Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Use and effects of chemical agents on Australian personnel in Vietnam - Royal Commission (Hon. Mr Justice P. Evatt) - Final report, dated 31 July 1985 - Report - Volume 6 - Mortality, class action VAA and section 47


Download PDF Download PDF

The Parliament of the Commonwealth of Australia

ROYAL COM M ISSION ON THE USE A N D EFFECTS OF CHEMICAL AGENTS ON

A U STR A LIA N PERSONNEL IN VIETNAM

Commissioner: The Hon. Mr Justice P. Evatt, D SC , LLB

Final Report—July 1985

Volume 6: Mortality, Class Action VVAA and Section 47

Presented 22 August 1985 Ordered to be printed 19 September 1985

Parliamentary Paper No. 293/1985

H's1 ■ * * & » !

*

ROYAL COMMISSION ON THE USE AND EFFECTS OF CHEMICAL AGENTS ON AUSTRALIAN PERSONNEL IN VIETNAM

Commissioner: The Hon. Mr Justice Phillip Evatt DSC, LLB.

A Judge of the Federal Court of Australia

FINAL REPORT

July 1985

VOLUME 6

Australian Government Publishing Service Canberra 1985

© Commonwealth of Australia 1985

ISBN 0 644 04339 3 Set of Volumes ISBN 0 644 04345 8 Report Volume Six

Printed by Canberra Publishing and Printing Co., Fyshwick, A.C.T.

ROYAL COMMISSION ON THE USE AND EFFECTS OF CH EM ICA L A G EN TS ON AUSTRALIAN PERSONNFI IN VIETNAM -H, AUSTRALIA ,/t-

Commissioner: The Hon. Mr Justice Phillip Evatt DSC

G.P O. Box 4842 Sydney, N.S.W. 2001 Telephone: (02) 23V 6222

Your Excellency,

Secretary: Mr B.D. Meade

31 July 1985

In accordance with Letters Patent issued to me on 13 May 1983, 27 June 1984, 3 August 1984 and 23 April 1985, I have the honour to present to you the Final Report of my inquiry.

I believe that the Report complies with those Letters Patent and that my task is therefore completed.

Yours sincerely

JUSTICE PHILLIP EVATT Royal Commissioner

His Excellency the Right Honourable Sir Ninian Stephen, A.K., G.C.M.G., G.C.V.O., K.B.E. Governor-General and Commander-in-chief Government House

CANBERRA A.C.T. 2600

TABLE OF CONTENTS

VOLUME 6

CHAPTER X

MORTALITY

1. INTRODUCTION 1

2. ALLEGATIONS 1

3. W A A MORTALITY RECORDS 8

4. DEPARTMENT OF VETERANS' AFFAIRS RECORDS 18

5. ANALYSIS OF MORTALITY RECORDS 26

6. AVHS MORTALITY REPORT 34

7. OTHER MORTALITY STUDIES 72

7.1 Studies of Exposed Workers 73

Hogstedt and Westerlund 73

Axelson and Sundell 76

Riihimaki and Hernberg 79

Zack and Suskind 81

Theiss et al 82

Ott et al 84

Cook et al 86

Jirasek et al 87

Summary 88

7.2 Australian Regional Studies 91

MacLennan et al 91

McCabe et al 92

Victorian Agricultural Workers 94 7.3 U.S. Vietnam Veteran Mortality 95

Lawrence et al 95

Ranch Hand Mortality Study 97

Kogan et al 100

8. HEALTHY-WORKER EFFECT 101

9. STUDIES OF MORTALITY IN VETERANS OF OTHER WARS 104 10. INTERPRETATION OF NEGATIVE RESULTS 111

11. INFERENCE OF CAUSATION 115

12. CONCLUSIONS 117

ENDNOTES 123

APPENDIX I 127

V

CHAPTER XI

CLASS ACTION

I. INTRODUCTION 1

2 . EARLY CONCERNS 3

3. PRE-TRIAL HISTORY 4

4. PLAINTIFFS' ALLEGATIONS 13

5. DEFENDANTS' ANSWERS 18

6. ISSUES FOR TRIAL 19

7. PROBLEMS OF PROOF 21

8. THE CASE AGAINST THE GOVERNMENT 33

9. SETTLEMENT 36

10. FAIRNESS HEARINGS 39

II. DISTRIBUTION PLANS 46

12. ORDER AND JUDGMENT ON DISTRIBUTION 54

ENDNOTES 62

Vi

CHAPTER XII

STATUS OF W A A AND RELEVANT MATTERS

1. STATUS OF W A A 1

2. W A A 1 s SUBMISSIONS 18

3. THE ROLE OF JOHN EVANS 21

4. DISSENSIONS AMONG VIETNAM VETERANS 30

4.1 Re Relations Between RSL and W A A 31

4.2 Re Internal Dissension 40

4.3 Re Epidemiological Studies September 1981 57

5. CONCLUSION 65

ENDNOTES 67

CHAPTER XIII

INTERIM REPORT AND S.47

vii

TABLE OF CONTENTS - REPORT

VOLUME 1 - INTRODUCTION and EXPOSURE

I II III IV

Prologue

Introduction Standard of Proof Ascertainment of Claims Exposure

VOLUME 2 - TOXICOLOGY and GENERAL HEALTH

V VI

Toxicology and Safe Doses Health Effects General

VOLUME 3 - BIRTH ANOMALIES

VII Health Effects, Reproductive Outcomes and Birth Anomalies

VOLUME 4 - CANCER

VI 11 Health Effects. Cancer

VOLUME 5 - MENTAL WELL-BEING

IX Health Effects. Mental

VOLUME 6 - MORTALITY CLASS ACTION W A A and SECTION 47

X Mortality XI Class Action XII XIII

Status of W A A Interim Report and S .47

VOLUME 7 - BENEFITS and TREATMENT

XIV Benefits and Treatment

VOLUME 8 - CONCLUSIONS. RECOMMENDATIONS and EPILOGUE

XV Conclusions and Recommendations Epilogue

VOLUME 9 - EXHIBIT LISTS AND BIBLIOGRAPHY

viii

CHAPTER X

MORTALITY

"Every violation of truth is not only a sort of suicide in the liar. but is a stab at the health of human society."

Emerson "Prudence"

Essays: First Series (1841)

H CN m

CHAPTER X

MORTALITY

5 . 6 .

7 .

INTRODUCTION ALLEGATIONS W A A MORTALITY RECORDS DEPARTMENT OF VETERANS’ AFFAIRS RECORDS

ANALYSIS OF MORTALITY RECORDS AVHS MORTALITY REPORT OTHER MORTALITY STUDIES 7.1 Studies of Exposed Workers

Hogstedt and Westerlund Axelson and Sundell Riihimaki and Hernberg Zack and Suskind

Theiss et al Ott et al

Cook et al Jirasek et al Summary

7.2 Australian Regional Studies MacLennan et al McCabe et al Victorian Agricultural Workers 7.3 U.S. Vietnam Veteran Mortality

Lawrence et al Ranch Hand Mortality Study Kogan et al

8. HEALTHY-WORKER EFFECT 9. STUDIES OF MORTALITY IN VETERANS OF OTHER WARS 10. INTERPRETATION OF NEGATIVE RESULTS 11. INFERENCE OF CAUSATION

12. CONCLUSIONS ENDNOTES APPENDIX I

1 1 8

18 26 34 72 73 73 76

79 81 82 84

86 87 88 91

9 1 92 94 95

95 97 100 101 104 111 115 117 123 127

CHAPTER X

MORTALITY

1. INTRODUCTION

Throughout the Mortality hearings, every effort was made

not to refer to a deceased veteran by name out of respect

for privacy of the relatives of such serviceman and a

desire to avoid causing any further distress to those

relatives. For similar reasons, in this chapter of the

Report, reference to individual servicemen has been kept

to a minimum. Where reference has been necessary, the

case number which is a number assigned by DVA to deceased

servicemen has been used. A list by case number was

exhibited.1

2. ALLEGATIONS

Suggestions that Vietnam veterans have been and are

experiencing excessive rates of mortality have been

widespread since 1980. In particular, suicide and cancer

have been the subject of many claims. The Commission

examined these allegations in the course of its

X-l

investigations and formal hearings on this topic were held

in the week commencing 26 November 1984.

Specific submissions on the topic of mortality were not

reguired of the parties, viz Monsanto Australia Ltd. and

the Vietnam Veterans' Association of Australia (WAA),

prior to these hearings. Both parties were given the

opportunity to suggest or call witnesses on this topic;

neither sought to do so. However, page 62 of a

2

submission lodged on behalf of W A A in November 1983

dealt with the topic of mortality as follows:

The WAA's submission is that

(a) substantially more than the statistical expectation of deaths have occurred in Vietnam veterans group; (b) Of these deaths the suicide rate is very

much higher than the expectation in the population at large or in any comparable group. The suicide rate is linked to the psychological and brain damage effects of the chemicals. (c) Cancers are unduly prevalent in the causes

of death, in particular rare forms of cancer are manifest. (d) Death from heart attacks are also prevalent in a group which was in excellent health at

the t ime of going to Vietnam.

A number of quotations and press clippings, which did not

purport to be exhaustive, were tendered by Counsel

Assisting 3 They serve as typical illustrations of the

X-2

nature and extent of the concern that has been expressed

to have existed in this area. Quoting only relevant

portions:

[W]ord of mouth tells us that suicide rate is incredibly high - Dux and Young's "Agent Orange - The Bitter Harvest", Sydney, Hodder and

Stoughton, 1980 at p 146 guoting Holt McMinn of the WAA.

The suicide rate among Vietnam veterans is

disproportionately high... - Ballarat News (Vic.) 14.5.80.

The president of the NSW Vietnam Veterans' Action Association, Phil Thompson, says there is a high rate of divorce, suicide, alcohol abuse, violence and depression among veterans. - Sunday Telegraph

(NSW) 24.8.80.

... and thus then the tide of the increasing

suicide rate - letter from John Riters of MacLeod seeking money to help Vietnam veterans - The Age (Vic) 2.1.81.

They (Vietnam veterans) also alleged a high suicide rate. An estimated 470 Australians are alleged to have committed suicide since returning from Vietnam - Daily Telegraph (NSW) 5.1.81.

They (Vietnam veterans) also allege a high

suicide rate, and ex-serviceman suggested that as many as 470 Australians had killed themselves since returning from Vietnam - The Australian 5.1.81.

Four hundred and seventy Australian Vietnam war veterans have committed suicide since discharge - statistically more than 100 times the national suicide rate.

The figure - leaked to the Truth this week from a government department - has been confirmed by a veterans' aid group.

X-3

The Australian Vietnam Veterans' Action

Association claimed the suicides were caused by contact with Agent Orange herbicide in Vietnam.

Details of the 470 suicides were leaked this week as Federal Veterans' Affairs minister Senator Anthony Messner, announced new plans to help Australia's 45,000 Vietnam veterans.

Truth put the figure of 470 deaths to Holt

McMinn, national president of the WAA.

He said 'I would certainly regard that as a

feasible figure. It ties in with my information, although I have never been able to get official confirmation.

The figure could actually be higher. There is no doubt that there are many other veterans on the brink of suicide, so it's going to increase. 1 - Melbourne Truth (Vic) 17.1.81.

Mr Lonnie said it had been established that more than 470 Australian Vietnam veterans had

committed suicide since their return from

service. - Daily News (WA) 19.1.81.

The Vietnam Veterans' Association, a national body, claims Vietnam Diggers are suiciding at an alarming rate. It claims that more than 1 per cent of the 41,000 who went to Vietnam have done away with themselves since coming home. - The Advertiser (SA) 31.1.81.

Our article on the late Mr Rex Voltz (The

Australian 5/2) repeats the unsubstantiated claim that 470 Vietnam veterans have committed suicide since discharge. This figure does not tally with records held by the Department of Veterans' Affairs.

Our records could not be comprehensive without a study of all 45,000 veterans, but they give a clear indication that the figure of 470 is

exaggerated. It certainly did not come from any official source. - The Australian 11.2.81.

A Melbourne newspaper recently quoted a public service source as saying more than 470 veterans were known to have committed suicide in the last

X-4

ten years.... Merv Chambers, spokesman for WA

Veterans' Association, says he knows of at least 10 of the group's 300 members who have committed suicide.

That would be many times greater than normal', says Mr Chambers. 1 Do you know ten guys who1 ve tr ied to commit suicide?' - Sunday Independent (WA) 29.3.81.

More Vietnam veterans have committed suicide in the 10 years since the war ended than were killed in action, according to Federal Government statistics.

Statistics from a Department of Veterans' Affairs internal document revealed at the end of June 470 veterans throughout Australia committed suicide compared with the 424 killed in action. - West Australian (WA) 5.8.81.

A Melbourne doctor warned yesterday that summer weather would trigger more suicides by Vietnam war veterans.

Dr Malcolm Barr said diggers exposed to

defoliants during the war suffered severe

symptoms of depression which worsened in hot weather... - Melbourne Sun (Vic) 7.11.81.

Summer could trigger more suicides by Vietnam war veterans, a Melbourne doctor has warned... -

Sunday Telegraph (NSW) 8.11.81.

A notice to members requesting details of Vietnam veterans who have committed suicide in order that the W A A "can maintain an accurate register - "Debrief" (Journal of WAA) Dec 81/Jan 82 Issue.

At least six Vietnam veterans have committed suicide in the past four months - a rate more

than 180 times higher than the national

average... - The Australian 19.4.82.

'We know at least 40 veterans have died of rare cancers or suicided in the past seven months - and that figure is just scratching the surface,' Mr Thompson said. - Border Morning Mail 8.9.82.

X-5

Almost 20 per cent of deaths among Australia's Vietnam war veterans could be attributed to suicide, according to a report to be released next week.

The report also states that 28 per cent of the estimated 600 deaths among Vietnam ex-servicemen were a result of cancer.

Ten Vietnam veterans have committed suicide in the past year... - Daily Sun (Qld) 11.9.82.

The red ink entries in Bob Hannah's register of dead Vietnam veterans leap out at you like

spatters of blood. 'Suicide', they say. And occasionally, 'Murdered'.

On almost every page, among the conventional blue ink entries of cancer, leukemia and heart

attacks, there is at least one in red. Sometimes there are two or three, on one page there are

four.

Bob Hannah, the Queensland Welfare Officer for the Vietnam Veterans' Association, began the register only two months ago.

Already it suggests that more veterans have died since the Vietnam conflict ended than the 473 killed there but as yet no-one knows just how many. Welfare organisations have not bothered to compile follow-up statistics.

Bob and other Association workers have had to go to cemeteries and find the names and serial numbers of dead veterans and then carry out their own investigations to find out what happened to them.

'No-one else wants to know,' he said. ' The

Government, the RSL, the medical people, welfare workers, no-one is interested' - Brisbane Courier Mail (Qld) 16.9.82.

A Vietnam war veteran has compiled a register which indicates more Australian veterans have died since the war than the 473 killed in the war itself. - The Daily News (WA) 20.9.82.

X-6

The Federal Government has been asked to

investigate the cause of 17 suicides by Vietnam veterans in the past 12 months.

The Vietnam Veterans1 Association said yesterday it had recorded 17 suicides of Vietnam veterans but believed the total figure was more likely to be double this.. .

The National President of the Association. Mr Phil Thompson, said there was an urgent need for the Government to initiate medical research to find out the cause of the suicides.

Mr Thompson said the Association had been advised by the Department of Veterans' Affairs that the number of suicides expected for a group in the community of the size and age of Vietnam veterans

in the past 12 months was about 10. - The Age

(Vic) 6.1.83.

Articles in similar terms to the last article guoted above

also appeared in the Canberra Times and the Australian on

6 January 1983.

The Secretary of DVA, Mr Volker. wrote to the National

President of WAA, Mr Phill Thompson, on 16 August 1982.

It is apparent from the contents of that letter that the

Department was concerned that it could not reconcile

WAA's statements with information held by the

Department. The letter was accompanied by a number of

tables which purported to show the number of deaths from

suicide and cancer (malignant neoplasms) which could be

expected on the basis of data held by the Australian

Bureau of Statistics in respect of Australian males. It

X-7

is obvious that the claims being made in the press

exceeded those expected numbers as well as being greater

than the numbers known to DVA.

Mr Thompson replied to this letter on 30 August 1982. In

his letter, Mr Thompson queried the applicability of

population statistics to the Australian Vietnam Force due

to the selection processes which resulted in only healthy

servicemen going to Vietnam. Mr Thompson's letter also

criticised certain statistical studies and proposed a 4

meeting to discuss a number of matters.

3 . W A A MORTALITY RECORDS

In view of the fact that allegations were being made by

officers of W A A and in an effort to achieve some

reconciliation between W A A 1s records and those of DVA,

the Commission sought and obtained WAA's list or register 5

of deceased Vietnam veterans. The list was

hand-written and not well organised. There was also a lack of detail: some veterans were described only by

service number (e.g. "42511"), others by surname (eg.

"Smith") and many by nicknames (eg. "Shorty" "Dusty"). In

some instances, as will presently appear, veterans whose

names were included on WAA's mortality register were

X- 8

still alive I The Commission produced an alphabetical

list6 from the list supplied by WAA,

Newspaper articles, such as those referred to above,

disclosed the existence of registers maintained by members

of WAA. In each case efforts were made to obtain those

registers. In the case of the register kept by Bob

Hannah, which was the subject of several graphic

references in the Brisbane Courier Mail on 16 September

1982, Counsel Assisting spoke with Mr Hannah who indicated

that the list was compiled whilst he was President of the

Queensland Vietnam Veterans' Association, that this list

had been surrendered to his successor and he presumed that

it had been taken into account by the national body in

placing material before the Royal Commission.

Accordingly, although a summons was prepared, it was not

served nor was any further action taken.

Similarly, a register in respect of the mortality

experience of members of the Victorian Vietnam Veterans'

Association was said to have been compiled by Adrian

Bishop. When contacted by the Commission, Mr Bishop

indicated that that list had been supplied to Phi11

Thompson, National President of WAA. Mr Bishop also

presumed that his list had been taken into account in the

submission made by WAA.

X-9

Having obtained all the available details from VVAA. a 7

copy of the list prepared by the Commission was

forwarded to DVA in order that further identification

might be made, dates and causes of death obtained and to

enable the information to be analysed. This list

contained 865 entries: that number also represented the

number of entries contained in the material supplied to

the Commission by W A A . 8

DVA undertook not to make any use of the information

supplied other than to make an analysis and comparison of

the particulars therein with records held by DVA and the

Department of Defence.

Evidence of the results of the analysis was given by Robyn

King, Principal Research Officer in the Special Projects

Branch in DVA. Her evidence was given in a written

9

statement supplemented by oral evidence.

Ms King indicated the nature and extent of the work which

had been undertaken by DVA in respect of the list provided

to it by the Commission.10 The list was transcribed

onto a personal computer file to enable classification and

sorting of the information.

X-10

Attempts were made to match the details with the Nominal

Roll of Vietnam service provided by the Department of

Defence. Wherever a matching was possible, a

cross-reference to DVA1s client data base was made. The

details provided were analysed into nine separate

categories and a document listing members in each category

was provided to the Commission, becoming Exhibit 1751.

Category 1, which spannned pages 1-16 inclusive of Exhibit

1751 contained an alphabetical list compiled from the list

provided to DVA by the Commission. Accordingly, that

category disclosed 865 records.

Category 2, page 17 of Exhibit 1751, contained 32

instances where the details supplied (originally from

W A A ) were able to be matched with records on DVA1 s

computer file and for whom there was no notification of

death. The headings on this list were:

Match Status - shown as "ALIVE" in each case;

Service Number, Surname and Given Name as supplied originally by the WAA;

Service Number, Surname and Given Name as supplied by the Department;

X-ll

File Number - being the Departmental file number with the first initial indicating State. (e.g. N = New South Wales);

Pension Status - from the Departmental records. showing type and level of pension.

Of these 32, the majority (21) were currently receiving

pensions. Of the 32. 24 appeared on the November 1984

Electoral Roll _ Ms King also gave evidence that, of the

remaining 8, she was sure that at least one was alive: she

had spoken to him on the telephone on the previous Friday.

Before drawing any conclusions on this aspect the

Commission wrote to Counsel for W A A on 12 November 1984

(two full weeks prior to the commencement of the Mortality

hearings) seeking clarification. To date, no reply has

been forthcoming reflecting either a lack of organisation

or courtesy, or both.

The Commission is satisfied that 25 of the 32 so listed

were in fact alive at that time and for the purpose of

analysis it is proposed to assume, in the absence of any

indication to the contrary, that all 32 are alive.

Category 3, pages 18-23 of Exhibit 1751, contains 317

cases where a matching by both service number and surname

had been achieved. This enabled the date of death, cause

X-12

of death and whether the deceased was a National

Serviceman or not to be extracted from DVA1s records. The

headings of this list were:

Match Status - described as "COMPLETE";

Service Number. Surname and Given Names as supplied originally from WAA;

Date of Death;

The Edition or Revision Number of the International Classification of Diseases used to obtain the cause of death code;

The Cause of Death Code by reference to the

International Classification of Diseases;

Whether the Deceased had been a National Serviceman (Y=Yes; N=No);

Remarks - the words "ON SERVICE, VIETNAM" indicate that the death occurred during service in Vietnam.

Category 4. pages 24-26 of Exhibit 1751, revealed 144

instances where only some matching has been possible. In

some instances either service number or surname was

matched. The remaining entries represent a situation

where some minor discrepancy existed between the

information derived form the W A A and the Department's

records. The Match Status is described in the list as

"PARTIAL" and the remaining details contained in the list

are service number, surname and given name (from WAA);

the same details from the Department's records; date of

death; cause of death information; National Service

X - 13

indicator and remarks, all of which have been previously

defined or described.

Category 5, pages 27 and 28 of Exhibit 1751, disclosed 97

entries which, although not matching with DVA1s records,

were matched with the Nominal Roll provided by the

Department of Defence. This category would obviously

include servicemen who had not made any claim with DVA for

treatment or a pension. The list of entries showed the

Match Status; service number. surname and given names both

from WAA-supplied information and the Department's

records; date of death; cause of death information and

National Service indicator.

Category 6, pages 29-30 of Exhibit 1751, indicates

veterans whose names appear on the Nominal Roll as having

served in Vietnam, but who are not known to have made any

claim against DVA and about whom the Department had no

information concerning their vital status (ie. whether

they are dead or alive).

In order to correctly classify these servicemen more

information, such as date of death and cause of death, was

required. Mr Mclnnes QC, Senior Counsel for WAA,

indicated during the hearings that further efforts in this

X - 14

regard would be made.1' 1 ' However, no reply has been

forthcoming to date. The listing of these entries

describes the Match Status as "W R D B " . an abbreviation of

Vietnam Veterans' Registration Data Base (i.e. the Nominal

Roll), and provides service number. surname and given

names: firstly as obtained from WAA; secondly as obtained

from the Department of Defence.

Category 7, pages 31-33 of Exhibit 1751 contained a total

of 136 entries reflecting veterans for whom there was no

record of service in Vietnam on the Nominal Roll. Checking

fourteen such entries (i.e. 10 per cent of the total

number of 136), randomly chosen, with the Central Army

Records Office (CARO) revealed that, according to CARO,

all 14 had served in the Army but not in Vietnam. This

category of 136 entries was subdivided into three groups:

(a) 51 who were known to DVA;

(b) 12 for whom there were several possible matches with

DVA1s clients (i.e. veterans, wives or dependents who

claim with DVA); and

(c) 73 for whom there was no match possible with DVA1 s

records.

X-15

One possible explanation for the entries within this

category of 136 would be servicemen, whose names were

included on W A A 1s list, but who did not in fact serve in

Vietnam. Another possible explanation is that a

serviceman might be incorrectly omitted from the Nominal

Roll.

