VIETNAM VETERANS ASSOCIATION OF AUSTRALIA NEW SOUTH WALES BRANCH INC. v. SPECIALIST MEDICAL REVIEW COUNCIL & ORS [1999] NSWSC 403

Previous litigation 3 The matters come before the Supreme Court in consequence of the unsuccessful attempt by the plaintiff to have the questions raised determined in the Federal Court of Australia. That court upheld an objection to competency brought by the Commission. In Vietnam Veterans' Affairs Association of Australia New South Wales Branch Inc. v. Cohen & Ors (1996) 70 FCR 419, Tamberlin, J. held that the Administrative Divisions (Judicial Review) Act 1977 (Cth) did not extend to the declarations here in issue as they were legislative and not administrative in nature so that the Federal Court had no jurisdiction under that Act to review them (p.431E). His Honour further held that jurisdiction under s.39B of the Judiciary Act was unavailable in the Federal Court as neither the RMA nor the SMRC, as bodies corporate, were within the description "an officer of the Commonwealth" and the relevant acts and decisions were not those of the individuals constituting those bodies (at 432-433). Nor could the accrued jurisdiction support dealing with the matter in that court (434A). The parties have neither here nor elsewhere sought to challenge that decision nor are his Honour's reasons challenged. Jurisdiction 4 Before me, both parties submitted that the Supreme Court had jurisdiction. I set out their various jurisdictional submissions:- Plaintiff's jurisdictional submissions "1. The court has the jurisdiction of the High Court under s.75(iii) of The Constitution (suits against the Commonwealth) invested by s.39(2) of the Judiciary Act 1903 (Cth). Alternatively, it is exercising its inherent jurisdiction over corporations established by Commonwealth law. As a result of Tamberlin, J's judgment, it is not divested by s.9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) nor is it a 'special federal matter' under s.6 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). 2. The Administrative Law Division is the proper division under Schedule H part 2 item 3: 'applications in respect of decisions of a public body under any Commonwealth Act'." Defendants' jurisdictional submissions "The jurisdiction of the Supreme Court derives from s39(2) of the Judiciary Act 1903 (Cth). The inherent (State) jurisdiction of the Supreme Court has been removed by s.39(1) of the Judiciary Act and re-invested as federal jurisdiction. Each of the defendants may be described as a person being sued on behalf of the Commonwealth within s.75(iii) of the Constitution see s.179; s.196A; s.196V - Kirkland v. Repatriation Commission (1923) 32 CLR. Section 9 of the ADJR Act does not affect the Supreme Court's jurisdiction because the decisions of the SMRC are not decisions to which s.9 of the ADJR Act applies nor are they decisions given by an officer of the Commonwealth. Nor does s.6 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) require that this matter be transferred to the Federal Court. This matter is not a 'special federal matter' within s.3(1) of the jurisdiction of Court (Cross-Vesting) Act 1987 (Cth). Although the matter is now within the original jurisdiction of the Federal Court by virtue of s.39B(1A) of the Judiciary Act 1903 (Cth), it is a matter in respect of which the Supreme Court, apart from the Cross-Vesting Act, has jurisdiction." 5 Although there is some difference between the submissions and some of the matters asserted are debatable, it is not necessary that such be explored. The submissions are to the same general effect. I accept and hold that I have jurisdiction. Standing and discretion 6 Both active parties pressed upon me submissions that it was appropriate that the questions at issue be determined. Those submissions are put on the basis of the public interest. Each would appear to have the appropriate standing to raise these matters as each has a sufficient concern with the operation of the VE Act. Indeed as already noted, the Commission is generally charged with the administration of that Act and in that sense may be regarded in that respect as an emanation of the Commonwealth Government. The RMA and SMRC have plainly a deep concern in having the matter of the litigation determined. 7 The plaintiff is recognised in respect of matters under the VE Act and has been recognised in the Federal Court, as an appropriate representative of a substantial body of those persons to whom the benefits of the Act extend. The parties answer the tests for standing or sufficient interest laid down by the High Court in Shop Distributive and Allied Employees Association v. Minister for Industrial Affairs (SA) (1995) 183 CLR 552 and in Batemans Bay Local Aboriginal Land Council & Anor v. The Aboriginal Community Benefit Fund Pty. Limited & Anor (1998) HCA 49 (6 August 1998). 8 The parties urged upon me that if error of law should be found as to the critical test for the SMRC function in making the declarations in question, a declaration should be made. I have regard particularly to ss.63 and 75 of the Supreme Court Act. In my view there is not only the presence of a substantial element of public interest in the litigation but also the requisite extent of particular and public interest in the outcome: McGarrigle v. Public Service Board (1979) 1 NSWLR 292. It is plainly a matter of public importance that the questions thrown up by this litigation be decided. This court is a convenient forum. The relevant decisions affect the rights of persons in New South Wales. The parties have no recourse to the Federal Court to determine these questions directly. The proceedings were launched in 1996 and have been awaiting a hearing here for a considerable time. Proceedings elsewhere would be considerably delayed. To recommence the proceedings would be greatly inconvenient. Entitlement to statutory rights conferred upon ex-servicemen and their dependants by the VE Act is being determined on the basis of the challenged SoPs. Even if the questions here thrown up might be determined elsewhere by a collateral challenge, a determination should not have to await a further appropriate occasion. The materials 9 The summonses have been supported by evidence in affidavits by Mr. Timothy Hocart McCombe, President of the plaintiff and various annexures and exhibits. The documentary material includes the relevant declarations and reasons for decisions of the SMRC, the relevant SoPs and communications, particularly between the plaintiff and the SMRC, initiating the review process which resulted in the declarations. There was also an affidavit by Mr. Douglas, the registrar of SMRC. 10 I have read this evidence. In addition, I was provided with material, which I have considered, to be used as extraneous aids to the construction of the relevant provisions including extracts from recognised dictionaries (including a dictionary of epidemiology), an article by Sir Austin Bradford Hill, CBE, DSC, FRCP (Hons.) FRS (Professor Emeritus of Medical Statistics, University of London) to illustrate the principles of epidemiology with respect to causation, the relevant explanatory memorandum and extracts from Hansard including what was said in both Houses of Parliament on the Second Reading of the Bill and in the House or Representatives on the amendment. There was no relevant objection or challenge to any of this evidence or material. Indeed, I was urged by all to have regard to it in the light of earlier legislation and the body of case law on it as setting the context for the consideration of the legislative scheme and language (in accord with the modern purposive approach to interpretation: CIC Insurance Limited v. Bankstown Football Club Limited (1997) 187 CLR 384 at 408.) The Statements of Principles (SoPs) 11 In proceedings No. 30139 of 1996, the evidence disclosed that on 21 June 1995, RMA determined SoP Nos. 245 and 246 of 1995 concerning motor neuron disease. No. 245 relevantly reads:- "1. Being of the view that there is sound medical-scientific evidence that indicates that motor neuron disease and death from motor neuron disease can be related to operational service rendered by veterans, peacekeeping service rendered by members of the Peacekeeping Forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlement Act 1986 (the Act), that the factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting motor neuron disease or death from motor neuron disease with the circumstances of that service, is:- (a) inability to obtain appropriate clinical management for motor neuron disease. 2. Subject to clause 3 (below) the factor set out in paragraph 1(a) must be related to any service rendered by a person. 3. The factor set out in paragraph 1(a) applies only where:- (a) the person's motor neuron disease was contracted before a period, or part of a period, of service to which the factor is related; and (b) the relationship suggested between the motor neuron disease and the particular service of a person is a relationship set out in paragraph 8(1)(3), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act. …" (emphasis added) 12 SoP No. 246 differs materially in clause 1 only, which reads:- "1. Being of the view that on the sound medical-scientific evidence available to the Repatriation Medical Authority, it is more probable than not that motor neuron disease and death from motor neuron disease can be related to eligible war service (other than operational service) rendered by veterans and defence service (other than hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(3) of the Veteran's Entitlements Act 1986 (the Act), that the factor that must exist before it can be said that, on the balance of probabilities, motor neuron disease or death from motor neuron disease is connected with the circumstances of that service, is:- (a) inability to obtain appropriate clinical management for motor neuron disease. …" (emphasis added) 13 SoP No. 245 relates to operational service, peacekeeping service and hazardous service. SoP No. 246 relates to eligible war service and defence service. The difference between the way in which the relevant service is related to the disease (see the emphasised passages above) by reason of the sound medical-scientific evidence referred to, is explained by the way in which the provisions of the VE Act differently treat the consequences of disabilities and the relationship to the different types of service. A similar difference occurs with SoPs 95 and 96. 14 The relevant portions of SoP 95 read:- "1. Being of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the prostate and death from malignant neoplasm of the prostate can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under s.196B(2) of the Veterans' Entitlements Act 1986, that the facts that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of that services, are:- (a) being exposed to herbicides in Vietnam; or (b) inability to obtain appropriate clinical management for the malignant neoplasm of the prostate. 2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(b) must be related to any service rendered by a person. 3. The factor set out in paragraph 1(b) applies only where:- (a) the person's malignant neoplasm of the prostate was contracted before a period, or part of a period, of service to which the factor is related; and (b) the relationship suggested between the malignant neoplasm of the prostate and the particular service of a person is a relationship set out in paragraph 8(1)(3), 9(1)(3), 70(5)(d) or 70(5A)(d) of the Act. …" 15 Similarly, the relevant portions of SoP 96 are:- "Being of the view that, on the sound medical-scientific evidence available to the Repatriation Medical Authority, it is more probable than not that malignant neoplasm of the prostate and death from malignant neoplasm of the prostate can be related to eligible war service (other than operational service) rendered by veterans and defence service (other than hazardous service) rendered by members of the Forces, the Repatriation Medical Authority determines, under s.196B(3) of the Veterans' Entitlements Act 1986, that the factor that must exist before it can be said that, on the balance of probabilities, malignant neoplasm of the prostate or death from malignant neoplasm of the prostate is connected with the circumstances of that service, is:- (a) inability to obtain appropriate clinical management for malignant neoplasm of the prostate. 2. Subject to clause 3 (below) the factor set out in paragraph 1(a) must be related to any service rendered by a person. 3. The factor set out in paragraph 1(a) applies only where:- (a) the person's malignant neoplasm of the prostate was contracted before a period, or part of a period, of service to which the factor is related; and (b) the relationship suggested between the malignant neoplasm of the prostate and the particular service of a person is a relationship set out in paragraph 8(1)(3), 9(1)(e), or 70(5)(d) of the Act. …" The review process and the declarations 16 By letter of 29 August 1995, a statutory review pursuant to s.196Y of the VE Act was initiated in relation to SoP 245:- "The Vietnam Veterans Association, NSW Branch, wish to appeal to the Specialist Medical Review Council the decision of the Repatriation Medical Authority not to (sic) included in the statement of principal number 245 of 1995; the use of solvents as a cause of Motor Neuron Disease. We wish the appeal to cover both the Reasonable Hypothesis and Reasonable Satisfaction onus of proof." 