Tracy v Repatriation Commission

(a) You suffer from Chronic Obstructive Airways Disease; (b) You now rely on medical oxygen 24 hours a day; (c) You use medical oxygen continuously when you are at rest; (d) You cannot perform any activity without medical oxygen; (e) All your 'movements are slow' and in your 'general movements' you 'avoid carrying and bending'; (f) You have difficulties entering and getting out of a car; (g) The use of medical oxygen does not overcome your movement limitation, however the use of medical oxygen enables you to 'mobilise short distances'.

(a) You have not had any limbs amputated; (b) Your legs are not permanently and wholly useless; and (c) You do not suffer from paraplegia.

10. Given these findings, I must also find that the criteria set out in paragraphs 105(5)(a), (b) and (c) do not apply in your circumstances.

11. In making a decision on your application under the Scheme, I have considered whether your war-caused incapacity is similar in effect or severity to an amputation described in paragraphs 105(5)(a) or (b) of the Act." The delegate then made some comments about questions of statutory construction, and declined the claim as not falling within s 105(5)(d). 5 The reference in the delegate's reasons to "Chronic Obstructive Airways Disease" is a reference to the diagnosis of Professor Harper, an Occupational Physician, whose report of 19 October 1998 (before further deterioration suffered by the applicant) described him as "markedly disabled due to chronic obstructive airways disease", referred to "the possibility of deterioration", and stated: "Mr Tracy's disability exceeds that of an individual with a double amputation. A double amputee is capable of physical exertion and with the aid of a wheelchair is capable of pursuing activities of daily living for which Mr Tracy is incapacitated. In comparing Mr Tracy unaided by oxygen with a double amputee without aids or prostheses I would definitely consider Mr Tracy to be more severely disabled. … Mr Tracy when aided by oxygen is considerably more disabled than a double amputee who is assisted by prostheses and other aids." The evidence before the delegate (though not referred to by him) also included the report of Dr M K Tandon, thoracic physician, who specified the nature of the chronic obstructive airways disease as "severe pulmonary emphysema requiring continuous oxygen and even with the aid of continuous oxygen he cannot walk more than fifty metres". That was the position at 10 August 1998. The doctor added that "lung function results show that the severe airflow obstruction resulting from pulmonary emphysema is a permanent one", and that there was "every possibility that … the lung function is likely to deteriorate". Even at 10 August 1998, Dr Tandon expressed the view: "With regard to the severity of the disability, comparing his lung condition Mr Tracy is as much [or] more disabled than a person who has had a double amputation because a person with a double amputation may be able to mobilise himself on a wheelchair. Similar to a double amputee Mr Tracy can mobilise short distances with the help of oxygen." 6 It was not suggested in the reasons of the delegate, in the material placed before us as the evidence on which his decision was made, or in argument, that there was any medical evidence questioning in any way the concurrent views of these eminent medical specialists. In such a situation, as Brennan J pointed out in Bushell v Repatriation Commission (1992) 175 CLR 408 at 430, "the decision-maker is bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner". Nor was there any dispute about the practical consequence that Mr Tracy, who is now almost 75 years of age, had to use oxygen "continuously", so that: "In order to enjoy any recreational activity away from my home, I need to rely on taxis, or private transport provided with the assistance of friends, in order to carry my portable oxygen bottle(s) upon which I am reliant, or my oxygen concentrator if I am away for more than a few hours." Indeed, the delegate himself, in making what he described as "preliminary findings" announced barely two weeks before his decision, referred to the "circumstances, the evidence and other material relating to [the applicant's] incapacity", and commented: "as limiting as the incapacity from [his] Chronic Obstructive Airways Disease may be …". Both then and in the reasons finally given, the delegate rejected the claim on legal grounds which, in his view, meant that "no provision [was made in s 105(5)] for veterans who were incapable of movement due to many other conditions [than amputations or complete paraplegia] such as cardio-vascular or respiratory insufficiency" (emphasis added). 