Vietnam Veterans' Association (NSW Branch) v Specialist Medical Review Council

Appeals 15 The Association appealed to this Court from the judgment of the primary judge. The Association relied on the following grounds of appeal: 'i) That Specialist Medical Review Council ("the Council") had erred in failing to apply the correct test with respect to the Statement of Principles for operational service; ii) That the Council should have considered the matter on the basis of all relevant material available to it at the time of its decision; and iii) The Council, on the basis of a determination so made, was entitled to give a direction to the Repatriation Medical Authority in relation to a relevant Statement of Principles in force at the date of its Determination, or in relation to the last relevant Statement of Principles in force prior to its determination.' 16 The SMRC filed a notice of cross‑appeal which, by consent, the Court has treated as a notice of appeal. The SMRC relied on the following grounds of appeal: '2. The learned trial Judge erred in holding that the Specialist Medical Review Council had jurisdiction to entertain and deal with applications to review Statements of Principle which had been revoked by the Repatriation Medical Authority prior to the lodging of an application for review or before the Specialist Medical Review Council had carried out a review. 3. The learned trial Judge should have held that the Specialist Medical Review Council did not have jurisdiction to entertain and deal with the applications to review Statements of Principle which had been revoked by the Repatriation Medical Authority prior to the lodging of an application for review or before the Specialist Medical Review Council had carried out such a review. 4. The learned trial Judge erred in holding that the Specialist Medical Review Council had a statutory duty to undertake a review of Statements of Principles Nos. 95 and 96 of 1995 following its receiving an application for review of the said Statement of Principle. 5. The learned trial Judge erred in holding that the function of the Specialist Medical Review Council in a review is to assess only whether a particular discrete step taken by the Repatriation Medical Authority should have been so taken. 6. The learned trial Judge should have held that the function of the Specialist Medical Review Council in a review is to review the (entire) contents of a Statement of Principles in respect of a particular kind of injury, disease or death or a decision by the Repatriation Medical Authority not to determine a Statement of Principles in respect of a particular kind of injury, disease or death.'

Legislative Scheme 17 In the Repatriation Commission case at [8] Spigelman CJ outlined the legislative scheme within which the RMA and the SMRC operate. I gratefully adopt his Honour's outline. It is convenient to reproduce it here: 'The context in which the particular provisions of the Act fall to be construed is, in general terms, the following: (i) The Commonwealth is liable to pay pensions in accordance with the Act (s 13). (ii) Liability arises in the case of death of a veteran that was war caused (s 8) and in the case of incapacity from war caused injury or war caused disease (s 9). (iii) Claims for pensions may be made by a veteran or a dependent of a deceased veteran (s 14). (iv) The appellant, the Repatriation Commission (the Commission), is obliged to consider all matters that, in its opinion, are relevant to a claim, to determine the claim and to assess the rate or rates at which the pension is payable (s 19). (v) In the case of claims in certain circumstances, to which it is convenient to refer as "operational service" by the veteran, the Commission is obliged to determine that the death, injury or disease was war caused "unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination" (s 120(1)). (vi) In a case of operational service, the Commission is to be satisfied beyond reasonable doubt that there is no sufficient ground for making the determination, if the Commission forms an opinion "… that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person" (s 120(3)). (vii) Section 120(1) and s 120(3) contain a "Note" that "this subsection is affected by s 120A". Notes form part of the subsections (s 5U). (viii) An hypothesis connecting an injury, disease or death with the circumstances of any particular service rendered by the person "is reasonable only if there is in force", relevantly, a statement of principles determined under the Act (s 120A(3)). (ix) In the case of all claims in circumstances other than those which relate to operational service, to which it is convenient to refer as "eligible service", the Commission is obliged to decide the matter before it "to its reasonable satisfaction" (s 120(4)). This is a balance of probabilities test. Section 120 (4) contains a Note that it is "affected by s 120B". (x) With respect to claims related to eligible service, the Commission may only be reasonably satisfied that injury, disease or death was war caused if, relevantly, there is in force a statement of principles determined under the Act (s 20B(3)). (xi) The Repatriation Medical Authority (RMA) established by the Act is empowered to formulate statement of principles with respect to certain kinds of injury, disease or death (s 196B). (xii) The Specialist Medical Review Council (SMRC) established under the Act is obliged, if requested to do so, to review a statement of principles (s 196W). 18 It is convenient to set out the terms of a number of provisions from the Act. 19 The process by which the RMA determines Statements of Principles is governed by s 196B which relevantly provides: '(1) This section sets out the functions of the Repatriation Medical Authority. Determination of Statement of Principles (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; 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. Note 1: For sound medical-scientific evidence see subsection 5AB(2). … (14) A factor causing, or contributing to, an injury, disease or death is "related to service" rendered by a person if: (a) it resulted from an occurrence that happened while the person was rendering that service; or (b) it arose out of, or was attributable to, that service; or (c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey: (i) to a place for the purpose of performing duty; or (ii) away from a place of duty upon having ceased to perform duty; or (d) it was contributed to in a material degree by, or was aggravated by, that service; or (e) in the case of a factor causing, or contributing to, an injury - it resulted from an accident that would not have occurred: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service; or (f) in the case of a factor causing, or contributing to, a disease - it would not have occurred: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service; or (g) in the case of a factor causing, or contributing to, the death of a person - it was due to an accident that would not have occurred, or to a disease that would not have been contracted: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service.' 20 Section 196W of the Act is concerned with the SMRC. The section relevantly provides: '(1) This section sets out the functions of the Review Council. (2) If the Council is asked under section 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 subsection 196B(2), or a Statement of Principles under subsection 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. (3) If the Council has been asked to review the contents of a Statement of Principles, the Council may carry out a review under subsection (2) only if: (a) the period within which the Statement of Principles may be disallowed under section 48 of the Acts Interpretation Act 1901 has ended; and (b) the Statement of Principles has not been disallowed. (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 subsection 196B(2), or a Statement of Principles under subsection 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.' 21 Section 196ZB of the Act requires the SMRC to publish in the Gazette a notice concerning any review to be conducted by it which invites submissions from persons or organisations authorised by s 196ZA to make such submissions. Section 196ZA relevantly provides: '(1) If the Review Council is carrying out a review under subsection 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.' 22 Section 5AB of the Act provides that under 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). That subsection provides: '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.' 23 Other provisions of the Act which it is convenient to set out are: '196K Repatriation Medical Authority to send information to Review Council The Repatriation Medical Authority must, within 28 days after being notified that the Review Council has been asked to review: (a) a Statement of Principles; or (b) its decision not to determine a Statement of Principles in respect of a particular kind of injury, disease or death; or (c) its decision under subsection 196C(4) not to carry out an investigation in respect of a particular kind of injury, disease or death; send to the Council a copy of all the information that was available to it when it: (d) determined, amended, or last amended, the Statement of Principles; or (e) decided, or last decided, not to determine a Statement of Principles in respect of that kind of injury, disease or death; or (f) decided not to carry out the investigation'. '196ZN Medical expenses (1) The Commonwealth may, subject to this section, pay to an applicant who asks the Review Council to conduct a review as provided for by this Part an amount to cover the medical expenses incurred by him or her in respect of relevant documentary medical evidence obtained for the purposes of the review and submitted to the Review Council. …' '196ZO Travelling expenses for obtaining medical evidence (1) If an applicant has had to travel to obtain any relevant documentary medical evidence submitted to the Review Council, the applicant is, subject to this section, entitled to be paid in relation to that travel the travelling expenses that are prescribed. …'

