Repatriation Commission v Thompson - [2001] FCA 341 - FCA 2001 case summary — Zoe

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Repatriation Commission v Thompson

[2001] FCA 341

Federal Court of Australia|2001-04-02|Before: Emmett JJ, Emmett J

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Source facts

Court

Federal Court of Australia

Decision date

2001-04-02

Before

Emmett JJ, Emmett J

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

drummond j: 1 I have had the advantage of reading in draft the reasons of Whitlam and Emmett JJ. I agree with the order Emmett J proposes. 2 Section 120 the Veterans' Entitlements Act 1986 (Cth), in terms, gives directions only to the Commission, when it is dealing with a pension claim under s 14, as to how it is to determine whether injury to or disease or death of a veteran was war-caused. But neither the Board when it reviews a decision of the Commission on application under s 135 or the Tribunal when it reviews a decision of the Board on application under s 175 has any authority to make determinations on the war-caused issue by applying an approach different from that which s 120 obliges the Commission to adopt. This follows from their roles as administrative tribunals charged with merit review of decisions of other administrative bodies and from s 139(3) the Veterans' Entitlements Act (in the case of the Board) and s 43(1) the Administrative Appeals Tribunal Act 1975 (Cth) (in the case of the Tribunal). 3 By s 120A(1), that section applies to all "claims made on or after 1 June 1994" for pensions pursuant to s 14 of the Act. Section 120A(3) permits a decision that the injury, disease or death the subject of any such claim was war-caused to be made "only if there is in force: … (a) a Statement of Principles determined under sub-section 196B(2) or (11); …", unless s 120A(4) is applicable. There is nothing in the wording of s 120A(1), (3) or (4) to suggest that sub-section (3) is directed only to the Commission and not equally to the Board and the Tribunal. They appear on their face to be provisions of general application to all decisions in respect of pension claims. But for s 120A(2), there would therefore be much to be said for the proposition that whenever the war-caused issue arises for determination in respect of a claim under s 14 made after 1 June 1994, the determination must be made in accordance with s 120A(3), by reference to the particular Statement of Principles that happens to be in force at the time the decision comes to be made and irrespective of whether it falls to be made by the Commission, the Board or the Tribunal. 4 But s 120A(2) creates a complication. It departs from the general language of s 120A(1), (3) and (4) by being specific to the Commission. It operates in terms to bar the Commission, but not the Board or the Tribunal, from proceeding to determine a pension claim if the Repatriation Medical Authority has given notice under s 196G prior to the Commission's determination that it intends to carry out an investigation in respect of a particular kind of injury, disease or death with a view to determining whether to issue a Statement of Principles under s 196B(2) in respect of that kind of injury, disease or death. Where a notice is given by the Authority under s 196G(1)(a) (in response to a request under s 196E) or under s 196G(1)(b) (when the Authority has decided to act of its own motion) which foreshadows the possible issue of a new Statement of Principles or the possible review of an existing Statement of Principles, the Commission must stay its hand until the Authority has made its decision and must then make its determination on the war-caused issue in relation to a pending pension claim consistently with any such Statement of Principles that may be in force when it comes to make its decision. But neither the Board nor the Tribunal is required to defer its review decision even though there may be in existence a notice by the Authority under s 196G relevant to what the Board or the Tribunal has to do: both can proceed, despite the notice, to make their review determinations on the basis of the existing Statement of Principles (if any). If, however, the Authority fortuitously acts to issue a new or revised Statement of Principles before the Board or the Tribunal makes its review decision, then s 120A(3) would, on its face, appear to require the Board or the Tribunal to make its review determination consistently with that new Statement of Principles. 5 A possible reason for the differentiation in s 120A(2) between the position of the Commission and that of the Board and the Tribunal may be that any of the Commission, a pension claimant or a veterans' organisation (who have conflicting interests in the outcome of proceedings initiated by a claim made to the Commission for its determination) can interrupt proceedings before the Commission in respect of the claim by making a request to the Authority under s 196E, with the result that the Commission must defer making its decision on the claim when a notice is given by the Authority under s 196G until the Authority has responded to the request either by issuing for the first time a Statement of Principles or by refusing to make any Statement of Principles or by reviewing an existing Statement of Principles and replacing it with a new one. But it might be thought that once the Commission has made the initial determination on the claim in circumstances in which each of the conflicting interests has the opportunity to put before the Commission the latest expert opinion from the Authority on the war-caused issue, none of those parties should be entitled thereafter to change the criteria with respect to the particular claim, after it has been determined by the Commission, by seeking to obtain revised information from the Authority before the Board or before the Tribunal completes their own review in respect of that same claim. At least it cannot be said that the differentiation made in s 120A(2) between the authority of the Commission to make its determination and the authority of each of the Board and the Tribunal to make their own determinations is productive of absurdity. 6 The respondent contends that the decision in Repatriation Commission v Keeley (2000) 98 FCR 108; [2000] FCA 532 governs this case. The issue there was whether the Tribunal should determine whether the veteran's death was "war-caused" by reference to the Statement of Principles in force when the Commission determined the claim under s 14 and when the Board reviewed that determination or, instead, by reference to the new Statement of Principles less favourable to the claimant that replaced the earlier one after the Board's review. 7 The majority in Keeley held that an accrued right within s 50 the Acts Interpretation Act 1901 (Cth) arises upon the making of an application to the Tribunal for review of the Board's decision, that the replacement Statement of Principles issued after the Board's decision "affected" the right of review under s 175 the Veterans' Entitlements Act within the meaning of that term in s 50 the Acts Interpretation Act and that the Veterans' Entitlements Act did not reveal an intention sufficient to displace the statutory presumption that that accrued right was to be determined by reference to the law (which includes any Statement of Principles) in force at the date of its accrual. This ruling forms part of the ratio of the majority decision. 8 The issue for decision here is whether a Statement of Principles issued for the first time after the determinations made by the Commission and then by the Review Board, but before the Tribunal decision was made, is, by force of s 120A(3), to govern determination by the Tribunal of the issue whether the condition the subject of the pension claim was "war-caused". In my opinion, Keeley does govern the present case because it establishes that upon making an application to the Tribunal for review of a determination by the Board, the pension claimant acquires an accrued right to have the Board's determination reviewed by the Tribunal in accordance with the law then in force. 9 As Whitlam J observes, the present case, unlike Keeley, is not concerned with the preservation of rights accrued under repealed legislation, to which s 50 the Acts Interpretation Act is alone directed. But, in Fisher v Hebburn Ltd (1960) 105 CLR 188, it was said at 194:

