VeRBosity Volume 18 No. 4
October December 2002
Federal Court of Australia
Haskard (resp) 104
Thomas (resp) 108
Johnson v VRB 114
Hendy (resp) 115
VVAA v SMRC 117
Statements of Principles 120
This edition of VeRBosity contains reports on 12 Federal Court decisions relating to veterans’ matters handed down in the period from October to December 2002. There are also reports on a decision of the Federal Magistrates Court and on selected AAT decisions.
Information is also included about Statements of Principles issued recently by the Repatriation Medical Authority and matters currently under formal investigation.
The Clarke Report into Veterans’ Entitlements has been released and is available on the Internet at:
Members and friends of the Veterans’ Review Board were saddened to hear of the death of Major General Ross Buchan AO on 7 February 2003. Ross was a Services Member of the VRB based in Sydney from late 1991 to 1994. He had served with the Australian Army Training Team in Vietnam from 1966 to 1967 and was mentioned in despatches. He brought broad experience of the military to his work on the VRB and is remembered with warmth and affection.
Media Release by the Hon Danna Vale, Minister for Veterans’ Affairs
18 December 2002
VIETNAM WATER CONTAMINATION STUDY RELEASED
The Federal Government will ask the Repatriation Medical Authority to review its principles for veteran compensation claims for exposure to dioxins, after a study found that Royal Australian Navy and some Australian Army personnel serving in Vietnam may have been exposed to dioxins through contaminated drinking water.
The Minister for Veterans’ Affairs and Minister Assisting the Minister for Defence, Danna Vale, said she had also asked the Department of Veterans’ Affairs to undertake further research into the study findings, using the results in the current Vietnam Veterans Mortality and Cancer Incidence Study.
“The Government commissioned the study in response to concerns from Navy veterans following the 1997 Vietnam Veterans Mortality Study, which showed an elevated mortality rate among RAN personnel, particularly RAN Logistic Support personnel,” the Minister said.
“Herbicide exposure through the evaporative water distillation processes used on ships while in Vietnamese waters was identified as one potential cause. Tests by the National Research Centre on Environmental Toxicology have now shown that dioxins can pass through the evaporative distillation process.
“If contaminated water were used in this process, the study indicates it is likely that the consumption of drinking water exposed personnel to dioxin levels that exceeded safe levels proposed by the National Health and Medical Research Council.
“This is a matter of concern to the Government in fulfilling our commitment to care for those who served during the Vietnam War. It potentially affects not only Navy veterans but those who served on Army small ships or travelled as passengers from Vietnam on HMAS Sydney.”
Minister Vale said she had received the assurance of the Chief of Navy, Vice Admiral Chris Ritchie, that it was unlikely that the problems that may have been experienced in Vietnam would occur now.
“The majority of RAN ships are now fitted with alternative desalination units and, in any case, current operating procedures require that, under ordinary circumstances, production of water for domestic use is not to be undertaken in estuaries, or in seawater which is likely to be contaminated.”
Navy continues to refine its potable water standards and to assess the effectiveness of its desalination equipment.
Minister Vale said all Australians who served in Vietnam were already entitled to treatment and compensation for war-caused conditions related to exposure to dioxins. She encouraged veterans who believed they might need assistance for such conditions to contact the Department of Veterans’ Affairs on 133 254.
”These results may have implications for the Statements of Principles that govern determination of the links between wartime service and these conditions,” Minister Vale said.
“I have asked that the study findings be referred to the independent Repatriation Medical Authority to consider whether any changes are necessary to these Principles,” Minister Vale said.
“The findings will be taken into account in the latest mortality study of Vietnam veterans, which is also investigating rates of cancer among Australians who served in Vietnam.
“Health research is a vital part of meeting the health care needs of our veterans. Considerable effort has gone into researching the health of Vietnam veterans in particular and these findings add significantly to the scientific knowledge available to help provide the support they need.
“This research has always been conducted with strong support from the veteran community and I would like to express my appreciation to the many Vietnam veterans who assisted this study,” the Minister said.
“The findings of the study are available on the Department of Veterans’ Affairs website at www.dva.gov.au.”
Extract from Media Release by the Attorney-General, the Hon Daryl Williams AM QC MP
6 February 2003
IMPROVING THE FEDERAL MERITS REVIEW TRIBUNAL SYSTEM
The Attorney-General has announced that the Government remains committed to improving the federal merits review tribunal system. In 2000, the Government introduced the Administrative Review Tribunal Bill, which would have replaced the Administrative Appeals Tribunal, the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal with a single, independent tribunal. In light of opposition in the Senate, the Government will not seek to introduce the Administrative Review Tribunal legislation in the current Parliament. However, the Government remains convinced that amalgamation of the tribunals will provide real benefits for people seeking administrative review of government decisions and will investigate options for amalgamation in the future.
The Attorney-General said:
“In the interim, we will undertake sensible reform of the existing tribunals on an individual basis. As a starting point, I propose to reform the Administrative Appeals Tribunal (AAT). While details of the amendments are being settled, areas of amendment could include procedures of the tribunal, constitutional requirements and allowing greater use of ordinary members.
The AAT performs an important role in the Government's commitment to provide a fairer and more effective merits review system that strives to deliver administrative justice to individuals and a high standard of government decision-making. The AAT must be able to deliver informal, fast and fair merits review, unfettered by costly and legalistic procedures.
The Government's reforms are aimed at enabling the AAT to flexibly manage its workload and to ensure that reviews are conducted as efficiently as possible.”
[Ed: Media releases are reproduced for general public information. Any opinions or commentary in the above material are not necessarily those of the Veterans’ Review Board.]
Administrative Appeals Tribunal
Re H Fairweather and Repatriation Commission
 AATA 916
11 October 2002
Whether death war-caused – clinical onset of ischaemic heart disease – cigarette smoking
Mrs Fairweather applied to the Tribunal for review of a decision that the death of her husband was not related to his war service. He had served in the Pacific theatre during World War 2 and this constituted operational service in terms of the VE Act.
The veteran’s death certificate indicated that he died of systemic amyloidosis, renal failure, cardiac failure and peritonitis. Amyloidosis is a disorder that results from the abnormal deposition of amyloid protein in various tissues and organs of the body which can result in abnormal functioning of the organs. The most commonly affected organs are the heart, kidneys, nervous system and gastro-intestinal tract. Amyloidosis was diagnosed in 1996 and he died in 1997.
Mrs Fairweather submitted that her husband’s death may have been due to ischaemic heart disease (IHD) that could be related to a war-caused smoking habit. She met her husband in 1947 and gave evidence that he had commenced smoking during his service. He continued to smoke at work until ceasing in 1984 and began to experience breathlessness in about 1989.
Mrs Fairweather sought to rely on factors 5(e) and (h) of the Statement of Principles (No 38 of 1999) which relate to smoking one to five pack years of cigarettes within five years of clinical onset of ischaemic heart disease or five to 20 pack years within 15 years of clinical onset, or inability to undertake physical activity for at least the five years immediately before clinical onset.