· Did the death of the veteran "result" from that occurrence?
17 Although likely, it is not necessary that a hypothesis in respect of those questions involve "medical-scientific" opinion or information. For example, a veteran may have suffered impairment of mobility or of sight as a consequence of an occurrence that happened while the veteran rendered "operational service". Some years later, the direct cause of death of the veteran may be injuries received when the veteran, as a pedestrian, was struck by a motor vehicle. The death may have "resulted" from the "occurrence" which happened while the veteran was rendering "operational service" even though the death also "resulted" from a subsequent and more direct cause. (See: Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 at 585; Calman v Commissioner of Police [1999] HCA 60 at [38].) A reasonable hypothesis that the death of the veteran "resulted" from the occurrence that happened while the veteran rendered "operational service" may arise from the known facts without reliance upon "medical-scientific" opinion to construct the hypothesis. (See: Re Repatriation Commission and Carroll (1988) 14 ALD 581.)
18 In Carroll the veteran, who had rendered "operational service", suffered from the disease dipsomania. The disease was "war-caused" within the meaning of s 9 of the Act. Section 9 is the counterpart of s 8 in respect of "war-caused" injuries or diseases. It may be assumed that in that case the disease was "war-caused" in that while the veteran was rendering "operational service" an occurrence happened, namely the consumption of alcohol to excess resulting in the veteran contracting dipsomania, the symptoms of which are a morbid and insatiable craving for alcohol or persistent drunkenness. Almost forty years after the veteran had rendered "operational service", the death of the veteran occurred as the result of a stabbing wound received when the veteran approached a family member in an aggressive manner whilst under the influence of alcohol.
19 The Tribunal was satisfied that two reasonable hypotheses were raised. First, that the death of the veteran arose out of, or was attributable to, the eligible war service rendered by the veteran (s 8(1)(b)) and second, that the death of the veteran was accidental and would not have occurred but for the veteran being drunk as a consequence of a "war-caused" disease which had changed the veteran's environment after he had rendered eligible war service (s 8(1)(d)). Neither hypothesis relied upon "medical-scientific" opinion or information. Although unnecessary for the Tribunal to consider, the relevant facts could have suggested a reasonable hypothesis under s 8(1)(a), that the death of the veteran "resulted" from the occurrence that happened during the rendering of "operational service" which resulted in the veteran contracting dipsomania.
20 Section 8(1)(d) turns upon the answer to a hypothetical question namely, could it be said that an accident would not have occurred but for the veteran having rendered eligible war service or but for changes in the veteran's environment consequent upon the veteran having rendered eligible war service. The "changes in the veteran's environment" to which s 8(1)(d) refers, may be the consequence of an injury suffered or disease contracted in the course of the "operational service", for example, a risk that the veteran, at some time thereafter, may suffer an injury or contract a disease from which death may result. The answer to the question posed by s 8(1)(d) may be a hypothesis based on "medical-scientific" opinion or it may be a hypothesis based on the application of experience and an assessment of chance. As demonstrated in Carroll the "circumstances of the particular service" to which the death is to be "connected" pursuant to s 120(3) may be an occurrence in the course of the "operational service" from which an injury or disease resulted that does not involve a causal connection between the "operational service" and the death.
21 It may be seen, therefore, that Statements of Principles determined by the Authority under s 196B of the Act may have relevance to part only of the circumstances to which s 8 may apply. The Act has introduced Statements of Principles to restrict the field of "medical-scientific" discourse able to support a hypothesis that relies upon "medical-scientific" opinion. The Act does so by providing that a hypothesis is not reasonable for the purpose of s 120(3) unless a Statement of Principles "upholds" the hypothesis. Whatever meaning is to be attributed to the word "upholds", that provision will not apply to a hypothesis relevant to s 8 that is not addressed by a Statement of Principles, for example, a hypothesis not involving "medical-scientific" opinion. For example, it is unlikely that any Statement of Principles determined in respect of death resulting from the disease dipsomania, would include a death resulting from that disease as described by the facts in Carroll.
22 For the Commission to determine according to law a claim lodged under s 14 of the Act, the Commission must apply the terms of ss 8 and 120 of the Act. That is, the Commission must consider whether the material before it satisfied the requirements of s 8 and, under s 120, determine that the death of the veteran was "war-caused" unless the Commission was unable to form the opinion that the material before it raised a reasonable hypothesis "connecting" the death with the circumstances of the particular service rendered by the veteran, or the Commission is satisfied beyond reasonable doubt that s 8 did not apply.