[3]

10 The general principle of construction of both the common law and of provisions such as s 50 is that no Act, be it amending or repealing legislation or new legislation operating in an area for the first time, affects past facts or events upon which legal rights depend, unless a contrary intention appears in the statute. Section 50 states in statutory form the limb of this common law principle that applies to repealing enactments (which will include provisions in statutes in the form of amending legislation which are, however, inconsistent with provisions of the earlier Act: Mathieson v Burton (1971) 124 CLR 1 at 9 - 12 and at 20 - 22). It is the other limb of this same principle that applies to new enactments. Both limbs operate to prevent statutes that change the law from applying to facts or events that have already occurred and by reference to which legal rights or liabilities have to be determined, unless a contrary intention is discernible in the particular statute: Maxwell v Murphy (1957) 96 CLR 261 at 267. 11 In my opinion, Ogston v Repatriation Commission (1999) 86 FCR 578; [1999] FCA 342 does not go beyond holding that s 120A(2) stands in the way of any claim that a claimant for a pension acquires a right to have a determination by the Commission made in accordance with the law in force at the time the claim was made. Ogston was not concerned with the question of the law to be applied by the Board or the Tribunal where that differs from the law in force at the time of the Commission's determination. 12 Though appellant's counsel drew the Court's attention to the fact that there was at the time of the hearing an application pending before the High Court for special leave to appeal the decision in Keeley, it was not contended on behalf of the appellant that the majority decision in Keeley was wrong and should not be followed. It is an important principle that this Court should not decline to follow the decision of another Full Court unless it first concludes that the previous decision is "clearly erroneous"; it would be wrong for one Court to decline to follow the decision of an earlier Full Court "merely because the matter was one on which minds might differ". See Transurban City Link Ltd v Allan (1999) 168 ALR 687 at 693 - 694; [1999] FCA 1723 at [29]. 13 I have difficulty with some of what was said by the majority in Keeley. Since legislative changes are prima facie to be taken as universally neutral in not affecting either accrued rights or accrued liabilities, I doubt that the fact that a change made in the statute law which is beneficial to a person claiming a right justifies departure from the prima facie rule since that change will, of necessity, be detrimental to the correlative liability of the person against whom the right is asserted. Cf Doro v Victorian Railways Commissioners [1960] VR 84 at 86. I think for the reasons given by Emmett J that changes made with respect to a Statement of Principles after the Commission's determination which are more favourable to the pension claimant than the earlier Statement are accommodated within s 31 the Veterans' Entitlements Act, rather than within a legislative intent identified in Keeley that review of a Commission determination should be in accordance with the most beneficial Statement of Principles in force at any time, if the majority in Keeley intended their comments at [46] to go that far. But I do not think there is justification for declining to apply the critical holding in that case that an accrued right to have a Commission decision on a pension claim reviewed in accordance with the law, including any Statement of Principles, in force when the application for review was made, then arises. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

