REPATRIATION COMMISSION v VIETNAM VETERANS' ASSOCIATION OF AUSTRALIA NSW BRANCH INC. & ORS

SPIGELMAN CJ: This is an appeal from a judgment of Greg James J. His Honour made orders to the effect that certain Declarations, purportedly made pursuant to the provisions of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), were invalid and void.

In Vietnam Veterans’ Affairs Association of Australia New South Wales Branch Inc v Cohen & Ors (1996) 70 FCR 419 Tamberlin J held that the Administrative Decisions (Judicial Review) Act 1977 (Cth) did not extend to the Declarations here in issue, as they were not decisions of an administrative character. His Honour further held that jurisdiction under s39B of the Judiciary Act 1903 (Cth) could not be invoked because each of the relevant decision-makers was a body corporate (and accordingly, was not “an officer of the Commonwealth”) and the individuals who constituted the respective bodies corporate did not make the impugned decisions. Following the judgment of Tamberlin J, the Vietnam Veterans’ Association of Australia New South Wales Branch Inc (“Vietnam Veterans’ Association”) instituted proceedings in this Court.

This Court can give appropriate relief in the case of the exercise of a “quasi-legislative” power. (See eg Bread Manufacturers of NSW v Evans (1981) 180 CLR 404; Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552; Minister of Health v The King (on the Prosecution of Yaffe) [1931] AC 494; R v Secretary of State for Social Services; Ex parte AMA [1986] 1 WLR 1; and R v Secretary of State for Health; Ex parte United States Tobacco International Inc [1992] QB 353). No suggestion to the contrary was made before his Honour or in this Court.

Error of law within jurisdiction was not a ground for judicial review at common law unless certiorari was available to quash for error of law on the face of the record. It is not necessary to consider the difficult issues which sometimes arise in determining whether an error is jurisdictional. The relevant principles are not in doubt. In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Jordan CJ said: “… the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction … But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply ‘a wrong and inadmissible test’ … or to ‘misconceive its duty’ or ‘not to apply itself to the question which the law prescribes’ … or ‘to misunderstand the nature of the opinion which it is to form’ … in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law”.

More recently, in the joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v South Australia (1994-1995) 184 CLR 163 their Honours said at 179: If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question … and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

It was an error of this character which was found by Greg James J and which was contested on this appeal.

The impugned decisions were reviews of four Statements of Principles, (“SOPs”) which are quasi legislative instruments formulated in accordance with a statutory regime under the Act to which I will presently refer, and which, once formulated, play a central role in the determination of the entitlements of veterans in accordance with the legislative scheme for the payment of benefits. This legislative scheme constitutes the context in which the Court must determine the proper construction of the provisions which authorise and require the formulation of, and the review of, the Statements of Principles with which this appeal is concerned. The Legislative Scheme

The context in which the particular provisions of the Act fall to be construed is, in general terms, the following: (i) The Commonwealth is liable to pay pensions in accordance with the Act (s13). (ii) Liability arises in the case of death of a veteran that was war caused (s8) and in the case of incapacity from war caused injury or war caused disease (s9). (iii) Claims for pensions may be made by a veteran or a dependent of a deceased veteran (s14). (iv) The Appellant, the Repatriation Commission (“the Commission”), is obliged to consider all matters that, in its opinion, are relevant to a claim, to determine the claim and to assess the rate or rates at which the pension is payable (s19). (v) In the case of claims in certain circumstances, to which it is convenient to refer as “operational service” by the veteran, the Commission is obliged to determine that the death, injury or disease was war caused “unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination” (s120(1)). (vi) In a case of operational service, the Commission is to be satisfied beyond reasonable doubt that there is no sufficient ground for making the determination, if the Commission forms an opinion “that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person” (s120(3)). (vii) Subsection 120(1) and s120(3) contain a “Note” that “this subsection is affected by s120A”. Notes form part of the subsections (s5U). (viii) A hypothesis connecting an injury, disease or death with the circumstances of any particular service rendered by the person “is reasonable only if there is in force”, relevantly, an SOP determined under the Act (s120A(3)). (ix) In the case of all claims in circumstances other than those which relate to operational service, to which it is convenient to refer as “eligible service”, the Commission is obliged to decide the matter before it “to its reasonable satisfaction” (s120(4)). This is a balance of probabilities test. Subsection 120(4) contains a Note that it is “affected by s120B”. (x) With respect to claims related to eligible service, the Commission may only be reasonably satisfied that injury, disease or death was war caused if, relevantly, there is in force an SOP determined under the Act (s120B(3)). (xi) The Repatriation Medical Authority (“RMA”) established by the Act is empowered to formulate SOPs with respect to certain kinds of injury, disease or death (s196B). (xii) The Specialist Medical Review Council (“SMRC”) established under the Act is obliged, if requested to do so, to review an SOP (s196W).

The statutory powers, the exercise of which are the subject of these proceedings are found in s196W of the Act. That section relevantly provides: “196W(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.”

The decision-making power of the RMA, the exercise of which is reviewed by the SMRC, is found in s196B which provides: “196B (1) This section sets out the functions of the Repatriation Medical Authority. Determination of Statement of Principles (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; or (b) peacekeeping service rendered by members of Peacekeeping Forces; or (c) hazardous service rendered by members of the Forces; the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. Note 1: For sound medical-scientific evidence see subsection 5AB(2). ……… (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. Note 1: For sound medical-scientific evidence see subsection 5AB(2). ……… Note 3: For factor related to service see subsection (14). 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) 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. Note: For sound medical-scientific evidence see subsection 5AB(2). (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 (14). (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. Note: For factor related to service see subsection (14). (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) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if: (a) it resulted from an occurrence that happened while the person was rendering that service; or (b) it arose out of, or was attributable to, that service; or (c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey: (i) to a place for the purpose of performing duty; or (ii) away from a place of duty upon having ceased to perform duty; or (d) it was contributed to in a material degree by, or was aggravated by, that service; or (e) in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service; or (f) in the case of a factor causing, or contributing to, a disease—it would not have occurred: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service; or (g) in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service.”

The concept of “ sound medical-scientific evidence ” plays a central role in this decision-making scheme. It is defined in s5AB as follows: “5AB(1) ……… sound medical-scientific evidence , in relation to a particular kind of injury, disease or death, has the meaning given by subsection (2). (2) Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if: (a) the information: (i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or (ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and (b) in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology.”

It is also relevant to set out the relevant provisions of s120, 120A and 120B as follows: “120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: This subsection is affected by section 120A. (2) Where a claim under Part IV: (a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or (b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member; the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. ……… Note 2: This subsection is affected by section 120A. (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. Note: This subsection is affected by section 120A. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. Note: This subsection is affected by section 120B. (5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that: (a) an injury suffered by a person is a war-caused injury or a defence-caused injury; (b) a disease contracted by a person is a war-caused disease or a defence-caused disease; (c) the death of a person is war-caused or defence-caused; or (d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act. (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application. ……… “120A(1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) a claim under Part IV that relates to: (i) the peacekeeping service rendered by a member of a Peacekeeping Force; or (ii) the hazardous service rendered by a member of the Forces. Note 1: Subsections 120(1), (2) and (3) are relevant to these claims. ……… (2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority: (a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or (b) has declared that it does not propose to make such a Statement of Principles. (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis. Note: See subsection (4) about the application of this subsection. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be. 120B(1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II relates to the eligible war service (other than operational service) rendered by a veteran; (b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces. Note: Subsection 120(4) is relevant to these claims. ……… (2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority: (a) has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or (b) has declared that it does not propose to make such a Statement of Principles. (3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if: (a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and (b) there is in force: (i) a Statement of Principles determined under subsection 196B(3) or (12); or (ii) a determination of the Commission under subsection 180A(3); that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; or as the case may be.” The Primary Decisions

The decisions of which the Vietnam Veterans’ Association sought judicial review were constituted by two sets of Declarations made by the SMRC, with respect to two sets of SOPs made by the RMA. Each set consisted of two SOPs relating, respectively, to operational service - to which a “can be related” test applied - and eligible service - to which a “more probable than not” test applied.

On 8 March 1995 the RMA issued Statement of Principles 95 and Statement of Principles 96 of 1995 with respect to malignant neoplasm of the prostate (prostate cancer).

By SOP 95 of 1995 the RMA determined under s196B(2) of the Act that either of two factors must exist before it could be said that a reasonable hypothesis has been raised connecting prostate cancer with the circumstances of service, namely: “(a) Being exposed to herbicides in Vietnam; or (b) Inability to obtain appropriate clinical management for the malignant neoplasm of the prostate.”

The formulation “being exposed to herbicides in Vietnam” was defined in SOP 95 as a series of alternative factual circumstances which it is unnecessary to set out.

By SOP 96 of 1995, the RMA determined, under s196B(3) of the Act, that the factor that must exist before it can be said that on the balance of probabilities prostate cancer is connected with the circumstances of service is: “(a) Inability to obtain appropriate clinical management for malignant neoplasm of the prostate.”

It can be seen that the alternative in SOP 95 of “exposed to herbicides in Vietnam” does not appear in SOP 96. This reflects the differences in the applicable statutory formulae. In the opinion of the RMA the exposure to herbicides in Vietnam passed the “can be related” test, but not the “more probable than not” test.

The Vietnam Veterans’ Association made a request under s196Y of the Act for a review of SOP 95. On 22 May 1995 another Association, not party to the present proceedings, the Australian Veterans and Defence Services Council, sought a review of both SOP 95 and SOP 96.

The SMRC proceeded to take the various steps required to conduct a review and, subject to the issue of procedural fairness to which I will refer below, nothing turns on the details of those steps.

On 22 December 1995 the SMRC made the Declarations in relation to SOPs 95 and 96 which are the subject of the present proceedings. The SMRC also published Reasons for Decisions with respect to those Declarations. The Declarations were: “1 In relation to the Repatriation Medical Authority Statement of Principles, Instrument No 95 of 1995 concerning malignant neoplasm of the prostate and death from malignant neoplasm of prostate, made under subsection 196B(2) of the Veterans’ Entitlements Act 1986 (the Act), the Specialist Medical Review Council (the Council) declares, under subsection 196W(5) of the Act, that: (a) the Council is of the view that there is insufficient sound medical-scientific evidence to justify the making of that Statement of Principles to include, as a factor, ‘being exposed to herbicides in Vietnam’; and (b) the Council recommends that the Repatriation Medical Authority reconsider the inclusion of ‘being exposed to herbicides in Vietnam’ as a factor having regard to the Reasons for Decisions of the Council, the information that was available to the Repatriation Medical Authority when it made that Statement of Principles, together with any further information that may arise from any further studies that might be undertaken following the recommendation in the MacLennan and Smith Report relating to malignant neoplasm of the prostate; and (c) the Council is of the view that there is no sound medical-scientific evidence that justifies any other amendment of that Statement of Principles. 2 In relation to the Repatriation Medical Authority Statement of Principles, Instrument No 96 of 1995 concerning malignant neoplasm of the prostate and death from malignant neoplasm of the prostate, made under subsection 196B(3) of the Act, the Council declares, under subsection 196W(5) of the Act, that the Council is of the view that there is no sound medical-scientific evidence that justifies an amendment of that Statement of Principles.”

On 21 June 1995 the RMA promulgated two SOPs, being Nos 245 and 246 of 1995, concerning motor neurone disease.

