FEDERAL COURT OF AUSTRALIA
Vietnam Veterans’ Association of Australia New South Wales Branch Inc v Specialist Medical Review Council [2002] FCA 733
VETERANS’ AFFAIRS – an application under s39B(1A)(c) of the Judiciary Act 1903 (Cth) seeking review of declarations made by the Specialist Medical Review Council pursuant to s196W(5) of the Veterans’ Entitlement Act 1986 (Cth) –Whether the Council failed to consider two standards of satisfaction which it was required by the Veterans’ Entitlement Act 1986 (Cth) to address when evaluating the sound medical-scientific evidence concerning the hypothesis that smoking contributes to prostate cancer – whether the Council failed to carry out a review of all the information that was available to the Repatriation Medical Authority when it last amended the relevant Statements of Principle – whether Council can review a Statement of Principles when the Statement of Principles has been revoked and replaced by the authorities.
Words and phrases – “reasonable hypothesis”, “proposition”, “in force”
Judiciary Act 1903 (Cth) s 39B(1A)(c)
Veterans’ Entitlement Act 1986 (Cth) ss 120A(3), 196B, 196C, 196E, 196K, 196V, 196W, 196Y, 196ZA(5), 196ZE and 196ZF
Vietnam Veterans' Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419 referred to
Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 48 NSWLR 548 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed
Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd (1988) 62 ALJR 426 considered
East v Repatriation Commission (1987) 16 FCR 517 referred to
Bushell v Repatriation Commission (1992) 175 CLR 408 referred to
Byrnes v Repatriation Commission (1993) 177 CLR 564 referred to
Repatriation Commission v Bey (1997) 79 FCR 364 followed
THE VIETNAM VETERANS' ASSOCIATION OF AUSTRALIA (NSW BRANCH) INC v SPECIALIST MEDICAL REVIEW COUNCIL AND REPATRIATION COMMISSION
N 1277 of 2001
MOORE J
7 JUNE 2002
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
THE VIETNAM VETERANS' ASSOCIATION OF AUSTRALIA (NEW SOUTH WALES BRANCH) INC. APPLICANT
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AND: |
SPECIALIST MEDICAL REVIEW COUNCIL FIRST RESPONDENT
REPATRIATION COMMISSION SECOND RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS AND DECLARES THAT:
1. The Specialist Medical Review Council has power to consider and determine the application made by the Vietnam Veterans’ Association of Australia (New South Wales Branch) Inc (“the Association”) made under s 196Y of the Veterans’ Entitlement Act 1986 (Cth) on 22 May 1995.
2. The Repatriation Commission pay the Association’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
THE VIETNAM VETERANS' ASSOCIATION OF AUSTRALIA (NEW SOUTH WALES BRANCH) INC. APPLICANT
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AND: |
SPECIALIST MEDICAL REVIEW COUNCIL FIRST RESPONDENT
REPATRIATION COMMISSION SECOND RESPONDENT
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 This is an application by the Vietnam Veterans' Association of Australia New South Wales Branch Inc ("the Association") under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The Association challenges two declarations made on 3 August 2001 ("the 3 August 2001 declarations") by the first respondent, the Specialist Medical Review Council ("the Council"). The declarations were made under s 196W(5) of the Veterans’ Entitlement Act 1986 (Cth) ("the Act") in a review sought by the Association under s 196Y. The general import of the 3 August 2001 declarations was that the Council did not accept in the review it undertook that there was a connection between smoking and prostate cancer which might create an entitlement to a pension under the Act. The gist of the Association's application in this Court is that the Council did not undertake the review as required by the Act. No issue was raised about the Court's jurisdiction to determine the application and it appeared to be common ground that it concerned a "matter arising under [a law] made by the Parliament" of the type referred to in s 39B(1A)(c): see Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1, Coffey v Secretary, Department of Social Security (1999) 86 FCR 434, Matthews v Australian Securities and Investments Commission (2000)97 FCR 396, Transport Workers’ Union of Australia v Lee (1998)84 FCR 60 and Abraham v Commonwealth of Australia [1999] FCA 1613.
2 All parties agreed the declarations should be set aside but they agreed for different reasons. However no consent orders were proposed. Accordingly, it is necessary to determine the Association's application. I should add that had such orders been proposed it may have raised the issue of whether the Court could make them without being satisfied that the Council had erred. There is now a line of authority that in judicial review proceedings, agreement between the parties that the decision maker erred should not be reflected in orders made by consent unless the Court is also satisfied that there was such an error; see: Kovalev v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 323, Xiao v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 129, Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142 and Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 1674 but cf: Alhila v Minister for Immigration and Multicultural Affairs [2001] FCA 1759. In order to explain the basis upon which the Association challenges the 3 August 2001 declarations it is necessary to set out the background and the statutory context in which they were made.
The statutory context
3 The Council performs review functions which include reviewing the contents of a Statement of Principles. Statements of Principles are now an important feature of the operation of the Act. Their place in the scheme of the Act has recently been considered by a Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321. Heerey J described their significance in the following passage (at pars [6] to [9]):
“Section 13(1) of the [Act] renders the Commonwealth liable to pay pension to a veteran where that veteran has become incapacitated from a war-caused disease. The circumstances in which a disease is taken to be war-caused are set out in s 9(1). (Section 13(1) also confers pension rights on veterans for incapacity from war-caused injury and on the dependants of deceased veterans where death was war-caused.)
Section 120(1) and (3) of the [Act] prescribe the standard of proof to be used in making a determination under s 13(1) where the claim relates to operational service. As explained by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, the threshold question posed by s 120(3) is: does the whole of the material before the decision-maker raise a reasonable hypothesis connecting the disease with the particular circumstances of the veteran’s service? If so, the Commission is to determine that the disease was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination: s 120(1).
A claim made on or after 1 June 1994 that relates to operational service rendered by a veteran is affected by s 120A.
Section 120A(3) provides that a hypothesis connecting a person’s disease with the circumstances of any particular service rendered by the person is reasonable only if there is in force an [Statement of Principles] that “upholds” the hypothesis. That is, the hypothesis raised by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, the [Statement of Principles]: see Repatriation Commission v Deledio (1998) 83 FCR 82 at 96, endorsing the observations at first instance: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275.”
“(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.
(6) If the Council is asked under section 196Z to review a decision of the Repatriation Medical Authority under subsection 196C (4) not to carry out an investigation in respect of a particular kind of injury, disease or death, the Council must consider:
(a) the reasons given by the Authority for making the decision; and
(b) the information on which it relied in making that decision; and
(c) the grounds on which the request for the review was made and any submission made in support of those grounds.
(7) If, after considering the matters referred to in paragraphs (6) (a), (b), and (c), the Council is of the view that:
(a) there appears to be a new body of sound medical-scientific evidence in respect of that kind of injury, disease or death that has not been previously considered by the Authority; and
(b) that new body of evidence, together with the sound medical-scientific evidence available to the Authority, could justify the making of a Statement of Principles, or an amendment of the Statement of Principles already determined, in respect of that kind of injury, disease or death;
the Council must make a declaration in writing to that effect giving the reasons for its decision and directing the Authority to carry out an investigation under subsection 196B (7) in respect of that kind of injury, disease or death. The Council may include in the declaration any recommendation or direction that the Council considers fit to make about the carrying out of the investigation.
(8) If, after considering the matters referred to in paragraphs (6) (a), (b) and (c), the Council is not of the view referred to in subsection (7) in respect of that kind of injury, disease or death, the Council must make a declaration in writing:
(a) affirming the decision of the Authority not to carry out the investigation; and
(b) giving the reasons for its decision.
The Council may include in the declaration any recommendation that it considers fit to make about any future investigation that the Authority may carry out in respect of that kind of injury, disease or death.”
