Specialist Medical Review Council
Reasons for Decision
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This matter is the first review conducted by the Specialist Medical Review Council of the legislative decision-making of the Repatriation Medical Authority, and as such, the Council considers that it is appropriate to set out in some detail in these reasons a number of matters relating to the conduct of this review as well as some matters of general application that may be of assistance to persons or organisations seeking review by the Council in the future.
Events giving rise to the review
On 8 March 1995, the Repatriation Medical Authority, under subsections 196B(2) and (3) of the Veterans' Entitlements Act 1986 (the Act), determined Statements of Principles, instruments Nos. 95 and 96, respectively, of 1995. Those Statements of Principles each concerned malignant neoplasm (ie, cancer) of the prostate and death from malignant neoplasm of the prostate.
In accordance with section 196D of the Act and sections 46A and 48 of the Acts Interpretation Act 1901, on 9 March 1995 those Statements of Principles were tabled in both the House of Representatives and the Senate (House of Representatives 1994, Debates, vol. HR200, p.2047, Senate 1994, Debates, vol.S170, p.1721), and on 15 March 1995 the making of those instruments was notified in the Gazette (No.GN 10, 15 March 1995, p.876).
On 22 May 1995, a request (No.95/1A) was made under section 196Y of the Act by the Australian Veterans And Defence Services Council (AVADSC) for a review of the contents of instruments numbers 95 and 96 of 1995.
On 25 May 1995, a request (No.95/1B) was made under section 196Y of the Act by the Vietnam Veterans Association of Australia (NSW Branch) (VVAA (NSW)) for a review of the contents of instrument number 95 of 1995.
On 5 July 1995, in accordance with section 196ZB of the Act, the Council published a notice in the Gazette (No.GN 26, 5 July 1995, p.2661) stating that it intended to carry out a review of the information available to the Repatriation Medical Authority about malignant neoplasm of the prostate and death from malignant neoplasm of the prostate, and inviting persons or organisations authorised under subsection 196ZA(1) of the Act to do so to make written submissions to the Council.
Subsection 196W(3) of the Act provides that the Council may carry out a review only if the period within which the Statement of Principles may be disallowed under section 48 of the Acts Interpretation Act 1901 has ended and the Statement of Principles has not been disallowed. The disallowance period ended upon the expiration of 7 July 1995, this being the 15th sitting day after the tabling of those Statements of Principles in the House of Representatives. The 15th sitting day after the tabling of those Statements of Principles in the Senate had expired on 1 July 1995. Neither of the Statements of Principles was disallowed.
Submissions
The Gazette notice published on 5 July 1995 specified 31 August 1995 as the closing date for written submissions to be received by the Council.
Written submissions were received from AVADSC, VVAA (NSW), the Returned and Services League, the Naval Association of Australia, and the Repatriation Commission.
On 10 July 1995, the Council advised the Repatriation Medical Authority that the Council had been asked to review Statements of Principles No.95 and 96 of 1995.
On 20 July 1995, the Repatriation Medical Authority provided to the Council, under section 196K of the Act, all the information that was available to it when it determined Statements of Principles No.95 and 96 of 1995. A list of the material comprising that information is set out in an Appendix to these Reasons.
A copy of that material was then provided, by the Council, to each of the persons and organisations that made written submissions to the Council. The Council then invited those persons and organisations to make supplementary submissions addressing the material that was available to the Repatriation Medical Authority.
In response to that invitation, AVADSC made a supplementary written submission, VVAA (NSW) made an amendment to their original written submission, and the Repatriation Commission made a supplementary written submission. No further written submissions were received from the Returned and Services League or the Naval Association of Australia.
On 7 November 1995, the Council held a meeting in relation to this review for the purpose of hearing oral submissions. At that meeting, AVADSC was represented by Mr Peter Alexander, VVAA (NSW) was represented by Mr Tim McCombe, the Naval Association of Australia was represented by Commander James Fahey, and the Repatriation Commission was represented by Dr Keith Horsley. The Returned and Services League had advised the Council that it would not be making oral submissions. However, the National President of the Returned and Services League was present, as an observer, at the meeting.