17 Following that request by the plaintiff, a review was commenced by the SMRC. The plaintiff was notified by letter from Professor Alex Cohen, the convener of the SMRC that the RMA would be asked to forward to the SMRC "all the materials that they considered when making their decisions". The letter continued:- "If you have additional material which you believe the Repatriation Medical Authority did not consider, you may provide it. However, the Specialist Medical Review Council is restricted in its review to consider only the material available to the Repatriation Medical Authority at the time. Any new material would be forwarded to the Repatriation Medical Authority after the conduct of the review. The Authority would be asked to consider whether or not such additional material would warrant further investigation or change in the current Statements of Principles." 18 On 26 October 1996, the SMRC made the relevant declarations the operative portion of which reads:- "1. The Specialist Medical Review Council ('the Review Council') established pursuant to Part X1B of the Veterans' Entitlements Act 1986 ('the Act'), having reviewed the contents of the Statements of Principles numbered 245 and 246 of the 1995 (sic) made under s.196B of the Act by the Repatriation Medical Authority ('RMA') established under Part X1A of the Act, HEREBY DECLARES (a) that it is of the view that the sound medical-scientific evidence available to the RMA at the time it made the Statement of Principles No. 245 of 1995 is insufficient to justify the making of an amendment to that Statement of Principles; (b) that it is of the view that the sound medical-scientific evidence available to the RMA at the time it made the Statement of Principles No. 246 of 1995 is insufficient to justify the making of an amendment to that Statement of Principles; (c) that it recommends however that the RMA further investigate exposure to solvents as a possible factor for the purposes of subsections 196B(2) and 196B(3) of the Act, having regard to the reasons for decision of the Review Council in its review of the above Statements of Principles, in the information that was available to the RMA when it made those Statements together with any further information which has since become available to the RMA and which may become available between the date of this Declaration and the completion by the RMA of its investigation." 19 The effect of paragraphs (a) and (b) of this declaration is that the SMRC rejected the submission that exposure to solvents should be included in SoPs 245 and 246 on the state of the evidence as existing before the RMA. 20 It had treated the request as initiating the statutory process of review applying to both SoPs on the topic (probably because of the references to both standards of proof, which appears to attempt to reflect the difference between 245 and 246 particularly noted earlier). It recited that it had obtained all the available information from the RMA, received written submissions and heard oral submissions in particular on the applicable criteria for assessing causation currently applied in the field of epidemiology from representatives of the plaintiff. 21 By a separate document it provided extensive reasons for its conclusions. In particular, it set out the following in paragraphs 37-49 of the reasons:- "37. Statements of Principles provide, exclusively, the medical-scientific element within a suggested chain of causation in a claim for pension for an injury, disease or death. If the claimed injury, disease or death is of a kind that is the subject of a Statement of Principles, then, where s.120(3) applies, a hypothesis will be reasonable for the purposes of that subsection only if the Statement of Principles upholds that hypothesis. 38. Similarly, where s.120(4) applies instead, the Commission can be reasonably satisfied that the injury, disease or death was war-caused or defence-caused only if the Statement of Principles relating to that kind of injury, disease or death upholds the contention that the injury, disease or death, is, on the balance of probabilities, connected with the person's service. 39. It is important to note that Statements of Principles made under s.196B(2) do not, of themselves, define a 'reasonable hypothesis'. A 'reasonable hypothesis' can only ever arise in the context of a claim for pension and must relate to the connection between the particular circumstances of the particular person's service and his or her injury, disease or death. 40. Neither the Repatriation Medical Authority nor the Specialist Medical Review Council is concerned with the determination of the cause of injury, disease or death of a particular individual. That evaluation must be made subsequently in assessing the relevance of a Statement of Principles to the case of a particular claimant. 41. However, one or more factors contained within a Statement of Principles must provide support for the medical-scientific link that forms part of a 'reasonable hypothesis' when the Statement of Principles is relied upon to uphold a suggested chain of causation linking the particular circumstances of a veteran's service to his or her injury, disease or death. Therefore, the factors that are to be contained in a s.196B(2) Statement of Principles must be such that it can be said, in relation to every person for whom a factor is relevant and who has suffered or contracted, or who has dies from, the relevant kind of injury or disease, that a 'reasonable hypothesis' has been raised connecting that person's injury, disease or death with the circumstances of his or her service. 42. The inclusion of a particular factor in a Statement of Principles determined under s.196B(2) means that the Repatriation Medical Authority is satisfied that there is sound medical-scientific evidence that indicates that it can be said, in the case of every person to whom the Statement of Principles applies, that it would be a 'reasonable hypothesis' that exposure of the person to that factor made a contribution to that person's injury, disease or death. 43. Similarly, for a Statement of Principles determined under s.196B(3), the inclusion of a particular factor in that Statement of Principles means that, on the sound medical-scientific evidence available, the Repatriation Medical Authority is satisfied that it can be said in the case of every person to whom that Statement of Principles applies, it is more likely than not that exposure of the person to that factor made a contribution to that person's injury, disease or death. 44. It was recognised that the Repatriation Medical Authority is required to consider the medical and scientific merit and relevance of any posited connection based on current epidemiological criteria. The Specialist Medical Review Council did not believe that this requires the slavish adoption of one set of criteria such as those enunciated by Sir Austin Bradford Hill although these are of considerable value in overviewing the topic. In this respect a factor of high relevance derived from an animal model might clinch the case for causality or, alternatively, might be of sufficient weight to exclude it. The Specialist Medical Review Council is required to evaluate the content of the Statements of Principles using all of the information on causality available to the Repatriation Medical Authority at the time that it made its decisions. 46. This Review Council believes that a review of any Statement of Principles must include a consideration of the whole of the Statement of Principles even though particular aspects of concern and the subjects of objection may only relate to parts of that whole. To do otherwise would be to disregard the effect of changing one factor without due regard to its influence on the total substance of the Statement of Principles as it was originally determined. This does not necessarily mean that each and every aspect of the Statement of Principles must be examined and potentially modified, only that the Review Council must clearly delineate and sequestrate any area of change, having regard to the impact on other aspects of the Statement of Principles. 47. The Review Council understood that the material available to the Repatriation Medical Authority was that conveyed to the Review Council for its consideration in the review. It was only on this basis that such a review could be concluded, for science is ever expanding in its questing and documentation. Allowance has been made in the legislation for new, cogent findings, which might alter outcomes, to be relayed to the Authority for its proper evaluation and response. 48. Having said this however, the Review Council was of the opinion that the material studied by the Authority in coming to its Statements of Principles was the most relevant and informative. None of the Review Council members was able to suggest important material extant at the time of the conclusion of the Statements of Principles which had not been included, nor did any of the witnesses advance evidence for such material which would have altered the outcome of our review. The Review Council found that the material that was available to the Repatriation Medical Authority covered the most commonly postulated causes of motor neuron disease and included all of the theoretical possibilities which have been advanced." 22 The reasons generally followed the format and as to general matters, the reasoning SMRC had utilised in the first of its reviews under the legislation, ie., the reasons for decision given in reviewing SoPs 95 and 96 of 1995 concerning prostate cancer. 23 In those SoPs (No. 95 and 96 of 1995) appears the following:- "Thus, neither the Repatriation Medical Authority nor the Council is concerned with determining whether or not, as a general proposition, it is a 'reasonable hypothesis' that a particular factor can cause a particular kind of injury, disease or death. However, one or more factors contained within a Statement of Principles must provide support for the medical-scientific link that forms part of a 'reasonable hypothesis' when the Statement of Principles is relied upon to uphold a suggested chain of causation linking the particular circumstances of a veteran's service to his or her injury, disease or death. Therefore, the factors that are to be contained in a s.196B(2) Statement of Principles must be such that it can be said, in relation to every person for whom a factor is relevant and who has suffered or contracted, or who has died from, the relevant kind of injury or disease, that a 'reasonable hypothesis' has been raised connecting that person's injury, disease or death with the circumstances of his or her service. The inclusion of a particular factor in a Statement of Principles determined under s.196B(2) means that the Repatriation Medical Authority is satisfied that there is sound medical-scientific evidence that indicates that it can be said, in the case of every person to whom the Statement of Principles is intended to apply, that it would be a 'reasonable hypothesis ' that exposure of the person to that factor made a contribution to that person's injury, disease or death. Similarly, for a Statement of Principles determined under s.196B(3), the inclusion of a particular factor in that Statement of Principles means that, on the sound medical-scientific evidence available, the Repatriation Medical Authority is satisfied that it can be said in the case of every person to whom that Statement of Principles is intended to apply, that it is more likely than not that exposure of the person to that factor made a contribution to that person's injury, disease or death. Not only must the Authority and the Council make the assessments set out above, but they must determine whether a suggested factor can be related to the relevant types of service. There are some factors that could not be said to be related to service. For example, being of the male gender is certainly a relevant factor in the cause of certain diseases but it is difficult to see how it can be related to service." 24 The declarations relevant to those SoPs were made on 22 December 1995. They read:- "1. In relation to the Repatriation Medical Authority Statement of Principles, Instrument No. 95 of 1995 concerning malignant neoplasm of the prostate and death from malignant neoplasm of the prostate, made under s.196B(2) of the Veterans' Entitlements Act 1986 (the Act), the Specialist Medical Review Council (the Council) declares, under s.196W(5) of the Act, that:- (a) the Council is of the view that there is insufficient sound medical-scientific evidence to justify the making of that Statement of Principles to include, as a factor, 'being exposed to herbicides in Vietnam'; and (b) the Council recommends that the Repatriation Medical Authority reconsider the inclusion of 'being exposed to herbicides in Vietnam' as a factor having regard to the Reasons for Decisions of the Council, the information that was available to the Repatriation Medical Authority when it made that Statement of Principles, together with any further information that may arise from any further studies that might be undertaken following the recommendation in the MacLennan and Smith Report relating to malignant neoplasm of the prostate; and (c) the Council is of the view that there is no sound medical-scientific evidence that justifies any other amendment of that Statement of Principles. 2. In relation to the Repatriation Medical Authority Statement of Principles, Instrument No. 96 of 1995 concerning malignant neoplasm of the prostate and death from malignant neoplasm of the prostate, made under s.196B(3) of the Act, the Council declares, under s.196W(5) of the Act, that the Council is of the view that there is no sound medical-scientific evidence that justifies an amendment of that Statement of Principles." 