“(1) Subject to subsection (2), any of the following:
(a) the Commission;
(b) a person eligible to make a claim for a pension under Part II and IV;
(c) an organisation representing veterans, Australian mariners, members of the Forces, members of Peacekeeping Forces or their dependants;
may ask the Review Council to review:
(d) the contents of a Statement of Principles in force under Part XIA; or
(e) a decision of the Repatriation Medical Authority not to make a Statement of Principles in respect of a particular kind of injury, disease or death.
(2) The request must be made:
(a) in the case of a request to review the contents of a Statement of Principles—within 3 months after the Statement of Principles was made, amended or last amended; or
(b) if paragraph (a) does not apply—within 3 months after the decision of the Authority.
(3) A request must:
(a) be in a form approved by the Review Council; and
(b) state the grounds on which the review is sought; and
(c) be lodged at an office of the Department.
(4) The Secretary must send the request to the Review Council, and notify the Repatriation Medical Authority of the request, within 28 days.”
6 It was not in issue that the Association is a body comprehended by subsection 196Y(1)(c). It would be apparent from the provisions already referred to that Statements of Principles are initially made, or later amended by, the Repatriation Medical Authority ("the Authority"). The functions of the Authority are found in s 196B of the Act which 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.
(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a) eligible war service (other than operational service) rendered by veterans; or
(b) defence service (other than hazardous service) rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
Investigation
(4) If the Authority:
(a) receives a request under section 196E to carry out an investigation in respect of a particular kind of injury, disease or death; or
(b) of its own initiative, decides that a particular kind of injury, disease or death ought to be investigated for the purposes of this Act to find out whether a Statement of Principles may be determined in respect of it;
the Authority must carry out an investigation to obtain information that would enable the Authority to establish:
(c) how the injury may be suffered, the disease may be contracted or the death may occur; and
(d) the extent (if any) to which the injury, disease or death may be war-caused or defence-caused.
(5) If, after carrying out the investigation, the Authority is of the view that there is sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3), in respect of that kind of injury, disease or death, the Authority must do so as soon as practicable.
Note: This subsection does not mean that the Authority must carry out an investigation before it can determine a Statement of Principles under subsection (2) or (3).
(6) If, after carrying out the investigation, the Authority is of the view:
(a) that there is no sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death; or
(b) that the sound medical-scientific evidence on which it can rely is insufficient to allow it to do so;
the Authority must make a declaration in writing:
(c) stating that it does not propose to make a Statement of Principles; and
(d) giving the reasons for its decision.
Subsequent investigation and review of determinations concerning Statement of Principles
(7) If the Authority:
(a) is asked under section 196E to review:
(i) the contents of a Statement of Principles; or
(ii) a decision of the Authority not to make a Statement of Principles in respect of a particular kind of injury, disease or death; or
(b) thinks that there are grounds for such a review; or
(c) is directed by the Review Council under subsection 196W (7) to carry out an investigation in respect of a particular kind of injury, disease or death;
the Authority must, subject to subsection 196C (4) and section 196CA in a case where paragraph (a) applies, carry out an investigation to find out if there is new information available about:
(d) how the injury may be suffered, the disease may be contracted or the death may occur; or
(e) the extent to which the disease, injury or death may be war-caused or defence-caused.
(8) If, after carrying out the 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 injury, disease or death, the Authority must:
(a) determine a Statement of Principles in respect of that kind of injury, disease or death 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 injury, disease or death; 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 injury, disease or death;
as the case requires.
(9) If, after carrying out the investigation, the Authority is of the view:
(a) that there is no new sound medical-scientific evidence about that kind of injury, disease or death; or
(b) that the new sound medical-scientific evidence available is not sufficient to justify the making of a Statement of Principles, or an amendment of the Statement of Principles already determined in respect of that kind of injury, disease or death;
the Authority must make a declaration in writing:
(c) stating that it does not propose to make a Statement of Principles, or amend the Statement of Principles already determined (as the case may be); and
(d) giving the reasons for its decision.
(10) If the Review Council has, by a decision notified in the Gazette, directed the Authority to amend a Statement of Principles in respect of a particular kind of injury, disease or death, the Authority must make a determination amending the Statement of Principles determined in respect of that kind of injury, disease or death in accordance with the directions of the Council.
(11) If, after reviewing a decision of the Authority not to determine a Statement of Principles under subsection 196B (2) in respect of a particular kind of injury, disease or death, the Review Council has, by a decision notified in the Gazette, directed the Authority to make such a Statement of Principles, the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out, in accordance with the directions of the Council:
(a) the factors that must as a minimum exist; and
(b) 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: For `factor related to service' see subsection (10).
(12) If, after reviewing a decision of the Authority not to determine a Statement of Principles under subsection 196B (3) in respect of a particular kind of injury, disease or death, the Review Council has, by a decision notified in the Gazette, directed the Authority to make such a Statement of Principles, the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out, in accordance with the directions of the Council:
(a) the factors that must exist; and
(b) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
(13) A determination under subsection (10) amending a Statement of Principles, or a Statement of Principles under subsection (11) or (12) is to be taken to have had effect from the day on which the decision of the Review Council was notified in the Gazette. The determination or Statement of Principles must specify that day.
(14) …”
7 If, after exercising the powers conferred by this section, there is a request for review under s 196Y, the Authority must take certain steps to facilitate the review. This is addressed by s 196K which provides:
“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.”
Events leading to the 3 August 2001 declarations
8 It is convenient to refer, in a summary way, to the sequence of events leading to the 3 August 2001 declarations described in an affidavit of Timothy McCombe of 25 February 2002. He is the President of the Association. Some additional facts emerge from the documentary evidence and, in particular, the Council's reasons for decision ("decision").
9 The 3 August 2001 declarations were made following attempts by the Association, over a number of years, to gain recognition of a connection between smoking and cancer of the prostate under the system for determining pensions introduced by the 1994 amendments to the Act. That is, the system involving Statements of Principles. Under the earlier statutory regime the connection had been recognised for relevant purposes following decisions of the Administrative Appeals Tribunal: see Re Chandler and Repatriation Commission (1993) 30 ALD 107 and Re McLean, Rimes and Grieve and Repatriation Commission (1994) 31 ALD 611.
10 On 8 March 1995 the Authority issued two Statements of Principles concerning what can, for present purposes, be described as prostate cancer. Under s 196B two types of Statements of Principles can be determined by the Authority. One concerns operational service (determined under subs (2)) and the other concerns non-operational eligible war service and defence service (determined under subs (3)). One Statement of each type was issued on 8 March 1995. The Statement concerning operational service was called "Instrument No 95 of 1995" ("the operational service 1995 Statement") and the other was called "Instrument No 96 of 1995" ("the non-operational service 1995 Statement"). In neither Statement was smoking identified as a factor which might either found a reasonable hypothesis or establish a relevant connection on the balance of probabilities. The Authority gave no reasons.
11 On 22 May 1995, the Association applied, in terms, for the review by the Council of the operational service 1995 Statement ("the 1995 review application"). The Association requested a review of the decision of the Authority not to include in the operational service 1995 Statement, as a reasonable hypothesis, that using tobacco products caused prostate cancer. The Association made written and oral submissions to the Council. It appears that central to those submissions was the opinion of Professor Gabriel Kune. In January 1996, the Council published one document containing two declarations (“the January 1996 declaration”) effectively rejecting the contention that the two 1995 Statements of Principles should be amended to include smoking (other matters were dealt with in the declaration which are not presently relevant).
12 These events led to litigation in this Court at the instance of the Association. The Court ultimately determined it did not have jurisdiction to entertain the application: see Vietnam Veterans' Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419. At the time s 39B(1A)(c) of the Judiciary Act had not been enacted. Tamberlin J gave judgment on 15 November 1996. On 16 December 1996 the Association commenced proceedings in the Supreme Court of New South Wales seeking relief in relation to the January 1996 declaration (and other relief which is not presently relevant). However in the meantime, on 9 December 1996, the Authority made amendments to both the operational service 1995 Statement and the non-operational 1995 Statement. The former amendment was in a document called "Instrument No 191 of 1996" ("the operational service 1996 amendment") and the latter amendment was in a document called "Instrument No 192 of 1996" ("the non-operational service 1996 amendment"). Both amendments effectively added a further factor (concerning the consumption of animal fat) to the two 1995 Statements of Principles and refined the way in which the factors were expressed.