[4]

Associate: Dated: 2 April 2001 WHITLAM J: 14 I have had the advantage of reading in draft the reasons for judgment of Emmett J. I gratefully adopt his Honour's general outline of the scheme of the Veterans' Entitlements Act 1986 (Cth) ("the Act") and of the issues in the present appeal. However, I have arrived at a different view on the question whether the decision of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108 dictates the disposition of this appeal. 15 Like Keeley, this case concerns what the High Court called "the condition" specified in s 120(3) of the Act: Repatriation Commission v Owens (1996) 70 ALJR 904. That condition is now affected by s 120A of the Act. In Keeley itwas common ground that s 120A(3) applied in relation to the claim. The question of law in that case was how s 120A(3) applied to the determination of the claim by the Administrative Appeals Tribunal ("the Tribunal"). In the present case, however, the primary judge held, in effect, that s 120A(3) did not apply to the determination of the claim by the Tribunal. 16 So far as relevant, s 120 of the Act provides: "(1) Where a claim under Part II for a pension in respect of the incapacity from … disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine … that the disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: This subsection is affected by section 120A. … (3) In applying subsection (1) … in respect of the incapacity of a person from … disease … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) … (b) that the disease was a war-caused disease …; (c) … … if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … disease … with the circumstances of the particular service rendered by the person. Note: This subsection is affected by section 120A. …"

[5]

17 Section 120A of the Act relevantly provides: "(1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) … Note 1: Subsections 120(1), (2) and (3) are relevant to these claims … (2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of … disease … the Commission is not to determine a claim in respect of the incapacity of a person from … disease of that kind … unless or until the Authority: (a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of … disease …; or (b) has declared that it does not propose to make such a Statement of Principles. (3) For the purposes of subsection 120(3), a hypothesis connecting … a disease contracted by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); (b) … that upholds the hypothesis. Note: See subsection (4) about the application of this subsection. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from … disease … of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) … (b) the kind of disease contracted by the person; … (c) …" 18 Section 120A(4) spells out the only circumstances in which s 120A(3) does not apply. They are, for present purposes, where the Repatriation Medical Authority ("the Authority") has neither determined a Statement of Principles nor declared that it does not propose to do so in respect of a kind of disease relevant to the claim. 19 In the present case the Authority determined a Statement of Principles in respect of the relevant kind of disease on 16 August 1996. The primary judge held that the Tribunal erred in applying that Statement of Principles because it was made after the application to the Tribunal for review was lodged on 11 June 1996. In so holding, his Honour purported to apply Keeley. 20 In Keeley, Lee and Cooper JJ said (at 123): "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."

[6]