25 Thus so far as SoP 95 was concerned, it appears, the SMRC for itself would have rejected the inclusion of exposure to herbicides in Vietnam in the SoP. However, it did not direct an amendment, remit for reconsideration or otherwise purport to comply with s.196W(4) purporting to rely on s.196W(5)(b). It was not, however, sought that the inclusion of that factor in the SoP be re-examined by the application for review. Thus the issue was raised (plaintiff's Issue No. 11) of whether it was open to SMRC to propose deletions from an SoP and whether SMRC had to consider information additional to that before RMA and if so, how. It will be necessary to consider these questions both in the light of the determination of the proper interpretation of the statute and it relates to these questions and in the context of particular facts established in the evidence as to the initiation and the events of the relevant review. It is convenient to do so before turning to the more general contentions of the parties on the wider constructional issue. Compliance with the Statute 26 On the first of these questions, although the drafting of s.196W(5)(b) is hardly apposite to what SMRC did in that s.96W(5) only authorises a recommendation about a future investigation rather than a reconsideration of the inclusion of a factor and speaks about the making or amendment of an SoP rather than the inclusion of a factor, it would seem that SMRC relied on that provision on which to base subparagraphs 1(a) and (b) of the declaration. The relevant provisions of s.196W are as follows:- 27 Section 196W(2), (4), (5), (6) and (7) provide:- "196W(2) If the Council is asked under s.196Y to review:- (a) the contents of a Statement of Principles in respect of a particular kind of injury, disease or death; or (b) a decision of the Repatriation Medical Authority not to determine a Statement of Principles under s.196B(2), or a Statement of Principles under s.196B(3), in respect of a particular kind of injury, disease or death; subject to subsection (3), the Council must, for that purpose, carry out a review of all the information that was available to the Authority when it:- (c) determined, amended, or last amended, the Statement of Principles; or (d) decided, or last decided, not to determine a Statement of Principles; in respect of that kind of injury, disease or death. [Subsection (3) imposes a restriction not presently relevant.] (4) If after carrying out the review, the Council is of the view that there is sound medical-scientific evidence on which the Authority could have relied:- (a) to amend the Statement of Principles in force in respect of that kind of injury, disease or death; or (b) to determine a Statement of Principles under s.196B(2), or a Statement of Principles under s.196B(3), in respect of that kind of injury, disease or death; the Council must make a declaration in writing stating its views, setting out the evidence in support and:- (c) directing the Authority to amend the Statement of Principles, or determine a Statement of Principles (as the case may be), in accordance with the directions given by the Council; or (d) remitting the matter for reconsideration in accordance with any directions or recommendations of the Council. (5) If, after carrying out the review, the Council is of the view:- (a) that there is no sound medical-scientific evidence that justifies the making of a Statement of Principles, or an amendment of the Statement of Principles in force, in respect of that kind of injury, disease or death; or (b) that the sound medical-scientific evidence available to the Authority is insufficient to justify the making of a Statement of Principles, or an amendment of the Statement of Principles, in respect of that kind of injury, disease or death; the Council must make a declaration in writing to that effect giving the reasons for its decision. The Council may include in the declaration any recommendation that it considers fit to make about any future investigation that the Authority may carry out in respect of that kind of injury, disease or death. (6) If the Council is asked under s.196Z to review a decision of the Repatriation Medical Authority under s.196C(4) not to carry out an investigation in respect of a particular kind of injury, disease or death, the Council must consider:- (a) the reasons given by the Authority for making the decision; and (b) the information on which it relied in making that decision; and (c) the grounds on which the request for the review was made and any submission made in support of those grounds. (7) If, after consider the matters referred to in paragraphs (6)(a), (b) and (c), the Council is of the view that:- (a) there appears to be a new body of sound medical-scientific evidence in respect of that kind of injury, disease or death that has not been previously considered by the Authority; and (b) that new body of evidence, together with the sound medical-scientific evidence available to the Authority, could justify the making of a Statement of Principles, or an amendment of the Statement of Principles already determined, in respect of that kind of injury, disease or death; the Council must make a declaration in writing to that effect giving the reasons for its decision and directing the Authority to carry out any investigation under s.196B(7) in respect of that kind of injury, disease or death. The Council may include in the declaration any recommendation or direction that the Council considers fit to make about the carrying out of the investigation. (8) If, after considering the matters referred to in paragraphs (6)(a), (b) and (c), the Council is not of the view referred to in subsection (7) in respect of that kind of injury, disease or death, the council must make a declaration in writing:- (a) affirming the decision of the Authority not to carry out the investigation; and (b) giving the reasons for its decision. The Council may include in the declaration any recommendation that it considers fit to make about any future investigation that the Authority may carry out in respect of that kind of injury, disease or death." 28 Despite the third defendant's submissions and having regard to the distinction apparent between a factor in an SoP and the SoP itself (s.196B illustrates this), the statutory provision does not in its terms justify the declaration as made, ie., that the SoP should not include a particular factor or that the SMRC could merely recommend that the RMA should reconsider the inclusion of a particular factor. Rather than deal with factors, the provision deals with the making or amendment of SoP relating to a particular kind of injury, disease or death. The finding of lack of justification for the making or amendment which is necessary under the statute, are absent. 29 Further, a real problem arises in the particular process of review and the width of the enquiry undertaken by the SMRC. Lack of adequate notice 30 In the reasons accompanying those declarations, SMRC recited the events of the making of the SoPs and the applications by the plaintiff and the Australian Veterans' and Defence Services Council initiating the review. It recorded the Gazettal of its intention to carry out a review "of the information available to the RMA about malignant neoplasm of the prostate …", and invited submissions. The Gazettal notice itself is not before me. I have taken the ambit of the SMRC enquiry to be as notified in the recital which is set out in the reasons. As there referred to, no such limit on the enquiry to be undertaken on the review was notified as might exclude the examination of exposure to herbicides (specifically "Agent Orange") as affording a basis for the raising of a reasonable hypothesis which would indicate on sound medical-scientific evidence a relationship to operational etc. service as was set out by the RMA in SoP No. 95 of 1995. The requests for review purported only to challenge the asserted failure "to include … as a reasonable hypothesis the use of tobacco products as causing prostate cancer" (Exhibit A). Thus the SMRC, without specific notice, proceeded on a review request of limited ambit to undertake a far wider enquiry than requested and to undertake a review of contents other than those contents of which a review was sought. 31 Section 196ZB(1) provides for a notice in the Gazette:- "(c) stating that the Council intends to carry out a review of the information available to the Authority about that kind of injury, disease or death; and (d) inviting persons or organisations authorised under s.196ZA(1) to do so to make written submissions to the Council." 32 There is nothing in the statutory regime which would negate a legitimate expectation of adequate notice of the particular topic of review such as would enable the opportunity to take advantage of the entitlements provided by s.196ZA by providing a submission on those particular aspects of the contents of an SoP or the information available to the RMA being considered by the SMRC. 33 I have set out the relevant provisions of s.196W above. That section prescribes the function of SMRC and the courses it might take on such a review. The result of a review may drastically affect (by dint of restricting the ambit of an SoP) the statutory entitlements that may be afforded to those making claims under the VE Act. 34 A request for review of the contents of an SoP may be made by those persons or bodies referred to in s.196Y, viz:- "… (a) the Commission; (b) a person eligible to make a claim for a pension under Part II or VI; (c) an organisation representing veterans, Australian mariners, members of the Forces, members of Peacekeeping Forces or their dependants;" 35 By subsection (1) of that section, the Review Council (SMRC) may be requested to review:- "(d) the contents of a Statement of Principles in force under Part XIA; or (e) a decision of the Repatriation Medical Authority not to make a Statement of Principles in respect of a particular kind of injury, disease or death." 36 A statutory right to be heard on a review is provided by s.196ZA which reads:- "196ZA(1) If the Review Council is carrying out a review under s.196W(2), any person referred to in paragraph 196Y(1)(a) or (b), or an organisation referred to in paragraph 196Y(1)(c), may make a submission in writing to the Council about any information that was available to the Repatriation Medical Authority and is relevant to the review ('relevant information'). (2) A person having expertise in a field relevant to the investigation may make a submission in writing to the Review Council on any relevant information pertaining to that field. (3) If an individual, the Commission or an organisation has made a written submission, the individual or his or her representative, or a representative of the Commission or of the organisation may, subject to subsection (5), appear before the Review Council to make an oral submission complementing the written submission. (4) If the Review Council is carrying out a review under s.196W(b) at the request of an individual, the Commission or an organisation, the individual or his or her representative, or a representative of the Commission or of the organisation may, subject to subsection (5), appear before the Review Council to make an oral submission complementing the written submission (if any) lodged under paragraph 196Z(2)(c). 5. A person or organisation may not be represented before the Review Council by a legal practitioner. 6. In this section, a reference to a submission does not include a submission on a legal matter." 37 It appears from the particularity of the drafting of ss.196Y(1) and 196W(2) that the request may only relate to the contents of an SoP or a decision not to make one. Both of those matters are, by those subsections, related to a particular kind of injury, disease or death but not directly to particular factors which might found a reasonable causal hypothesis connecting those factors to such injury, disease or death. 38 The legislation requires that all the information as to the injury, disease or death as was available to the RMA must be reviewed. The SMRC must consider all information available to it not only that available to the RMA but including new bodies of evidence to comply with the necessary ambit of a review which would enable the consideration of matters relevant to s.196Y(7) and (8). It was therefore within its legislative ambit for the SMRC to consider all factors. In this respect, it complied with its general statutory duty and gave notice which on its face accorded with the statutory duty to give notice. However, it must have been apparent that the applicants for review had no expectation that wider considerations than had been intimated would be canvassed. 39 The evidence before me was that the plaintiff was unaware until its President attended a hearing convened to receive oral submissions, that exposure to herbicides was in question and in consequence the plaintiff was deprived of any real opportunity to present submissions. This evidence appeared in the affidavit of Mr. McCombe of 28 November 1996. It was not sought to cross-examine him. It was not suggested he had or the plaintiff had failed to avail itself of any opportunity to be heard on the issue. In the affidavit of John Robert Douglas, the Registrar of SMRC read without objection and upon which he was not cross-examined is evidence that:- "4. At the commencement of the public hearing the Convenor of the Council, Professor Alex Cohen, stated that the Council would carry out a review of the entire contents of the Statements of Principles. The review included the matters raised by the plaintiff and the Naval Association being the possible link between smoking and prostate cancer and the possible link between exposure to herbicides and prostate cancer. Professor Cohen said that the purpose of the hearing was to allow submissions to be made to the Council on the content of the Statement of Principles. Each of the organisations present at the hearing then made submissions to the Council (except the Returned and Services League of Australia). The organisations represented at the hearing were:- (a) the Vietnam Veterans' Association of Australia New South Wales Branch (the plaintiff); (b) the Australian Veterans' and Defence Services Council (AVADS); (c) the Naval Association of Australia; and (d) the Returned and Services League of Australia (RSL). 