Match Status was shown as "NIL" and details provided on

this list were service number, surname and given names (as

supplied from W A A and from DVA1s records); file number;

date of death (if available) and service areas (eg. 'WW2',

1 Malaya 1, 1 Korea 1, 'Borneo').

Category 8, pages 34 and 35 of Exhibit 1751, listed 49

occasions where the information, originally provided by

WAA, did not enable a unique match to be found ie. there

was a multiple occurrence on the Nominal Roll of the name

information provided by WAA. Examples of this include

common surnames (eg. 'Smith') and surnames together with

nicknames (eg. 'Swampy','Buzz','Dusty‘ and 'Dadda').

Consequently no matching with records of the DVA was

possible. The listing of this category indicated the

Match Status as "MULTIPLE" and the only other information

provided was the surname and given names as supplied

originally by WAA.

X-16

Category 9 included 19 records each representing a

duplication of information supplied by WAA. The listing

for this group described the Match Status as "DUPLICATE"

and provided the service number, surname and given name as

originally supplied by WAA. As indicated earlier, a

letter was forwarded to Counsel for W A A seeking

confirmation that the entries were in fact duplicates but,

to date, no reply has been received.

The following table represents a summary of the various

categories dealt with above:

TABLE 1

12

Description Category

(A) Believed Deceased Department of Veterans' Affairs Complete Match 3

. Partial Match 4

No of

Cases

317 144

Department of Defence Records Nominal Roll Match 5 97

558

(B) More Information Required Vital Status Unknown 6 71

Multiple Matching Possible 8 49

120

(C) Believed Capable of Exclusion Believed to be Alive 2

Believed not to be veterans of Vietnam Conflict 7

Duplication of Information 9

32

136 19 187 865

X-17

Thus, on the basis of information provided by WAA. and in

the absence of further information, it is assumed that the

number of Vietnam veterans shown on the list provided by

W A A who are in fact deceased is between 558 and 678 (i.e.

865-187 or 558+120).

4. DEPARTMENT OF VETERANS' AFFAIRS RECORDS

Records of DVA1s clients are managed by Branch offices in

the State of residence. In New South Wales. Victoria and

Queensland, since about 1968, the major features have been

recorded on a computer file, commonly known as the Client

Data Base.

The only readily accessible body of records in 1981 which

would assist in identification of individual veterans was

this Data Base. Three initial criteria were applied: (i)

service periods between 1962 and 1972; (ii) file number in

the "SS" series which relates to the Repatriation (Special

Overseas Service) Act 1962 under which the eligibility of

benefits in respect of Vietnam service is conferred; and

(iii) a determination in respect of disability or death

under the provisions of the Repatriation Act 1920 as

applied by the Repatriation (Special Overseas Service) Act

1962 .

X - 18

Statistics available to DVA suggested that. of the

population of veterans meeting these criteria,

approximately 95 per cent would have served in Vietnam.

This population of servicemen was then searched for any

indication of death in respect of those who did in fact

serve in Vietnam.

The following details were recorded manually on a card for

each such deceased Vietnam veteran:

Name Address Departmental File Number Service Number

Periods of Vietnam Service Unit and Arm of Service Date of Birth

Date of Death Cause of Death State of Usual Residence State in Which Death Occurred

DVA sought to ascertain the exact cause. mode and

circumstance of death for each such Vietnam veteran by

access to State Registrar-Generals' certificates of death

and, where death occurred from external causes (such as

motor vehicle accidents and suicide), transcripts of

proceedings of Coronial Inquiries were obtained. Formal

Inquiries are not conducted in all cases of death by

external cause and in such instances DVA sought access to

X - 19

reports of police investigation. In many cases, reports

of post-mortem examinations were obtained and hospital and

clinical notes sought in order to ascertain the full

details surrounding death.

In 1983 , a personal computer was obtained and the

information held on the card system was transcribed in

order to enable greater efficiency of analysis.

The co-operation of the Australian Bureau of Statistics

(ABS). which is responsible for the coding of causes of

death of the Australian population, was sought. The ABS

agreed to provide coding of the cause of death for each of

those veterans in accordance with its usual procedure

relating to the International Classification of Diseases

Manual published by the World Health Organisation.

The ABS coded the cause of death on the basis of the death

certificate and, when necessary, supporting data such as

the transcript of a Coronial Inquiry. By following this

procedure the coding of the cause of death of the clients

of DVA has been carried out on the same basis as that of

the general community. This was done so that any trends

indicated by veterans' causes of death might be examined

and compared with the incidence in the Australian

population or a section thereof.

X-20

It is important to realise that this is an on-going

process: the coding of information is being progressively

completed as the documentation upon which it is based

becomes available. As at November 1984 there were in the

vicinity of 125 cases for which the coding had not been

completed. These cases are included on the various lists

produced by DVA with the Cause of Death column left

blank.13

In South Australia, Western Australia and Tasmania

computerisation of the major features of the clients'

files was introduced in 1982 and, until 1984. no

retrospective data collection was undertaken. Hence the

data available in respect of clients of DVA residing in

those States is limited in some respects.

Primarily as a result of a recommendation of the Senate

Standing Committee on Science and the Environment

contained in the Report of its Inquiry on Pesticides and 14

the Health of Australian Vietnam Veterans, DVA

undertook a major expansion of its client data base,

particularly in the less populated States, in 1984. This

recommendation was to the effect that DVA should improve

its capacity to investigate specific groups of clients in

addition to catering for normal administrative

requirements.

X-21

A large identification and data collection project was

commenced in April 1984 whereby those Vietnam veterans who

had at any time sought benefits or assistance from DVA

were identified and certain data collected. This project

concentrated on recording onto the client data base in all

States the features outlined earlier in respect of Vietnam

veterans of the larger States.

The collection of service information and disabilities

related and not related to service was -completed by

October 1984. In respect of deaths the process is

continuing although at the time of the Mortality hearings

(November 1984), there was very little information

outstanding from other States, i.e. South Australia,

Western Australia and Tasmania.

The Department of Defence made available the Nominal Roll

of Vietnam service in order to assist in the process of

identifying which clients of DVA were Vietnam veterans. A

procedure was undertaken matching all veterans on the

Nominal Roll by service number, surname. given names or

initials and date of birth to all records on the client

data base except those of 1914-18 veterans. Through a

series of computer and manual searches DVA1s population of

Vietnam veteran clients were identified and, where those

X-22

client data base records were incomplete, data collection

was undertaken.

This project enabled the identification of deceased

veterans not previously recorded and documentation as

outlined above was sought in respect of their deaths.

These records have been added to both the manual card

system and the personal computer file.

As at 20 November 1984, 834 veterans were recorded on the

personal computer file as having died since returning to

Australia from South Vietnam. Each such case has been

sequentially numbered and termed "Case No." It serves to

permit identification other than by name. The numbers

were assigned as DVA became aware of the death and do not

purport to be in any particular order.

Two listings from this personal computer file were 15

produced and tendered: an alphabetical listing and a

Case Number listing.16 Each list has similar layouts

and reveal the following information:

* CASE NO. - an internal working number entered onto the personal computer file.

* FILE NUMBER - Department file number for clients - first character indicates state. ( 1C 1 prefix denotes Central Office in Canberra). *

* SURNAME.

X-23

GIVEN NAME.

* INTL - Initial of second and subsequent given names.

* DOB - Date of birth.

* DOD - Date of death.

* I CD REV - Edition or Revision number of International Classification of Diseases.

* ICD CODE - Cause of death by reference to

International Classification of Diseases.

* s e r v i c e NUMBER - Defence Force Regimental number of veteran during service in Vietnam.

* ARM - Force of which veteran was a member during

service in Vietnam.

* NS - National Serviceman - indicated by Y (yes) or N (no).

* RC - Veteran on list given to DVA by the Royal

Commission - indicated by Y or N.

At this stage, an indication as to the extent to which it

is possible to cross-reference details between the list

provided by the Commission to DVA and the personal

computer file print-out provided by DVA is given. The

Department's file was matched with the lists supplied by

W A A to establish the number of deceased veterans known to

each organisation.

WAA's list, as has already been indicated, incorporated a

total of 865 records of whom 558 were confirmed to be

deceased by reference to either DVA or Department of

Defence records; 307 W A A records could not be verified.

X-24

Of DVA1s mortality information which disclosed 834

post-Vietnam deaths, 461 veterans were also known to

WAA. Therefore, 373 deceased veterans known to DVA were

not matched with the list supplied by WAA.

For each of the 834 post-Vietnam deaths, a separate file

has been established and maintained. These files, which

are held in Canberra contain all documentation upon which

the classification and coding was based, occupy a total of

some 14 filing cabinets. Ms King brought with her to

Sydney a sample of these files: all case files of deceased

Vietnam veterans known to the Department whose surnames

commenced with the letter A, B, or C.

One such file was randomly selected: it proved to be Case

Number 619. The file contained an authorised copy of the

death certificate, a notification from Central Army

Records Office in Melbourne, an Advice of Death from a

Repatriation Beneficiary Form, copies of police

photographs and drawings, a copy of a report of the NSW

Police Force regarding the death and various associated

depositions. A photocopy of each document contained in

this file became Exhibit 1747. It was marked

“Confidential" with access limited to Counsel since

details of police investigations were contained in the

X-25

file and for the reasons outlined in the opening paragraph

of this Chapter.

Obviously the contents of the files differed accordingly

to the circumstances attending the death.

This record keeping is an on-going process within DVA.

The Commission was impressed with the thoroughness of the

work, its presentation and the way in which it lends

itself to further analysis. Through Ms King, DVA offered

to conduct such analyses as the parties may require.

The next section deals with analyses which were presented

by Ms King either as a result of analyses already

conducted by DVA or in response to requests from Counsel

Assisting.

5 - ANALYSIS OF MORTALITY RECORDS

A document headed "Vietnam Veteran Deaths Known to the

Department of Veterans' Affairs" was tendered through Ms

King.17 it provides examples of how the Department's

mortality records on the personal computer file permit

analysis, as the following tables reveal. (The

information provided was based on the file as at 22

November 1984 ) .

X-26

As has been previously indicated, the data is not complete

for all deaths known to DVA. Hence, some information is

unavailable for the purposes of certain tables with the

consequence that the totals for all tables will not always

agree.

Another limitation is that DVA is not notified of all

deaths occurring amongst Vietnam veterans. Notification

may be the result of:

Claim by dependants that the veteran's death was due

to a service-related cause;

Claim for funeral benefits;

Notification to terminate pension payments or other

benefits; or

Notification to DVA as an interested party or out of

courtesy.

Obviously, DVA is interested to know of any deaths

occurring amongst Vietnam veterans in order that its

records might approach the ideal situation where details

of all deaths occurring amongst Vietnam veterans are known.

X-27

TABLE 2

Deaths Classified by Year of Death

Year of No. of

Death Deaths

1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984

TOTAL

3

13 7

21 26 38 37 44 49 58 53 57 55 54 69 64 69 78

36 (part year)

831

TABLE 3

Deaths Classified by Cause of Death

Cause No. of

Deaths

Neoplasm 197

Circulatory diseases 214

Motor vehicle accidents 118

Other accidents 51

Suicides 106

Other external causes 19

Other causes 70

TOTAL 775

X-28

TABLE 4

Deaths Classified by Age at Death

Age Group No. of Deaths

20 - 24 76

25 - 29 129

30 - 34 142

35 - 39 130

40 - 44 73

45 - 49 88

50 - 54 100

55 + 87

TOTAL 825

TABLE 5

Deaths Classified by Cause of and Age at Death

Age Neoplasms Circulatory External Other Total

Group Diseases Causes Causes

20 - 24 10 3 46 2 61

25 - 29 27 14 80 3 124

30 - 34 29 22 75 12 138

35 - 39 25 29 56 11 121

40 - 44 15 25 20 12 72

45 - 59 23 37 12 14 86

50 - 54 37 45 4 9 95

55 + 31 39 1 7 78

TOTAL 197 214 294 70 775

X-29

TABLE 6

Deaths from External Causes Classified by Cause of and Age at Death

Age Group

Mo tor Vehicle Accidents

Other Accidents Suicide Other External

Causes

Tota 1

20 - 24 31 6 6 3 46

25 - 29 30 18 29 3 80

30 - 34 25 14 29 7 75

35 - 39 21 9 23 3 56

40 - 44 7 3 9 1 20

45 - 4 9 3 1 6 2 12

50 - 54 1 0 3 0 4

55 + 0 0 1 0 1

TOTAL 118 51 106 19 294

The proportion of Vietnam veteran deaths notified to the

Department has not been the same for each year . Some

factors which affect the extent of this proportion are:

Whether the veteran has dependants.

The cause of death since death from accidents could be

expected to be less frequently the subject of a claim

than death from diseases which might be thought to be

service related. Similarly, owing to the provision of

free treatment for cancer, the coverage of death

occurring due to cancer should be greater.

X- 30

The age at death. The proportion may be expected to

increase over time as more veterans become known to

DVA, more veterans marry and have dependants and since

the pattern of causes of death alters with age: motor

vehicle accidents and other external causes being

predominant at young ages whilst circulatory diseases

and other diseases become more common with increasing

age.

In view of the concern which has been expressed as to the

incidence of a particular type of cancer termed lymphoma

(a growth or tumour arising in the lymph glands or

lymphatic vessels) information was extracted from the

personal computer files. The resulting . „ 18 print-out

revealed, for the 1.5 Vietnam veterans whose cause of death

was classifiable as. lymphoma, the following details in

addition to that provided in the alphabetic or case number

listings:19

"Clm-"Dec" - Decision: 1 = successful: 2 = unsuccessful: 8 = not yet determined.

"Lvl" - Level of decision: 1 = Repatriation Board: 2 = Repatriation Commission: 3 = Repatriation Review Tribunal:

8 = not yet recorded.

X- 31

State of Usual Residence State:

State in which death occurred:

Date of commencement and date of completion of each veteran's tour(s) of duty to Vietnam.

The names of two deceased servicemen were added to the

print-out bringing the total number to 17. The list may

not be complete since DVA, at the time Ms King gave her

evidence (November 1984), was engaged in coding all

disabilities recorded for Vietnam veterans and, in respect

of at least two States. that coding had not been

2 0 21

completed. By letter dated 20 February 1985 DVA

indicated that no additional instances of lymphoma had

come to the attention of the Department.

Subsequently DVA was requested by the Commission to supply

in respect of each of the 17 veterans, name. date of

diagnosis, details of the units with which they served

whilst in Vietnam and DVA files in respect of each veteran.

Additionally,

data base (as

all Vietnam 22

lymphomas.

the rate of

broader list

a print-out was obtained from DVA1s client

opposed to the personal computer file) of

veterans known to DVA to have contracted

This list, directed towards the issue of

incidence or occurrence of lymphomas, is a

than the print-out of the personal computer

X-32

file which only dealt with the instances of mortality

amongst those who have contracted lymphomas since

returning from Vietnam service.

DVA client data base print-out of lymphomas contains 64

entries disclosing 43 veterans, the reasons for the

duplication being that some veterans had determinations

for both disability claim and treatment under Reg. 66A.

This list contained the I CD code, the Client Data Base

File Number, the surname and initials and a description of

the disability from which he was suffering.

A further example of the use of DVA1s mortality records

was the list obtained in respect of deaths categorised as

2 3

suicides which contained details of 108 cases

classified as suicide and included five instances where

the Australian Bureau of Statistics (ABS) had classified

the cause of death as "injury undetermined whether

accidently or purposely inflicted". The list reflected

the information held by DVA as at 11 February 1985. The

numbers for each month of the year were as follows:

X-3 3

TABLE 7

SUICIDES BY MONTH OF YEAR

January February March April May

June July August September October November December

14 8 7

12 6 8

13 8 8

10 4

10

TOTAL 108

6. AVHS MORTALITY REPORT

In 1980, the Commonwealth Institute of Health was

commissioned to conduct a series of scientific studies

into the health of Vietnam veterans and their families. A

special, independent unit known as the Australian

Veterans' Herbicide Studies was set up within the

Institute to conduct the investigations. At the time the

unit was created there was substantial public concern as

to the effects of herbicides on health and this was

reflected in the original title of the unit. Subseguently

the scope of the investigation was broadened to examine

all aspects of Vietnam service and the title was

accordingly changed to the Australian Veterans' Health

X-34

Studies (AVHS). This unit was originally intended to

conduct three studies: a Birth Defects study, a Mortality

2 4

study, and a Morbidity (ie. sickness) study. The

results of the Birth Defects study are reported

25

elsewhere in this Report as is the failure of the

Government to approve the proposed Morbidity study.26

The Mortality Report, comprising three volumes, was

27

tendered in the course of the Mortality hearings. The

study was a retrospective cohort study of mortality

amongst former National Servicemen. Planning for the

study began in July 1981 when a protocol was prepared. A

Scientific Advisory Committee (SAC) had been established

by the then Minister for Veterans' Affairs to advise on

the scientific merit of the studies. On 17 June 1982 the

SAC endorsed the protocol. Following the conduct of the

study the SAC reviewed the proposed report and gave its

final endorsement at a meeting on 16 August 1984. From an

abundance of caution the Commission summonsed all drafts

and correspondence relating to the final, published

version of the report.

Michael Fett, the Principal Investigator throughout the 28

study gave explanatory evidence on 26 November 1984.

Dr Fett obtained the degress of Bachelor of Medicine,

X-3 5

Bachelor of Surgery and Bachelor of Medical Science, all

with First Class Honours, from Monash University in 1978.

He then spent some eighteen months in residency at the

Alfred Hospital and Prince Henry Hospital in Victoria

after which he studied for and obtained a Masters Degree

in Public Health at Harvard University. His evidence was

illustrated with material which was displayed on an 2 9 overhead projector and copies thereof exhibited.

The aim of the Mortality study was to compare the death

rates of Vietnam veterans with a comparable group of

non-veterans for all causes of death combined, cancer

(including soft tissue sarcoma and lymphoma) and external

causes (including suicide and motor vehicle accidents).

The study was confined to National Servicemen. Regular

Servicemen were not studied (unless. of course, they had

previously been National Servicemen). There were a number

of reasons for this. In order to minimise the risk of

bias it was important to ensure that the group with which

Vietnam veterans are compared was as similar as possible

at the time the veteran left for Vietnam. Furthermore,

National Servicemen were selected randomly and, subject to

a consideration of those who deferred service or obtained

exemption form service, this group was more representative

X- 3 6

of the general population than members of the regular

army. Also, in the process of selection of soldiers for

service in Vietnam, while the same standards applied to

National Servicemen and regulars, it appears that a higher

proportion of regular servicemen were precluded from

serving in Vietnam due to health problems.

Subjects for the study were all National Servicemen who

could have been veterans of the Vietnam conflict. This

criterion required enlistment between 1 June 1965 and 28

February 1971. The other important selection criterion

was that National Servicemen had to have served in the

army for at least 90 days and later in the analysis this

initial criterion was increased to 12 months. The 90 day

criterion was adopted because it became apparent following

discussions with the Army that the first 3 months of

service acted as a screen additional to the enlistment

medical examinations. i.e. people who had enlisted but

were subsequently found not to be suitable tended to be

discharged in the first three months of their service.

The twelve month period was later adopted as a replacement

criterion since there were approximately 1200 National

Servicemen who served for less than 12 months but within

that group only 4 Vietnam veterans served for less than 12

months. Hence it was considered that those who served for

X-37

less Chan 12 months would not be typical of National

Servicemen who could have become veterans.

Deaths which occurred in the course of combat in Vietnam

and those which occurred during National Service in

Australia were excluded from consideration: combat deaths

would make comparison difficult as such deaths were not a

possibility for those who did not serve in Vietnam; deaths

which occurred in Australia during National Service were

excluded for similar reasons, i.e. such deaths could be

due to factors to which veterans serving in Vietnam were

not exposed.

Having identified the subjects within the study, strenuous

efforts were made to determine the vital status of each

subject as at 1 January 1982 (i.e. whether the subject was

alive or deceased at that date). For the purposes of

finding out who was alive and who was dead those actually

performing the investigatory work did not need to know

whether the subject was a veteran of the Vietnam conflict

or not. The study was designed to ensure that as far as

possible those collecting the data did not know whether

the persons subject of their enquiries did serve in

Vietnam. This was done to reduce the chance of any bias.

X- 3 8

There were 46.166 study subjects: 19,209 veterans of

Vietnam conflict and 26,957 non-veterans. The identities

of subjects and the data relating to army service were

obtained from the Department of Defence. This included

age and calendar year of enlistment, civil education,

army corps, and, for veterans, dates of Vietnam service.

A number of sources were used to determine who was alive

and who was deceased as at 1 January 1982. First, army

records were searched to assertain those currently serving

in the army on that date. Then the electoral registers

were searched: first the July 1982 register and secondly

that for July 1981. If a study subject matched with a

record on the Electoral Register they were considered to

be alive prior to the compilation of that register as

discussions with the Australian Electoral Office indicated

that the record of deceased persons were removed from the

register within six months. This aspect was tested by

searching the register for the names of some test

subjects, known to be deceased. None of those subjects

appeared on the electoral roll which gave confidence that

it was a good indication of vital status. Other data

sources were all Australian death registers, the death

register maintained by the Army, drivers licence registers

in all States and Territories, Department of Immigration

X- 3 9

and Ethnic Affairs records of the names and dates on which

people arrive and leave Australia and police, corrective

services, welfare and credit records.

The records of DVA were used to provide information on

deceased subjects (i.e. people that the investigators knew

to be dead) but these records were not used to determine

vital status since they have a gross over-representation

of Vietnam veterans relative to non-veterans in all data

bases and it would have biased the ascertainment of

veterans' and non-veterans' vital status.

The data sources used to ascertain the cause of death

included the death certificate or an extract from the

death register, hospital records, Coroners' records, and

doctors' records as well as histopathology slides, (i.e.

tissue slides used to assist in the identification of

diseases).

Causes of death were coded by the Australian Bureau of

Statistics (ABS) according to the classifications

contained in the International Classification of Diseases,

8th revision. This revision was used by the ABS between

1968 and 1978 which covered about two thirds of the

follow-up period and thus made comparisons with the

X-40

general population feasible. These causes were confirmed

by a panel of specialist physicians and, for cancer

deaths, by pathological examination of tissue slides.

Mortality among subjects was examined in relation to

variables relating to pre-enlistment characteristics,

enlistment characteristics, discharge characteristics and.

for veterans, Vietnam service characteristics. For these

comparisons, analysis was confined to 19,205 veteran and

25,677 non-veteran former National Servicemen who had more

than 12 months of army service. In the period from the

end of National Service engagement to 1 January 1982 there

were 260 deaths among veterans and 263 deaths among

non-veterans.

As at 1 January 1982 the investigations had revealed 94.4

per cent of the veterans to be alive. 1.4 per cent

deceased and the vital status of 4.3 per cent was

unknown. The correspondLng figures for non-veterans were

94.4 per cent , 1.0 per cent and 4.6 per cent, . If the

mortality rate revealed amongst those for whom vital

status was known is reflected amongst the percentage for

whom vital status was unknown, then only 1.4 per cent of

the 4.3 per cent of veterans whose vital status was

unknown may be expected to, in fact be deceased.

X-41

This amounts to a mere 0.06 per cent or about 1 in 1,650.

The corresponding calculation for non-veterans gives a

similar figure. The high quality of the data was

confirmed by a concurrent search of registers using the

records of men with independently determined vital

status. This indicated that over 95 per cent of the

subject deaths were identified and that it was unlikely

that living subjects were incorrectly identified as

deceased.

These recovery rates make this an excellent

epidemiological study.

The mortality or death rate is calculated as the number of

deaths in the population of a particular group thereof

divided by the total number of subjects in that group and

the period of observation. For example, the death rate

for veterans, as revealed by the study, was 11.6 deaths

per 10,000 person-years and 8.9 deaths per 10,000

person-years for non-veterans. It may be, and in the case

of the present study it was, that the period of

observation differs between subjects. In those

circumstances the calculation is a little more complicated

but the principle remains the same.

X-42

By dividing the death rate for one group by the death rate

of another group. the relative mortality rate is

obtained. To continue the example, the relative mortality

rate (veterans cf. non-veterans) is equal to the death

rate of veterans divided by the death rate of non-veterans

or 11.6 divide 8.9 which equals 1.29, i.e. the death rate

of veterans is 29 per cent greater than that of

non-veterans.

