26 To consider the first basis upon which the Association seeks to impugn the 3 August 2001 declarations, it is necessary to refer to the relevant provisions of the Act. Though there was a dispute about what material the Council should have had recourse to in a review, there was generally no issue about what the Council was required by the Act to do in a review. In issue was whether it did what was required by the Act in the review leading to the 3 August 2001 declarations. It will be necessary to discuss in more detail later, provisions regulating the review process but it is sufficient for present purposes, to outline how a review is undertaken.
27 It was common ground that a review by the Council is to be undertaken in the following way. The Council "must….carry out a review of all the information that was available to the Authority when it determined, amended, or last amended, the Statement of Principles" (see s 196W(2)). Then it must consider whether "there is sound medical-scientific evidence on which the Authority could have relied to amend the Statement of Principles in force" or which "justifies an amendment of the Statement of Principles in force" (see the opening words of s 196W(4) and (5)). When this is done the Council must do one of two things. If amendment is appropriate, it should direct the Authority "to amend the Statement of Principles" or to reconsider "the matter" in accordance with its directions or recommendations (see s 196W(4)). If amendment is not appropriate, it should declare that there is "no sound medical-scientific evidence that justifies" an amendment or that "the sound medical-scientific evidence is insufficient to justify" an amendment (see s 196W(5)).
28 In undertaking a review when the Authority has declined to amend a Statement of Principles, the Council asks itself the same questions that the Authority asks when considering whether to amend a Statement of Principles. Section 196B(8) confers power on the Authority to amend and it must ask whether current sound medical-scientific evidence "justifies….an amendment of the Statement of Principles already determined". In making this assessment, the Authority approaches the matter in the way it would when considering whether to make a Statement of Principles. That is, the Authority addresses the issues raised by s 196B(2) in relation to a Statement of Principles for operational service and raised by s 196B(3) in relation to a Statement of Principles for non-operational service.
29 Accordingly, when the Council is considering in a review whether a Statement of Principles (concerning operational service) should be amended by including an additional factor (such as smoking), it must ask whether the factor (if found to exist in a particular case) could provide a link or element in a reasonable hypothesis connecting the defined types of service to a particular kind of injury, disease or death. When considering in a review whether a Statement of Principles (concerning non-operational service) should be amended by including an additional factor, the Council must ask whether the factor (if found to exist in a particular case) could provide a relevant connection between a kind of injury, disease or death and the types of service referred to in s 196B(3) according to a standard of satisfaction "on the balance of probabilities" or as being "more probable than not".
30 It can be seen that in the concluding paragraph of the Council's reasons (par [56] set out at [23] above), no reference is made to either "a reasonable hypothesis" or "on the balance of probabilities" (or an analog of that expression). What the Council did say that might be referable to these means of analysis appears in the highlighted passage of that paragraph. That is, it said it was not satisfied on the basis of the materials before it, and the submissions addressed to it, that there was sufficient evidence of sufficient weight before it to support a causal link between smoking and prostate cancer. This was said after the Council accepted that it could not exclude the possibility that there was a causal connection between smoking and prostate cancer. The Council also indicated at this point in its reasons that there was a significant amount of published evidence to refute the likelihood that there was such a causal connection or link.
31 The first issue raised by the Association has two elements. The first is whether these statements by the Council, viewed in the context of their reasons as a whole, should be taken to represent a finding or determination answering the question required to be answered in relation to the possible addition of a factor to a Statement of Principles concerning operational service (discussed in [29] above). The second is whether, if they are, they would also be, or could be treated as, a finding or determination answering the analogous question in relation to a Statement of Principles concerning non-operational service and if not, whether that involved reviewable legal error.
32 Consistent with the judgment of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ and Toohey, McHugh and Gummow JJ) and at 291-292 (Kirby J), the reasons of the Council should not be "scrutinised by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". That is not to say, however, that in appropriate cases the lawfulness of a decision should not be determined by reference to the language actually used: see Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd (1988) 62 ALJR 426. However, the failure of the Council to use the expression "reasonable hypothesis" in its conclusion would not warrant, in my opinion, a finding that it failed to address and appropriately answer the relevant question (concerning operational service) if the substance of what appeared in its decision indicated the question had been addressed and appropriately answered.