7 It is necessary to say something about the delegate's legal point. Lee J, in Tracy v Repatriation Commission (1999) 57 ALD 403 had ordered (at 410) the setting aside of the earlier decision and that "the matter [be] returned to the commission for determination according to law". Although the ground of the orders was a particularly serious failure to comply with the requirement laid down by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (at 45) that "the decision is to be made on the basis of the most current material available to the decision-maker", Lee J, for obvious reasons, went on to expound the law which would have to be applied when the matter came to be determined. Had the Commission wished to challenge that exposition by appeal, it could have done so. There is clear authority that when a judge remits a matter for decision according to law, stating what that law is, an appeal does lie on the question whether the law to be applied has been correctly stated: Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 483, 491, 499; Richardson v Commissioner of Taxation (1997) 80 FCR 58 at 76; Secretary, Department of Social Security v Lowe (1999) 92 FCR 26 at 34. What it was not open to the Commission, or to a delegate, to do, consistently with the Court's role as interpreter of the legislation and the Commission's role as faithful administrator of it according to law, was to let the decision stand unappealed but disregard it. This Court respects the administrator's competence in the area of the ascertainment of the facts in all cases where the Court exercises the jurisdiction conferred upon it to carry out the judicial review of decisions; it is the administrator's duty to respect the Court's position as interpreter and guardian of the relevant law. The strong remarks of Deane J in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 533-534, though uttered in a different context, are plainly relevant to the present situation, and should be heeded by those concerned in the implementation of the provisions of the Veterans' Entitlements Act. 8 The problem of construction is not difficult, for Parliament has chosen clear and simple language by which to extend somewhat the reach of s 105(5). It is true that the words in paragraph (d) - "a condition", "similar", "effect", and "severity" - are all capable of referring to a broad range of things. This emphasises that a narrow construction cannot have been intended. But the objective of "the provision of motor vehicles" pursuant to "the Vehicle Assistance Scheme" referred to in subs (1) throws light on the kind of "condition" and "effect" that are in question. Paragraph (d) requires a comparison to be made between the condition the subject of a claim and the conditions that may result from the amputations referred to in paragraphs (a) and (b), in order to ascertain whether the effects on the reasonable ability of the veteran to take advantage of public transport, or any effects producing a reasonable requirement of personal transport, are similar. It is the impact on the ability of a person to get about which is the "effect" in view. 9 The provision of the alternative of "severity" is in itself an indication that Parliament did not intend too narrow an ambit. Even if the "effect" of a condition is not restrictive enough to bring it within the range of the effects of the specified amputations (itself not as narrow a concept as an unthinking perusal of the paragraph might suggest, since the same amputation will have different effects for different people), the "severity" of the condition may be sufficient. Purely by way of example, and without attempting to be exhaustive in a matter which Parliament chose to leave to a general statement, there may be cases where the effect of a condition on a veteran does not destroy mobility to an extent similar to the destruction of mobility produced by the specified amputations, but the retained mobility is at the cost of significant pain. 10 There is no justification in the language of s 105 for the view taken by the delegate that paragraph (d) "is only intended to cover the case where there has been gross war-caused damage or disease to the nervous, muscular or skeletal structure of the limbs specified in paragraph 105(5)(a) or (b) such that the limbs have been rendered permanently and wholly useless." Many persons who have suffered amputations falling precisely within paragraph (a) or paragraph (b) could not be described in this way; their truncated limbs are not wholly useless. In this particular case, there was evidence, to which the delegate made no reference at all, both from Professor Harper, as an occupational physician, and from a Mr Glass, Executive Director of the Civilian Maimed and Limbless Association of Western Australia, to the contrary of such an idea. Even more importantly, there is nothing in s 105 to limit paragraph (d), when it uses the broad expression "a condition", to the narrow category of conditions involving "the nervous, muscular or skeletal structure of the limbs specified in paragraph 105(5)(a) or (b)". Nor is there any compelling reason to make some implication limiting the language Parliament actually used in this way. 11 Dixon CJ, in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, referred to "the context, the general purpose and policy of a provision and its consistency and fairness" as guides to its meaning. In the context of paragraph (d), it is impossible to see any