Consideration
22 In Gorton, the Full Court (Heerey, Emmett and Allsop JJ) addressed the issue as to which Statement of Principles should be applied by the Tribunal where there had been a change in the applicable Statement of Principles between the time of the Commission's decision and the time of the Tribunal's decision. The Statement of Principles in force at the time of the Tribunal's decision was more favourable to the claimant than that in force at the time of the claim. The Full Court determined that the Tribunal should first approach the question of entitlement to a pension under the Act by reference to the Statement of Principles in force at the time of its decision. If it determined by reference to that Statement of Principles that there was no entitlement to a pension, only then should it consider whether, by virtue of the Statement of Principles in force at the time of the Commission's decision there was an "accrued right" which was preserved under that earlier Statement of Principles. In that case, the Commission had determined that the claimant was entitled to a pension under the Act having regard only to the earlier Statement of Principles. The decision had been affirmed by the Board. The later Statement of Principles imposed less onerous criteria upon whether the hypothesis referred to in s 120(3) was upheld. The rationale for the Full Court's decision was primarily that s 120A(3) and s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) directed the Tribunal to consider the reasonableness of the hypothesis by reference to the Statement of Principles which "is in force". Heerey J expressed the proposition in the following terms:
"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. 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). … If at the time of claim a claimant could raise one hypothesis consistent with the factors in [that earlier] 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." (at 331-332).
23 Allsop J, with whom Emmett J agreed, referred to the nature and purpose of the Statement of Principles as seeking to apply up to date science in connection with the investigation of a causal connection and by reference to the terms of s 120 and 120A, especially ss 120(3) and 120A(3), and to the role of the Tribunal under s 43 of the AAT Act, and reached the same conclusion. His Honour said at 336:
"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."
24 The earlier decision of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108 [2000] FCA 532 (Keeley) involved the converse facts to those in Gorton. The Statement of Principles in force at the time of the Tribunal decision was less favourable to the claimant than that in force at the time of the claim, or at the time of the decision of the Commission to reject the claim. Keeley decided 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 Statement of Principles current at the time of the Commission's decision, despite the later revocation of that earlier Statement of Principles.
25 As explained in Gorton, it is only necessary to have regard to any such accrued right if the Tribunal, applying the Statement of Principles current at the date of its review, is of the view that the claim should be refused. The consideration of the Full Court in Keeley focused upon whether the making of the claim, or the determination of the claim by the Commission, gave rise to any accrued right which could not be removed, without the clear intention of the legislature, by the subsequent amendment or substitution of a new Statement of Principles: see s 50 of the Acts Interpretation Act 1901 (Cth). Lee and Cooper JJ at 121 expressed the proposition as follows:
"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."
And at 123:
"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.
…
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."
26 Kiefel J reached the same result.
27 It follows from the above consideration that, in my judgment, the Tribunal erred in this matter in determining that the appropriate Statement of Principles first to be addressed was the 1995 SoP as amended by the 1996 SoP. In accordance with Gorton and Keeley, it should first have addressed the 1999 SoP. It did not do so. If, having addressed the 1999 SoP, it did not find that the circumstances of Mr Thomas fitted into the template of the 1999 SoP, it then should have considered whether Mr Thomas had an accrued right by reason of the application, or the decision of the Commission, arising from the application of the 1995 SoP. It did not take that step.
28 It is the Commission's contention, if I accede to that proposition, that the matter should be remitted to the Tribunal for further hearing or re-hearing according to law. I propose to do so. I note, however, that the 1995 SoP could not on its face, at least as the matter was presented to the Tribunal, have enabled Mr Thomas' circumstances to fit into the template of the 1995 SoP. The two factors which, under the 1995 SoP, must exist to fit the template did not include any factor of the nature now presented to the Tribunal, that is any dietary change. The Commission considered Mr Thomas' claim by reference to the 1995 SoP as it was required to do, because it was the then current Statement of Principles. It concluded that the evidence did not raise a reasonable hypothesis connecting the condition with operational service. The Commission therefore was unable to accept the condition as war caused.