Two kinds of comparison were involved: comparison between

veterans and non-veterans (as revealed in the previous

paragraph) and the comparison of veterans' mortality with

that of Australian males.

This latter comparison is achieved by dividing the actual

number of deaths observed by the number of deaths which

would be expected if veterans have the same death rate as

Australian males of their own age.

As mortality varies with a number of factors such as age,

it is useful to subdivide the data by age and calculate

age-specific death rates. Other subdivisions, resulting

in cause-specific rates and rates for various Army Corps,

can be calculated from the data. Having made such

X-43

calculations and compared veterans to non-veterans or

veterans to the Australian male population then recognised

statistical tests may be applied to determine whether any

resulting difference is statistically significant. This

gives an indication of the likelihood that the result is

due to chance. If a statistically significant result is

obtained then further analysis may enable influencing

factors to be identified. Such analysis may permit

inferences or conclusions to be drawn with greater or

lesser degree of confidence.

Dr Fett gave some examples of how the AVHS Mortality

Report could be analysed and the nature of the conclusions

which might be drawn on the basis of the information

revealed by the study. A fuller treatment appears in Part 30

I of the AVHS Mortality Report.

Part II of that Report examines the relationship between a

number of variables influencing mortality in Vietnam

service for all dead study subjects, deaths occurring

during army service and a 4 per cent random sample of

mortality study subjects not known to be dead. The

investigation in Part II was conducted in order to

identify potential confounding variables for which data on

only a subset of subjects could be obtained. (Confounding

X-44

variables. as the name suggests, are factors which

confound or confuse results such that„ if their effect may­

be eliminated, a clearer analysis of the data is possible.)

Part III of the Mortality Report reports an investigation

of a variety of different aspects of Vietnam service.

Aspects studied in relation to mortality among Vietnam

veterans included the risk of sustaining a battle injury

and the type and geographic location of service in Vietnam.

Amongst Vietnam veterans there were 260 deaths observed

from all causes. If Vietnam veterans were experiencing

mortality at the same rate as Australian males of the same

age then the expected number of deaths would be 311.8.

Hence the ratio of observed to expected deaths for

veterans compared with the Australian male population is

0.83. Similarly, deaths amongst non-veterans amount to

263, whilst the expected number is 407.3 giving a ratio of

31

0.6. Hence the mortality of Vietnam veterans was 17

per cent less than that of the Australian male population

but was 29 per cent higher than the mortality of

non-veterans. Both these figures are statistically

significant at the 5 per cent level, i.e. if there were in

fact no difference in mortality then a result of this

nature would occur by reason of chance less than five

times in 100.

X-4 5

Presenting these figures in tabular form and subdividing

into age groups reveals that the mortality of both

veterans and non-veterans was below that of the Australian

male population in each age group. For non-veterans, the

deficit was fairly constant but for Vietnam veterans the

deficit increased with increasing age. This trend is

reflected in the decline in the relative mortality rates

from 1.44 to 0.81 and suggests that the excess mortality

among veterans was greatest in the youngest age group

(i.e. soonest after Vietnam service) and then gradually

diminished.

X-4 6

TABLE 8

Subdivision by Age Group

Age Group

20-24 25-29 30-34 35-39 TOTAL

Veterans Obs 65 111 75 9 260

Exp 66.95 128.0 103.2 13.66 311.8

Ratio 0.97 0.87 0.73 0.66 0.83

Non-veterans

Obs 58 106 83 16 263

Exp 85.84 170.4 131.3 19.73 407.3

Ratio 0.68 0.62 0.63 0.81 0.65

Ratio:

Veterans to 1.44 1.39 1.15 0.81 1.29

Non-veterans

obs = observed

exp = experienced

ratio = obs/exp

X-47

Line 3 in the above table indicates the results of a

comparison between veterans and the Australian male

population whilst line 7 indicates the results of

comparisons between veterans and non-veterans.

Analysing the data by cause and presenting the results in

tabular form (extracted from Table 4.1 page 56 Part I of

the Mortality Report):

X-48

TABLE 9

Subdivision by Cause of Death

Cause of Veterans Death ________

obs. exp . ratio

(1) (2) (3) (4=2/3)

Cancer 31 32 .9 0.9

Circulatory 23 27. 8 0.8

Diseases

Digestive 7 7 .6 0.9

Diseases

External 192 207 0.9

Causes

All Causes 260 312 0.8

Non- veterans Veterans cf Non-veterans

obs. exp. ratio

(5) (6) (7=5/6) (8 =4/7)

41 43.0 1.0 1.0

16 36.4 0.4 1.9*

0 9.96 0 _ *

198 270 0.7 1.3*

263 407 0.6 1.3*

* = Statistically significant at the 5% level.

It will be readily observed that, for the categories

itemised above, there is no class of deaths in which the

observed number was greater than the expected number. In

fact, for some classes, the number of deaths was much less

than expected. Caution should be exercised when looking

for patterns of mortality in sub-groups where the number

of deaths is small because in such situations, small

X-49

differences in numbers (which are most likely due to

chance) produce much larger changes in relative mortality

rates. Table 9 reflects the same overall trends as Table

8, namely that the mortality of Vietnam veterans is

greater than that of non-veterans but that the mortality

of both is less than that of the Australian male

population.

Cancer is self-explanatory; circulatory diseases includes

heart disease, high blood pressure and stroke as well as a

number of other such causes. The seven deaths observed

amongst Vietnam veterans from diseases of the digestive

system were comprised of four instances of cirrhosis of

the liver, two cases of pancreatitis and one death was

from a bowel obstruction. The category termed External

Causes, which comprised about 3/4 of the deaths observed,

includes motor vehicle accidents, other accidents, suicide

and self-inflicted injuries.

The most likely explanation of these trends is that due to

the screening process, (i.e. the selection of men for

National Service and in the rejection of unfit men during

the first three months) the army was left with a very

healthy group of young men who additionally had

behavioural patterns which made them less likely to die

than their peers.

X-50

Within the individual classes there is nothing to suggest

that there is any difference in the death rate from

cancer. However for circulatory diseases, digestive

diseases and external causes there was a statistically

significant excess among veterans relative to non-veterans.

Turning to particular causes of death which have been the

subject of allegations and associated concern, namely

soft-tissue sarcoma, non-Hodgkins lymphoma, Hodgkin's

disease, suicide and motor vehicle accidents. Table 10

shows the observed and expected figures for veterans and

non-veterans and the relative mortality rates.

TABLE 10

Cause of Death Veteran Non-veteran Ratio veteran

obs exp obs exp to non-vet«

Soft-tissue Sarcoma 2 0.64 0 0.84 -

Non-Hodgkin's Lymphoma 3 2.04 4 2.67 1.0

Hodgkin's disease 0 2.15 3 2.81 0

Suicide 40 42.4 36 55.5 1.5

Motor vehicle 102 106 115 138 1.2

accidents

X-51

The above Table is extracted from Table 4.3 at page 62 and

Table 4.6 at pages 62 and 66 Part I of the Mortality

Report. None of these results are statistically

significant at the 5 per cent level, i.e. there is nothing

revealed by these figures or the AVHS Mortality Study

generally which would displace a no-effect hypothesis.

Accordingly this study does not support the claims which

have been made in respect of cancer and suicide.

An analysis in respect of the digestive diseases was also

presented by Dr Fett. There were seven deaths observed

amongst veterans and none observed among non-veterans. Of

the seven among veterans, four were due to cirrhosis of

the liver, two veterans died of pancreatitis and one of a

bowel obstruction. In all six of the cases involving

cirrhosis or pancreatitis the subject was either drunk on

his terminal admission to hospital or had a known history

of chronic alcoholism. Furthermore, in the four instances

of cirrhosis of the liver there was nothing to indicate

that these cases were other than alcohol-associated.

Accordingly, Dr Fett concluded, on clinical grounds,

having regard to the hospital records which were assessed,

that these six deaths were directly attributable to

excessive alcohol intake. As with cigarettes, the lack of

available data on alcohol consumption precludes further

analysis.

X-52

In respect of motor vehicle accidents the AVHS Study

suggests that Vietnam veterans are more likely to have

motor vehicle accidents than servicemen of comparable age

who are not veterans of Vietnam. However, the result (a

relative risk ratio of 1.2) is not statistically

significant. Furthermore, a comparison between Vietnam

veterans and the general population of the same age

reveals no material difference.

National Servicemen were allocated to corps before it was

known whether they would serve in Vietnam. Army sources

indicated that corps may be grouped into five categories

according to the level of stress and danger to which men

in the corps would have been exposed in Vietnam. Corps

groupings were as follows. in order of decreasing stress

and danger: (1) Infantry, (2) Engineers, (3) Armour and

Artillery, (4) Corps with minor field presence (signals.

medical, electrical mechanical engineers), (5) Non-Field

corps (including such groups as catering and dental). It

will be apparent from Table 11 that National Servicemen

were more likely to serve in Vietnam if they were in

Infantry, Engineers or Armour and Artillery than in the

other corps. Also, among non-veterans, death rates

differed significantly between corps groupings with

Infantry, and Armour and Artillery having the higher death

X-53

rates than the remainder. This indicated that corps was a

potentially confounding variable. This aspect is dealt

with subsequently.

X-54

TABLE 11

(Extracted from Table 3.10, page 34, Pt 1 of the Mortality-Report) .

Subdivision by Army Corps

Corps % of Study Death Rate (per 10,000 Ratio:

Grouping Subjects

who were veterans

person years)

Veterans

Veterans to Non-Veterans

Non­ veterans

Infantry 61 12.5 13.0 0.96

Engineers (RAE) 52 14.1 5.7 2.48*

Armour and Artillery

48 11.7 11.1 1.06

Minor Field Presence

28 8 .6 5.6 1.52

Non-field Corps 27 9.0 9.0 1.01

TOTAL 43 11.6 8.9 1.29*

* = Statistically significant at the 5% level.

Leaving aside, for the moment, the Engineers category it

is apparent that the Infantry and Armour and Artillery

categories have a comparatively high proportion being sent

to Vietnam and comparatively high death rates among the

X-55

veterans, namely 12.5 and 11.7 deaths per 10,000

person-years respectively. In contrast to this in the

Minor Field presence and Non-Field corps groups there are

low proportions going to Vietnam and low death rates

amongst the non-veterans, i.e. 5.6 and 9.0 respectively.

This suggests that part of the relative mortality rate of

veterans compared with non-veterans could be due to death

rates being related to corps rather than to Vietnam

service. The results suggest that at least part of the

excess mortality being observed in veterans relative to

non-veterans could be due to variation in death rates due

to another factor, namely corps grouping, and that corps

grouping is in itself related to service in Vietnam, i.e.

the results suggest that corps is a confounding variable.

Turning to the Engineers one finds that the high relative

mortality rate of 2.5 is as much due to a comparatively

low death rate among non-veterans as it is to a high death

rate among veterans.

Education, Corps grouping and age at enlistment were

identified as potentially confounding variables. However

these variables may interact so that although they

confound individually, they may not be confounding after

taking into account the effects of the other variables.

X-56

Table 12 which is extracted from Table 3.11 on page 36 of

Part I of the Mortality Report shows estimated relative

mortality rates for veterans and non-veterans after

adjusting for different combinations of these variables.

TABLE 12

Variables Used for Relative Mortality

Ad justment Rate

None 1.29

1. Age group only 1.29

Corps only 1.16

Education only 1.27

Age at Enlistment 1.26

2. Age group and corps 1.17

Age group and education 1.27

Age group and age at enlistment 1.26

3. Age group, corps and education 1.16

Age group, corps and age at enlistment 1.15 Age group. education and age 1.25

at enlistment.

Corps, education and age at enlistment 1.15

4. Age group, education, corps and age 1.15 at enlistment.

It is apparent from the above Table that the presence of

corps grouping results in a substantial alteration in

relative mortality rate but that the other three factors

leave the relative mortality rate almost unaffected. This

indicates that there is substantial confounding by corps

grouping, but that other variables examined were not found

to be confounding. It is also worth noting that the

X-57

mortality of Vietnam veterans was not statistically

significantly higher than the mortality of non-veterans

after adjusting for the confounding effects of Army corps

grouping (paragraph 2. page viii. Part I), i.e. if the

confounding variable of corps grouping is removed then the

results could be due to chance.

Dr Fett put forward a number of possible explanations for

the result which had occurred in respect of the Engineers

corps grouping. First, he said the results could be due

to pure chance. Secondly, he postulated:

It could be due to the fact that men, when they walk into the recruitment depot, have a

particular risk of dying over the next 15 years and those with higher risk, for some reason or another, tended to be more likely to end up

serving in the Infantry, Engineers, Armour and Artillery than in the other corps.32

His third explanation, which to him did not seem to have a

great deal of plausibility, was that there might be an

effect of army service in Australia on death rates. Dr

Fett agreed with Counsel Assisting that a very attractive

interpretation of the data was that there may be more

risk-taking individuals amongst those who actually get

into the corps that go to Vietnam.33

X-58

In an effort to discover whether the relative mortality-rate for the various corps groupings differed between the

States of enlistment. Dr Fett prepared a series of tables

which subdivided the data so as to permit such

34

analysis. By way of example. the relative mortality

rates for Engineers were 9.30 (Qld. ); 1.06 (NSW); 2.62

(Vic.) and 1.37 (WA). No figure could be calculated for

either South Australia or the Northern Territory since

there were no deaths amongst non-veteran Engineers in

those categories. Similarly, Tasmanian and Papuan

Engineers had no deaths in either veterans or

non-veterans. Of these f igures the only statistically

significant result is that of Queensland.

Homogeneity testing involves the conduct of recognised

statistical tests in order to determine whether the

results from a number of groups differ to a statistically

significant extent. When such tests were conducted in

respect of the abovementioned relative mortality rates it

was found that, whilst the rates differed considerably

from State to State. they were not different to a

statistically significant extent.

Further tests for homogeneity (i.e. similarity) of death

rates revealed that death rates did not vary in a

X-59

statistically significant way between the various States

of enlistment in the case of non-veteran Infantry members,

veteran Engineers or non-veterans Engineers.

Dr Michael Adena was a statistician with AVHS during the

conduct of the Mortality Study. He graduated from the

University of Melbourne in 1974 with First Class Honours

in Mathematical Statistics and subsequently obtained a PhD

from the Australian National University - a full

curriculum vitae including details of membership of

professional societies and his publications was

exhibited.35

in order to understand Dr Adena1s evidence it is necessary

to become familiar with the issue to which his evidence

was addressed and certain statistical terms. As has been

already indicated, the result of the AVHS Mortality Study

in respect of Engineers was statistically significant and

the Commission's enquiries accordingly involved an

investigation of possible explanations for this result.

The analysis of Dr Fett, referred to above, involved

subdivision of the Engineers' category into the component

figures for the various States of enlistment. Dr Adena' s

evidence however subdivided the Engineers' category into

four groups entitled "none", "low", "medium", and "high"

X-60

reflecting the direct battle casualty index as measured by

AVHS in the course of the Mortality Study in order to give

some idea of the level of involvement in the hostilities

of the Vietnam conflict.

Using the figures for Engineers (RAE) contained in Table

3.19 on page 46 of Part 1 of the Report, Dr Adena

explained the analysis. The table he used was as

, Ί , 36

follows:

TABLE 13

DR ADENA'S EVIDENCE

None Low Medium High Total

Observed Deaths IS 25 5 0 45

Person-years 16,888 12,051 2,974 11 31.924

Expected Deaths 2 3.81 16.99 4.19 . 02 45

If the mortality rate was the same for each group then the

expected number of deaths in each group would be the

overall rate (calculated as 45 divided by 31,924 or

0.00014096) multiplied by the number of person-years in

X- 61

each group. The results of such calculations are

presented on the third line of the above table. They

involve the underlying hypothesis that the death rate does

not vary between the groups.

Deviance is a statistical terra denoting a measure of the

extent of discrepancy between observed and expected data.

If a measure of deviance is statistically significant then

it is considered that the hypothesis should be rejected as

not being commonly obtainable by the operation of chance

factors alone. If the death rate did not vary between the

groups then the deviance would be zero. Calculating the

deviance from the above table yields 7.23. The deviance

difference is thus 7.23 - 0 or 7.23.

The degrees of freedom are the number of comparisons which

can be made in respect of a number of observations. In

order to fully understand this definition, one would need

to deal with rather advanced questions of algebra.

Reduced to its simplest form, the number of degrees of

freedom is mathematically equal to the number of

observations or groups minus one, i.e. 4 - 1 = 3 in the

present illustration.

X-62

The appropriate statistical distribution used to test

hypotheses about deviance is the Chi-square distribution

and using standard statistical tables for such a

distribution with three degrees of freedom reveals that

obtained deviance difference (i.e. 7.23) has a probability

of 0.07 or 7 per cent which is not statistically

significant at the five per cent level.

Accordingly the initial hypothesis that the death rate

does not differ between the groups is not rejected on

statistical grounds.

As to the possible effect of calendar year and duration of

Vietnam service Dr Fett indicated that the study of

overall death rates and death rates amongst veterans in

each corps grouping were not found to vary significantly

with calendar year of Vietnam service or duration of

service. This suggests that death rates do not vary

significantly according to when a veteran served in

Vietnam or for how long he remained there. The fact that

death rates do not so vary provides some support for the

proposition that mortality is not affected by exposure to

herbicides. This arises since if chemical agents such as

herbicides did affect mortality then higher mortality

cates amongst those who served in Vietnam for longer

X- 6 3

periods would be expected. Similarly, if mortality

subsequent to service was specifically related to combat

or herbicide exposure then it should have been more

evident In eras when combat was more intense or herbicide

exposure greater.

Drs Armstrong, Mathews and Fett each gave evidence as to

possible explanations of the results obtained by the AVHS

Mortality Study.

Since 1979 , Dr Armstrong has been the Director of the

National Health and Medical Research Council Unit in ■

Epidemiology and Preventive Medicine within the University

of Western Australia. He graduated in medicine from that

University in 1969 and then trained as a specialist in

internal medicine at the Royal Perth Hospital, becoming a

Member of the Royal Australian College of Physicians in

1972. He became a Fellow of the College in 1975. He

trained in epidemiology between 1972 and 1975 and obtained

a Doctorate in that discipline in 1975. Subsequently he

was Senior Lecturer in Medicine at the University of

Western Australia, thereafter Director of Health, Research

and Planning in the Department of Health, Western

Australia which position he held until 1979.

X-64

Dr Armstrong, at page 31 of his written statement.

summarised the results of the Study as follows:

37

(i) A small excess mortality in national

servicemen who served in Vietnam compared with those who did not, from causes other than those directly related to combat;

(ii) This excess was concentrated in three categories of cause of death - circulatory (cardiovascular) diseases, digestive system diseases and external causes;

(iii) Mortality in veterans did not vary

significantly by length or era of service in Vietnam.

He advanced four possible explanations for the overall

results: chance, bias, confounding, and a causal effect of

Vietnam service.

After adjusting for the effect of corps grouping the

excess mortality, whilst still present (16 per cent), was

not statistically significant and accordingly the

possibility of the result being due to chance cannot be

eliminated. The statistical probability that the results

of the AVHS Mortality Study were due to chance factors is

3 in 1,000 if no allowance is made for corps grouping but

1 in 10 if such allowance is made.

Since selection for service in Vietnam was not a random

event, there was a possibility of bias influencing any

comparison between Vietnam veterans and non-veterans.

X-65

Although corps grouping was found to be a confounding

variable, other confounding factors may remain as yet

unidentified. The selection process for Vietnam may have

resulted in veterans who went to Vietnam differing from

those who did not in respect of lifestyle factors which

are related to health. Alternatively, the experiences of

those who did serve in Vietnam may have produced lifestyle

changes which influenced mortality following service. The

pattern of excess mortality is consistent with the effects

of tobacco, alcohol and other lifestyle factors.

A causal effect of Vietnam service to increase mortality

from particular causes remains possible although the lack

of effect of duration and era of service weigh against

this explanation. In the absence of a detailed analysis

of exposure, a conclusion as to whether herbicides might

be a cause is difficult. However, the pattern of excess

mortality is not such as to suggest chemical agents as a

cause. For example. mortality from cancer was not higher

in veterans when compared with non-veterans.

Dr Armstrong was asked to indicate which of these four

explanations he regarded as most likely. He expressed a

preference for confounding38 ie. that the process of

X-66

selection which led to servicemen going to Vietnam was

associated with behavioural characteristics which put that

person at a higher risk of subsequent mortality and/or an

effect of Vietnam experiences on lifestyle resulting in an

increase mortality following service. Factors such as

attitude to risk taking, personality type, alcohol and

tobacco consumption were given by Dr Armstrong as examples

of behavioural patterns which might give rise to such a

change in mortality rates which he believed to be real,

although small, after allowing for the influence of corps

grouping.

In respect of the increased mortality from circulatory

disorders. Dr Armstrong agreed with Mr O'Keefe, Counsel

for Monsanto, that cigarette smoking and alcohol can have 39

an adverse effect. on the circulatory system.

40 .

Similarly, he agreed that alcohol consumption was the

best explanation of the increased incidence of digestive

disorders as revealed by both the US Ranch Hand Mortality

41

Study and the Australian Study. Behavioural aspects,

such as attitudes to risk, would only be a potential

explanation in respect of deaths from external causes.

Professor John Mathews also gave evidence during the

Mortality hearings: aspects included in his evidence were

X- 67

an explanation of the healthy-worker effect, a

consideration of the results of the AVHS Mortality Study

and evidence regarding studies of other war veterans'

mortality.

He believed that the result of the Australian Study

disclosed a real excess of mortality which was not due to

chance alone. Leaving aside the possible operation of

chance, Professor Mathews advanced four possible reasons

for the results obtained in the study.

First, that the characteristics of National Servicemen

being sent to Vietnam might differ from those not sent to

Vietnam in ways which might subsequently affect their

mortality. Secondly. that because of their Vietnam

experience, soldiers might change their behaviour in

relation to drinking, smoking or other lifestyle factors

in such a way that their subsequent mortality might be

altered. The third possibility advanced by Professor

Mathews was that combat stress or some other stress in the

Vietnam war might have a delayed effect on mortality. The

final possibility was that exposure to chemical agents

might have an effect on subsequent mortality.

X-68

On the issue of the relationship between exposure to

chemicals in Vietnam and subsequent mortality. Professor

Mathews addressed this issue in two ways. First, by

extrapolation from data obtained in respect of experiments

with animals. This involved estimating the maximum

credible physical effects of exposure to the maximum

credible doses of chemicals in Vietnam. Professor Mathews

suggested that when this is done the calculations suggest

that the physical effects on mortality, if any. would be

so small as to be undetectable in the AVHS Mortality

Study. Further, that the expected number of deaths

attributable to chemical exposure would be so small as to

be negligible compared to the effects related to alcohol

use and behavioural disturbances. The second approach

suggested by Professor Mathews was to look at whether

mortality in the post-Vietnam period of those who served

in Vietnam is plausibly related to the pattern of chemical

usage in Vietnam. He concluded that in the absence of an

increase in mortality relating to duration of Vietnam

service or to peak usage of chemicals in Vietnam that

there is nothing to suggest any untoward effects of

chemical usage on mortality in the post-Vietnam period.

There is no doubt that pre-existing characteristics can

affect subsequent health and mortality. For example.

X-69

better educated people and those of a higher

socio-economic class have lower mortality rates, whilst

alcohol and tobacco consumption are generally accepted as

leading to higher mortality rates. Professor Mathews 42 acknowledged this and gave evidence that such aspects

4 3

were indicated in the results of the study.

If pre-existing characteristics, such as initiative.

personality and the like also affected the likelihood of

serving in Vietnam then a higher level of mortality would

be revealed by a study although it could be due to those

characteristics rather than service in Vietnam per se. It

is this trend which Professor Mathews believed to be

evident in the findings of the AVHS study. He found

confirmation for this in the fact that a higher mortality

rate was revealed by the study in respect of those

soldiers who were discharged early from the Army as

unsuitable. Further support for this effect was obtained 44

from studies such as that of Kadushin et a 1 which

showed that pre-existing psychiatric disturbances were

predictive of subsequent increases in mortality rates.

