FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Keeley [2000] FCA 532

DEFENCE AND WAR – veterans’ entitlements – pension – Statements of Principles.

STATUTES – operation and effect of statutes – whether an application to review a decision made on a claim for a pension under the Veterans’ Entitlements Act 1986 (Cth) provides an accrued right – whether a determination made under s 196B of the Veterans’ Entitlements Act 1986 (Cth) “affects” an accrued right of review.

WORDS AND PHRASES – “reasonable hypothesis” – “war-caused death” – “operational service”.

Acts Interpretation Act 1901 (Cth) ss 8, 46A, 50

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Veterans’ Entitlements Act 1986 (Cth) Pts II, XIA, XIB; ss 5AB(2), 5B, 6A, 7, 7(1)(a), 8, 8(1)(a), 8(1)(b), 8(1)(d), 8(1)(e), 9, 11, 13, 13(1)(a), 13(1)(c), 14, 19, 19(3), 119, 120, 120(1), 120(3), 120(4), 120A, 120A(1), 120A(2), 120A(3), 120A(4), 120B, 176, 196B, 196B(2), 196B(7), 196B(8), 196B(8)(c), 196D, 196M

Acts Interpretation Act 1931 (Tas)

Tasmanian Criminal Code Ch XIV; ss 124(1), 127, 136

The Shorter Oxford English Dictionary 3^rd ed. 1973 at 1010

Byrnes v Repatriation Commission (1993) 177 CLR 564 followed

Bushell v Repatriation Commission (1992) 175 CLR 408 referred to

Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 referred to

Calman v Commissioner of Police [1999] HCA 60 referred to

Re Repatriation Commission and Carroll (1988) 14 ALD 581 approved

Repatriation Commission v Deledio (1998) 83 FCR 82 referred to

Esber v Commonwealth of Australia (1992) 174 CLR 430 applied

Continental Liqueurs Proprietary Limited v G F Heublein and Bro. Incorporated (1960) 103 CLR 422 (on appeal (1962) 109 CLR 153) referred to

Director of Public Works v Ho Po Sang [1961] AC 901 referred to

Australian Coal and Shale Employees’ Federation v Aberfield Coal Mining Co Ltd  (1942) 66 CLR 161 referred to

Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 referred to

Lee v Secretary, Department of Social Security (1996) 68 FCR 491 referred to

Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120 referred to

Robertson v City of Nunawading [1973] VR 819 referred to

Rodway v The Queen (1990) 169 CLR 515 referred to

Maxwell v Murphy (1957) 96 CLR 261 applied

Kraljevich v Lake View and Star Limited (1945) 70 CLR 647 referred to

Ogsten v Repatriation Commission (1999) 29 AAR 89 referred to

Pederson v Young (1964) 110 CLR 162, 169 referred to

McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 referred to

Republic of Costa Rica v Erlanger [1876] 3 Ch D 62 referred to

REPATRIATION COMMISSION v THELMA KEELEY

T 18 OF 1999

LEE, COOPER, KIEFEL JJ

PERTH (HEARD IN HOBART)

28 APRIL 2000

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

LEE & COOPER JJ:

1                     This is an appeal from a judgment of a judge of this Court (Heerey J) which set aside a decision of the Administrative Appeals Tribunal (“the Tribunal”) and remitted the matter to the Tribunal for reconsideration according to law. The decision of the Tribunal had affirmed a decision of the Veterans’ Review Board (“the Board”) under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) that “there were no sufficient grounds” to grant a claim for a pension made by the respondent under the Act.

2                     The respondent is the widow of a veteran who rendered “operational service” as defined in ss 5B and 6A of the Act, namely continuous full-time service outside Australia during World War II. The veteran died in September 1986, the cause of death said by the Tribunal to be “certified” as “multiple myeloma” although it is to be noted that in the material before the Tribunal the respondent stated that “a massive heart attack caused his death”.

3                     In December 1994 the respondent lodged a claim for a pension under the Act. In May 1995 the claim was considered and refused by the appellant (“the Commission”) on the ground that the death of the veteran was “not causally related to service”. The Board reviewed and “affirmed” that decision in April 1996. The application to the Tribunal to review the decision of the Board was determined by the Tribunal in March 1999.

4                     Under s 13 of the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran where the death of the veteran was “war-caused”. Section 11 of the Act defines a widow of a veteran as a dependant and s 14 provides that a dependant of a deceased veteran may make a claim to a pension. Under s 19 of the Act the Commission must consider all matters that, in its opinion, are relevant to a claim for a pension under s 14 and must then determine whether the claimant is entitled to be granted a pension in respect of the death of a veteran that was “war-caused”.

5                     With regard to the meaning of the expression “war-caused”, the relevant part of s 8 provides as follows:

“8 War-caused death

            (1)        Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

                       (a)        the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

                       (b)        the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

                       (c)        the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

                       (d)        in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service; or

                       (e)        the injury or disease from which the veteran died:

                                    (i)        was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

                                   (ii)        was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

                                   and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or

                       (f)         the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;

                                   Note:       The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.

                                    but not otherwise.”

6                     Under s 7(1)(a) of the Act a person who has rendered “operational service” is taken to have been rendering “eligible war service” at the same time. “Eligible war service” as defined in s 7 is not limited to “operational service” and includes service that does not meet the definition of “operational service”.

7                     The relevant provisions of the Act in respect of the claim for a pension made by the respondent under Pt II of the Act are as follows:

“119 Commission not bound by technicalities

            (1)        In considering, hearing or determining, and in making a decision in relation to:

                       (a)        a claim or application;

                        …

                        the Commission:

                       (f)         is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;

                       (g)        shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

                       (h)        without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

                                    (i)        the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

                                   (ii)        the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.

            (2)       In subsection (1):

                       …

                       claim means:

                       (a)       a claim for a pension under Part II …

                       …

 120 Standard of proof

            (1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

                       Note:      This subsection is affected by section 120A.

               …

            (3)       In applying subsection (1)…in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

                       (a)       that the injury was a war-caused injury…

                       (b)       that the disease was a war-caused disease…or

                       (c)        that the death was war-caused…

                       as the case may be, if the Commission, after consideration of the whole of the material before it, is of the 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.

                       Note:      This subsection is affected by section 120A.

            (4)       Except in making a determination to which subsection (1)…applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II… decide the matter to its reasonable satisfaction.

                               Note:      This subsection is affected by section 120B.