29 The Board looked at the 1995 SoP as amended by the 1996 SoP. It was entitled to do so as s 139 of the Act provides that it may exercise all of the powers and discretions conferred by the Act on the Commission in like manner as they are required by the Act to be exercised by the Commission, including the requirement in s 120A(3) that the decision be made in accordance with an SoP which "is in force": cp 43 AAT Act and Gorton at [42]. Its decision was given on 7 August 1997. However, the case presented to the Tribunal based upon dietary change was not presented to the Board. It said in relation to cl 1(b) of the 1995 SoP as amended by the 1996 SoP:
"There is no evidence before the board that any circumstances of the veteran's service are able to satisfy the requirements of the other factors listed [including that factor]."
30 In Keeley, both the Commission's decision and the Board's decision were made before the change in the Statement of Principles. In Gorton, similarly, the Board's decision was made before the change in the Statement of Principles (there was an intervening Statement of Principles which does not appear to have required attention). In this matter, at the time of the application and of the Commission's decision the 1995 SoP was in force. The condition suffered by Mr Thomas did not fit its template. At the time of the Board's decision, the 1995 SoP as amended by the 1996 SoP was in force. It provided a template for the condition suffered by Mr Thomas, but as noted there was apparently no focus upon whether the condition fitted the template. Then, by the time of the Tribunal's decision, the 1999 SoP was in force. Neither Keeley nor Gorton therefore had to address the question whether a person in Mr Thomas' position had an accrued right to have the claim determined by reference to the Statement of Principles in force at the time of the Board's decision, as well as an accrued right to have the claim determined by reference to the Statement of Principles in force at the time of the Commission's decision (recognised in Keeley). As the claim is to be reconsidered by the Tribunal, it is appropriate that I make some observations on that issue. I am conscious that the issue was not fully argued before me, although I have had the benefit of written submissions from the parties.
31 It may be that the Tribunal will not need to resolve that issue. If it accepts the evidence of Dr English referred to in [16] and [17], the template of the 1995 SoP as amended by the 1996 SoP would not be satisfied because the animal fat consumption would not have increased by at least 40%. On my calculations, the increase in daily animal fat consumption from 66.6 gm to 79.4 gm represents an increase of 19.2% rather than the 40% required. But matters of fact are, of course, for the Tribunal and not for the Court. And the evidence accepted by the Tribunal may not be that of Dr English, or indeed her evidence may change.
32 In Gorton Allsop J (with whom Emmett J agreed) said at 336-337:
"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."
That is consistent with the approach of Keeley as to the circumstance which may give rise to the right said to have accrued. However, as the particular issue did not arise in either Gorton or Keeley, I do not think too much can be made of such remarks. The important step is to identify, by reference to those decisions, the nature of the accrued right which they recognise and why it comes to exist.
33 Section 50 of the Acts Interpretation Act provides that the repeal of a regulation does not, in the absence of a contrary intention, affect any right accrued under the regulation. Keeley decided that the lodging of a claim for a benefit under the Act gave rise to a right to have the claim determined under the Act according to law, and that s 50 applied to that right (per Lee and Cooper JJ at 121). The operation of s 120A(2) and (3) meant that the potential introduction of a Statement of Principles would delay the making of a decision on the claim, and the introduction of a Statement of Principles would in a substantive sense, as opposed merely to a procedural sense, "affect" the right which accrued to the claimant upon lodgment of a claim (per Lee and Cooper JJ at 122-123).
34 The Repatriation Medical Authority is obliged to give public notice of a proposed review of the contents of a Statement of Principles: s 196G(1). Such notice apparently obliges the Commission not to determine a claim until the investigation has been completed. Section 120A(2) refers to "an investigation in respect of a particular kind of injury, disease or death". Those words parallel the words in s 196G(1)(c) about the content of the notice. It does not distinguish between an investigation where there is no Statement of Principles and one to review a Statement of Principles. In my view, as s 120A(2) refers to the notice of investigation, the fact that s 196E(1)(d) and (f) and s 196B(4) and (7) separately deal with the initial investigation towards a Statement of Principles and the review of a Statement of Principles is not of consequence.