33 A convenient reference point concerning what constitutes a reasonable hypothesis remains East v Repatriation Commission (1987) 16 FCR 517. That case was decided in 1987, and since then the High Court has twice considered the statutory scheme. First in Bushell v Repatriation Commission (1992) 175 CLR 408 and later in Byrnes v Repatriation Commission (1993) 177 CLR 564. The approach of the Full Court in East v Repatriation Commission was referred to with apparent approval by several members of the High Court in Bushell v Repatriation Commission and, on one view, by all members of the Court. In Byrnes v Repatriation Commission the High Court repeated the passage from the judgment of Mason CJ, Dean and McHugh JJ in Bushell v Repatriation Commission apparently approving East v Repatriation Commission. After the two High Court decisions four judges of this Court in Repatriation Commission v Bey (1997) 79 FCR 364 repeated, with obvious approval, the approach in East v Repatriation Commission. In Repatriation Commission v Bey, Northrop, Sundberg, Marshall and Merkel JJ said (at 371):
"East concerned a claim for pension by the widow of a veteran who had died from a disease of unknown aetiology. The Tribunal found that none of the hypotheses advanced to connect the death with war service was reasonable. On appeal to the Full Court the widow contended that where the cause of incapacity or death or the aetiology of a disease causing incapacity or death is unknown, there must, necessarily, be a real possibility of connection; hence the claim must be allowed. The Full Court rejected the contention on the ground that it paid "insufficient regard both to the history of the legislation and to the meaning of the phrase 'reasonable hypothesis'": (1987) 16 FCR at 531‑532.
After referring to the amendments which were intended to negate the effect of O'Brien, the Full Court said that if the widow's submission were correct, "the pre‑1985 position would be retained".
The Court approved the following passage from the decision of the Veterans' Review Board in Stacey (unreported 26 June 1985):
The addition of the word "reasonable" would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility ‑ it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be "raised" by material before the Board, we think it must find some support in that material ‑ that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis.
Putting the matter in its own words, the Full Court said at 533:
A reasonable hypothesis requires more than a possibility; not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
The Full Court's ruling as to the meaning of "reasonable hypothesis" has been applied by later Full Courts: Webb v Repatriation Commission (1988) 19 FCR 139 (Davies and Foster JJ); Repatriation Commission v Whetton (1991) 31 FCR 513 at 515 (Beaumont, Burchett and Lee JJ) and Bell v Repatriation Commission (1992) 26 ALD 545 at 546 (Davies, Beaumont and Einfeld JJ). The ruling was expressly approved by Brennan J and Toohey J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 427‑428 and 439."
34 Because the Council did not, in terms, refer to "a reasonable hypothesis" it is necessary, in my opinion, to examine the Council's reasons with some care to ascertain whether it considered the question of whether there was such a hypothesis in a way that is in accord with existing authority. In par [51] of its decision (set out at [23] above) it identified its "task". It was said to entail considering whether the material before it provided sufficient evidence of a causal relationship between smoking and prostate cancer. The Council went on to say, in effect, that there would be sufficient evidence of a causal relationship (justifying amendment of the Statements of Principles) if the evidence was of statistical significance by applying indicators such as scientific judgment and the Bradford Hill criteria. An overview of the Bradford Hill criteria is helpfully found in the judgment of the Chief Justice in the Court of Appeal in Repatriation Commission v Vietnam Veteran's Association of Australia NSW Branch Inc (at [97] to [103]) (the paper by Sir Austin Bradford Hill is in evidence in these proceedings but was not referred to by the parties). Those criteria provide a means of ascertaining whether a causal relationship is established. The Council's identification of its task is consistent with what it had to do, namely ascertain whether there was any material supporting the existence of a causal relationship at all and if so, was the undemanding threshold of "reasonable hypothesis" reached. The Council's observations in this paragraph are consistent with it addressing the question raised by s 196B(2).