reasons of the SPECIALIST MEDICAL REVIEW COUNCIL 24 As is mentioned above, by a declaration made on 3 August 2001 the SMRC declared that it was of the view that the 'sound medical‑scientific evidence' available to the RMA was insufficient to justify any amendment to either of Statements of Principles Nos 191 and 192 of 1996. This appeal is concerned only with the declaration so far as it related to Statement of Principles No 191 of 1996. 25 The SMRC received a twenty‑one page written submission from Professor Gabriel Kune ('Professor Kune') who also gave oral evidence to the SMRC. Professor Kune contended that a reasonable hypothesis could be advanced to link smoking with the development of prostate cancer. The SMRC noted that Professor Kune has familiarity with the study of the aetiology of cancer of the prostate and other factors associated with its occurrence. 26 The written reasons for decision of the SMRC include the following paragraphs touching on the evidence of Professor Kune: '31. In his concluding statement Professor Kune submitted that the evidence he had adduced gave strong support for the inclusion of smoking as a factor in the Statement of Principles for prostate cancer, but only when it pertains to subsection 196B(2) of the [Act] - namely, in respect of those veterans who have operational service. When asked to elucidate the reasons for this distinction, Professor Kune considered that the evidence required for veterans on operational service to have their disease process linked to a particular factor was less stringent than that which prevailed for those whose claims did not involve operational service. 32. Professor Kune explained that he saw four grades of degrees of probability in considering whether a conclusion could be reached that there is a causal link between smoking and the development of prostate cancer. He indicated that the top grade was scientific proof, a 95% level of confidence that the causal link exists. The second grade is, on the balance of the evidence, that it is more likely than not that a causal link exists; the balance of probabilities. The third grade is that the existence of the link is a probability more than negligible - a possibility - between 10 - 49%. The fourth grade is to say that the evidence is such that the proposition could be rejected out of hand. 33. Professor Kune's conclusion was that there is no proven causal link between smoking and prostate cancer. Further, it is not probable. Rather, it is scientifically possible. He denied that he was submitting to the Council that he was convinced there was a causal link, or that he believed it was very likely or likely. Rather, he said the existence of a causal link between smoking and prostate cancer could not be rejected out of hand, and that there is a significant, as opposed to negligible probability that smoking is a contributory cause of prostate cancer.' 27 The SMRC did not reject Professor Kune's evidence or the studies and other information upon which he placed reliance. Its reasons for decision record that: 'The Council decided that there was no study or other information which was so methodologically flawed that it should, for that or any other reason, be excluded from the pool of information. Accordingly, all the material which was before the RMA was taken into account by the Council.' 28 The conclusions of the Council are set out in the following paragraph from its reasons for decision: '51. The Council has been at pains to ensure that in considering whether either of the Statements of Principles should be amended, it remained focussed on its task. This was to consider whether the material in the pool of information provided sufficient evidence of a causal relationship between smoking and prostate cancer. Such would require evidence which, after the application of such indicators as the Bradford Hill criteria and scientific judgment, could marshal sufficient statistical significance to warrant amendment. In this regard the Council was concerned to ensure that the focus remained on evidence of actual causal connections and not simply on trends and possibilities. 52. In this context, it was necessary to clearly identify those aspects of the studies which could be regarded as confounding, the presence of which, both parties agreed, made the decision difficult. However, the purpose and terms of reference of this Council are to determine whether there is sound medical‑scientific evidence to support the proposition that smoking is a cause of prostate cancer. … 56. … After considering the material in the pool of information, the Council could not exclude the possibility that there was a causal connection between smoking and prostate cancer, as argued for by Professor Kune. The Council was, nevertheless, 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. Conversely it was felt that there was a significant amount of published evidence to refute this likelihood. Accordingly, the Council was of the view that there was insufficient sound‑medical scientific evidence available to the RMA to justify any amendment to either Statements of Principles.' (emphasis in original)

issues 29 The principal issues raised by these appeals are:

(1) whether the SMRC has power to conduct or continue a review of the contents of a Statement of Principles following a request made under s 196Y of the Act notwithstanding that the Statement of Principles had been amended or revoked - (a) before the making of the request under s 196Y; or (b) before the completion of the review; (2) If the SMRC may complete a review following the amendment or revocation of the Statement of Principles the subject of the review, is it to review the Statement of Principles as in force at the time that the review was requested or at the time of the declarations of the SMRC; (3) whether the SMRC's review of a Statement of Principles is limited to a review based on the material that was before the RMA; and

(4) whether the SMRC in reviewing Statement of Principles 191 of 1996 misconstrued the test for determining whether a factor should be included in a Statement of Principles determined under s 196B(2) of the Act.

