and particularly the substantive which it qualifies'. In my opinion, the precision which the term conveys will differ depending on whether it is used prescriptively or descriptively. A doctor's instructions that medicine is to be taken daily may easily be understood as meaning every day. However, we would not generally cavil at the description of a doctor's daily visits to a hospital if he did not generally go on Sundays. We would still regard it as accurate to describe an athlete as training daily even though it turned out that she missed a number of days a year. I do not accept that the phrase, "daily consumption of alcohol" in Instrument 83 could only apply to a veteran who drank every day without exception. Even if that meaning were to be accepted, there would still be the problem of the period over which the 'daily' consumption had to be proved. It is neither necessary nor possible to give here a precise meaning to the term. However, for the purposes of formulating a hypothesis to be tested against the Statement of Principles in Instrument 83, I am satisfied that the qualification, 'just about daily', is sufficient for the hypothetical facts to fit the description of daily consumption in clause 1(b) of Instrument 83. Whether the applicant's drinking fits that description is a question which did not need to be addressed in the context of Deledio step 3. For this reason, I find that the AAT was in error in its interpretation of Instrument 83. My finding of error on this point is sufficient to justify remitting the matter to the AAT for further consideration according to law." 47 In addition, reference may be made to the Oxford English Dictionary which defines "daily" in these terms: "Every day, day by day. Often in a looser sense: Constantly, always, habitually." One of the examples given of that latter usage is from Macaulay's History of England (1848): "He continued to offer his advice daily, and had the mortification to find it daily rejected." A reader would not take Macaulay as meaning literally every day, seven days a week, 52 weeks a year. 48 I think the construction adopted by the primary judge was correct. This is not a matter, as was put on behalf of the Commission, of varying the terms of the SoP. Rather the primary judge took a meaning of "daily" which is a recognised one and considered it appropriate in the context of this particular SoP.

Orders 49 The appeal should be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

EMMETT J: 50 I have read the proposed reasons of Heerey J and Allsop J in draft. I agree with the orders proposed by Heerey J for the reasons given by Allsop J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