13 It is significant (for reasons which will be apparent shortly), that it is not suggested in the evidence that either amendment arose out of an application to the Authority under s 196E to review the two 1995 Statements of Principles to amend them to add smoking as a factor or that the Authority was considering this issue of its own motion under s 196B(4)(b). A request was not made, it appears, to the Authority to further consider the link between smoking and prostate cancer, so that the amendments made in December 1996 appear to have been the result of some other issue having been raised either in an application or by the Authority of its own motion. That issue was probably the effect of consuming animal fat. It is not surprising no application to the Authority was made at this time by the Association raising the relationship between smoking and prostate cancer. That is because the Association had been, until just before the amendments were made in December 1996, engaged in litigation asserting error in relation to the rejection of its contention raised in the 1995 review application that smoking and prostate cancer were relevantly linked. I infer that the amendments made by the Authority in late 1996 did not purport to deal with a contention that there was a relevant causal link between smoking and prostate cancer. Nonetheless on 2 January 1997 the Association sought a review of the operational service 1996 amendment on the basis that it failed to include a link between tobacco products and prostate cancer ("the 1997 review application").
14 The application lodged in the Supreme Court on 16 December 1996 was heard in August and September 1998 and judgment was delivered on 4 May 1999 by Greg James J. The Association was successful but the Commission appealed. Greg James J declared that part of the January 1996 declaration was invalid and ordered the Council to hear and determine the 1995 review application (as I apprehend the effect of the orders). The appeal was heard in February 2000 and judgment was given by the Court of Appeal on 31 March 2000: see Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc & Ors (2000) 48 NSWLR 548. Spigelman CJ gave the leading judgment and together with Handley JA, formed the majority. The Court of Appeal set aside the orders of Greg James J concerning the January 1996 declaration and simply declared that paragraph 1 of the declaration (which concerned the operational service 1995 Statement) was void. I should add that the Council met in May 1998 to hear submissions in support, it appears, of the 1997 review application.
15 Again, however, matters moved on while the litigation continued. On 9 November 1999 the Authority made two instruments. The first instrument purported to do two things. First, it revoked the operational service 1995 Statement and the operational service 1996 amendment. Secondly, it determined a new Statement of Principles concerning prostate cancer and operational (and allied) service. This instrument was called "Instrument No 84 of 1999" ("the operational service 1999 Statement"). The second instrument did the same two things in relation to the non-operational service 1995 statement and the non operational service 1996 amendment. That is, it revoked them and created a new Statement of Principles. This instrument was called "Instrument No 85 of 1999" ("the non-operational service 1999 Statement").
16 The position was that after the decision of the Court of Appeal, the 1995 review application had not, as a matter of law, been determined. No party suggested otherwise in these proceedings. In 2000 the Council and the Association and their lawyers corresponded about what should happen following the Court of Appeal’s decision. In a letter dated 18 May 2000, the Australian Government Solicitor wrote (on behalf of the Council) to the Association's solicitors inviting an application to the Authority (under s 196E(1)(f)) for it to review afresh the contents of both the operational service 1995 Statement and the non-operational service 1995 Statement. Concern was expressed that the resolution of the 1995 review application and/or the 1997 review application by the Council would be an academic exercise. A meeting was proposed between representatives of the Council and its legal advisers and the Association and its legal advisers. This offer was rejected by a letter dated 8 June 2000 from the Association's solicitors. The Association expressed the view that unless the Authority further amended the two 1995 Statements of Principles, no right of "appeal" to the Council would arise (reference was made to s 196Y(2)(a)). As there could be no certainty that the Authority would make amendments, the Association indicated the Council should determine the 1995 and the 1997 review applications. By letter dated 14 August 2000, the Council advised the Association that it would take steps to commence to consider the 1995 review application and would finalise its consideration of the 1997 review application. The Council indicated it would determine the 1997 review application by reference to the evidence presently before it.
17 In February 2001 the Council wrote twice to the Association setting out the steps it proposed to take to determine the 1995 review application. The Council again wrote to the Association on 26 June 2001 explaining what had occurred in relation to its consideration of the 1997 review application (it had met in September 2000 and February 2001) and also explaining when a decision might be given. It also discussed the progress of the 1995 review application (it had met in April 2001) . The 3 August 2001 declarations dealt with the 1997 review application and other applications made at the same time.
18 On 6 December 2001 the Australian Government Solicitor wrote two letters to the Association's solicitors. One was on behalf of the Council and the other on behalf of the Commission. The letter on behalf of the Commission drew attention to the operational service 1999 Statement and the non-operational service 1999 Statement which had revoked the 1996 amendments. It was contended that when the Council made the 3 August 2001 declarations, the relevant Statements were not "in force". The view was expressed that the Council did not have, in the result, power to make the declarations. It was proposed that the appropriate course was for the parties to these proceedings to consent to orders setting aside the 3 August 2001 declarations though no orders should be made remitting a "matter" to the Council. The Association was invited to request the Authority (under s 196E(1)(f)) to review the contents of the two 1999 Statements. In the letter written on its behalf, the Council, in substance, adopted the Commission's position and its proposals. In a letter dated 1 February 2002 the Association's solicitors effectively rejected this offer and took issue with the proposition concerning the effect of the 1999 Statements on the unresolved (in 1999) review applications (the 1995 and the 1997 review applications).
19 The only other matter which should be noted is that the Registrar of the Council has sworn an affidavit which repeats this history and states that procedural arrangements have been put in place with the Authority to ensure that it advises the Council of a decision to revoke a Statement of Principles. In addition those procedural arrangements are intended to ensure that if a Statement is revoked, any person who had earlier applied for a review of the Statement, is invited to amend the application to seek a review of the replacement Statement of Principles.
The decision of the Council supporting the 3 August 2001 declarations
20 The Council commenced its decision with its conclusions which are reflected in the 3 August 2001 declarations. It then set out the background, referred to its position in the legislative scheme, briefly referred to the relevant legislation and referred to what was comprehended by "sound medical-scientific evidence". In setting out the background the Council said:
“10. Each application for review (say that lodged by the [Association]) was accompanied by a detailed report from Professor Gabriel Kune who argued that a reasonable hypothesis could be advanced to link smoking with the development of prostate cancer. Professor Kune has familiarity with the study of the aetiology of cancer of the prostate and other factors associated with its occurrence.
11. A submission to the Council by the Repatriation Commission was also available. This submission, in addition to addressing the material available to the [Authority] at the time of formulating Statements of Principles 191 and 192 of 1996, also drew attention to some relevant publications which were not available to the [Authority] when it made the Statements of Principles, and were not therefore able to be considered by the Council in its review.”
21 It then set out a summary of the oral submissions that had been made referring first to those made on behalf of the applicants. This summary commenced as follows:
“21. The applicants were represented by Mr Arun Kendall, an advocate from the Legal Aid Commission of New South Wales. Mr Kendall is not legally qualified (see subsection 196ZA(5) of the [Act]). Mr Kendall relied upon the evidence of Professor Kune. Professor Kune referred to his detailed reports which were submitted along with the individual applications. Professor Kune commenced with some comments concerning the written submission of the Repatriation Commission of April 1998 which at that time had been provided to the Council but had not been the subject of oral submission from a representative of the Repatriation Commission.”
A little later in its summary of the applicants' oral submissions, the Council said:
“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.