            (5)       Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

                       (a)       an injury suffered by a person is a war-caused injury…

                       (b)       a disease contracted by a person is a war-caused disease…

                       (c)        the death of a person is war-caused…or

                       (d)       a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

            (6)       Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

                       (a)       a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

                       (b)       the Commonwealth, the Department or any other person in relation to such a claim or application;

                       any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

            …”

 120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

            (1)       This section applies to any of the following claims made on or after 1 June 1994:

                       (a)       a claim under Part II that relates to the operational service rendered by a veteran;

                       …

            (2)       If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

                       (a)       has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

                       (b)       has declared that it does not propose to make such a Statement of Principles.

            (3)       For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

                       (a)       a Statement of Principles determined under subsection 196B(2) or (11); or

                       (b)       a determination of the Commission under subsection 180A(2);

                       that upholds the hypothesis.

                       Note:      See subsection (4) about the application of this subsection.

            (4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

                       (a)       the kind of injury suffered by the person; or

                       (b)       the kind of disease contracted by the person; or

                       (c)        the kind of death met by the person;

                       as the case may be.

…

196B Functions of Authority

            (1)        This section sets out the functions of the Repatriation Medical Authority.

                        Determination of Statement of Principles

            (2)        If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

                       (a)        operational service rendered by veterans;

                       …

                       the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

                       (d)        the factors that must as a minimum exist; and

                       (e)        which of those factors must be related to service rendered by a person;

            …

            (14)      A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

                       (a)        it resulted from an occurrence that happened while the person was rendering that service; or

                       (b)        it arose out of, or was attributable to, that service; or

                       (c)        it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:

                                    (i)        to a place for the purpose of performing duty; or

                                   (ii)        away from a place of duty upon having ceased to perform duty; or

                       (d)        it was contributed to in a material degree by, or was aggravated by, that service; or

                       …

                       (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.”

8                     Section 5AB(2) defines “sound medical-scientific evidence” as follows:

“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.”

9                     Pursuant to s 196D of the Act, 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”).

10                  Section 120(1) provides that the Commission must determine that the death of a veteran who rendered “operational service” was “war-caused” unless it is satisfied, beyond reasonable doubt, “that there is no sufficient ground for making that determination”. It may be assumed that only if the Commission is satisfied beyond reasonable doubt that the material before it does not suggest that s 8 of the Act applies, may it determine that the death of such a veteran was not “war-caused”.

11                  Section 120(3) defines the scope of operation of s 120(1) by providing that the Commission must be satisfied beyond reasonable doubt “that there is no sufficient ground for determining” that the death of a veteran was “war-caused” if, in the opinion of the Commission, the material before it does not raise a reasonable hypothesis “connecting” the death with “the circumstances of the particular service” rendered by the veteran. A reasonable hypothesis which “connects” the death of a veteran with “the circumstances of the particular service” of the veteran may be taken to be a theory, proposition, suggestion or postulation which suggests reasonably, although without proof, that some event in, or aspect of, the service rendered by the veteran may be linked to the death of the veteran. (See:  Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.) “Hypothesis”, as used in s 120(3), has the meaning attributed to the word in the The Shorter Oxford English Dictionary 3rd ed. 1973 at 1010:

“…A proposition or principle put forth or stated merely as a basis for reasoning or argument, or as a premiss from which to draw a conclusion.…A supposition or conjecture put forth to account for known facts; esp. in the sciences, a provisional supposition which accounts for known facts, and serves as a starting-point for further investigation by which it may be proved or disproved…A supposition in general; something assumed to be true without proof; an assumption…Hence spec. A mere assumption or guess…”

12                  A hypothesis is based upon assumptions. The reasonableness of the hypothesis depends upon the reasonableness of the assumptions and of reliance upon those assumptions and known facts to make a connection between the death and the circumstances of service. (See:  Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.) If a claimant’s case relies upon the raising of a reasonable hypothesis to avoid the Commission being satisfied beyond reasonable doubt that death is not “war-caused” then ss 120A(3) and 196B will apply, if the hypothesis is one addressed by a determination made under s 196B.

13                  Notwithstanding s 120A(3), a reasonable hypothesis may be shown to be untenable and, therefore, disregarded if the Commission is satisfied under s 120(1) that the material before it proves beyond reasonable doubt that the assumed factual foundation for the hypothesis did not exist. (See:  Byrnes at 570.)

14                  The corollary to the foregoing illustration of the supervening operation of s 120(1) is that if the material before the Commission establishes to the reasonable satisfaction of the Commission that the death was “war-caused”, no question can arise under s 120(3) as to whether the Commission is satisfied beyond reasonable doubt that the death was not “war-caused”. Sections 120(3) and 120A(3) will apply if the material does not establish to the reasonable satisfaction of the Commission that the death was “war-caused” and the Commission must consider whether it is satisfied beyond reasonable doubt that the death was not “war-caused”. (Byrnes at 571.)

15                  It is to be noted that in respect of a veteran who rendered “operational service”, s 8(1)(a) contemplates that the link between the death of the veteran and the war service rendered may be no more than temporal. Where s 8(1)(a) refers to “an occurrence that happened while the veteran was rendering operational service”, it is not necessary that the occurrence arose out of, or was attributable to, the “operational service”. That is, the connection between the event, or events, and the “operational service” may be coincidental and not causal. Furthermore, the occurrence may be an event with a direct consequence, such as the suffering of injury or contraction of a disease, or it may be an event, or series of events, with a latent or delayed consequence in which the effect of an injury, or onset of a disease, is not manifested until some later date. Irrespective of when the consequence is manifested, the event, or series of events, would be an occurrence that happened while the veteran was rendering “operational service”.

16                  Under s 8(1)(a), a death that results from such an occurrence, whenever the death takes place, is a “war-caused” death and the questions of fact which a reasonable hypothesis based upon known facts would address to connect the death of the veteran with the particular circumstances of the “operational service” rendered by the veteran would be:

·          Was there an occurrence that happened while the veteran was rendering “operational service”?

·          Did the death of the veteran “result” from that occurrence?

17                  Although likely, it is not necessary that a hypothesis in respect of those questions involve “medical-scientific” opinion or information. For example, a veteran may have suffered impairment of mobility or of sight as a consequence of an occurrence that happened while the veteran rendered “operational service”. Some years later, the direct cause of death of the veteran may be injuries received when the veteran, as a pedestrian, was struck by a motor vehicle. The death may have “resulted” from the “occurrence” which happened while the veteran was rendering “operational service” even though the death also “resulted” from a subsequent and more direct cause. (See:  Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 at 585; Calman v Commissioner of Police [1999] HCA 60 at [38].) A reasonable hypothesis that the death of the veteran “resulted” from the occurrence that happened while the veteran rendered “operational service” may arise from the known facts without reliance upon “medical-scientific” opinion to construct the hypothesis. (See:  Re Repatriation Commission and Carroll (1988) 14 ALD 581.)