5. At the conclusion of the submissions by the organisations present, Professor Cohen stated that the Council would now carry out its review of the content of the Statements of Principles. … 7. The submission made by the plaintiff to the Council on that day and repeated in a written submission to the Council, included a chapter entitled 'The role of chemicals in cigarette smoke, industrial chemicals, agricultural chemicals, pesticides, cadmium, and male sex hormones as precursors to prostate cancer in Vietnam Veterans. What role does synergism play?'. This chapter of the plaintiff's submission made reference to Agent Orange and other chemicals. Annexed hereto and marked "A" is a true copy of a part of the plaintiff's submission entitled 'Smoking and Prostate Cancer' prepared by the Toxic Chemicals Consultancy of Total Environment Centre Inc. including the said chapter. Annexure "A" comprises 18 pages and is numbered 3 to 20. …" 40 It is not clear to me that the deponent is saying that Professor Cohen expressly stated the matters referred to in the second sentence of paragraph four. Rather, it seems the deponent was speaking of those matters as implicit in the announcement of the review of the entire contents of the SoP. The drafting of this sentence is to be contrasted with that where the deponent refers to Professor Cohen stating matters and where an express statement is clearly referred to. 41 The submission of the plaintiff made mention of "Agent Orange" only in the context of dioxin contaminates of it and deals with it and other herbicides only insofar as they might reasonably be expected to act synergistically with chemicals in cigarette smoke, ie., it refers to Agent Orange entirely incidentally to the references to smoking and in a most minor way. The Naval Association of Australia's written submission refers to exposure to herbicides and pesticides during World War II, Korea, Malaya and Borneo in a most general fashion and to exposure only on those occasions. It does not refer to Vietnam. In neither case is there the slightest basis to support the proposition that at least the plaintiff was sufficiently forewarned of the issue to have at that time any real opportunity to be heard on it nor is any other opportunity to be heard suggested in the evidence. Indeed, Mr. Douglas deposed that at the conclusion of the oral hearing the Convener stated that the Council would now carry out its review by which I take it that the Convener was to be and was understood as declaring the conclusion of the opportunity to make submissions. Notwithstanding Mr. Douglas refers to the plaintiff's oral submission of 7 November 1995 being "repeated" in the written submission, since Mr. McCombe gave evidence the written submission was made to the Council on 19 July 1995, I regard Mr. Douglas' evidence on the point as merely establishing the content of the two was to the same effect, not that the written submission was subsequent to notice of the herbicide issue. The contents of the written submissions speaks against any other conclusion. 42 The plaintiff, however, did not raise any protest or complaint. I accept the evidence of Mr. McCombe as to the reasons for that. There was little, if anything, he could then do. I conclude that in line with the authorities dealing with constructive failure to afford an opportunity to be heard for reasons such as the wrongful refusal of an adjournment and particularly those dealing with the necessity to afford procedural fairness before continuing a hearing initiated by a party which might unexpectedly produce a result open under the legislation but adverse to the moving party: Neal v. The Queen (1982) 149 CLR 305, that there has been a lack of observance of the requirements of natural justice such, as would be necessary to permit a party to be properly heard, consistent with the opportunity statutorily provided by s.196ZA. (See Murray v. Legal Services Commissioner & Anor [1999] NSWCA 70.) 43 Although the matter in question has not been reconsidered nor the SoP amended, if the plaintiff wishes, it should have the opportunity to be heard. The declaration involved in proceedings No. 30133 of 1996 may need to be remitted to SMRC to consider it anew, for that reason, if none other, so that SMRC may consider the making of an appropriate declaration. Notwithstanding that the Commission submissions at paragraph 29(c) and (d) suggest the contested portions of the declaration have not been operating, it might have been appropriate to make some order. Leaving the question of appropriate relief for the moment, I turn from this specific matter to the submissions on the ambit of review generally. Ambit of a review 44 On a review by way of reconsideration as on the original review, the whole of the information available to the RMA in respect of that kind of injury, disease or death is to be reviewed (s.196W(2)). On such a review, s.196W(2), (4) and (6) contemplate that SMRC will consider information not considered by RMA if it is as to sound medical scientific evidence which (at the time of the making of the SoP) was available to the RMA (s.196W(2) and (5)(a)) (whether before it or not) or on which it could have relied (s.196W(4)) and such information as might point to the appearance of a new body of sound medical-scientific evidence as might cause SMRC to act under s.196W(7) and (8). 45 Otherwise, the function of SMRC was and will be as the Commission submitted:- "25 … to review the information before the RMA when it made the SoPs to determine whether the contents of the SoPs reflect the sound medical-scientific evidence contained in that information; it could receive new material that explained, analysed or commented upon the information before the RMA; and it could submit any new information, not before the RMA when it made its SoPs, to the RMA for consideration by the RMA." 46 It was further submitted:- "26. … (a) Section 196W(2) obliges the SMRC to 'carry out a review of all the information that was available to the [RMA] when it … determined … the SoP'. (b) That obligation is complemented by s.196K, which requires the RMA to forward to the SMRC 'a copy of all the information that was available to it when it … determined … the SoP'. (c) According to s.196ZA(1) and (2), the submissions that may be made to the SMRC are submissions 'about any information that was available to the [RMA] and is relevant to the review'. The contrast with s.196F(1) and (2) is telling. Those subsections provide for submissions to the RMA 'on any matter … relevant to the investigation'. (d) The intention of the VE Act, that the SMRC conduct its review of an SoP by reference to the material that was available to the RMA when it determined the SoP, is supported by the Explanatory Memorandum to the part of the Bill that introduced the SMRC [Senate, Debates, 28 June 1994, p.2177], as quoted at p.17 of the SMRC's reasons. It must also be remembered that s.196B(7)(b) gives the RMA the power, at any time, to initiate a review of an SoP - so that new information can form the basis of the RMA's review of a SoP at any time. (e) Section 196W(7) tells the SMRC how to deal with 'a new body of sound medical-scientific evidence … that has not been previously considered by the [RMA]': it must direct the RMA to carry out a new investigation into the relevant kind of injury, disease or death." 47 Thus, it is clearly contemplated by the Act that SMRC will consider new information but only in the sense described and in the way and for the purposes set out. 48 I do not accept the submission that SMRC is limited to considering the information that was considered by RMA. In my view, the information the SMRC is to consider is all the information available (in the sense of extant in the discipline) to the RMA (whether actually provided to it or not) in respect to (these are words of great width) the particular injury, disease or death. The SMRC fell into error in restricting the meaning of the word available as it did. It restricted the wide ambit naturally inherent in the concept of a review. Clearly when the statute requires a review of a full scientific investigation and an expert scientific review of all the available material it conceives of a process in that review wider than a simple re-examination of what was actually originally considered unless it should happen that what was originally considered was all that was available. The distinction between a requirement to consider information made available to it and a requirement that to consider all the information was available is manifest. On such a review, SMRC will have in mind the purpose under the statute of an SoP and the role in the SoP of the sound medical scientific evidence the existence of which it or the RMA detects, ie. it will examine the extant information in the discipline which might bear on the particular injury, disease or death and apply to that information the statutory criteria set out in the definition of sound medical-legal evidence. Any extant information about or concerning a factor which might throw light on the circumstances of the occurrence of those matters will need to be considered if the Act is to be properly applied. 49 I do not see what the SMRC did by way of consideration of information was, other than in the respects I have already mentioned, out of accord with the Act albeit, and not surprisingly considering the complex drafting, the expression of the SMRC views in the reasons does not precisely correspond with the statute's expressed requirements. The general issues 50 The plaintiff and the Commission have both relied on careful, extensive written submissions which have been most helpful. The plaintiff in its written submissions put the issues thus:- "2. Both proceedings raise for the first time in any court the interpretation of s.5AB(2) of the Veterans' Entitlement Act 1986 (Cth), which is important to a system of 'Statements of Principles' (SoPs) introduced in 1994 (Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)) to assist decision-making on entitlement to pensions for war-caused injury, disease or death. … 6. The Act expressly limits to 'sound medical-scientific evidence', as defined in s.5AB(2), the material upon which the RMA and SMRC may form a judgment on whether factors should be included in a SoP (see ss.196B(2), (3), (5), (6), 196C(3) and s.196W(4), (5) 7. The critical question raised in these proceedings is whether the terms of the definition require evidence concerning an hypothesised causal factor to satisfy a scientific test of causation before it can be received as 'sound medical-scientific evidence'. 8. If the definition has this meaning, then scientific evidence, raising a reasonable hypothesis but falling short of scientific proof that a factor is generally causative of a disease, can never be 'sound medical-scientific evidence'. The RMA and SMRC are unable to consider whether to make a SoP which includes that factor. A claim for pension based on such an hypothesis can never be upheld by a SoP. 9. This is the effect of the construction adopted in the reasoning of the SMRC in the two present proceedings and, the plaintiff understands, currently advised by the Repatriation Commission and applied by the RMA and SMRC. The plaintiff contends that it misconceives the language and object of the amending legislation. 10. The plaintiff contents that the adoption of this construction by the SMRC invalidated the declarations under s.196W(5) which are challenged in each proceeding." 51 The defendants put the matter in paragraph 15 of their submissions:- "The SMRC was asked, under s.196Y of the VE Act, to review the contents of four SoPs - Nos 95 and 96 of 1995 concerning Malignant Neoplasm of the Prostate and Nos 245 and 246 concerning Motor Neuron Disease. The plaintiff attacks each of those declarations. The attack is made on the following grounds:- (a) The SMRC's construction of the concept 'sound medical-scientific evidence' as defined in s.5AB(2) of the VE Act - paragraphs 7-10 of the plaintiff's written submissions." 52 In statements of issues provided by the parties to me at my behest, the contentions were expressed as follows:- "Plaintiff's List of Issues Q1. Does the definition in s.5AB(2) in its application to s.196B(2) and (3) of the Veterans Entitlements Act 1986 (Cth) require that evidence concerning an hypothesised causal factor must establish a relevant causal connection as probable to the degree which would satisfy the science of epidemiology before it can be treated as 'sound medical - scientific evidence'? A. NO (i) Section 5AB(2)(b) requires no more than that information satisfying paragraph (a), and which is about how the injury, disease or death may be caused, should be relevant to and acceptable under the rules or methods of epidemiology which are currently applied by experts in that field when making assessments of causation. (ii) The definition of 'sound medical - scientific evidence" does not require the information to establish any degree or standard of proof of causation. (iii) The definition of 'sound medical - scientific evidence' does not indicate a causal relationship to be satisfied by the information. (iv) On the issues arising under s.196B(2) and (3), the standards of proof to be applied by the RMA and SMRC when drawing conclusions from 'sound medical - scientific evidence' are those provided by the terms of those subsections, ie. whether in their expert opinions that evidence raises a reasonable hypothesis of a relationship, and whether a relationship is more probable than not. (v) The causal relationships to be considered are those described in s.196B(14), and not the relationships applied in any field of science (if they differ). Q2. Do the reasons given by SMRC in each matter show that it applied the correct construction of that definition? A. NO …" "The defendant's response to plaintiff's list of issues A1. No. The sub-section does not require that evidence, to be used for the purposes of sub-ss.196B(2) and (3), 'establish a relevant causal connection as probable' to any degree, whether within the science of epidemiology or otherwise. The effect of sub-s.5AB(2) is that information about how a kind of injury, disease or death may be caused can only be used by the RMA for the purposes of sub-ss.196B(2) and (3) if that information meets (in the sense of 'satisfies' or 'conforms to;) the applicable criteria currently applied in the field of epidemiology for assessing causation. 