On appeal from a single judge of the Federal Court of Australia

ALLSOP J 51 I have had the advantage of reading the draft reasons of Heerey J. It is unnecessary for me therefore to deal with anything other than essential matters. 52 The question thrown up for determination is which Statement of Principle (SoP) determined by the Repatriation Medical Authority (the Authority) under s 196B of the Veterans' Entitlement Act 1986 (the Act) governs the assessment by the Administrative Appeals Tribunal (the Tribunal) of the review of a decision by the Repatriation Commission (the Commission) under Part II of the Act, in particular under s 19 of the Act. 53 A Full Court of this Court in Repatriation Commission v Keeley (2000) 98 FCR 108 dismissed an appeal from a decision of Heerey J and found that a claimant had an accrued right to have his or her pension claim reviewed by the Tribunal by reference to the SoP in force at the time of the decision of the Commission. The reasons of Lee and Cooper JJ and of Kiefel J differed somewhat, but each decided that the SoPs, as disallowable instruments for the purposes of ss 46A and 50 of the Acts Interpretation Act 1901 (as to which, see s 196D of the Act), affected more than the mere procedure in the vindication of rights. 54 In this regard Lee and Cooper JJ said at para [40]: An analysis of the provisions of ss 120A and 196B, however, shows that those provisions involve more than alterations of a procedural character in that they purport to define the scope of liability of the Commonwealth under the Act by, in effect, confining the claim a claimant can present: see Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647 per Dixon J at 652. 55 Kiefel J at para [72] expressed an initial attraction to the characterisation of SoPs as "evidentiary", but heeding the warning in Maxwell v Murphy (1957) 96 CLR 261 at 267-268 as to how statutory provisions dealing with evidentiary matters operate, her Honour identified the true enquiry to be whether any right had accrued to Mrs Keeley before the repeal of the first SoP. Thereafter, in examining the Act her Honour characterised SoPs as going to more than mere procedure. Her Honour said at paras [76] - [78]: [76] In my view, the Statements of Principles operate generally as a bar or threshold test. The bar or limitation operates on the right to a pension itself because the Statements of Principles determine the connexion between death and service as a minimum, in each case (see Maxwell v Murphy, 278). It cannot therefore be described as relating only to procedure (see Pederson v Young (1964) 110 CLR 162, 169). The introduction of the second SoP affected the right to pension under s 13, as the first had. [77] From the time the first SoP came into effect, Mrs Keeley's right to a pension was defined specifically by the requirement that the circumstances of her husband's service involved his exposure in the course of his work to paints and/or lacquers before the clinical onset of multiple myeloma, and then more generally by the requirement that the condition be attributed to his service. Whilst she was required to prove or vindicate that right, it was one which was then held by her. The second SoP required more - that work as a painter had been undertaken for a minimum period or periods and that the condition onset within a certain time from cessation of exposure through that work. Any increase in the bar to the remedy could not in my view be regarded as procedural. It affected a substantive right (see Pedersen v Young, 169). The comparison is as between a provision limiting access to the courts for enforcement of a claim and one which destroys or impairs the basis upon which a remedy will be given (and see McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, 41). [78] The repeal of the first SoP affected the content of Mrs Keeley's right. It follows, in my view, that s 50 [of the Acts Interpretation Act] operates, subject to the further question whether any intention to the contrary is disclosed by the second SoPs as the repealing provision. 56 Heerey J has referred to the authorities governing and touching the question whether a Full Court of this Court should refuse to follow an earlier Full Court decision. What is or is not "clearly wrong" (Transurban City Link v Allan (1999) 95 FCR 553 at [29]) or when one is or is not "compelled to the conclusion that the earlier decision is wrong" (Chamberlain v The Queen (1983) 72 FLR 1, 8-9) are difficult questions. However, for my part, most helpful, if I may respectfully say so, is the statement in Transurban City Link, supra, at paragraph [29] that it would be wrong to decline to follow a decision of an earlier Full Court merely because the matter was one on which minds might (or, I interpolate, do) differ. 57 I say this because, for my own part, I differ from the views of their Honours in Keeley as to the characterisation of the role of the SoPs in the Act. I think it appropriate to express my views, for two purposes. The first is to explain that any difference of view which I have is of the character referred to by the Full Court in Transurban City Link, supra, at paragraph [29], and thus to express my reasons for following Keeley, notwithstanding that, in this respect, it does not accord with my own views. The second is to assist in explaining why, notwithstanding the application of Keeley, I am of the view that the Tribunal is bound to apply the SoP current at the time of the hearing before it. That is, while I recognise that Keeley stands for the proposition that a claimant is entitled to an accrued right to have his or her claim considered and reviewed by the Tribunal on the basis of the SoP current at the time of the Commission's decision despite the later revocation of that earlier SoP, Keeley does not stand for the proposition that the SoP in force at the date of the Tribunal hearing must not be applied. 58 My views about the role of SoPs stem from what I see as their nature, role and provenance. The Authority which promulgates them is comprised of experienced medical practitioners: s196M of the Act. There is a degree of tenure of office: ss196N and 196P of the Act. The role of the Authority is to promulgate SoPs on the basis of sound medical-scientific evidence and to identify, on that sound contemporary science, minimum factors relevant to the issue of the causal connection between injury, disease or death and service. Nothing in the SoPs changes the fundamental issue of causation set out in ss 9, 13 and 19 of the Act. What changes is the expression of the permitted hypothesis for the purposes of subs 120(3), by force of subs 120A(3). 