general purpose and policy or any consistency and fairness in the restrictive interpretation proposed by the delegate. If paragraph (d) is confined in that way, though expressed in such general language, it cannot even provide relief from the stringency of paragraph (c) in a case of partial paraplegia resulting in the very same loss of use which paragraph (c) describes. The point is that paragraph (c) requires this loss to result from "complete paraplegia". Could it be imagined that the more general provision in paragraph (d) was not intended to cover such a case, though neither a condition of paraplegia, nor indeed of quadriplegia, would be caused by "damage or disease to the nervous, muscular or skeletal structure of the limbs specified in paragraph [(a) or (b)]"? Paraplegia and quadriplegia, of course, are the result of nervous damage at different levels of the spinal cord, not the limbs. The consistency and fairness to which Dixon CJ referred would surely demand that a partial paraplegia producing the very same effect which is described in paragraph (c) should receive the same eligibility. A construction of paragraph (d) in accordance with its general language would achieve that result, which the delegate's construction would at least render doubtful. 12 The delegate referred to the history of the provision as justifying his view of its meaning, but he did not explain in what way it did so. In our opinion, the history provides no support for any such interpretation. However, before making some brief reference to that history, we should point out that the intentions of ministers who introduce legislation, which may be revealed in reports, explanatory memoranda, second reading speeches and the like, cannot control the clear meaning of the legislation actually passed by Parliament. A particularly forceful illustration of this point is to be found in Re Bolton; Ex parte Beane at 518, where a statement described as unambiguous, though made by the relevant minister and certainly forming part of the historical background of the legislation, was denied effect by the High Court. Mason CJ, Wilson and Dawson JJ said: "The words of a Minister must not be substituted for the text of the law. … The function of the Court is to give effect to the will of Parliament as expressed in the law." This passage was cited in the joint judgment of Brennan, Dawson, Toohey, Gaudron and McHugh JJ in Minister for Immigration and Ethnic Affairs v Tang Jia Xin (1994) 125 ALR 203 at 207, where they held: "However, a minister's second reading speech, while available as a guide to interpretation, cannot be determinative of or substituted for the text of the legislation." Indeed, as McHugh J pointed out in Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 109, the function of the Court is not to legislate, but to construe: "When the express words of a legislative provision are reasonably capable of only one construction and neither the purpose of the provision nor any other provision in the legislation throws doubt on that construction, a court cannot ignore it and substitute a different construction because it furthers the objects of the legislation." 13 But is there any reason to think the construction we have given to paragraph (d) is contrary to the objects of the legislation? We cannot see any such indication in the context, which plainly reveals a provision intended to extend the benefits of paragraphs (a), (b) and (c) to a wider range of conditions, not confined by the very specific definitions contained in the earlier paragraphs. It is to be remembered that a provision "intended to operate by way of extension of the benefits" conferred by remedial legislation, and in particular by this legislation, should be construed generously: Repatriation Commission v Hawkins (1993) 117 ALR 225 at 231, and the authorities there cited. 14 We turn to the historical context. When an exposure draft of the Veterans' Entitlements Bill 1985 was laid before the Senate, there were made available Explanatory Notes prepared by the Department of Veterans' Affairs. The Note on "Clause 105: Vehicle assistance scheme" stated: "This clause will confer legislative authority for the Vehicle Assistance Scheme, which has been operated by the Repatriation Commission since 1950. The Scheme will supply vehicles to veterans who have had both legs amputated above the knee, or one leg amputated above the knee plus two other amputations at or above the wrist or ankle, or who are suffering complete paraplegia resulting in the total loss of the use of both legs. The Scheme was established to provide transport to people who cannot use public transport or who are subject to danger in using public transport." The reference to the intended recipients of the benefit as persons "who cannot use public transport" because of their incapacity was echoed in the Explanatory Memorandum circulated by the Minister when the Bill which became the Act was placed before the Parliament. The origin of the Scheme in 1950 is confirmed by the report of the Independent Enquiry into the Repatriation System made by