SOP 245, with respect to operational service, was a determination by the RMA under s196B(2) of the Act that the factor that must exist before it can be said that a reasonable hypothesis has been raised connecting motor neurone disease with service is: “(a) Inability to obtain appropriate management for motor neurone disease.”

In SOP 246 the RMA made a determination under s196B(3) that the same factor must exist before it can be said on the balance of probabilities that motor neurone disease is connected with service.

On 29 August 1995 the Vietnam Veterans’ Association made a request under s196Y of the Act for a review of SOPs 245 and 246. Pursuant to that request the SMRC took the various steps required to be taken under the Act and conducted a review.

On 26 October 1996 the SMRC made the following Declarations and published Reasons for Decision with respect to SOPs 245 and 246: “1 The Specialist Medical Review Council (‘the Review Council’) established pursuant to Part XIB of the Veterans’ Entitlements Act 1986 (‘the Act’), having reviewed the contents of the Statements of Principles numbered 245 and 246 of the 1995 made under section 196B of the Act by the Repatriation Medical Authority (‘RMA’) established under Part X1A of the Act, HEREBY DECLARES (a) that it is of the view that the sound medical-scientific evidence available to the RMA at the time it made the Statement of Principles No 245 of 1995 is insufficient to justify the making of an amendment to that Statement of Principles; (b) that it is of the view that the sound medical-scientific evidence available to the RMA at the time it made the Statement of Principles No 246 of 1995 is insufficient to justify the making of an amendment to that Statement of Principles; (c) that it recommends however that the RMA further investigate exposure to solvents as a possible factor for the purposes of subsections 196B(2) and 196B(3) of the Act, having regard to the reasons for decision of the Review Council in its review of the above Statements of Principles, the information that was available to the RMA when it made those Statements together with any further information which has since become available to the RMA and which may become available between the date of this Declaration and the completion by the RMA of its investigation.”

In the case of SOPs 95 and 96 the Vietnam Veterans’ Association had sought to add smoking as a relevant factor. This was rejected by the SMRC. However, as noted above, the SMRC went further than the Association’s submissions and made a Declaration that a factor identified by the RMA, namely exposure to herbicides in Vietnam, should no longer be a factor.

In the case of SOPs 245 and 246 with respect to motor neurone disease, the Vietnam Veterans’ Association sought a review to add war-caused trauma and exposure to solvents as causal factors. The SMRC rejected these submissions.

The rejection of the Respondent’s case with respect to SOPs 95 and 96 was expressed in terms of “there is no sound medical-scientific evidence that justifies” the amendment. This employs the terminology of s196W(5)(a).

The rejection of the Respondent’s case with respect to SOPs 245 and 246 was expressed in terms of “the sound medical-scientific evidence … is insufficient to justify” the amendments. This employed the terminology of s196W(5)(b).

The declaration with respect to the factor “being exposed to herbicides in Vietnam” was expressed in terms of “there is insufficient medical-scientific evidence to justify the making of” the SOP including that reference. This employed the terminology of s196W(5)(b).

It will be necessary to refer to further aspects of the two Reasons for Decision in the context of dealing with the submissions made to this Court. Decision of the Trial Judge

Greg James J made orders declaring that the Declarations made by the SMRC on 22 December 1995 and 26 October 1996 were invalidly made and are void. His Honour ordered the Council to hear and determine according to law, the requests for review which had been made to it originally by, inter alia, the present Respondent.

Four aspects of his Honour’s judgment have been raised on appeal.

The first issue is the proper construction of the phrase “the information that was available to the authority”, which the SMRC was required and authorised to “review” pursuant to s196W(2) of the Act. In its reasons for decision in the case of SOPs 95 and 96, the SMRC indicated that it proceeded on the basis that the word “available” means: “… the information that was actually before the Repatriation Medical Authority at the relevant time rather than all the possible information that the Repatriation Medical Authority might have been able to obtain.”

His Honour found that this construction was incorrect and that the word “available” extends to information “extant in the discipline … whether actually provided to (the RMA) or not” [48]. The Appellant challenges his Honour’s construction. The Respondent supports it.

The second aspect of His Honour’s reasons challenged in the appeal is whether the SMRC misconstrued the legislation and determined an issue other than the issue which the statute obliged it to determine. The Appellant put this issue forward in terms of the construction of s5AB(2).

His Honour adopted a construction of s5AB(2)(b) that the words “meets the applicable criteria for assessing causation” meant no more than “capable of being assessed” by such criteria.

His Honour referred to a number of aspects of the two statements of Reasons for Decision by the SMRC which, in his Honour’s opinion, indicated that the Council had proceeded on an incorrect construction which his Honour identified.

The Appellant put its case on the second issue in alternative ways: (i) The trial judge erred in his construction of s5AB(2)(b). (ii) The SMRC did not commit the error identified by his Honour.

The submissions of both the Appellant and the Respondent focussed, as did his Honour’s reasons, on the construction of s5AB(2)(b). It was in the course of construing that provision that the error, if any, was said to occur. The consequence of this error which enlivened the jurisdiction of the Court on judicial review was, however, the conclusion that the SMRC failed to perform the function that the statute required it to perform. This kind of legal error is sometimes referred to in terms of whether the administrative decision-maker “asked the wrong question”.

With respect to the second way in which the Appellant put its case, it will be necessary to consider the actual reasoning of the SMRC.

The third issue raised in this appeal concerns the decision of the SMRC to make a Declaration that there was insufficient evidence to justify the inclusion as a factor in SOP 95 “being exposed to herbicides in Vietnam”, together with a recommendation that the RMA reconsider the inclusion of that factor. His Honour found that the Vietnam Veterans’ Association had been denied procedural fairness with respect to that decision-making process, in the circumstances which I will hereinafter set forth.

The Appellant does not challenge the obligation of the Council to afford procedural fairness to the Vietnam Veterans’ Association. It contends that, in all of the circumstances of the case, no breach of that obligation occurred.

The fourth issue raised in the proceedings was put forward by the Vietnam Veterans’ Association by means of a Notice of Contention. The Respondent contends that the decision of Greg James J with respect to SOP 95 should be affirmed on the basis that the power which the SMRC purported to exercise, being s196W(5) of the Act, did not authorise the making of the Declaration which the SMRC purported to make. The Appellant submitted that s196W(5) did support the Declaration. Alternatively, it contended that the Declaration could be supported by s196W(4) and that the misdescription of the power was not such as to invalidate the decision-making process. What Does “Information Available” Mean?

The relevant statutory formula in s196W(2) is: “The Council must … carry out a review of all the information that was available to the authority when it … determined … the Statement of Principles …”

The word “available” may be used, relevantly, in two senses: “capable of being used” or “in fact used” by the RMA.

The Appellant submitted that there were strong textual indications that the SMRC was limited to the information in fact used by the RMA.

Mr P Hanks QC, who appeared as Counsel for the Appellant, placed particular reliance on the use in s196K of an identical formulation with that in s196W(2): “196K The Repatriation Medical Authority must, within 28 days after being notified that the Review Council has been asked to review: (a) Statement of Principles … send to the Council a copy of all the information that was available to it when it … (d) determined … the Statement of Principles.”

Section 196K and s196W(2) link directly with each other in the statutory scheme. It can be assumed that the drafter employed the same terminology with the same meaning. It could hardly have been intended that the RMA was under an obligation to transmit information of which it was unaware, or which was not already in its possession.

Mr Hanks QC submitted that this construction was reinforced by s196C, which provides: “196C(1) The Repatriation Medical Authority may not, for the purposes of an investigation, carry out any new research work (including any test or experiment). (2) The Authority may, for the purposes of an investigation, ask the Secretary: (a) to forward to the Authority any information; (i) in the possession of the Secretary; or (ii) that the Secretary may obtain; relating to the kind of injury, disease or death under investigation; or (b) to carry out research (including any test or experiment) to obtain, confirm or disprove, specific information about that kind of injury, disease or death and forward a report to the Authority. (3) In forming any view during the investigation, the Authority: (a) may rely only on sound medical-scientific evidence: (i) that has been submitted to it; or (ii) that it has obtained on its own initiative or from the Secretary (under subsection (2)) or from a consultant; and (b) must consider and evaluate all the evidence so made available to it.”

The concluding words of par 196C(3)(b) make use of the word “available” in the context of “so made available to it”. That occurs in the context of par (a) of that subsection which, by use of the word “only”, restricts the scope of the information to which the RMA may have regard.

These textual indicators strongly support the Appellant’s contentions in this respect.

Mr M Smith who appeared as counsel for the Vietnam Veterans’ Association directed the Court’s attention to s196ZN and s196ZO which contemplate an applicant for a review by the SMRC obtaining “documentary medical evidence”. Relevantly the two sections provide: “196ZN(1) The Commonwealth may, subject to this section, pay to an applicant who asks the Review Council to conduct a review as provided for by this Part an amount to cover the medical expenses incurred by him or her in respect of relevant documentary medical evidence obtained for the purposes of the review and submitted to the Review Council.” and “196ZO(1) If an applicant has had to travel to obtain any relevant documentary medical evidence submitted to the Review Council, the applicant is, subject to this section, entitled to be paid in relation to that travel the travelling expenses that are prescribed.”

These sections do suggest that “relevant documentary medical evidence”, for the purposes of the SMRC, is not strictly confined to the documents formally before the RMA and formally transmitted by the RMA to the SMRC. Nevertheless they are of limited use for purposes of adopting the wide ranging concept of “available” information for which the Respondent contends.

By s196ZN(2) the quantum of the payment, for which s196ZN(1) provides, is limited to $425. Furthermore, by force of s196ZN(5) and s133 of the Act, “ relevant documentary medical evidence ” is defined in a very restrictive manner as follows: “… certificates, reports or other documents from: (a) a medical practitioner; or (b) a hospital, or similar institution, in which the veteran or deceased veteran received medical treatment; about a medical condition of the veteran or deceased veteran and reasonably used in support of the application.” (Emphasis added)

Mr Smith placed primary reliance on the general proposition that a review such as that conducted by the SMRC should take into account all relevant and up-to-date information.

The process of statutory construction may often, indeed perhaps usually, lead to a conclusion that an administrative decision-maker should make a decision on the basis of the most current material available to that decision maker (see eg Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 at 45.5). However that interpretation is not open when the statutory provision restricts the relevant information to that which was “available” to a different decision-maker at an earlier point of time.

In addition to the two textual indications to which the Appellant has made reference the following factors, in my opinion, support the more restrictive concept of “available” information: (i) The use of the word “review”, both in the title of the Specialist Medical Review Council and in the function it is obliged to perform under s196W(2), indicates a reference to the process of decision-making conducted by the RMA. It does not suggest a new process of decision-making conducted at large. (ii) There is no ambiguity as to the date at which information must be relevantly “available”. That date is the date on which the RMA made the relevant determination of an SOP. On any view, the Parliament has excluded from consideration by the second decision-maker information that came into existence after the date of the first decision.