35 In the next paragraph of the Council's decision (par [52]) the Council again referred to what it understood it must do. In the second sentence, the Council spoke of it having to "determine whether there is sound medical-scientific evidence to support the proposition that smoking is a cause of prostate cancer". This statement is more problematic because the description of something as a proposition may imply a degree of connection between two elements that would not be suggested if the words or expression "an hypothesis" or even "a reasonable hypothesis" were used. However any difference in meaning is a subtle one and does not justify an inference that the Council was not addressing the question posed by s 196B(2). Indeed the word "proposition" was used as a synonym or at least an analogue of "reasonable hypothesis " by Lee and Cooper JJ in Repatriation Commission v Keeley (2000) 98 FCR 108 at [11].
36 This leads to a consideration of the critical part of the Council's decision, par [56]. It is possible to read the paragraph and conclude that the Council addressed what might be viewed as the two relevant aspects of a reasonable hypothesis emerging from East v Repatriation Commission. First, for an hypothesis to be reasonable something more than a possibility is required. The Council said, in effect, in the second sentence of that paragraph that the possibility of a causal connection between smoking and prostate cancer is apparent from the material it considered though this is not expressed affirmatively. That is, the Council said it could not exclude the possibility. It is relatively clear that the Council understood that this did not end its inquiry. That is because it went on to refer to the insufficiency of evidence of sufficient weight to support a causal link. However was the Council expressing an opinion that the hypothesis that smoking is relevantly linked to prostate cancer was obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous? That is, did it involve the expression of an opinion that the hypothesis was not reasonable? Fairly clearly if the Council was addressing an hypothesis it was not characterising the hypothesis as obviously fanciful, impossible, incredible or not tenable. However the language used is consistent with the Council indicating that the possibility of a causal link, that might have been characterised as an hypothesis, was too tenuous to be reasonable having regard both to the amount and quality of the evidence supporting the existence of a causal link as well as material indicating there was not one. I accept that the way the Council expressed itself might lead a critical inquirer to conclude that it was addressing a question involving a level of connection between smoking and prostate cancer beyond a reasonable hypothesis. However if the way the Council expressed itself can be viewed as revealing that it addressed and answered the right question, it would be wrong, in my opinion, for this Court to conclude that either the Council did not understand its task, or did but failed to perform it (whether inadvertently or not).
37 To this point I have proceeded on the basis that the Council was addressing in its decision whether there was a reasonable hypothesis concerning a causal relationship between smoking and prostate cancer. That is, I have assumed it was addressing the question raised, by the indirect route discussed earlier, by s 196B(2). On that assumption it is possible, as I have endeavoured to illustrate, to reconcile the various statements it made about what it was doing and the conclusions it reached with its function under the Act in reviewing the operational service 1996 amendment. If so, it would not have been addressing the non-operational 1996 amendment at least directly. It may have been doing so indirectly if, as a matter of fact and law, a conclusion that an operational Statement of Principles should not be amended in a particular way by adding a factor necessarily leads to a conclusion that a non-operational Statement of Principles concerning the same subject matter should also not be amended in the same way.
38 However I apprehend that the Council thought that it was necessary only to consider the operational 1996 amendment because the argument advanced by the Association (and others) was based on the evidence of Professor Kune who had indicated, as recorded in par [31] of the Council decision, that his opinion only supported an amendment to a Statement of Principles under s196B(2). The clear implication of the position Professor Kune adopted (as revealed more clearly in the summary of his position in pars [32] and [33] of the Council's decision) was that a causal link could not be established on a balance of probabilities approach. It would seem to follow that he was not advocating (nor, by implication, were the Association and the other applicants advancing as a contention) that there was material justifying the amendment of the non-operational service 1995 Statement.
39 I am satisfied, that on a fair reading of the Council's decision, it asked and answered the question whether a reasonable hypothesis concerning smoking and prostate cancer was raised by the pool of medico-scientific material before it. While it did not go on to discuss in its decision the question of whether smoking was a factor (if found to exist in a particular case) which could provide a relevant connection between prostate cancer and the types of service referred to in s 196B(3) according to a standard of satisfaction "on the balance of probabilities" or as "more probable than not", it was not necessary to having regard to the ambit of the issues raised by the material presented by the parties.