Toose J, a judge of the Supreme Court of New South Wales, in June 1975. Toose J wrote in volume 1 at 373: "The Commission is authorised by a decision of Cabinet in 1950 to issue, in appropriate circumstances, a gift motor vehicle and to provide an allowance towards the cost of registration, insurance, maintenance and running of that vehicle." He added (at 374): "In June 1950, a decision of Cabinet endorsed in principle a recommendation of the Minister supporting the issue of motor cars to members who as a result of war service suffered amputation of both legs above the knees or paraplegia; and to others who were unable to use the public transport or had great difficulty in doing so. Following receipt of an interdepartmental report, Cabinet approved the issue of gift cars to members who were suffering from amputation of both legs above the knees or paraplegia. … Since 1950, the question of extending eligibility to include other categories has been raised on several occasions. In 1968, the Treasurer endorsed a Ministerial recommendation for admission to benefit of cases involving certain triple amputations. The change had been sought largely because of the high percentage of serious multiple wounds suffered by members in Vietnam." Toose J discussed changes which were proposed in relation to the provision of benefits to handicapped persons generally, and made recommendations (at 377), including the following: "(2) The provision of gift cars should be extended to members suffering from a service-related disability, other than paraplegia, which totally and permanently prevents the use of both legs. … (6) The eligibility criteria for gift car benefits and the extent of those benefits should be examined from time to time in the light of community attitudes and standards in regard to either the provision of vehicles for disabled civilians or the provision of compensation at a sufficiently high level to enable them to purchase motor vehicles." 15 These recommendations made by Toose J did not produce any immediate change in the Act. But when the exposure draft of the Veterans' Entitlements Bill 1985 was tabled in the Senate by the Minister, sub-clause (5) of clause 105 contained paragraphs (a), (b) and (c) in the same terms as those of the present paragraphs (a), (b) and (c) of s 105(5); however, paragraph (d) read: "Partial paraplegia above the ankle or at or above the wrist, to such an extent as, in the opinion of the Commission, to justify the veteran being treated as eligible to participate in the Vehicle Assistance Scheme." A provision in these terms would have posed problems of construction, not least because the idea of "partial paraplegia … at or above the wrist" would seem to involve a medical nonsense. However, if it had been desired to retain the initial concept of extending the reach of paragraph (c) from complete paraplegia to severe cases of partial paraplegia, it would have been easy enough to have had the paragraph redrafted by someone with some understanding of the medicine involved. That was not done. Instead, the final bill which came before Parliament contained a paragraph (d) in the same terms as those in which the paragraph was enacted. The Explanatory Memorandum referred to the clause which became s 105 in terms to which we have already alluded: "The Scheme will enable the provision of motor vehicles to veterans who have suffered certain incapacities as a result of war service and who are unable to use public transport because of their incapacity." The Second Reading Speech of the Minister (Senate Hansard of 13 November 1985, page 2104) paid tribute to "the valuable assistance" of Toose J, but made no specific reference to the relevant change in the exposure draft. In the absence of such a reference, it is to be noted that the provision adopted, understood as we have understood it, is not so much a departure from as a return to Toose J's recommendation (2) of a provision not narrowly linked to a cause of a disability, but turning on its effect. 16 In our opinion, the history of the provision shows that it has undergone a very gradual widening up to the time of the presentation to Parliament of the final Bill which became the Veterans' Entitlements Act. As enacted, the provision was further widened by the insertion of general language, no longer tied either to specified categories of amputation or to complete paraplegia. This history simply provides no warrant for reading into the general provision a specific limitation, or specific limitations, not suggested by the language of the section. It would require a strong reason to enable the Court to do that, in the face of the established principle of construction requiring an extension of a benefit under beneficial legislation to be construed generously, though of course not more generously than its terms allow. 