In my opinion these factors, together with the express provisions of s196K and s196C(3), indicate that s196W(2) requires the SMRC to restrict its consideration to information that was in fact before the RMA. Construction of s5AB(2)

The words that must be construed are: “meets the applicable criteria for assessing causation currently applied in the field of epidemiology”. His Honour held, in various formulations, that these words meant no more than that information was “capable of being assessed” against such criteria. He said: “… the definition in s5AB(2)(b) … deals with information about how particular kinds of injury, disease or death may be caused. The information must be capable of having the criteria for assessing the potential for a factor to be causative applied to it. It is not whether the factor is causative that is the focus of the definition. It is the capability of application of the criteria to the information and whether the application of those criteria will permit assessment of how the condition may be caused by the factor.” [72] and “… it is the capability of the information of allowing the assessment of causation that is in question, not whether in fact a factor is causative.” [78] and “Where the aetiology of a disease, injury or death is uncertain, and there is information as to factors which are capable of assisting the determination of whether that kind of disease, injury or death can be related to war service, such information will be sound medical-scientific evidence if it meets the criteria in s5AB(2)(a) and (b) and insofar as that information is about the causative capacity of a factor, i.e. whether it is capable of causing that disease, injury or death, if it is not excluded by the current epidemiological criteria and is assessable by them.” [81]

The Appellant contended that the word “meets” means “satisfies”. The Respondent contended that the word “meets” means “touches” or “relates to”. The Respondent submitted that the test was only one of relevance, that is to say information will “meet the criteria” if an epidemiologist regards such information as relevant to the decision-making process of causation. A test of mere relevance is probably indistinguishable, in its practical operation, from the “capable of assessment” formulation of Greg James J.

The approach of the Appellant is not without its own difficulty because the word “satisfy” has more than one relevant meaning. One can “satisfy criteria” in the sense of attaining some minimum standard, as in “satisfied the examiners”. However one can also “satisfy criteria” in the sense that each of a number of matters is actually found to exist.

In its submissions the Appellant identified the purpose of s5AB(2) to be to identify the pool of information to which regard may be had for the respective operations of the Act to which the concept of “sound medical-scientific evidence” applies.

The Appellant contended that epidemiology is the form of science chosen by Parliament as decisive in the identification of how particular kinds of injury, disease or death may be caused. The science of epidemiology was chosen by Parliament as the filter of what is “sound medical-scientific evidence”. The administration of that filter was entrusted to experts in medicine and science.

It submitted that the information to which regard may be had for this purpose is information that establishes a causal relationship in accordance with the science of epidemiology. The Appellant distinguished judgments about causation in epidemiology from other forms of scientific “proof”.

The Appellant referred to passages in the judgment of Greg James J in which his Honour rejected a construction of s5AB(2)(b) that it was concerned with “actual causes” or “scientifically proved causes” or an “actual causal effect” (at [69], [72], [77] and [95]). The Appellant did not contend for such a construction.

In its written submissions, the Appellant said: “When epidemiology concludes that there is a cause and effect relationship between (say) a diet high in animal fact and prostate cancer, then it might be said that such a diet has been ‘scientifically established to have that effect’ [Greg James J at [70]]. Because epidemiology uses a distinctive form of scientific method and is practised by highly qualified experts in medicine, public health and mathematics, it is a science. But the relationship has not been ‘scientifically established’ in the sense of absolute or positive proof: it remains a conclusion about the risk of prostate cancer in a population formed as a matter of opinion on the basis of evidence collected by a study of that population or some part of it, and is not a conclusion reached in the controlled conditions of a laboratory.”

The Appellant submitted that the relevant test is whether exposure to an agent will - not may - increase the incidence of a disease in the population generally. Unless that test is “met”, in accordance with the approach of epidemiology, then information about causation is, by the definition, excluded from the pool of information to which regard may be had whenever the Act refers to “sound medical-scientific evidence”.

The history of the Veterans’ Entitlements Act and its predecessor has been set out in a number of authorities. It is unnecessary to reiterate the history here. (See East v Repatriation Commission (1987) 16 FCR 517 at 518-527; Deledio v Repatriation Commission (1997) 47 ALD 261 at 262-286).

The provisions which fall to be construed in the present case were inserted by the Veterans’ Affairs (1994-95) Budget Measures Legislation Amendment Act 1994 (Cth) (“the 1994 Act”). The intention of the amendments was to impinge upon the practical operation of the pre-existing legislation as that operation had been determined by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. Those cases were concerned with s120(1) and s120(3) to which a “reasonable hypothesis” standard applied. The amendments also applied the new regime to s120(4), to which the “reasonable satisfaction” standard applied.

The amendments do not purport to alter the construction of the prior terminology or alter the relevant tests - “reasonable hypothesis” and “reasonable satisfaction” - for application to the circumstances of an individual case. Rather, by force of s120A, impinging upon s120(1) and s120A(3), and of s120B, impinging on s120(4), a precondition is introduced for the operation of the pre-existing subsections.

The effect of Bushell and Byrnes was to determine that a “reasonable hypothesis” could exist so long as it was not “contrary to proved scientific facts or to the known phenomenon of nature” or “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous” ( Bushell at 414; Byrnes at 570). A hypothesis may still be reasonable even if an association between the injury or disease and the facts which constitute the relevant incidents of the service of the veteran is “not demonstrated or even if it is shown to be uncommon” or “a connection has not been proved” between the kind of injury and the relevant incidents of service” or “the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists” ( Bushell at 414).

On this basis it was held: “… the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.” ( Bushell at 414-415, see also at 430). Even a 20 to 1 chance could not be dismissed as unreasonable. ( Byrnes at 572).

The practical effect of the 1994 amendments with respect to operational service was to transform a two-stage process identified by the High Court in Byrnes at 571 to a four-stage process identified by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 and adopted in McKenna v Repatriation Commission (1999) 86 FCR 144 at 150. (Note the comments in Repatriation Commission v Gosewinckel [1999] FCA 1273 at [26]).

The first stage is, as it has been since the “reasonable hypothesis” standard was introduced in 1985: does the material before the decision-maker - the Commission or the Administrative Appeals Tribunal - give rise to a reasonable hypothesis connecting the injury, disease or death with the service rendered. As the High Court put it “[p]roof of facts is not in issue at this point” ( Byrnes at 571, see also Deledio at 97E).

After 1994, the next two stages are to determine whether an SOP is in force with respect to the injury, disease or death and if so whether “the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SOP” ( Deledio at 97 F-G). Thereafter, the decision-maker must determine the facts to decide whether the case is disproved beyond reasonable doubt ( Byrnes at 571, Deledio at 97-98).

The final stage is the consideration under s120(1) of whether the decision-maker is satisfied, beyond reasonable doubt, that a fact necessary to support the hypothesis is disproved or a fact inconsistent with the hypothesis is proved ( Byrnes at 571, Deledio at 97-98).

The purpose of the new SOP system turning on an assessment of “sound medical-scientific evidence” was expressed in the Explanatory Memorandum for the 1994 Act, in part, as follows: “This change is aimed at ensuring that medical opinions, supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion. It will not mean that only mainstream medical opinion would be regarded as reasonable, but it would require any alternative opinions to have a sound medical or scientific basis.”

This explanation was reinforced in the Minister’s Second Reading Speech (Australia, House of Representatives 1994, Debates, vol HR195) when he said at 1808: “I stress that the opinion of a single medical expert may still be sufficient to constitute a ‘reasonable hypothesis’, provided that such opinion has a sound medical-scientific basis as determined by the Authority.”

The Minister also referred, at 1809, to the continued role of a “reasonable hypothesis” test, including the rejection of one of the key recommendations of the advisory committee: “These changes maintain a beneficial repatriation system, including a ‘reasonable hypothesis’ standard, as modified as I have already outlined, for deciding compensation claims for death or disease relating to eligible war service. There has not been a return to a civil standard of proof, as recommended by the Baume committee, which would have had the potential to reduce the success rate of claims, which currently stands at above 70 per cent, to the pre-1977 rate of approximately 30 per cent. The government acknowledges the special status of veterans. It is hoped that these changes will be effective in overcoming the maverick and fringe claims that have interfered with the integrity of an extremely generous repatriation system, without having to return to a civil standard of proof for the determination of claims. The changes are intended to ensure that the credibility of the repatriation system is maintained and that medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion. It will not mean that only mainstream medical opinion would be regarded as reasonable, but it will require any alternative opinions to have a sound medical or scientific basis.”

The Explanatory Memorandum also said: “In effect, it will be necessary, before an hypothesis can be found to be reasonable, for it to be based on sound evidence from the field of medical science: that is, an hypothesis to be accepted would need to be based on a degree of medical-scientific acceptability. As an example, an hypothesis would not be able to be found reasonable if it were espoused by a medical practitioner whose views on the medical-scientific issues involved were speculative, fanciful, unsound or were undermined by the views of his or her peers. On the other hand, full scientific proof will not be required for an hypothesis to be reasonable and more than a single hypothesis of causation in relation to a disease, injury or death can be reasonable.”

The 1994 amendments created both the RMA and the SMRC. The RMA consists of a chairperson, who must be a medical practitioner or medical scientist of at least 10 years experience (s196M), and four other persons, one of whom must have at least 5 years experience in epidemiology (s196L(3)).

The SMRC consists of such number of members as the Minister determines to be necessary for the proper exercise of its functions, (s196ZE(1)). The Minister is obliged, when making appointments, to have regard to branches of medical science expertise necessary for deciding matters referred for review and must ensure that the number of councillors having such expertise is sufficient for the proper exercise of the Council’s function (s196ZE(3)). The Minister must appoint from a list of nominees submitted by the colleges, or similar bodies, of medical practitioners or medical scientists (s196ZE(4)), provided that the person is a registered medical practitioner or medical scientist with at least 10 years experience (s196ZF).

The jurisdiction of the SMRC is triggered by a request for “review” of “the contents of a Statement of Principles” (s196Y). (I pass over the parallel statutory regime for review of a decision not to make an SOP). Upon such a request the Council is obliged “for that purpose” to conduct a review of “all the information that was available to the authority when it … determined, amended or last amended the Statement of Principles” (s196W).

The actual powers which the SMRC can exercise are set out in subsections 196W(4) and 196W(5), in a manner which intermingles the various types of decisions made by the RMA. Decisions by the RMA to make and not to make an SOP or to amend or not to amend an SOP are not linked with any clarity to the specific powers exercisable by the SMRC in the respective cases. No submissions were made to this Court which require the Court to disentangle these provisions, if they can be disentangled.

The case proceeded on the basis that it was open to the SMRC to suggest or require amendments to an SOP by either deletion (as the SMRC recommended) or by addition (as the Respondent sought). It is appropriate to determine the case on that basis.

Nevertheless it is pertinent to note that the operative terminology reflected in the name of the SMRC and its primary statutory function, is “review”. The focus is on the product of the RMA. The result of an SMRC review is not an operative decision made by the SMRC. The end result of a decision by the SMRC is, in certain defined circumstances, an amendment to, or promulgation of, an SOP by the RMA. (See ss196B(7)(c), (10), (11) and (12)).

As explained above, the focus of the SMRC’s attention is on “information available to the” RMA (ss196W(2), (4), (5) and (6)). There is a separate legislative regime for a review by the SMRC of a decision by the RMA not to conduct an investigation with respect to a particular kind of injury, disease or death. In the course of such a review of this latter kind the SMRC may have regard to new evidence. Those provisions are of no relevance to the present case.

The Appellant placed particular reliance on some observations of Heerey J in Deledio (47 ALD at 275), in a passage expressly approved by the Full Court (83 FCR at 96): “The SOP function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent - so that the SOP can ‘uphold’ the hypothesis … the SOP is a subset of proved ( Bushell at 414) or known ( Byrnes at 571) scientific fact. Where an SOP is applicable, it is a statute-backed declaration of what is proved or known scientific fact”.