This was described as the effects of the selection process

and it is important to note that such selection may be the

product of self-selection or selection by the Army

X-70

(through recruitment, unit allocation and posting), or

both.

The data available from the AVHS study did not allow the

second suggestion, namely that there may have been

behavioural changes as a result of experiences in Vietnam

which affected subsequent mortality, to be tested

adequately. However, this hypothesis does have the

advantage that it is supported by the very nature of the

results: the incidence of deaths due to external causes

(motor vehicle and other accidents), the number of

alcohol-related deaths and the number of deaths which

might be related to tobacco consumption are all consistent

with this explanation. It was the consistency between the

observed results and that which would be expected if this

hypothesis is in fact correct which led Professor Mathews

to conclude that this explanation was a contributing

factor although he noted that it was not possible to

decide the extent to which these differences in areas such

as behavioural aspects and alcohol use were caused by

45

Vietnam service or pre-existing factors. Some support

also derives from studies of World War II veterans which

indicate that that conflict had an effect on soldiers'

likelihood of drinking and smoking.

X-71

In order to assess the likelihood of combat stress

influencing subsequent mortality Professor Mathews noted

that the study looked at this aspect and found no clear

and unambiguous relationship between the amount of combat

experience in Vietnam and mortality in the period since 4 6 Vietnam. Of course, some indirect relationship might

be present: if combat stress promoted or increased tobacco

and/or alcohol consumption then these lifestyle factors

may cause higher mortality levels following service in

Vietnam.

Professor Mathews argued that age, education and corps

grouping do not wholly account for the increased mortality 47 observed. He further agreed with Mr O'Keefe that the

selection process (be it self-selection or Army selection)

and the pre-existing characteristics of veterans were the

most satisfactory explanations, leaving aside the • 4 f t

operation of chance factors.

7. OTHER MORTALITY STUDIES

A number of epidemiological studies relating to the

mortality experience of people exposed to phenoxy acid

herbicides and/or dioxin have been conducted. They

include studies of workers who have been exposed in an

X-72

occupational environment either over a period of time or

at a time when an industrial accident occurred. In the

Mortality hearings of the Commission they were dealt with

in some detail by Dr Bruce Armstrong in his written

49

statement.

7.1 Studies of Exposed Workers

Hoqstedt and Westerlund

The first of the studies of mortality in workers exposed

occupationally to phenoxy acid herbicides and/or dioxin

with which Dr Armstrong dealt was a study of the mortality

of forestry workers in Sweden by Hogstedt and Westerlund,

written in Swedish, and published in Dakartidningen 1980; 50 77:1828-1831. The translation of the title is 1 Cohort

Studies of Cause of Death of Forest Workers With and

Without Exposure to Phenoxy Acid Preparations'. This

study encompassed men who worked for a Swedish timber

company between 1914 and 1967 which company began to use

phenoxy acid herbicides in 1954. The records which were

available permitted workers to be classified as exposed

(for more than five days), unexposed, and foremen (who

were believed to have been more heavily exposed than other

workers). The mortality experience of 142 exposed

X-7 3

workers, 244 unexposed workers and 16 foremen was followed

to 1978. The average duration of exposure to herbicides

among workers was 30 days and that of foremen 176 days.

The following table summarises the results of this study:

TABLE 14

Hoqstedt and Westerlund Study

Cause of Death All Deaths Deaths Not Less

Than 10 yrs Afte First Exposure

Obs Ratio* Obs Ratio*

Foremen

Cancer 3 3.00 2 2.86

All Causes 8 1.95 6 2.22

Exposed Workers

Cancer 2 0.37 1 0.28

All Causes 21 0.88 15 0.97

Unexposed Workers

Cancer 10 0.68 7 0.72

All Causes 47 0.73 38 0.91

* ratio of observed deaths to expected deaths.

X-74

The mortality of foremen was higher than that expected

from population rates whereas mortality rates in the

exposed and unexposed workers were similar and less than

that of the population as a whole. The mortality excess

in foremen was based on small numbers and was of the same

degree for all deaths as for deaths which occurred ten or

more years after the first exposure.

There was little evidence in exposed workers of any

increase in mortality with long duration of exposure to

herbicides and there were no deaths from lymphoma or soft

tissue sarcoma. A harmful effect of exposure to

herbicides is one possible explanation for the increased

mortality in foremen. There are no other aspects of the

results which support this possibility. Factors which

weigh against firm conclusions from this study include the

small numbers and the fact than many of those exposed to

herbicides had also been exposed to DDT.

The tumours are not clustered to any site and the cause of

death pattern agreed with national expected rates.

X-75

Axelson and Sundell

The mortality of Swedish railroad workers exposed to 51

herbicides was investigated by Axelson et a 1 in 1973.

52

An update of this study was printed in 1980.

The 1980 study describes the follow-up of 343 people

exposed to herbicides for more than 45 days between 1957

and 1972. A variety of herbicides were used during that

period including amitrole, 2,4-D and 2,4,5-T. These three

were the best documented and most heavily used. A total

of 5541 person-years of follow-up were accumulated to the

end of the follow-up in October 1978. For the purposes of

analysis, workers were classified as exposed to amitrole,

exposed to phenoxy acids (2,4-D and/or 2,4,5-T) or exposed

to both. Many would have been additionally exposed to

other herbicides, particularly monuron and diuron.

The following table summarises the results of the 1973

study and the subsequent updating thereof.

X-76

TABLE 15

Axe l s o n and Sundell Study

Cause of Death All Deaths

Exposed to Amitrole

Cancer

All Causes

Exposed to Phenoxv Acids

Obs

5

7

Ratio1

0.49

0.51

Cancer 6 1.07

All Causes 20 0.87

Exposed to Both

Amitrol and Phenoxv

Acids

Cancer 6 2.08

All Causes 18 1.47

All Exposures

Cancer 17 1.43

All Causes 45 0.92

Deaths Not Less

Than 10 yrs After

First Exposure

Obs Ratio*

3 1.54

4 0.89

6 1.91

17 1.36

6 3.37

15 2.07

15 2.18

36 1.30

X-77

In comparison with population mortality rates, workers

exposed to both amitrole and phenoxy acids showed an

increase in mortality from all causes of death and cancer

specifically. An excess of cancer deaths was evident in

those exposed to amitrole alone and to phenoxy acids

alone. Accordingly, it was not possible to distinguish

between the possible effect of the two exposures or of

other herbicides to which the workers were exposed. Two

deaths in amitrole-exposed workers were certified due to

lymphoma, none were certified due to soft-tissue sarcoma.

This study provides some evidence of increased mortality

from all causes and from cancer specifically in men

exposed to herbicides. It is not possible to implicate

phenoxy herbicides specifically. Another factor which

limits the extent to which causality can be inferred is

the lack of any analysis showing relative mortality by

degree of exposure to herbicide (e.g. by days worked with

herbicides). Professor Axelson conceded in evidence that

his conclusion was as close as one can get to a negative.

(See also Chapter VI, Health Effects and Chapter VIII,

Cancer) .

X-78

Riihimaki and Hernberq

The Commission obtained a copy of a 1982 report by

53

Ri ihimaki et al of the results of a follow- up of 1926

men employed in Finland for at least two weeks between

1955 and 1971 in the spraying of 2,4-D and/or 2.4.5-T to

control brushwood growth. The cohort was assembled in

1972 and at that time only one quarter of them had worked

for eight weeks or more in spraying these herbicides.

Some may have accumulated additional exposure

subsequently. A total of some 16694 person-years of

follow-up were accumulated in the nine years of

observation to the end of 1980.

The results of this study, which appear in the following

table, indicate that the number of deaths, both from all

causes and from cancer, were less than expected from

population rates. This is consistent with the operation

of the 'healthy worker' effect.

I

X-79

TABLE 16

Riihimaki et al Study

Cause of Death All Deaths Deaths Not Less

Yrs After First

Than 10

Exposure

obs . . ratio obs ratio

Cancer 26 0.71 20 0.82

All Causes 144 0.78 88 0.74

No individual site of cancer showed an appreciable excess

of observed deaths over that expected. There were no

deaths from lymphoma or soft-tissue sarcoma. This study

provides no evidence of an effect of herbicide spraying on

the mortality of Finnish workers. The strong 1 healthy

worker1 effect and the likelihood of quite low average

exposure operate to reduce the likelihood of a positive

result being obtained in the event that there is. in fact,

a harmful effect resulting from the use of herbicides.

This study revealed no significant cancer excess and

indeed mortality and morbidity from cancer were about 75%

of national levels.

X-80

Zack and Suskind

An analysis was conducted of the mortality experience of

workers exposed to dioxin in a trichlorophenol process

accident at the Monsanto Company plant in Nitro, West

54

Virginia. A report of the study was exhibited.

The population of this study was 121 males who developed

chloracne following an uncontrolled hydrolization of

1,2.4.5-tetrachlorobenzene to 2,4,5-trichlorophenol (i.e.

a process involving the decomposition of the former

chemical into the latter by the extraction of water). The

products of the reaction escaped into the atmosphere

through a relief valve on 8 March 1949. All subjects were

followed up until 31 December 1978.

The following table shows the results of this study for

which no analysis of mortality (with any particular

latency period) was given.

X-81

TABLE 17

Zack and Suskind Study

Cause of Death obs. exp. ratio

Cancer 9 9.04 1.00

All Causes 32 46.41 0.69

There were five lung cancers (2.85 expected), three

lymphatic and haematopoietic neoplasms (0.88 expected) and

one fibrous histiocytoma of the skin. The small size of

the cohort and strong 1 healthy worker1 effect make the

drawing of firm conclusions from this study difficult,

although it does not support any impact on mortality by

TCDD. There is no indication of any excess of death in

exposed employees.

Theiss et al

Twenty-seven years after an accident which occurred at the

BASF Ludwigshafen plant in 1953, a mortality study of

persons exposed to dioxin in that uncontrolled reaction

X-82

during a trichlorophenol process was undertaken. The

results were published in the American Journal of

Industrial Medicine (1982) Volume 3, pp 179-189 in a

report entitled "Mortality Study of Persons Exposed to

Dioxin in a Trichiorophenol-Process Accident Had Occurred

in the BASF AG on November 17. 1953".55

The study involved a follow-up of 70 persons exposed to

dioxin and other toxic products. A further four subjects,

involved in the clean up processes during the succeeding

two years, were included in the study. Of this total of

74 people, 66 had developed chloracne or "severe

dermatitis". The follow-up was complete to 1976.

Comparisons of mortality experience were made with matched

cohorts from the unexposed workers and the general

population. The results, summarised in Table 18 below,

indicate some increase both in respect of all causes of

death and death due to cancer.

X-8 3

TABLE 18

Theiss et al. Study

obs . exp. ratio

Cancer 7 4.22 1.66

All Causes 21 18.5 1.14

Three of the cancer deaths were due to stomach cancer (the

expected number was 0.61 and the ratio 4.92). There were

no deaths from lymphoma or soft-tissue sarcoma. Similar

differences were observed when a comparison was made with

other cohorts and the introduction of a 10 or 20 year

latency period did not alter the mortality differences

greatly. Due to the comparatively small number of

subjects the small observed mortality excesses in persons

exposed to dioxin might reasonably be attributed to

chance. Observe also that no excess of stomach cancers

emerges in any of the other industrial exposure studies

nor in Ranch Hand I, Ranch Hand II nor the AVHS Study.

Ott et al

This study56 involved the identification of all men who

worked in a 2.4.5-T manufacturing area between January

X-84

1951 and January 1971. A total of 204 men were found to

have worked there for at least one month and 201 thereof

were traced to 31 December 1976.

The results are shown in Table 19 below. The one observed

cancer was a respiratory cancer which occurred in a

cigarette smoker; the six deaths from external causes

comprised 4 accidents and 2 suicides.

TABLE 19

Ott et. . al. Study

Cause of Death obs . exp. ratio

Cancer 1 3.6 0.28

External Causes 6 3.7 1.62

All Causes 11 20.3 0.54

There was little evidence of any emerging excess of

deaths, either overall or from any specific cause. in

those exposed to the process for a long time or following

a long latent interval from the first exposure. The small

number of deaths and the strong 'healthy worker' effect

X-85

operate against the likelihood of observing an excess of

mortality from less common causes. No adverse effect on

mortality has been observed to be associated with this

work environment.

Cook et al

Sixty-one men engaged during 1964 in a trichlorophenol

manufacturing area, among whom cases of chloracne had been

observed, were followed up to 31 December 1978.

Forty-nine of the men had "acne-like" lesions. The

results of this study by R . R . Cook, J . C. Townsend, M. G.

Ott and L.G. Silver stein are published in the Journal of

Occupational Medicine (1980) Volume 22 at pages 530-532

and titled "Mortality Experience of Employees Exposed to

2,3,7,8-Tetrachlorodibenzo-p-dioxin (TCDD)".57 The

following Table summarises the results:

X-86

TABLE 20

Cause of Death

Cook et. al.

obs.

Study

exp. ratio

Cancer 3 1.6 1.88

Cardiovascular 1 3.8 0.26

Other - 2.4 -

All Causes 4 7.8 0.51

One of the cancer deaths was from fibro-sarcoma, a type of

soft tissue sarcoma. However, the small number of deaths

does not permit conclusions to be drawn from these data

alone.

The magnitude of the dose is also relevant.

Jirasek et al

The mortality of workers in a 2.4,5-T factory in

Czechoslovakia is referred to in a report of the US

National Institute of Environment Health

Sciences/International Agency for Research on Cancer

(NIEHS/I ARC) Working Group which met during January 1978

in Lyons, France to review the history of human exposure

X-87

to these chemicals„ to collate current information and to

plan and forecast needed new directions. The report,

entitled "Long-term Hazards of Polychlorinated

58

Dibenzodioxins and Polychlorinated Dibenzofurans"

describes the results of the follow-up of 55 workers from

a 2,4,5-T factory in Czechoslovakia who had developed

chloracne. Six deaths had been observed with two from

lung cancer whilst 0.12 deaths were expected on the basis

of population rates. The inadequacy of the reporting of

this study limits its usefulness.

Summary

Dr Armstrong summarised in Table 21 the results of the

abovementioned Studies and presented the results of adding

the respective numbers of observed and expected deaths

from the Studies (i.e. Table 21 is an aggregation of

Tables 14 to 20 inclusive).

X-88

TABLE 21

Summary of Results

1.

2 .

3.

Tables All Deaths Deaths 10 or More

Included Years After First

Exposure

Obs . Ratio Obs. Ratio

Herbicide sprayers and forestry workers

External causes 14 + 15 44 1.38 22 1.32

Natural causes except cancer 14 + 15 98 0.71 64 0.70

Cancer 14-16 43 0.84 35 1.05

All causes except cancer 14-16 168 0.86 106 0 .86

All causes of death 14-16 211 0.85 141 0.90

Trichlorophenol and 2,4.5-T process workers.

External causes 17-19 1.40 3 1.76

Natural causes except cancer 17-19 34 0.58 4 0.42

Cancer 17-20 20 1.08 1 0.38

All causes except cancer 17-20 48 0.64 7 0.63

All causes of death 17-20 68 0.73 8 0.58

All exposed workers

External causes 57 1.39 25 1.36

Natural causes except cancer 132 0.67 68 0.68

Cancer 63 0.90 36 1.00

All causes except cancer 216 0.80 113 0.84

All causes of death 279 0.82 149 0.88

X-89

Notes

(1) From Table 14, only foremen and exposed workers have

been included.

(2) From Table 15, those exposed to phenoxy acids and

both amitrole and phenoxy acids have been included.

(3) The data in Section 2 above for deaths ten or more

years after first exposure is obtained from Table 19

only.

(4) Section 3 has been obtained by adding the observed and

expected numbers from Sections 1 and 2 then

calculating the ratio thereof.

This summary indicates that overall the mortality was

substantially affected by the "healthy-worker" effect; a

small increase in cancer mortality with some suggestion

that it was greater after a ten year latent period, and a

significant excess in mortality from external causes.

Dr Armstrong offered four broad categories of explanation

for these findings:

(i) Chance - probably not tenable except for the small proportionate increase in cancer mortality.

(ii) Bias - the "healthy-worker" bias applies. Its operation has reduced the likelihood of observing other real positive associations between working with herbicides and

mortality - if they are there.

X-90

(iii) Confounding - that is there are other

differences between workers exposed to herbicides and the general population which explain the results. For example a higher alcohol intake with the associated

behavioural problems might well explain the excess of deaths from external causes.

(iv) A causal effect of exposure to herbicides - neither established or refuted on the basis of these data. The evidence would be more powerful if a dose-response relationship

could be demonstrated in the data.

Generally, the guality of data on herbicide exposure was too low to permit examination of dose-effects. Important likely

confounding variables probably do exist in some of the data sets, e.g. lifestyle

variables such as diet, alcohol intake and tobacco smoking. They might well explain the weak positive association with cancer mortality as well as the association with

"violent" death.49

7.2 Australian Regional Studies

MacLennan et al

The second category of mortality studies with which Dr

Armstrong's statement dealt was that of the regional

mortality in Australia in relation to herbicide usage.

The first such study was titled "Cancer in the Blue

Mountains of New South Wales" by R. MacLennan, J . Ford and

M. Coates.59 It appeared in the Medical Journal of

Australia (1982) Volume 2, pages 319-323 and dealt with an

investigation of the incidence of cancer and mortality for

the years from 1974-78 in the Blue Mountains area of New

X - 9 1

South Wales where 2,4,5-T had been widely sprayed.

Existing data was used to obtain population data. The

incidence of cancer was obtained from the files of the New

South Wales Cancer Registry and supplemented with data

from an ad hoc survey of doctors practising within the

Blue Mountains area. This study thus involved a

consideration of routinely collected data which, when

analysed, showed slightly lower rates of cancer in the

Blue Mountains area than in New South Wales as a whole: 8

per cent less for incidence and 5 per cent less for

mortality. Some instances of an observed excess incidence

of mortality for particular sites of cancer were found but

these may easily have arisen by chance. A lack of data on

individual exposure and the likely non-comparability of

the Blue Mountains population with the population of New

South Wales in other ways relevant to cancer make this

study of little value as a negative result, i.e. that

herbicide spraying does not affect the incidence of cancer

and mortality therefrom.

McCabe et al

The Medical Journal of Australia, 29 September 1984 pages

412-414 contains details of a study reported under the

title "Cancer of Lymphatic Tissues in Cane Growing Areas

X-92

of Queensland" by M. McCabe, M. Nowak, R. Hamilton and P .

Hartshorn.60 The motivation for the study arose from

the death from leukaemia of a cane farmer who had

experienced substantial exposure to agricultural

chemicals. It analyses statistics in the tropical, urban

district of Townsville and in cane growing areas of

Queensland and compares these results with figures for the

general population. No attempt was made to collect

Information on the extent of exposure, the study being

essentially descriptive ie. making use of existing data

sources.

Population data was obtained from the Australian Bureau of

Statistics Census and other publications. The number of

deaths and standardised mortality ratios were calculated

for leukaemias and lymphomas occurring amongst men and

women during the period 1960-81: first, for the period

1960-67 and second for the period for 1968-81. A

significant excess mortality from leukaemia was found in

men aged 60 years and over in the cane growing areas

whereas there were significantly fewer deaths from this

disease in women aged 60 years and over. Page 23 of Dr

Armstrong's written statement61 was a copy of an article

he wrote for the same issue of the Medical Journal of

Australia in which he noted that these results were

X- 9 3

consistent with the frequently reported observation that,

the mortality rate from leukaemia in the US is higher in

farmers than males in other occupations. It is notable

that the study did not indicate any elevation in respect

of lymphomas or soft-tissue sarcomas which have been the

subject of specific allegations by WAA.

As Dr Armstrong concluded on page 24 of his written

statement:

The two studies reviewed in this section provide no direct or persuasive link between herbicide use and mortality from cancer. Nor do they

establish or encourage belief in the lack of any such association. Apart, therefore. from the possibility that they may encourage further research, they are essentially non-contributory on this issue.

Victorian Agricultural Workers

The Commission also received evidence from Professor

Mathews regarding a study of the mortality experience

of 2,181 Victorian agricultural workers who had

sprayed 2,4-D and 2.4.5-T for a period of at least 12

months and up to 25 years. This study is considered

in detail in Section E.l of Chapter VIII,

Health Effects-Cancer. Suffice it to say that, on

any view, these men were heavily exposed. The study

X-94

provides strong evidence that even heavy exposure to

phenoxy herbicides does not cause any increase in

deaths from cancer.

7.3 U.S. Vietnam Veteran Mortality

Lawrence et al

The third series of studies which Dr Armstrong considered

in his statement were those studies which dealt with the

mortality experience of Vietnam veterans. C. E. Lawrence,

A. A. Riley, P. Quickenton, P . Greenwald. W. F. Page and

A. J. Kuntz have submitted a paper entitled "Mortality

Patterns of Vietnam Era Veterans"62 to the American

Journal of Public Health. That paper deals with the

results of a study conducted in New York State. Two

comparisons are made. First, a comparison of the

proportionate distributions of cause of death in Vietnam

veterans which was done by examining 1496 deaths which

comprised BBS Vietnam veterans and 941 non-veterans of the

Vietnam era. The second was an analysis of the

proportionate distributions of cause of death in veterans

(not classified as to whether veterans of Vietnam or not)

and non-veterans in 22,494 deaths in New York State in the

period 196B to 1980 excluding 1968 and 1969.

X-9B

Combat-related deaths were excluded from consideration in

each comparison.

I n the first set Of data. the notable findings were

relative excesses of dea th in Vietnam veterans from

"non-motor vehicular injuries of transport" for which the

relative risk was 2.34, "other accidents and burns"

(relative risk = 1.44) and "liver disease including

cirrhosis" (relative risk = 2.20). These categories of

cause of death were not in excess in the second set of

data comparing veterans with non-veterans except for

"non-motor vehicular injuries of transport" for which the

relative risk was 1.70.

At least 19 of the 21 Vietnam veterans who died from

"liver disease including cirrhosis" were alcoholics.

There was no evidence of an increase in mortality from

soft-tissue sarcomas or lymphomas in Vietnam veterans. It

is of interest to note that all three categories of cause

of death highlighted as being in excess in Vietnam

veterans in this study fall within two of the three

categories highlighted as being in excess in Australian

veterans of the Vietnam conflict as revealed in the AVHS

Mortality study previously referred to. namely diseases of

the digestive system (which includes "liver disease

X-96

including cirrhosis") and external causes (which includes

"non-motor vehicular injuries of transport" and "other

accidents and burns").

Ranch Hand Mortality Study

Operation Ranch Hand was the US Airforce (USAF) operation

in Vietnam which involved the spraying of phenoxy acid

herbicides from fixed-wing aircraft. The Ranch Hand

Mortality Report63 and the first update to that Report

64

dated 27 July 1984 concern the mortality of the group

of veterans undoubtedly the most heavily exposed to Agent

Orange. A total of 1256 Ranch Hand personnel were studied

and their mortality compared with that of 9982 matched

comparison subjects. The comparison subjects, matched by

age, job, category and race, had been members of USAF

units which flew cargo to and from Vietnam during the

period of Operation Ranch Hand but who were not exposed to

herbicides. The follow-up included all deaths known to

have occurred up to 31 December 1983.

The following table is obtained from Table 14 appearing on

page 12 of the update report of 27 July 1984 and indicates

death rates subdivided by job category and groupings for

year of birth. 1

X-97

TABLE 22

Ranch Hand Mortality Study

Job Category Year of Birth Ranch Hand Death Rate Comparison Death Rate

Relative Risk

Officer before 1935 0.030 0.068 0.44

after 1935 0.035 0.020 1.75

Flying before 1935 0.041 0.077 0.53

after 1935 0.030 0.028 1.07

Enlisted before 1935 0.098 0.084 1.16

after 1935 0.030 0.026 1.15

Ground before 1935 0.112 0.073 1.53

after 1935 0.032 0.022 1.45

As there was a total of only 54 deaths in Ranch Hand

personnel, cause-specific analysis gave rise to problems

of small numbers. For all groups of Ranch Handers there

was an excess of mortality from homicide (relative risk

2.68) and diseases of the digestive system (relative risk

1.91). Neither was statistically significant. These

excesses were present in the ground staff with a small

excess, in deaths from circulatory diseases (relative risk

1.34), also not statistically significant. In fact, none

of the analyses contained in the report gave rise to a

result which was statistically significant. It is of

interest to note that this pattern of cause-specific

mortality excesses is similar to that observed in the AVHS

Mortality Study.