17 It follows that the application succeeds, the decision being one that involved an error of law. 18 The final question is as to the nature of the order the Court should make. By s 16(1) of the Administrative Decisions (Judicial Review) Act 1977, the Court is empowered, in its discretion, to make (s 16(1)(b)) "an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit" and to make (s 16(1)(c)) "an order declaring the rights of the parties in respect of any matter to which the decision relates" and to make (s 16(1)(d)) "an order directing any of the parties to do … any act or thing the doing … of which the Court considers necessary to do justice between the parties." Where the Court sets aside an administrative decision on the ground that it involved an error of law, or on one of the other grounds set out in s 5(1) of the Administrative Decisions (Judicial Review) Act, the usual consequence is the making of an order remitting the matter to the administrator for decision according to law. However, there are cases where it is apparent that no further question of fact remains to be decided for the purpose of the determination of a particular issue. In such a case, it may be appropriate for the Court to exercise its power under s 16(1)(b) or (d) to give an appropriate direction, or its power under s 16(1)(c) to make an order declaring the rights of the parties in respect of some matter to which the decision relates. In the present case, as we have said, there was no dispute about the facts, but only about the construction of s 105. The accepted facts fall squarely within s 105(5)(d), as we have construed that provision. This being so, we have power to give an appropriate direction when returning the matter to the Commission. In a matter of this kind, the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at 562-563 shows that the insertion in paragraph (d) of the words "in the opinion of the Commission" does not prevent the giving of a direction that the condition of the paragraph has been satisfied: for those words do not import a discretion as to acceptance of eligibility, but a duty to determine the question. The situation is distinguishable from that discussed in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 578-579. In Park Oh Ho v The Minister of State for Immigration and Ethnic Affairs (1989) 167 CLR 637 at 644-645, Mason CJ, Deane, Toohey, Gaudron and McHugh JJ said: "The legislative purpose to be discerned in the conferral by s.16(1)(c) and (d) of power to grant declaratory and injunctive relief in addition to the power to quash or set aside (with effect from a specified date) an impugned decision is clear. It is to allow flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will achieve what is 'necessary to do justice between the parties' (s.16(1)(d)) and which will avoid unnecessary re-litigation between the parties of those issues. The scope of the powers to make orders which the subsection confers should not, in the context of that legislative purpose, be constricted by undue technicality. …. [I]t is relevant to mention that both declaratory and injunctive orders, as distinct from an order for damages, can readily be seen as appropriate remedies of judicial 'review' of administrative decisions and actions." See also Johns v Australian Securities Commission (1993) 178 CLR 408 at 433-434 and 458-459. In the passage from her judgment at 459, Gaudron J said that the power in s 16(1)(d) to give directions "is to be construed widely". The reasons her Honour gave apply equally to the power to give directions in paragraph (b) and the power to declare rights in paragraph (c). 19 Some reference should be made to circumstances which render it desirable, as a matter of discretion, that the Court should exercise its powers in the present case. The applicant's condition has deteriorated in the period since his application was first made to the Commission, although the medical evidence was given on the basis that he would still be able to obtain the benefit of the Vehicle Assistance Scheme if a decision in his favour were made. There has already been very great delay, considering the nature and circumstances of the matter, which may have irrevocably deprived Mr Tracy of the opportunity, over a substantial period, to enjoy an entitlement. For him, time is not relative. There have already been three applications to the Court, the first occasioned by unexplained departmental delay, the second the result of a delegate's failure to consider at all the most recent material placed before the Commission, and the third occasioned by a delegate's failure to follow the unappealed decision of Lee J. It is clearly very desirable that a proper decision be now made with the least possible delay. 20 The Court orders that the decision under review be set aside; and that the matter be remitted to the Repatriation Commission with a direction and declaration that the applicant is entitled to have it dealt with on the basis that he is eligible to participate in the Vehicle Assistance Scheme pursuant to s 105(5)(d) of the Veterans' Entitlements Act 1986 and otherwise according to law. The Commission is ordered to pay the applicant's costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Applicant: George Turnbull, Director of Legal Aid WA

Solicitor for the Respondent: Australian Government Solicitor