Although not accepting that epidemiological judgments of causation are “proved scientific facts”, counsel for the Appellant relied on this passage as supportive of the Appellant’s case that “meet the criteria” means “satisfy the criteria” in the sense of a judgment by epidemiologists that causation is established.

The passage in Bushell , which uses the word “proved”, (where second appearing on p414, to which I believe his Honour was referring) and the passage in Byrne, which uses the word “known”, both use the words in a negative sense. That is, a hypothesis is not reasonable if it is “contrary” to either “proved” or “known” “scientific facts”. (See Bushell at 414.9, Byrnes at 571.2; and see Heerey J’s formulation in the paragraph denoted (i) at 275.5).

When employed in this negative sense, the relevant “scientific fact” would not, virtually by definition, find its way into an SOP, which is required by s196B(2) and s196B(3) to state the factors which must be present before a reasonable hypothesis can be raised connecting a particular kind of injury, disease or death with service, or before the balance of probabilities test can be satisfied. The passage from Heerey J, approved by the Full Court, does suggest that the permissible content of an SOP is a scientific fact which has been positively “proved” or is positively “known”. It was in this way that the Appellant sought to rely on this passage, adapted in the case of causation to the nature of “proof” in the science of epidemiology.

I hesitate before qualifying the reasoning of the Federal Court with respect to a statute with which the judges of that court are familiar. However, the positive sense in which the Appellant seeks to use that passage is not supported by the passages in Bushell and Byrnes to which Heerey J referred.

It is one thing to say that an SOP may not contain a fact which is “proved” or “known” to be wrong. It is quite another thing to suggest that an SOP may only contain facts which are “proved” or “known” in the sense of established to the satisfaction of a particular body of medical scientists.

I do not understand Heerey J to have been addressing this issue. Although on one view his Honour’s comments do suggest a conclusion of the character for which the Appellant contends, it did not arise for decision in those proceedings and I do not regard this Court as bound to adopt his Honour’s characterisation of the contents of an SOP. In Ogden Industries Pty Ltd v Lucas [1970] AC 113 Lord Upjohn, delivering the judgment of the Privy Council, said at 127: “… in a common law system of jurisprudence which depends largely upon judicial precedent and the earlier pronouncement of judges, the greatest possible care must be taken to relate the observation of a judge to their precise issues before him and to confine such observations, even though expressed in broad terms, to the general compass of the facts before him, unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression could only lead to the opposite result of uncertainty or even obscurity as regards the case in hand. These general principles are particularly important when questions of construction of statutes are in issue. It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself. No doubt a decision on particular words binds inferior courts on the construction of those words on similar facts but beyond that the observations of judges on the construction of statutes may be of the greatest help and guidance but are entitled to no more than respect and cannot absolve the court from its duty of exercising an independent judgment.”

It was common ground between the parties that the criteria currently applied in the field of epidemiology are those frequently referred to as the “Bradford Hill criteria”. These are derived from the paper by Sir Austin Bradford Hill, Professor Emeritus of Medical Statistics of the University of London in his Presidential Address to the Section of Occupational Medicine of the Royal Society of Medicine. (Bradford Hill “The Environment of Disease: Association or Causation?” (1965) 58 Proc of the Royal Soc of Med 295).

In each of the Reasons for Decision given by the SMRC, first for SOPs 95 and 96 and, secondly, for SOPs 245 and 246, the SMRC identified the Bradford Hill criteria which it was to apply to be as follows: · Strength of Association; · Dose Response Effect; · Consistency of Findings; · Time Relationship; · Biological Plausibility; · Specificity of Association; and · Coherence of Evidence.

No criticism was addressed to the identification of the criteria in this way by the SMRC.

The paper by Sir Austin Bradford Hill to which the Court was asked to have regard indicates the nature of these criteria at some length. In that paper Sir Austin outlined the issue he was addressing by reference to a circumstance in which an association is found to exist between some form of exposure and injury or disease. He posed the question in the following words (at 295): “In what circumstances can we pass from this observed association to a verdict of causation ? Upon what basis should we proceed to do so? and “Our observations reveal an association between two variables, perfectly clear-cut and beyond what we would care to attribute to the play of chance. What aspects of that association should we especially consider before deciding that the most likely interpretation of it is causation.”

There are nine criteria in Bradford Hill’s paper. Two are not always applicable and no criticism was directed at the SMRC for not referring to them. Sir Austin Bradford Hill’s conclusion at 299 was: “Here then are nine different viewpoints from all of which we should study association before we cry causation. What I do not believe - and this has been suggested - is that we can usefully lay down some hard-and-fast rules of evidence that must be obeyed before we accept cause and effect. None of my nine viewpoints can bring indisputable evidence for or against the cause-and-effect hypothesis and none can be required as a sine qua non . What they can do, with greater or less strength, is to help us to make up our minds on the fundamental question - is there any other way of explaining the set of facts before us. Is there any other answer equally, or more likely than cause and effect.”

It is plain from this description that the identification of a causal relationship is a matter of judgment and in this respect differs from other scientific statements of causation. In a publication, Hennekens and Buring Epidemiology in Medicine 1987, to which the Court was referred without objection, the following description of the process occurs: “Finally a judgment is made as to whether that statistical association represents a cause-effect relationship between exposure and disease. Such a judgment requires inferences far beyond the data from any single study and involves consideration of criteria that include the magnitude of the association, the consistency of findings from all other studies, and biological credibility.” (4) and “In epidemiologic research, causation must always remain a matter of belief or judgment based on all available evidence in accordance with the framework and criteria discussed in this chapter. In a field characterised by as much uncertainty as epidemiology, however, it is rare for the evidence on the presence of the cause-effect relationship to be as unequivocal as that for cigarette smoking and lung cancer. In chronic disease, there has never been as firm an epidemiological basis to judge a cause-effect relationship. Thus there must often come a point at which it becomes prudent to act on the premise that a causal relationship exists rather than await further evidence.” (50)

Epidemiology is the study of disease in human populations, sometimes referred to as general causation. It is not concerned with the causation of disease in an individual case, sometimes referred to as specific causation. (See generally Seltsam Pty Ltd v McGuinness [2000] NSWCCA 29 at [60], [78]-[79], [98]-[101]). Furthermore, the “criteria” are not scientific statements but uncomplicated statements of commonsense propositions. ( Seltsam v McGuinness at [138]-[140]).

It is often the case that the most important aspect of a statutory definition is the word being defined. (See Eastleigh Borough Council v Betts [1983] 2 AC 613 at 628B; Delaney v Staples [1992] 1 AC 687 at 692A; Bennion Statutory Interpretation (3rd ed) pp434-435). Here it is a composite term: “sound medical-scientific evidence”. The most revealing word is the last: “evidence”. The legislation is not focussing on proof or on an ultimate decision, but on material appropriate to be taken into account in a decision-making process.

The second textual indication that s5AB(2)(b) is not concerned with proof is the description of the information with which the paragraph is concerned. It refers to information about how the injury, etc “may be caused”.

The relevant decision-making processes are those conducted by the RMA and the SMRC. They provide part of the context, internal to the legislative scheme, in which the words must be construed.

The Australian law of statutory interpretation requires a court to consider context in the first instance, not merely after “ambiguity” is identified. (See R v Wilson; Ex parte Kisch (1934) 52 CLR 234 at 244; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation ( Cth) (1980-1981) 147 CLR 297 at 304, 319-320; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315, 321; CIC Insurance Ltd v Bankstown Football Club Ltd (1996-1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at [69]).

As Sir Anthony Mason put it in K & S Lake City Freighters supra at 315 (in dissent, but not with respect to the law of statutory interpretation): “Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.”

In the case of words in a definition section, the context entitled to particular weight is constituted by the section or sections in which the defined words appear. Consideration of these sections in the Act presently under consideration, in my opinion, confirms the conclusion suggested by the use of the word “evidence” itself: s5AB(2) is concerned with information appropriate to be taken into account by the RMA and the SMRC.

The first purpose for which the information that answers the description in s5AB(2) is to be used is the performance by the RMA of the functions conferred upon it by s196B. With respect to the two situations to which the different standards of proof apply, and to which I have referred as “operational service” and “eligible service”, s196B(2) and s196B(3), respectively, apply: (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 : … operational service … ……… the Authority must determine a Statement of Principles, … (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 : … eligible war service … the Authority must determine a Statement of Principles …” (Emphasis added)

In each case the use of the formulation “can be related to” is a test of possibility. In the case of subsection (2) it is sufficient that there is evidence that “indicates” the possibility. There is some tension in the case of subsection (3) between a test of possibility and a “more probable than not standard”, a tension which does not exist in subsection (2). Nevertheless, in each case the pool of information to which reference can permissibly be made, is material to which regard is to be had for the purpose of establishing whether, in the opinion of an expert body, injury, disease or death “can be related” to certain forms of service, either simpliciter or on a “more probable than not” test.

In the case of s196B(2), it is of further significance that the identification of “evidence that indicates” the possibility of a relationship occurs for the purpose of the application of a statutory test expressed in terms of a “reasonable hypothesis”. Parliament maintained that test after the 1994 amendments. A requirement that information as to how a particular kind of injury, disease or death “ may be caused” (s5AB(2)(b)), should establish a causal relationship, appears to exclude every hypothesis with respect to causation which would be regarded as “reasonable”, but not established. Although Parliament intended to restrict the operation of the reasonable hypothesis test as that term had been construed by the courts, it did not intend to deprive the test of practical operation. To a substantial extent, that appears to me to be the effect of the Appellant’s contentions.

The final purpose for which the information that answers the description in s5AB(2) is to be used is the performance by the SMRC of the functions conferred upon it by s196W. After carrying out a review, the SMRC is empowered to make certain declarations if it forms the view that: (i) “… there is sound medical-scientific evidence on which the Authority could have relied to … amend … or to determine a Statement of Principles” (s196W(4)) or (ii) “… that there is no sound medical-scientific evidence that justifies the making of … or an amendment of the Statement of Principles” (s196W(5)(a)) or (iii) “… that the sound medical-scientific evidence available to the Authority is insufficient to justify the making of a … or an amendment of the Statement of Principles” (s196W(5)(b)) or (iv) “… there appears to be a new body of sound medical-scientific evidence … that has not been previously considered by the Authority … and that new body of evidence together with the sound medical evidence available to the Authority could justify the making of a … or an amendment of the Statement of Principles” (s196W(7)).

The focus of attention of the SMRC, as I have shown above, is the decision-making by the RMA. Accordingly, the SMRC is concerned, as is the RMA, with the existence of evidence on the basis of which it can determine whether injury, disease or death can be related to the respective forms of service. In the case of operational service this is on a “reasonable hypothesis” test. In the case of eligible service, this is on a “more probable than not” test.

In view of the purposes to be served in the legislative scheme by the definition in s5AB(2), the Appellant’s construction should, in my opinion, be rejected. A requirement that epidemiological evidence must establish that a particular exposure will increase the incidence of a particular injury or disease or of death, is too high a standard for purposes of deciding whether such a consequence “can be related to” the exposure, at least in the case to which a “reasonable hypothesis” test applies. A requirement that causation be established in the sense contended for by the Appellant, would mean that the decision-maker could only find that a factor can be related if, in effect, it found that it was related . In my opinion, the Parliament did not intend such a result.