59 The Authority, through the SoPs, deploys the most up to date medicine and science to identify or refine the proper scientific and medical frame of reference or universe of discourse for the reliable answering of the question whether the death, injury or disease was caused by service. The ultimate right is unchanged by that. A change in the SoP varies the focus of the factual and scientific debate about causation by changing the compulsory hypothesis under subs 120A(3) by reference to up to date medicine and science. The fact that obsolete medicine and science reflected in an out of date SoP created an hypothesis favourable to a particular claimant, and up to date science reflected in a current SoP now creates a less favourable hypothesis to a particular claimant is not, it seems to me, a lessening or affecting of an accrued right, but a recognition that the relevant causal connection is being answered on a scientifically up to date hypothesis and not on a scientifically obsolete hypothesis. It is an inadequate description to say that the SoPs are evidential and procedural. However, it seems to me that they do not affect accrued rights at all and are not intended to. To put it bluntly, it might be said that no-one has the right to have his or her claim assessed by the Tribunal erroneously by reference to the product of out of date science and medicine. 60 The nature, purpose and origins of SoPs and the terms of subs 120A(3), especially the phrase "is in force", signify to me a Parliamentary intention that only the current SoP is relevant when the Commission or the Tribunal (the latter by reason of a review under s 175 of the Act and s 43 of the Administrative Appeals Tribunal Act 1997 (Cth) (AAT Act)) is addressing the matter. 61 Having said that, I recognise that such a question of characterisation of the nature of the SoPs and their context in the Act is a matter about which minds may differ. The Full Court in Keeley expressed a different view. Heerey J is of the view that their Honours were correct. In these circumstances, I am of the opinion that, notwithstanding my own views, Keeley should be followed and applied. I am fortified in this approach by the existence of the other matters referred to by Heerey J which militate against departing from Keeley. 62 However, Keeley did not decide that a SoP current at the date of the Tribunal's review undertaken pursuant to s 175 of the Act and s 43 of the AAT Act was not to be applied if it had not been in force at the time of the Commission's decision. Subsection 120A(3) makes it clearly compulsory for the Commission to examine the current SoP. In exercising the review under s 43 of the AAT Act I see no reason why the direction under subs 120A(3) does not bind the Tribunal. The only additional factor which the Tribunal must consider, if it comes to a view that the application of the current SoP leads to a conclusion that the injury, disease or death was not service caused, is that the claimant also has an accrued right to have his or her position judged by reference to the SoP in force at the date of the Commission's decision by force of the decision in Keeley. 63 Under s175 of the Act and s 43 of the AAT Act the Tribunal is to review the relevant decision. The decision which is the subject of review is the determination under s19 of the Act of a claim under s 14 of the Act based on entitlements set out in s 13 of the Act. It is not a review of a decision about a SoP. It is a review of a decision about an entitlement to a pension based on a causal connection between death or incapacity and service. There is no reason why that ultimate causal question may not be influenced or affected by more than one SoP. The condition of the veteran may raise different medical problems and so different SoPs. There is no violence done to the Act by requiring the Tribunal, in its review under s 175 of the Act and s 43 of the AAT Act of the question of the entitlement and the causal question bound up in that, to examine the current SoP (perforce of subs 120A(3) and s 43) and the repealed SoP (perforce of Keeley). 64 I reject the submission of the Commission, based on the notion of the mutuality of right and obligation, that if the claimant obtains a vested right according to Keeley the Commission's position as to its liability is thereby frozen by reference to the corollary of the claimant's accrued right. This was said to be founded on the view that legislative changes are prima facie to be taken as universally neutral in not affecting either accrued rights or accrued liabilities: Drummond J in Repatriation Commission v Thompson [2001] FCA 341 [13] and see Victrawl Pty Limited v Telstra (1995) 183 CLR 595. The primary question is the intention of Parliament. In my opinion, even accepting the view expressed in Keeley that an accrued right arose to have the claim determined by reference to the SoP current at the date of the Commission's decision, the combination of (a) the nature and purpose of SoPs in seeking to apply up to date science in connection with the investigation of a causal connection which is unchanged in expression (see ss 9, 13, 19 and 120), (b) the terms of ss 120 and 120A, especially subss 120(3) and 120A(3) of the Act and (c) the role of the Tribunal under s 43 of the AAT Act, leads me to the conclusion that Parliament did intend to have the rights and liabilities of the parties assessed by the Tribunal by reference to the SoP current at the date of the Tribunal's review, notwithstanding any accrued rights based on an earlier SoP, which may also exist. 65 If the Tribunal, in reviewing a decision, comes to a conclusion in favour of the claimant by first applying the current SoP, the SoP current at the date of the Commission's decision (now repealed) may not need to be examined; its relevance having fallen away. However, if, by reference to the current SoP, the Tribunal is of the view that the claim should be refused, it should not do so without then assessing the rights of the parties under the accrued right recognised by Keeley: by reference to the repealed SoP. This is not a right of "election". It is a sequential approach mandated by a combination of the Act and the Full Court's decision in Keeley. 66 I see no basis either in Keeley or in the Act for any rights to arise or accrue by reference to SoPs which are promulgated after the Commission's decision and which are revoked before the Tribunal's review. Nothing in Keeley or the Act mandates that. 67 I agree with Heerey J about the interpretation of the word 'daily'. I would only add that I think her Honour was plainly correct to apply the available, looser meaning of the adverb 'daily'. 68 For the above reasons I agree with the orders of Heerey J. 69 In any reconsideration the Tribunal should approach the question of the entitlement to the pension under the Act by reference to the SoP then currently in force and, if it becomes relevant by a negative answer to the first enquiry, then by reference to the SoP in force at the time of the Commission's decision. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 29 August 2001 Counsel for the Applicant: Mr P Hanks QC with Ms R Henderson

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr M Smith with Mr M Vincent

Solicitor for the Respondent: Legal Aid Commission of NSW