The Nature of the Review 30 The functions of the SMRC are prescribed by s 196W of the Act (see [20] above). A request made to the SMRC under s 196Y of the Act will impose an obligation on the SMRC to carry out a review provided that the period within which the relevant Statement of Principles may be disallowed under s 48 of the Acts Interpretation Act 1901 (Cth) has ended and the Statement of Principles has not been disallowed (s 196W(2) and (3)). 31 It seems to me to be convenient to consider the third of the issues identified above ahead of the other issues because, on the approach which I take, it throws light on the other issues. 32 A request made under s 196Y(1) is a request that, relevantly, the SMRC review 'the contents of a Statement of Principles in force under Part XIA'. The primary judge expressed the tentative view that the role of the SMRC, following a request made under s196Y(1) consequent upon an amendment to a Statement of Principles, is to review the information that was before the RMA which was relevant to, or in the words of senior counsel for SMRC, the information which 'triggered', the request for the review. 33 Section 196K imposes an obligation on the RMA, within twenty‑eight days after being notified of a request to the SMRC to carry out a review, to send to the SMRC a copy of "all of the information that was available to it" when it, relevantly: '(d) determined, amended, or last amended, the Statement of Principles; or (e) decided, or last decided, not to determine a Statement of Principles in respect of that kind of injury, disease or death …' No party challenged the view of the Chief Justice of the New South Wales Court of Appeal, with whom Handley JA agreed, in the Repatriation Commission case at [46]-[53] that the information that was 'available' to the RMA within the meaning of the Act is restricted to the information in fact used by the RMA. However, I see no reason to conclude that the copy information to which s 196K refers is restricted to the information which 'triggered' the request for the review. The information available to the RMA when it made the determination or decision of which the section speaks might extend well beyond the information which 'triggered'the request for the review. However it will not, in my view, extend to information which is only used by the RMA at some later point in time. 34 This conclusion is confirmed by s 196W(2) which provides that, for the purpose of conducting the requested review, the SMRC must: '… 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.' 35 It may be observed that the obligation imposed on the SMRC by s 196W(2) is not expressly qualified by a requirement that the content of the relevant Statement of Principles remain unchanged from the date of the requested under s 196Y(1) until the completion of the review. However, no obligation to provide additional information, if any, that became available to it when it made a later decision concerning the relevant Statement of Principles is imposed by the Act on the RMA. Rather there is an apparent symmetry between the terms of s 196Y(2), which deals with the time within which a request for a review must be made; s 196K, which is concerned with the time when material to be sent by the RMA to the SMRC was available to the RMA; and s 196W(2) which identifies the information that is to be reviewed by the SMRC. This symmetry suggests that the SMRC in conducting its review is not only obliged to carry out a review of all of the information that was available to the RMA when it made the decision which gave rise to the request for a review (s 196W(2)) but is constrained to conduct its review by reference to that information only. 36 The tentative conclusion that the SMRC is so constrained when conducting a review under s 196W(2) gains support from s 196ZA of the Act (see [21] above). The persons or organisation who or which request a review are authorised to make a submission in writing to the SMRC but limited to a submission 'about any information that was available to the Repatriation Medical Authority and is relevant to the review (relevant information)'. The use of the expression 'relevant information' in s 196ZA(2) similarly limits the right of a person having expertise in a field relevant to the investigation to make a submission on any information that was available to the RMA and is relevant to the review. 37 I am not persuaded that ss 196ZN and 196ZO indicate that the SMRC when conducting a review under s 196W(2) may conduct the review by reference to information which extends beyond the information that was available to the RMA. Sections 196ZN and 196ZO do not make explicit reference to s 196W(2) in the way that s 196ZA(1) does. When the SMRC conducts a review under s 196W(6) pursuant to a request under s 196Z (i.e. a request in respect of a refusal by the RMA to carry out an investigation under s 196C(4)) material additional to that which was available to the RMA may be sent to the SMRC (s 196Z(2) and (3)). It seems likely that the practical effect of ss 196ZN and 196ZO is limited to medical and travelling expenses incurred in respect of a review conducted under s 196W(6) of the Act. 38 In my view, when conducting a review under s 196W(2) of the Act, the SMRC must carry out a review of all the information that was available to the RMA within the meaning of that subsection at the time when it made its relevant decision and is constrained to review only that information.

Can a Revoked Statement of Principles be Reviewed? 39 Where the review that the SMRC is required to carry out is a review of the contents of a Statement of Principles, there must be a Statement of Principles in force under Part XIA at the time of the request (s 196Y(1)(d)). However, nothing in s 196W(4) and (5) indicates clearly one way or the other whether that Statement of Principles must continue to be in force to support the review process. It seems likely that the legislature overlooked the possibility that the Statement of Principles might be revoked before the completion of a review under s 196W(2) of the Act. Nonetheless it is necessary for the Court to seek to identify the notional intention of the legislature in this regard. 40 Factors tending to suggest against the process of review coming to an end upon the revocation of the relevant Statement of Principles include the following. First, the process of review by the SMRC will have been preceded by formal notification in the Gazette and an invitation for submissions. The invitation may have provoked the preparation by interested persons, organisations and individuals with expertise of submissions and the holding of meetings by the SMRC. If the revocation of the relevant Statement of Principles brings the review process to an end, the effort so expended may be largely wasted even though a new Statement of Principles has been determined which is not substantially different from the statement revoked. Secondly, whether a Statement of Principles is altered by an amendment or by the revocation of the statement and the determination of a new Statement of Principles will often be more a matter of form than substance and in either case the substantive change to the Statement of Principles might be slight. Completion of the review process where the contents of the Statement of Principles have not been substantially altered is likely to have genuine value notwithstanding the revocation and reissuing of the Statement of Principles. 41 Factors tending to suggest that the process of review will come to an end upon the revocation of the relevant Statement of Principles include the following. First, as is mentioned above, the information to be reviewed by the SMRC is the information that was available to the RMA when it determined, amended or last amended the Statement of Principles the content of which is the subject of review; it will not include additional information that may have become available to the RMA when it later decided to revoke the Statement of Principles and determine a new Statement of Principles. Secondly, the request which initiates the review by the SMRC is a request to review 'the contents of a Statement of Principles in force under Part XIA' (see s 196Y). The request thus relates to the contents at a particular time of a Statement of Principles. The obligation imposed on the SMRC by s 196W(4) (see [20] above) where it is of the view there identified, to make a declaration directing the Authority, for example, to amend the Statement of Principles would have a curious operation were it understood to direct the amendment of a Statement of Principles revoked prior to the declaration of the SMRC. It would, however, have an equally curious operation if it were understood to direct the amendment of a Statement of Principles the contents of which had not been the subject of the SMRC's review. 42 Although the case is, in my view, not free from doubt, I conclude that the Act discloses a legislative intention that once a Statement of Principles is revoked, any request to the SMRC to review the contents of that Statement of Principles ceases to have effect. The contents of that Statement of Principles have no continuing statutory significance. 43 I agree with Emmett J that this case does not call for consideration of the question of whether the amendment of a Statement of Principles will similarly bring a review by the SMRC to an end. This question was not fully argued before this Court and the determination will have to await a case which calls for the determination.