18                  In Carroll the veteran, who had rendered “operational service”, suffered from the disease dipsomania. The disease was “war-caused” within the meaning of s 9 of the Act. Section 9 is the counterpart of s 8 in respect of “war-caused” injuries or diseases. It may be assumed that in that case the disease was “war-caused” in that while the veteran was rendering “operational service” an occurrence happened, namely the consumption of alcohol to excess resulting in the veteran contracting dipsomania, the symptoms of which are a morbid and insatiable craving for alcohol or persistent drunkenness. Almost forty years after the veteran had rendered “operational service”, the death of the veteran occurred as the result of a stabbing wound received when the veteran approached a family member in an aggressive manner whilst under the influence of alcohol.

19                  The Tribunal was satisfied that two reasonable hypotheses were raised. First, that the death of the veteran arose out of, or was attributable to, the eligible war service rendered by the veteran (s 8(1)(b)) and second, that the death of the veteran was accidental and would not have occurred but for the veteran being drunk as a consequence of a “war-caused” disease which had changed the veteran’s environment after he had rendered eligible war service (s 8(1)(d)). Neither hypothesis relied upon “medical-scientific” opinion or information. Although unnecessary for the Tribunal to consider, the relevant facts could have suggested a reasonable hypothesis under s 8(1)(a), that the death of the veteran “resulted” from the occurrence that happened during the rendering of “operational service” which resulted in the veteran contracting dipsomania.

20                  Section 8(1)(d) turns upon the answer to a hypothetical question namely, could it be said that an accident would not have occurred but for the veteran having rendered eligible war service or but for changes in the veteran’s environment consequent upon the veteran having rendered eligible war service. The “changes in the veteran’s environment” to which s 8(1)(d) refers, may be the consequence of an injury suffered or disease contracted in the course of the “operational service”, for example, a risk that the veteran, at some time thereafter, may suffer an injury or contract a disease from which death may result. The answer to the question posed by s 8(1)(d) may be a hypothesis based on “medical-scientific” opinion or it may be a hypothesis based on the application of experience and an assessment of chance. As demonstrated in Carroll the “circumstances of the particular service” to which the death is to be “connected” pursuant to s 120(3) may be an occurrence in the course of the “operational service” from which an injury or disease resulted that does not involve a causal connection between the “operational service” and the death.

21                  It may be seen, therefore, that Statements of Principles determined by the Authority under s 196B of the Act may have relevance to part only of the circumstances to which s 8 may apply. The Act has introduced Statements of Principles to restrict the field of “medical-scientific” discourse able to support a hypothesis that relies upon “medical-scientific” opinion. The Act does so by providing that a hypothesis is not reasonable for the purpose of s 120(3) unless a Statement of Principles “upholds” the hypothesis. Whatever meaning is to be attributed to the word “upholds”, that provision will not apply to a hypothesis relevant to s 8 that is not addressed by a Statement of Principles, for example, a hypothesis not involving “medical-scientific” opinion. For example, it is unlikely that any Statement of Principles determined in respect of death resulting from the disease dipsomania, would include a death resulting from that disease as described by the facts in Carroll.

22                  For the Commission to determine according to law a claim lodged under s 14 of the Act, the Commission must apply the terms of ss 8 and 120 of the Act. That is, the Commission must consider whether the material before it satisfied the requirements of s 8 and, under s 120, determine that the death of the veteran was “war-caused” unless the Commission was unable to form the opinion that the material before it raised a reasonable hypothesis “connecting” the death with the circumstances of the particular service rendered by the veteran, or the Commission is satisfied beyond reasonable doubt that s 8 did not apply.

23                  Section 120(3) equates the formation of an opinion that a reasonable hypothesis “connecting” the death of a veteran “with the circumstances of the particular service” of the veteran is not raised on the material before the Commission, with the Commission being satisfied beyond reasonable doubt that there is “no sufficient ground” for determining that the death of the veteran was “war-caused”. The subsection instructs the Commission that it must be so satisfied if it forms such an opinion. In contrast with the direction in s 120(3) that the Commission “shall be satisfied”, s 120A(3) does not state that the Commission shall form an opinion upon which s 120(3) may operate.

24                  As noted earlier, a reasonable hypothesis “connecting” the death of a veteran with the circumstances of “operational service” rendered by the veteran may be raised without that hypothesis relying upon “medical-scientific” opinion or information. In those circumstances the Commission would determine the claim under ss 120(1) and (3), and s 120A would not be relevant.

25                  The appellant’s claim to a pension was made on 7 December 1994 and, therefore, being made after 30 June 1994 s 120A applied to that claim. Notwithstanding uncertainty in the construction to be applied to s 120A(4), a Statement of Principles (“the Statement”) was determined by the Repatriation Medical Authority (“the Authority”) on 12 January 1995 and, therefore, when the Commission considered the appellant’s claim on 31 May 1995, the terms of s 120A(3) governed the operation of s 120(3) if the former subsection was relevant to the material relied upon to support the claim.

26                  The Statement determined by the Authority on 12 January 1995 read as follows:

“1.       Being of the view that there is sound medical-scientific evidence that indicates that multiple myeloma and death from multiple myeloma can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans’ Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting multiple myeloma or death from multiple myelomawith the circumstances of that service, are:

            (a)        being within 4 kilometres of the epicentre of the atomic explosions on the city of Hiroshima or Nagasaki within seven days of the explosion on that city; or

            (b)        being occupationally exposed to paints and/or lacquers before the clinical onset of multiple myeloma; or

            (c)        being exposed to herbicides in Vietnam before the clinical onset of multiple myeloma; or

            (d)        inability to obtain appropriate clinical management for multiple myeloma.

2.         Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to (d) must be related to any service rendered by a person.

3.         The factor set out in paragraph 1(d) applies only where:

            (a)        the person’s multiple myeloma was contracted prior to a period, or part of a period, of service to which the factor is related; and

            (b)        the relationship suggested between the multiple myeloma and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.