'Assessing causation' does not involve 'establishing a relevant causal connection'. It involves making a decision as to whether the information indicates or points to a causal connection. The assessment calls for the exercise of expert judgment, in selecting the criteria which are applicable to the relevant information, in measuring the information against those criteria and in forming a judgment on the question whether the information 'meets' the criteria. The assessment will identify a pool of information from which the RMA (and the SMRC) will then draw in order to make determinations under sub-ss.196B(2) and (3) - and other provisions in s.196B. In response to the numbered sub-paragraphs, the third defendant says:- (i) This is not what para.5AB(2) provides. The paragraph makes no reference to the information being 'relevant to and acceptable under the rules or methodology of epidemiology …'. In short, the paragraph means what it says. (ii) If this proposition means that the definition does not require that the information establish causation, the third defendant agrees. (iii) The third defendant agrees; however, if the information is about how a disease may be caused, the information must meet the applicable criteria for assessing causation. (iv) The third defendant disagrees with this proposition. The references to a 'reasonable hypothesis' and 'more probable than not' define the type of SoP that is to made, and guide the RMA and SMRC in the prescribing the factors to be included in the SoPs. (v) The causal relationships set out in s.196B(14) are irrelevant to the assessment of information under para.5AB(2)(b). They are relevant to the making of a determination under 196B(2) and (3). A2. Yes. … On the principal question, declarations 1(a) and (b) in respect of SoP 95 of 1995 were authorised by para.196W(5)(b)." 53 I set out the relevant statutory provisions:- "5AB(1) In this Act, unless the contrary intention appears:- … 'sound medical-scientific evidence', in relation to a particular kind of injury, disease or death, has the meaning given by subsection (2). 5AB(2) Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:- (a) the information:- (i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or (ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and (b) in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology. …" 54 Part XIA of the Act deals with the RMA. It is established by s.196A, its functions are set out in s.196B(2) and (3):- "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; or (b) peacekeeping service rendered by members of Peacekeeping Forces; or (c) hazardous service rendered by members of the Forces; 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; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. (3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:- (a) eligible war service (other than operation service) rendered by veterans; or (b) defence service (other than hazardous service) rendered by members of the Forces; the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:- (c) the factors that must exist; and (d) which of those factors must be related to service rendered by a person; before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service." 55 Section 196B(4) relates to the making of an investigation by the RMA with a view, inter alia, to the making of an SoP. Section 196B(5) and (6) provide:- "(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 under subsection (2) or (3), in respect of that kind of injury, disease or death, the Authority must do so as soon as practicable. (6) If, after carrying out the investigation, the Authority is of the view:- (a) that there is no sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3)in respect of that kind of injury, disease or death; or (b) that the sound medical-scientific evidence on which it can rely is insufficient to allow it to do so; the Authority must make a declaration in writing; (c) stating that it does not propose to make a Statement of Principles; and (d) giving the reasons for its decision." 56 Section 196C expresses the powers of the RMA. It provides:- "196C(3) In forming any view during the investigation, the Authority:- (a) may rely only on sound medical-scientific evidence:- (i) that has been submitted to it; or (ii) that it has obtained on its own initiative or from the Secretary (under subsection (2)) or from a consultant; and (b) must consider and evaluate all the evidence so made available. …" 57 I have, in dealing with the particular arguments earlier, referred to and set out the relevant provisions relating to SMRC. Legislative history, case law and extrinsic materials 58 There was little difference between the parties as to the context. An introduction to the background of the parties' contentions as found in the underlying legislative and case law history of the provisions is to be found conveniently in the submissions filed by the Commission, paragraphs 3-14 inclusive. I set out the relevant portions:- "3. The proceedings before the Supreme Court raise issues about the operation of Parts XIA and XIB of the VE Act, which were added to the VE Act with effect from 1 June (Veterans' Affairs (Budget Measures) Legislation Amendment Act 1994 (Cth)). 4. Section 13 of the VE Act makes the Commonwealth liable for the payment of pensions to veterans for incapacity from war-caused injury or disease and to veterans' dependants for war-caused death. 5. Section 8 of the VE Act defines war-caused death; and s.9 of the VE Act defines war caused injury and disease. The VE Act prescribes the standards of proof to be applied by decision-makers (The Repatriation Commission, the Veterans' Review Board and the Administrative Appeals Tribunal) in deciding whether a particular injury, disease or death is war-caused. (a) So far as veterans with operational service (Speaking generally, operational service is service outside Australia during war-time, or three months service in the northern part of the Northern Territory between 13 February 1942 and 12 November 1943: see s.6 of the VE Act) are concerned, s.120(1) of the VE Act directs the decision-maker to make a positive finding unless it is satisfied beyond reasonable doubt that the claimed injury, disease or death is not war-caused. That standard of proof dates from 1977 (see East v. Repatriation Commission (1987) 16 FCR 517 at 519-520). A 1985 amendment to the VE Act's predecessor (the Repatriation Act 1920) now appears in s.120(3) of the VE Act. The amendment requires decision-makers to be satisfied beyond reasonable doubt that an injury, disease or death is not war-caused if the decision-maker is of the opinion that the material before it does not raise a reasonable hypothesis connecting the claimed injury, disease or death with the circumstances of the particular service rendered by the veteran. The background to, and the purpose of, the 1985 amendments was explained by the Full Court of the Federal Court in East v. Repatriation Commission (1987) 16 FCR 417 at 521-524. Essentially, the requirement that a reasonable hypothesis be raised by the material overcomes the High Court's decision in Repatriation Commission v. O'Brien, and prevents a claim succeeding on the ground that the cause of an injury, disease or death is unknown. It is not enough that a connection between the injury, disease or death and war service cannot be excluded or is 'left open' on the material; rather, the material before the decision-maker must raise facts that positively 'point to' the relevant connection (East v. Repatriation Commission (1987) 16 FCR 517 at 532-533; Repatriation Commission v. Bey (1997) 149 ALR 721 at 730). (b) Where a claim for pension relates to a veteran with eligible war service (again speaking generally, eligible war service is service in Australia during war-time, other than service in the northern part of the Northern Territory during the relevant period: see s.7 of the VE Act), as distinct from operational service, the decision-maker is required to apply the civil standard of proof when deciding whether the claimed injury, disease or death is war-caused (s.120(4); Repatriation Commission v. Smith (1987) 15 FCR 327 at 335). 6. The 1985 amendments were re-cast when the VE Act was enacted in 1986 (East v. Repatriation Commission (1987) 16 FCR 517 at 524-527). They have attracted significant litigation in the Federal Court, the most recent exposition being by a five member bench in Repatriation Commission v. Bey (1997) 149 ALR 721. The concept of the reasonable hypothesis in the VE Act and its place in the decision-making process have also been considered by the High Court on three occasions (Bushell v. Repatriation Commission (1992) 175 CLR 408; Byrnes v. Repatriation Commission (1993) 177 CLR 564; Repatriation Commission v. Owens (1996) 70 ALJR 904). The 1994 amendments 7. In 1994, the VE Act was further amended with the introduction of ss.120A and 120B, Parts XIA and XIB and association provisions (such as the definition of 'sound medical-scientific evidence', in s.5AB(2) of the VE Act). The purpose of the amendments was expressed in both the Second Reading Speech (SRS) (House of Representatives, Debates, 9 June 1994, pp.1806-1807) and the Explanatory Memorandum (Ex Mem) on the Bill (the reasons of Lindgren, J. in Beale v. Administrative Appeals Tribunal (1998) 26 AAR 497 at 500-501 contain a concise summary of the extrinsic material). (a) A substantial part of the problem to which the amendments were addressed was identified in the Explanatory Memorandum (Ex Mem) as the extension, by the High Court's decisions, of the 'reasonable hypothesis' standard to the point where the 1985 and 1986 amendments 'have been rendered largely ineffective'. It was said that two government reports had pointed to problems in the interpretation of the that (sic) standard. (b) The Ex Mem also identified a lack of consistency in decision-making, largely because non-medical bodies were required to determine medical-scientific issues which called for detailed technical knowledge. (c) The SRS referred to the 'relaxed interpretation' of the 'reasonable hypothesis' test, a 'lack of consistency in decision-making', and the 'inappropriateness of laymen determining complex questions of medical causation'. (d) According to the SRS, the amendments were intended 'to ensure that the credibility of the repatriation system is maintained and that medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion'. (e) The Ex Mem identified the purposes of the amendments - to ensure that hypotheses are not found 'reasonable' unless 'based on sound evidence from the field of medical science'; to remove 'purely medical causation issues' from delegates of the Repatriation Commission or, at the review stage, lawyers and lay persons; and to make an expert medical authority, the Repatriation Medical Authority (RMA), the authority for resolution of technical medical-scientific issues, so as to ensure consistency at all levels of the system. (f) According to the SRS, the 'Bill will, in effect, define by reference to … Statements of Principles the concept of "reasonably hypothesis" as it appears in s.120(3)' of the VE Act (House or Representatives, Debates, 9 June 1994, p.1808). (g) To that end, the RMA was directed to make disallowable instruments, known as Statements of Principles (SoPs) in respect of particular kinds of injury, disease or death 'that will exclusively state what factors must exist to establish a causal connection between particular diseases, injuries or death and service' (Explanatory memorandum, p ii). (h) Each SoP, as Heerey, J. put it in Deledio v. Repatriation Commission (1997) 25 AAR 396 at 411-412, was to prescribe a medical-scientific standard with which a hypothesis must be consistent, a template within which individual claims would be determined, a statute-backed declaration of what is proved or known scientific fact. 8. The objective of the 1985 amendments is achieved through the enactment of ss.120A and 120B, which control the determination of individual claims for pension, and Part XIA, which establishes the RMA and charges it with the responsibility of making and reviewing SoPs. (Part XIB, added as the amendment Bill was being debated, provides a further level of review for SoPs.) (a) Section 120A controls s.120(3) and, in general, precludes a hypothesis being accepted as reasonable under s.120(3) unless the hypothesis is upheld by a SoP made by the RMA under ss. 196B(2) or (11) of the VE Act. (b) Section 120B controls s.120(4) and, in general, precludes a decision in favour of a claim relating to non-operational service unless a SoP upholds the contention that the claimed injury, disease or death is, on the balance of probabilities, connected with the veteran's service. The SoP system 9. The RMA is established by s.196A(1) of the VE Act. Its members are appointed by the