The Test for Inclusion in a Statement of Principles 44 The above conclusion means that it is not strictly necessary for consideration to be given to the test for determining whether a factor should be included in a Statement of Principles determined under s 196B(2) of the Act. However, I agree with Emmett J that the circumstances surrounding this appeal make it desirable that the views of this Court on the issue, which was argued before us, be known. 45 Statement of Principles No 191 of 1996 was determined under s 196B(2) of the Act; it is relevantly concerned with the relationship between prostate cancer and operational service rendered by veterans. Section 196B(14), which is set out in [19] above, gives content to the notion reflected in s 196B(2) of a factor causing, or contributing to, an injury, disease or death being 'related to service' rendered by a person. Smoking attributable to that service could, for example, be such a factor. 46 Section 196B(2) governs the process by which the RMA must determine a Statement of Principles concerning the relationship between a particular kind of injury, disease or death and, relevantly, operational service. The RMA must, as a first step, identify the pool of 'sound medical‑scientific evidence' (see s 5AB(2) which is set out in [22] above) touching on the issue of whether the particular kind of injury, disease or death with which it is concerned can be related to operational service rendered by veterans. Having identified the pool of 'sound medical‑scientific evidence', the RMA must consider as a second step whether there is 'sound medical‑scientific evidence' that indicates that the particular kind of injury, disease or death can be related to operational service rendered by veterans. 47 The criteria set out in s 5AB(2) by reference to which information is to be taken to be 'sound medical‑scientific evidence' are apt for consideration in respect of particular information, whether that information takes the form of an expression of expert opinion, a published study or an epidemiological survey. The terms of s 5AB(2), it seems to me, make it clear that it is at the stage of step one, not step two, that information is evaluated in the light of material published in learned journals, accepted medical practice and, if relevant, applicable epidemiological criteria for assessing causation. Information which satisfies the criteria set out in s 5AB(2) is 'sound medical-scientific evidence' within the meaning of the Act. 48 The second step required to be taken by the RMA is, as is mentioned above, to determine whether there is 'sound medical-scientific evidence' that indicates that the particular kind of injury, disease or death can be related to operational service rendered by veterans. It may be that the RMA concludes that there is a total absence of 'sound medical-scientific evidence' capable of suggesting that the particular kind of injury, disease or death can be related to operational service rendered by veterans. In this situation, the RMA will be of the view that there is no 'sound medical-scientific evidence' on which it can rely to determine a Statement of Principles. 49 If, however, the RMA concludes that there is 'sound medical-scientific evidence' capable of suggesting that the particular kind of injury, disease or death can be related to operational service rendered by veterans it must form a view as to whether that 'sound medical-scientific evidence' is 'sound medical‑scientific evidence that indicates that a particular kind of injury, disease or death can be related to' relevantly, 'operational service rendered by veterans'. As the Chief Justice of the New South Wales Court of Appeal noted in the Repatriation Commission case at [111]: '… the use of the formulation "can be related to" is a test of possibility. In the case of subs (2) it is sufficient that there is evidence that "indicates" the possibility.' That is, in my view, the RMA must evaluate and characterise the relevant 'sound medical-scientific evidence' and form a view as to whether it points to, as opposed to merely leaves open, the possibility of the particular injury, disease or death being related to operational service rendered by veterans (see [50] below). The RMA is not called upon, as part of this step, to assess the overall impact of the totality of the 'sound medical-scientific evidence' available to it. 50 The requirement that the Statement of Principles set out a test expressed in terms of a 'reasonable hypothesis' [that] has been raised' adds support, in my view, to the above construction of s 196B(2). The Statement of Principles is intended to serve as a template for decision making under s120(3) of the Act which requires an opinion to be formed as to whether material raises a reasonable hypothesis connecting an injury, death or disease with the circumstances of the particular service rendered by a person. As was pointed out by Northrop, Sundberg, Marshall and Merkel JJ in Repatriation Commission v Bey (1997) 79 FCR 364 at 372: 'While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must … be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker' 51 The SMRC in conducting a review under s 196W of the Act of a Statement of Principles determined by the RMA under s 196B(2) must necessarily take the same steps as the RMA is required to take under that subsection (see s 196W(4) and (5)). 52 As is mentioned above, the SMRC in this case considered that no study or other information before it could be excluded from the pool of 'sound medical‑scientific evidence'. It does not appear that the document which it described as 'Submission by Professor Gabriel A Kune, MD to SMRC on 25/5/98; Evidence for a Possible Causal Link between Smoking and Prostate Cancer' was regarded by it as itself constituting 'sound medical‑scientific evidence' within the meaning of the Act. However, it does appear that, having undertaken the first step identified above, the SMRC formed the view that the studies upon which Professor Kune's submissions relied constituted 'sound medical‑scientific evidence'. 53 In my view, the reasons for decision of the SMRC reveal that it did not then undertake the step which I have identified above as the second step. That is, it did not ask the question whether any of the 'sound medical‑scientific evidence' identified by it touching on the link between smoking and prostate cancer indicates that prostate cancer can be related to operational service rendered by veterans. If it had asked that question and answered it 'yes', it would necessarily have been of the view 'that there is sound medical‑scientific evidence on which the Authority could have relied … to amend the Statement of Principles in force in respect of [prostate cancer]' within the meaning of s 196W(4) of the Act. 54 Rather, the SMRC, as the primary judge found, was not satisfied, having regard to the totality of the pool of 'sound medical‑scientific evidence',that there was 'sufficient evidence of a causal relationship between smoking and prostate cancer'. The reasons for decision of the SMRC state explicitly at [51] that: 'In this regard the Council was concerned to ensure that the focus remained on evidence of actual causal connections and not simply on trends and possibilities.' 55 While the approach adopted by the SMRC was an understandable approach for an expert body such as the SMRC to adopt, it was not, in my view, the approach mandated by the Act. A clear intention can be discerned in the Act that the burden of proof to be borne by a claimant where the claim arises from the 'operational service' of a veteran is to be an unusually light burden. Sound medical-scientific evidence that indicates, as opposed to leaves open, the relevant possibility was intended to be sufficient.

conclusions 56 In my view, for the above reasons, the Association is entitled to the declaration claimed by its application to the Court concerning the declaration made by the SMRC on 3 August 2001 in relation to Statement of Principles No 191 of 1996. I would declare that declaration to be void. I would also set aside the declaration made by the primary judge. 57 The Association did not press a claim for relief in this Court with respect to the declaration made by the SMRC concerning Statement of Principles No 192 of 1996. 58 The SMRC also appealed from the decision of the primary judge and made submissions to this Court. The High Court observed in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36 it is usual for tribunals to submit to such orders as the court might make. The role which the SMRC plays under the Act puts it into a similar position to a tribunal so far as legal proceedings are concerned. If it takes the part of a protagonist there is a risk that it will endanger the impartiality which it is expected to maintain in respect of any future review which is conducted by reason of the orders of the Court. The SMRC limited its submissions to the Court to submissions going to its own powers and procedures. The Court considered it appropriate to receive those submissions. However, the SMRC formally sought the making of orders by this Court that had not been sought by any party before the primary judge. It would, in my view, be inappropriate for orders now to be made on the application of the SMRC. 59 I would allow the parties to make written submissions on the appropriate order for costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

NEW SOUTH WALES DISTRICT REGISTRY N 631 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: VIETNAM VETERANS' ASSOCIATION (NSW BRANCH)

AND: VIETNAM VETERANS' ASSOCIATION (NSW BRANCH)