34. Just prior to the conclusion of his oral submission Professor Kune was asked to comment on the possibility that the confounding factors in the studies he had quoted to support his submission might undermine his view that there is a sound hypothesis in favour of the smoking prostate cancer relationship. Professor Kune said that he considered this to be an important and critical question. He conceded that overall confounding does undermine the strength of the causal connection, but added his opinion that this was not to a great extent. It remained his opinion that despite this undermining, the risk for prostate cancer, of smoking, remained.”
22 The Council set out a summary of the Commission's submissions. It repeated the approach evident in par [11] of its decision when it said:
“43. Dr Kelley then offered to present and discuss the new evidence which had accumulated since the [Authority] issued its Statement of Principle. He expressed the view that some of the new material accounted for the different conclusions which Professor Kune had drawn, leading him to submit that the Repatriation Commission’s submission contained some inaccuracies. Dr Kelly referred by way of example to the number of prospective studies that had shown a statistically significant dose response effect. He said that if the new studies were added to the studies before the Commission, only the total numbers of positive and negative studies were changed but not the ratio. On being asked whether this material changed in any way the attitude of the Repatriation Commission, or whether it contained material which would make it important to remit to the [Authority] for fresh consideration at the present, he answered in the negative.
44. The Council decided that further discussion on this material was unnecessary because of the legal requirement that a decision must be based only upon the materials which were available to the [Authority]. However, for the sake of completeness, the Convenor directed that the new material be included in the documents listed with the published decision of the Council (see paragraph 59 below).”
23 Then, in a section headed "Reasons for the Decision", the Council said:
“45. The Council approached these reviews of the two Statements of Principles 191 and 192 of 1996 mindful of the need to ensure that its collective mind remained completely open, notwithstanding the discussions surrounding previous considerations of smoking and prostate cancer and the outcome of the Consensus Conference of November 1996. The Council discussed its obligation to comply with the decision of the majority in the New South Wales Court of Appeal as to the manner in which it should carry out its statutory function. The Council considered all of the materials before it, for the purpose of determining what constituted the pool of information, being that information which epidemiologists would consider appropriate to take into account. 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 [Authority] was taken into account by the Council.
46. The Council considered that the submissions of Professor Kune were widely based, extensively researched and thought provoking in their deductions.
47. During the course of Professor Kune’s oral submissions (which were presented prior to the oral submission of Dr. Jon Kelley on behalf of the Repatriation Commission), the Council listened without comment to some of the deductions of strength of association said by Professor Kune to justify a conclusion of causality. By contrast there were other deductions and assertions made by Professor Kune which the Council challenged from its own knowledge and expertise. In most instances Professor Kune agreed with the Council’s observations and objections to those deductions.
48. As Professor Kune acknowledged, the submission by the Repatriation Commission was well researched and documented. The references, both those available to the [Authority] (and thus relevant to this review), as well as those which have been published subsequently, are listed at paragraphs 58 and 59 of this decision.
49. On Professor Kune’s view that the Repatriation Commission had reviewed only the negative aspects of the case (against a causal connection between smoking and prostate cancer) and in this respect was acting in a manner inimical to the interests of veterans, Dr. Kelley said that the submission by the Repatriation Commission was based upon a review of the written material presented by Professor Kune on behalf of the applicants prior to the oral hearing since this was the only source of contention currently available. He submitted that it was not surprising therefore in this context that the submission should appear to be based upon a critical refutation alone.
50. Notwithstanding that the Council was of the view that there were no studies which should be excluded from the pool of information, the Council took into account the methodological soundness of the various studies in according weight. To collect the studies into a bundle of comparable evaluation and to then review the statistical outcomes en masse, or serially, is to ignore the issue of the soundness or otherwise of particular studies. This criticism particularly applies to case control studies where there is general concern as to the way in which the controls are chosen. Although these concerns do not extend to the cohort studies in general, some of those which were offered by Professor Kune in support of his contentions were, in the opinion of the Council, adversely influenced by such problems.
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 content, 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.
53. The lack of inclusion of the several null studies (ie no conclusion reached one way or the other) in the submission of the applicants, whether they were supportive or not, was questioned by the Council.
54. During the latter part of Professor Kune’s oral submissions, repeated reference was made to the paper of Sr Richard Doll, a world renowned authority on smoking and cancer. This paper was presented at the Consensus Conference on Cancer of the Prostate and Smoking held in Brisbane in 1996 (referred to in paragraph 6 above). The Council noted the conclusion of the Conference ‘neither clinically, nor statistically significant association between smoking and prostate cancer seems likely but it cannot be ruled out entirely.’
55. The Council, in reviewing a Statement of Principles is concerned not with the details of particular applicants seeking review, but with the medical-scientific basis for accepting a causal relationship between specific phenomena (such as smoking) and the disease in question, in this case prostate cancer. The Council accepts Professor Kune’s submission that some of the Bradford Hill criteria of causation have limited application today in terms of the evolution of epidemiological concepts. With that in mind the Council has considered them, but has not slavishly followed them or restricted itself to them when answering the question of causation.
56. The Council, after directing itself in accordance wit the principles laid down by the New South Wales Court of Appeal, decided that there was no material which should be excluded from the pool of information, and that all material which was before the [Authority] was properly the subject of consideration by the Council. 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 [Authority] to justify any amendment to either Statements of Principles.” (Emphasis added.)
Against this background I turn to consider the issues raised by the Association in these proceedings.
The issues raised by the Association
24 The Association contended the 3 August 2001 declarations should be declared void on two bases:
(i) the Council failed to consider the two standards of satisfaction which it was required by the Act to address when evaluating the sound medical-scientific evidence concerning the hypothesis that smoking contributes to or causes prostate cancer.
(ii) the Council failed to carry out a review of all the information that was available to the Authority when it last amended the relevant Statements of Principles, namely in 1999.
Resolution of the issues raised by the Association
26 To consider the first basis upon which the Association seeks to impugn the 3 August 2001 declarations, it is necessary to refer to the relevant provisions of the Act. Though there was a dispute about what material the Council should have had recourse to in a review, there was generally no issue about what the Council was required by the Act to do in a review. In issue was whether it did what was required by the Act in the review leading to the 3 August 2001 declarations. It will be necessary to discuss in more detail later, provisions regulating the review process but it is sufficient for present purposes, to outline how a review is undertaken.
27 It was common ground that a review by the Council is to be undertaken in the following way. The Council "must….carry out a review of all the information that was available to the Authority when it determined, amended, or last amended, the Statement of Principles" (see s 196W(2)). Then it must consider whether "there is sound medical-scientific evidence on which the Authority could have relied to amend the Statement of Principles in force" or which "justifies an amendment of the Statement of Principles in force" (see the opening words of s 196W(4) and (5)). When this is done the Council must do one of two things. If amendment is appropriate, it should direct the Authority "to amend the Statement of Principles" or to reconsider "the matter" in accordance with its directions or recommendations (see s 196W(4)). If amendment is not appropriate, it should declare that there is "no sound medical-scientific evidence that justifies" an amendment or that "the sound medical-scientific evidence is insufficient to justify" an amendment (see s 196W(5)).
28 In undertaking a review when the Authority has declined to amend a Statement of Principles, the Council asks itself the same questions that the Authority asks when considering whether to amend a Statement of Principles. Section 196B(8) confers power on the Authority to amend and it must ask whether current sound medical-scientific evidence "justifies….an amendment of the Statement of Principles already determined". In making this assessment, the Authority approaches the matter in the way it would when considering whether to make a Statement of Principles. That is, the Authority addresses the issues raised by s 196B(2) in relation to a Statement of Principles for operational service and raised by s 196B(3) in relation to a Statement of Principles for non-operational service.