4.         For the purposes of this Statement of Principles:

            ‘being exposed to herbicides in Vietnam’ may be said to have occurred only if the person had:

            (a)        rendered more than 30 days service on land in Vietnam; or

            (b)        regularly eaten fish, fish products, crustaceans, shellfish, or meat from Vietnam; or

            (c)        regularly eaten food cooked with water from Vietnam discoloured by sediment, or regularly drunk water from Vietnam discoloured by sediment; or

            (d)        regularly inhaled dust in a defoliated area in Vietnam or regularly inhaled herbicide fog in Vietnam; or

            (e)        sprayed or decanted herbicides in Vietnam as an occupational requirement;

            ‘ICD code’ means a number assigned to a particular kind of injury or disease in the tenth edition of the International Classification of Diseases 9^th Revision, effective date of 1 October 1993, copyrighted by the US Commission on Professional and Hospital Activities, and having the Library of Congress number 77-94472;

            ‘multiple myeloma’ means a malignant neoplasm of plasma cells arising in the bone marrow, and characterised by diffuse involvement of the skeletal system, hyperglogulinemia, Bence-Jones proteinuria, and anaemia, attracting ICD code 203.0”

27                  The veteran was exposed to paints and lacquers while working on aircraft in the course of the “operational service” rendered with the Royal Australian Air Force in the South West Pacific between 1941 and 1946. The Statement, therefore, did not exclude as a reasonable hypothesis a hypothesis that relied reasonably upon known facts to connect the death of the veteran that resulted from multiple myeloma with occurrences that happened while “operational service” was rendered by the veteran.

28                  It may be noted that the Statement did not address a hypothesis that a “war-caused” death arose under s 8(1)(a) of the Act by the onset of the disease multiple myeloma that occurred while a veteran rendered “operational service”, the contraction of that disease not arising out of, or not being attributable to, circumstances of that service. The provisions of s 8(1)(e) which apply to “eligible service” which, as noted earlier includes service that is not “operational service”, do not confine the meaning of s 8(1)(a). The intention of s 8(1)(a) is to ensure that a veteran who has rendered “operational service”, and dependants of that veteran, receive greater entitlements under the Act. A determination by the Authority, even if that determination is taken to be equivalent to subordinate or delegated legislation, will not displace the operation of s 8(1)(a) of the Act. In the absence of any amendment to s 8, clear words would be required in s 196B to show an intention to alter the meaning of words used in s 8. (See:  Repatriation Commission v Deledio (1998) 83 FCR 82 at 95 – 96.)

29                  The Commission and the Board applied the provisions of the Statement in making their respective decisions.

30                  On 26 September 1996 the Authority, under s 196B(2) of the Act, “revoked” the determination it had made on 12 January 1995 (“the revoked Statement”) and determined another Statement of Principles (“the new Statement”) which, in relevant respects, read as follows:

“…

Kind of injury, disease or death

2.         (a)        This Statement of Principles is about multiple myeloma and death from multiple myeloma.

            (b)        For the purposes of this Statement of Principles, ‘multiple myeloma’ means a disseminated plasma cell neoplasm of the osseous system, attracting ICD code 203.0, associated with widespread lesions of the skeletal system, hyperglobulinaemia, Bence-Jones proteinuria and normochromic, normocytic anaemia, and also includes the conditions known as myelomatosis and plasma cell myeloma.

Basis for determining the factors

3.         The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that multiple myeloma and death from multiple myeloma can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.

Factors that must be related to service

4.         Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.

Factors

5.         The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting multiple myeloma or death from multiple myeloma with the circumstances of a person’s relevant service are:

            (a)        being within 4 kilometres of the epicentre of the atomic explosions on the city of Hiroshima or Nagasaki within seven days of the explosions on those cities, before the clinical onset of multiple myeloma; or

            (b)        being occupationally required to work as a painter for an average of three or more days per week over any two year period, (or working as a painter for a period or periods of time totalling at least 312 days) before the clinical onset of multiple myeloma, and where that occupational exposure has ceased, the clinical onset of multiple myeloma has occurred within 20 years of cessation; or

            (c)        being exposed to herbicides in Vietnam before the clinical onset of multiple myeloma; or

            (d)        inability to obtain appropriate clinical management for multiple myeloma.

Factors that apply only to material contribution or aggravation

6.         Paragraph 5(d) applies only to material contribution to, or aggravation of, multiple myeloma where the person’s multiple myeloma was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.

Other definitions

7.         For the purposes of this Statement of Principles:

            ‘being exposed to herbicides in Vietnam’ may be said to have occurred only if the person had:

            (a)        rendered more than 30 days service on land in Vietnam; or

            (b)        regularly eaten fish, fish products, crustaceans, shellfish, or meat from Vietnam; or

            (c)        regularly eaten food cooked with water from Vietnam discoloured by sediment, or regularly drunk water from Vietnam discoloured by sediment; or

            (d)        regularly inhaled dust in a defoliated area in Vietnam or regularly inhaled herbicide fog in Vietnam; or

            (e)        sprayed or decanted herbicides in Vietnam as an occupational requirement;

            ‘ICD code’ means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9^th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;

            ‘relevant service’ means:

            (a)        operational service; or

            (b)        peacekeeping service; or

            (c)        hazardous service.

Application

8.         This Instrument applies to all matters to which section 120A of the Act applies.

…”

31                  When the application to the Tribunal came on for hearing to have the decision of the Board reviewed, it was agreed that there was a material difference between the revoked Statement and the new Statement, and that the decision of the Tribunal may vary according to which of those Statements applied. In its reasons for decision the Tribunal recorded that the respondent conceded that she “would be unable to establish the factual matters required to be established” by the new Statement. The respondent submitted that the revoked Statement had to be applied to determine the application. The Commission contended that the revoked Statement had ceased to be of effect and the Tribunal had to apply the new Statement.

32                  The Tribunal accepted the Commission’s submission and affirmed the decision of the Board refusing the respondent’s claim for a pension. The question of law on the “appeal” determined by his Honour was whether the Tribunal erred in failing to apply the revoked Statement.

33                  His Honour held that at the time the new Statement was determined by the Authority, the respondent had a right that had accrued under the Act to have the decision of the Board reviewed and her application for a pension under the Act determined pursuant to s 120 according to the principles relevant to a reasonable hypothesis set out in the revoked Statement. His Honour held that the terms of s 50 of the Interpretation Act required such a conclusion. Section 50 of the Interpretation Act reads as follows:

“50.     Where an Act confers power to make regulations, the repeal of any regulations which have been made under the Act shall not, unless the contrary intention appears in the Act or regulations effecting the repeal –

            (a)        affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulations so repealed; or

            (b)        affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any regulations so repealed; or

            (c)        affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or regulations had not been passed or made.”