23 Section 120(3) equates the formation of an opinion that a reasonable hypothesis "connecting" the death of a veteran "with the circumstances of the particular service" of the veteran is not raised on the material before the Commission, with the Commission being satisfied beyond reasonable doubt that there is "no sufficient ground" for determining that the death of the veteran was "war-caused". The subsection instructs the Commission that it must be so satisfied if it forms such an opinion. In contrast with the direction in s 120(3) that the Commission "shall be satisfied", s 120A(3) does not state that the Commission shall form an opinion upon which s 120(3) may operate.
24 As noted earlier, a reasonable hypothesis "connecting" the death of a veteran with the circumstances of "operational service" rendered by the veteran may be raised without that hypothesis relying upon "medical-scientific" opinion or information. In those circumstances the Commission would determine the claim under ss 120(1) and (3), and s 120A would not be relevant.
25 The appellant's claim to a pension was made on 7 December 1994 and, therefore, being made after 30 June 1994 s 120A applied to that claim. Notwithstanding uncertainty in the construction to be applied to s 120A(4), a Statement of Principles ("the Statement") was determined by the Repatriation Medical Authority ("the Authority") on 12 January 1995 and, therefore, when the Commission considered the appellant's claim on 31 May 1995, the terms of s 120A(3) governed the operation of s 120(3) if the former subsection was relevant to the material relied upon to support the claim.
26 The Statement determined by the Authority on 12 January 1995 read as follows:
"1. Being of the view that there is sound medical-scientific evidence that indicates that multiple myeloma and death from multiple myeloma can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting multiple myeloma or death from multiple myelomawith the circumstances of that service, are:
(a) being within 4 kilometres of the epicentre of the atomic explosions on the city of Hiroshima or Nagasaki within seven days of the explosion on that city; or
(b) being occupationally exposed to paints and/or lacquers before the clinical onset of multiple myeloma; or
(c) being exposed to herbicides in Vietnam before the clinical onset of multiple myeloma; or
(d) inability to obtain appropriate clinical management for multiple myeloma.
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to (d) must be related to any service rendered by a person.
3. The factor set out in paragraph 1(d) applies only where:
(a) the person's multiple myeloma was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b) the relationship suggested between the multiple myeloma and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.
4. For the purposes of this Statement of Principles:
'being exposed to herbicides in Vietnam' may be said to have occurred only if the person had:
(a) rendered more than 30 days service on land in Vietnam; or
(b) regularly eaten fish, fish products, crustaceans, shellfish, or meat from Vietnam; or
(c) regularly eaten food cooked with water from Vietnam discoloured by sediment, or regularly drunk water from Vietnam discoloured by sediment; or
(d) regularly inhaled dust in a defoliated area in Vietnam or regularly inhaled herbicide fog in Vietnam; or
(e) sprayed or decanted herbicides in Vietnam as an occupational requirement;
'ICD code' means a number assigned to a particular kind of injury or disease in the tenth edition of the International Classification of Diseases 9th Revision, effective date of 1 October 1993, copyrighted by the US Commission on Professional and Hospital Activities, and having the Library of Congress number 77-94472;
'multiple myeloma' means a malignant neoplasm of plasma cells arising in the bone marrow, and characterised by diffuse involvement of the skeletal system, hyperglogulinemia, Bence-Jones proteinuria, and anaemia, attracting ICD code 203.0"
27 The veteran was exposed to paints and lacquers while working on aircraft in the course of the "operational service" rendered with the Royal Australian Air Force in the South West Pacific between 1941 and 1946. The Statement, therefore, did not exclude as a reasonable hypothesis a hypothesis that relied reasonably upon known facts to connect the death of the veteran that resulted from multiple myeloma with occurrences that happened while "operational service" was rendered by the veteran.
28 It may be noted that the Statement did not address a hypothesis that a "war-caused" death arose under s 8(1)(a) of the Act by the onset of the disease multiple myeloma that occurred while a veteran rendered "operational service", the contraction of that disease not arising out of, or not being attributable to, circumstances of that service. The provisions of s 8(1)(e) which apply to "eligible service" which, as noted earlier includes service that is not "operational service", do not confine the meaning of s 8(1)(a). The intention of s 8(1)(a) is to ensure that a veteran who has rendered "operational service", and dependants of that veteran, receive greater entitlements under the Act. A determination by the Authority, even if that determination is taken to be equivalent to subordinate or delegated legislation, will not displace the operation of s 8(1)(a) of the Act. In the absence of any amendment to s 8, clear words would be required in s 196B to show an intention to alter the meaning of words used in s 8. (See: Repatriation Commission v Deledio (1998) 83 FCR 82 at 95 - 96.)