21 That conclusion rested on the application of s 50 of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act") to the revocation of a Statement of Principles, which s 196D of the Act provides is a disallowable instrument for the purposes of s 46A of the Interpretation Act. At first instance in that case it was held that the relevant right "accrued" under the revoked Statement: per Heerey J (1999) 30 AAR 48 at [22] and [31]. In the Full Court the majority in Keeley shiftedthe location of the accrued right to the Act, notwithstanding that s 46A(1)(a) of the Interpretation Act only makes s 50 of that Act applicable to a right accrued under a revoked instrument. 22 The present case is not concerned with the preservation of rights accrued under repealed legislation. That was the topic of discourse in Keeley. The point of distinction here is that no question of repeal arises at all. The Act does not enable the Authority to make a determination overriding the provisions of the Act and, in any event, the relevant determination is entirely consistent with the Act. Moreover, the Authority did not revoke an existing Statement of Principles in respect of the relevant kind of disease. 23 This case is, in my view, governed by the holding of the Full Court in Ogston v Repatriation Commission (1999) 86 FCR 578 that a claim for a pension brought under Pt II of the Act, made on or after 1 June 1994, is to be determined by reference to any Statement of Principles in force at the time of the decision on the claim. In that case the fact that the relevant Statement of Principles was made before the claim was determined by the appellant ("the Commission") was not referred to in the reasons of Burchett, Branson and RD Nicholson JJ. (That fact may be gleaned from the reasons for the Tribunal's decision in that case. They are reported in 52 ALD 392 at 393 - 394.) Such a fact provides no basis for distinguishing in principle the circumstances in the present case where the Statement of Principles was made after the decision of the Veterans' Review Board ("the Board") affirming the decision of the Commission. Section 120(1) of the Act applies to the making of a decision upon review by the Board or by the Tribunal to the same extent as it does to the making of a determination by the Commission. (It also relevantly applies to any review by the Commission under s 31(1) or (2) of the Act.) 24 In Keeley, at first instance, Heerey J distinguished Ogston on the basis that it was not concerned with s 50 of the Interpretation Act nor with "the appropriate" Statement of Principles to apply on review by the Tribunal: 30 AAR 48 at [42]. In the Full Court, Lee and Cooper JJ did not refer to Ogston at all. They did, however, say that the terms of s 120A show a clear intention by Parliament that a Statement of Principles determined under s 196B of the Act was "to 'affect' the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission": 98 FCR 108 at [123]. Their Honours then turned their attention to the right to have the determination of the Commission reviewed, which they described as a right "accrued under the Act", and said: "… 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). 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 [v Commonwealth (1992) 174 CLR 430] at 440-441 per Mason CJ, Deane, Toohey, Gaudron JJ." (Emphasis supplied.) 25 Viewed in the above context, it may be seen that the conclusion of the majority in Keeley, which I had earlier set out [20] and which I regard as crucial to the decision in that case, depends on their view about the effect of what is referred to in subs 196B(8) as "an amendment of [a] Statement of Principles already determined". They held that the statutory presumption against the retrospectivity of such an amendment was not rebutted by any contrary intention appearing in the Act. It is true that we were not asked to reconsider the decision of the Full Court in Keeley. Nonetheless, the ratio of the majority's decision relates, in my opinion, to the exercise of the Authority's duty under s 196B(8) of the Act. That is not the present case, where the Authority did not carry out an investigation at all. 26 I should also address two other matters raised by my colleagues. First, Emmett J describes [54] the question that arises in the present case as "a transitional one". His Honour observes that in the present case no notice was given under s 196G. It must, however, be borne in mind that the Authority does not have to carry out an investigation before it can determine a Statement of Principles under s 196B(2). The text of the provision makes that clear. Furthermore, by virtue of s 5U of the Act, the Note immediately following subs 196B(5) is part of that subsection and it confirms that meaning. 27 Secondly, Drummond J says [4] that s 120A(2) creates a complication because its language is specific to the Commission. With respect, the reference to the Commission in s 120A(2) has the same significance as it does in subss 120(1) and (3). Section 176 of the Act does not modify in any presently relevant respect the operation of s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). How the Tribunal then comes to stand in the shoes of the Commission is neatly explained by Weinberg J in Bramwell v Repatriation Commonwealth (1998) 158 ALR 623 at 627, 634 - 635. 28 In my opinion, s 120A(3) of the Act applied in this case. Accordingly the Tribunal did not err in referring to the Statement of Principles in force at the time of its decision in respect of the relevant kind of disease. The appeal should be allowed, the orders of the primary judge set aside, the decision of the Tribunal affirmed, and the respondent ordered to pay the Commission's costs at first instance and on appeal. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

[8]