Minister. They must be medical practitioners or medical scientists with at least 10 years experience and (most significantly), according to s.196L(3), at least one member must be an experienced epidemiologist. (a) The responsibility of RMA, in making a SoP, is to prescribe, in legislative form, the aetiology of each kind of injury, disease or death - thereby removing that issue from the matters that can be agitated before a decision-maker. The RMA and the Specialist Medical Review Council (SMRC) perform no decision-making function in relation to the facts of a particular claim. They perform a legislative function (Vietnam Veterans Association of NSW v. Cohen (1996) 70 FCR 419 at 427-431) by fixing the medical-scientific standard with which a hypothesis must be consistent (Deledio v. Repatriation Commission (1997) 25 AAR 396 at 411; endorsed by the Full Court in Repatriation Commission v. Deledio (22 April 19980 at 20). (b) Where a claim relates to operational service, the role of the Commission, the VRB and the AAT is to determine whether the hypothesis said to connect the injury, disease or death is upheld by the relevant SoP and is otherwise reasonable (in the sense discussed in East v. Repatriation Commission (1987) 16 FCR 517 at 532-533; and Bushell v. Repatriation Commission (1992) 175 CLR 408 at 413-416); and whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury, disease or death is war-caused. The finding of facts in relation to a particular claim remains a matter for the Commission, the VRB and the AAT - but a significant part of that fact-finding exercise is conducted within the parameters set by the RMA in the relevant SoP. 10. The nature and function of a SoP is expressed in ss.196B(2) and 196B(3) of the VE Act. (a) SoPs are made by the RMA in respect of particular kinds of injury, disease or death after investigation under s.196B(4) of the VE Act and are based on 'sound medical-scientific evidence' as defined in s.5AB(2) of the VE Act. (b) Each SoP applies to a particular kind of injury, disease or death - it is general in its application in the sense that it states the minimum medical-scientific component required for a connection with war service and must be applied in relation to all claims which involve that kind of injury, disease or death. (i) A SoP made under s.196B(2) of the VE Act sets out 'the factors that must as a minimum exist, and which factors must be related to service … before it can be said that a reasonable hypothesis is raised' connecting the relevant kind of injury, disease or death with the circumstances of service. (ii) A SoP made under s.196B(3) of the VE Act sets out 'the factors that must as a minimum exist, and which … must be related to service', before it can be said that the relevant kind of injury, disease or death is probably connected with the circumstances of service (the standard of proof where the claim does not relate to operational service, peacekeeping service or hazardous service). (c) The SoP is not personal to a particular veteran or applicant but expresses, in legislative (and therefore definitive) terms, current medical knowledge as to the causation of particular kinds of injury, disease or death. (d) According to Tamberlin, J. in Vietnam Veterans' Association v. Cohen (1996) 70 FCR 419 at 422, a SoP provides 'the medical-scientific frame of reference' for a claim for pension under s.13 of the VE Act. As Heerey, J. put it in Deledio v. Repatriation Commission (1997) 25 AAR 396 at 411-512, each SoP fixes, in the form of a template to be applied to claims for pension, the medical-scientific standard with which a hypothesis (for the purpose of s.120A(3) of the VE Act) or a contention (for the purpose of s.120B(3) of the VE Act) must be consistent. (e) SoPs are legislative instruments. They are binding on all decision-makers, including the AAT (Explanatory Memorandum, Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994, pp.3-5; Vietnam Veterans Association of NSW v. Cohen (1996) 70 FCR 419 at 427-428, 430-431; Re Jenkin and Repatriation Commission (1997) 24 AAR 494 at 507). For that reason, medical evidence presented to a decision-maker that (say) prostate cancer can be caused by the smoking of cigarettes would be irrelevant to a claim for pension under s.13 of the VE Act, given the terms of SoP no. 95 of 1995. Assuming that the claim relates to operational service, a hypothesis that the veteran's disease is connected to his war service through service-related cigarette smoking cannot be reasonable because that hypothesis is not upheld by SoP No. 95 of 1995. As Heerey, J. observed in Deledio v. Repatriation Commission, 'unless the hypothesis was consistent with [the factors prescribed in the SoP], there would be no point in running the case' (1997) 25 AAR 396 at 411 - because the SoP 'is a statute-backed declaration of what is proved or known scientific fact' (1997) 25 AAR 396 at 412; endorsed by the Full Court in Repatriation Commission v. Deledio (22 April 1998) at 22. RMA review of SoPs 11. The RMA must (subject to the limited discretion in s.196C(4) of the VE Act) review a SoP if requested to do so by the Commission, a person eligible to claim or an organisation representing those eligible to claim (such as the plaintiff): ss.196E(1), 196B(7)(a) of the VE Act. The RMA is also required to review a SoP if it thinks there are grounds for such a review; or if it is so directed by the SMRC: ss.196B(7)(b) and 196B(7)(c) of the VE Act. 12. If the RMA reviews a SoP and forms the view that there is 'a new body of sound medical-scientific evidence' that justifies changing the SoP, it must make a new SoP or amend the existing SoP: s.196B(8) of the VE Act. The RMA's determination under s.196B(8) is a disallowable instrument: s.196D of the VE Act. Alternatively, the RMA may make a declaration stating that it does not propose to make a new SoP or amend an existing SoP: s.196B(9) of the VE Act. SMRC review of SoPs 13. Part XIB of the VE Act provides for a further possible review of the contents of a SoP by the SMRC. The SMRC is established by s.196V(1) of the VE Act. According to s.196ZE, the SMRC's members are appointed by the Minister, who is to have regard to the relevant medical-scientific expertise required to decide matters referred to the SMRC. As with the RMA, members of the SMRC must be medical practitioners or medical scientists with at least 10 years experience: s.196ZF. 14. Amongst the functions of the SMRC is the review of the contents of a particular SoP, when so requested under s.196Y of the VE Act by the Repatriation Commission, a person eligible to make a claim or a veterans' organisation. (a) If the SMRC decides that there is sound medical-scientific evidence that justifies amending the relevant SoP, the SMRC is to direct the RMA to amend the SoP or remit the matter to the RMA with directions or recommendations: ss.196W(4)(c) and (d) of the VE Act. Where the SMRC directs the RMA to amend the SoP, s.196B(1) of the VE Act obliges the RMA to amend the SoP in accordance with the SMRC's directions. (b) Alternatively, the SMRC may recommend to the RMA that the RMA carry out a further investigation in respect of the relevant kind of inquiry, disease or death: s.196W(5) of the VE Act. It will be a matter for the RMA to decide under s.196B(7)(b) of the VE Act whether to act on the recommendation. (c) The SMRC may also direct the RMA to carry out a new investigation into a particular kind of injury, disease or death if the SMRC finds that there appears to be new medical scientific evidence not previously considered by the RMA: s.196W(7) of the VE Act. Where the SMRC directs the RMA to carry out a new investigation into a particular kind of injury, disease or death, s.196B(7)(c) of the VE Act obliges the RMA to carry out that investigation." 59 The plaintiff took little, if any issue, with this, setting out the background in its written submissions thus:- "4. Historically, veterans legislation has required that claims to pension relating to operational war-service be decided according to a standard of satisfaction as to the facts which is less demanding than the civil standard of proof [The history is explained in Deledio v. Repatriation Commission (1997) 25 AAR 396 at 397ff. Heerey, J.'s judgment was upheld and generally approved by the Full Court in Repatriation Commission v. Deledio (Beaumont, Hill and O'Connor, JJ, 23 March 1998)]. In recent years it has been enough that the material before a decision-maker raised a 'reasonable hypothesis' of a causal connection between a veteran's injury, disease or death and his operational service [Part II claims relating to eligible service which was not operational are determined on the balance of probabilities, see ss.6, 7 and 120(4). Claims for defence-service pension under Part VI are treated in the same manner as Part II pensions with a standard of proof distinction between peacekeeping or hazardous service and ordinary defence service (see ss.70, 120(2), 120(4))] and did not disprove entitlement beyond reasonable doubt [s.120(1) and (3) explained in Byrnes v. Repatriation Commission (1993) 177 CLR 565 at 571, summarising the effect of Bushell v. Repatriation Commission (1992) 175 CLR 408]. 5. The 1994 amendments retained this provision, with an added requirement that he hypothesis must be upheld by a SoP [see ss.120A, 120B. The scheme of the amendments is summarised and explained in Deledio's case (supra) and Beale v. Administrative Appeals Tribunal (1998) 36 AAR 497 at 500]. Separate SoPs are made for each kind of injury, disease or death, and set out the aetiological factors which must be addressed before a claim can be granted. They are made by the Repatriation Medical Authority (RMA) under s.196B, and are subject to review by the Specialist Medical Review Council (SMRC) under s.196W. 6. The Act expressly limits to 'sound medical - scientific evidence', as defined in s.5AB(2), the material upon which the RMA and SMRC may form a judgment on whether factors should be included in a SoP [see s.196B(2), (3), (5), (6), 196C(3) and s.196W(4), (5)]." 60 As the above comparison of the parties' respective positions shows, as to the most of the matters of statutory interpretation referred to, the parties' views differ little. I can therefore deal with much that has been put before me more briefly than otherwise would have been the case. 61 It is common ground that s.5AB(2) does not require information to establish itself, directly (ie. prove) whether according to scientific or epidemiological principles a relevant causal connection between a factor and a particular kind of injury, disease or death existed before it can be considered to be, applying the definition "sound medical-scientific evidence". The Commission, however, asserts that information about how a relevant condition may be caused would not be "sound medical-scientific evidence" if, on application to it of the criteria for assessing causation currently applicable in epidemiology, it did not achieve acceptance as causal in the sense used in the reasoning of the SMRC set out in paragraphs 21 and 25 above. Thus there are distinctions between the parties' positions, as to the role played by the definition in the process of applying the criteria to information and therefore identifying sound medical-scientific evidence. I therefore turn to the plaintiff's criticisms of the process here and its submissions as to the proper construction of the Act. 62 In essence, the plaintiff contended that the SMRC adopted an approach to its function in making the relevant SoPs of requiring there be evidence concerning a factor which evidence established a relevant causal connection between the factor and the particular kind of injury, disease or death as probable to the degree which would satisfy the science of epidemiology before that evidence was accepted as "sound medical-scientific evidence" and that this approach was not in accord with the proper construction of s.5AB(2). In addition, although it was but faintly argued, a contention was not abandoned to the effect that the reasons given by the SMRC in each case failed to show the correct approach had been adopted or were inadequate, such as to show legal error. If the express reasons disclosed essential error, I need not deal with this latter submission. 63 The defendant asserts that the plaintiff has incorrectly described the approach of the SMRC. It contends that the reasons given were adequate and that the SMRC has in each challenged respect comported itself in accord with the proper construction of the statute. 