40 While no party relied on this point, the 1997 review application (an application by the Association) only sought, in terms, review of the operational service 1996 amendment and did not raise for consideration directly the non-operational service 1996 amendment and indirectly the non-operational service 1995 Statement (other applications considered by the Council at this time which it referred to in its decision, also did not request consideration the non-operational 1996 amendment). It is true that the declarations the Council made which are challenged in these proceedings concerned not only the operational 1996 amendment but also the non-operational service 1996 amendment. Perhaps the declaration concerning the non-operational service 1996 amendment was made out of an abundance of caution. For my part, I do not see how the declaration had any legal effect as it related to the non-operational service 1996 amendment. It did not resolve or determine adversely to the Association any contention being advanced by it and did not alter what the Authority had earlier done. The Association has not established that the Council erred on the basis raised in its first contention.
41 I turn to consider the second issue raised by the Association in these proceedings. Several provisions of the Act relate to the material that should be before the Council when it conducts a review. Section 196Y(2) enables a person or body specified in subs 196Y(1) to ask the Council to review the contents of a Statement of Principles (or a decision of the Authority not make a Statement of Principles in respect of a particular kind of injury, disease or death). When such a request is made, the Secretary of the Department (see s 5Q) must send the request to the Council and must notify the Authority of the request within 28 days: see s 196Y(4).
42 When the Authority is notified in this way, it is obliged by s 196K to send the Council a copy of all the information that was available to it when it determined, amended, or last amended, the Statement of Principles if the review sought was of a Statement of Principles. If the review sought was of a decision of the Authority of a different character (but specified in s 196K), then the Authority must send the Council a copy of all the information that was available to it when it decided, or last decided not to determine a Statement of Principles in respect of that kind of injury, disease or death (if that was the specified decision under review) or a copy of all the information that was available to it when it decided under s 196C(4) not to carry out an investigation (if that was the specified decision under review). This section serves the purpose of identifying the relevant material which had been before the Authority which must be forwarded to the Council. The significance of this is apparent from s 196W(2) (set out at [4] above). That subsection provides that the Council must, for the purposes of undertaking a review, carry out a review of all the information that was available to the Authority when it made a decision of the type that is amenable to review.
43 Counsel for the Commission submitted that it is apparent from s 196W(2) that the Council's task is to undertake the review by reference to the information that had been available to the Authority when it took the step or made the decision to which the review relates and nothing more. Counsel for the Association appeared to accept that the review was to be undertaken by reference only to material that had been before the Authority. No doubt this position was taken because of the decision of the Court of Appeal in Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc. The Chief Justice concluded (and the other members of the Court of Appeal agreed) that the Council when carrying out a review of information "available to the Authority" must restrict its consideration to information that was in fact before the Authority. However counsel for the Association submitted, in the circumstances of this case, the information should have included the material before the Authority when it made the two Statements of Principles in 1999. It is to be recalled from the Council's decision, that it declined to consider more recent material advanced by the Commission.
44 No party submitted that the word "review" in s 196W might indicate limits on the material the Council could refer to when undertaking a review. It is a word of wide meaning but dependent upon context: see Adams v Yung (1998) 83 FCR 248 at 301 and also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 and McDonald v Guardianship and Administration Board [1993] 1 VR 521. The submission of counsel for the Commission was based on a comparatively straightforward interpretation of the relevant provisions. A review is sought under s 196Y, the Authority forwards the information it had to the Council as required by s 196K and the Council reviews that information as required by s 196W.
45 The submission of counsel for the Association was less straightforward though also based on the terms of the relevant sections. It was to this effect. A review of the type presently under consideration is of the contents of a Statement of Principles: see s 196Y(1)(d). However such a review must be sought within three months of the making or amendment (including further amendment) of the Statement of Principles: see s 196Y(2)(a). What is contemplated is that the Authority takes a step in relation to a Statement of Principles (the possible steps being determination, amendment or further amendment: see s 196Y(2)(a)) and a review of the contents of the Statement can then be sought within three months of the step being taken. Having regard to the terms of s 196K, what the Authority must send to the Council is the information that was before the Authority when it determined, amended or last amended the Statement of Principles.