29 The Commission and the Board applied the provisions of the Statement in making their respective decisions.
30 On 26 September 1996 the Authority, under s 196B(2) of the Act, "revoked" the determination it had made on 12 January 1995 ("the revoked Statement") and determined another Statement of Principles ("the new Statement") which, in relevant respects, read as follows:
"…
Kind of injury, disease or death
2. (a) This Statement of Principles is about multiple myeloma and death from multiple myeloma.
(b) For the purposes of this Statement of Principles, 'multiple myeloma' means a disseminated plasma cell neoplasm of the osseous system, attracting ICD code 203.0, associated with widespread lesions of the skeletal system, hyperglobulinaemia, Bence-Jones proteinuria and normochromic, normocytic anaemia, and also includes the conditions known as myelomatosis and plasma cell myeloma.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that multiple myeloma and death from multiple myeloma can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting multiple myeloma or death from multiple myeloma with the circumstances of a person's relevant service are:
(a) being within 4 kilometres of the epicentre of the atomic explosions on the city of Hiroshima or Nagasaki within seven days of the explosions on those cities, before the clinical onset of multiple myeloma; or
(b) being occupationally required to work as a painter for an average of three or more days per week over any two year period, (or working as a painter for a period or periods of time totalling at least 312 days) before the clinical onset of multiple myeloma, and where that occupational exposure has ceased, the clinical onset of multiple myeloma has occurred within 20 years of cessation; or
(c) being exposed to herbicides in Vietnam before the clinical onset of multiple myeloma; or
(d) inability to obtain appropriate clinical management for multiple myeloma.
Factors that apply only to material contribution or aggravation
6. Paragraph 5(d) applies only to material contribution to, or aggravation of, multiple myeloma where the person's multiple myeloma was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
Other definitions
7. For the purposes of this Statement of Principles:
'being exposed to herbicides in Vietnam' may be said to have occurred only if the person had:
(a) rendered more than 30 days service on land in Vietnam; or
(b) regularly eaten fish, fish products, crustaceans, shellfish, or meat from Vietnam; or
(c) regularly eaten food cooked with water from Vietnam discoloured by sediment, or regularly drunk water from Vietnam discoloured by sediment; or
(d) regularly inhaled dust in a defoliated area in Vietnam or regularly inhaled herbicide fog in Vietnam; or
(e) sprayed or decanted herbicides in Vietnam as an occupational requirement;
'ICD code' means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
'relevant service' means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service.
Application
8. This Instrument applies to all matters to which section 120A of the Act applies.
…"
31 When the application to the Tribunal came on for hearing to have the decision of the Board reviewed, it was agreed that there was a material difference between the revoked Statement and the new Statement, and that the decision of the Tribunal may vary according to which of those Statements applied. In its reasons for decision the Tribunal recorded that the respondent conceded that she "would be unable to establish the factual matters required to be established" by the new Statement. The respondent submitted that the revoked Statement had to be applied to determine the application. The Commission contended that the revoked Statement had ceased to be of effect and the Tribunal had to apply the new Statement.
32 The Tribunal accepted the Commission's submission and affirmed the decision of the Board refusing the respondent's claim for a pension. The question of law on the "appeal" determined by his Honour was whether the Tribunal erred in failing to apply the revoked Statement.
33 His Honour held that at the time the new Statement was determined by the Authority, the respondent had a right that had accrued under the Act to have the decision of the Board reviewed and her application for a pension under the Act determined pursuant to s 120 according to the principles relevant to a reasonable hypothesis set out in the revoked Statement. His Honour held that the terms of s 50 of the Interpretation Act required such a conclusion. Section 50 of the Interpretation Act reads as follows:
"50. 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."
34 His Honour held that pursuant to the terms of s 50 the revocation of a Statement could not affect a right obtained under the Act unless the Act provided a contrary intention. His Honour was not persuaded that by necessary implication, there being no express words to that effect, a contrary intention could be found in s 120A. His Honour noted that the relevant elements of the case before him were not distinguishable from those considered in Esber v Commonwealth of Australia (1992) 174 CLR 430 and accordingly his Honour held that the Tribunal erred in law in conducting the review according to the terms of the new Statement.
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. (See: Continental Liqueurs Proprietary Limited v G F Heublein and Bro. Incorporated (1960) 103 CLR 422 at 426 - 427, (on appeal (1962) 109 CLR 153.)