REASONS FOR JUDGMENT EMMETT J: 60 By application for review dated 2 January 1996, Vietnam Veterans' Association of Australia (NSW Branch) Inc ('the Association') asked the Specialist Medical Review Council ('the Council'), pursuant to s 196Y of the Veterans' Entitlements Act 1986 (Cth) ('the Act'), to review a decision made by the Repatriation Medical Authority ('the Authority'). In the application for review, the Authority's decision was described as: 'Failure to include a link between Tobacco products and prostate cancer.' The application for review referred to 'Statement of Principles number 191 of 1996'. However, the proceeding appears to have been conducted on the basis that the request related to the contents of Instrument No. 95 of 1995 as amended by Instrument No. 191 of 1996. The Statement of Principles contained in those instruments related to 'Malignant Neoplasm of the Prostate'.

background 61 By declaration dated 2 August 2001 ("the Declaration"), the Council declared, in relation to 'Statement of Principles Instrument No. 191 of 1996', that: '(a) the Council is of the view that there is insufficient sound medical scientific evidence to justify the amendment of that Statement of Principles to include, as a factor, 'cigarette consumption'; and (b) the Council is of the view that there is insufficient sound medical scientific evidence that justifies any other amendment of that Statement of Principles.' 62 By application filed with the Court on 7 September 2001, the Association claimed, under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), a declaration 'that the reviews and declarations made by [the Council] in relation to Statement of Principles [No. 191 is] void' and an order'that [the Council] hear and determine the reviews which were the subject of those declarations according to law'. Subsequently, the Repatriation Commission ("the Commission") was joined as a respondent to that proceeding. On 7 June 2002, a judge of the Court made a declaration that the Council 'has power to consider and determine the application made by [the Association] made under s 196Y of the [Act] on 22 May 1995' and ordered the Commission to pay the Association's costs of the proceeding. The parties have treated the primary judge as having otherwise dismissed the proceeding. 63 The Association now appeals from those orders. The Council also filed a notice of cross-appeal, which, by consent, the Court has treated as a notice of appeal. Both appeals have been heard together. The Commission is a respondent to both appeals. 64 In the Association's appeal, the Association seeks orders that the appeal be allowed and that a declaration be made that the Declaration is void. The Association also asks for an order that the matter be remitted to the Council to hear and determine, according to law, the review that was the subject of the Declaration. The Commission opposes those orders. 65 The Council, in its appeal, seeks orders that the orders of the primary judge be set aside and that, in lieu thereof, it be ordered that the application be dismissed. However, the Council also seeks declarations that: · the Council does not have jurisdiction to review a Statement of Principles that has been revoked by the Authority prior to the lodgement with the Council of an application for review of the contents of that Statement of Principles or before the Council has carried out the review; · the Council does not have jurisdiction to undertake a review of the contents of Statement of Principles No. 95 of 1995; · the function of the Council in a review is to review the entire contents of a Statement of Principles in respect of a particular kind of injury, disease or death or a decision by the Authority not to determine a Statement of Principles in respect of a particular kind of injury, disease or death.

The Commission adopts the position of the Council in relation to those matters. 66 There was no cross-claim by the Council in the proceeding. Thus, the Council claimed no relief. It is difficult to see, therefore, how the Council would be entitled to the declarations now sought by the Council in its appeal. However, the Council would be content if the Court deals with those questions, in its reasons for disposing of the matters before it.

function of statements of principles 67 Section 120(1) of the Act relevantly provides that, where a claim for a pension in respect of the incapacity of a veteran from disease relates to operational service rendered by the veteran, the Commission must determine that the disease was a war-caused disease unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Under s 120(3), in applying s 120(1) in respect of the incapacity of a veteran from disease related to relevant service rendered by the veteran, the Commission must be satisfied beyond reasonable doubt, that there is no sufficient ground for determining that the disease was a war-caused disease, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the person. 68 Section 120A(3) of the Act then provides that, for the purposes of s 120(3), a hypothesis connecting a disease contracted by a veteran with the circumstances of any particular service rendered by the veteran is reasonable only if there is in force a statement of principles, determined under ss 196B(2) or 196B(11) of the Act, that upholds the hypothesis. However, by reason of s 120A(4), s 120A(3) does not apply in relation to a claim in respect of incapacity from disease if the Authority has neither determined a statement of principles, nor declared that it does not propose to make such a statement of principles in respect of the relevant kind of disease.

the authority and the council 69 Part XIA of the Act deals with the Authority, including its functions and powers and Part XIB of the Act deals with the Council, including its functions. Primarily, both the Authority and the Council are concerned with the determination and review of statements of principles for the purposes of s 120A(3) of the Act. 70 Under s 196B(2) of the Act, which is in Part XIA, if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of disease can be related to relevant service, the Authority must determine a statement of principles in respect of that kind of disease, setting out: · the factors that must as a minimum exist, and · 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 a disease of that kind with the circumstances of that service. 71 Section 196E(1) relevantly provides that various bodies, including the Commission and the Association, may request the Authority to: · carry out an investigation under s 196B(4) in respect of a particular kind of disease; · review a decision of the Authority under s 196B(6) not to make a statement of principles in respect of a particular kind of disease; · review the contents of a statement of principles in force under Part XIA. 72 Under s 196B(4), if the Authority receives such a request or, of its own initiative, decides that a particular kind of disease ought to be investigated, the Authority must carry out an investigation to obtain information that would enable the Authority to establish: · how the disease may be contracted; and · the extent (if any) to which the disease may be war caused.

73 Under s 196B(8) if, after carrying out an investigation, the Authority is of the view that there is a new body of sound medical, scientific evidence available that, together with the sound medical, scientific evidence previously considered by the Authority, justifies the making of a statement of principles, or an amendment of the statement of principles already determined, in respect of that kind of disease, the Authority must: '(a) determine a statement of principles in respect of that kind of … disease … under subsection (2) or (3); or (b) make a determination amending the statement of principles determined under subsection (2) or (3) in respect of that kind of … disease …; or (c) revoke the statement of principles determined under subsection (2) or (3), and determine a new statement of principles under subsection (2) or (3) in respect of that kind of … disease …'. 74 Section 196Y(1) of the Act, which is in Part XIB, provides that certain bodies, including the Commission and the Association, may ask the Council to review the contents of a statement of principles in force under Part XIA. Under s 196Y(2), such a request must be made within three months after the statement of principles was made, amended or last amended. 75 Under s 196W(2), if the Council is asked to review the contents of a statement of principles in respect of a particular kind of disease, 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 in respect of that kind of disease. Under s 196W(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 to amend the statement of principles in force in respect of that kind of disease or to determine a statement of principles in respect of that kind of disease, the council must make a declaration in writing stating its views and: · directing the Authority to amend the statement of principles or determine a statement of principles, as the case may be; or · remitting the matter for reconsideration in accordance with any directions or recommendations of the Council.