30 It can be seen that in the concluding paragraph of the Council's reasons (par [56] set out at [23] above), no reference is made to either "a reasonable hypothesis" or "on the balance of probabilities" (or an analog of that expression). What the Council did say that might be referable to these means of analysis appears in the highlighted passage of that paragraph. That is, it said it was not satisfied on the basis of the materials before it, and the submissions addressed to it, that there was sufficient evidence of sufficient weight before it to support a causal link between smoking and prostate cancer. This was said after the Council accepted that it could not exclude the possibility that there was a causal connection between smoking and prostate cancer. The Council also indicated at this point in its reasons that there was a significant amount of published evidence to refute the likelihood that there was such a causal connection or link.
32 Consistent with the judgment of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ and Toohey, McHugh and Gummow JJ) and at 291-292 (Kirby J), the reasons of the Council should not be "scrutinised by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". That is not to say, however, that in appropriate cases the lawfulness of a decision should not be determined by reference to the language actually used: see Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd (1988) 62 ALJR 426. However, the failure of the Council to use the expression "reasonable hypothesis" in its conclusion would not warrant, in my opinion, a finding that it failed to address and appropriately answer the relevant question (concerning operational service) if the substance of what appeared in its decision indicated the question had been addressed and appropriately answered.
33 A convenient reference point concerning what constitutes a reasonable hypothesis remains East v Repatriation Commission (1987) 16 FCR 517. That case was decided in 1987, and since then the High Court has twice considered the statutory scheme. First in Bushell v Repatriation Commission (1992) 175 CLR 408 and later in Byrnes v Repatriation Commission (1993) 177 CLR 564. The approach of the Full Court in East v Repatriation Commission was referred to with apparent approval by several members of the High Court in Bushell v Repatriation Commission and, on one view, by all members of the Court. In Byrnes v Repatriation Commission the High Court repeated the passage from the judgment of Mason CJ, Dean and McHugh JJ in Bushell v Repatriation Commission apparently approving East v Repatriation Commission. After the two High Court decisions four judges of this Court in Repatriation Commission v Bey (1997) 79 FCR 364 repeated, with obvious approval, the approach in East v Repatriation Commission. In Repatriation Commission v Bey, Northrop, Sundberg, Marshall and Merkel JJ said (at 371):
“East concerned a claim for pension by the widow of a veteran who had died from a disease of unknown aetiology. The Tribunal found that none of the hypotheses advanced to connect the death with war service was reasonable. On appeal to the Full Court the widow contended that where the cause of incapacity or death or the aetiology of a disease causing incapacity or death is unknown, there must, necessarily, be a real possibility of connection; hence the claim must be allowed. The Full Court rejected the contention on the ground that it paid “insufficient regard both to the history of the legislation and to the meaning of the phrase ‘reasonable hypothesis’”: (1987) 16 FCR at 531‑532.
After referring to the amendments which were intended to negate the effect of O’Brien, the Full Court said that if the widow’s submission were correct, “the pre‑1985 position would be retained”.
The Court approved the following passage from the decision of the Veterans’ Review Board in Stacey (unreported 26 June 1985):
The addition of the word “reasonable” would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility ‑ it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be “raised” by material before the Board, we think it must find some support in that material ‑ that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis.
Putting the matter in its own words, the Full Court said at 533:
A reasonable hypothesis requires more than a possibility; not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
The Full Court’s ruling as to the meaning of “reasonable hypothesis” has been applied by later Full Courts: Webb v Repatriation Commission (1988) 19 FCR 139 (Davies and Foster JJ); Repatriation Commission v Whetton (1991) 31 FCR 513 at 515 (Beaumont, Burchett and Lee JJ) and Bell v Repatriation Commission (1992) 26 ALD 545 at 546 (Davies, Beaumont and Einfeld JJ). The ruling was expressly approved by Brennan J and Toohey J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 427‑428 and 439.”
34 Because the Council did not, in terms, refer to "a reasonable hypothesis" it is necessary, in my opinion, to examine the Council's reasons with some care to ascertain whether it considered the question of whether there was such a hypothesis in a way that is in accord with existing authority. In par [51] of its decision (set out at [23] above) it identified its "task". It was said to entail considering whether the material before it provided sufficient evidence of a causal relationship between smoking and prostate cancer. The Council went on to say, in effect, that there would be sufficient evidence of a causal relationship (justifying amendment of the Statements of Principles) if the evidence was of statistical significance by applying indicators such as scientific judgment and the Bradford Hill criteria. An overview of the Bradford Hill criteria is helpfully found in the judgment of the Chief Justice in the Court of Appeal in Repatriation Commission v Vietnam Veteran's Association of Australia NSW Branch Inc (at [97] to [103]) (the paper by Sir Austin Bradford Hill is in evidence in these proceedings but was not referred to by the parties). Those criteria provide a means of ascertaining whether a causal relationship is established. The Council's identification of its task is consistent with what it had to do, namely ascertain whether there was any material supporting the existence of a causal relationship at all and if so, was the undemanding threshold of "reasonable hypothesis" reached. The Council's observations in this paragraph are consistent with it addressing the question raised by s 196B(2).
35 In the next paragraph of the Council's decision (par [52]) the Council again referred to what it understood it must do. In the second sentence, the Council spoke of it having to "determine whether there is sound medical-scientific evidence to support the proposition that smoking is a cause of prostate cancer". This statement is more problematic because the description of something as a proposition may imply a degree of connection between two elements that would not be suggested if the words or expression "an hypothesis" or even "a reasonable hypothesis" were used. However any difference in meaning is a subtle one and does not justify an inference that the Council was not addressing the question posed by s 196B(2). Indeed the word "proposition" was used as a synonym or at least an analogue of "reasonable hypothesis " by Lee and Cooper JJ in Repatriation Commission v Keeley (2000) 98 FCR 108 at [11].
36 This leads to a consideration of the critical part of the Council's decision, par [56]. It is possible to read the paragraph and conclude that the Council addressed what might be viewed as the two relevant aspects of a reasonable hypothesis emerging from East v Repatriation Commission. First, for an hypothesis to be reasonable something more than a possibility is required. The Council said, in effect, in the second sentence of that paragraph that the possibility of a causal connection between smoking and prostate cancer is apparent from the material it considered though this is not expressed affirmatively. That is, the Council said it could not exclude the possibility. It is relatively clear that the Council understood that this did not end its inquiry. That is because it went on to refer to the insufficiency of evidence of sufficient weight to support a causal link. However was the Council expressing an opinion that the hypothesis that smoking is relevantly linked to prostate cancer was obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous? That is, did it involve the expression of an opinion that the hypothesis was not reasonable? Fairly clearly if the Council was addressing an hypothesis it was not characterising the hypothesis as obviously fanciful, impossible, incredible or not tenable. However the language used is consistent with the Council indicating that the possibility of a causal link, that might have been characterised as an hypothesis, was too tenuous to be reasonable having regard both to the amount and quality of the evidence supporting the existence of a causal link as well as material indicating there was not one. I accept that the way the Council expressed itself might lead a critical inquirer to conclude that it was addressing a question involving a level of connection between smoking and prostate cancer beyond a reasonable hypothesis. However if the way the Council expressed itself can be viewed as revealing that it addressed and answered the right question, it would be wrong, in my opinion, for this Court to conclude that either the Council did not understand its task, or did but failed to perform it (whether inadvertently or not).
37 To this point I have proceeded on the basis that the Council was addressing in its decision whether there was a reasonable hypothesis concerning a causal relationship between smoking and prostate cancer. That is, I have assumed it was addressing the question raised, by the indirect route discussed earlier, by s 196B(2). On that assumption it is possible, as I have endeavoured to illustrate, to reconcile the various statements it made about what it was doing and the conclusions it reached with its function under the Act in reviewing the operational service 1996 amendment. If so, it would not have been addressing the non-operational 1996 amendment at least directly. It may have been doing so indirectly if, as a matter of fact and law, a conclusion that an operational Statement of Principles should not be amended in a particular way by adding a factor necessarily leads to a conclusion that a non-operational Statement of Principles concerning the same subject matter should also not be amended in the same way.