The words actually used - “meets the criteria” - are words of considerable generality and indeterminate reference. They involve what is often referred to in the case law as an “ambiguity”. The use of the word “ambiguity” in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful. (See Bowtell v Goldsborough Mort & Co Ltd (1905) 3 CLR 444 at 456-477; Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273 at 287-288; Cross on Statutory Interpretation (3rd ed 1995) pp83-84; and my Sir Ninian Stephen Lecture “Statutory Interpretation: Identifying the Linguistic Register” at pp4-6 to be published in the Newcastle Law Review , accessible at www.lawlink.nsw.gov.au/sc). In cases such as the present, which involve reading down general words (see R v Young (1999) 46 NSWLR 681 at [23]-[25]), I would identify the difficulty for the interpreter as one of “inexplicitness” rather than one of “ambiguity”.

The actual words being defined - “evidence” - and the context - “can be related” and “reasonable hypothesis” - support a construction of the words “meets the criteria” that requires only that the relevant information is regarded by epidemiologists as appropriate to be taken into account in deciding issues of causation. SMRC Consideration of Epidemiological Criteria

In order to determine the second issue raised on the appeal, it is necessary to set out the reasons advanced by the SMRC for arriving at its decisions.

The first decision in point of time was that concerned with SOPs 95 and 96, in the Reasons for which the SMRC set out, at some length, the approach it adopted for purposes of the decision-making process with respect to epidemiological criteria. The Reasons set out the relevant sections of the Act and identify the role of an SOP in the legislative scheme. No criticism was directed to this part of the Reasons.

The Council stated its approach in the following terms: “It is important to recognise that sound medical-scientific evidence is defined in terms of being “information”. Information is essentially knowledge that is communicated or received concerning some fact or circumstance. In the case of sound medical scientific evidence, it is knowledge concerning a particular kind of injury, disease or death that meets the requirements of subparagraph (i) or (ii) of paragraph 5AB(2)(a) and, in the case of information about how that kind of injury, disease or death may be caused, it must also meet the applicable criteria for assessing causation currently applied in the field of epidemiology. Sound medical-scientific evidence is the basis for determining Statements of Principles for the purposes of both standards of proof, and has the same definition for the purposes of instruments under subsection 196B(2) as it has for the purposes of instruments under subsection 196B(3). The information either meets the definition of sound medical-scientific evidence or it does not. Information cannot meet the definition for one purpose and not for another. As explained above, it is the assessment of that information in terms of its indications of the relative potential of a factor being a causal factor in each case to which the Statement of Principles applies, by which differences may arise between the factors included in Statements of Principles determined under subsection 196B(2) and those determined under subsection 196B(3). But, a factor cannot be included in either type of Statement of Principles if there is no sound medical-scientific evidence that supports its inclusion as a factor. Paragraph 5AB(2)(b) refers to the applicable criteria for assessing causation currently applied in the field of epidemiology. … The Council takes the view that the criteria for assessing causation currently applied in the field of epidemiology include what is commonly known as the Bradford Hill criteria. There are a number of slightly different expressions of those criteria currently being applied, but all of them have similar elements. Not only are the Bradford Hill criteria, themselves, part of the criteria for assessing causation, but the methods by which medical and scientific studies are analysed in relation to the Bradford Hill criteria, must be said to be part of the criteria currently applied in the field of epidemiology.” (p20)

The Council went on to identify seven of the nine Bradford Hill criteria as being relevant for its consideration, as set out in par 98 above.

After explaining what each of these criteria meant, the report stated at 23: “… epidemiological criteria require that, in assessing whether certain information is sound medical-scientific evidence, it is necessary to test it against all of the other available information concerning the issue in question. It is contrary to the principles of epidemiology to consider one study in isolation, for to do so is to deny the operation of important epidemiological criteria such as consistency, coherence, biological plausibility, dose response and specificity.”

In relation to SOP 95 the SMRC considered two issues. First the contention of, inter alia, the Respondent that smoking should be added as a relevant factor for prostate cancer and, secondly, the inclusion by the RMA, as such a factor, of exposure to herbicides in Vietnam. In dealing with these two issues the SMRC approached them in the same way. It considered each of the seven Bradford Hill criteria under a discrete subheading. It then formulated a conclusion. It approached its task by asking, with respect to each of the seven criteria, whether it had been “met” or “satisfied”.

In the case of SOP 96, the RMA had not included exposure to herbicides as a factor. The only relevant issue in relation to SOP 96 was the claim of the Respondent to include smoking as a factor. The SMRC gave joint reasons for decision for SOPs 95 and 96. There was no differentiation between the two tests. For the reasons which I have reproduced in par [119] above, the SMRC said that the pool of information - “the sound medical-scientific evidence” - was the same in each case.

With respect to smoking, under the heading of “Strength of Association” the SMRC noted that a few studies suggested a weak association, but that other factors, including bias, rendered “the results of those positive studies of little importance in the overall assessment of causation in epidemiological terms”. It had earlier set out a criticism of the main study which produced positive results. The SMRC concluded that “this criterion cannot be said to have been met”.

Similarly, under “Strength of Association” with respect to exposure to herbicides, the SMRC referred to the relevant studies as containing “evidence of an association” which was “scanty indeed”. It said that a weak association had been identified in one study, the conclusions of which it had earlier set out, and concluded: “there cannot be said to be sufficient strength of association in relation to herbicides and prostate cancer to satisfy this criterion”.

With respect to dose response effect, the SMRC criticised one study in relation to smoking which had suggested a significant dose response and concluded: “It cannot be said that a dose response effect of any significance has been shown between cigarette smoking and prostate cancer”.

Under this heading with respect to herbicides, the SMRC identified only one study that had suggested a significant dose response and that study could not, for certain reasons, be given much weight and “on its own does not meet this criterion”.

With respect to consistency of findings with respect to smoking, it identified that only a few of the many studies had shown positive results and that, accordingly, “there is thus no sufficient consistency”.

In the case of herbicides it said there was only one study of sufficient size and that there was “insufficient information on which to find that this study is consistent with other studies dealing with the same suggested association”.

With respect to the alleged link between smoking and prostate cancer the conclusion expressed by the SMRC was in the following terms: “The epidemiological criteria, not having been satisfied in relation to cigarette smoking and prostate cancer, there is no sound medical-scientific evidence that justifies the inclusion of cigarette smoking as a factor in a Statement of Principles concerning malignant neoplasm of prostate.”

With respect to herbicides its conclusion was: “The Council is of the view that there was insufficient information available to the Repatriation Medical Authority for it to have included in the Statements of Principles a factor relating to herbicides.”

It is pertinent to note how the SMRC treated the studies which suggested positive results.

In the case of smoking, save in the case of one study which it dismissed as “methodologically flawed”, the SMRC referred to the studies which suggested positive results as few in number in comparison with the total number of studies. It said the positive studies identified only a weak association and inconsistent or weak dose response relationship. With respect to biological plausibility it noted the information concerning the link between smoking and prostate cancer was “speculative”.

With respect to herbicides it focussed on one study that suggested a positive association which was “the single epidemiological study that examined this topic with rigour” and was of sufficient size. The SMRC noted that that study was itself qualified and identified a weak association albeit, also, a statistically significant dose response relationship.

There were studies in each case which the SMRC regarded as professional studies properly undertaken and which suggested a positive association, but which, by reason of the weakness of their results, or some aspects of those results should not be given substantial weight. The SMRC did not, however, state that these studies should, for any medical or scientific reason, be excluded from consideration. The approach of the SMRC was to accept the credence of the studies but to determine that their weight was not sufficient for the purposes of the decision-making process in which the SMRC was engaged. It concluded that the results of these studies were not consistent with the negative results of other studies. It did so in a context where it treated “consistency” as an epidemiological criterion that had to be “met” or “satisfied”.

In the case of SOPs 245 and 246, with respect to motor neurone disease, the Reasons for Decision approached the matter in a different way. The SMRC made reference to the same seven Bradford Hill criteria. It did not however consider the matters before it under sub-headings in which each of the criteria was separately addressed.

The Council did reiterate the same general approach when it said: “When employing epidemiological criteria such as those of Bradford Hill it is essential that all other scientifically valid information should be included in the final assessment. It is contrary to the principles of epidemiology to consider one study in isolation without looking at all of the factors enumerated above.”

With respect to motor neurone disease the issue was the contention of, inter alia, the Respondent, that two items should be added as relevant factors: Trauma and Exposure to Solvents.

With respect to trauma, the SMRC identified a problem with temporality, ie did the relevant exposure or event precede the disease. It said: “There was insufficient data to determine whether the association claimed in the studies presented to the Repatriation Medical Authority is one that reveals that motor neurone disease which has been present for decades is brought to life by trauma or whether those traumata themselves, by somehow affecting the body, cause the development of motor neurone disease.”

Furthermore, it criticised the one study suggesting a positive association on the basis that the interviews were “usually retrospective and by recall. They are therefore open to serious bias in the results”. It concluded: “The studies available relied on the gathering of histories of antecedent trauma which are not sufficiently sound scientifically. The problems of recall bias and matching of controls together with the weak association did not justify the Review Council displacing the findings of the Repatriation Medical Authority.”

The SMRC said that the material “was stronger in relation to solvents”. It noted that the increases in relative risk associated with respect to solvents in the studies was low (see pars [28] and [64]). The material relied upon by the Respondent was, apparently, focussed on the case history of individual veterans (see par [32]).

Other studies and papers were dismissed for not focussing on motor neurone disease because they were concerned with neurological disease in general (par [64]) or with “organic solvents” generally (par [68]). The SMRC also commented on the lack of clarity of some of the material before it.

Its conclusion was expressed in the following way: “Because of all the above, this Council, was unable to say what such a contention, involving the level of exposure or the duration or the type of solvent, might be for the purposes of Instrument 245 or 246 of 1995. Without the particular evidence on the specific criteria of exposure to any solvent, a contention was not possible for either Statement of Principles.”

This appears to be a conclusion as to the inadequacy of the evidence. The word “contention” is used as the equivalent of a “factor” which could be included in an SOP. The SMRC concluded that the information on “solvents” was not of a sufficiently specific character for it to be stated as a “factor” appropriate for inclusion in an SOP. Did the SMRC Ask the Wrong Question?

The Appellant submitted that the trial judge had concluded that the SMRC had impermissibly applied a test of “scientific proof”. This is not in my opinion, an accurate characterisation of his Honour’s reasons.

His Honour said: “It is in error for the RMA or the SMRC to require that a causal link, be demonstrated such that the principles of epidemiology would regard that link as established before such a factor is included in an SOP.” [78]. and “… the SMRC was concerned to ascertain whether causation had been established by particular factors.” [84] and “Unless the information established cause, it was held not to be ‘sound medical-scientific evidence’.” [93]

Although his Honour did refer in the course of his judgment to “actual cause” and “scientific proof”, his characterisation of the approach of the SMRC was whether a factor had, according to epidemiology, been established to be a cause. This is the construction of s5AB(2)(b) which was advanced by the Appellant and which I have rejected above.

In my opinion, his Honour was correct to characterise the SMRC decision-making process in the way that he did.