64 Notwithstanding the detail in which the submissions have been couched as to the background history of the provisions and accepting that both submissions seek that I interpret the provisions by discerning the purpose they are to serve in the statutory scheme, I should at the outset and particularly have regard to the Federal Court decision in the proceedings between these parties in which it was sought, even if unsuccessfully, to raise the very issue. In Vietnam Veterans (supra) Tamberlin, J. refers to the role of the Council and the purpose of the Statements at s.422B thus:- "The Council is a body corporate with perpetual succession under s.196V of the Act. Its functions are set out in s.196W and include the review of the contents of a Statement determined by the Authority. The purpose of the Statements, in broad terms, is to provide the medical -scientific frame of reference when a claim is made for a pension or allowance for an injury, disease or death connected with service in the armed forces. If the claimed injury, disease or death is of a kind that is the subject of a Statement then, where s.120(3) applies, a hypothesis of causation by service will be reasonable for the purpose of that subsection only if the Statement upholds that hypothesis. Similarly, where s.120(4) applies the Commission can be reasonably satisfied that the injury, disease or death was war-caused or defence-caused, only if the Statement relating to that kind of injury, disease or death, upholds the contention that the injury, disease or death is on the balance of probabilities connected with the person's service. A 'reasonable hypothesis' arises in the context of a pension claim and relates to the nexus between the particular circumstances of the individual's service and his or her injury, disease or death. Neither the Authority nor the Council is concerned with determining whether or not, as a general proposition, it is in fact a 'reasonable hypothesis' that a particular factor causes a particular kind of injury, disease or death. One or more factors contained within a Statement must, however, provide support for the medical - scientific link which forms part of a 'reasonable hypothesis' where the Statement is relied upon to uphold the suggested chain of causation, which links the particular circumstances of a veteran's service to his or her injury, disease or death. Therefore, the factors contained in a s.196B(2) Statement must be such that it can be said, in relation to every person for whom a factor is relevant and who has suffered or contracted or died from the relevant kind of injury or disease, that a 'reasonable hypothesis' has been raised connecting that person's injury, disease or death with his or her service. … The Authority is an expert body comprised by a chairperson and four other members. One of these members must be a person having at least five years experience in the field of epidemiology (s.196L). The chairperson and the other members must be registered medical practitioners or medical scientists with at least 10 years experience (s.196M). The Council is also a body constituted by medical experts. Under s.169ZF the minister can only appoint a person to be a councillor if the person is a registered medical practitioner or medical scientist with at least 10 years experience. The Council is to have such numbers of members as the minister determines (s.196ZE). It is a body corporate with perpetual succession and its debts are taken to be incurred by the Commonwealth (s.196V). The main function of the Council is to carry out a review of the contents of Statements in respect of particular kinds of injury, disease or death by reviewing all information available to the Authority when it amended or determined the Statement under review (s.196W). By s.196Y the Council can be requested to review the contents of a Statement. Where it receives such a request and it is of the view that there is some medical evidence on which the Authority could have relied to amend or determine the Statement, the Council must make a declaration in writing, to amend the Statement, or to determine the Statement in accordance with directions of the Council. It may also remit the matter for reconsideration in accordance with any directions of the Council (s.196W(4))." 65 The decision and his Honour's views were noted without disapproval after an extensive review of the history of the provisions and the statutory scheme in re Jenkin v. Repatriation Commission (1997) 24 AAR 494. 66 The Full Court of the Federal Court in Repatriation Commission v. Deledio (1998) 27 AAR 114 described the statutory scheme as follows:- "The legislative scheme The scheme of the 1986 Act which, as we shall see, was supplemented by the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) (the 1994 Amendments) is as follows:- • Where a claim for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the death was war-caused, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination: s.120(1), 1986 Act. As we will see, s.120(1) is 'affected' by s.120A, one of the 1994 Amendments. • The Commission shall be so satisfied if, after considering the whole of the material before it, the Commission is of the opinion that this material does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered: s.120(3), 1986 Act. This provision is also affected by s.120A. • Except in making a determination to which s.120(1) applies, the Commission shall, in making any determination or decision, decide the matter to its reasonable satisfaction: s.120(4). This provision is affected by s.120B, another of the 1994 Amendments. • Nothing in s.120 or in any other provision shall entitle the Commission to presume that a death is war-caused: s.120(5). • Nothing in s.120 or in any other provision shall be taken to impose on - (a) a claimant; or (b) the Commonwealth, the Department or any other person - any onus of proving any matter that is, or might be, relevant to the determination of the claim: s.120(6). So far as is now material, these provisions were supplemented by the 1994 Amendments as follows:- • If the Repatriation Medical Authority (established under the 1994 Amendments) is of the view on the 'sound medical - scientific evidence' available it is more probable than not that a particular kind of death 'can be related' to operational service, the Authority must determine a Statement of Principles (SoP) in respect of that kind of death setting out - (i) the factors that must as a minimum exist; and (ii) which of those factors must be related to service - before it can be said that a reasonable hypothesis has been raised 'connecting' a death of that kind with the circumstances of that service. • If the Repatriation Medical Authority is of the view that on the sound medical - scientific evidence available it is more probable than not that a particular kind of death can be related to eligible war service (other than operation war service), the Authority must determine an SoP in respect of that kind of death setting out (i) the factors that must exist; and (ii) which of those factors that must be related to service - before it can be said that, on the balance of probabilities, a death of that kind is 'connected with' the circumstances of that service: s.196B(3) and the 1986 Act. These provisions should be read in the light of the following dictionary provisions:- Information about a particular kind of death is taken to be 'sound medical -scientific evidence' if: (a) the information: (i) is consistent with material relating to medical science that has been published in a medical or scientific publication and, in the Authority's opinion, has been subjected to a peer review process; or (ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and (b) in the case of information about how the kind of death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology (s.5AB(2) of the 1986 Act). A factor causing, or contributing to a death is 'related to service' if, inter alia: (i) it arose out of, or was attributable to, that service; or (ii) it was contributed to in a material degree by, or was aggravated by, that service: s.196B(14) of the 1986 Act. This provision is consistent with the definition of 'war-caused death' in s.8 of the 1986 Act. • In the case of a claim (as here) made on or after 1 June 1994 that relates to operational service, for the purposes of s.120(3) of the 1986 Act, 'a hypothesis connecting' the death of a person with the circumstances of any particular service is reasonable only if there is in force an SoP that upholds the hypothesis: s.120A(3) of the 1986 Act. • In the case of a claim made on or after 1 June 1994 that relates to eligible war service (other than operational service), in applying s.120(4) of the 1986 Act to determine a claim, the Commission is to be reasonably satisfied that the death of a person was war-caused only if: (a) the material before the Commission raises a connection between the death and some particular service; and (b) there is in force an SoP that upholds the contention that the death is, on the balance of probabilities, connected with that service: s.120B(3) of the 1986 Act." 67 Their Honours described the process of determination of a claim and the role the SoPs assumes at 159-160:- "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s.196B(2) or (11) of the 1986 Act. If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s.196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s.120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." 68 That scheme was also examined in detail by Heery, J. in Deledio (1997) 25 AAR 396 at first instance and in re Repatriation Commission v. McKenna (1997) 26 AAR 139 and has usefully been summarised by Lindgren, J. in Beale (supra). Since the history of the legislation in its various forms has been so often examined judicially and extensively it is not necessary for me further to dwell on it here. Construing the definition 69 It is appropriate that, adopting the modern purposive approach to construction in interpreting s.5AB(2) and in particular s.5AB(2)(b), I apply the views expressed in these cases and the extrinsic material concerning the role of SoPs in the determination of claims in considering whether the Act's requirements for the making of an SoP, or on review by the SMRC, envisage that it would be appropriate for the RMA or the SMRC to form a view that an hypothesised causal factor would only be included as "sound medical-scientific evidence" in the event that it satisfies a scientific test of causation, ie. scientifically proves a causative link between it and the kind of injury, disease or death in question, where that form of scientific proof accords with the available criteria for assessing causation currently applied in the field of epidemiology. This is the construction that it is asserted supports the mode of reasoning the plaintiff contends the SMRC adopted. It is in question whether such construction accords with the statute and if not, what appropriate process should be undertaken to identify "sound medical-scientific evidence". As I have said, both parties' submissions eschewed a construction favouring the discernment of a legislative requirement for a direct causal link to be established. The plaintiff contends that the construction applied by SMRC is an overly restrictive approach which incorrectly requires information to prove or establish causal links, even if not directly, rather than that it assist in identifying a causative potential. 70 I note from the language of the sections and the extrinsic materials, considered in the light of the case law, that the whole intent of the amendments was not to exclude an hypothesis as to causation in an individual case which was a reasonable hypothesis and within the ambit or based on factors stipulated in an applicable SoP. It is, in the light of the nature of the Act, its history, the case law and the extrinsic materials, highly unlikely that the requirements for causal factors in an SoP should be limited to those scientifically established to have that effect rather than those which have potential to have the causal effect. The necessity for the information to be capable of being assessed by scientific criteria for its causal value would be sufficient to enable the exclusion of hypotheses based on unassessable or incredible information. It is the exclusion of claims so based that is said to be the object of the legislation. 71 The very concept of an SoP as a template to prescribe the bounds of legitimate enquiry into causative factors points to a construction of s.5AB(2)(b) as referring to information as to factors having the capability of bringing about or contributing to the kind of injury, disease or death in question and that the assessment of information as to factors having that capability is to be according to the criteria for assessing causation currently applied in the field of epidemiology. 72 On my reading of the language, the definition in s.5AB(2)(b) does not deal with actual causes, scientifically proved causes or reasonable or other hypotheses. It deals with information about how particular kinds of injury, disease or death may be caused. The definition looks not to the factors but to information as to how those conditions might potentially be caused by factors. The information must be capable of having the criteria for assessing the potential for a factor to be causative applied to it. It is not whether the factor is causative that is the focus of the definition. It is the capability of application of the criteria to the information and whether the application of those criteria will permit assessment of how the condition may be caused by the factor. The criteria are applied to ascertain whether that information is of value for assessing, one way or another, the potential effect of a possible causal factor, not to exclude all information as to factors unless their actual causal effect is, by that information proved. 73 The definition would enable the exclusion of that information as to causes which is incapable of being assessed for the potential of a factor to be causal by the applicable criteria for the assessment of causation as currently applied in the field of epidemiology. Insofar as factors are relied on as direct or indirect causes (ie. as initiating or contributing) for that kind of injury, disease or death in question, information about them so far as concerns their causative capacity must meet the criteria, ie., be capable of being thereby assessed for the purpose I have described. 74 Unless the information is about how factors may be causes, it is merely necessary that it meet the criteria in s.5AB(2)(a), ie. as to consistency with published material which has been subjected in the opinion of the RMA is to a peer review or accord with generally accepted medical practice as a basis for diagnosis and management. It would be an error to exclude any such information as to an operative or contextual factor on the basis that, although it complied with (a), it did not comply with (b), if the information was not about how the condition might be caused, ie., linked to the production of or contributing to the condition in question. 