35 Section 120A(2) applies in terms to the Commission, but it does not expressly apply to the Board (or to the Tribunal). The Board's review functions under s 139 of the Act are similar to those of the Tribunal under s 175 of the Act and s 43 of the Administrative Appeals Tribunal Act. In Gorton, Allsop J at 331 laid weight upon the Tribunal having to review the decision of the Commission or of the Board by reference to the Statement of Principles which "is in force": s 120A(3). The same may be said of the Board's role. But his Honour did not there suggest that the Tribunal was obliged to delay its decision if a Statement of Principles was being reviewed. I consider the same applies to the Board. The circumstance that the Commission is obliged to defer a decision on a claim pending the making or review of a Statement of Principles was remarked upon by Lee and Cooper JJ in Keeley at 123 in the following terms:
"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)."
Whilst I am not confident the latter part of those remarks applies to the Commission where the Repatriation Medical Authority has given notice under s 196G of a reconsideration of a Statement of Principles for reasons given in [34] above, the remarks generally confirm that the Board is not itself obliged to defer a decision reviewing a claim by operation of s 120A(2) of the Act.
36 Once that step is taken, in my view it follows that persons such as Mr Thomas have a right of review by the Board and by the Tribunal by reference to the Statement of Principles in force at the time of the respective reviews. They also have an accrued right, if the application of the Statement of Principles in force at the time of the determination of the Board or of the Tribunal (at the times of their respective reviews) does not result in a favourable determination, to have the Board or the Tribunal (as the case may be) determine the claim by reference to the Statement of Principles in force at the time of the Commission's decision. But I do not consider that they have an "accrued right" before the Tribunal to have the claim determined by reference to the Statement of Principles in force at the time of the Board's decision where the then current Statement of Principles has replaced one in force at the time of the Commission's decision, as distinct from and in addition to the accrued right recognised in Keeley and Gorton. My conclusion accords with the observations of Heerey J at 322 and of Allsop J at 333 and 335 in Gorton and of Lee and Cooper JJ in Keeley at 123 although their Honours were not required to, and did not, directly address that issue.
37 Counsel for Mr Thomas submitted that "rights" based upon Statements of Principle previously in force accrue if they were in force during the "assessment period" as defined in s 19(9) of the Act. That is the period between the making of the claim and its determination. I do not think that point advances the contention. That is because the determination referred to is the determination of the Commission: see s 19. The review available under Part IX Div 3 by the Veterans' Review Board is therefore not within the assessment period. Lee and Cooper JJ in Keeley at 123 make the distinction in the passage quoted in [35] above.
38 I am not sure that the second ground of review argued by the Commission demonstrates an error of law on the part of the Tribunal as distinct from an error of fact on the part of the Tribunal. However, given my conclusion that the first ground of appeal is made out, that is largely a moot point. In my view it is clear that the Tribunal did make the error which the Commission asserts. Upon the evidence of Dr English, the pre-war daily animal fat consumption under the 1999 SoP was 84.7 gm, and the post war daily animal fat consumption was 90.6 gm. Applying the 1995 SoP as amended by the 1996 SoP, the respective figures are 66.6 gm and 79.4 gm. The Tribunal clearly has not compared like with like. It has taken for the purposes of its consideration the 66.6 gm measure based upon the definition of animal fat in the 1995 SoP as amended by the 1996 SoP, and the 90.6 gm based upon the different definition of animal fat in the 1999 SoP. That is not comparing like with like. I observe that cl 5(c) of the 1999 SoP is in fact in the same terms as cl 1(b) in the 1995 SoP as amended by the 1996 SoP. However, the different definitions of "animal fat" clearly produce different calculations.