38 However I apprehend that the Council thought that it was necessary only to consider the operational 1996 amendment because the argument advanced by the Association (and others) was based on the evidence of Professor Kune who had indicated, as recorded in par [31] of the Council decision, that his opinion only supported an amendment to a Statement of Principles under s196B(2). The clear implication of the position Professor Kune adopted (as revealed more clearly in the summary of his position in pars [32] and [33] of the Council's decision) was that a causal link could not be established on a balance of probabilities approach. It would seem to follow that he was not advocating (nor, by implication, were the Association and the other applicants advancing as a contention) that there was material justifying the amendment of the non-operational service 1995 Statement.
39 I am satisfied, that on a fair reading of the Council's decision, it asked and answered the question whether a reasonable hypothesis concerning smoking and prostate cancer was raised by the pool of medico-scientific material before it. While it did not go on to discuss in its decision the question of whether smoking was a factor (if found to exist in a particular case) which could provide a relevant connection between prostate cancer and the types of service referred to in s 196B(3) according to a standard of satisfaction "on the balance of probabilities" or as "more probable than not", it was not necessary to having regard to the ambit of the issues raised by the material presented by the parties.
40 While no party relied on this point, the 1997 review application (an application by the Association) only sought, in terms, review of the operational service 1996 amendment and did not raise for consideration directly the non-operational service 1996 amendment and indirectly the non-operational service 1995 Statement (other applications considered by the Council at this time which it referred to in its decision, also did not request consideration the non-operational 1996 amendment). It is true that the declarations the Council made which are challenged in these proceedings concerned not only the operational 1996 amendment but also the non-operational service 1996 amendment. Perhaps the declaration concerning the non-operational service 1996 amendment was made out of an abundance of caution. For my part, I do not see how the declaration had any legal effect as it related to the non-operational service 1996 amendment. It did not resolve or determine adversely to the Association any contention being advanced by it and did not alter what the Authority had earlier done. The Association has not established that the Council erred on the basis raised in its first contention.
41 I turn to consider the second issue raised by the Association in these proceedings. Several provisions of the Act relate to the material that should be before the Council when it conducts a review. Section 196Y(2) enables a person or body specified in subs 196Y(1) to ask the Council to review the contents of a Statement of Principles (or a decision of the Authority not make a Statement of Principles in respect of a particular kind of injury, disease or death). When such a request is made, the Secretary of the Department (see s 5Q) must send the request to the Council and must notify the Authority of the request within 28 days: see s 196Y(4).
42 When the Authority is notified in this way, it is obliged by s 196K to send the Council a copy of all the information that was available to it when it determined, amended, or last amended, the Statement of Principles if the review sought was of a Statement of Principles. If the review sought was of a decision of the Authority of a different character (but specified in s 196K), then the Authority must send the Council a copy of all the information that was available to it when it decided, or last decided not to determine a Statement of Principles in respect of that kind of injury, disease or death (if that was the specified decision under review) or a copy of all the information that was available to it when it decided under s 196C(4) not to carry out an investigation (if that was the specified decision under review). This section serves the purpose of identifying the relevant material which had been before the Authority which must be forwarded to the Council. The significance of this is apparent from s 196W(2) (set out at [4] above). That subsection provides that the Council must, for the purposes of undertaking a review, carry out a review of all the information that was available to the Authority when it made a decision of the type that is amenable to review.
43 Counsel for the Commission submitted that it is apparent from s 196W(2) that the Council's task is to undertake the review by reference to the information that had been available to the Authority when it took the step or made the decision to which the review relates and nothing more. Counsel for the Association appeared to accept that the review was to be undertaken by reference only to material that had been before the Authority. No doubt this position was taken because of the decision of the Court of Appeal in Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc. The Chief Justice concluded (and the other members of the Court of Appeal agreed) that the Council when carrying out a review of information "available to the Authority" must restrict its consideration to information that was in fact before the Authority. However counsel for the Association submitted, in the circumstances of this case, the information should have included the material before the Authority when it made the two Statements of Principles in 1999. It is to be recalled from the Council's decision, that it declined to consider more recent material advanced by the Commission.
44 No party submitted that the word "review" in s 196W might indicate limits on the material the Council could refer to when undertaking a review. It is a word of wide meaning but dependent upon context: see Adams v Yung (1998) 83 FCR 248 at 301 and also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 and McDonald v Guardianship and Administration Board [1993] 1 VR 521. The submission of counsel for the Commission was based on a comparatively straightforward interpretation of the relevant provisions. A review is sought under s 196Y, the Authority forwards the information it had to the Council as required by s 196K and the Council reviews that information as required by s 196W.
45 The submission of counsel for the Association was less straightforward though also based on the terms of the relevant sections. It was to this effect. A review of the type presently under consideration is of the contents of a Statement of Principles: see s 196Y(1)(d). However such a review must be sought within three months of the making or amendment (including further amendment) of the Statement of Principles: see s 196Y(2)(a). What is contemplated is that the Authority takes a step in relation to a Statement of Principles (the possible steps being determination, amendment or further amendment: see s 196Y(2)(a)) and a review of the contents of the Statement can then be sought within three months of the step being taken. Having regard to the terms of s 196K, what the Authority must send to the Council is the information that was before the Authority when it determined, amended or last amended the Statement of Principles.
46 Situations could arise where a review had been sought of a step taken by the Authority in relation to a Statement of Principles (but the review had not been undertaken by the Council), and a further step (or even several steps) taken by the Authority (possible further steps being amendment, further amendment or the making of another Statement of Principles dealing with the same subject matter). In those circumstances (which arose in the present case before the Council's consideration of the 1997 review application) the Authority would have to forward to the Council under s 196K the material which had been before the Authority when it took any relevant step (including the most recent step) if the step was taken before the review by the Council was undertaken. Thus, in the present case, the Authority had to forward to the Council not only the information that had been before the Authority when it decided to amend the two Statements in 1996 (which precipitated the request for a review) but also the information before the Authority when it decided to make both the operational service 1999 Statement and the non-operational service 1999 Statement which was a step taken before the Council undertook its review (leading to the 3 August 2001 declarations).
47 The Council was obliged to review the Statement of Principles "in force" (that expression appears, relevantly, in s 196W(4)) which is a reference to a Statement "in force" at the time the view is formed by the Council under s 196W(4) and not "in force" at the time the Authority took the step that initially gave rise to application for review if some further step has been taken by the Authority. Counsel for the Association submitted that on this construction of the Act, the Council would have before it the most recent medico-scientific information that had been before the Authority when it most recently considered the Statement of Principles. While this approach has much to commend it, as a practical matter, it does not accord with what I view is the legislative scheme.
48 In my opinion, the system of review was intended to operate in the following way. What follows has a bearing on not only the question of what material the Council should have considered in dealing with the 1997 review application, but also on the status of the 1995 review application. The Authority can undertake, relevantly for present purposes, two types of investigation though they are plainly related. The first may lead to the making of a Statement of Principles (see: s 196B(5) and (2) or (3)) though it may not (see s 196B(6)). This first type is an investigation under s 196B(4). Such an investigation results from a request from a body such as the Association (see: s 196E(1)(d)) or is on the initiative of the Authority (see: s 196B(4)(b)).
49 The other type of investigation is undertaken under s 196B(7). It is, and is described in various relevant sections as, a review of what the Authority had earlier done. This second type of investigation may lead to the amendment of a Statement of Principles (see: s 196B(8)(b)) or its revocation and replacement (see: s 196B(8)(c)). This second type of investigation may also lead to the making of a Statement of Principles (see: s 196B(8)(a)). It also may lead to a conclusion that none of the three steps described in the preceding two sentences is warranted (see s 196B(9)(b)). This second type of investigation may (but need not) result from a request by a body such as the Association (see: s 196E(1)(c) and (e) or (f)). It is significant, in my opinion, that an applicant seeking this second type of investigation (a review), must state the grounds upon which the review is sought and identify any information relied on to support those grounds (see s 196E(3)). The Authority can decide not to carry out the investigation if no grounds are stated or the information identified is inadequate (either to support the grounds or otherwise justify the review) (see: s 196CA). These requirements suggest that this second type of investigation is intended to have a focus or direction arising from the terms in which the application is made.