76 Under s 196W(5) if, after carrying out the review, the Council is of the view that there is no sound medical, scientific evidence that justifies the making of a statement of principles or 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 disease, the Council must make a declaration in writing to that effect, giving the reasons for its decision. 77 Under s 196B(10), if the Council has directed the Authority to amend a statement of principles in respect of a particular kind of disease, the Authority must make a determination amending the statement of principles determined in respect of that kind of disease in accordance with the directions of the Council. Under s 196(11) if, after reviewing a decision of the Authority not to determine a statement of principles in respect of a particular kind of disease, the Council has directed the Authority to make such a statement of principles, the Authority must determine the statement of principles in accordance with the directions of the Council. Under s 196B(13), a determination under s 196B(10) amending a statement of principles or a statement of principles under s 196B(11) is to be taken to have had effect from the day on which the decision of the Council was notified in the Gazette. 78 A determination of the Authority under s 196B is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"). Section 46A(1) of the Interpretation Act provides that, where a provision of a law confers power to make an instrument and that provision or any other provision of the law expressly provides that the instrument is a disallowable instrument for the purposes of s 46A, then the regime set out in s 46A(1) applies. Under that regime, the instrument must be notified in the Gazette and must be laid before each House of the Parliament within fifteen sitting days of that House after the making of the instrument. Under s 48(4) if either House of Parliament, in pursuance of the motion of which notice has been given within fifteen sitting days after the instrument has been made before that House, passes a resolution disallowing the instrument, the instrument ceases to have effect.

the relevant statement of principles 79 On 8 March 1995, the Authority, pursuant to s 196B(2), determined a statement of principles concerning 'Malignant Neoplasm of the Prostate'. The statement of principles was set out in Instrument No. 95 of 1995. On 9 December 1996, the Authority, pursuant to s 196B(viii)(b), amended that statement of principles. The amendment was set out in Instrument No. 191 of 1996. 80 Instrument No. 95 of 1995 contained four paragraphs. Paragraph 1 set out two factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate with the circumstances of operational service, peace keeping service and hazardous service. The two factors were: · being exposed to herbicides in Vietnam; or · inability to obtain appropriate clinical management for the malignant neoplasm of the prostate. Paragraph 2 provided that at least one of those factors must be related to any service rendered. Paragraph 3 provided that the second factor applies only where particular circumstances existed. Paragraph 4 contained a definition of the phrases 'malignant neoplasm of the prostate' and 'being exposed to herbicides in Vietnam'. The first phrase was defined by reference to 'ICD Code 185'. That last term was also defined in paragraph 4. 81 Instrument No. 191 of 1996 was expressed to amend Instrument No. 95 of 1995 by: · inserting a third factor as follows: 'Increasing animal fat consumption by at least 40% and to at least 70 grams/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.' · amending paragraphs 2 and 3 to take account of the insertion of that third factor; · amending paragraph 4 by inserting a definition of 'animal fat' and substituting a definition of a new phrase 'ICD-10-AM code', by reference to which the phrase 'malignant neoplasm of the prostate' was defined. 82 On 9 November 1999, the Authority made Instrument No. 84 of 1999. By Instrument No. 84 of 1999, the Authority: · revoked Instrument No. 95 of 1995 and Instrument No. 191 of 1996; and · determined in their place 'the following Statement of Principles'.

Instrument No. 84 of 1999 then went on to set out substantive provisions under the following headings: '2. Kind of Injury, Disease or Death; 3. Basis for Determining the Factors; 4. Factors that Must be Related to Service; 5. Factors; 6. Factors that Apply only to Material Contribution or Aggravation; 7. Inclusion of Statement of Principles; 8. Other Definitions; 9. Application.'

Instrument No. 84 of 1999 was expressed to be about 'MALIGNANT NEOPLASM OF THE PROSTATE' and 'DEATH FROM MALIGNANT NEOPLASM OF THE PROSTATE'. However, four factors were set out, at least one of which was required to be related to any 'relevant service', a term that is defined in paragraph 8 as 'operational service, peace keeping service and hazardous service'. 83 There were substantive changes between the content of Instrument No. 95 of 1995 as amended by Instrument 191 of 1996, on the one hand, and the content of Instrument No. 84 of 1999, on the other hand. The structure of the content of that instrument is also different from the structure of the content of Instrument 95 of 1995, both before and after its amendment by Instrument 191 of 1996.

ISSUES 84 In essence, there are two issues: · whether the Council has jurisdiction to continue with a review requested under s 196Y where the relevant statement of principles has been revoked, rather than merely amended; and · whether, assuming the Council had jurisdiction to continue to deal with the Association's request of 2 January 1997, it misdirected itself as to the standard that had to be applied concerning the possibility of a causal connection between smoking and prostate cancer.

jurisdiction 85 It is clear, from what has been said above, that the Authority made Instrument No. 84 of 1999 prior to the Declaration. At the time of making Instrument No. 84 of 1999, the Association's application for review of 2 January 1997 had not been dealt with. It was not dealt with until 2 August 2001. 86 It may be important to notice a distinction between the following: · an instrument in which a determination of the Authority is recorded; and · the contents of such an instrument,