34                  His Honour held that pursuant to the terms of s 50 the revocation of a Statement could not affect a right obtained under the Act unless the Act provided a contrary intention. His Honour was not persuaded that by necessary implication, there being no express words to that effect, a contrary intention could be found in s 120A. His Honour noted that the relevant elements of the case before him were not distinguishable from those considered in Esber v Commonwealth of Australia (1992) 174 CLR 430 and accordingly his Honour held that the Tribunal erred in law in conducting the review according to the terms of the new Statement.

35                  When the respondent lodged her claim for a pension under the Act, the respondent obtained a right to have that claim determined under the Act according to law. The right that accrued was a right to which s 50 applied. (See:  Continental Liqueurs Proprietary Limited v G F Heublein and Bro. Incorporated (1960) 103 CLR 422 at 426 – 427, (on appeal (1962) 109 CLR 153.)

36                  If the material relevant to the claim satisfied the requirements of the Act, the Commonwealth was liable under s 13 to pay a pension to the respondent and the Commission was bound to determine the claim accordingly. The right to have the claim determined under, and pursuant to, the Act, therefore, was more than an expectation that a request for a remedy or benefit would be considered or a hope that a remedy or benefit may be provided if a discretion were exercised in her favour pursuant to a power provided under an enactment. (See:  Director of Public Works v Ho Po Sang  [1961] AC 901.) If an enactment provides that the exercise of a discretion is subject to review and re-determination under review procedures to be conducted according to law, even a mere expectation or hope may become a right to have a matter determined under the enactment upon initiation of a review proceeding pursuant to the enactment in respect of a decision made in the exercise of a discretion. (See:  Australian Coal and Shale Employees’ Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 175, 178, 185, 194; Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 at 372 – 373; Lee v Secretary, Department of Social Security (1996) 68 FCR 491.)

37                  Although it was not the primary ground of statutory construction on which the decision in Esber turned, the High Court considered the operation of s 8 of the Interpretation Act (a provision in similar terms to s 50 adopting principles applied at common law in the construction of statutes) upon the facts of that case and discussed the meaning of the words “right…accrued under any Act…”

38                  The majority in Esber (Mason CJ, Deane, Toohey, Gaudron JJ at 440) determined that a right to have a decision reconsidered and determined by the Tribunal was not merely a power to take advantage of an enactment nor a mere matter of procedure; it was a substantive right that may be said to have accrued under that enactment. It was implicit in the reasoning of their Honours that it was not necessary for such a right to accrue, that it be a right enforceable by reason of prior adjudication or determination.

39                  On the hearing of the appeal, counsel for the Minister submitted that a determination made by the Authority under s 196B of the Act, and the provisions of s 196B, were procedural in character and not substantive. That is, they affected how rights recognised by the Act were to be determined but did not create new rights in replacement of others or alter or terminate such rights. (See: Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120; Robertson v City of Nunawading [1973] VR 819; Rodway v The Queen (1990) 169 CLR 515.) It was said that the right the respondent had under the Act to have the decision of the Board reviewed by the Tribunal remained and only the conduct of the review process was affected by s 196B and determinations made thereunder. It was submitted that the effect of those provisions was of an evidentiary character.

40                  The question is whether a determination made by the Authority under s 196B “affects” any right that has accrued under the Act. It may be accepted that a provision which, for example, does no more than alter the provisions relating to evidence in a proceeding may not “affect” a right to have a matter determined to which the proceeding relates but that will always be a question of degree and be subject to no injustice resulting therefrom. (See:  Maxwell v Murphy (1957) 96 CLR 261 per Dixon CJ at 267.) If the right being prosecuted, and the facts upon which determination of the right is to be made, remain unaffected, it may be said that the statutory provision is procedural and to be construed as being of retrospective effect. An analysis of the provisions of ss 120A and 196B, however, shows that those provisions involve more than alterations of a procedural character in that they purport to define the scope of liability of the Commonwealth under the Act by, in effect, confining the claim a claimant may present. (See:  Kraljevich v Lake View and Star Limited (1945) 70 CLR 647 per Dixon J at 652.)

41                  Under s 120A(2), once the Authority has commenced the procedure for determining a Statement of Principles, the Commission must not determine any pending claim in respect of a death to which the Statement is to relate. That provision indicates that a determination under s 196B will have greater impact upon a right to have a pending claim determined than mere variation in the procedure to be followed in determining that claim.

42                  Section 120A(3) shows that to be so. The subsection, in combination with s 196B, purports to limit the right to have a claim determined under the Act by restricting the material relevant to such a determination to material that is relevant to the contents of a Statement determined under s 196B. The provisions do more than clarify the meaning of terms used in s 120(3) and how they are to be applied. They purport to restrict the operation of s 120(3) to the terms of the Statement determined under s 196B and in doing so substantively reform the nature of the right that is to be determined under the Act by application of the provisions of s 120. The right that accrued to the respondent upon lodgment of a claim, to have the claim determined under the Act by the Commission, was “affected” accordingly.

43                  That was so, notwithstanding that, as discussed earlier, a Statement determined under s 196B is limited and does not alter the meaning of “war-caused” injury, disease or death set out in ss 8 and 9 of the Act and that a hypothesis in respect of a death that is the subject of a Statement but does not rely on “medical-scientific” opinion or information is not affected by s 120A(3).

44                  The terms of s 120A(2) show a clear intention by Parliament that such a Statement is to “affect” the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission. It is plain that by postponing a right to have a claim decided until a Statement has been determined, Parliament intended that the decision, and therefore the right to have a decision made, may be affected by a Statement determined under s 196B and that a pending claim is to be decided by application of the Statement when determined.

45                  However, that circumstance does not apply after a claim has been determined and the right that has accrued under the Act is a right to have the determination reviewed. The Act is silent about the effect upon such an accrued right of the revocation of a Statement and determination of another Statement under s 196B(8)(c). It is significant that there is no provision equivalent to s 120A(2) where the Authority is carrying out an investigation under s 196B(7) preparatory to deciding whether to revoke a Statement and determine another Statement under s 196B(8).

46                  Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent’s claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood. (See:  Esber per Mason CJ, Deane, Toohey, Gaudron JJ at 440 – 441.)

47                  The appeal must be dismissed.

Associate:

Dated:             

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

KIEFEL J:

48                  Mrs Keeley was the applicant for a widow’s pension under the Veteran’s Entitlements Act 1986 (Cth) (‘the Act’).  Her husband had served with the Royal Australian Airforce between 1941 and 1946.  He died on 29 September 1986 as a result of multiple myeloma.  At the time of his death he was receiving a 60 per cent service pension.  Mrs Keeley originally based her claim on the connexion between her husband’s anxiety condition and related stomach troubles, to the development of cancer.  Later, and when legally represented, Mr Keeley’s service records were tendered to show that he had been exposed to paints and lacquers. 