31 Section 14(1) of the Act provides that a veteran may make a claim for a pension. Under s 14(3) a claim for a pension must be in writing and must be accompanied by such evidence available to the claimant as the claimant considers relevant. Under s 17(1) when a claim is made for a pension under s 14(1), the Secretary of the Department must cause an investigation to be made into the matters to which the claim relates. Upon completion of the investigation, the Secretary must cause the claim to be submitted to the Commission for its consideration and determination. Under s 19(1) the Commissioner must determine the claim as follows: · the Commission must determine whether the claimant is entitled to be granted a pension in respect of incapacity from war caused injury or war caused disease; · the Commission must assess, in accordance with the relevant provisions of Division 4 of Part II, the rate of the pension and must make a determination approving the payment of pension in accordance with the assessment. 32 Part VIII of the Act contains provisions relevant to the making of a determination. Section 120(1) provides that where a claim for a pension in respect of the incapacity from injury or disease of a veteran relates to the operational service rendered by the veteran, the Commission must determine that the injury was a war caused injury or that the disease was a war caused disease, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Under s 120(3) the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the injury was a war caused injury or that the disease was a war caused disease, as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person. 33 The operation of s 120(3) is affected by s 120A. Section 120A applies to a claim made on or after 1 June 1994 that relates to the operational service rendered by a veteran. Section 120A(3) provides that for the purposes of s 120(3) a hypothesis connecting an injury suffered by a person or a disease contracted by a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles determined under s 196B(2), that upholds the hypothesis. However under s 120A(4), s 120A(3) does not apply in relation to a claim in respect of the incapacity from injury or disease of a person if the Repatriation Medial Authority ("the Authority") has neither determined a Statement of Principles under s 196B(2) nor declared that it does not propose to make such a Statement of Principles in respect of the kind of injury suffered by the person or the kind of disease contracted by the person as the case may be.

[9]

The Authority 34 Part XIA deals with the establishment functions and powers of the Authority. In particular, it contains provisions pursuant to which Statements of Principles are to be determined. Under s 196B(2) if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury or disease can be related to operational service rendered by veterans, the Authority must determine a Statement of Principles in respect of that kind of injury or disease. The Statement of Principles must set out the factors that must as a minimum exist and which of those factors must be related to service rendered by a person before it can be said that a reasonable hypothesis has been raised connecting an injury or disease of that kind with the circumstances of that service. 35 The Commission and any person eligible to make a claim for a pension may, under s 196E(1), ask the Authority: · to carry out an investigation in respect of a particular kind of injury or disease; · to review the contents of a Statement of Principles in force under Part XIA. In addition, the Authority may, of its own initiative, decide that a particular kind of injury or disease ought to be investigated. In either case, the Authority must carry out an investigation to obtain information that would enable the Authority to establish: · how the injury may be suffered or the disease may be contracted; and · the extent (if any) to which the injury or disease may be war caused. 36 Under s 196G(1), as soon as practicable after the Authority has been asked under s 196E to carry out an investigation or has decided on its own initiative to carry out such an investigation, the Authority must publish in the Gazette a notice stating that it intends to carry out an investigation in respect of the particular kind of injury or disease. 37 Under s 196B(5) if, after carrying out the investigation, the Authority is of the view that there is sound medical-scientific evidence on which it can rely to determine a Statement of Principles in respect of that kind of injury or disease, the Authority must do so as soon as practicable. Otherwise, under s 196B(6), the Authority must make a declaration in writing stating that it does not propose to make a Statement of Principles. Under s 196B(7) if the Authority is asked under s 196E to review the contents of the Statement of Principles, the Authority must carry out an investigation to find out if there is new information available about: · how the injury may be suffered or the disease may be contracted; or · the extent to which the disease or injury may be war caused. 38 Under s 196B(8) if, after carrying out the investigation, the Authority is of the view that there is a new body of sound medical, scientific evidence available that, together with the sound medical, scientific evidence previously considered by the Authority, justifies the making of a Statement of Principles, or an amendment of the Statement of Principles already determined, in respect of that kind of injury or disease, the Authority must: · determine a Statement of Principles in respect of that kind of injury or disease; or · make a determination amending the Statement of Principles; or · revoke the Statement of Principles already determined and determine a new Statement of Principles in respect of that kind of injury or disease.