46 Situations could arise where a review had been sought of a step taken by the Authority in relation to a Statement of Principles (but the review had not been undertaken by the Council), and a further step (or even several steps) taken by the Authority (possible further steps being amendment, further amendment or the making of another Statement of Principles dealing with the same subject matter). In those circumstances (which arose in the present case before the Council's consideration of the 1997 review application) the Authority would have to forward to the Council under s 196K the material which had been before the Authority when it took any relevant step (including the most recent step) if the step was taken before the review by the Council was undertaken. Thus, in the present case, the Authority had to forward to the Council not only the information that had been before the Authority when it decided to amend the two Statements in 1996 (which precipitated the request for a review) but also the information before the Authority when it decided to make both the operational service 1999 Statement and the non-operational service 1999 Statement which was a step taken before the Council undertook its review (leading to the 3 August 2001 declarations).
47 The Council was obliged to review the Statement of Principles "in force" (that expression appears, relevantly, in s 196W(4)) which is a reference to a Statement "in force" at the time the view is formed by the Council under s 196W(4) and not "in force" at the time the Authority took the step that initially gave rise to application for review if some further step has been taken by the Authority. Counsel for the Association submitted that on this construction of the Act, the Council would have before it the most recent medico-scientific information that had been before the Authority when it most recently considered the Statement of Principles. While this approach has much to commend it, as a practical matter, it does not accord with what I view is the legislative scheme.
48 In my opinion, the system of review was intended to operate in the following way. What follows has a bearing on not only the question of what material the Council should have considered in dealing with the 1997 review application, but also on the status of the 1995 review application. The Authority can undertake, relevantly for present purposes, two types of investigation though they are plainly related. The first may lead to the making of a Statement of Principles (see: s 196B(5) and (2) or (3)) though it may not (see s 196B(6)). This first type is an investigation under s 196B(4). Such an investigation results from a request from a body such as the Association (see: s 196E(1)(d)) or is on the initiative of the Authority (see: s 196B(4)(b)).
49 The other type of investigation is undertaken under s 196B(7). It is, and is described in various relevant sections as, a review of what the Authority had earlier done. This second type of investigation may lead to the amendment of a Statement of Principles (see: s 196B(8)(b)) or its revocation and replacement (see: s 196B(8)(c)). This second type of investigation may also lead to the making of a Statement of Principles (see: s 196B(8)(a)). It also may lead to a conclusion that none of the three steps described in the preceding two sentences is warranted (see s 196B(9)(b)). This second type of investigation may (but need not) result from a request by a body such as the Association (see: s 196E(1)(c) and (e) or (f)). It is significant, in my opinion, that an applicant seeking this second type of investigation (a review), must state the grounds upon which the review is sought and identify any information relied on to support those grounds (see s 196E(3)). The Authority can decide not to carry out the investigation if no grounds are stated or the information identified is inadequate (either to support the grounds or otherwise justify the review) (see: s 196CA). These requirements suggest that this second type of investigation is intended to have a focus or direction arising from the terms in which the application is made.
50 It is also significant, in my opinion, that the Authority, when undertaking the second type of investigation must investigate whether there is "new information" concerning the matters referred to in s 196B(7)(d) or (e). It then must form a view about whether there was a "new body of sound medical-scientific evidence available that, together with the sound medical-scientific evidence previously considered by the Authority" which would justify making a Statement of Principles, amending an existing Statement of Principles or revoking an existing Statement of Principles and replacing it with a new one. It is comparatively clear, in my opinion, that when undertaking this second type of investigation, the Authority must look at material it had earlier looked at and any new material (subject to the limits imposed by s 196C).
51 If the Authority undertakes an investigation of this second type and reaches a conclusion which is amenable to review by the Council and a review is sought, the Council is, in its review, obliged to consider the material that had been considered by the Authority. That is, the material the Authority had earlier looked at and any new material the Authority had looked at in the more recent investigation. However what the Council is doing in its review is reviewing the material which led to the decision of the Authority to make, amend or revoke and replace a Statement of Principles or decide (under s 196B(9)(c)) not to do any of these three things. If the decision of the Authority was to amend a Statement of Principles (as occurred in 1996 in the present case) then what is exposed for review was the material which led to the decision to amend, namely the new material together with the earlier material which would include the material that led to the making of the Statement of Principles.