49                  At issue before the Administrative Appeals Tribunal (‘the AAT’), was whether a reasonable hypothesis was raised connecting Mr Keeley’s death with the circumstances of his service.  That question depended upon whether the “Statement of Principles” applying to Mrs Keeley’s application sustained the hypothesis she put forward.  I set out the relevant statutory provisions below.

50                  By the time of hearing before the AAT, a different Statement of Principles from that in force when Mrs Keeley’s application had been made had come into effect.  If it applied, it was accepted that she would be unable to raise a reasonable hypothesis connecting the circumstances of her husband’s service with death from multiple myeloma.  Her claim would necessarily fail.  The AAT determined that the later Statement of Principles did apply, and that the Act expressly and by implication displaced the common law presumption against retrospectivity.  In the Tribunal’s view, a Statement of Principles is to be categorised as a procedural matter.  The Tribunal described a SoP as a “template which determines what evidence must be adduced at the hearing”, and that such “affects procedure of the review, that is how … the applicant will prove that the veteran died as a result of war-caused myeloma”.  The AAT affirmed the decision under review.  His Honour, the primary Judge set that decision aside, for the reasons referred to below.  The Repatriation Commission appeals from that decision. 

The Statutory Provisions

51                  Pursuant to s 13(1)(a) and (c) of the Act, the Commonwealth is liable to pay pensions by way of compensation to the dependants of a deceased veteran where his or her death was “war-caused”.  The death of a veteran is to be taken as having been war-caused if, relevantly, the death arose out of, or was attributable to, any eligible war service rendered by the veteran:  s 8(1)(b).  The Repatriation Commission is to determine the entitlement to a grant of pension:  s 19(3).  Section 120 deals with the question of proof, subs (1) providing that the Commission shall determine that the death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination;  and subs (3) providing that the Commission shall be so satisfied (that there is no sufficient ground) if, after consideration of the material before it, it is of the opinion that such does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.  Except for the determination under subs (1) (and subs (2), not here relevant) the Commission is to determine the matter to its reasonable satisfaction:  subs (4).  The reasonableness of the hypothesis upon which an applicant relies, falls to be assessed by reference to a Statement of Principles (a “SoP”).  Sub-section 120A(3) provides:

“For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)       a Statement of Principles determined under subsection 196B(2) or (11);  or

(b)       a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.”

52                  There was, as mentioned above, a SoP current at the relevant time.

53                  Section 196B in Part XIA, deals with the functions of the Repatriation Medical Authority (the ‘RMA’), including the determination of a SoP .  The RMA is constituted by registered medical practitioners and/or medical scientists of certain experience (see s 196M). 

54                  Section 196B(2) provides:

“If the Authority is of the view that there is sound medical-scientific evidence that indicates that a …death can be related to:

(a)       operational service rendered by veterans; or

(b)       …

the Authority must determine a Statement of Principles in respect of that … 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 …death of that kind with the circumstances of that service.”

55                  The RMA may determine a SoP on its own investigation or upon a request to do so;  and it may be requested to review a SoP.  The Specialist Medical Review Council, which is provided for in Part XIB, has certain powers of direction and control with respect to a SoP, but those provisions are not here in question. 

56                  On 12 January 1995, the RMA determined a SoP (Instrument No 1 of 1995 - the “first SoP”) concerning multiple myeloma and death from multiple myeloma.  It provided in part:

“1.       Being of the view that there is sound medical-scientific evidence that indicates that multiple myeloma and death from multiple myeloma can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans’ Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting multiple myeloma or death from multiple myeloma with the circumstances of that service, are:

…

(b)       being occupationally exposed to paints and/or lacquers before the clinical onset of multiple myeloma;  or

…

2.         subject to clause 3 (below) at least one of the factors set out in paragraphs (1)(a) to (d) must be related to any service rendered by a person.”

57                  On 26 September 1996, the RMA determined another SoP concerning multiple myeloma (Instrument No 134 of 1996 - the “second SoP”).  It expressly revoked Instrument No 1 of 1995, and then articulated principles including:

“Basis for determining the factors

3.         The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that multiple myeloma and death from multiple myeloma can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.

Factors that must be related to service

4.         Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.

Factors

5.         The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting multiple myeloma or death from multiple myeloma with the circumstances of a person’s relevant service are:

…

(b)       being occupationally required to work as a painter for an average of three or more days per week over any two year period, (or working as a painter for a period or periods of time totalling at least 312 days) before the clinical onset of multiple myeloma, and where that occupational exposure has ceased, the clinical onset of multiple myeloma has occurred within 20 years of cessation; or

…”.

58                  It is also necessary to refer here to s 50 Acts Interpretation Act 1901 (Cth) (‘AIA’) which provides:

“Where an Act confers power to make regulations, the repeal of any regulations which have been made under the Act shall not, unless the contrary intention appears in the Act or regulations effecting the repeal:

(a)       affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulations so repealed;  or

(b)       affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any regulations so repealed;  or

(c)        affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or regulations had not been passed or made.”

59                  A combination of s 46A AIA and s 196D of the Act has the effect that s 50 applies to the Statements of Principles as if they were regulations.

Issues on the Appeal

60                  Mrs Keeley lodged a claim for a pension on 14 December 1994.  No issue was taken as to the application of the first SoP, determined in January 1995, when her claim was considered and a decision reached.  The parties no doubt proceeded upon the basis that the Act, by s 120A(1), evinced a clear intention that all applications lodged after 1 June 1994 be subject to a regime which included an assessment according to a SoP (and see Ogston v Repatriation Commission (1999) 29 AAR 89).  In that event, the first SoP applied retrospectively.

61                  Mrs Keeley’s application was refused by the Repatriation Commission on 31 May 1995, and by the Veterans Review Board on 19 April 1996.  On 12 June 1996, Mrs Keeley applied to the AAT, which had power to affirm, vary, or set aside the decision and substitute its own decision or remit the matter:  s 176 of the Act and s 43 Administrative Appeals Tribunal Act 1975.  Before the AAT heard the matter, and on 26 September 1996, the second SoP was determined and it revoked the first.

62                  The Commission contends that the second SoP was applicable.  Whilst there has been no factual determination by the AAT based upon the first SoP, it is possible that Mrs Keeley’s case could satisfy its requirements.  The first question falls to be resolved by reference to the operation of s 50 AIA, which reflects the common law presumption against retrospectivity.  The appellant contends that no substantive right was conferred by the first SoP, so that s 50 has no operation.  Alternatively, it submits that if such a right were given, the provisions of the Act, which create the context for the SoP, make plain that any later SoP was intended to apply to all claims arising for determination after it came into effect.