that is to say, there is a distinction to be drawn between 'a statement of principles' on the one hand and the instrument recording the determination of such a statement of principles. Section 196B of the Act assumes that a determination is an instrument. That is clear enough from s 196B(2), which provides that a statement of principles must set out certain things, namely: · the factors that must, as a minimum, exist; and · 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. 87 On the other hand, s 196B of the Act speaks in terms of review of 'the contents' of a statement of principles. Thus, s 196E contemplates a request of the Authority 'to review the contents of a statement of principles in force'. Similarly, s 196Y(1) contemplates that certain bodies may ask the Council to review 'the contents of a statement of principles in force'. 88 Section 196B(8) is predicated upon the Authority being of a view that justifies 'the making of a statement of principles, or an amendment of the statement of principles already determined' in respect of a kind of disease. In such a case, the Authority must do one of three things. The second and third of those things appear to be predicated upon the Authority being of a view that justifies an amendment of a statement of principles already determined. In such a case, the Authority may either make a determination amending the statement of principles or revoke the statement of principles and determine a new statement of principles. 89 Thus, for whatever reason, the Act draws a clear distinction between: · amending a statement of principles in force; and · revoking a statement of principles in force and determining a new statement of principles. The question is whether, if the Authority elects to do the second rather than the first, a review pursuant to a request made under s 196Y(1)(d) automatically comes to an end or whether the review can continue in respect of the new statement of principles. 90 The same issue could arise where, instead of revoking an existing statement of principles and determining a new statement of principles, the Authority makes a determination amending an existing statement of principles after a request for a review under s 196Y(1) has been made but before a review has been completed. That is not this case and it is inappropriate to express any view on that question. 91 However, as I have said, the Act refers, in express terms, to the review by the Council of 'the contents of a statement of principles in force'. The Act also contemplates the revocation of a statement of principles. When the Council is requested to review the contents of a statement of principles pursuant to s 196Y(1) it must be possible to identify the relevant 'contents'. It would make the task of the Council intolerable if the 'contents' were ambulatory. A request for review could only operate on the contents of a statement of principles in force as at the time of the request to the Council to review. Thus, once a statement of principles is revoked, there is nothing upon which a review could operate. It follows that, following the making of Instrument No 84 of 1999, there was no longer any thing to which the Association's application for review could relate, and the Council was functus. 92 On 22 May 1995, the Association made an application under s 196Y(1) in respect of Instrument No. 95 of 1995, before its amendment by Instrument 191 of 1996. On 22 December 1995, the Council purported to make a declaration pursuant to that request. However, the Supreme Court of New South Wales subsequently declared that the declaration made by the Council on 22 December 1995 was void (see Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 48 NSWLR 548 at 590). 93 Curiously, the primary judge declared that the Council had power to consider and determine the application of 22 May 1995. It appears that none of the parties sought the declaration made by the primary judge. It may be that his Honour intended to refer to the application for review lodged by the Association on 2 January 1997. In any event, the application for review of 22 May 1995 was not regarded by anyone as having any currency and none of the parties sought to support the declaration made by the primary judge. 94 There was no utility in making a declaration in relation to the application of 22 May 1995, since that was clearly intended to be superseded by the application of 2 January 1997. Even if his Honour intended the declaration to relate to the application of 2 January 1997, for the reasons set out above, it should be set aside.

misdirection 95 Having regard to the conclusion reached concerning the Council's jurisdiction, the second issue does not strictly arise. However, since the parties have argued that issue in full and, since the question may well arise in relation to consideration by the Council of any further application for review of the contents of a statement of principles currently in force, there is some utility in deciding that issue. 96 In its reasons, the Council set out the material submitted to it by the Association. The Council also received written submissions on behalf of the Association and the Commission. It also received a submission from Professor Gabriel A. Kune. Professor Kune's submission was entitled 'Evidence for a Possible Causal Link between Smoking and Prostate Cancer' and ran to twenty-one pages. Professor Kune also appeared in person before the Council and spoke generally to his submission. 97 In its reasons, the Council recorded that Professor Kune, in his concluding statement, submitted that the evidence he had adduced gave strong support for the inclusion of smoking as a factor in a statement of principles for prostate cancer, but only in respect of those veterans who had operational service. The reason for limiting the submission to veterans who had had operational service was Professor Kune's view that the evidence required for veterans on operational service to have a disease process linked to a particular factor 'was less stringent than that which prevailed for those whose claims did not involve operational service'. That may be a reference to s 120 of the Act. 98 The Council referred to the submission of Professor Kune that there are four grades of degrees of probability in considering whether a conclusion could be reached that there is a causal link between smoking and the development of prostate cancer as follows: · the top trade is scientific proof, with a ninety-five per cent level of confidence that the causal link exists; · the second grade is that, on the balance of the evidence, it is more likely than not that a causal link exists; · the third grade is that the existence of the link is a probability more than negligible, being a possibility between ten and forty-nine per cent; · the fourth grade is such that the proposition can be rejected out of hand.

99 The Council then said: '33. Professor Kune's conclusion was that there is no proven causal link between smoking and prostate cancer. Further it is not probable. Rather, it is scientifically possible. He denied that he was submitting to the Council that he was convinced there was a causal link, or that he believed it was very likely or likely. Rather, he said the existence of a causal link between smoking and prostate cancer could not be rejected out of hand, and that there is a significant, as opposed to negligible probability that smoking was a contributory cause of prostate cancer.' 100 The Council recoded its understanding that the purpose and terms of reference to the Council 'are to determine whether there is sound medical-scientific evidence to support the proposition that smoking is a cause of prostate cancer'. The Council's conclusion was expressed as follows: 'After considering the material in the pool of information, the Council could not exclude the possibility that there was a causal connection between smoking and prostate cancer, as argued for by Professor Kune. The Council was, nevertheless, 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.' [Emphasis in original] In reaching that conclusion, the Council stated that it had directed itself 'in accordance with the principles laid down by the New South Wales Court of Appeal', referring to the decision cited above. 101 The Association contended that the Council misconstrued the test for determining whether a factor should be included in a statement as to a reasonable hypothesis. The primary judge concluded that the Council did not adopt a wrong approach or apply an incorrect standard. His Honour found that the language used by the Council was consistent with a finding that the possibility of a causal link between smoking and prostate cancer was 'too tenuous'. 102 The Council referred to the claim by Professor Kume that the existence of a causal link between smoking and prostate cancer could not be rejected out of hand and that there was a significant, as opposed to negligible, probability that smoking is a contributory cause of prostate cancer. The Commission contends that the Council rejected that contention in concluding that it was not satisfied that there was sufficient evidence of sufficient weight before it to support a causal link between smoking and prostate cancer. That is to say, the Council rejected Professor Kume's contention. 103 There is no reason to conclude that the Council did not turn its mind to the question of whether there was a reasonable hypothesis, being something more than a mere possibility, but something less than a likelihood or being more likely than not. Accordingly, there was no error on the part of the Council in the conduct of the review that led to the Declaration.

conclusion 104 I would reject the Association's contentions but would accept certain of the contentions of the Council and of the Commission. In the result, however, I agree with the orders proposed. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

NEW SOUTH WALES DISTRICT REGISTRY N 631 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: VIETNAM VETERANS' ASSOCIATION (NSW BRANCH)

AND: VIETNAM VETERANS' ASSOCIATION (NSW BRANCH)

REASONS FOR JUDGMENT STONE J: 105 The background to these appeals is set out in the judgments of Branson and Emmett JJ which I have had the advantage of reading in draft form. It is therefore not necessary for me to describe the background in detail. It may be useful, however, to set out a brief chronology of the relevant events that are described in more detail in the judgments of Branson and Emmett JJ. Except where otherwise indicated, I have adopted the abbreviations and acronyms used by Branson J in her judgment. RMA determines Statement of Principles No 95 of 1995 ('1995 SoP'). 8 March 1995 22 May 1995 The Association applies to the SMRC to review the decision of the RMA not to include as a reasonable hypothesis, a link between cigarette consumption and prostate cancer in the 1995 SoP ('1995 review application').