[10]

39 Part IX deals with review of the Commission decision by the Board. Section 135(1) provides that where a person who has made a claim for a pension in accordance with s 14 is dissatisfied with any decision of the Commission in respect of the claim, the person may make an application to the Board for a review of the decision of the Commission. Under s 137(1) the Secretary must cause a report to be prepared referring to the evidence under the control of the Department that is relevant to the review. A copy of the report is to be served on the applicant. Under s 137(4) the Secretary must forward to the Board all the relevant documents, including any comments furnished to the Secretary by the applicant concerning the report. 40 Under s 139(1) the Board, on review of the decision, must have regard to the evidence that is before the Commission when the decision was made and to any further evidence before the Board on the review that was not before the Commission. It is the duty of the Board, in reviewing a decision, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the review. In that regard, the Board may exercise all the powers and discretions that are conferred on the Commission in like manner as they are required by the Act to be exercised by the Commission. The Board must, under s 139(3) make a decision: · affirming the decision under review; · varying the decision under review; or · setting aside the decision under review and making a decision in substitution for the decision so set aside. Where the Board sets aside a decision of the Commission refusing to grant a pension, the Board must assess the rate at which the pension is to be paid or remit the matter to the Commission to assess the rate. 41 Part X deals with review of the Board's decisions by the Tribunal. Under s 175(1), where a decision made by the Commission has been reviewed by the Board and affirmed, varied or set aside, then application may be made to the Tribunal for review of: · the decision of the Commission that was so affirmed; · the decision of the Commission as so varied; or · the decision made the Board in substitution for the decision so set aside. 42 Under s 43(1) of the Administrative Appeals Tribunal Act, the Tribunal may, for the purpose of reviewing a decision, exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. The Tribunal must make a decision in writing: · affirming the decision under review; · varying the decision under review; or · setting aside the decision under review and either making a decision in substitution for the decision so set aside or remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. 43 It is clear that in the exercise of its review function under s 43, the Tribunal stands in the shoes of the decision-maker and the exercise of its review jurisdiction is the occasion of a fresh exercise of administrative power, accordingly, in the ordinary course of events, the Tribunal is entitled to have regard to the facts or matters as they stand at the date of its decision. Where appropriate, the Tribunal can amend the diagnosis of a relevant disease that was determined upon by the Commission. See Brook v Repatriation Commission (1986) 5 AAR 102 and Re Riley v Repatriation Commission (1995) 21 AAR 174. The law to be applied is that in force on the date of the Tribunal's decision: Re Costello v The Secretary, Department of Transport (1979) 2 ALD 934 at 943 - 944.

[11]

44 The essence of the question on appeal was whether the Tribunal in its review of the Board's decision affirming the Commission's decision, erred in having regard to s 120A(3) of the Act. The question turns on the operation of s 120A in circumstances where a Statement of Principles was determined after the decision of the Board but before the consideration of the question by the Tribunal. 45 The Veteran applied for a pension on 10 April 1995. Accordingly, s 120A applied to the claim, since it was made after 1 June 1994. The claim for a pension was based on the condition known as "irritable bowel syndrome". At the time of the decision of the Commission's delegate, the Authority had not determined a Statement of Principles for irritable bowel syndrome. Accordingly, the decision of the Commission's delegate was based on the evidence before the delegate at the time of the decision as to the connection between that condition and war service. At the time of the decision by the Board of 29 March 1996, the Authority had still not made a determination of a Statement of Principles concerning irritable bowel syndrome. 46 However, by the time the matter came to hearing before the Tribunal on 28 May 1997, a Statement of Principles (No. 103) concerning irritable bowel syndrome had made on 16 August 1996. Nevertheless, the Tribunal concluded that, in making a decision of the matter before it, it should apply that Statement of Principles. 47 The primary judge concluded that the Tribunal had made an error of law in making a decision on the basis of the Statement of Principles concerning irritable bowel syndrome. His Honour concluded that an intention should be imputed to Parliament that, after a veteran has made a claim on one legally relevant set of criteria and embarked on the exercise of a right of review of a claim so based, the substantive rules governing the claim should not be changed to the disadvantage of the claimant. On appeal the Veteran supported the primary judge's conclusion that: · a presumption of construction protecting accrued rights applies in the circumstances; and · the legislation does not exhibit, with the requisite clarity, an intention to abrogate such accrued rights.