50 It is also significant, in my opinion, that the Authority, when undertaking the second type of investigation must investigate whether there is "new information" concerning the matters referred to in s 196B(7)(d) or (e). It then must form a view about whether there was a "new body of sound medical-scientific evidence available that, together with the sound medical-scientific evidence previously considered by the Authority" which would justify making a Statement of Principles, amending an existing Statement of Principles or revoking an existing Statement of Principles and replacing it with a new one. It is comparatively clear, in my opinion, that when undertaking this second type of investigation, the Authority must look at material it had earlier looked at and any new material (subject to the limits imposed by s 196C).
51 If the Authority undertakes an investigation of this second type and reaches a conclusion which is amenable to review by the Council and a review is sought, the Council is, in its review, obliged to consider the material that had been considered by the Authority. That is, the material the Authority had earlier looked at and any new material the Authority had looked at in the more recent investigation. However what the Council is doing in its review is reviewing the material which led to the decision of the Authority to make, amend or revoke and replace a Statement of Principles or decide (under s 196B(9)(c)) not to do any of these three things. If the decision of the Authority was to amend a Statement of Principles (as occurred in 1996 in the present case) then what is exposed for review was the material which led to the decision to amend, namely the new material together with the earlier material which would include the material that led to the making of the Statement of Principles.
52 For my part, what the statutory scheme does not make clear is what is the scope of the review by the Council when it is reviewing the second type of investigation undertaken by the Authority. On one view of the provisions, if the decision of the Authority had been to include, by amendment, (or refuse to include) a factor not then in the Statement of Principles, the power of the Council to review would be effectively limited to considering whether the decision to include (or refuse to include) the factor was warranted having regard to the new material together with the earlier material. Thus the amendment of a Statement by the Authority (or a decision not to amend) to include a factor would not necessarily expose for consideration by the Council when undertaking its review, all aspects of the Statement because the "new information" and the "new body of sound medical-scientific evidence" may have concerned only a particular aspect of the matters the Statement had addressed or might address.
53 On another view of the provisions, the review by the Council exposes for consideration all aspects of the Statement of Principles by reference to the new material and the earlier material. It does not simply expose for consideration whether the Statement should be or should have been amended. On this approach (which, as I discussed earlier in [13] above, was the approach apparently adopted by the Council when dealing with the 1997 review application and related applications) the review by the Council would not necessarily involve a consideration of the "new information" and the "new body of sound medical-scientific evidence" but could involve a consideration of the contents of the Statement of Principles only by reference to the material the Authority considered when the Statement was first made. That might occur because the person or body initially seeking the investigation or review by the Authority raised only one contention in its grounds in the application for review. It may have involved a contention that the Statement of Principles should be amended to, for example, include a factor. The information identified by the applicant may ultimately be the only "new information" considered by the Authority. However if an applicant can seek a review of the Statement of Principles by the Council and raise any aspect of the Statement of Principles, then there can be an obvious discord between what the Authority had been asked to do and what the Council was being asked to do. It could lead to a situation where the Council was considering how the Statement of Principles should be framed by reference only to the material initially considered by the Authority when the Statement was made. In such a case it would not be considering the "new information" which would have been considered by the Authority in making the decision which led to the application for review by the Council.
54 One indication of the character and scope of the review is found in s 196Y. The following is the description given of what is the subject matter of the review sought under that section:
“(d) the contents of a Statement of Principles in force under Part XIA; or
(e) a decision of the Repatriation Medical Authority not to make a Statement of Principles in respect of a particular kind of injury, disease or death.”
This description suggests that the second approach discussed in the preceding paragraphs correctly describes the scope of the review. It is of the "contents of a Statement of Principles" or a decision not to make one. The entire contents of the Statement are reviewed (by reference to the material that had been before the Authority) and not simply any amendment to the Statement that may have been made by the Authority by reference to that material. A similar description in these general terms is found in s 196W(2) though it is in an expanded form. It is also the description in s 196K.
55 However the role of the Council established by s 196W in a review does not, in my opinion, support this wider view of the Council's role and the scope of the review. It is tolerably clear that the Council's function under s 196W(4) is enlivened if the Authority had not amended or made a Statement of Principles in circumstances where the material would have, in the Council's opinion, warranted the Authority taking one of these steps. So much is apparent, in my view, from the use of the expression "on which the Authority could have relied". This subsection is dealing with circumstances where the Authority could have (by reference to the material), but did not, amend or make a Statement of Principles. The Council can take steps to reverse the Authority's decision (by declaration together with either a direction or a remitter: see s 196W(4)(c) or (d)). The Council's function under s 196W(5) is the opposite. It is to reverse the decision of the Authority (in the sense that the Council declares its contrary view) to make or amend a Statement of Principles where there was no, or insufficient, medical-scientific evidence to justify the step taken by the Authority.
56 These provisions indicate, in my view, that the function of the Council in a review is to assess whether the step taken by the Authority (enlivening the right to seek a review under s 196Y) should have been taken having regard to the material before the Authority. Thus if the step taken by the Authority was to make a Statement of Principles (either initially or in combination with the revocation of an existing one), and a review is sought, the Council considers whether the making of it was appropriate. If the step taken was to refuse to make one, the Council considers whether the refusal was appropriate. Similarly if the step taken by the Authority was to amend a Statement of Principles (either a first amendment or a subsequent amendment) and a review is sought, the Council considers whether the amendment was appropriate. If the step was to refuse to amend one, the Council considers whether the refusal was appropriate.
57 If this description of the Council's functions is correct, then it is tolerably clear, in my opinion, that the submission of the Commission concerning the material that the Council is to take into account, is correct. The review by the Council is to assess whether an earlier step taken by the Authority should have been taken. If, therefore, the focus of the review by the Council is the earlier step taken by the Authority (enlivening the right to seek a review) then it is unlikely that the legislature intended that the Council would consider anything other than the material that had been considered by the Authority when taking the earlier step. The words "in force" in s 196W(4)(a) is a reference to the Statement in force when the Authority took the step sought to be impugned in the application for review to the Council. That is, "in force" when the Authority failed to take, or took, the step challenged in the application for review. The expression has, in my opinion, the same meaning in s 169Y(1)(d). I am not satisfied the Council erred in refusing to take into account material in the review arising from the 1997 review application which had not been considered by the Authority when the Authority made the operational 1996 amendment and the non-operational 1996 amendment.
58 This leads to a consideration of the 1995 review application. On the construction I favour of the provisions concerning the Council's functions in a review, it was required, by the 1995 review application, to assess whether the material considered by the Authority justified it making the two 1995 Statement of Principles in the terms it did. That is, it had to assess, having regard to the matters raised by the Association in the application, whether the material considered by the Authority at the time it made the Statements might have warranted the making of Statement of Principles in different (and wider) terms by including smoking as a factor. The Council has never done this. It is true that in dealing with the 1997 review application the Council, as a matter of fact, addressed the relationship between smoking and prostate cancer. In my view, it probably erred in doing so. I put this in a qualified way because it was not a contention advanced, at least directly, by any party. It probably erred, in my opinion, because the review of the material by the Authority leading to the operational and non-operational 1996 amendments (which enlivened the right of review) was not directed to ascertaining whether smoking should be included as a factor. However it does not follow that merely because the Council, as a matter of fact, has considered the relationship between smoking and prostate cancer since the two Statement of Principles were made in 1995, the Council is absolved from its statutory duty to undertake the review arising from the 1995 review application. It is a duty the Council must discharge. It is not my task to ascertain whether this will be a barren or futile exercise. It will depend on the Council's assessment of the medical-scientific evidence before it (even though it will be dated). This conclusion is subject to one qualification. It concerns the effect of the revocation and replacement of the two 1995 Statements in 1999 by the Authority.