36 If the material relevant to the claim satisfied the requirements of the Act, the Commonwealth was liable under s 13 to pay a pension to the respondent and the Commission was bound to determine the claim accordingly. The right to have the claim determined under, and pursuant to, the Act, therefore, was more than an expectation that a request for a remedy or benefit would be considered or a hope that a remedy or benefit may be provided if a discretion were exercised in her favour pursuant to a power provided under an enactment. (See: Director of Public Works v Ho Po Sang [1961] AC 901.) If an enactment provides that the exercise of a discretion is subject to review and re-determination under review procedures to be conducted according to law, even a mere expectation or hope may become a right to have a matter determined under the enactment upon initiation of a review proceeding pursuant to the enactment in respect of a decision made in the exercise of a discretion. (See: Australian Coal and Shale Employees' Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 175, 178, 185, 194; Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 at 372 - 373; Lee v Secretary, Department of Social Security (1996) 68 FCR 491.)
37 Although it was not the primary ground of statutory construction on which the decision in Esber turned, the High Court considered the operation of s 8 of the Interpretation Act (a provision in similar terms to s 50 adopting principles applied at common law in the construction of statutes) upon the facts of that case and discussed the meaning of the words "right…accrued under any Act…"
38 The majority in Esber (Mason CJ, Deane, Toohey, Gaudron JJ at 440) determined that a right to have a decision reconsidered and determined by the Tribunal 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 that enactment. It was implicit in the reasoning of their Honours that it was not necessary for such a right to accrue, that it be a right enforceable by reason of prior adjudication or determination.
39 On the hearing of the appeal, counsel for the Minister submitted that a determination made by the Authority under s 196B of the Act, and the provisions of s 196B, were procedural in character and not substantive. That is, they affected how rights recognised by the Act were to be determined but did not create new rights in replacement of others or alter or terminate such rights. (See: Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120; Robertson v City of Nunawading [1973] VR 819; Rodway v The Queen (1990) 169 CLR 515.) It was said that the right the respondent had under the Act to have the decision of the Board reviewed by the Tribunal remained and only the conduct of the review process was affected by s 196B and determinations made thereunder. It was submitted that the effect of those provisions was of an evidentiary character.
40 The question is whether a determination made by the Authority under s 196B "affects" any right that has accrued under the Act. It may be accepted that a provision which, for example, does no more than alter the provisions relating to evidence in a proceeding may not "affect" a right to have a matter determined to which the proceeding relates but that will always be a question of degree and be subject to no injustice resulting therefrom. (See: Maxwell v Murphy (1957) 96 CLR 261 per Dixon CJ at 267.) If the right being prosecuted, and the facts upon which determination of the right is to be made, remain unaffected, it may be said that the statutory provision is procedural and to be construed as being of retrospective effect. 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 may present. (See: Kraljevich v Lake View and Star Limited (1945) 70 CLR 647 per Dixon J at 652.)
41 Under s 120A(2), once the Authority has commenced the procedure for determining a Statement of Principles, the Commission must not determine any pending claim in respect of a death to which the Statement is to relate. That provision indicates that a determination under s 196B will have greater impact upon a right to have a pending claim determined than mere variation in the procedure to be followed in determining that claim.
42 Section 120A(3) shows that to be so. The subsection, in combination with s 196B, purports to limit the right to have a claim determined under the Act by restricting the material relevant to such a determination to material that is relevant to the contents of a Statement determined under s 196B. The provisions do more than clarify the meaning of terms used in s 120(3) and how they are to be applied. They purport to restrict the operation of s 120(3) to the terms of the Statement determined under s 196B and in doing so substantively reform the nature of the right that is to be determined under the Act by application of the provisions of s 120. The right that accrued to the respondent upon lodgment of a claim, to have the claim determined under the Act by the Commission, was "affected" accordingly.
43 That was so, notwithstanding that, as discussed earlier, a Statement determined under s 196B is limited and does not alter the meaning of "war-caused" injury, disease or death set out in ss 8 and 9 of the Act and that a hypothesis in respect of a death that is the subject of a Statement but does not rely on "medical-scientific" opinion or information is not affected by s 120A(3).
44 The terms of s 120A(2) show a clear intention by Parliament that such a Statement is to "affect" the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission. It is plain that by postponing a right to have a claim decided until a Statement has been determined, Parliament intended that the decision, and therefore the right to have a decision made, may be affected by a Statement determined under s 196B and that a pending claim is to be decided by application of the Statement when determined.
45 However, that circumstance does not apply after a claim has been determined and the right that has accrued under the Act is a right to have the determination reviewed. The Act is silent about the effect upon such an accrued right of the revocation of a Statement and determination of another Statement under s 196B(8)(c). It is significant that there is no provision equivalent to s 120A(2) where the Authority is carrying out an investigation under s 196B(7) preparatory to deciding whether to revoke a Statement and determine another Statement under s 196B(8).
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.)
47 The appeal must be dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Justice Lee and Justice Cooper.