[15]

49 Section 120A(2) provides that if the Authority has given notice under s 196G that it intends to carry out an investigation in respect of a particular kind of injury or disease, the Commission is not to determine a claim in respect of the incapacity of the person from an injury or disease of that kind unless or until the Authority: · has determined a Statement of Principles in respect of that kind of injury or disease; or · has declared that it does not propose to make such a Statement of Principles. 50 The majority in Keeley's Case accepted that the terms of s 120A(2) show a clear intention by Parliament that such a Statement of Principle is to "affect" the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission. By postponing a right to have a claim decided until a Statement of Principles has been determined, Parliament intended that the decision, and therefore the right to have a decision made, could be affected by a Statement of Principles and that a pending claim is to be decided by application of the Statement of Principles when determined: at [44]. 51 However, the majority considered that 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 majority considered that it was 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). That was the circumstance under consideration in Keeley's Case. There, the sequence of events was as follows: · a claim was made to the Commission; · a relevant Statement of Principles was determined; · the Commission determined the claim by applying that Statement of Principles; · an application was made to the Board for review of the Commission's decision and the Board determined the claim on the basis that the Statement of Principles applied; · a second Statement of Principles was determined and the original Statement of Principles was revoked; · the Tribunal affirmed the Board's decision, applying the second Statement of Principles.

[17]

52 It is clear from the majority's view in Keeley's Case that the decision by the Commission of a claim could be affected by the determination of a Statement of Principles after the making of the application. It is possible, of course, that a Statement of Principles may affect an application beneficially. There is a mechanism, in s 31 of the Act, whereby that possibility may be acknowledged. Section 31(1) provides that where: · the time has not expired for making application to the Board for a review of a decision of the Commission with respect to a claim for pension in accordance with clause 14; or · an application has been made to the Board for review of such a decision but has not been determined by the Board, the Commission may, in its discretion, review that decision. 53 Under s 31(2) where application has been made to the Tribunal for a review of a decision of the Commission that has been affirmed by the Board or a decision by the Board in substitution for decision for Commission but the review has not been determined, the Commission may, in its discretion, review that decision and, with the consent of the applicant, vary that decision. In the present case, the Commission commenced a review under s 31 in order to ensure that the Veteran would not be disadvantaged by having his claim decided before the Authority had issued a Statement of Principles. Section 120A must be construed in the light of the overall scheme of the Act, including the provisions of s 31. 54 The question that arises in the present case is a transitional one. In the present case, there was no notice given under s 196G that the Authority intended to carry out an investigation in respect of irritable bowel syndrome. If it had, the question would not have arisen because s 120A(2) would have prevented the Commission from determining the claim until the Statement of Principles had been determined. 55 In the Explanatory Memorandum circulated in connection with the Bill for the amendment of the Act to insert s 120A and the provisions relating to Statements of Principles the outline and purpose of the amendments is described in part as follows: "Two of the initiatives in this Bill are designed to ensure a more equitable and consistent system of determining claims for disability pensions for veterans and their dependants. The changes will involve the establishment of a Repatriation Medical Authority… The new provisions deal with the determination of claims for pensions made on or after 1 June 1994 by reference to Statements of Principles. They will still require certain claims to be determined on the basis of a 'reasonable hypothesis standard of proof' but with questions of medical causation to be determined in accordance with the amendments detailed below… It has become apparent that lay Tribunals do not deal with medical-scientific issues consistently and that the adversarial approach to fact finding applied in administrative tribunals is inappropriate for determining medical-scientific issues that call for detailed technical knowledge. … The Authority will prepare Statements of Principles based on sound medical-scientific evidence that will exclusively state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service. … This change is aimed at ensuring that medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinions."

[22]

