Thompson v Repatriation Commission

(4) Subsection (3) does not apply in relation to a claim in respect of the … 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: … (b) the kind of disease contracted by the person; … … 196B Functions of Authority (1) This section sets out the functions of the Repatriation Medical Authority. Determination of Statement of Principles (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; … the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; … (14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if: (a) it resulted from an occurrence that happened while the person was rendering that service; or (b) it arose out of, or was attributable to, that service; or (c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey: (i) to a place for the purpose of performing duty; or (ii) away from a place of duty upon having ceased to perform duty; or (d) it was contributed to in a material degree by, or was aggravated by, that service; or … (f) in the case of a factor causing, or contributing to, a discase- it would not have occurred: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service."

The claim before the Commission 7 Pursuant to subs (1), s 120A applied to the claim: see Ogston and Keeley. However, in my opinion, it applied only in the sense that its provisions had further to be examined as to how, if at all, that section affected the claim. Plainly, there are some cases to which s 120A applies but which are quite unaffected by anything in s 120A: subs (4) provides that, if the RMA has neither determined a SoP nor declared that it does not propose to do so, then subs (3) does not apply; further, subs (2) has no application unless the RMA has given notice under s 196G that it intends to carry out an investigation with a view to possibly making a SoP. 8 This is a case in which, because of s 120A(4), s 120A(3) did not apply. It was therefore the duty of the Commission, under s 19(1), to determine the claim and (pursuant to s 18(1)) to satisfy itself of all matters relevant to it. Such matters did not in this case include consideration of any SoP. 9 Under s 19(3) the Commission was obliged: "to determine a claim for a pension as follows: (a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of: (i) the incapacity of a veteran from … war-caused disease … … (b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsection (5)." Pursuant to s 19(5), and in accordance with ss 22 - 25, 27 and 30, to determine the degree of incapacity and the corresponding rate of pension to be paid (unless the degree of incapacity was less than ten per cent) according to the provisions of an approved Guide to Assessment of Veteran's Pensions, known by its acronym "the GARP". 10 There was no overriding or general discretion residing in the Commission to refuse a pension. (There is, by contrast, a power in the Commission to override SoPs in favour of claimant veterans under ss 120A(3)(b) and 180A). Nor is a great degree of subjectivity on the part of the decision-maker likely to be involved. 11 As a matter of principle, it seems to me, the applicant, therefore had a right to a pension subject to the conditions imposed by s 120. Those conditions were: (a) the Commission had to form the opinion that the material before it raised a reasonable hypothesis (in the sense of one that was not contrary to known scientific facts, nor obviously fanciful or untenable); (b) a fact necessary to suggest the hypothesis was not disproved beyond reasonable doubt, and; (c) the truth of another fact in that material, which was inconsistent with the hypothesis, was not proved beyond reasonable doubt: Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571. The Acts Interpretation Act 1901 (Cth) ("AI Act") 12 Section 8 of the AI Act provides: "Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not: … (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or … (e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid; 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 had not been passed." 13 Section 8A provides: "A reference in section 7 or 8 to the repeal of an Act or of a part of an Act includes a reference to: (a) a repeal effected by implication; (b) the abrogation or limitation of the effect of the Act or part; and (c) the exclusion of the application of the Act or part to any person, subject-matter or circumstance." 14 Section 8 has a sufficiently enlarged operation, by virtue of s 8A, that it appears to have been designed to state amply the common law: cf Pearce and Geddes Statutory Interpretation in Australia 4th ed 1996 at 154. So far as is presently relevant, s 8 and s 8A may be taken as providing that, where an Act abrogates or limits the effect of a statutory provision or excludes its application to any person, subject-matter or circumstance, then such abrogation, limitation or exclusion shall not affect any right or privilege accrued under that statutory provision, unless the contrary intention appears. Was the amending Act a "repeal" Act? 15 It seems to me that the Veterans' Affairs (1994-95) Budget Measures Legislation Amendment Act 1994 (Cth) ("the amending Act"), which introduced s 120A and its cognate provisions, became, upon the promulgation of any particular SoP, to the extent of any change effected to the sufficiency of medical evidence, such an abrogatory, limiting or exclusory Act. The amending Act then had the effect that, to the extent of any limiting change made by the SoP, it abrogated or limited the effect of s 120(1) and limited its application to a veteran claiming a pension. In Keeley, Lee and Cooper JJ concluded, at paras 40 - 42: "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.) … 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." (Emphasis added) Kiefel J said at para 75: "It may be accepted that difficulty was encountered in earlier cases because of differing medical and scientific evidence which was able to be produced in different cases, and because of the standard of proof. There may have been doubt as to whether what was put forward was generally accepted in those disciplines. The means by which this was sought to be overcome, by the SoP regime and standard of proof provisions, have the effect of excluding some applications for pension. The first exclusion arises in the event that there is no current scientific or medical knowledge referrable to the condition, from which it may be inferred that there was no general acceptance of any connexion between the condition in question and the circumstances of the service. The second arises when the Statements of Principles require facts to exist, in proof of the connexion, and they are not present in the applicant's claim." (Emphasis added) Did the amending Act "affect" a "right"? 16 The abrogation, limitation or exclusion thus effected by the amending Act also, within the meaning of s 8 of the AI Act, "affected [a] right [or] privilege". As to affectation, the foregoing passages from the judgments in Keeley were dealing precisely with that question. 17 As to whether a right or privilege was involved, I stated my own analysis in para 11 above. Authority confirms this. In Keeley Lee and Cooper JJ said at paras 35 - 38: "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.) 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.) … 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." 18 Their Honours continued, in a passage which includes the extract set out below at para 22, to overrule a submission that s 196B and determinations made under it were merely procedural in character. 19 Kiefel J at para 77 said: "From the time the first SoP came into effect, Mrs Keeley's right to a pension was defined specifically by the requirement that the circumstances of her husband's service involved his exposure in the course of his work to paints and/or lacquers before the clinical onset of multiple myeloma, and then more generally by the requirement that the condition be attributed to his service. Whilst she was required to prove or vindicate that right, it was one which was then held by her. The second SoP required more - that work as a painter had been undertaken for a minimum period or periods and that the condition onset within a certain time from cessation of exposure through that work. Any increase in the bar to the remedy could not in my view be regarded as procedural. It affected a substantive right (see Pedersen v Young, 169). The comparison is as between a provision limiting access to the courts for enforcement of a claim and one which destroys or impairs the basis upon which a remedy will be given (and see McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, 41). The repeal of the first SoP affected the content of Mrs Keeley's right. It follows, in my view, that s 50 AIA operates, subject to the further question whether any intention to the contrary is disclosed by the second SoPs as the repealing provision." (Emphasis added) 20 Accordingly, in discussing Esber v Commonwealth (1992) 174 CLR 430and the question of a "right to a review", her Honour said at para 79: "I have not found it necessary, in applying s 50 AIA, to consider the nature of Mrs Keeley's rights to review as 'rights' which had 'accrued' for the purposes of that provision." 21 Thus in Keeley, Lee and Cooper JJ considered that there was a right (and, it seems to me, one might add "privilege", see s 8(c) AI Act of the relevant kind, constituted by both the initial right to have a pension claim determined according to law and the right to have the Commission's decision reconsidered and determined by the Tribunal. Kiefel J considered that such a right was constituted by what could reasonably be called the right to a pension. With respect, I agree with each of these conclusions and, in any event, I am bound by the decision in point of law of the majority.

