Analysis
102 There was no issue between the parties as to the relevance of both the text and context in ascertaining the meaning of evidence for the purpose of s 137, or more generally as to the applicable principles. Terms are to be construed based on their ordinary and grammatical sense and having regard to context and legislative purpose: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].
103 An important part of the context in this matter is that it concerns the realm of administrative decision-making. There is a general presumption administrative decision-makers are not bound to observe rules of evidence unless expressly or impliedly required by statute: Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 256-257 (Brennan J), affirmed in Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666; and more generally Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [57]-[72].
104 This presumption is often, especially in the case of tribunals, confirmed by a statutory provision. Provisions exempting decision-makers from rules of evidence intend to free decision-makers 'from certain constraints otherwise applicable in a Court of law': Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [56] (Gummow and Heydon JJ). A balance must be struck between using rules of evidence as useful guidance in order to receive the benefit of the 'method of inquiry best calculated to prevent error and elicit truth' (Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256), and recognising that those rules have been developed to operate within the adversarial model of the courts, rather than within extra-curial tribunals.
105 Mr Shafran acknowledges that the rules of evidence do not apply to the Commission or the Board (by s 119(1)(f) or s 138(1)(a) respectively). He accepts that the Commission and the Board are the decision-makers under the relevant statutory regime. Taking these matters into account, a number of real difficulties arise with Mr Shafran's contentions.
106 Mr Shafran's argument proceeds on the basis that the Secretary is bound by the rules of evidence. If this were right, although the Commission and the Board are expressly not bound by the Evidence Act, their statutory tasks would be inhibited by the indirect application of the Evidence Act or analogous common law principles to the Secretary. The materials that reach the Commission and the Board may be limited or abridged through the application of the rules of evidence by the Secretary. It follows that either s 119(1)(f) and s 138(1)(a) of the Act are redundant provisions (at least in part), or they are in conflict with the role of the Secretary. Either outcome tells against Mr Shafran's construction.
107 Neither of the bases upon which Mr Shafran asserts the Secretary is bound by the rules of evidence is compelling.
108 The first basis relied upon is the absence of an express exclusion, analogous to s 119(1)(f) or s 138(1)(a) of the Act, applying to the Secretary. However, the Secretary is not the decision-maker. The Secretary does not carry out any role analogous to an adversarial process of inquiry. It is therefore unsurprising that there would be no equivalent provision to s 119(1)(f) or s 138(1)(a) applying to the Secretary.
109 The second basis relied upon is that the word 'evidence', when considering the materials under the control of the Secretary as referred to in s 17, s 19 and s 137 of the Act, means admissible evidence as generally understood in adversarial proceedings, determined in accordance with the rules of evidence.
110 However, 'evidence' is not necessarily the same as 'admissible evidence'. The common law and statutes have developed rules to separate inadmissible evidence, and to contain or limit the prejudicial reliance on certain types of evidence in court proceedings, including the weight to be given to it. This supports the respondents' argument that evidence, as the word is generally understood, may encompass a broad range of matters relevant in some manner to proving facts. It is not to be inferred merely from the use of the word 'evidence' in s 17, s 19 and s 137, that the word is intended to refer only to evidence that has been confined in accordance with the rules of evidence. Accordingly, on its face, 'evidence' in those provisions is to be read as potentially encompassing a broader range of information than 'admissible evidence'.
111 There are a number of matters that support a broad meaning of the word, unconstrained by the rules of evidence that apply in a court.
112 It is to be recalled that the Act has as its purpose the grant of benefits to veterans, being 'part of a societal bargain for military service', and is beneficial legislation: Shafran (No 1) at [65].
113 It is immediately apparent from s 119(1)(f) or s 138(1)(a) that it is intended that the decision-maker may have regard to a broad range of information (whether it be called evidence, materials, documents or otherwise) in assessing a claim. Importantly, the claimant may also provide 'evidence' in this regard, as is clear from s 17(3)(a).