58 Those observations are of marginal assistance in resolution of the question before the Court. However, they do suggest an intention on the part of the Parliament to ensure that all claims made after 31 May 1994 will be determined in accordance with Statements of Principles where such Statements of Principles exist. That intention is evinced in the language of s 120A itself. 59 That intention must be considered against the background of the scheme of review provided for under the Act. Thus, the principles applicable to a decision by the Board and a decision of the Tribunal are that the Board and Tribunal are required to make a decision on the basis of the material before it at the time of making the decision. Where the nature of the decision under review does not involve a consideration of accrued rights or liabilities but rather involves an investigation of whether the applicant has a present entitlement to a grant of a right or privilege, unless the amending law otherwise provides, the law to be applied is that in force on the day of the Tribunal's decision: Re Costello v The Secretary, Department of Transport (1979) 2 ALD 934 at 943 - 944. 60 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 the decision maker. Rather the question for the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal: Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589. 61 Once the Veteran had lodged an application to the Tribunal to review the decision of the Board, he had a right to have the decision of the Board reconsidered and determined by the Tribunal. It was not a mere matter of procedure. It was a substantive right. It was a right in existence at the time when the Statement of Principles was published. Accordingly, in the absence of a contrary intention, the right was protected: Esber v The Commonwealth (1992) 174 CLR 430 at 440 - 441. 62 In the present case, there is no question of change in the law. The Parliament had spoken prior to the Veteran's lodging of his claim for a pension. Section 120A makes unequivocally clear the intention of Parliament that the provisions of s 120A will apply to all claims made after 31 May 1994. Section 120A(2) evinces a clear intention that the decision of the Commission should be deferred where a Statement of Principles is under consideration. 63 A question may arise as to the extent to which s 120A(2) should be construed as applying to the Board and the Tribunal in circumstances where notice is given by the Authority under s 196G after the making of a decision by the Commission. However, while a Statement of Principles may affect the accrued right obtained by the lodgement of a claim, by delaying the determination of the claim pending the issue of a Statement of Principles, the provision does not deal with the circumstances that arise where no notice has been given under s 196G. The Act is silent about the effect upon the right of the Veteran that had accrued under the Act to have the determination of the Board reviewed by the Tribunal: Keeley's Case at [45]. 64 While the Full Court in Keeley's Case was concerned with revocation of a Statement of Principles and determination of another statement pursuant to s 196B(8)(c), the reasoning of the majority is not limited to those circumstances. As the majority observed, 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 the Statement of Principles and determine another under s 196B(8). The Act is equally silent about the effect upon the accrued right to have the determination of the Board reviewed in circumstances where no notice has been given under s 196G by the Authority. 65 Esber's Case was concerned with change in the law by statutory repeal. No such question arose in Keeley's Case. Nor does such a question arise in the present case. Nevertheless, the majority in Keeley's Case proceeded on the basis that the revocation of a Statement of Principles and determination of another Statement of Principles in its place was equivalent to the statutory repeal that was under consideration in Esber's Case. The determination of a Statement of Principles where there was previously none is not distinguishable from the circumstances that arose in Keeley's Case. 66 In Ogston v Repatriation Commission (1989) 86 FCR 578, the Full Court considered a contention that once a claim under Part II of the Act had been made, the applicant had a right to have that claim determined by reference to the law in operation on that day: at [9]. That contention was rejected: at [15]. The Court was prepared to assume that, upon the making of a claim for a pension, the applicant gained a vested right to receive a pension if the prerequisites for the pension were otherwise satisfied. However, the Court rejected the contention that the applicant had a right to have her claim determined by any particular procedure or to be able to vindicate her claim in any particular way. 67 The reasoning of the Full Court in Keeley's Case is that there is a vested right to have the original decision reviewed on the basis of the state of affairs concerning Statements of Principles at the time when the original decision was made. In contrast, the Full Court in Ogston's Case held that an applicant had no vested right to have a claim determined on the basis of the state of affairs concerning Statements of Principles at the time of lodging the application. 68 No submission was made on behalf of the Commission that the Court should not follow Keeley's Case on the ground that Keeley's Case is clearly wrong. Rather, the Commission contended that Keeley's Case should be distinguished and that, in the circumstances of the present case, a clear intention has been evinced by the Parliament that the accrued right to have the determination of the Board reviewed on the basis that there is no applicable Statement of Principles is abrogated by the language of s 120A. 69 Some reservation may be expressed as to whether Esber's Case leads to the conclusion reached by the majority in Keeley's Case. However, the Commission did not contend that this Court should not follow the holding in Keeley's Case that there is a vested right to have the original decision reviewed on the basis of the state of affairs at the time of the original decision. It would follow that the Veteran had an accrued right to have the decision of the Board reviewed by the Tribunal on the basis that no Statement of Principles had been determined. Once that assumption is made, the reasoning in Keeley's Case governs the outcome of the present case. Without expressing any view one way or the other about the correctness of Keeley's Case, it is therefore appropriate to apply the reasoning in Keeley's Case to the present case.

Repatriation Commission v Thompson

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