The Decision of the Primary Judge

63                  Heerey J considered that the answer to the question posed was not resolved by categorising Statements of Principles as procedural matters, but by applying s 50 AIA and enquiring whether the repeal of the first SoP by the second affected any “right” or “privilege” “acquired by” or “accrued” to the applicant under the first SoP.  The decision of the High Court in Esber v Commonwealth (1992) 174 CLR 430 and of a Full Court of this Court in Lee v Secretary, Department of Social Security (1996) 68 FCR 491, compelled an affirmative answer.  I will refer to those decisions below.  His Honour held:

“At the time of the Commission’s decision the first SoP, a “statute-backed declaration of what is proved or known scientific fact” (Deledio at 96), had the effect that service-related occupational exposure of Mr Keeley to paints and/or lacquers was sufficient to raise for the applicant the hypothesis required by s 120(3).  This was so whether or not the applicant was then aware of the first SoP or its applicability to her case.  The applicant had acquired a right to a pension conditional or contingent upon, amongst other things, there being raised (in the sense discussed in the authorities) the fact that Mr Keeley in the course of his service had been occupationally exposed to paints or lacquers, over whatever period of time.”

The Appeal

The Right Affected

64                  The Commission’s principal submission was that ss 120A and 120B of the Act, and the Statements of Principles provided only for matters of procedure which were to apply on the hearing of the claim for a pension.  They prescribed the procedures by which a right to a pension under s 13 of the Act is to be recognised or vindicated, but did not refer to that right itself.  Section 120A(3) refers to the requirements of the applicant’s evidence, rendering certain evidence irrelevant to the question whether a hypothesis is reasonable.  To an extent, Statements of Principles operate as a substitute for medical or scientific evidence that might otherwise be put forward to establish the requisite connexion between the service and the death or injury.  A SoP is relevant only to the manner by which an alleged entitlement is pursued to a remedy.  The argument denies that an alteration to the SoP operates upon, or affects, any existing right held by Mrs Keeley. The arguments advanced seek to draw upon the distinction discussed by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261, when explaining the operation of the common law rule against retrospectivity, which is reflected in the AIA provision.  His Honour said that it was the concern of the common law to prevent new statutes affecting rights already in existence;  but that statutes which made changes only to the means by which rights were enforced, affected procedures and not the right itself.  The latter could operate with respect to accrued rights without infringing the rule.  In particular, the Commission placed reliance upon the application of that statement of the rule in Rodway v The Queen (1990) 169 CLR 515.

65                  In Maxwell v Murphy (267-268), Dixon CJ said:

“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.  But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption.  Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.  The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger [1876] 3 Ch D 62. ‘No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done’ (69).

The distinction is clear enough in principle and its foundation in justice is apparent.  But difficulties have always attended its application.  In some cases they have been due to the discovery in the nature or context of the legislation or in its subject matter of indications, whether faint and conjectural or strong and persuasive, of a desire to cover situations already existing.  In other cases the difficulty has been traceable to the inveterate tendency of English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance.  Again, enactments in truth conferring or denying rights are not seldom expressed in terms of remedy.  There is a tacit recognition of this in the manner in which Lord Penzance (then Wilde B) stated the rule in a passage that has been much quoted - ‘The rule applicable to cases of this sort is that, when a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away.  But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions whether commenced before or after the passing of the Act’ Wright v Hale (1860) 6 H & N 227, 232.”

66                  In that case, a statute had provided that an action for compensation by relatives was to be brought within 12 months from date of death.  Two years after the death of the plaintiff’s husband, the Act was amended to allow actions to be brought within six years.  The Plaintiff then sought to bring such a proceeding.  It was then more than three years after the date of death.  It was held that the amendment did not revive the plaintiff’s right to maintain her action. The right which the plaintiff had was described as a right of action which would endure for twelve months (268).  Viewed another way, a description of the right had to take account of the temporal bar imposed upon the available remedy (268).

67                  It follows from the statement of the rule in the passage set out above, that the first enquiry in any case must be as to whether a right had accrued prior to the repeal or amendment.  So much was accepted in Esber (439). The rule has relevance to statutes which would otherwise divest vested rights, and holds that they may operate only prospectively (Maxwell v Murphy, 270) with respect to rights which have not yet come into existence.  A right may vest in or be held by a person prior to the repeal or amendment in question by the application of the law then in existence to the facts as they had already occurred.  The law will then have “defined” the right, as Dixon CJ said in Maxwell v Murphy.  In Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647, 652 his Honour had said:

“The presumptive rule of construction is against reading a statute in such a way as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred.  In other words, liabilities that are fixed, or rights that have been obtained, by the operation of the law upon facts or events for, or perhaps it should be said against, which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends…”.

68                  By contrast, as his Honour pointed out in Maxwell v Murphy, by reference to the passage in Erlanger, a person holds no interest in the process by which the right itself is vindicated or enforced.

69                  In Rodway, the accused had been charged with the defilement of a girl under 17 years of age and indecent assault of a female pursuant to ss 124(1) and s 127, Ch XIV, of the Tasmanian Criminal Code.  At the time he was charged s 136, of the same Chapter, provided that no person was to be convicted of any crime under the provisions of the Chapter on the evidence of the person in respect of whom the crime is alleged to have been committed, unless their evidence was corroborated in some material particular by other evidence implicating the accused.  Between the time of the plea of guilty and committal for trial, s 136 was repealed.  A new section provided that a judge was not required to give a warning concerning conviction on uncorroborated evidence.  It was held that the relevant provision of the Tasmanian Acts Interpretation Act 1931 did not apply so as to deny the operation of the new provision.  The earlier provision did not affect an existing right, but merely the way in which the charges were to be determined by the jury.

70                  The provision with which the Court was concerned in Rodway, it was submitted, was similar to that in question here.  The applicant’s right to a pension depended upon the evidence.  As in Rodway, the change effected by the second SoP was merely to affect the evidence which was to be received, or regarded as relevant.  It did not alter the right sought to be vindicated;  but the method by which it was to be so recognised.