52 For my part, what the statutory scheme does not make clear is what is the scope of the review by the Council when it is reviewing the second type of investigation undertaken by the Authority. On one view of the provisions, if the decision of the Authority had been to include, by amendment, (or refuse to include) a factor not then in the Statement of Principles, the power of the Council to review would be effectively limited to considering whether the decision to include (or refuse to include) the factor was warranted having regard to the new material together with the earlier material. Thus the amendment of a Statement by the Authority (or a decision not to amend) to include a factor would not necessarily expose for consideration by the Council when undertaking its review, all aspects of the Statement because the "new information" and the "new body of sound medical-scientific evidence" may have concerned only a particular aspect of the matters the Statement had addressed or might address.
53 On another view of the provisions, the review by the Council exposes for consideration all aspects of the Statement of Principles by reference to the new material and the earlier material. It does not simply expose for consideration whether the Statement should be or should have been amended. On this approach (which, as I discussed earlier in [13] above, was the approach apparently adopted by the Council when dealing with the 1997 review application and related applications) the review by the Council would not necessarily involve a consideration of the "new information" and the "new body of sound medical-scientific evidence" but could involve a consideration of the contents of the Statement of Principles only by reference to the material the Authority considered when the Statement was first made. That might occur because the person or body initially seeking the investigation or review by the Authority raised only one contention in its grounds in the application for review. It may have involved a contention that the Statement of Principles should be amended to, for example, include a factor. The information identified by the applicant may ultimately be the only "new information" considered by the Authority. However if an applicant can seek a review of the Statement of Principles by the Council and raise any aspect of the Statement of Principles, then there can be an obvious discord between what the Authority had been asked to do and what the Council was being asked to do. It could lead to a situation where the Council was considering how the Statement of Principles should be framed by reference only to the material initially considered by the Authority when the Statement was made. In such a case it would not be considering the "new information" which would have been considered by the Authority in making the decision which led to the application for review by the Council.
54 One indication of the character and scope of the review is found in s 196Y. The following is the description given of what is the subject matter of the review sought under that section:
"(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."
This description suggests that the second approach discussed in the preceding paragraphs correctly describes the scope of the review. It is of the "contents of a Statement of Principles" or a decision not to make one. The entire contents of the Statement are reviewed (by reference to the material that had been before the Authority) and not simply any amendment to the Statement that may have been made by the Authority by reference to that material. A similar description in these general terms is found in s 196W(2) though it is in an expanded form. It is also the description in s 196K.
55 However the role of the Council established by s 196W in a review does not, in my opinion, support this wider view of the Council's role and the scope of the review. It is tolerably clear that the Council's function under s 196W(4) is enlivened if the Authority had not amended or made a Statement of Principles in circumstances where the material would have, in the Council's opinion, warranted the Authority taking one of these steps. So much is apparent, in my view, from the use of the expression "on which the Authority could have relied". This subsection is dealing with circumstances where the Authority could have (by reference to the material), but did not, amend or make a Statement of Principles. The Council can take steps to reverse the Authority's decision (by declaration together with either a direction or a remitter: see s 196W(4)(c) or (d)). The Council's function under s 196W(5) is the opposite. It is to reverse the decision of the Authority (in the sense that the Council declares its contrary view) to make or amend a Statement of Principles where there was no, or insufficient, medical-scientific evidence to justify the step taken by the Authority.
56 These provisions indicate, in my view, that the function of the Council in a review is to assess whether the step taken by the Authority (enlivening the right to seek a review under s 196Y) should have been taken having regard to the material before the Authority. Thus if the step taken by the Authority was to make a Statement of Principles (either initially or in combination with the revocation of an existing one), and a review is sought, the Council considers whether the making of it was appropriate. If the step taken was to refuse to make one, the Council considers whether the refusal was appropriate. Similarly if the step taken by the Authority was to amend a Statement of Principles (either a first amendment or a subsequent amendment) and a review is sought, the Council considers whether the amendment was appropriate. If the step was to refuse to amend one, the Council considers whether the refusal was appropriate.