59 A submission was made on behalf of the Council that it did not have power to undertake a review of the Statement of Principles made in 1995 (when dealing with the 1997 review application) and did not have the power to make the 3 August 2001 declarations. At least implicit in this submission is that the Council could not undertake a review to deal with the 1995 review application. This submission was made by the Council while acknowledging the limits on its role in proceedings such as these arising from the decision of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13. However the explanation given on behalf of the Council for making the submission it did, was that it wished to explain why it had earlier indicated it would consent to an order in these proceedings setting aside the 3 August 2001 declarations. For my part, I would have thought that if the Court is not asked to deal with the Association’s application by making orders consented to by all parties, whether one respondent (or indeed all respondents) consented to the relief sought by the applicant becomes irrelevant as do the reasons why that respondent would have consented.
60 However in R v Australian Broadcasting Tribunal; ex parte Hardiman, the High Court indicated (at 36) that a tribunal, in a case of the type then before the Court (which is analogous to the present proceedings) might make submissions about its powers and procedures. On that basis, the submissions of the Council are probably appropriately made. The Commission adopted those submissions. The Association put in issue that the revocation of the Principles made in 1995 had the effect contended for by the Council. The Association submitted that a preferable approach to the construction of the Act was that there was either an implied limit on the Authority's powers to amend (or revoke and replace) a Statement of Principles while the Council was undertaking a review of the Statement or a power in the Council to undertake its review function by reference to the Statement as amended or in its new form (if revoked and replaced).
61 In my opinion, the construction of the Act advanced by the Council (and adopted by the Commission) is not correct. The revocation by the Authority of the two 1995 Statements of Principles in 1999 and the making of the operational service 1999 Statement and the non-operational service 1999 Statement did not preclude the later exercise of the power to review conferred on the Council which led to the 3 August 2001 declarations. Nor would the revocation of the two 1995 Statements preclude the Council exercising its review functions in relation to the 1995 review application. As I have endeavoured to explain, the review undertaken by the Council is of a Statement of Principles but by reference to the step taken by the Authority which has given rise to the application for review. It is to be recalled that the Council has no power to make, amend or revoke a Statement of Principles. Its power is, relevantly, limited to making a declaration which may include a direction to the Authority to amend or make a Statement (see: s 196W(4)(c)) that the Authority must act on (see s 196B(10) or (11)). The Council can also remit the matter for reconsideration by the Authority in accordance with any directions or recommendations it might make (see: s 196W(4)(d)).
62 The legislative scheme accommodates, in my opinion, circumstances where the Authority may have revoked the Statement of Principles while it was under review by the Council (in the way I have discussed). It is to be recalled that the power of the Authority to revoke a Statement is coupled with a power to determine a new Statement (see s 196B(8)(c)). As I view the intended operation of s 196B(8)(c), those powers must be exercised together. They are being exercised in circumstances where the Authority has considered a " new body of sound medical-scientific evidence" together with the "sound medical-scientific evidence previously considered by the Authority". If at the time of (and following) the revocation there is a review by the Council on foot arising from a prior step taken by the Authority in relation to the earlier (but revoked) Statement of Principles, the Council will be considering the sound medical-scientific evidence earlier considered by the Authority when it took that prior step. The Council would have before it all the evidence other than the "new body of evidence" which led to the revocation and replacement. However, in those circumstances, the Council may take a different view about the significance of the material which had been before the Authority when it took the prior step leading to the application for review. The Authority could give effect to any direction of the Council by amending the recently created Statement of Principles which would have had as its foundation (at least in substantial part), the body of evidence considered by the Council.
63 I have already indicated that what the Council is considering in a review of a decision of the Authority to amend (or not to amend) the Statement of Principles, is reviewing the Statement of Principles "in force" (as that expression appears in s 196W(4)(a)) when the Authority made its decision. It is difficult to resist the conclusion, as a matter of construction, that if the Council gives a direction in such a review under s 196W(4)(c) to the Authority to amend "the Statement of Principles", it is a direction concerning the Statement of Principles "in force" considered by the Council. However, in the situation I am discussing, that Statement of Principles would have been revoked by the Authority in the intervening period.
64 It seems to me that the answer to this conundrum may lie in ascertaining what the obligation of the Authority is if such a direction is given. The Authority's obligation is found in s 196B(10). It is to "make a determination amending the Statement of Principles determined in respect of that kind of injury, disease, or death in accordance with the directions of the Council". There is nothing in the language of this provision which would dictate a conclusion that the Authority would be precluded, in discharging this obligation, from amending the current Statement of Principles (made under s 196B(8)(c)) even though the Statement of Principles considered by the Council had been revoked. The current Statement of Principles would satisfy the description of the "Statement of Principles determined in respect of …..".
65 It is true that on this construction of the Act the Authority would be complying with a direction of the Council directed to a different Statement of Principles. It is possible that the form of the then current Statement of Principles would preclude literal compliance with the Council's direction if the direction was in prescriptive terms. The Council might direct, for example, that a particular expression, clause or paragraph in the revoked Statement of Principles be amended by adding particular words and the particular expression, clause or paragraph did not appear in the current Statement of Principles or did not appear in the same terms. However, as discussed earlier, both Statements of Principles are likely to have been based on the same underlying medico-scientific evidence. There is no warrant for concluding that the Authority could not discharge the obligation imposed by s 196B(10) by giving effect to the substance of the direction though not its form if the direction was in prescriptive terms that could not be complied with literally.
66 This construction of the Act, that the Authority can amend a later Statement of Principles to comply with a direction to amend an earlier Statement of Principles, is not inconsistent with the language of the Act and gives effect to what I perceive to be the legislative scheme. That is, a scheme providing for what are essentially two systems or processes of review by two different bodies of the same thing, namely a Statement of Principles based on sound medical-scientific evidence. Moreover a narrow construction of the duties of the Authority under s 196B(10) would effectively confer on the Authority a power to frustrate (whether intentionally or not) a review by the Council of a step the Authority had taken. It could do so by revoking the Statement of Principles under review and replacing it. On the construction of the legislation I consider is the preferable one: see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 366 par 13 per Brennan CJ, the Council can fulfil its review functions and the Authority can also exercise concurrently the power it has to consider from time to time, by further investigation, the same general matter. That is, what is an appropriately formulated Statement of Principles in respect of a particular kind of injury, disease or death. Accordingly I am satisfied that the revocation of the operational service 1995 Statement and the non-operational service 1995 Statement does not preclude their review by the Council in order to dispose of the 1995 review application.
Conclusion
67 While it has not succeeded on all issues, the Association has succeeded on one issue it raised and the Commission should pay its costs. I do not propose to make any order concerning costs payable to or by the Council. In the absence of full argument about whether a mandatory injunction can or should issue (it not being suggested by the Association that s 75(v) of the Constitution was relevant), the appropriate relief is to make a declaratory order reflecting the conclusion I have reached.
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I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. |
Associate:
Dated: 7 June 2002
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Counsel for the Applicant: |
M B Smith |
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Solicitor for the Applicant: |
Legal Aid Commission of New South Wales |
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Counsel for the First Respondent: |
R Tracey QC |
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Solicitor for the First Respondent: |
Australian Government Solicitor |
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Counsel for the Second Respondent |
Stephen Gageler |
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Solicitor for the Second Respondent |
Australian Government Solicitor |
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Date of Hearing: |
15 April 2002 |
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Date of Judgment: |
7 June 2002 |