The SMRC asked itself - with respect to both smoking and herbicides - whether the epidemiological criteria had been satisfied or met, namely whether, according to those criteria, either factor had been established to be a cause of prostate cancer. In this respect, it asked the wrong question with respect to the identification of the relevant pool of evidence to which it had to have regard and for which the respective statutory tests - reasonably hypothesis and balance of probabilities - had to be applied. In this, in my opinion, the SMRC erred.

The SMRC did not distinguish between SOPs 95 and 96. In its Reasons for Decision, which I repeat, it said: “Sound medical-scientific evidence is the basis for determining Statements of Principle for the purposes of both standards of proof, and has the same definition for the purposes of instruments under subsection 196B(2) as it has for the purposes of instruments under subsection 196B(3). The information either meets the definition of sound medical-scientific evidence or it does not. Information cannot meet the definition for one purpose and not for another.”

When it came to express its conclusion, which I also repeat, - “there is no sound medical-scientific evidence that justifies the inclusion of cigarette smoking as a factor in a Statement of Principles” - the SMRC did so because it had excluded the studies from the pool of information to which it had regard. This appears from the reason given for the conclusion which was: “[t]he epidemiological criteria not having been satisfied”. (See par [131] above).

For that reason, the SMRC did not, in terms, apply the respective tests - reasonable hypothesis and balance of probabilities - separately to the “sound medical-scientific evidence” which it did have before it, on the construction of s5AB(2)(b) which I favour.

Nevertheless, it expressed its conclusion in the terms of s196W(5)(a) - “there is no sound medical scientific evidence that justifies…”. This conclusion contains an ambiguity. It could mean: as there is no evidence on causation of any kind to which regard may be had. Alternatively, it could mean that there was such evidence but it was not sufficient to justify the inclusion of the factor on either test. I believe the SMRC intended the former and this was a legal error with respect to both SOP 95 and SOP 96.

This is sufficient to dismiss the appeal with respect to SOP 95. The position with respect to SOP 96 is different. The wrong test - shortly put “is causation established” - is precisely the issue the SMRC would have had to address if it came to apply the balance of probabilities test for purposes of SOP 96.

In this case there can be no doubt what the result would have been in the case of SOP 96. For all the reasons the SMRC gave as to why the epidemiological criteria had not been met, it would have concluded that, on the balance of probabilities, causation had not been established. The result with respect to SOP 96 would have been expressed in the same words although, in my opinion, with different intent, namely “there is no sound medical scientific evidence that justifies the inclusion of cigarette smoking as a factor in an SOP”.

The Court, in the exercise of its discretion should refuse relief with respect to SOP 96 on the grounds that, although a legal error has been identified, the error made no substantive difference to the decision and remittal for reconsideration would be futile. I would allow the appeal with respect to SOP 96.

With respect to SOPs 245 and 246, I have found it difficult to characterise the Reasons of the SMRC. However, I am not satisfied that in this regard the SMRC asked itself the wrong question.

The Respondent’s written submissions asserted that the Appellant had accepted before his Honour that it was probable that the SMRC applied the same construction in the later decision-making process. However, no such concession was made in this Court. The Appellant made distinct submissions about the SMRC reasoning process in the two cases.

I am influenced by the way in which the SMRC expressed its conclusions. With respect to trauma it said that the studies were “not sufficiently sound scientifically”.

I am not satisfied that, in coming to its conclusion, the SMRC applied a test that a cause be “established” in the way it did for SOPs 95 and 96. As I understand its reasoning, the SMRC did not have to get to that point.

In the case of solvents, the SMRC’s conclusion, as I have interpreted it above, was that the information did not permit the SMRC to identify with appropriate precision any “factor” appropriate for inclusion in an SOP. This conclusion and the SMRC’s reasoning does not manifest the legal error I have identified with respect to SOPs 95 and 96.

In my opinion, the appeal with respect to SOPs 245 and 246 should be allowed. Procedural Fairness

The obligation to afford procedural fairness is a doctrine of the common law which attaches to the exercise of public power, subject to any statutory modification of the common law in that regard: See Kioa v West (1985) 159 CLR 550 at 576, 581, 632; Annetts v McCann (1990) 170 CLR 596 at 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 574-575; Attorney General (NSW) v Quin (1990) 170 CLR 1 at 57; Victoria v Master Builders’ Association (Vic) [1995] 2 VR 121 at 138-139.

Counsel for the Appellant accepted that the SMRC was under an obligation to accord procedural fairness to the Respondent with respect to its review of SOPs 95 and 96. He contended that the obligation had been satisfied by the procedure adopted by the SMRC.

The issue arises because the SMRC made a decision to overturn the decision of the RMA to include within the grounds creating a relevant entitlement for prostate cancer the factor of “being exposed to herbicides in Vietnam”. The SMRC had made this decision notwithstanding the fact that no person had requested it to do so. The Respondent had not requested it to do so. Nor had the Repatriation Commission, which is given express statutory authority to request the SMRC to review an SOP by s196Y(1)(a) of the Act.

The SMRC took the view that once its jurisdiction was invoked by any person for any reason, then it was authorised to investigate any aspect of an SOP. This view was based the terms of s196W(2) which confers a function on the SMRC to “review the contents of a Statement of Principles”. This case was argued on the basis that the SMRC was not restricted by the grounds on which review of an SOP is sought.

The relevant statutory framework for the participation of persons in the conduct of a review by the SMRC is as follows: (i) Certain persons, including an organisation representing veterans such as the Respondent, are authorised to “ask the Review Council to review the contents of a Statement of Principles in force under Part XIA” (s196Y(1)). (ii) A request must be made within three months after the SOP was made, amended or last amended (s196Y(2)). (iii) The request must be in a form approved by the SMRC and “state the grounds on which the review is sought” (s196Y(3)). (iv) After the SMRC has been asked to review the contents of an SOP, the Council must publish in the Gazette a notice stating that the Council “intends to carry out a review of the information available to the authority about that kind of injury, disease or death” and inviting persons authorised by s196ZA(1) to make written submissions to the Council (s196ZB). (v) The notice is also to specify the date on which the Council will hold its first meeting for the purposes of the review and “the date by which all submissions must have been received by the Council” (s196ZB). (vi) A person authorised to request a review under s196Y(1), including an organisation like the Respondent, may make a submission in writing to the Council “about any information that was available to the RMA and is relevant to the review (relevant information)” (s196ZA(1)). (vii) Furthermore, “a person having expertise in a field relevant to the investigation may make a submission in writing to the Review Council on any relevant information pertaining to that field” (s196ZA(2)). (viii) Persons or organisations may either personally, or by a representative, who is not a legal practitioner, “appear before the Review Council to make an oral submission complementing the written submission” (s196ZA(3) and (5)). The submissions that may be made by persons, whether in writing or orally, may not be submissions “on a legal matter” (s196ZA(6)). (ix) Persons or organisations who are entitled to ask the SMRC to review an SOP are entitled upon request “to have reasonable access to any document containing information considered by the Review Council for the purposes of an investigation” (s196ZD(1)).

By letter of 22 May 1995, the Vietnam Veterans’ Association requested a review of SOP 95, the heading of which application referred to: “Use of Tobacco Products and Prostate Cancer” and was in the following terms: “The Vietnam Veterans’ Association of Australia, New South Wales Branch, apply to the Specialist Medical Review Council to review the decision of the Repatriation Medical Authority, not to include in the Statement of Principle Instrument No. 95 of 1995, as a Reasonable Hypothesis, the use of tobacco products as causing prostate cancer.”

By letter also dated 22 May 1995, the Australian and Veterans’ and Defence Services Council also sought a review of SOP 95 on the same basis. There was no request for review on any other basis.

On 5 July 1995 the SMRC published a notice in the Gazette stating that it intended to carry out a review of the information available to the RMA about malignant neoplasm of the prostate and inviting persons or organisations to make written submissions (s196ZB(1)).

By letter of 19 July 1995, the Vietnam Veterans’ Association forwarded to the SMRC a submission, the heading and contents of which were clearly restricted to the relationship between prostate cancer and tobacco products.

By letter of 17 October 1995, the SMRC wrote to the Vietnam Veterans’ Association in the following terms: “This letter is to inform your Council that the Specialist Medical Review Council will meet on Tuesday 7 November for the review of malignant neoplasm of the prostate. The Specialist Medical Review Council will consider all the material that has been sent in connection with this review. You are not required to make any further submissions but you may decide that you wish to make an oral comment to support your earlier written submission. It is anticipated that any final oral address should take no more than 10 minutes and that the Specialist Medical Review Council may ask questions arising from the material. Please appreciate that no legal matters will be discussed and that the decision of the Specialist Medical Review Council is based on the material that was available to the Repatriation Medical Authority at the time it made its decision. Your written submission, as well as the others submitted by other interested parties and the material that was before the Repatriation Medical Authority contain all that the Specialist Medical Review Council can consider. Any oral submissions should not introduce new material but restate the essence of your original submission. If you wish to have another person, not a lawyer, address the Specialist Medical Review Council please advise me as soon as possible. I will advise you of a time that your representation may make that submission.” (Emphasis added)

It was quite clear that no submissions would be entertained from the Respondent on any matter other than the link between prostate cancer and smoking.

At the hearing on 7 November 1995, the following relevant events occurred according to the unchallenged affidavit of Mr McCombe, the President of the Respondent: “After the introductions, the Chairman stated words to the effect that the Council, beside reviewing the issue of smoking and prostate cancer, would also be reviewing the link between agent orange (a herbicide used during the Vietnam War) and prostate cancer. This was the first time I had heard it suggested that this would also be under review. As far as I am aware, no person or body had made a submission suggesting that this factor should be reconsidered and removed from the Statement of Principle. The Chairman’s comment caught me by surprise, and because I had already prepared an oral submission to make in the ten minutes given to me, I said nothing on this topic. I was unable to prepare or present any submission in support of the retention of “being exposed to herbicides in Vietnam” as a factor in SOP 95.”

No person raised the question of exposure to herbicides in Vietnam in any submission. However, the Naval Association of Australia had raised in its submission: “Relationship between exposure to herbicides and pesticides during World War II, Korea, Malaya and Borneo”.

The evidence tendered on behalf of the Appellant before the trial judge does not confirm the version of the Chairman’s opening remarks given by the President of the Respondent, to the effect that the Chairman said that the Council “would also be reviewing a link between Agent Orange (a herbicide used during the Vietnam War) and prostate cancer”. The version of Mr Douglas, the Registrar of the SMRC, who attended the hearing of 7 November 1995 in his capacity as Registrar, was that the Chairman stated that: “The review included the matters raised by the Plaintiff and the Naval Association being the possible link between smoking and prostate cancer and the possible link between exposure to herbicides and prostate cancer.”

It is understandable that the President of the Vietnam Veterans’ Association would understand any reference to herbicides to include Agent Orange, being the herbicide involved in Vietnam. Nevertheless the express terms of the submission of the Naval Association was to extend the coverage to encompass herbicides and pesticides during other conflicts in which Australian Forces had been involved. It seems most likely that the reference during the course of the hearing was a general reference to either “herbicide” or “pesticides” or both, but it is not necessary to resolve this factual matter.

The first submission in this regard made by Mr Hanks QC on behalf of the Appellant directed attention to the scope of the inquiry which the SMRC is required to perform, namely “a review of all the information that was available to the Authority”. That review is conducted “for the purpose” of a review of the “contents” of an SOP (s196W(2)). The notice which the SMRC is obliged to publish in the Gazette, and which it did in fact publish with respect to the review of SOP 95, is a statement of the intention of the Council “to carry out a review of the information available to the Authority” (s196ZB(1)(c)).