57 If this description of the Council's functions is correct, then it is tolerably clear, in my opinion, that the submission of the Commission concerning the material that the Council is to take into account, is correct. The review by the Council is to assess whether an earlier step taken by the Authority should have been taken. If, therefore, the focus of the review by the Council is the earlier step taken by the Authority (enlivening the right to seek a review) then it is unlikely that the legislature intended that the Council would consider anything other than the material that had been considered by the Authority when taking the earlier step. The words "in force" in s 196W(4)(a) is a reference to the Statement in force when the Authority took the step sought to be impugned in the application for review to the Council. That is, "in force" when the Authority failed to take, or took, the step challenged in the application for review. The expression has, in my opinion, the same meaning in s 169Y(1)(d). I am not satisfied the Council erred in refusing to take into account material in the review arising from the 1997 review application which had not been considered by the Authority when the Authority made the operational 1996 amendment and the non-operational 1996 amendment.
58 This leads to a consideration of the 1995 review application. On the construction I favour of the provisions concerning the Council's functions in a review, it was required, by the 1995 review application, to assess whether the material considered by the Authority justified it making the two 1995 Statement of Principles in the terms it did. That is, it had to assess, having regard to the matters raised by the Association in the application, whether the material considered by the Authority at the time it made the Statements might have warranted the making of Statement of Principles in different (and wider) terms by including smoking as a factor. The Council has never done this. It is true that in dealing with the 1997 review application the Council, as a matter of fact, addressed the relationship between smoking and prostate cancer. In my view, it probably erred in doing so. I put this in a qualified way because it was not a contention advanced, at least directly, by any party. It probably erred, in my opinion, because the review of the material by the Authority leading to the operational and non-operational 1996 amendments (which enlivened the right of review) was not directed to ascertaining whether smoking should be included as a factor. However it does not follow that merely because the Council, as a matter of fact, has considered the relationship between smoking and prostate cancer since the two Statement of Principles were made in 1995, the Council is absolved from its statutory duty to undertake the review arising from the 1995 review application. It is a duty the Council must discharge. It is not my task to ascertain whether this will be a barren or futile exercise. It will depend on the Council's assessment of the medical-scientific evidence before it (even though it will be dated). This conclusion is subject to one qualification. It concerns the effect of the revocation and replacement of the two 1995 Statements in 1999 by the Authority.
59 A submission was made on behalf of the Council that it did not have power to undertake a review of the Statement of Principles made in 1995 (when dealing with the 1997 review application) and did not have the power to make the 3 August 2001 declarations. At least implicit in this submission is that the Council could not undertake a review to deal with the 1995 review application. This submission was made by the Council while acknowledging the limits on its role in proceedings such as these arising from the decision of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13. However the explanation given on behalf of the Council for making the submission it did, was that it wished to explain why it had earlier indicated it would consent to an order in these proceedings setting aside the 3 August 2001 declarations. For my part, I would have thought that if the Court is not asked to deal with the Association's application by making orders consented to by all parties, whether one respondent (or indeed all respondents) consented to the relief sought by the applicant becomes irrelevant as do the reasons why that respondent would have consented.
60 However in R v Australian Broadcasting Tribunal; ex parte Hardiman, the High Court indicated (at 36) that a tribunal, in a case of the type then before the Court (which is analogous to the present proceedings) might make submissions about its powers and procedures. On that basis, the submissions of the Council are probably appropriately made. The Commission adopted those submissions. The Association put in issue that the revocation of the Principles made in 1995 had the effect contended for by the Council. The Association submitted that a preferable approach to the construction of the Act was that there was either an implied limit on the Authority's powers to amend (or revoke and replace) a Statement of Principles while the Council was undertaking a review of the Statement or a power in the Council to undertake its review function by reference to the Statement as amended or in its new form (if revoked and replaced).
61 In my opinion, the construction of the Act advanced by the Council (and adopted by the Commission) is not correct. The revocation by the Authority of the two 1995 Statements of Principles in 1999 and the making of the operational service 1999 Statement and the non-operational service 1999 Statement did not preclude the later exercise of the power to review conferred on the Council which led to the 3 August 2001 declarations. Nor would the revocation of the two 1995 Statements preclude the Council exercising its review functions in relation to the 1995 review application. As I have endeavoured to explain, the review undertaken by the Council is of a Statement of Principles but by reference to the step taken by the Authority which has given rise to the application for review. It is to be recalled that the Council has no power to make, amend or revoke a Statement of Principles. Its power is, relevantly, limited to making a declaration which may include a direction to the Authority to amend or make a Statement (see: s 196W(4)(c)) that the Authority must act on (see s 196B(10) or (11)). The Council can also remit the matter for reconsideration by the Authority in accordance with any directions or recommendations it might make (see: s 196W(4)(d)).