114 Therefore, 'evidence' is to be construed taking into account that it may be provided by both the claimant and the Department. It should bear the same meaning in, for example, s 17(3)(a) as elsewhere in the Act, including s 17(3)(b) and s 137. As explained in R v Jacobs Group (Australia) Pty Ltd [2023] HCA 23 at [25] (Kiefel CJ, Gageler, Gordon, Steward, Gleeson and Jagot JJ):
… a construction of a provision that it is consistent with the language and purpose of all the provisions of the statute is ordinarily one in which the same meaning is given to the 'same words appearing in different parts of a statute'. At the least, it is accepted that there needs to be a reason not to give the same words in the same statute the same meaning.
115 Having regard to the broad scope of information that can be provided, it would be an odd and unsatisfactory result that only admissible evidence submitted by a claimant (assessed in accordance with the rules of evidence) would find its way to the Commission in support of their claim, especially when it follows from its nature that some information may be historic. This is particularly so as claimants are not typically legally represented under the regime. A broader meaning of 'evidence' in s 17(3)(a) is consistent with both the beneficial purpose of the Act and the breadth of material to which the Commission and Board may have regard.
116 As to other textual matters, Mr Shafran places weight on the separate use of the words 'evidence', 'documents' and 'other material' in various parts of s 17, s 19 and s 137 to suggest they are distinct categories of information. I accept that the use of these different terms by the drafters of the legislation has resulted in questions for the reader that could well have been avoided. Compare, for example, the use of the phrase 'review material' to encompass all materials provided by the Departmental Secretary to the Immigration Assessment Authority under s 473CB(1)(c) of the Migration Act 1958 (Cth) for the purpose of the Authority carrying out its statutory task (and see CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [6] for a discussion of the task to be undertaken by the relevant Secretary in this regard).
117 However, there are other textual indicators that indicate that despite the different terms, no exclusive categorisation is intended by their use. 'Documents' is used in some provisions of the Act in circumstances where it clearly encompasses anything relevant to the review, including evidence and any supplementary report. For example, s 17(3) refers to the 'documents' as 'including any evidence or documents'. See also s 137(4), and s 137A. In another provision the phrase 'evidence and documents' is used (s 19(2)(a)) but I do not consider, in the face of the other inclusive references, that this establishes the categories are mutually exclusive. 'Documents' may contain evidence, or they may contain something along the lines of submissions or policy statements. There is nothing to suggest that 'documents' are to be reviewed by the Secretary subject to any limit by way of the rules of evidence. It would be incongruous if 'evidence' were subject to such limitation and 'documents' were not.
118 Additionally, although s 137(1) provides that a report is to refer to 'evidence', s 137(2) provides that the same report may refer to 'information, opinion or other matters'. 'Evidence' is therefore anticipated to include the broad range of matters that might be described as including 'information, opinion or other matters'.
119 Nor is there any apparent justification for a construction whereby the rules of evidence apply indirectly (by their application to the Secretary) to the Commission and the Board in relation to evidence provided by the Secretary, but do not apply to evidence given before the Commission or Board under oath or affirmation. Nothing in the Act suggests or supports such a bifurcated approach.
120 A narrow interpretation of 'evidence' also undermines the otherwise broad and inclusive powers of the Commission and the Board. The Commission is entitled to have regard to matters that include the evidence provided by the Secretary (chapeau to s 19(2)). The Board is then empowered to review 'all matters relevant to the review', and not bound by technicalities, legal forms or rules of evidence. It must expressly take into account the difficulties in proving any facts (s 138(1)(b)). Such express powers and obligations, clearly directed at weighing the probative values of different evidence, are consistent with the beneficial purpose of the Act. Respectfully, the narrow interpretation for which Mr Shafran contends, and which must apply to material provided by both the claimant and the Department, is not.
121 Further, there are various authorities which refer, in the context of administrative decisions, to the natural justice requirement that a decision be based on evidence, and which expand on the meaning of evidence in this context. For example, Diplock LJJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 485 said in this context:
… 'evidence' is not restricted to evidence which would be admissible in a court of law. For historical reasons, based on the fear that juries who might be illiterate would be incapable of differentiating between the probative values of different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion: cf. Myers v. Director of Public Prosecutions [[1964] 3 WLR 145].
These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.
122 This statement was cited with approval in Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 689 (Deane J, Evatt and Smithers JJ agreeing).