Esber's Case 22 As has often been said, the extent of the ramifications of Esber is not easy fully to understand. It seems to me however that, with respect, and notwithstanding Kiefel J's doubts in Keeley,Lee and Cooper JJ accurately deduced its significance for a case such as the present (see para 17 above). So far as I can see, the most guarded view of Esber in this (or any other appellate) Court, was suggested by Black CJ and Sundberg J in Yao v Minister for Immigration (1996) 69 FCR 583. Their Honours said of Esber at 589 - 590: "Neither the majority justices nor Brennan J referred to the distinction drawn in Aboriginal Land Council between discretionary and non-discretionary decisions, though that case was referred to by the majority on another point. In any event, the application for review in Esber was made before the repeal. The majority justices appear to have based their conclusion that the appellant had a right to have the delegate's decision reconsidered and determined by the Tribunal on the fact that he had lodged his application to review the Tribunal's decision before the repeal. In the present case the application for review was made after the deemed repeal. At the date of the deemed repeal, the Tribunal had not made a decision, and thus all the applicant could envisage was that if the decision of the Tribunal went against him, he would be able to review it under the ADJR Act and s 39B. His ability to seek a review depended upon an adverse decision that had not been made and might never be made. Any sort of right to review a decision presupposes the existence of the decision. It might therefore have been thought that the applicant did not have even an inchoate or contingent right to review the decision of the Tribunal. However, Esber has been seen by some members of this Court as establishing that s 8(c) preserves to an applicant the benefit of the whole range of pre-repeal avenues of review so long as the applicant has set the review process in train by making an initial application. Thus the fact that the relevant statute is repealed immediately after the making of an initial application for review will not prevent an applicant availing himself of the whole gamut of review and appeal procedures even though nothing has yet been decided against him. … This approach does not appear to be consistent with Ho Po Sang and the cases that have applied it, and the High Court in Esber relied on that case, amongst others, for the proposition that inchoate and contingent rights can be protected by s 8. For reasons which will become apparent, no concluded view on the point need be expressed in this case. It can be assumed that, unless a contrary intention appears, the applicant's right to review under the ADJR and s 39B is preserved by s 8(c)." (Emphasis added) 23 Even on this view, the result would not appear to be different here: the application for review was made "before the ['repeal']"; there had been actual decisions adverse to the applicant; and, as I understand Director of Public Works v Ho Po Sang [1961] AC 901, since it dealt with a decision-maker possessed of a quite unstructured discretion, it is not inconsistent with the view taken by Lee and Cooper JJ in Keeley. In any case, what was said in Yao was by way of obiter dictum whereas what Lee and Cooper JJ said was not. Whether the amending Act indicated an intention contrary to s 8 of the AI Act 24 In Keeley, Lee and Cooper JJ said at paras 44 - 46: "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. 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). 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.)" 25 The Act is equally "silent about the effect upon an accrued right to have the determination reviewed" when that determination was unaffected by any existing SoP. Counsel for the respondent relied on a statement in the Explanatory Memorandum, tabled in Parliament in connection with the amending legislation: "The effect of new section 120A is to make Statements of Principle made under subsections 196B(2), and determinations of the Commission under subsection 180A(2) binding on determining authorities at all levels in relation to claims to which the "reasonable hypothesis" standard of proof applies. When review bodies are determining pensions they 'stand in the shoes' of the Commission and are governed by the relevant standard of proof provisions contained in section 120 of the Principal Act. Therefore they also will be required to apply the relevant Statements of Principles and determinations when determining whether the standard of proof has been met." However, this statement only shows that the Memorandum is also silent on the relevant point: whether the rules were to be changed against claimants after they had begun a review process.