62 The legislative scheme accommodates, in my opinion, circumstances where the Authority may have revoked the Statement of Principles while it was under review by the Council (in the way I have discussed). It is to be recalled that the power of the Authority to revoke a Statement is coupled with a power to determine a new Statement (see s 196B(8)(c)). As I view the intended operation of s 196B(8)(c), those powers must be exercised together. They are being exercised in circumstances where the Authority has considered a " new body of sound medical-scientific evidence" together with the "sound medical-scientific evidence previously considered by the Authority". If at the time of (and following) the revocation there is a review by the Council on foot arising from a prior step taken by the Authority in relation to the earlier (but revoked) Statement of Principles, the Council will be considering the sound medical-scientific evidence earlier considered by the Authority when it took that prior step. The Council would have before it all the evidence other than the "new body of evidence" which led to the revocation and replacement. However, in those circumstances, the Council may take a different view about the significance of the material which had been before the Authority when it took the prior step leading to the application for review. The Authority could give effect to any direction of the Council by amending the recently created Statement of Principles which would have had as its foundation (at least in substantial part), the body of evidence considered by the Council.
63 I have already indicated that what the Council is considering in a review of a decision of the Authority to amend (or not to amend) the Statement of Principles, is reviewing the Statement of Principles "in force" (as that expression appears in s 196W(4)(a)) when the Authority made its decision. It is difficult to resist the conclusion, as a matter of construction, that if the Council gives a direction in such a review under s 196W(4)(c) to the Authority to amend "the Statement of Principles", it is a direction concerning the Statement of Principles "in force" considered by the Council. However, in the situation I am discussing, that Statement of Principles would have been revoked by the Authority in the intervening period.
64 It seems to me that the answer to this conundrum may lie in ascertaining what the obligation of the Authority is if such a direction is given. The Authority's obligation is found in s 196B(10). It is to "make a determination amending the Statement of Principles determined in respect of that kind of injury, disease, or death in accordance with the directions of the Council". There is nothing in the language of this provision which would dictate a conclusion that the Authority would be precluded, in discharging this obligation, from amending the current Statement of Principles (made under s 196B(8)(c)) even though the Statement of Principles considered by the Council had been revoked. The current Statement of Principles would satisfy the description of the "Statement of Principles determined in respect of …..".
65 It is true that on this construction of the Act the Authority would be complying with a direction of the Council directed to a different Statement of Principles. It is possible that the form of the then current Statement of Principles would preclude literal compliance with the Council's direction if the direction was in prescriptive terms. The Council might direct, for example, that a particular expression, clause or paragraph in the revoked Statement of Principles be amended by adding particular words and the particular expression, clause or paragraph did not appear in the current Statement of Principles or did not appear in the same terms. However, as discussed earlier, both Statements of Principles are likely to have been based on the same underlying medico-scientific evidence. There is no warrant for concluding that the Authority could not discharge the obligation imposed by s 196B(10) by giving effect to the substance of the direction though not its form if the direction was in prescriptive terms that could not be complied with literally.
66 This construction of the Act, that the Authority can amend a later Statement of Principles to comply with a direction to amend an earlier Statement of Principles, is not inconsistent with the language of the Act and gives effect to what I perceive to be the legislative scheme. That is, a scheme providing for what are essentially two systems or processes of review by two different bodies of the same thing, namely a Statement of Principles based on sound medical-scientific evidence. Moreover a narrow construction of the duties of the Authority under s 196B(10) would effectively confer on the Authority a power to frustrate (whether intentionally or not) a review by the Council of a step the Authority had taken. It could do so by revoking the Statement of Principles under review and replacing it. On the construction of the legislation I consider is the preferable one: see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 366 par 13 per Brennan CJ, the Council can fulfil its review functions and the Authority can also exercise concurrently the power it has to consider from time to time, by further investigation, the same general matter. That is, what is an appropriately formulated Statement of Principles in respect of a particular kind of injury, disease or death. Accordingly I am satisfied that the revocation of the operational service 1995 Statement and the non-operational service 1995 Statement does not preclude their review by the Council in order to dispose of the 1995 review application.