123 Taking into account all of those matters, I am of the view that Mr Shafran's argument that the Secretary is bound by the rules of evidence is untenable. As s 119(1)(f) or s 138(1)(a) of the Act reflect, material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined by the Commission and the Board may extend beyond admissible evidence in the strict curial sense. It is not the task of the Secretary to filter such material by reference to the rules of evidence.
124 Undoubtedly the Secretary's role is not without boundaries. They must form an opinion, acting reasonably, as to what material is relevant to the review process and must do so on a correct understanding of the law: CNY17 at [6].
125 However, the legislative framework clearly indicates that it is for the Commission and the Board to test and weigh the nature of the evidence and materials before it, and expressly without regard to the rules of evidence.
126 So much is an orthodox outcome in the administrative regime and there is nothing in the Act that persuades me that another result is likely to follow. The outcome I prefer is also consistent with the objects of the Board, set out at [42] above. A procedure which permits reliance on a broad range of materials (including those provided by the claimant) which might not strictly comply with the rules of evidence but which are relevant to the matters to be decided by the Board is consistent with the objective of an accessible, fair and informal mechanism of review. The fact that the claimant, by way of the report, is given access to such materials, rather than access to only a sub-set as determined by the Secretary applying strict rules of evidence, should promote public trust and confidence in the Board's decision-making process.
127 Nor am I persuaded that confusion or different opinions on the part of employees and officers of the Department as to the meaning of 'evidence' informs the discussion. The question for the Court is to be determined having regard to the principles of statutory construction. I have already acknowledged that, with the benefit of hindsight, different drafting might have been employed, but that does not signal any admission that the words cannot be construed by an application of those principles.
128 I do not consider the definition of 'relevant documentary medical evidence' in s 19 of the Act assists. That provision has the clear purpose of providing for the specific circumstances where a claimant who is successful in terms of the Commission's decision may be reimbursed for costs they have incurred in obtaining certain specified medical evidence in support of their claim. It does not purport to limit the relevant medical or other evidence the claimant might provide. Nor does it apply to the Secretary or otherwise purport to limit the relevant medical or other evidence the Secretary may obtain for the purpose of their investigation. The phrase is also included in s 170A ('Medical expenses') and s 170B ('Travelling expenses'), in the context of restricting the circumstances where a claimant might be reimbursed for such expenses relating to 'relevant documentary medical evidence' submitted to the Board. The phrase is defined for the purpose of those provisions in s 133 of the Act and is in terms similar to the s 19 definition. Again, those provisions do not apply to the Secretary and do not purport to restrict the evidence which might be relied upon by the claimant, the Commission or the Board.
129 Returning to Mr Shafran's particular concern relating to the CMA and CDA reports, in my view those are documents that can properly be considered relevant to the Commission's decision-making process and that of the Board, and fall within the meaning of the word 'evidence' in accordance with the above reasons. They can properly be considered relevant, at least to ascertaining whether the conditions complained of by Mr Shafran fell within recognised categories for entitlements. The weight to be given to those reports, taking into account their authors, their brevity, their content and their purpose, was a matter for the delegate of the Commission. Similarly, on any review, it is for the Board to consider the weight it may wish to accord those reports, having regard to their authors, their brevity, their content and the purpose for which they were sought.
130 One can well imagine other cases where a claimant's claimed condition is such that a medical appointment and personal assessment might be required in order for a doctor or other specialist to ascertain the nature and extent of any particular condition and whether it falls within a category that would entitle the claimant to payment under the Act. However, that might not always be the case. The application before me is not one based on unreasonableness on the part of the decision-maker, and it is not necessary or appropriate to comment on such matters further.
131 It suffices to say that under the statutory regime, Mr Shafran received by way of the Report the CDA reports which related to the claims upon which he has been unsuccessful, and he had the opportunity to comment on those. He also has the opportunity to seek to have further documents put before the Board under s 137A prior to any review hearing. Whether and how the Board will have regard to further documents are matters for it to assess. If appropriate, the Secretary may also seek to provide additional documents, although they are not a party to the review: Shafran (No 1) at [59].