X-98

There was no indication, however, based on the study's

measures of exposure to herbicides, that these mortality

differences bear any relationship to herbicide exposure.

The report provides no comparison between Ranch Handers

and the comparison group with respect to other variables

possibly relevant to mortality.

The Ranch Hand Morbidity report indicates that that study

had:

(i) not identified statistically significant

differences for illnesses commonly attributed

to dioxin exposure,65

(i 1) demonstrated that there was insufficient

evidence to support a cause and effect

relationship between herbicide exposure and

adverse health;66 and

(iii) provided reassuring results for Ranch Handers

and their families.67

The second update to the Ranch Hand Mortality Report,

dated 10 December 1984 (Exhibit 1986), contains nothing to

contradict such conclusions. It demonstrates that:

X- 9 9

... the Ranch Hand officers had a

nonstatistically significant though slightly lower death rate than their comparisons, Ranch Hand flyers had a nonstatistically significant though slightly lower death rate

than comparisons, and Ranch Hand ground personnel had a slightly higher but

nonstatistically significant death rate than the comparisons.68

Furthermore, that:

When compared to the 1978 U.S. white male population, the Ranch Hand officers,

comparison officers, and comparison enlisted are living significantly longer than

expected. Although Ranch Hand enlisted are also living longer, the difference is not significant.69

Kogan et al

A study of the mortality patterns of Vietnam veterans in

Massachusetts, USA by Kogan et al, which was completed in

January 1985, became Exhibit 1872. It is fully considered

in Section D.2.(e) of Chapter VIII: Health Effects -

Cancer. It is thus sufficient to here indicate that the

study does not have regard to exposure to Agent Orange or

other chemical agents and thus adds nothing to the issue

of whether an association between exposure to phenoxy

herbicides and soft-tissue sarcoma exists. The Commission

finds this study inconsistent with the other work and

therefore suspect. It cannot, however, be ignored.

X-100

HEALTHY-WORKER" EFFECT 8 .

In a consideration of the various mortality studies,

reference has been made to a feature termed the

"healthy-worker" effect. This is a term used to denote

the favourable health and/or mortality experience of a

particular group of people when compared with that of the

general population. It may arise in a number of ways: the

mortality experience of life assurance policy holders may

be less than that of the population due to a practice of

requiring a medical examination prior to accepting risk;

or workers in a particular industry may be healthier due

to the very nature of the work, e.g. work which is

physically demanding such that those who are not fit are

unable to cope with the work requirements.

Army recruits undergo a medical examination at enlistment

and, during the initial training period, are screened for

suitability. Furthermore, a program designed to achieve

or improve the physical fitness of recruits forms part of

that initial training. Hence National Servicemen as a

group may be expected to be healthier than Australian

males of the same age who were either not selected for

National Service or who were selected but rejected on

health grounds. This particular example of the

X-101

"healthy-worker" effect which might be more appropriately

termed the "healthy-soldier" effect suggest that National

Servicemen in the Army may be expected to have a better

life expectancy, i.e. a lower mortality rate, than men of

the same age In the general Australian population. The

results of the AVHS Mortality Study suggest that this

effect was in fact present amongst National Servicemen.

It is important that this "healthy-soldier" effect be

borne in mind when interpreting the results of any such

study. Another aspect which should be emphasised is that

the "healthy-soldier" effect will be most evident in the

early years after the initial selection of healthy people

to serve in the Army and that the magnitude of any

difference in mortality rates may be expected to decrease

with time since the recruitment examination and

selection. This proposition is derived from literature on

follow-up studies of employees and military personnel.

Professor Mathews has represented the "healthy-soldier"

effect diagramatically as appears in the following • 70

diagram which he drew in the witness box.

X - 102

v ^ovrKUwUj

S waits ;

% ^

X-103

STUDIES OF MORTALITY IN VETERANS OF OTHER WARS 9 .

Professor Mathews also gave evidence on the effect of war

service on subsequent mortality as revealed by studies

which dealt with veterans of previous wars and veterans

from other countries„ notably the United States. Specific

reference to individual studies was not made and those

studies were not exhibited. However, copies of these

studies were made available to the Commission and to

Counsel: a list thereof forms Appendix 1 to this Chapter.

To the extent that Dr Mathew's written statement dealt

with the results shown by these studies he was not

challenged in cross-examination. That portion read as

follows:

What then can be said about the effect of war

service on subsequent mortality. There have been several reports of mortality in the post war period for large numbers of veterans of war

service, particularly US veterans of World War 11 - Veterans of the World War II era are much

more likely to be representative of the general population of the US than are soldiers serving in the peace time regular army. Thus although the studies of u s veterans after World War II show a healthy soldier effect, they are unlikely to be subject to the bias arising from atypical

personal characteristics or atypical smoking and drinking habits in the veteran population.

After returning from World War II, US veteran mortality was not increased overall relative to the general male mortality of the US; in fact it

X-104

was somewhat decreased, corresponding to a small healthy soldier effect.

Excess mortality in the six year period after World War II was marked only in the sub-group of US veterans who had been prisoners of war of the Japanese. In the six years after World War II,

repatriated prisoners of war from Japanese camps were more prone to death from accidental causes, from tuberculosis, and from cardiovascular disease. These differences would be attributed

by most commentators to the effects of

malnutrition, stress and infectious disease incurred while in the prisoner of war camp.

In contrast there was no excess mortality in prisoners-of-war from the European prison camps, even though there would also have been stress involved there.

Morbidity or ill health in World War II veterans from the US Army was increased in survivors from Japanese prisoner of war camps particularly in areas related to psycho-neurosis, infectious

disease and malnutrition. These morbidity conditions were more evident in the survivors of Japanese camps than those who had been in prison of war camps in Europe. Similar results have

been found with studies of (the) Australian veteran population after World War II.

Short term effects of stress have been documented as a result of imprisonment in Vietnamese or Cambodian concentration camps. Psychiatric and behavioural symptoms have been documented some years after the stress of imprisonment (sic) had

been finished. Similar symptoms of

post-traumatic stress disorder have been related to Vietnam war experience without imprisonment. It would be anticipated that the mortality in veterans suffering from such post-traumatic

stress disorder would be increased relative to other veterans. I do not know of any documentary evidence to prove this proposition.71-

In his oral evidence Professor Mathews supplemented his

written statement in the following terms:

X-105

Now, the excess mortality that is seen in the US studies and also in some Australian data after World War II is consistent with what has been found in the Australian mortality study after Vietnam, namely, the early deaths related to

behavioural - possibly alcohol-related deaths, external causes. The one exception is that after World War II there were excess deaths related to infectious disease in those who had been in

prisoner of war camps and I understand the

Australian study, a small number of excess deaths from tuberculosis as well. To conclude, what has been found in the Australian mortality study in that respect is consistent with the small effects that may be related to war service and

particularly to the stress of prisoner of war situations that have been found in other

studies.72

Four different reasons were advanced by Professor Mathews

as explanations for any difference between the mortality

experience of Australian veterans of the Vietnam conflict

and that of those who did not serve in Vietnam:

(i) The characteristics of National Servicemen being

sent to Vietnam might differ from that of those

not sent to Vietnam in ways which might

subseguently affect their mortality;

(ii) That, because of their Vietnam experience,

soldiers might change their behaviour in relation

to drinking, smoking or other lifestyle factors

in such a way that their subseguent mortality

might be altered;

X - 106

(iii) A delayed effect on mortality resulting from

combat stress or some other stress arising from

the Vietnam environment; and

(iv) Exposures in Vietnam such as exposure to Agent

Orange or other chemicals might have an effect on

subsequent mortality.

The AVHS Mortality Report (Exhibit 1761) noted the results

of studies of other service groups at page 88 of Part I

and, as a result of the statistically significant result

in respect of circulatory diseases (as summarised

previously in Table 8), suggested possible explanations

for the obtained result:

Observations concerning circulatory diseases have been made in other service groups as well. In 1951, mortality from coronary heart disease among non-officer ranks of the British Army aged 25 to

34 years was 1.4 times that expected from British male death rates (Kilpatrick, 1963). Lynch and Oelman (1981) found that mortality from coronary heart disease among 20-39 year old male members

of the British Army (between 1973 and 1977) was 1.9 times that expected from the male population of the United Kingdom (0.3 for officers and 2.2 for soldiers). This has been attributed to

higher than United Kingdom average cigarette smoking among soldiers. British soldiers are known to smoke more than other British men of the same age, (Crowdy and Sowden, 1975). Seltzer and

Jablon (1977) found among United States WW II veterans that mortality from ischaemic heart

X - 107

disease and cerebrovascular disease among former privates was twice that among former officers, while Keehn (1974) found mortality from

cardiovascular disease among former privates was twice that among former sergeants. Similarly, males in the Australian Armed Forces between 1975 and 1977 had a death rate from ischaemic heart disease which was 1.93 times that expected, and

the death rate from cerebrovascular disease was 1.73 times that expected (Taylor et al., 1983).

Excesses of death from circulatory diseases in such context have also been attributed to

essential hypertension secondary to alcohol consumption (Mathews, 1979). In this context, it is noteworthy that in Vietnam, but not in

Australia, alcohol and cigarettes were heavily subsidised. Further, commentators in the Army have claimed that acute respiratory disease was common among soldiers in Vietnam, as was

drunkenness among men not on duty. These aspects of Vietnam service are described more fully in Appendix IX. In view of these claims and the

very limited avenues in Vietnam for the release of tension for soldiers, it is likely that

alcohol and tobacco consumption could have been higher amongst servicemen in Vietnam than it might have been had they served in Australia. Such patterns of consumption may have persisted

into post-service life. Alternatively, or in combination, men with greater pre-service alcohol and tobacco consumption may have been more likely to be posted to Vietnam.

Sections IX.7.5 and IX.7.6 on pages 210 and 211 of Part I

of the Australian Mortality Study deal with alcohol and

tobacco respectively as follows:

IX.7.5 Alcohol

Alcohol was heavily consumed by Australian troops in Vietnam. Servicemen were not permitted to drink while in the field, and this regulation was

X - 108

observed to a large extent. This meant that each serviceman's ration of [2] cans of beer per day accumulated, allowing binges of very heavy alcohol consumption to occur when servicemen returned to base from operations. However, it appears that this restriction of [2] cans per day

could be circumvented since among those

servicemen who did not go on operations

overnight, some were observed to be intoxicated on most evenings. Apparently beer formed the currency for an informal market in various

commodities. Alcohol consumption was encouraged by the heavily subsidized price structure, the social organisation and the lack of alternative recreational outlets. Beer was 15 cents a can

and a bottle of spirits cost $A1. Further, each Infantry company (of about 120 servicemen) had its own canteen, which was a primary site for sale and consumption of alcohol and for

socializing.

These data suggest that two extreme patterns of alcohol consumption may have occurred.

Servicemen in Infantry and as attached to

Infantry units, which went on patrols in the field, may have tended to consume alcohol in binges after returning from patrols. Servicemen who tended to remain in base areas and not go

into the field, for example, those in non-field corps, may have tended to consume alcohol

regularly. Armour. Artillery and corps with minor field presence had patterns of service in the field which were intermediate between

Infantry and non-field corps. By contrast, the functions of Engineers were varied. Servicemen in construction and workshop and park squadron tended to be in base at night, while those in

field squadrons may have been attached to

Infantry or Armour, and would have followed the pattern of their unit of attachment.

Alcohol was subsidized in army camps and

establishments in Australia, although the level of subsidy was much less than in Vietnam. With the social dislocation of service in Australia, and limited recreational outlets during the

evenings, it is possible that service in

Australia may also have been associated with an increase in alcohol consumption.

X-109

IX.7.6 Tobacco.

In Vietnam packets of cigarettes were one-fifth their price in Australia. Further. cigarettes were available free from the ration packs

servicemen used while in the field, and every few days, boxes of refreshments that included free cigarettes were delivered to servicemen in the field.

While on operations„ servicemen were only

permitted to smoke during rest breaks. Also, they were not supposed to smoke at night or while lying in ambush, due to the risk of detection by the enemy. No restrictions on smoking in base areas have been noted, apart from obvious safety precautions.

Medical officers have reported that all canteens were full of tobacco smoke during the hours they were open, and that acute respiratory ailments were frequent among servicemen, with a

considerable number of servicemen developing bronchopneumonia. One medical officer reported that on several occasions, soldiers commented to him that they were smoking five times the number of cigarettes they used to consume in Australia, since the subsidy meant that the total cost was the same. This officer was of the opinion that many servicemen started smoking in Vietnam.

Dr Fett acknowledged that there was a relationship between

circulatory disorders and the consumption of

cigarettes. Unfortunately, no data on cigarette

consumption was available to those responsible for the

conduct of the AVHS Mortality Study and further scientific

analysis is not possible.

X-110

10. INTERPRETATION OF NEGATIVE RESULTS

Many of the studies referred to earlier in this Chapter

disclosed results which suggested that exposure to

chemical agents had not caused and was not causing

increased rates of mortality amongst studied populations.

Dr Armstrong's evidence included a consideration of this

issue. A paper entitled "Interpretation of Negative

Results in Epidemiological Studies" by Dr Armstrong was

74

exhibited together with a paper by Sir Richard

75

Doll, Emeritus Professor of Epidemiology and, until

recently. Master of Green College at Oxford University.

Dr Armstrong indicated that, before reaching a negative

conclusion, a number of considerations apply:

(i) Bias. It may be that a "no-effect" result has

occurred due to the presence of some aspect of study

design or the group studied which operated to

promote such a result. One such common bias is the

"healthy-worker" effect dealt with previously.

(ii) Consistency. Obviously, a negative conclusion will

be more persuasive if several studies of different

X-lll

populations conducted by various investigators

suggest such a conclusion. Of course, if the data

from which a result has been derived is unique, then

the issue may never be resolved with any scientific

certainty.

(iii) Biological Plausibility. A negative conclusion will

be more readily reached if a positive result is

biologically implausible on the basis of current

knowledge.

(iv) Confounding. The possibility of negative

confounding (i.e. a truly causal effect masked by a

positive correlation with exposure to some

protective agent or a negative correlation with some

other truly causal agent) should be considered and

be capable of exclusion.

(v) Statistical Precision. The mathematical probability

of correctly rejecting a no-effect hypothesis is

known as the power of a study. Clearly, confidence

in a no-effect or negative conclusion increases with

the power of the study which suggest that

conclusion. Recognised statistical methods may be

used to determine an interval within which the true

X - 112

result is thought to be with a certain degree of

confidence. This is termed the confidence interval

and the endpoints of this interval, the confidence

limits. If the confidence interval were small or if

the confidence limits are close to the no-effect

result, then a negative result will be more

persuasive. Such statistical techniques may be used

to support or detract from a negative conclusion.

(vi) Size. Clearly the number of subjects studied

affects the level of confidence in the results

obtained.

As Dr Armstrong noted in his written statement on this

topic:

It is important to recognise that a negative result, no matter how well supported. is

necessarily relevant only to exposures and times elapsed since exposure which are within the range of the observations made. Exposure, in this sense, means not only dose, but also route of administration and the presence or absence of possible modifying factors.76

The views of Peto and Doll are summarised as follows:

Unless epidemiologists have studied reasonably large, well-defined groups of people who have been heavily exposed to a particular substance for two or three decades without apparent effect, they can offer no guarantee that continued

X-113

exposure to moderate levels will, in the long run, be without material risk. For this reason prudent restrictions on occupational or public exposure to various substances often have to be based on indirect inference from laboratory studies of the agent being examined, without any direct evidence concerning its actual effect on humans. That is not to say that human evidence can ever be dispensed with. It is always

relevant, but the weight that can be given to it varies greatly with the duration and intensity of the exposure experienced.... Negative human

evidence may mean very little, unless it relates to prolonged and heavy exposure. If, however, it does and is consistent in a variety of studies (correlation studies over time, cohort studies of exposed individuals and case-control studies of

affected patients). whereas the laboratory evidence is limited in scope to, for instance, a particular type of tumour in a few species,

negative human evidence may justify the

conclusion that for practical purposes the agent need not be treated as a human carcinogen. In practice it is, of course, not usual for such perfect negative evidence to be available, but even less conclusive negative human evidence may help determine priorities between different lines of action.77

In a situation where a negative result is suggested, the

risk of drawing an incorrect conclusion may be important.

This risk involves a value judgment rather than scientific

assessment. The level of risk which might be considered

as negligible or "socially acceptable" is highly

subjective.

On the topic of negligible risk figures of 0.001 per cent

(ie. l in 100,000 or 10-5) or less have been suggested,

sir Richard Doll,78 quoted the report of a Royal Society

(1983) study group:

X-114

There may be a wide spread of individuals'

views.... and decisions are likely to leave some people feeling they are exposed to risks calling for further control. There is a widely held

view, 'though perhaps better described as speculation', that few people would commit their own resources to reduce an annual risk of death that was already as low as 10~5 and that even

fewer would take action at an annual level of 10~6 .... while the manufacture of a product

might for the sake of his good name seek to keep the numbers of possible deaths very low, not all the inhabitants of the country will buy his

product, and so ... the figure of 10~6 is

probably still appropriate. except perhaps if clear causal links are established in the risks from certain consumer products. In such

circumstances we would consider 10-7 to be an annual level below which further control was certainly not justified, but even then the

further problem of the very salient situation .... may well remain.79

Where human health and safety is involved, it may be that

precautionary steps or corrective action is taken even

though the available scientific studies suggest a negative

conclusion. Such measures reflect caution due to the

chance of being wrong, not a positive conclusion. For

example, protective measures may be recommended for the

use or application of a chemical even though the available

studies suggest that it is safe.

11. INFERENCE OF CAUSATION

Causation is not proved by the mere existence of a

statistical association: alternative explanations need to

X-115

be considered. Epidemiology does not purport to provide

complete proof of causation - it cannot absolutely

establish that a particular exposure causes a certain

health effect although it can provide substantial evidence

for such a proposition, thereby suggesting preventive

measures.

Apart from the factors considered in the previous section,

the following aspects would normally be required before a

causal relationship may be inferred:

(i) A high relative risk;

(ii) Specific results i.e. strong association between

exposure and outcome;

(iii) Dose-response relationship i.e. increasing exposure

associated with an increasing incidence of the

health effect;

(iv) Natural experiment i.e. if changes in the level of

risk factors produce an altered level of incidence

of the health effect.

It is clear from even these four considerations that

accurate records of exposure are most desirable, notably

X-116

in the area of dosage levels. In the absence of such

detailed records it becomes more difficult to reach a

positive conclusion.

12. CONCLUSIONS

The material produced by W A A demonstrates that the

allegations made by its journal and submissions could not

be substantiated by the material held. W A A was prepared

to disclose the existence of various registers to the

media; the descriptions which appeared in a number of

newspapers were most graphic. Such registers were never

produced to the Commission. W A A asserted that all the

information contained in the registers was included on the

lists provided to the Commission.

Furthermore, Counsel for W A A led no evidence at the

Mortality Hearings of the Commission. Given the content

of the initial submission made, the Commission views with

concern the absence of evidence adduced to support the

claims which were advanced.

The closing submissions received from Counsel for W A A

were scant on the topic of Mortality, being confined to a

single submission directed to the AVHS Mortality Study.

X-117

That submission reflected a lack of understanding of such

studies in general and that one in particular.

A proper consideration of the AVHS Mortality Study

establishes the following propositions:

(i) Vietnam veterans are experiencing lower rates of

mortality than other Australian males of the

same age (83% of a level which would be expected

if the mortality rates were the same);

(ii) They are probably experiencing slightly higher

rates of mortality when compared to National

Servicemen who did not serve in Vietnam;

(iii) This excess, if it in fact exists (i.e. if the

result is not due to other factors such as

chance), is not caused by chemical agents;

(iv) Such an excess may best be attributed to an

increase in risk-taking behaviour, in smoking

and drinking connected with Vietnam service;

(v) There is no statistically significant increase

in death from suicide or cancer although a small

X-118

increase in suicide rates by comparison with

non-veteran National Servicemen cannot be

excluded:

(vi) Suicide rates amongst Vietnam veterans are no

higher than for Australian males of the same age;

(vii) Cancer rates amongst Vietnam veterans are no

higher than for Australian males of the same age.

This study was recent, it was a study of Australian

servicemen and it was a study of significant size,

involving as it did all National Servicemen (subject to

certain limited criteria). The Commission accepts the

results of this study and congratulates those responsible

for its conduct and their associated report.

The Commission has considered other mortality studies:

those relating to exposed workers, the Australian regional

studies and the studies of the mortality experience of

Vietnam veterans in the United States. Such studies do not

cause the Commission to alter any of the above findings.

In fact, the evidence to support WAA's allegations is so

scant it is a wonder that it ever gained public credence.

X-119

Throughout the life of the Commission the DVA showed a

keen interest in ascertaining all available information in

respect of deceased veterans to enable further analysis.

As well. DVA sought to investigate the claims of W A A when

they were being aired in the popular press. The

Commission, in the course of its mortality investigations,

became well aware of the nature and extent of the records

of DVA in this area, some of which derive from the

conclusions and recommendations of the Senate Committee

Report.

There was not the slightest indication that the DVA had

misused the material which it had received. Indeed, a

separate computer file was maintained in order to honour

the undertaking that DVA would not 1 educate' themselves

from the material provided by W A A without their express

approval.

Unfortunately, the same cannot be said of WAA. Mr

Thompson. National President of W A A telephoned Counsel

Assisting late in April 1985 claiming that he had

information to suggest that DVA had understated the number

of Vietnam veteran deaths of which it was aware at the

Commission's Mortality hearings. Mr Thompson was informed

that the matter would be investigated upon his production

X-120

of material to support his claim and an appointment was

fixed for his attendance together with Mr Terry Loftus,

also of WAA, on 13 May 1985. He initially indicated that

a large number of veterans were involved. However, when

he attended the Commission on 3 May (in respect of an

unrelated matter), he produced a list containing but 18

names. As to these names, the Commission immediately set

inquiries in train.

The 13 May appointment was cancelled by Mr Thompson only a

few days before the appearance of the issue of the

National Times bearing the date 17 - 23 May 1985. In an

article, appearing under the name of a Mr Frank Walker,

headed 'Vietnam veteran deaths understated at Royal

Commission1 an allegation identical in form to that raised

by Mr Thompson was detailed. It was accompanied by the

suggestion that the Commission was not willing to

investigate the matter, which claim was supported by

extracts from a letter forwarded to W A A on an unrelated

topic, namely the form and content of a proposed closing

address by Mr Thompson.

The clear implication of the article was that the

Commission was shutting its doors to important material

and thereby assisting some cover-up by DVA. Ironically,

X-121

the reality was that the Commission was at that time

keeping its doors open for the reception of a birth

defects study conducted by and/or on behalf of WAA.

The Commission wrote a letter in reply to the article to

the Editor of the National Times who chose not to publish

it. He wrote to the Commission denying any intention to

make the implication.

Full and complete explanations were received from the DVA:

for example, one of the alleged 18 had already been

disclosed to the Commission and 5 did not even serve in .

Vietnam! "Cut-off dates" were also relevant.

The allegations which have worried Vietnam veterans and

concerned a great many Australians are unfounded.

This Commission does not find anything untoward in the

mortality rates being experienced by Vietnam veterans in

Australia. Nor does the Commission find any evidence to

support the allegations in respect of suicide or cancer.

X-122

ENDNOTES

1. Exhibit 1750.

2. Exhibit 1040.

3. Exhibit 1744.

4. Both the letter from DVA and the reply on behalf

of the Vietnam Veterans' Association of Australia became Exhibit 1771. There does not appear to have been any further resolution of this matter.