The Appellant submitted that all participants were on notice that any aspect of SOP 95 was capable of falling within the scope of the review which, accordingly, did not exclude the factor of exposure to herbicides in Vietnam.

By s196ZA(6), a person may not include in a submission any legal submission as to the permissible scope of a review. Furthermore by s196ZA(5) the representative of a person or an organisation making oral submissions is not permitted to be a legal practitioner. In such circumstances, persons who may participate in the review, which extends to any person eligible to make a claim for a pension, ought not be taken to understand that the scope of the review is unlimited, by reason of the provisions of the Act which identify the scope of the review or by a notice published in the Gazette which reflects the terms of the statute.

This case was argued on the basis that a review by the SMRC is not confined by the request for a review which triggers its jurisdiction. It is common for statutory bodies with a jurisdiction to make decisions after inquiry, to invoke a statutory power to inquire which is expressed in broader terms than that necessary for the particular occasion. It would constitute a significant misapplication of this nation’s resources, if persons who wish to participate in the process of any such inquiry had to prepare themselves on the basis that the scope of any such statutory inquiry was not confined, save by the outer limits of the statutory power. One should hesitate before attributing an intention to Parliament to misapply the resources of the community in this way.

The obligation to afford procedural fairness imposes on the repository of a public power an obligation to identify in some manner the scope of the exercise of the power under consideration. (See, eg, Re Media, Entertainment and Arts Alliance; Ex parte Arnel (1994) 179 CLR 84 at 94). What is required depends on all the circumstances.

Part XIB of the Act contains a number of provisions which can be seen as rights commensurate with some of the rules of natural justice. However, it is well established that the existence of such provisions is not a basis for imputing an intention to abrogate the common law principles. (See, eg, Annetts v McCann supra at 598; J v Lieschke (1987) 162 CLR 447; Ainsworth v Criminal Justice Commission supra at 575; Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 344-345, 347).

The provision for participation in the decision-making process afforded by the statutory regime does, however, indicate, that some process of focussing the inquiry must occur.

Although a notice is required to be published in terms that “the Council intends to carry out a review of the information available to the authorities …” the scope of submissions is more narrowly confined. By s196ZA(1) persons entitled to make a request are confined in the scope of their submissions in the following way: “… may make a submission in writing to the Council about any information that was available to the Repatriation Medical Authority and is relevant to the review ( relevant information ) .” (Emphasis added)

Similarly, the other provision for the making of submissions relates to “a person having expertise in the field relevant to the investigation”. By s196ZA(2) such a person: “… may make a submission in writing to the Review Council on any relevant information pertaining to that field.” (Emphasis added)

These subsections suggest that the scope of a review is confined in some way by a standard of relevance, which involves something less than the whole of the “information available” to the RMA.

The only basis on which a person entitled to make submissions can decide what is “relevant”, within either s196ZA(1) or s196ZA(2), is either on the basis of the scope of the request which instituted the review, or by being informed by the SMRC as to what it regards as relevant.

On the evidence, the SMRC gave no relevant notice to the Respondent until the day of the oral hearing, when the Chairman made a reference to the scope of the review extending to pesticides. The representative of the Respondent appeared to accept that that incorporated a reference to herbicides in Vietnam and was not restricted to pesticides and herbicides in other conflicts, which were the subject of the submission of the Naval Association.

Until that point of time the Vietnam Veterans’ Association had no notice that the scope of the review would encompass a matter of significant concern to its members. It had not incorporated any matter on the subject in its submission. By force of s196ZA(3), it probably could not have said anything on that occasion. An oral submission on pesticides in Vietnam would not answer the description “complementing the written submission” of the Association. In any event, by its letter of 17 October 1995, the SMRC made it quite clear that it would not entertain any such oral submission when it said: “Any oral submission should not introduce new material but restate the essence of your original submission.”

The first occasion on which the Vietnam Veterans’ Association was given any notice that the SMRC might review the inclusion of the reference to exposure to herbicides in Vietnam in SOP 95, was on the day of the oral hearing. It was afforded no opportunity to be heard on that day. Thereafter the SMRC gave the Vietnam Veterans’ Association no opportunity of any character to make submissions, either written or oral, with respect to this subject matter. In my opinion, his Honour was correct to conclude that the SMRC’s common law obligations of procedural fairness had not been observed. Power to Recommend

The fourth issue arises under a notice of contention. It turns on the fact that the SMRC purported to make certain declarations with respect to SOP 95 “under s196W(5) of the Act”. To repeat, Declaration 1(b) was: “(b) Council recommends that the RMA reconsider the inclusion of ‘being exposed to herbicides in Vietnam’ as a factor having regard to the Reasons for Decision of the Council, the information that was available to the RMA when it made the SOP, together with any further information that may arise from any further studies that might be undertaken following the recommendation in the MacLennan and Smith Report relating to malignant neoplasm of the prostate.”

It was submitted on behalf of the Respondent, that s196W(5) did not make provision for a declaration of this character. The relevant power was said to be found in s196W(4)(d) pursuant to which the Council could make a declaration “stating its views” and “remitting the matter for reconsideration in accordance with any directions or recommendations of the Council”.

The SMRC has not, in my opinion, committed any error. The SMRC employed the express terminology of s196W(5)(b) in its Declaration 1(a), in relation to SOPs 95 and 96 ie “insufficient sound medical-scientific evidence to justify the making” of an SOP which included the factor of exposure to herbicides.

The SMRC proceeded on the basis that s196W(5) was a power which could be exercised when the SMRC review led it to the conclusion that a factor should not have been included. It did not proceed on the basis that the only relevant power in such a case was s196W(4)(a) ie that “there is sound medical-scientific evidence to amend” the SOP. This step in the SMRC’s reasoning was not in issue in this appeal. The submission was that a power to remit for reconsideration was found expressly in s196W(4)(d), and was not open under s196W(5).

There is express provision in s196W(5) of a power to “include … any recommendation that it considers fit to make about any future investigation that the Authority may carry out …”. In my opinion, this power does support the particular recommendation expressed in Declaration 1(b) of the SMRC. That declaration refers to new evidence becoming available. The use of the formulation “recommends that the RMA reconsider”, is in its entire context, a “recommendation about [a] future investigation” by the RMA. Conclusion

In my opinion, the Appeal should be allowed with respect to Proceedings No. S30139 of 1996 (being CA 40380 of 1999). The Appeal should be allowed in part with respect to Proceedings No. S30133 of 1996 (being CA 40382 of 1999).

Although the Appellant has been successful in one of the two separate appeals filed in this Court and partly successful in the other, there was a substantial overlap between the two appeals. It is not appropriate for the Appellant to receive its costs with respect to one of two appeals which were heard together, when the Appellant has not succeeded on issues common to both which took up the substantial proportion of argument in the appeal and, it appears, below. In the other case the Appellant was partly successful. The issue on which it succeeded was not the subject of extensive consideration.

The orders I propose are: Proceedings No. 40380 of 1999 1 Appeal allowed. 2 Vacate the orders of Greg James J in Proceedings No S30139 of 1996. 3 Each party to bear its own costs of the proceedings including the costs of the appeal. Proceedings No. 40382 of 1999 1 Appeal allowed in part. 2 Vacate the orders of Greg James J in Proceedings No. S30133 of 1996. 3 Declare that Para 1 of the Declaration made on 22 December 1995 by the Specialist Medical Review Council is void. 4 Order the Appellant to pay one half of the costs of the First Respondent’s costs of the appeal and one half of the said Respondent’s costs below.

MEAGHER JA: I have had the privilege of reading in draft the judgment of the Chief Justice, but regret that I do not wholly agree with it. My point of departure is the construction which he (and the learned trial judge) place on the words “ meets the applicable criteria for assessing causation” in s.5AB (2)(b) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). I should have thought the meaning of the words fairly unambiguous ; “meets” means “satisfies”, “passes”, “complies with”. All words can be made to appear ambiguous if one makes sufficient effort, but the phrase “meets the criteria” must be surely at the top end of the scale of unambiguous expressions. Indeed, a measure of its clarity is the impossibility of understanding quite what meaning the trial judge ascribes to it.

If a person claims that he suffers an injury due to operational service, s.120(1) of the Act applies, and that sub-section is interpreted in the light of s.120(3), which in effect provides that he is entitled to his pension if there is a “reasonable hypothesis” of connection between the claimed injury and the relevant operational service.

If, on the other hand, he claims that he suffers an injury due to eligible war service, s.120(4) provides that the claim is to be upheld if that claim is proved to the Commission’s “reasonable satisfaction”. This is a balance-of-probabilities test.

It is against this background that one must consider the function and operation of Statements of Principle. In the case of a claim for an injury due to operational service, an hypothesis “is reasonable only if there is in force” a Statement of Principle of relevance: that is provided by s.120A(3). In the case of a claim for an injury due to eligible war service, the Commission can be reasonably satisfied that the injury was war-caused, if, relevantly, there is in force a Statement of Principle: that is provided by s.120B(3).

Thus, statements of Principle control decision making under s.120 of the Act. The Act requires those responsible for making Statements of Principle - that is, initially, the Repatriation Medical Authority (RMA), and, on review, the Specialist Medical Review Council (SMRC)- to make these statements in accordance with “sound medical-scientific evidence” (see s.196B(2) and (3) in respect of operational service and eligible war service respectively). And it is in the definition of that term in s.5AB(2) of the Act that the core of the present controversy lies.

Section 5AB(2) is in the following terms: Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if: (a) the information: (i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subject to a peer review process; or (ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and (b) in the case of information about how that kind of injury, disease or death may be caused-meets the applicable criteria for assessing causation currently applied in the field of epidemiology.

The trial judge spent much time in his judgment pointing out that s.5AB(2)(b) is not concerned with setting out scientifically established causes; his Honour rejects this proposition “that a causal link be demonstrated such that the principles of epidemiology would regard that link as established before such a factor is included in a statement of Principle” . But to state that is to state a proposition which nobody disputes, certainly not the SMRC nor the RMA, nor the appellant in the case. Nor is that what epidemiology is all about. His Honour does, however, go on to make a statement which the appellant does challenge: all that s.5AB(2)(b) does require for inclusion in a Statement of Principle is that it must have a value which “ is assessable under the criteria relevant to the potential or capacity of a factor”, in other words that information would only be excluded if it were “ incapable of being assessed for the potential of a factor to be caused by the applicable criteria for the assessment of causation as currently applied in field of epidemiology” .

Learned Senior Counsel for the appellant Commission Mr Hanks QC has made a number of telling criticisms of the trial judge’s reasoning on this issue, all of which I think should be upheld. The first is that it disregards the plain, and (be it stressed) unambiguous language of the paragraph. The paragraph is not expressed in obscure language. It simply requires one to identify the relevant criteria and then ask whether the relevant information meets those criteria (emphasis added), nor whether it is assessable by reference to those criteria (emphasis added). Secondly, it replaces a simple statutory test with an obtuse and impossible one: what information is incapable of being assessed by reference to the relevant criteria? Yet, however tortured the workings of Parliaments mind, it simply cannot have intended all the information in the world to turn up in a Statement of Principle. Thirdly, it misstates the relationship between s.196B and s.5AB: s.5AB is not to be read restrictively so as to comply with a generous interpretation of s.196B; rather, since s.196B depends on the concept of “sound medical-scientific evidence”, and that phrase is meaningless unless one goes to s.5AB, it is s.5AB which governs the interpretation of s.196B, and not the other way round. A statutory definition always governs sections of the Act in which the defined term is used. That is the function of a definition.