26 In my view, it is "least likely to work or cause unfairness" (in the language of the majority in Keeley)if an intention is imputed to Parliament that, after a veteran (or his or her dependent) 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 complainant's disadvantage.

27 In Keeley, Kiefel J also said at para 81: "The essence of the appellant's argument was that one might derive from the provisions of the Act that it was intended to present current scientific and medical knowledge as the requirement of evidence of connexion. One may put to one side, for the present, the question whether this contextual setting for the second SoP was sufficient for an intention to be derived from it, as the repealing provision, as the AIA requires. His Honour the primary Judge considered that the underlying view, that a new law is considered to be an improvement on the old, could be applied to virtually all amending or repealing legislation. Further, the need for consistency of decisions of lay tribunals is equally met by applying the SoP existing at the time of the primary decision. I respectfully agree." 28 The desirability of consistency between decisions of lay tribunals would not, it must be conceded, be as well dealt with by the interpretation of ss 120 and 120A that I propose as by that contended for by the respondent. However, it is in my opinion a mistake to overvalue this aim. The legislature has eschewed any effort to achieve complete consistency: nothing in the Act would authorise, for instance, the subsequent reconsideration of a veteran's entitlement to a pension which was upheld by the Commission, because of the promulgation, even after the Commission's decision, of a SoP that would undermine such entitlement. Hence, even after a SoP is in existence dealing with their disease, some veterans whose entitlement was determined after the enactment of provision for the SoP scheme, are likely to be receiving a pension that would not be concordant with that SoP. Nor did the Act provide for any reconsideration of causation issues in the case of persons who had gained their entitlement to a pension before the SoP regime. Further, as Lee and Cooper JJ illustrated in Keeley, it is unlikely that all claims would ever be susceptible of determination by reference to SoPs. (Other classes of cases than those referred to by their Honours can readily enough be foreseen). Hence, the legislative policy appears to be one of gradually moving to "a more equitable and consistent system of determining claims" (emphasis added), as described in the relevant Explanatory Memorandum, rather than to an entirely equitable and consistent system. The solution I favour is consistent with such a policy. Ogston 29 It was submitted by the respondent that this case has more similarities with Ogston than Keeley and that Ogston controls the result here. As indicated, Ogston dealt with the situation where a claim is made and a SoP is determined after the claim is made but before the determination of it, in the first instance, by the Commission. The central point of the judgment in Ogston, confirmed in Keeley, was that the provisions of s 120A(2) made it clear that, where a SoP is so determined, the Commission is bound to apply it. In other words, a contrary intention is shown which would oust the presumptive AI Act rule against affectation of existing rights. 30 Nothing in my conclusion challenges that point which, with respect, I too consider to be inescapably correct. However, the facts here are different from those in Ogston. There are, nevertheless, other statements in Ogston which betoken an analysis of the effects of the legislation that seems to be at odds, in some respects, with the analyses made by Lee and Cooper JJ and by Kiefel J in Keeley. To the extent that there is any such inconsistency, I respectfully prefer the analyses offered in Keeley: they are argued in more detail, they amount to entirely necessary reasons for decision and, because they involve the question of the "right" to a review, they have necessarily examined the legislation from broader perspectives than was necessary for the decision in Ogston. They also are supported broadly by the approach of Heerey J at first instance in Keeley in what I regard as, generally, a powerful judgment. Finally, they simply appear to me to be, with respect, more cogent than what was essayed in Ogston. 31 To the extent that there is any lack of harmony between the practical positions resulting from the decision in Ogston and my present decision, it can be seen as brought about by the necessity to regard s 120A as displacing, for first instance determination by the Commission, the salutary general rule against construing statutory changes so as to affect existing rights. In a statutory scheme falling well short of overall consistency, manifestly intended to be generous to war veterans and therefore entitling them to have the statute beneficially construed, a mere failure to arrive at entirely harmonious outcomes is of markedly less importance than it otherwise might be. Disposition 32 For these reasons the application is allowed, the matter is to be remitted to the Administrative Appeals Tribunal for further consideration according to law and the respondent is to pay the applicant's costs. I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Counsel for the Respondent: D Ryan with C Champion

Solicitor for the Respondent: Australian Government Solicitor