22 December 1995 The SMRC determines the 1995 review application, holding that there was 'no sound medical-scientific evidence' to justify an amendment to the 1995 SoP in relation to cigarette consumption and prostate cancer.

15 November 1996 A judge of this Court rejects the Association's application to the Court to review the SMRC's decision of 22 December 1995 holding that the Court has no jurisdiction to do so; Vietnam Veterans' Association v Cohen (1996) 70 FCR 419. Note: this decision predates s 39B(1A) of the Judiciary Act 1903 (Cth) which is the present source of the Court's jurisdiction.

9 December 1996 1995 SoP is amended by SoP 191 of 1996 ('1996 SoP') adding increased consumption of animal fats as a factor.

16 December 1996 The Association commences proceedings in the Supreme Court of New South Wales seeking a review of the SMRC's decision of 22 December 1995.

2 January 1997 The Association applies to the SMRC to review the RMA's decision not to include, as a reasonable hypothesis, a link between cigarette consumption and prostate cancer in the 1996 SoP ('1997 review application').

9 November 1999 The RMA revokes 1995 SoP as amended by 1996 SoP and determines a new Statement of Principles, No 84 of 1999 ('1999 SoP'). This new Statement of Principles does not relate to cigarette consumption.

31 March 2000 The New South Wales Court of Appeal holds that the decision of 22 December 1995 is void; Repatriation Commission v Vietnam Veterans' Association (2000) 48 NSWLR 548 ('the Repatriation Commission case').

3 August 2001 The SMRC determines the 1997 review application, stating that there is 'insufficient' sound scientific-medical evidence to justify the amendment of the 1996 SoP in relation to cigarette consumption and prostate cancer.

17 September 1999 The Association commences proceedings in this Court seeking a review of the SMRC's determination of 3 August 2001.

7 June 2002 A judge of this Court, exercising jurisdiction under s 39B of the Judiciary Act 1903 (Cth) declares that the SMRC has power to consider and determine the 1995 review application.

106 It is the SMRC's determination of 3 August 2001 (emphasised above) that is the subject of these proceedings. 107 In the circumstances of this case two main issues arise: (a) whether the SMRC's jurisdiction to determine the 1997 review application had been extinguished by the revocation of the 1995 SoP as amended by the 1996 SoP; and (b) if the answer to (a) is that the SMRC's jurisdiction to determine the 1997 review application had not been extinguished, whether the SMRC applied an incorrect test in deciding whether the possibility of a causal connection between smoking cigarettes and prostate cancer should be included as a factor in the Statement of Principles determined under s 196B(2) of the Act.

SMRC's jurisdiction to review following revocation of a Statement of Principles 108 Counsel for the Association, Mr Basten QC, conceded that the provisions governing review of a Statement of Principles are all directed to the review of a Statement in force under Part XIA of the Actat the time of the review. He submitted, however, that this is so even if the Statement in force at the time of the review is not the one that was in force at the time of the application. Mr Basten relied on the distinction between the contents of a Statement of Principles and the instrument with a particular number that embodies the contents. He pointed out that s 196Y(2) of the Act specifically refers to the request for a review as being a review of the contents of a Statement of Principles. To suggest, he submitted, that the jurisdiction to review a Statement of Principles ceases if the Statement is revoked, is to elevate the form of the Statement (that is the document) over its substance (that is, the contents). 109 In any event, it was submitted that the situation with which the Court is now concerned does not involve revocation of a Statement of Principles leaving no Statement in force but the revocation and contemporaneous determination of a new Statement in accordance with s 196B(8)(c). Mr Basten's argument, as I understand it, is that once there is a Statement of Principles that deals with a particular kind of disease, injury or death, then whether there is an amendment to the numbered instrument or whether it is replaced by a new numbered instrument, the authority to review the contents continues. He pointed out that a replacement Statement, for instance the 1999 SoP, might deal with exactly the same factors, its purpose being merely to clarify the previous position. Branson J has set out in [40] and [41] the factors in favour and against the position advocated by Mr Basten. For the reasons advanced by her Honour I also find that a request to review a Statement of Principles ceases to have effect once the Statement of Principles in force at the time of the request is revoked. I also agree that it is not necessary now to consider if this would be the position if the Statement of Principles was amended rather than revoked.

Test for determining inclusion in a Statement of Principles 110 Although it is not strictly necessary to decide whether the SMRC used the wrong test in determining the 1997 review application, I agree with Branson and Emmett JJ that, in the circumstances of this case and given that the issue was fully argued before us, it is desirable to express an opinion. I agree with the reasoning and conclusion of Branson J on this point although I should like to make some additional comments. 111 It is important to note that under s 196B(2) of the Act the test of when the RMA must determine a Statement of Principles in respect of injury, disease or death is if there is sound medical-scientific evidence that 'indicates' that the injury, disease or death 'can be related to' operational, peacekeeping or hazardous service by members of the Australian Forces. As can be readily seen this test does not impose a stringent requirement in terms of the content of the sound medical-scientific evidence. It is, as Spigelman CJ noted in the Repatriation Commission case,a test of 'possibility'. 112 The open nature of the provision is enhanced by the terms of s 5AB(2) of the Act and the criteria it lays down as to when information is taken to be 'sound medical-scientific evidence'. In summary, the section provides that any information about particular kinds of injury, disease or death is sound medical-scientific evidence if it is either consistent with material published in a peer review publication or is in accordance with accepted medical practice and, if it relates to causation, it is in accord with current epidemiological practice. These criteria are not directed to scientific proof or to assessing the preponderance of evidence in support of particular information. It would be irrelevant, for example, if there were a number of articles in peer review publications that were inconsistent with the information under consideration so long as there is one article in a peer review medical or scientific publication that is consistent with the information. 113 Having identified the relevant sound medical-scientific evidence the RMA is then required to apply the test of possibility (see [111] above) in order to determine if that evidence indicates the possibility of a relation between the relevant injury, death or disease and the relevant service. I agree with Branson J that at this point the obligation on the RMA is to determine a Statement of Principles if there is any sound medical-scientific evidence that could indicate the relevant relationship. I would understand the reference in s 196B(6)(b) to sound medical-scientific evidence being insufficient for this purpose as referring not to the weight of the evidence but to the absence of the link between the information that has been determined to be sound medical-scientific evidence and the relevant service. 114 For these reasons I agree with the orders proposed by Branson J. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 20 December 2002 Counsel for the Appellant: Mr J Basten QC and Mr C Colborne

Solicitor for the Appellant: Legal Aid Commission NSW

Counsel for the First Respondent: Mr R Tracey QC

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr S Gageler SC

Solicitor for the Second Respondent: Australian Government Solicitor

Date of Hearing: 22 November 2002

Date of Judgment: 20 December 2002