5. Exhibit 1745.

6. Exhibit 1746.

7. Exhibit 1746.

8. Exhibit 1745.

9. Exhibit 1748.

10. Exhibit 1748.

11. Transcript p 5928.

12. Exhibit 1751 p 36.

13. Exhibit 1751.

14. Exhibit 1448.

15. Exhibit 1749.

16. Exhibit 1750.

17. Exhibit 1752.

18. Exhibit 1753.

19. Exhibits 1749 and 1750.

20. Transcript p 5951.

21. Exhibit 1876.

22. Exhibit 1754.

X-123

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41 .

42 .

43 .

44 .

45 .

46 .

47 .

This information became part of Exhibit 1876.

Exhibits 1248. 1761. see Chapter VI.

Ch VII.

See Ch V I .

Exhibit 1761.

Transcript pp 5962-5994.

Exhibit 1762.

Exhibit 1761.

See Table 3.1, p 24, Part I, Exhibit 1761.

Transcript p 5978.

Transcript p 5979.

Exhibit 1767.

Exhibit 1768.

Exhibit 1770.

Exhibit 1766.

Transcript p 6018.

Transcript p 6030.

Transcript p 6032.

Exhibit 1755.

Transcript p 6075.

Transcript p 6076 referring to Table 3.7 in Part 1 of Exhibit 1761.

Exhibit Nos 1499 & 1504V.

Exhibit 1773 p 7 .

Exhibit 1773 p 7 .

Transcript p 6 1 1 2 .

X-124

48. Transcript pp 6114-5.

49. Exhibit 1766.

50. Exhibit 1764.

51. Exhibit 763 .

52. Exhibit 11.

53 . Exhibit 852 .

54. Exhibit 250.

55. Exhibit 1765 .

56 . Exhibit 147 .

57. Exhibit 673 .

58 . Exhibit 1757.

59 . Exhibit 1760.

60. Exhibit 1758 .

61. Exhibit 1766 .

62. Exhibit 1759 .

63 . Exhibit 1755.

64 . Exhibit 1756

65. Exhibit 1394 p XIX 98.

66 . Exhibit 1394 p iii.

67. Exhibit 1394 p 3.

68. Exhibit 1986. p ii.

69. Ibid.

70. Exhibit 1774.

71. Exhibit 1773 at pp 4 a

72. Transcript p 6079.

X-125

73 .

74 .

75 .

76 .

77 .

78 .

79 .

Transcript p 5987-8.

Exhibit 1766.

Exhibit 1772.

Exhibit 1766 p 3.

Exhibit 1959 at p 1219, quoted at p 7 of Exhibit 1772.

Exhibit 1772 at p 10.

Ibid p 10.

X-126

APPENDIX I

Archibald H . C. and Tuddenham R . D. , "Peristent Stress Reaction After Combat". Arch Gen Psychiat, 12:475-481 ( 1965) .

Archibald H. C . , Long M. C. and Tuddenham R. D. , "Gross Stress Reaction In Combat - a 15 Year Follow-up", Am. J . Pschiat.(1962): 119: 317-322 .

Beebe G. W. and Simon A. H. , "Ascertainment of Mortality In the U.S. Veteran Population", Amer J Epid, 89:636-643, 1969 .

Beebe G. W. , "Follow-up Studies of World War II and Korean War Prisoners". Amer J Epid. 101:400-422. 1975.

Beebe G. W . . "Lung Cancer In World War I Veterans:

Possible Relation to Mustard-Gas Injury and 1918 Influenza Epidemic", J Nat Cancer Inst. 25:1231-1252, 1960.

Cohen B. M. and Cooper Μ. Z .. "A Follow-up Study of World War II Prisoners of War", VA Medical Monograph, 1954.

Gill G ., "Study of Mortality and Autopsy Findings Amongst Former Prisoners of the Japanese", J R Army Med corps, 129:11-13, 1983.

Kalinowsky L. B . , "Problems of War Neuroses in the Light of Experiences in Other Countries", Am. J . Psychiat. (1950): 107: 340-346.

Keehn R. J . , Goldberg I. D. and Beebe G. W. . "Twenty-four Year Mortality Follow-up of Army Veterans with Disability Separations for Psychoneurosis in 1944", Psychosomatic Medicine, 36(1): 27-46 . 1974.

Klnzie J . D. . Fredrickson R. H. , Ben R. , Fleck J . , and Karls W.,"Posttraumatic Stress Disorder Among Survivors of Cambodian Concentration Camps", Am J Psychiatry, 141:645-650, 1984.

Menninger W. C ., "Psychiatric Experience in the War, 1941-1946", Am. J. Psychiat. (1947): 104: 577-586.

Moritz A. R. and Zamcheck N ., "Sudden and Unexpected Deaths of Young Soldiers", Arch Path, 42:459-494, 1946.

Ragsdale B . D.. “Gunshot Wounds: A Historical

Perspective", Military Med, 149:301-315, 1984.

X - 127

Robinettee C. D. and Fraumeni J . F . , "Asthma and

Subsequent Mortality In world War II Veterans", J Chron Dis, 31:619-624. 1978.

Robinettee C. D., Hrubec Z. and Fraumeni J. F., "Chronic Alcoholism and Subsequent Mortality in World War II Veterans". Amer J Epid, 109:687-700, 1979.

Rogot E. and Murray J. L., "Smoking and Causes of Death Among U.S. Veterans: 16 Years of Observation". Pub Health Rep, 95: 213-222, 1980.

Rogot E. and Murray J., "Cancer Mortality Among Nonsmokers in an Insured Group of U.S. Veterans", J Nat Cancer Inst, 65: 1163-1168. 1980.

X - 128

CHAPTER XI

CLASS ACTION

Full little knowest thou, that hast not tried, What hell it is in suing long to bide: To loose good days, that might be better spent To waste long nights in pensive discontent;

To speed to day, to be put back to morrow; To feed on hope, to pine with fear and sorrow.

Edmund Spencer Mother Hubbard's Tale

CHAPTER XI

CLASS ACTION

1. INTRODUCTION 1

2. EARLY CONCERNS 3

3. PRE-TRIAL HISTORY 4

4. PLAINTIFFS' ALLEGATIONS 13

5. DEFENDANTS' ANSWERS 18

6. ISSUES FOR TRIAL 19

7. PROBLEMS OF PROOF 21

8. THE CASE AGAINST THE GOVERNMENT 33

9. SETTLEMENT 36

10. FAIRNESS HEARINGS 39

11. DISTRIBUTION PLANS 46

12. ORDER AND JUDGMENT ON DISTRIBUTION 53

ENDNOTES 61

CHAPTER XI

CLASS ACTION

1. INTRODUCTION

Many Australian veterans of the Vietnam conflict took an

interest in the conduct of the class action in the United

States. Indeed. a substantial number of Australian

veterans were members of the class who were the Plaintiffs

in that action. The progress of the class action was one

of the common topics which veterans attending the

Commission's program of informal sessions wanted to

discuss. Also, the Royal Commission received many

telephone calls from people who wanted information

relating to the class action.

It has become apparent to the Commission that there is a

need for information on this topic. In particular, many

veterans who criticise the settlement are obviously not

aware of the issues involved and the considerations which

led to it.

XI-1

Accordingly, it has been decided that a summary of the

class action including its history and the issues involved

should be included in the Report. As far as possible, the

use of technical, legal language has been avoided. It is

hoped that it will prove informative to Australian

veterans and their families, especially those who chose to

become involved in the Class Action.

It will be apparent from that which follows that the trial

judge, (Judge Weinstein, Chief Judge of the Eastern

District of New York), by virtue of his involvement in the

case, has expressed certain views on the strength and

weaknesses of various aspects of the plaintiffs' case.

Having made certain findings after a lengthy and thorough

investigation of the issues raised by the Terms of

Reference, some of which were common to the issues in the

class action, the Commission obtains reassurance from the

fact that Chief Judge Weinstein has expressed views

similar to those of the Commission, especially on the

issue of causation. Given that the concept of judicial

independence has been an important underlying factor in

both efforts, it is the Commission's sincere hope that

Australian veterans will derive some measure of comfort

from the fact that two legal processes have resulted in

similar conclusions.

XI-2

2. EARLY CONCERNS

Concern in the United States of America over Vietnam

veterans' health effects and their possible connection

with the usage of chemical agents in the Vietnam conflict

originated in Chicago in June of 1977 when Maude De

Victor„ a veterans' administration officer, received a

telephone call from an understandably upset women whose

husband was dying of cancer.

Charles Owen, who had served with the US Airforce for

about 24 years prior to 1973, had spoken to his wife about

a chemical which had been used in Vietnam. Following his

death and consequent upon the initial refusal of a pension

by the U.S. Veterans' Administration, it became Ms De

Victor's task to represent the widow at the hearing of the

appeal from that decision.

Investigations made by Ms De Victor in an effort to

establish that the veterans death was service-related, her

subsequent observations and documentation of cases aroused

public concern. This concern was fuelled by reports which

XI-3

appeared nationally in the United States following the

screening in Chicago on 23 March 1978 of a program

entitled "Agent Orange: the Deadly Fog" on WBBM-TV, a

television station affiliated with the CBS network. The

hour-long program contained suggestions that Vietnam

veterans and their children were experiencing a variety of

health complaints which might be associated with exposure

to herbicides.

3 . PRE-TRIAL HISTORY

In the (American) spring of 1978, 28 year-old Paul

Reutershan, who had served as a helicopter crew chief in

Vietnam, heard of Ms De Victor's involvement and, being

convinced that his cancer was linked to the spray through

which he had flown in Vietnam, he retained Edward Gorman

of O'Hagan, Reilly & Gorman who filed a claim for damages

of $US10m. in a New York State Court which named three

chemical companies as Defendants.

The field of civil litigation against manufacturers and

distributors of chemical substances suspected to be toxic.

XI-4

commonly referred to as " toxic torts", was not one in

which Gorman was experienced. In August 1978 he rang

Victor Yannacone. well known for the role he had played in

1966 in an action which led to Suffolk County's banning of

the pesticide DDT, which was later banned nationally in

the United States. Reutershan died four months later, on

14 December 1978, without ever having met Yannacone. Soon

after the funeral, his friend and fellow Vietnam veteran,

Frank McCarthy. contacted Yannacone and urged him to

pursue the case on behalf of all Vietnam veterans.

McCarthy, who had been involved in the formation of a

self-help group called "Agent Orange Victims

International" (also called "Vietnam Veterans Agent Orange

Victims Inc"), told Yannacone of the many calls he was

receiving each day from Vietnam veterans who were

concerned about their own legal rights following

Reutershan1s death.

By early 1979 Yannacone had rewritten the pleadings in

Reutershan's case as a class action complaint which named

five chemical companies as Defendants. Although initially

filed in the Federal Court in Manhattan it was

subsequentially transferred to Uniondale on Long Island.

Telephone calls soon began to flood Yannacone1s office in

Patchogue, New York and the number of Plaintiffs in the

XI-5

action increased. The number of actions increased as well

when McCarthy and Yannacone conducted a tour of many parts

of the United States.

In April 1979 the Multi-District Litigation Panel. sitting

in St Louis„ Missouri, made an order consolidating all the

actions and appointed Judge Pratt in Uniondale, New York

State to oversee the pre-trial procedural steps, such as

the discovery of documents, which would otherwise be

repeated in every case filed.

Meanwhile. the time and cost of getting what was now

officially termed "Agent Orange Product Liability

Litigation (MDL No. 381)" ready for trial had forced

Yannacone to seek the aid of other Long Island law firms

and by September 1979 eleven such firms had agreed to

operate as Yannacone & Associates.

As in all multi-district litigation cases, upon completion

of the task of discovery each case would have to be

remitted back for trial in the jurisdiction in which the

action was originally filed. The advantages of having the

common issues tried but once were compelling and in

November 1979 Judge Pratt conditionally certified the

litigation as a "class action". (Chief Judge Weinstein

finally certified the "class" on 19 December 1983.)

XI-6

As the name implies, a class action involves one trial

which will determine issues affecting a group or class of

people all of whom have a common interest in the

litigation by reason of similar if not identical questions

of fact or law. A class action involves more than just

permitting a group of people to join together in one

action as co-plaintiffs: it involves one action

determining the rights of every member of that class.

Class actions are not permitted as such in most Australian

States although the Australian Law Reform Commission has

been considering a reference in this area for some six

years. Areas such as health effects alleged to be

industrially related, product liability and environmental

cases are commonly suggested as being appropriate for

class actions.

The decision of the English Court of Appeal in Markt & Co

Ltd v. Knight Steamship Co Ltd [1910] 2 KB 1021. which is

authority for the propositions that a group cannot bring

an action where a dispute arose from individual agreements

as opposed to a collective agreement and that a group

could not sue for damages (even if all the members

sustained the same kind of loss due to the same event),

correctly states the present situation in most States of

Australia. A similar effect to class actions is not

XI-7

u n c o m m o n l y achieved both in Australia and the United

Kingdom either by agreement between the parties or by the

consolidation of a number of actions at least in respect

of common issues such as liability. Two more recent

English decisions not only illustrate this but also

suggest a relaxation of the propositions stated above: in

Prudential Assurance Co Ltd v Newman Industries Ltd (No 1)

[ 1980] 2 WLR 339 the Plaintiff was permitted to sue on

behalf of a group with a view to establishing liability

and in EMI Records Ltd v Riley [1981] 1 WLR 923 where the

Court permitted an inquiry into the damages sustained by

each class member although it should be noted that both

the Plaintiff and the Defendant agreed to that course of

action.

In the U.S. Agent Orange class action, with so many

plaintiffs from many States, each with its own laws having

at least potential application. the complexities were

daunting. Perhaps the best example of such complexities

is that which arose from legislation which limits the time

within which an action must be commenced. In some US

States legal proceedings must be commenced within two

years of the occurrence of injury; other States require

commencement within two years of discovery of the injury,

some provide that the period commences from finding the

XI-8

actual cause of the injury and the time period involved is

not uniform. Yannacone and his associates attempted to

overcome such complexities by applying to have the case

heard under federal common law.

If successful, this would result in one law being applied

to all members of the class with the consequence that some

equally unhealthy veterans would not be denied their

prospects of recovery by a law governing procedural

aspects. If not. Vietnam veterans in as many as 20 states

of America might be deprived of any possible remedy. Late

in 1980 the second circuit of the Court of Appeals in New

York ruled that the case could not be tried under federal

law.

The partnership recruited Aaron Twerski, a Hofstra Law

School Professor whose specialties lay in the fields of

torts and products liability. Twerski advocated that the

case should be conducted as a series of trials of the

fundamental issues common to all class members. One such

issue was the Government Contract defence adopted by the

chemical companies who were the Defendants in the class

actions. The basis of this defence was that the normal

principles of legal liability which apply to manufacturers

who sell consumer goods in the market place should not

XI-9

apply to manufacturers who produce weapons for military

use in time of war in compliance with design

specifications provided by the purchasing Government.

Otherwise, efforts to protect national security might be

jeopardised. This defence, colloquially termed the

Nuremberg defence, ("I was just following orders"), is not

without precedent.

If the Defendants were to succeed in this defence they had

to establish that they delivered to the Government the

very product which it sought and that the Government was

in possession of all relevant information as to the

dangers and risks involved in using the herbicides.

Accordingly, what was in issue, was the quality of the

product provided by each Defendant and whether it complied

with the Government's specification of its requirements,

the knowledge of the Defendants as to the toxicity of

their product and the extent to which they passed on this

information to the Government.

There are a number of reasons why a duty to warn the

Government is imposed on suppliers: public policy requires

a supplier should not avoid liability for damage that

would not have arisen if the Government had known the

risks associated with the use of that product.

XI-10

Furthermore, a Government armed with such knowledge is

able to properly assess the risks and benefits of using

that product as a weapon and, if it be utilised, take

steps to avoid or minimise such risks.

The Defendants argued that if anyone is liable for the

damage allegedly caused by these herbicides it is the

Government of the United States. The significance of this

defence for the Plaintiffs was that, owing to a previous

ruling of Judge Pratt, the Plaintiffs could not sue the US

Government directly. Thus the Defendants would either

prevent the plaintiffs from retaining any financial

recovery or, in the event of the Plaintiffs recovering,

the chemical companies would obtain reimbursement or

indemnity from the US Government. Judge Pratt scheduled

this issue for determination commencing on 27 June 1983.

In April 1983, in the midst of all the preparatory work on

pre-trial procedures including discovery, depositions,

interrogatories and motions, the Defendant companies

submitted a motion for summary judgment. Judge Pratt

ruled against this motion on 12 May 1983 saying that he

had seen enough evidence to indicate that some of the

chemical companies may have withheld vital information

from the Government therefore making it impossible for the

XI-11

Government to draw up safety specifications for using

Agent Orange. Accordingly he ruled that the trial should

proceed against five defendants, (Dow Chemical Company,

Monsanto Company, Diamond Shamrock Chemicals Company, T.H.

Agriculture & Nutrition Company and Uniroyal Inc.), and

dismissed the claims against four others. His Honour also

cancelled the trial date and decided that all issues of

liability and general causation would be tried together

with the Government Contract defence. The breadth of

matters and the amount of detail involved as a result of

this decision were beyond the resources of the Plaintiff's

lawyers and in September 1983 they sought and were granted

leave to withdraw from the case.

Furthermore, later that month. Judge Pratt asked the

Multi-District Litigation Judicial Panel to relieve him of

his duties as he no longer believed it would be feasible

for him to both oversee the pre-trial activities in the

case and fulfil his duties on the bench of the Second

Circuit Court of Appeals to which he had been appointed in

1982. His replacement was Judge Weinstein, Chief Judge of

the Eastern District of New York and the litigation

transferred to the Federal Court in Brooklyn, New York.

XI-12

A revised group of lawyers termed "the Agent Orange

Plaintiffs' Management Committee" took control of the

enormous task of preparing for the trial which, on 21

October 1983, had been set down to commence on 7 May

1984. Chief Judge Weinstein's approach involved trying in

toto the cases of a small number of representative

Plaintiffs with the broader issues such as liability and

causation being covered along the way. He also reinstated

two chemical companies (Hercules Inc., and Thompson

Chemical Corporation) bringing the number of Defendants to

seven. The Defendants made persistent unsuccessful

applications for a postponed commencement of the trial

which was estimated to take at least six months and as

long as two years.

4. PLAINTIFFS' ALLEGATIONS

Unlike this Commission, which was required to consider all

chemical agents used in the Vietnam conflict, the only

chemicals in issue in the class action were those which

contained dioxin, ie. Agents Orange, Orange II. Purple,

Pink and Green.

XI-13

The Plaintiffs put their claim on a number of bases:

(i) negligence;

(ii) strict product liability and breach of an implied

warranty;

(iii) breach of contract, breach of an express warranty

and misrepresentation;

(iv) intentional tort; and

(v) nuisance.

In order to establish that the Defendants were negligent

the Plaintiffs needed to show that the Defendants owed

them a duty of care, that such a duty was breached, that

the Plaintiffs suffered injury and that the injury was

caused by the breach of the duty of care. It was alleged

that the duty of care arose in one or more of the

following ways.

First, that the Defendants had a duty to warn that the

contaminant dioxin supplied to the Government was

dangerous to human health. In support of this claim the

Plaintiffs asserted that the defendant chemical companies

knew or ought to have known the prospects of injury from

scientific information in their possession including

results of tests conducted with animals and studies of

XI-14

human exposure to the chemicals either as a result of an

industrial accident or employment in the manufacturing

process. Secondly, that each of the Defendants has a duty

to warn of the other Defendants' product which was being

simultaneously manufactured and supplied to the Government

for use in Vietnam. Finally, the Plaintiffs claimed that

the defendants were negligent in their design, manufacture

and quality control methods by not avoiding, minimizing or

eliminating the presence of the contaminant dioxin in the

herbicide.

In respect of the claim founded upon strict product

liability and breach of an implied warranty the Plaintiffs

claimed that the Defendants were liable to them because

the herbicides were supplied in a defective condition (ie.

contaminated with dioxin) and accordingly that they were

unreasonably dangerous to the Plaintiffs. Furthermore,

that each Defendant had impliedly warranted the herbicide

supplied to the Government to be reasonably fit for the

ordinary purposes for which they were to be used in

Vietnam. If the herbicides were unreasonably dangerous

then, it was claimed, they were not reasonably fit for

military use in Vietnam.

XI-15

Next, the Plaintiffs charged that there had been a breach

of contract, breach of warranty and misrepresentation by

the Defendant. The foundation for the breach of contract

claim was that the contracts between the Government and

each Defendant imposed specifications which did not

include dioxin. The breach of an express warranty was

said to arise from a provision in the contracts which

provided that the herbicides would not be "defective in

material or workmanship, or otherwise not in conformity

with the requirements of the contract". The

misrepresentations were said to arise because the

Defendants, knowing of the health hazards and the presence

of dioxin, either made affirmative statements

misrepresenting material facts or wilfully failed to

disclose such material facts. The latter was claimed to

have occurred when the presence of dioxin was not

disclosed in registration statements. petitions for

residue tolerances and other documents required under the

Federal Insecticide, Fungicide and Rodenticide Act and

failure to place warning labels upon the herbicide

containers.

The intentional tort claim involved a repetition of

allegations already outlined coupled with the claim that

these actions were deliberate, calculated and in complete

XI -16

disregard of the consequences. Likewise the nuisance

claim was an additional legal remedy which the Plaintiffs

claimed was justified by their allegations.

According to the P l a i n t i f f s t h e veterans' exposure to

dioxin-contaminated herbicides in the course of their

service in Vietnam resulted in injuries such as chloracne.

various systemic diseases including soft-tissue sarcomas

and porphyria cutanea tarda as well as miscarriages to

veterans' wives and birth anomalies in their children.

They itemised more than 100 health effects to be

attributable to the use of herbicides and claimed damages

under a number of headings: wives sought to recover in

their own right for miscarriages; damages claims of family

members included pecuniary loss for wrongful death and

loss of society, services and support and children claimed

compensation for birth anomalies. Punitive damages were

also claimed for alleged misconduct in furnishing

herbicides to the US Government. The Plaintiffs also

sought from the Court a declaration that their injuries

were service-related so as to entitle them to treatment

and payments from the Veterans' Administration.

XI-17

5 . DEFENDANTS' ANSWERS

The defendant chemical companies denied each of the

Plaintiffs' claims and raised a number of defences :

contributory negligence, assumption of risk, misuse, lack

of privity, mitigation, proportionate liability. Statutes

of Limitations, the Defense Production Act and the

Government Contract defence.

They claimed that the Plaintiffs' case in negligence

should not be allowed due to the conduct of both the

Plaintiffs and the Government which was suggested to

amount to contributory negligence and the voluntary

assumption of risk. Further, that any damage suffered by

the Plaintiffs was due to factors other than the

Defendants' conduct such as the Government's misuse of the

herbicide. As the contracts for the supply of the

herbicides were between the Defendants and the Government,

the chemical companies claimed that the Plaintiffs were

prevented from any recovery based on the contract since

they were not a party to such contracts, ie. a lack of

privity between the Plaintiffs and the Defendants.

In the event of the Plaintiffs becoming entitled to an

award of damages the Defendants claimed that such damages

should be reduced by the amount of any benefits which the

XI -18

Plaintiffs had received or were entitled to receive from

any State or Federal government department or agency. The

Defendants claimed that any award of damages should be

further reduced to take into consideration the extent to

which the Plaintiffs' conduct and the Government's conduct

were responsible for any damage.

The Defendant chemical companies also claimed two types of

statutory defences: first, that the Plaintiffs' claims

were barred by the Defense Production Act which, according

to the Defendants. compelled them to produce and sell the

herbicides to the Government for use in Vietnam; secondly,

that the claims were barred by the various limitation

statutes which require legal actions to be commenced

within a specific period.

Another claim which the defendants made was that they were

protected by reason of the Government Contract defence

which has been previously dealt with.

6. ISSUES FOR TRIAL

The Plaintiffs' legal advisers had been directed by Chief

Judge Weinstein in October 1983 to choose ten Plaintiffs.