75 The definition, in focusing on how a relevant condition may be caused, not only looks to information concerning causal potential but contemplates that information excluding a causal capacity would answer its requirements. If the information as to the factor and its relationship with the condition is about how the condition might be caused in some but not all cases and that information is assessable using the criteria it would answer the definition (albeit care would need to be taken in expressing width of the relevant factor in an SoP). 76 Information whose value is assessable under the criteria relevant to the causal potential or capacity of a factor, would be sound medical-scientific evidence and, ex hypothesi, it would be an error to require the information to be shown to be in every case such as to establish an operative causal factor. 77 To require its actual causal effect and the extent of it to be established and stipulated in an SoP before a claim reliant on it in whole or in part could succeed, would involve a great departure from the purpose the extrinsic material shows the provision was meant to achieve. It would result in the rejection of reasonable hypotheses and fanciful hypotheses alike by cutting the ground from under all hypotheses except those relying on information which had already been determined to prove a causal link, ie. those reliant on proven rather than hypothetical states. 78 Thus, I have concluded that it is the capability of the information of allowing the assessment of causation that is in question, not whether in fact a factor is causative. The latter is left to the determination in the individual case. The SoP prescribes those factors which may have that capability according to information meeting the applicable criteria. It is in error for the RMA or the SMRC to require that a causal link, be demonstrated such that the principles of epidemiology would regard that link as established before such a factor is included in an SoP. The plaintiff's submissions 79 I therefore accept the submission put on behalf of the plaintiffs that the Act proposes a beneficial test of causation as is shown in the language of s.196B(2) as compared to s.196B(3), cf. the Explanatory Memorandum at p.10:- "New s.196B(2) requires the Repatriation Medical Authority to determine a Statement of Principles, in circumstance where it is of the view that there is sound medical-scientific evidence justifying it doing so, relating injury, disease or death to the minimum factors it considers necessary before a reasonable hypothesis can be raised." 80 I accept what is submitted in paragraphs 26, 27, 28 and 29 of the plaintiff's submissions which is as follows:- "26. To construe s.5AB(2) so as to enable the fullest operation to the beneficial standard of proof would be consistent with the opinion of Heerey, J., specifically approved by the Full Court of the Federal Court, that: 'the new regime of SoPs has to be given an operation consistent with ss.120(1) and 120(3) as expounded by the High Court in Bushell and Byrnes' [Deledio's case (supra) at 410, Full Court at 13]. 27. It is consistent with the Minister's statement: 'These changes maintain a beneficial repatriation system, including a "reasonable hypothesis" standard, as modified as I have already outlined, for deciding compensation claims for death or disease or relating to eligible war service. There has not been a return to a civil standard of proof …' [Hansard, House of Representatives, 9 June 1994, p.1809. See s.15AB of the Acts Interpretation Act 1901 (Cth)]. 28. It is consistent with the Explanatory Memorandum's understanding that 'full scientific proof will not be required for an hypothesis to be reasonable and more than a single hypothesis of causation in relation to a disease, injury or death can be reasonable', and that for veterans without operational service 'the Authority will … determine medical contentions at the "reasonable satisfaction" standard of proof of s.120(4)' [Explanatory Memorandum, House of Representatives, for the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth), p.3]. 29. It is consistent with the court's obligation to prefer a construction promoting the objecting underlying the Act [s.15AA of the Acts Interpretation Act 1901 (Cth). As to the beneficial nature of this legislation: Repatriation Commission v. Hawkins (1993) 45 FCR 205 at 211], and with "the modern approach to statutory interpretation [which] (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. … Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent' [CIC Insurance Limited v. Bankstown Football Club Limited (1997) 187 CLR 384 at 408. See also Saraswati v. The Queen (1991) 172 CLR 1 per McHugh, J. at 22 citing Cooper Brookes (Wollongong) Pty. Limited v. Commissioner of Taxation of the Commonwealth (1981) 147 CLR 297]." 81 As is submitted by the plaintiff, in the event that "sound medical-scientific evidence" prescribes actual causes then the necessity for further enquiry into relationship would seem of little utility. It would only be necessary to deal with possible exposure in service. One would no longer be dealing with reasonable hypotheses but actual proved causes. Indeed the distinction between a proposition "not obviously fanciful, impossible, incredible, not tenable or too remote or too tenuous", "more than a possibility, not fanciful or unreal, consistent with the known facts" (see East v. Repatriation Commission (1987) 16 FCR 517 at 532-533) illustrates the very difference. Where the aetiology of a disease, injury or death is uncertain, and there is information as to factors which are capable of assisting the determination of whether that kind of disease, injury or death can be related to war service, such information will be sound medical-scientific evidence if it meets the criteria in s.5AB(2)(a) and (b) and insofar as that information is about the causative capacity of a factor, ie. whether it is capable of causing that disease, injury or death, if it is not excluded by the current epidemiological criteria and is assessable by them. 82 I am fortified in my conclusion by the exegeses on causation and the treatment of it in the Act from time to time in those cases which trace the history of the Act I have referred to above and those which are set out in the submissions and the discussion of the continued acceptability of reasonable hypotheses contained in the extrinsic materials provided. Instances of error 83 There are within the reasons of the SMRC, both generally and in particular, illustrations showing that the Council has thus erred in its approach to its task in both matters when I apply the construction I favour. The extracts set out in paragraphs 21 and 23 above from each set of reasons display generally the error of approach. 84 Further, when one turns to the examination of the specific issues in each set of reasons, it can be seen that the SMRC was concerned to ascertain whether causation had been established by particular factors. 85 An illustration of the application of a necessity of scientific proof according to the criteria of epidemiology of causation, in particular, is to be found at p.36 and following of the reasons in respect of SoPs 95 and 96 of 1995 under the heading "Studies concerning smoking and prostate cancer". The reasoning appears to deal with a direct causative relationship between smoking and prostate cancer rather than examining information about the causative potential of smoking as a factor in a disease, injury or death occasioned by prostate cancer. The nature of association being discussed appears to be that of a direct link. A mortality associated with contra-indications for surgery, otherwise available, to prevent or minimise the risk of injury, disease or death from prostate cancer where the contra-indicators are occasioned by smoking, would illustrate an association which might well relate a particular kind of disease, injury or death to war service where war service is related to smoking as a logical proposition. Such may be the case as to a link between a diet rich in animal fat and high energy carbohydrates and prostate cancer. One would not have thought that information of those kinds would be excluded by the criteria. Interestingly, where the SMRC turned to inability to obtain appropriate clinical management, it did not re-examine the effects of smoking induced contra-indications but accepted that information as to those matters might constitute sound medical evidence on the basis of sub-paragraph (a)(ii) of the definition in s.5AB(2). 86 The portion of the SMRC's reasons headed "Assessment of cigarette smoking theory against Bradford Hill criteria" commencing at p.39 appears to proceed on the basis that it is necessary for the Bradford Hill individual criteria discussed to be positively met and to be of substantial strength overall before it can be said that cigarette smoking as a factor is supported by sound medical-scientific evidence. The criteria were applied to ascertain whether the link could be directly established, and to whether to substantial extent not whether the information was required to be excluded as describing how the death, disease or injury may be caused or showed potential causal effect. 87 Similarly, later in the reasons the dismissal of the Morrison Study on the basis that it fails to demonstrate sufficient strength, to provide sufficient information of sufficient weight and demonstrate an appropriate mechanism indicates, in my view, error. 88 In relation to SoPs No. 95 and 96 of 1995, the conclusion of the SMRC was as follows:- "Conclusion The epidemiological criteria, not having been satisfied in relation to cigarette smoking and prostate cancer, there is no sound medical-scientific evidence that justifies the inclusion of cigarette smoking as a factor in a Statement of Principles concerning malignant neoplasm of the prostate." 89 That conclusion appears to proceed upon the basis that causation has not been proved according to those criteria. In view of the task conferred upon SMRC of ascertaining what is sound medical-scientific evidence, it also appears to be circular. I am of the view the SMRC fell into error for the reasons I have given. 90 In the reasons of the SMRC when reviewing SoPs 245 of 1995 and 246 of 1996 there is the same error. 91 That error is further particularly illustrated there when, in discussing the role of trauma, the distinction is drawn between trauma that revealed motor neuron disease, which had been present for decades, and traumata which themselves, by somehow affecting the body, caused the development of motor neuron disease, ie. a distinction between a coincidental association or a direct cause. The lack of established temporality led to the SMRC concluding that the material did not establish cause at sufficient strength. 92 As to "the 'solvent' theory", the SMRC noted the claims of strength of association between organic solvents and motor neuron disease and the original acceptance of the Repatriation Commission noted above of the inclusion of solvents as a causal mechanism but also noted the later view of the Commission:- "… that there is some evidence of a causal relationship but would also note that the evidence is weak and accepts that the Authority may well have been correct in judging that the relationship was not truly causal". 93 In this passage is expressly encapsulated the error I have detected in application of the provisions in the light of the construction I have held is appropriate. Unless the information established cause, it was held not to be "sound medical-scientific evidence". 94 The SMRC concluded:- "Without the particular evidence on the specific criteria of exposure to any solvent, a contention was not possible for either Statement of Principles." 95 Thus no factor of this kind (however described) was to be included in the SoP notwithstanding there was material before the SMRC which on its own analysis appeared to answer the epidemiological criteria as to potential or capability to some degree at least. The objections arising from a lack of clarity as to the specificity of the association between the relevant conditions and solvents and the treatment of the aspects of duration and particular substance within the category "organic solvents" show that what was required of the factor "exposure to organic solvents" was not only information as to capacity to be causal but the establishment of a direct cause. Conclusion 96 I therefore conclude that in each proceedings it has been established that the SMRC fell into relevant error as to the construction and application of the statutory test that it was required to apply such that in prescribing the quasi-legislative instruments provided for by the legislation, it has failed to observe the legislative requirements. I also conclude that it erred procedurally in failing to afford the plaintiff the statutory opportunity to be heard on matters wider than those raised in the application for review in the specific instance to which I have referred. 97 Having reached these conclusions, it may well be that it is not necessary for me to examine any further questions in this litigation before turning to the appropriate relief. 98 The matter will therefore be re-listed before me to permit the parties to prepare short minutes to give effect to these views I have formed, otherwise to nominate such further questions as it may be necessary to deal with, if any, and if necessary, for directions as to any argument or submissions on the appropriate relief and costs.

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Judgment (8 paragraphs)

Legislation Cited (13)

Cases Cited (18)