There are two other points which should, I think, be made. One is that I have been unable to discover, either in legislation or in literature, any use of the expressions “meet the tests”, “meet the criteria” or other cognate expressions in the sense contended for by the trial judge “capable of being assessed by the tests (or criteria)”. The other is that to give the words their ordinary meaning fulfils the evident purpose of s.5AB: to achieve some measure of objectivity, to eliminate scientifically unsustainable claims, and to remove purely medical and scientific matters from laymen (including lawyers) and place them where they belong, in the hands of skilled doctor and scientists.

The orders I should make are as follows: In the matter of CA No 40382/99 (SC. 30133 of 1996) : 1. Declare that the review made on 22 December 1995 by the Specialist Medical Review Council of Statement of Principle No 95 is void. 2.Otherwise appeal allowed. 3.The orders made below be set aside. 4.The summons below be dismissed. 5.The first respondent to pay one-half of the appellants costs of the appeal and one-half of the appellants’ costs of the proceedings below. In the matter CA No 40380 of 1999 (SC 30139 of 1996): 1. Appeal allowed. 2.Orders below be set aside. 3. Dismiss summons below. 4. The first respondent pay the appellant’s costs of the appeal and of the proceedings below, but to have a certificate under the Suitors’ Fund Act.

HANDLEY JA: In these appeals I have had the benefit of reading the reasons for judgment of the Chief Justice and Meagher JA. I agree with the reasons of the Chief Justice, and with the orders he has proposed, but will add additional reasons for my conclusion that the Special Medical Review Council (the Council) asked itself the wrong question and exceeded its jurisdiction when dealing with Statement of Principles 95, the topic dealt with by the Chief Justice in paragraphs 118-163 of his reasons. Smoking and prostate cancer

The Council reviewed the available studies and the reports including the 26 year follow-up study of US veterans which showed a positive association between smoking and prostate cancer although in the most recent analysis the relative risk was only 1.1 (AB75-6).

The Authority, and on review the Council, may make or direct a Statement of Principles (SOP) for the purposes of s 196B(2) in respect of operational service rendered by veterans etc, or for the purposes of s 196B(3) in respect of other service by veterans etc. In the former case an SOP must set out the factors which must as a minimum exist, and identify those which must be related to service “before it can be said that a reasonable hypothesis has been raised connecting” an injury, disease or death of a particular kind with the circumstances of that service. (emphasis supplied)

In the latter case an SOP must set out the factors which must exist and identify those which must be related to service “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. (emphasis supplied)

The Council were clearly entitled to find, on their assessment of the medical-scientific evidence referred to in their reasons, that it was not “more probable than not” that prostate cancer “can be related to” the types of service referred to in s 196B(3). In particular in my judgment the Council were entitled on their findings to conclude in terms of s 196W(5)(b) that the sound medical-scientific evidence was “insufficient to justify the making of a Statement of Principles” under s 196B(3). In fact they found that there was no such evidence (79) that justified an SOP under either s 196B(2) or (3).

The difficult issue arises in relation to their assessment of the medical-scientific evidence to determine, for the purposes of s 196B(2), whether such evidence “indicates that (prostate cancer) can be related to” operational service so that “a reasonable hypothesis” can be raised connecting that cancer with smoking.

The test of “can be related to” in s 196B(2) and the reasonable hypothesis could be limited, as a matter of construction, to those injuries or diseases which were known to have a number of established causes, eg lung cancer, which can be caused by smoking, or asbestosis etc. There being a number of known causes the Authority could find that each “can be related to” lung cancer so that a reasonable hypothesis is raised in a particular case of lung cancer, that its cause was eg exposure to asbestos in a ship’s engine room, or to smoking on operational service.

However that is not the correct construction of these provisions. A reasonable hypothesis for the purposes of s 196B(2) and other provisions of the Act can be raised where there is no known cause of the injury or disease. As the Chief Justice has shown, the decisions in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 established that a reasonable hypothesis could exist so long as it was not contrary to proved scientific facts or to the known phenomenon of nature, and was not obviously fanciful, impossible, incredible, not tenable, too remote or too tenuous. An hypothesis may be reasonable even if an association between the injury or disease and the service is not demonstrated, is uncommon, has not been proved, or has little support in the medical profession or among scientists.

The extracts from the Explanatory Memorandum and the Second Reading speech for the amending legislation quoted by the Chief Justice establish that the promoters of the legislation did not intend to restrict the factors allowed in SOPs for the purposes of s 196B(2) to those supported by “mainstream medical opinion”. Other factors would be allowed if they had “a sound medical or scientific basis”.

When assessing the medical-scientific evidence for a link between smoking and lung cancer against the Bradford Hill criteria, the Council said that the strength of association criterion had not been met because a weak association had been found in only a few studies, which could be accounted for by other factors (emphasis supplied). As I read their reasons the Council found that this criterion was not satisfied because an alternative hypothesis was available which could explain the positive findings. However the existence of one reasonable hypothesis to explain the data showing a positive association cannot establish that every other hypothesis is unreasonable.

The Council should have asked themselves whether the evidence justified a reasonable hypothesis supporting a causal link. By asking themselves whether there was an alternative hypothesis inconsistent with a causal link and treating the existence of such an hypothesis as determinative the Council asked themselves the wrong question and undertook a task other than that assigned to them by the Parliament.

The Council said that the dose response relationships were “inconsistent or weak” and the results could be accounted for by confounding. Once again the Council relied on the existence of an alternative hypothesis to find that there was no dose response effect “of any significance”. Again in my judgment the Council asked themselves the wrong question and undertook a task other than that assigned to them by the Parliament.

Since no association had been found in a substantial number of studies, and a positive association in only a few, the Council concluded that there was no sufficient consistency. I can discern no legal error in this conclusion. On the last of the criteria, the coherence of the evidence, the Council said: “Overall, the evidence of an association between smoking and prostate cancer is weak and inconsistent, being largely restricted to one or two studies in North America that, in the investigators’ own opinions, are only tentatively findings. The inconsistency of the studies, together with the failure to satisfy other epidemiological criteria, means that there is not a coherent synthesis supporting the proposition”.

The fact that in the studies where a positive association was found the investigators’ conclusions were only tentative cannot exclude a reasonable hypothesis in accordance with those conclusions, and the Council again asked themselves the wrong question. While the finding based on the inconsistency of the studies is not legally flawed, the findings that other epidemiological criteria were not satisfied were legally flawed, as I have attempted to demonstrate. Their final conclusion that there was no “coherent synthesis supporting the proposition” was also legally flawed in the context of s 196B(2). The question the Council had to decide in that context was whether there was a coherent synthesis which excluded a reasonable hypothesis of a causal link.

The Council stated in their formal conclusion that there was no sound medical-scientific evidence that justifies the inclusion of cigarette smoking as a factor in an SOP concerning prostate cancer. In my judgment this finding is invalid and in excess of jurisdiction as a result of the errors of law I have previously identified, but only in relation to an SOP for the purposes of s 196B(2). But for those errors of law the Council may have found that another three of the criteria were satisfied, perhaps only just satisfied, and may have concluded that overall there was sufficient compliance with the criteria to make the hypothesis of a causal link between smoking and lung cancer a reasonable one.

On the other hand the Council’s finding supports its decision under s 196W(5)(a) that there was no sound medical-scientific evidence that an amendment justified the Statement of Principles for prostate cancer to include a statement that it is more probable than not that it can be related to smoking for the purposes of s 196B(3). Herbicides and prostate cancer

The Council in their reasons reviewed the available studies and the reports on those studies including MacLennan & Smith (post 1993) “Veterans and Agent Orange - Health Effects of Herbicides used in Vietnam”, Blair et al (1992), and Morrison et al both on farmers and prostate cancer mortality. MacLennan & Smith concluded that the studies on farmers and those in related occupations and the study of mortality in Vietnam veterans did not provide sufficient evidence of statistical association “hence prostate cancer should be included in the inadequate/insufficient category”. Morrison concluded: “Study findings of an association between herbicides and prostate cancer should be considered tentative because of the relatively low increases in risk and because an association has not been noted previously. However the cohort design obviates recall bias concerns. The positive association between herbicides and prostate cancer is not likely to have resulted from the types of biases to which a study of this nature is vulnerable”.

The Council added: “… it can be seen that the evidence of an association between herbicides and prostate cancer is scanty indeed. The researchers acknowledge significant problems with accepting the results of their studies. They acknowledge that there have been very few studies conducted in relation to the issue, and that they are inconsistent. The Morrison study appears to be the only one of any substance that has shown a positive association, and then only for the highest level of exposure by farmers”.

When assessing the medical-scientific evidence, the Council considered the strength of association criterion and noted the tentative conclusion of Morrison and the existence of possible confounding factors and continued: “In light of these difficulties and the weakness of the association, there cannot be said to be sufficient strength of association in relation to herbicides and prostate cancer to satisfy this criterion"”

The tentative nature of the findings, and the hypothesis that the positive results are due to confounding factors, cannot exclude as unreasonable the hypothesis of a causal link between exposure to herbicides and prostate cancer. When considering the dose response effect the Council said that the Morrison study had found a statistically significant dose response but it was only one study and cannot be given much weight and on its own did not meet this criterion. These reasons demonstrate that on this criterion the causal link failed the balance of probabilities test, but they do not establish that the hypothesis that there is such a link is unreasonable. Indeed that was the hypothesis of Morrison.

On the consistency of findings criterion, the Council said that the Morrison study was the first of sufficient size to be of any relevance, and that the previous studies had been few and smaller and as a result “there is insufficient information on which to find that this study is consistent with other studies dealing with the same suggested association”. However since there are no inconsistent studies of comparable size, a hypothesis based on the Morrison study cannot be said to be unreasonable when tested against this criterion.

There was no information before the Authority which indicated a mechanism by which prostate cancer might arise from herbicides, but there was no information which excluded any such mechanism either.

In dealing with the coherence of the evidence, the Council noted that Thune & Lund, which established a negative correlation between physical activity and prostate cancer, “might” add to the Blair study on farmers, “but it cannot be said to particularly add to the coherence of the suggested herbicide association”. They also referred to the alternative hypothesis of confounding which “makes it difficult to achieve a coherent synthesis supporting the proposition”. This reasoning demonstrates that a finding of a causal association has not been shown to be more probable than not, but it fails to establish that the hypothesis that such an association exists is unreasonable.

The Council’s ultimate conclusion on this question was expressed as follows: “… there was insufficient information available to the … Authority for it to have included in the statements of principles a factor relating to herbicides. This view is supported by the conclusion of MacLennan & Smith”.

In my judgment this finding, and earlier findings previously referred to, are invalid and in excess of jurisdiction as a result of the errors of law I have previously identified, but only insofar as the Council was reviewing the decision of the Authority to include exposure to herbicides in SOP 95 dealing with prostate cancer under s 196W(5)(b) for the purposes of s 196B(2) (“reasonable hypothesis”). The Council’s findings and reasons amply support its decision under s 196W(5)(a) in respect of SOP 96 for the purposes of s 196B(3).

The orders proposed by the Chief Justice should be made.