(veterans, wives and children) who had what they

XI-19

considered to be typical injuries in order that their

claims might be presented to the jury as characteristic of

those of the class. It was proposed to deal with issues

such as liability and causation in the course of the

trial. Hence the factual issues for trial involve both

general and individual issues although the individual

issues were to be of a representative nature.

The individual factual issues included exposure to

herbicides and the health effects of each witness. The

exposure issue involved a consideration of the location of

veterans whilst in Vietnam together with an analysis of

the location of herbicide flight missions and the type of

herbicide used on those missions. In the health effects

area it would have been necessary to identify the health

problems experienced by each witness and investigate

possible causes unrelated to herbicides.

General factual issues involved such areas as liability

and causation. Liability involved the need for evidence

as to the dioxin content in the herbicides, the knowledge

of both the seven chemical companies and the US Government

and the extent to which the chemical companies passed on

their knowledge to the Government. In order to prove

causation the parties to the litigation would have found

XI-20

it necessary to call a variety of specialist experts on

the issue of whether the health effects were caused by

exposure to herbicides.

Even from this brief analysis of the issues involved, it

is obvious that any trial of the class action would have

been both lengthy and complex.

7. PROBLEMS OF PROOF

By virtue of the American pre-trial procedures it is

possible to know what the nature of the evidence in a case

will be before the trial actually commences. This is

designed to streamline the conduct of the case and promote

a well-informed assessment of the strengths and weaknesses

of each party's case. The plaintiffs' legal advisers

faced a number of problems in proving their case.

Primarily, these were factual problems and the most

significant one was that posed by the causation issue.

To prove that veterans' exposure in Vietnam to relatively

small quantities of dioxin caused their health effects

would ideally require the evidence of scientists who would

explain to the Court how this was possible. indeed

probable, if a favourable verdict was to be obtained.

XI-21

Knowledge of the mechanism(s) by which dioxin acts is

required in order to establish such a ' cause and effect

relationship1. Any such explanation would ideally

establish a causal relationship between exposure and

particular diseases or health effects. In the absence of a

credible and rational explanation it would be necessary to

resort to what might be termed as statistical approach.

Reduced to its simplest terms, this involves a comparative

study of the rates of occurrence of health effects in two

groups, one exposed and the other not exposed. and the

application of recognised statistical tests to determine

the likelihood that there is in fact a difference between

the groups. If such a difference is apparent and if

alternative explanations of that difference may be

eliminated then some evidence is provided that health is

affected by exposure. This science is known as

epidemiology.

Clearly, there are number of factors which would affect

the weight of such evidence. These include the experience

of those responsible for the study, the design of the

study and the way in which it was conducted: all of which

reflect the possibility of errors or biases influencing

the outcome. The outcome of any such study will clearly

XI-22

be more persuasive if more numbers are involved as the

likelihood of chance variations influencing the outcome

decreases.

For example, if a coin is tossed twice and the result is

two heads then one is more likely to suspect that such a

result is due to chance. However, if the result of 100

tosses is heads on 100 occasions then one is far more

likely to suspect that the coin is double headed

However, if the result was 75 heads out of 100 tosses

then one could rule out the possibility of a double headed

coin but before blaming the person tossing the coin one

would need to consider other factors which might be

influencing the results. including pure chance.

Furthermore, the probative value of a study is influenced

by whether its results are repeated by other similar

studies. To continue the example, if another person

tossing the same coin resulted in say, 77 heads out of 100

(or if the same person tossing a different coin achieved

50 heads out of 100 throws) then one would suspect the

coin not to be fair. On the other hand, if another person

tossing the same coin resulted in 25 out of 100 throws

then concern about the coin would probably diminish.

XI-23

In so far as attributing health effects to herbicide

exposure is concerned, if the health effect is one which

occurs very rarely in the general population then one

would be more easily persuaded than if the health effect

was a common one or had a variety of possible causes, or

both. Yet changes in the incidence of health effects which

occur very rarely in the population can be very difficult

to detect unless the number of subjects under

consideration is large.

There are a number of reasons why it is difficult to

obtain useful evidence on the effects of the herbicides on

servicemen: when inducted they were a healthier group than

the general population because of the medical test

conducted that ensured that they were fit for service;

there are many potential alternative factors which may be

operating; some of the health effects may take a long time

to become apparent; and there is an understandable human

tendency for a study subject to believe he was exposed if

he is now sick or believe that he was not exposed if he is

not now sick. The technical terms for these factors are

the healthy worker effect, confounding variables, long

latency period and recall bias respectively. Examples of

possible confounding variables arising from Vietnam

experience are anti-malarial drugs, drinking, smoking and

the special stresses which prevailed in that conflict.

XI-24

It is important to remember the distinction between the

regulatory process, which has as its aim the avoidance of

risk, and the compensation process which usually require a

probability higher than 50 per cent to be established

since the law does not require any defendant to pay for a

plaintiff's injury, loss or damage unless it is shown that

it is more likely than not that the defendant's conduct

was the cause. Hence. for example, a study which resulted

in certain action being taken because of, say, a 10 per

cent greater risk shown by the study would not, of itself,

be sufficient proof. Or, if a regulatory agency set a

tolerance level of one part per million for a particular

chemical because there is chance of some human health

effect occurring above that level of concentration, then

that does not prove that such a chemical is to blame

whenever it occurs at a greater concentration. Neither

does it prove that a person suffering from the health

effect is suffering because of that chemical.

Appropriate studies, the outcome of which might support

the Plaintiffs' case, were in progress but would not be

completed in time for consideration of their results in

the class action. The Court could not, of course, wait

indefinitely whilst all such studies were completed: a

decision had to be reached on the information then

available.

XI-25

However. it was very doubtful that the completed

epidemiological studies overcame this aspect of the

Plaintiffs' case, mainly proof to the necessary legal

standard of a causal relationship between exposure to the

herbicides and the health effects which the veterans were

alleging. The lack of evidence to support the claim that

birth defects had occurred and would continue to occur as

a result of dioxin exposure of the father was such that

this claim rested on little more than a theoretical base.

Chief Judge Weinstein, at p 149 of his Preliminary

Memorandum1 which accompanied the order made on 25

September 1984 approving the settlement agreement subject

to hearings on attorneys' fees and a preliminary

consideration of plans for distribution, summarised these

problems on the causation issue:

In sum, then, the result of an enormous

scientific effort to be helpful on causation has, from the plaintiffs' point of view, left the case at best open. This is not sufficient to support a recovery in tort law even though it might

suffice to permit regulation of products that might contain dioxin or support a public policy decision to use public funds to compensate

exposed Vietnam veterans or their children with medical problems.

XI-26

The causation issue was a factual one, albeit complicated,

for the determination of the jury. Yet. even if the

plaintiffs persuaded the jury on this issue it may well

have been set aside. At pages 129 to 131 of the same

Memorandum Chief Judge Weinstein commented:

Based on the evidence so far provided, however, even if the case were permitted to go to a jury and even were there a verdict for the plaintiffs, it appears doubtful whether the verdict would have withstood a post-trial motion for judgment notwithstanding the verdict in the trial and appellate courts. This legal evaluation shared

by almost all attorneys from both sides in the case provides a strong inducement for the

plaintiffs to settle.

Causation was not the only obstacle facing the

plaintiffs. On the issue of exposure the lack of detailed

records of US troop movements made it difficult to prove

the location of a serviceman within Vietnam at any time

and hence there were difficulties in establishing whether

a serviceman was located under or near the flight path of

a herbicide mission. There is no doubt that fixed-wing

aircraft were but one of the dispersal methods used.

However, in terms of the quantity of herbicides dispersed,

it was certainly the major method. Furthermore. the

Plaintiffs needed to establish that the exposure was to a

chemical which was one of those on which the claim was

based: the Plaintiffs only sued the Defendants in respect

XI-27

of the herbicides which contained dioxin, namely Agents

Orange. Orange II, Purple, Pink and Green. Agents Blue and

White and the insecticides used were not an issue. Even

if a Plaintiff could prove that he had been exposed the

absence of markings or labels on the drums of herbicides,

the inevitable mixing of herbicides from different

manufacturers, and the lack of records which would

overcome these problems meant that he was unable to

establish to which Defendant's or Defendants' herbicide he

had been exposed. Various legal theories were advanced in

an effort to overcome this problem.

As has been indicated earlier, the Government Contract

defence would succeed, and thus prevent the plaintiff's

claim, if the Defendants were able to show that the

Government knew as much as they (the defendants) knew or

should have known about the risks associated with use of

these herbicides. The extent of this knowledge became

apparent during the pre-trial procedures. In the course

of a pre-trial motion the Court, having considered the

evidence then available, concluded:

Even when all doubts are resolved in favour of the plaintiffs .... the record demonstrates that the Government and the military had a

considerable amount of knowledge about 2.4,5-T, about dioxin. and about the health hazards

associated with both.2

XI-28

Little if anything could be done to overcome this problem

which was obviously an important factor in settlement

consideration. The Plaintiffs' written submissions on the

issue of the fairness of the settlement dated 7 August

1984 and filed with the Court (titled "Plaintiffs Fairness

Brief") dealt with this issue at pp 52 to 80. At p 52 it

was described as "a primary obstacle to the plaintiffs

recovery in this case" and at p 80:

Plaintiffs face substantial problems of proof concerning the quantity and quality of Government knowledge accumulated by various individuals and/or agencies in the Government on Agent

Orange/2,4.5-T and/or dioxin. Plaintiffs submit that the level of knowledge of the Government was “light years" removed from the overwhelming quality and quantity of the knowledge possessed by the defendants. However, the quality of that

knowledge was such that the jury might well have found the evidence sufficient to exculpate the defendants . . .

As well as the problems involved in the factual issues

there were a number of legal problems with the Plaintiffs'

claims. First, the certification of the litigation as a

class action did not overcome the problem that the

Plaintiffs resided in various States and, in some

instances, overseas. Hence different laws governed

different Plaintiffs both in respect of procedural and

substantive issues. Despite the obvious commonsense of

XI-29

some simplification of those problems no appellate court

had considered how these types of matters should be

resolved so as to render such litigation workable. Hence

the possibility of an appeal from whatever decision the

trial judge reached could not be ignored. Any such appeal

would obviously take time, might involve a reversal of the

decision of the trial Judge and could result in a further

trial of all or some of the issues.

Second, there was a diversity in the provisions of the

various limitation Statutes which imposed time limits

within which an action must be commenced. There were

differences as to when the time period commenced to run,

in what circumstances it temporarily ceased to run and as

to the length of the time period itself. In all,

something in excess of 100 categories were possible and it

was not unlikely that Plaintiffs falling within a number

of these categories would be unable to succeed because of

these Statutes. Obviously it would be difficult to

explain why some plaintiffs' claims would be allowed

whilst others were denied for reasons unassociated with

the merits of their particular cases. Although a number

of legal theories could enable this problem to be

overcome, each involved a new approach which carried with

it the possibility of an appeal.

XI-30

The previously mentioned factual problem of identifying to

which of the seven defendants' herbicides a Plaintiff was

exposed had legal consequences as well since, under the

normal principles of product liability law, the Plaintiff

bears the burden of identifying the manufacturer of the

product which allegedly injured him. In the absence of

such proof it is not uncommon for the US Court to dismiss

the plaintiff's claims. The Defendants claim that the

problem was the result of the Government's specification

and the Government claimed immunity from legal action

owing to the military context in which the problem arose.

Several legal theories were advanced in an effort to

overcome this problem.

Under the principle known as alternative liability, once

the Plaintiff establishes that he has been harmed by one

of the Defendants, the burden of proof is then cast upon

each such Defendant to prove that he or she has not caused

the harm. The Defendants contested the application of

this principle on the basis that many of the claimed

health effects could have resulted from any one or more of

a number of alternative, non-herbicidal factors.

Market share liability was another approach suggested.

Since the seven Defendants shared about 99 per cent of the

XI-31

herbicide market it was argued that each should be liable

to pay a proportion of any awarded damages which reflected

the market share of tha t defendant manufacturer. This

theory, however. has been rejected by a majority of

American courts.

The principle known as concert of action was also

proposed. It imposes joint and several liability where

the defendants have participated jointly or pursuant to a

common design to produce a plaintiff's injury. The

factual foundation for this claim was certain documents

arising from meetings arranged by Dow Chemical Company,

one of the Defendants, which documents dealt with the

problems associated with the use of 2,4,5-T. Although a

jury may well have found for the Plaintiffs on this basis,

it has not been widely adopted by US courts and it was

therefore questionable whether any jury finding could have

been sustained on appeal.

Enterprise liability includes the following elements:

insufficient industry-wide safety standards; inability to

identify the defendant; a genetically similar, defective

product; and evidence of the normal elements of negligence

(duty of care, breach of that duty. injury and

causation). When established it causes the burden of

XI-32

proof to shift to the defendant: a defendant can only

avoid liability by showing that its product could not have

caused the plaintiff’s injury. As with all of these

somewhat novel legal theories. a favourable jury verdict

might not have survived legal argument on appeal.

The plaintiffs' lawyers also claimed that the Defendants

were prevented or estopped from asserting that the

plaintiffs could not identify which Defendant was to blame

because it was their conduct which caused the Government

to treat the herbicides supplied as generic or uniform.

This argument presupposed a duty to inform the Government

about the contamination of their competitors' herbicides.

The Defendants denied the existence of any such duty.

8. THE CASE AGAINST THE GOVERNMENT

One of the Defendants' responses to the plaintiffs' legal

suit was to issue a third party complaint against the US

Government seeking indemnification or contribution for any

amount ordered to be paid by the Defendants in respect of

the Plaintiffs’ claims. The Government in turn

endeavoured to have these claims dismissed on the basis of

a doctrine known as the Feres-Stencel doctrine which

prevents servicemen from bringing law suits against the

XI-33

Government in respect of its conduct of wartime

operations. On 16 February 1984 this application was

successful in respect of the claims of Vietnam veterans

and the associated claims of their family members but not

in respect of the independent claims of the veterans'

wives and children. These continuing claims were not part

of the Class Action settlement.

A motion of the Plaintiffs to have these claims certified

as a Class Action was refused for a number of reasons, the

major one being the almost non-existent possibility of

recovery against the Government on the merits. This

aspect rendered the enormous cost of notifying potential

class members unjustified. With scientific studies in

this area continuing, the effect of granting class action

status as sought would have been to dismiss

once-and-for-al1 these claims due to the lack of currently

available evidence to support them.

On 8 February 1985 , the US Government moved to have these

claims dismissed: Chief Judge Weinstein granted that

application. The plaintiffs relied upon the Federal Tort

Claims Act which Act waives Governmental immunity from

such proceedings with certain exceptions. One such

XI-34

exception derives from the decision in Feres v United

States (1950) 340 US 135 and is based upon factors such as

the existence of a compensation scheme for members of the

Armed Forces and the adverse impact of military discipline

and effectiveness if service people were permitted to sue

their Government. In an effort to overcome this bar the

plaintiffs unsuccessfully alleged that the relevant

conduct of the Government occurred prior to enlistment or,

alternatively, following discharge in that there was a

failure to take precautions, warn, treat or compensate the

plaintiffs. The policy considerations which underly the

Feres-Stencel doctrine were also considered to be a

sufficient answer to the plaintiffs' claim based on

intentional tort.

Hence, summary judgment was granted against all claims of

the veterans, their wives and all of the children’s

derivative claims against the Government. The direct

claims by the children were dismissed without prejudice,

i.e. the dismissal does not operate to preclude such

claims being brought in the future should the evidence to

support the claim become available.

XI-35

SETTLEMENT 9 .

In the light of the problems and complexities associated

with this litigation it is not surprising that a

settlement or compromise was reached. Early in the

morning of the day on which the trial was scheduled to

commence an agreement was reached whereby the Defendants

undertook to pay to the class $US180m. in a manner

directed by the Court which involved interest accruing on

that amount from 7 May 1984, the date of the settlement.

Included in the terms of settlement was a provision to

indicate that the Defendants did not admit liability and

both parties reserved whatever rights and claims they have

against anyone not a party to the class action, most

notably the US Government. The contributions to that sum

by the various defendant chemical companies were not

disclosed nor was the basis upon which these contributions

were calculated. Jurisdiction over the settlement funds

until their final distribution was retained by the Court.

It was a term of the settlement that the agreement was

only to be effective if the Court expressly approved it as

a fair, reasonable and adequate settlement of the action.

There were a number of reasons why the settlement was

desirable from the Plaintiffs' viewpoint, the Defendants'

XI - 3 6

viewpoint and that of the public. In so far as the

Plaintiffs were concerned the available scientific data

made it unlikely that the causal relationship could be

proved to the necessary legal standard. As Chief Judge

Weinstein commented during the San Francisco Fairness

hearings:

This case in England, I believe. would have

resulted in a clear dismissal with substantial costs, and I suspect that the same would be true in Australia. based on the evidence I've seen . . . . If there is no causation, any figure above

zero would be excessive from the Defendants' point of view. That's the problem with this

case.3

Furthermore, a decision in favour of the Plaintiffs would

need the support of unique legal reasoning which would

almost certainly give rise to appeals with consequential

delays and considerable prospects of no ultimate financial

recovery. Thirdly. there were doubts as to the

plaintiffs' lawyers ability to finance the litigation

under the American system whereby fees and disbursements

are accumulated and then deducted from any verdict

obtained. But for the settlement the Plaintiffs would not

have had the benefit of any funds for a number of years.

An adverse result in the trial might have had detrimental

consequences for the claims of Vietnam veterans with the

Government and its departments, such as Veterans

XI-37

Administration, for medical treatment and other benefits.

The settlement also ended the uncertainty and the stresses

and strains associated with continuing the litigation.

Finally, it enabled energies and talents to be devoted

toward achieving some help for those veterans and their

families experiencing health problems.

From the Defendants' viewpoint the settlement avoided the

costs of defending the case, the possibility of an

ultimately adverse finding and a substantial financial

burden which could accompany such a possibility. Other

indirect consequences of continuing the litigation

included the adverse publicity and the possibility of a

greater cost of borrowing. This could have arisen in a

number of ways: if investors found such companies less

attractive then raising money by less costly means such as

share issues might become more difficult or lenders might

require a higher interest rate on company borrowings to

compensate for the litigation risks. There were also

benefits to the public. The trial and appeals would have

represented a drain on public funds through the usage of

the judicial system and its associated personnel and

facilities. Settlement of the action also alerted a large

section of the public to the needs of many Vietnam

veterans and their families.

XI - 3 8

10. FAIRNESS HEARINGS

Rule 23(e) of the Federal Rules of Civil Procedure

provides that a class action may not settle without

approval of the Court and notice to members of the class.

Such a procedure ensures that class members have an

opportunity to be heard either in support or opposition of

the settlement and protects the interests of those whose

interests may not have been given due regard in the

negotiation process by preventing private arrangements or

"sweetheart deals" not in the best interests of the class.

Each party had been engaged in substantial preparation

prior to the settlement and was fully aware of the

strengths and weaknesses of their cases. A settlement

agreement which reflects a well informed decision by

experienced lawyers with competing interests is. of

itself, indicative of fairness. The Court's role is not.

however, merely to check on the lawyers. It serves to

guard the rights of absent or silent class members which

is an important role given in the impracticality of

consulting each member of the class and because the

settlement, if approved, finalises the litigation once and

for all thereby precluding further proceedings by class

members. Chief Judge Weinstein, in his Preliminary

XI-39

Memorandum. op.cit., pp 55-56 placed reliance on the

decision of the Second Circuit of the Court of Appeals in

City of Detroit v Grinnel Corp 495 F .2d 448 (2d Cir. 1974)

for factors which a trial Court should consider in

determining whether to approve a settlement. Those

factors (and the respective assessments of Chief Judge

Weinstein) were:

(i) The complexity, expense and likely duration of

the litigation (enormous complexity and expense,

litigation likely to extend over years);

(ii) The reaction of the class to the settlement (the

class was divided, a majority of the minority who

addressed the Court opposed the settlement);

(iii) The stage of the proceedings and the amount of

discovery completed (the case was about to be

tried so almost all discovery was completed).

(iv) The risks of establishing liability (liability

was almost impossible to establish).

(v) The risks of establishing damages (damages could

be easily shown).

XI-40

(vi) The risks of maintaining the class action through

the trial (this could be accomplished although

difficult in view of the great expense to the

plaintiffs' attorneys).

(vii) The ability of the Defendants to withstand a

greater judgment (the Defendants had great

resources).

(viii) The reasonableness of the settlement fund in the

light of the best possible recovery (maximum

recovery was great but no recovery was more

likely).

(ix) The range of reasonableness of the settlement to

a possible recovery in the light of the risks

attending the litigation (the settlement was well

within the range of reasonableness in view of all

the relevant factors).

It is important to realise that the money amount of the

settlement is not the only issue: such an amount should be

considered in the light not only of the best possible

recovery but also with regard for the strengths and

weaknesses of the plaintiffs' case. Furthermore, it

XI-41

should be remembered that negotiations and settlement

discussions were observed by Special Masters who were in

fact Officers of the Court accountable to the Court thus

ensuring that the settlement was neither a "sellout" nor

founded on improper motives.

Notice of the proposed settlement outlined the basic plan

for distribution of the fund as proposed by the

Plaintiffs' Management Committee (plaintiffs' lawyers)

rather than any final plans. Such notice was given by

mail to all members of the class action known to the

Committee. Another similar notice was widely publicised

in newspapers and magazines throughout the United States,

Australia and New Zealand. Hearings were held throughout

the United States in order to provide an opportunity for

class members and representatives of a variety of veteran

organisations to express their views of the settlement

orally. The schedule for these hearings, held in August

1984, was: New York (8th, 9th, 10th), Chicago (13th,

14th). Houston (16th, 17th), Atlanta (20th. 21st) and San

Francisco (23rd, 24th). A special three-hour session in

San Francisco from 8pm on the evening of 24 August was

held for Australian veterans and lawyers to make

contributions. Written submissions were also received and

in combination with the eleven days of hearings, more than

a thousand submissions were received.

XI-42

Before setting out some quotations from the submissions

received. Chief Judge Weinstein eloquently summarised what

he had heard, seen and read:

A few quotations from the hearings and other communications are set out in this section.

The quotations do not begin to reflect the

moving sights and sounds of the hearings - broken hearted young widows who have seen their

strapping young husbands die of cancer, wives who must live with husbands wracked with pain and in deep depression, mothers whose children suffer

from multiple birth defects and require almost saint-like daily care, the strong men who have tears welling up in their eyes as they tell of fear that their families will be left without support because of their imminent death, the man whose mind is so clouded that he must be prompted

by his wife standing by with his defective child in her arms to go on with his speech, the

veterans trying to control the rage which wells up within them, the crippled and diseased with running sores and green fungus growths, and the women who volunteered for field or Red Cross duty

and now feel themselves rejected and sick with what they believe are Agent Orange related

diseases.

Just a few years ago these veterans were healthy and handsome youths in their teens and early twenties who bravely went to war because their leaders asked them to. And it is clear from what

they said and did in Court that they are sincere when many of them say that they would volunteer their broken bodies and worn spirits once again if their country called. Some are understandably

bitter that their Government and its people have shunned them instead of embracing them as

heroes. Only the cold written transcript is permitted as a record of these remnants of the war pleading for justice for themselves and for their families. They remind us, as we enjoy the

fruits of our power and wealth, to remember those men and women who struggle each day with

disastrous medical problems they attribute to service in Vietnam.4

XI-43

Later his Honour itemised recurring concerns as:

(a) Need for medical help for veterans and financial

help for those too ill to work;

(b) Medical and financial aid for children born with

defects;

(c) Need for information on possible genetic damage

to veterans and their children;

(d) Dissatisfaction with the Veterans Administration

and the treatment received in its hospitals;

(e) Insufficiency of settlement amount to pay

adequate damages;

(f) Failure of chemical companies to admit fault;

(g) Failure of Government to admit fault, participate

in settlement and accept its responsibility for

caring for Vietnam veterans and their families;

(h) Possibility of a cover-up of information with

sealed files and return of documents to

Defendants;

XI-44

(i) Need for a full open trial to vindicate the

Plaintiffs and protect their rights to individual

justice;

(j) Inability to decide whether to accept settlement

without knowing how it would be distributed or

how much would be spent in attorneys' fees;

(k) Inadequate payment by defendants relative to

their resources;

(l) Inadequate time to file claims;

(m) Need to settle now to get on with life; and

(n) Need for further research and reassurance.