71                  In Rodway, the amendments were held not to operate retrospectively, with respect to some existing right, but prospectively and merely so far as concerned the way the matter fell to be contested or determined at trial (522-523).  One may, for present purposes, contrast that with a statute which changed the elements of the offence with which a person had been charged.  In such a case, the accused would remain liable to conviction on the offence as charged.  The provisions of s 136, it was held, affected the evidence which might be utilised or the “effect to be given to evidence” (521).  A change to the evidence which may be admitted, or to warnings required to be given to a jury, may of course be influential upon the outcome.  It does not however follow that they affect an existing right or liability.

72                  The appellant’s characterisation of the Statements of Principles as evidentiary appears, upon first consideration, to be correct.  It is, however, necessary to heed the warning in the passage from Maxwell v Murphy, above, as to how statutory provisions dealing with evidentiary matters in fact operate.  In any event, the true enquiry is as to whether any right had accrued to Mrs Keeley before the repeal of the first SoP.  This requires consideration of the operation of the Act and the part the Statements of Principles play with respect to a pension entitlement.

73                  The starting point is that the Act recognises a liability for the payment of a pension under s 13, so long as a veteran’s death was war-caused.  The Statements of Principles are relevant to that latter question.  For present purposes however, it may be noted that an entitlement to a pension does not depend upon some discretionary factors or levels of satisfaction held by a decision-maker.  This, amongst other things, serves to distinguish it from the cases to which I later refer.

74                  If the SoP regime had not been introduced it seems doubtful to me that the Commission could have contended that the Act did not provide a right to a pension, contingent upon proof of the necessary causal connexion.  The right is not dissimilar to a cause of action in negligence, with the remedy under the Act being compensation by way of pension.  When the Commission speaks of the Statements of Principles altering the means by which the connexion will be established from time to time, it is referring to something akin to minimum or necessary ingredients to a cause of action.

75                  It may be accepted that difficulty was encountered in earlier cases because of differing medical and scientific evidence which was able to be produced in different cases, and because of the standard of proof.  There may have been doubt as to whether what was put forward was generally accepted in those disciplines.  The means by which this was sought to be overcome, by the SoP regime and standard of proof provisions, have the effect of excluding some applications for pension.  The first exclusion arises in the event that there is no current scientific or medical knowledge referrable to the condition, from which it  may be inferred that there was no general acceptance of any connexion between the condition in question and the circumstances of the service.  The second arises when the Statements of Principles require facts to exist, in proof of the connexion, and they are not present in the applicant’s claim.

76                  In my view, the Statements of Principles operate generally as a bar or threshhold test.  The bar or limitation operates on the right to a pension itself because the Statements of Principles determine the connexion between death and service as a minimum, in each case (see Maxwell v Murphy, 278).  It cannot therefore be described as relating only to procedure (see Pederson v Young (1964) 110 CLR 162, 169).  The introduction of the second SoP affected the right to pension under s 13, as the first had. 

77                  From the time the first SoP came into effect, Mrs Keeley’s right to a pension was defined specifically by the requirement that the circumstances of her husband’s service involved his exposure in the course of his work to paints and/or lacquers before the clinical onset of multiple myeloma, and then more generally by the requirement that the condition be attributed to his service.  Whilst she was required to prove or vindicate that right, it was one which was then held by her.  The second SoP required more - that work as a painter had been undertaken for a minimum period or periods and that the condition onset within a certain time from cessation of exposure through that work.  Any increase in the bar to the remedy could not in my view be regarded as procedural.  It affected a substantive right (see Pedersen v Young, 169).  The comparison is as between a provision limiting access to the courts for enforcement of a claim and one which destroys or impairs the basis upon which a remedy will be given (and see McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, 41).

78                  The repeal of the first SoP affected the content of Mrs Keeley’s right.  It follows, in my view, that s 50 AIA operates, subject to the further question whether any intention to the contrary is disclosed by the second SoPs as the repealing provision.

Esber’s Case

79                  The appellant’s case on the appeal focussed upon the nature and effect of the Statements of Principles in the context of a pension entitlement.  I have not found it necessary, in applying s 50 AIA, to consider the nature of Mrs Keeley’s rights to review as “rights” which had “accrued” for the purposes of that provision.  It appears to have been accepted in Esber that the claimant did not have such a right (see 439, 440), although this is not entirely clear, as I shall explain.  The provision in question permitted a person to apply for redemption of periodical payments by a lump sum, but required the decision-maker to be satisfied about certain things.  Their Honours held that if one assumed it to be the case that there was no accrued right, nevertheless the appellant had “a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim (440).”

80                  If Esber holds that a right of review is not to be regarded as affected by the alteration to a statutory provision relating to something which is the subject of a grant;  or that the right of review is to be taken to encapsulate the claim to, or request for, that grant, then Mrs Keeley’s case finds additional support.  The difficulty, with respect, in the application of Esber is in understanding precisely what it proposes.  Moore J in Lee thought that it is to be regarded as authority for the proposition that “…a statutory right to seek a review of a decision made under a repealed Act is a right for the purposes of s 8 of the Acts Interpretation Act” (515).  It would appear that his Honour also took Esber necessarily to say that the right was one to a review according to the prior claim to redemption (515-516).  No finding of accrued right was however made in Esber, and any relationship between the matter applied for and the review is not explained in detail.  Davies J took Esber to mean that the principle that the law as it then exists, and not some earlier law, is applied to a rehearing de novo, as a review is, was overridden by the Acts Interpretation Act provision (495-496).  Cooper J in Lee (505) observed that the majority in Esber applied the analogy of a right of appeal to the review, in holding that it was not to be altered, and reiterated their Honours’ reference to cases such as Australian Coal and Shale Employees’ Federation v Aberfield Mining Co Ltd (1942) 66 CLR 161 and Colonial Sugar Refining Co v Irving (1905) AC 369.  Those decisions were, however, concerned with new statutory provisions which would have altered the right to an appeal itself.  The right in question under the AIA provision is of course that which accrued under the provision which is repealed or amended.  The statutory change in Esber was to the provision relating to the claim for redemption, not to the right to review.

Whether Contrary Intention

81                  The essence of the appellant’s argument was that one might derive from the provisions of the Act that it was intended to present current scientific and medical knowledge as the requirement of evidence of connexion.  One may put to one side, for the present, the question whether this contextual setting for the second SoP was sufficient for an intention to be derived from it, as the repealing provision, as the AIA requires.  His Honour the primary Judge considered that the underlying view, that a new law is considered to be an improvement on the old, could be applied to virtually all amending or repealing legislation.  Further, the need for consistency of decisions of lay tribunals is equally met by applying the SoP existing at the time of the primary decision.  I respectfully agree.

Conclusion

82                  The appeal should be dismissed with costs.

Associate:

Dated:              28 April 2000