Only a small fraction (less than 1 per cent) of the class

members contributed to the Court either orally or in

writing as to the fairness of the settlement. Whatever

the reasons, the vast majority remained silent.

On 25th September 1984, the Court approved the settlement

subject to hearings on the issue of attorneys' fees and

preliminary plans for the distribution of the settlement

fund.

XI -4 5

11. DISTRIBUTION PLANS

The Notice which was forwarded to class members included a

brief outline of three of the proposals which the

Plaintiffs’ Management Committee expected to submit to the

Court for consideration. They were:

(i) Payment to those who presently suffer from

designated effects;

(ii) A reserve fund to provide for payment to class

members who experienced the onset of those

designated health effects in the future;

(iii) Payments to assist children of Vietnam veterans.

both those born before the settlement (who were

class members) and those born afterwards who

(although not class members) may be entitled to

assistance from the fund.

These proposals were suggested for but a portion of the

settlement fund and no amount was indicated.

In order to determine the potential claims as soon as

possible a claim form was enclosed. Submission of a claim

XI-46

form did not automatically entitle the author to receive

compensation. An assessment process involving medical and

other information in support of the claim was intended to

be an aspect of the final distribution plan. The closing

date for forwarding claim forms was initially 26 October

1984 but this was subsequently extended to 2 January 1985.

As a result of the Fairness Hearings a number of

suggestions from United States veterans and veterans'

organisations were placed before the Court for

consideration. These included:

(a) A national [centre] for Vietnam veterans' assistance,

proposed to provide veterans with a central source of

legal and political power. It was suggested that such

a [centre] could provide legal aid in claims against

the Veterans Administration, seek further legislation

to improve the plight of Vietnam veterans and the

provision of counselling or advisory services.

(b) Veterans benefits, to be provided through a simple

system with easy proof and low administration costs.

Care should be exercised to ensure that payment of any

such benefit does not reduce the level of any existing

benefits. .

XI-47

(c) Genetic and family counselling, designed to deal with

the child-bearing fears of parents where the husband

is a Vietnam veteran. Counselling and testing

services could be involved.

(d) Childrens' benefits, to be paid from a fund with a

term of at least 25 years and having the ability to

seek donations both from the community and the

Government.

A number of general principles are emerging as objectives

for the distribution process: minimising administrative

costs; avoiding complex fact-finding and the consequential

need for attorneys' and experts' fees and time-consuming

adjudications; appropriate legislative amendments wherever

necessary to ensure that benefits paid or services

rendered do not become taxable; that payments are not

merely used to reimburse other institutions and that the

income of and donations to such funds are not taxable.

The lengthy and detailed Report of the Special Master

Pertaining to the Disposition of the Settlement Fund5

was forwarded to Chief Judge Weinstein on 27 February,

1985. It proposed a plan with the following essential

features:

XI -48

(i) Three separate funds to assist class members:

(a) $US130m. to provide cash payments to

eligible veterans or families of

deceased veterans, this fund to have a

termination date of 31st December. 1994;

(b) $US30m. endowment fund to provide

services to aid both children suffering

from birth defects and their families.

with a termination date of 7th May,

2009;

(c) $US30m. Social Services endowment to

provide grants and other funding to

assist veterans who were class members

and their families, terminating on 31st

December, 1994.

(ii) In view of the Court's indication that no causal

relationship between Agent Orange exposure and

health effects had been established, eligibility

for inclusion in the distribution plan is

proposed as a non-traumatic death or long-term

total disability occurring prior to 31st

December. 1994.

XI-49

(iii)

(iv)

(v)

(vi)

(vii)

However. eligibility is also proposed to require

a finding that the subject veteran was among the

more heavily exposed of the otherwise eligible

claimants.

It is proposed that the compensation plan be

based on precise, objective criteria so as to

enable ready implementation by an insurance

company or other similar agency.

Details to be provided to all claimants as to the

eligibility requirements.

Some 7,000 long-term disability cases and 3,000

veteran deaths currently eligible at that time.

A non-profit foundation to be established to

administer two endowments totalling $US60m: the

foundation to authorise grants for specific

purposes to assist class members. The foundation

is proposed to have a Board of Directors

primarily composed of Vietnam veterans.

XI-50

(viii) Funds from these two endowments to be primarily

distributed to existing organisations and

facilities in order to reduce overhead and

administrative calls and to avoid duplication of

effort.

In a letter dated 11 September 1984 forwarded on behalf of

the Agent Orange Plaintiffs' Management Committee to the

Australian Government's Minister for Finance a public

charity was proposed as an alternative to potentially

small payments to individuals. It was suggested that such

a charity could:

1. Take over the present Vietnam veterans counselling

service;

2. Provide advocates for representation before the

Repatriation Commission thereby ensuring the maximum

services under the Repatriation Act being available to

the veterans;

3. Provide maintenance to the veterans in financial

difficulties on a short term basis;

XI-51

4. Provide financial assistance for incapacitated

children; ie. special education needs, wheel chairs,

etc. ;

5. Provide monies for research;

6. Look after the general needs of veterans and in so

doing motivate them back into society.

Submissions on the issue of the allocation and

distribution of the Australian veterans portion of the

Settlement Fund have been lodged with the Court by the

lawyers representing the Australian Plaintiffs.

Australian class members, their legal advisers and

veterans organisations were expected to develop their own

proposals for dealing with their allocation from the

settlement fund. At the San Francisco Fairness Hearings

Chief Judge Weinstein indicated why:

I don't want to get involved in deciding how that corpus is to be handled in Australia. I don’t know enough about Australian veterans, the Australian law. I don't know enough about the

veterans' medical situation, I don't know enough about their social services situation in

Australia.

Therefore, I cannot make judgments that satisfy me (as being) based upon sound assessment.6

XI-52

As to the process of distribution, his Honour commented:

The task of organizing representatives of Vietnam war veterans into an effective group that can make decisions which the veterans will support and that can speak to the veterans with one voice

must be given priority. With such an effective organization the [US]$180.000.000 available from the settlement provides a powerful legal.

medical, political and social instrument. Without that co-operation the money may become a reason for divisiveness and disunity that may serve to weaken the just claims of the veterans

and their ability to vindicate their rights ....

Similarly, a proportionate share of the funds set aside for Australian and New Zealand members of the class should be controlled by veterans of those countries. The Court would prefer to have a single payment made to a person or body of each

of these two countries with further distribution being made by those on the scene.7

It is to be hoped that those responsible for handling the

Australian component of the settlement fund can avoid the

discord and divisiveness of which his Honour warns.

12. ORDER AND JUDGMENT ON DISTRIBUTION

At page 7 of his 174 page judgment on the distribution of

the settlement fund, dated 28 May 19858, Chief Judge

Weinstein noted that the definition of the class involved

two conditions: exposure to certain herbicides in Vietnam

and a claim of injury as a result of that exposure. The

decision as to how the settlement fund should be

XI-53

distributed was influenced by the fact that there was no

substantial scientific evidence to support a finding of

causal connection between exposure to herbicides and any

specific disease (except chloracne) and the problems of

proving any particular plaintiff's claim. Furthermore,

even if a simple test for ascertaining exposure and injury

could be devised, the amounts which would be available for

distribution to individuals would be too small to provide

any appreciable benefit.

The approved distribution plan substantially adopts the

recommendations of the Special Master, Kenneth Feinberg,

whose report became Exhibit 1892 before the Commission.

There are three aspects to the distribution process: an

insurance-type compensation scheme covering death and

long-term disability ($US150m.); a foundation run by

veterans ($US45m.) and an allocation of 2% of the

settlement fund ($US4m.) to Australasian veterans.

Arrangements will be made for the operation of these

aspects although the implementation necessarily awaits the

outcome of certain appeals, by which time the $US180m.

settlement figure may be expected to have swollen to

$US200m. as a result of the interest which has been

accruing since the settlement on 7 May 1984.

XI-54

A number of other proposals were rejected for a variety of

reasons. One proposal was that distribution be deferred

until the US Government accepted responsibility; others

involved further research, the provision of medical

treatment and health care services and higher compensation

for specific diseases. The reasons for rejecting these

alternatives included the comparative scarcity of the

resources, the immediate needs of the class members, lack

of benefit to class members, cost of implementation,

duplication of existing facilities and problems which

derive from the lack of causal information.

The insurance-type compensation scheme is proposed to

provide cash payments for death or long-term disability

with administration by private contractors in order to

minimise administration costs and overcome the problems

associated with the uneven workload involved in such a

scheme. The advantages of this proposal include the

payment of benefits to those suffering most. the absence

of a need for proof in respect of a claim and that the

scheme gives some account of the likelihood of association

between exposure and illness by compensating those

veterans suffering death or long-term disability.

XI-55

A simplified determination of the exposure issue is

contemplated: those handling the relevant chemicals will

be deemed to be exposed; otherwise a comparison is to be

made between the HERBS tapes records and the troop

location data. The similarity of these proposals, coming

as they do after the formulation of the Commission's

conclusions and recommendations, provide some confirmation

of the evidence received at the Exposure Hearings and the

Commission's assessment of all the evidence received on

that topic. The Class Action scheme benefits are to be

limited to the 50% most heavily exposed in order to

increase the available benefits.

Death benefits are payable as a single lump sum regardless

of what disease was the cause, unless predominantly caused

by trauma (whether self-inflicted or not). The exclusion,

which would operate in such instances as accidents,

homicides. suicides and war wounds, is designed to

eliminate claims which are obviously unrelated to exposure

to herbicides in Vietnam. The maximum amount of $US3,400

will be payable to survivors of veterans who died before 1

January 1985. Those who died after that date will receive

an amount based on the number of years remaining in the

program, scheduled to continue until 31 December 1994.

XI - 5 6

Long-term total disability is defined in the same manner

as the definition contained in the (US) Social Security

Act. This avoids the time and expense associated with

assessment. The maximum award for disability will be

$12,800 payable in instalments over a ten year period.

Awards will vary according to the age of the veteran and

the duration of disability: higher payments will be made

for longer disability periods and younger veterans.

Awards in respect of disability will cease if the

disability ceases, either through recovery or death. As

in the case of death benefits, the program will cease on 1

January 1995.

Provision is to be made for review of the operation of

this scheme: the Court is to receive reports and retains

final control of the scheme. Variation in the level of

benefits may occur if the claims experience so dictates.

Any excess remaining at the termination of the program is

to be used to provide further assistance to class members,

particularly children of Vietnam veterans with birth

defects. An advisory group of Vietnam veterans will be

consulted as to the planning and development of the

payment program and the need for legal assistance is to be

minimal.

XI-57

The second aspect of the distribution plan involves the

creation of a Class Assistance Foundation designed to fund

services which will benefit the entire class thereby

avoiding the payment of trivial amounts. Children with

birth defects born to class members are to be given

priority by this Foundation which is to be controlled by a

Board of Directors composed primarily of Vietnam

veterans. A number of possible avenues for distribution

were canvassed by His Honour: funding for birth defect and

reproductive problem programs, emergency funding for

medical services and reproductive and genetic

counselling. Other possibilities included funding of

class wide services such as advocacy assistance, "hot

line", referral and information services and public

education programs.

The third component of the distribution plan is the

allocation of $US4m to Australian and New Zealand

veterans. A different treatment was the result of

differences between the US and Australasian public health

and medical programs. The fundamental principle is that

the respective amounts, $US3.6m. for Australian veterans

and $US400,000 for New Zealand veterans, will be paid to a

charitable trust or like body involving the co-operation

of interest groups, class members and Government.

X I - 5 8

Insofar as the Australian allocation is concerned, the

formation of the Australian Vietnam War Veterans' Trust

Limited was proposed under the chairmanship of a former

New South Wales Supreme Court Judge„ the Hon. C.L.D.

Meares QC . Representatives of the Vietnam Veterans'

Association of Australia, the Returned Services League,

the Australian Veterans' Defence Services Council and

Legacy would also serve on the Board of Directors. members

of which would receive no payment except in respect of

out-of-pocket expenses. The Commission again indicates

that it has grave doubts as to the legal status of the 9

Vietnam Veterans' Association of Australia.

Whether the local Trust should follow the US distribution

plan or recommend some other alternative (s) was not laid

down: Chief Judge .Weinstein has indicated that any

reasonable plan will be permitted.10

The Commission regards the proposed Trust as worthwhile

and would only recommend consideration of further

representation. either as consultants or additional

directors, from the Vietnam Veterans' Counselling Service

and professions such as accountancy, actuarial science,

law and medicine.

Xi-59

Thus the issues relating to the litigation, settlement and

distribution of the Class Action appear to be approaching

finality.

Unfortunately, the discord between various Australian

veteran organisations continues and the proposed Trust has

not commenced its activities. It is to be regretted that

the interests of Australian veterans in this regard are

presently impeded by the attitudes of those who purport to

serve them. The Commission can but hope that common sense

will ultimately prevail.

XI-60

ENDNOTES

1. Exhibit 1890

2. In Re "Agent Orange" Product Liability Litigation 565 F. Supp. 1263 at 1266 (E.D.N.Y. 1983)

3. Transcript of San Francisco Fairness Hearings, 24 August, 1984, pp 542 - 543

4. Preliminary Memorandum, op. cit. , pp 65 - 66

5. Exhibit 1892

6. Transcript of San Francisco Fairness Hearings, 24 August, 1984, p 519

7. Preliminary Memorandum, op. cit., pp 346 - 347

8. Exhibit 1963

9. See Ch XIV.

10. Exhibit 1963 p 147.

XI-61

CHAPTER XII

STATUS OF W A A AND RELEVANT MATTERS

1. STATUS OF W A A 1

2. W A A ' S SUBMISSIONS 18

3. THE ROLE OF JOHN EVANS 21

4. DISSENSIONS AMONG VIETNAM VETERANS 30

4.1 Re Relations Between RSL and W A A 31

4.2 Re Internal Dissension 40

4.3 Re Epidemiological Studies September 1981 56

5. CONCLUSION 65

ENDNOTES 67

CHAPTER XII

STATUS OF W A A AND RELEVANT MATTERS

1. STATUS OF W A A

It will be recalled that when the Commission first

formally met on 14 July 1983 Mr Mclnnes QC sought leave to

appear for the Vietnam Veterans Association of Australia

(WAA) which he claimed was "an "Australia-wide

organization of 9,000 members having a very real interest

in the matter before the Commission."1

From the outset, the Commission was aware that about

45,000 Australians had been in Vietnam during the relevant

period. VAAA purported to have no more than 9,000

members, some of whom were not veterans but members of the

families of veterans and other supporters.

The RSL, which had amongst its membership some 12,000

Vietnam veterans, had made a deliberate decision not to 2 seek leave to appear.

XII-1

The Commission has been constantly concerned for the great

body of Vietnam veterans who were not represented at the

formal hearings of the Commission.

In that context and in the light of views expressed not

only by many veterans in informal sessions but also by

veterans purporting to represent sub-groups of WAA,

doubts developed about the representative capacity of W A A

and particularly the legal entitlement of its de facto

leadership to "speak for" even its "members" let alone

other Vietnam veterans.

W A A has no corporate structure and no rules binding upon

individual members. The so-called 'National Body1 seems

to have come into existence by way of meetings of people

purporting to represent others, some of whom were members

of state associations and other smaller and even less

formal groups. It is not known under what rules such

representatives purported to represent members of such

bodies or groups.

As early as February 1984 the Commission expressed its

concern to Senior Counsel for W A A as to the legal status

of his client and suggested some regularising of the

"Association's" structure. Initially, this was done in

X11 - 2

private chambers. As a result of this discussion copies

of certain documents were handed over by Counsel for W A A

to the Commission.

After examination of these documents the Commission

requested Mr Mclnnes to ask W A A for any further documents

which it considered relevant to the problem.

As nothing further was heard after the lapse of a

reasonable period, a summons directed to the person

apparently giving instructions to Counsel was issued.

That summons formally sought the appearance of Phillip

Thompson but in reality sought the production of the

following documents:

1. The Constitution, By-Laws and Rules and other

documents dealing with the structure and

decision-making processes of the Vietnam Veterans

Association of Australia and/or the powers of the

Association's office-bearers.

2. Minutes of all meetings (whether ordinary or

extraordinary) of the National Congress, the National

Council, the National Executive or the Trustees or any

form of general meeting of the Vietnam Veterans

X I 1-3

Association of Australia since the formation of those

bodies or any of them.

3. Certificates of registration, applications for

registration and any documents lodged in respect of,

or subsequent to, registration of the Vietnam Veterans

Association of Australia.

4. All documents, including books of account. indicating

the membership or membership strength of the Vietnam

Veterans Association of Australia.

5. Originals and copies of all letters since 14 May 1983

passing between the Vietnam Veterans Association of

Australia and the Minister for Veterans' Affairs, and

between Mr Thompson and the Minister for Veterans'

Affairs bearing upon the work of the Commission, its

Terms of Reference and the proposed Australian

Veteran's Health Study known as the Morbidity Study.

On the return of that subpoena on 1 June 1984 Senior

Counsel Assisting said:

In about mid-March your Honour developed concerns about an apparent inconsistency of response between certain Vietnam veterans' associations within the States and also about the actual

X I 1-4

structure and decision-making processes of the body granted leave to appear. A subpoena was at that time issued and its contents discussed with Mr MeInnes.3

After discussion between Counsel for W A A and the

Commission in respect of the response to the subpoena the

transcript shows:

THE COMMISSIONER: Mr MeInnes, so that there might be no misunderstanding as to the purpose of certain paragraphs in the subpoena in view of the documents that were produced to me earlier

pursuant to a reguest in March this year, it is apparent to me that the position might be that the Vietnam Veterans' Association of Australia-- which purports to be an association of certain

people, as I understand it-- has no rules at all, even though there may be a constitution; (but the) legal position may have very serious

consequences. It may be that your right of

appearance on behalf of that association--- you see, it is a voluntary association, unregistered, without rules which raises doubts as to whether it can appear before this Commission or whether

it has any legal-- I do not want to use the word "entity" or something technical-- it is not a question of whether it has got any flesh and

blood running around some skeleton but rather whether the skeleton is even there.4

After a short exchange with Senior Counsel for W A A

wherein he indicated that he had not looked into the

problem the Commission expressed its concern: I

I suggest that you do because the ramifications of all that, are very, very serious. I am not

talking about this hearing in this room - I do not want to say any more than that but you can

probably imagine what I mean.5

X I 1-5

Subsequently on 4 June 1984 the Commission again indicated

6

its concern.

Thereafter certain other documents were produced to the

Commission informally by Mr Thompson.

Although there are included in such documents, documents

entitled "Draft Memorandum of Association" and "Articles

of Association" in respect of an association named "The

Vietnam Veterans Association of Australia", no national

body of that name has ever been incorporated or registered

under either Commonwealth or State legislation nor have

any rules, registered or otherwise, of any such national

body been produced to the Commission.

Provision is made under Commonwealth and various State

legislation for the incorporation of proprietary

companies, companies limited by guarantee and the

registration of voluntary associations. In addition,

certain States have legislation requiring registration of

associations wishing to canvass and receive charitable

donations.

But such legislation does not provide that incorporation

or registration of voluntary associations is compulsory.

X I 1-6

Voluntary associations may validly function within

Commonwealth territories or within State boundaries

without having to be incorporated or registered under

relevant legislation.

But a voluntary association, either incorporated or

unincorporated, requires rules under which it can validly

function; either because the Act of Parliament under which

it is incorporated or registered requires rules to be

filed with the appropriate authority, or. in the case of

an unregistered, unincorporated association, because the

body or 'association1 is but the creature of an agreement

between persons who form the membership of that body or

association.

Perhaps in an association consisting of a very small

number of members. such rules are merely the terms

verbally agreed upon by each and every member (together

with necessary implications arising from such terms) at

the time of the formation of the association. But when

the membership of an unregistered and unincorporated

voluntary association is some 9,000 persons, then it is

readily seen that to say that the terms of any agreement

claimed to have been made between each and every member

making up the 9,000 membership have not been reduced to

X I 1-7

writing, points up the difficulty in claiming that such a

voluntary association of 9,000 members without written

rules has been validly functioning within Australia for

some 4 years.

How are the office bearers of such an association

elected? For what period are they elected? What are the

powers and duties of such office bearers? How often do

they meet? What is the procedure for calling such

meetings? By what method and under what circumstances are

any suggested rules amended. What constitutes a quorum

for any particular body within the association? These are

but a few of the 1,001 questions that can be asked.

Answers to such questions, in a properly constituted

unincorporated voluntary association will, of course. be

found in its rules.

After it was clear that all available documents had been

produced by Mr Thompson or Mr Mclnnes. the Commission

again expressed concern to Mr Mclnnes in private

chambers. it went so far as to suggest incorporation,

perhaps as a company limited by guarantee, with the

formality of meetings and the ratification of actions

previously taken by the "National Office" of WAA. So far

as the Commission is aware, nothing further has happened

X I 1-8

to regularise the position as outlined to Senior Counsel

for WAA.

Counsel appearing for W A A informed the Commission in

private chambers in June 1984 that they were satisfied as

to their respective entitlements to appear for the

"Association". They stated they were instructed by the

"National Office". It was clear that they had the

confidence of the de facto leadership and of the few

veterans who were regular visitors at the Commission.

They had prepared themselves to present evidence, to

cross-examine and to make submissions.

At that time they pointed out that they both had been

present at a meeting of the so-called "National Congress"

of W A A held on 14 May 1983 at which the Minister for

Veterans' Affairs, Senator Gietzelt, announced the setting

up of this Commission by Letters Patent dated 13 May

1983. The Minister had also announced at that meeting

that the Government would assist in funding the appearance

of W A A before the Commission. Mr Mclnnes indicated that

certain resolutions had been adopted by that meeting

whereby both he and Mr Hill (instructed by Turner Freeman,

Solicitors) were named as Counsel who would represent W A A

before the Commission and that instructions were to be

XI1-9

given to the instructing Solicitors by the "National

Office".

On seeking information from Mr Mclnnes as to what the term

"national office" meant, the Commission was informed that

he believed that a further resolution had been later

adopted by the meeting wherein four particular persons

were nominated as a "National Office" for the purpose of

instructing his Solicitors.

Among the documents which had previously been handed to

the Commission by Mr Thompson or by Counsel representing

W A A were documents in relation to the 14-15 May 1983

meeting of a so-called "National Congress" of WAA.

Included was a six foolscap-page typed document headed

"Motions passed by the 4th National Congress of the

Vietnam Veterans' Association of Australia held at

Granville RSL Club, Memorial Drive, Granville, NSW,

Saturday 14 and Sunday 15 May 1983". Thereunder are

listed 23 motions each stated to be seconded by either

NSW, Victoria, Queensland, Adelaide, Tasmania, Western

Australia, Northern Territory, and to have been carried

unamimously. There are no minutes included in the bundle

of documents produced which make reference to these

motions. it is understood that this particular bundle was

XII-10

the totality of the papers in the possession of Mr

Thompson in respect of the so-called "National Congress"

meeting of 14-15 May 1983.

The documents do not disclose the persons entitled to be

and who were in fact present at that meeting nor what

office the so-called representatives from the various

States held. Nor is it known what powers they possessed

at relevant times or whether they were validly elected

delegates from affiliated groups. Indeed„ no rules from

any purported affiliated group (other than the West

Australian group) were lodged with the Commission and it

is not known whether such groups have the power to

nominate or elect representatives to any other body. The

Commission is aware that in Western Australia there has

been registered a voluntary association known as 1 Vietnam

Veterans Family Association of West Australia' .

Rule 27 of its registered rules provides: The President

and a nominated member from the Committee together with

Office Bearers holding the positions of President and

Senior Vice-President in other States in Vietnam Veterans

Associations shall be members of the National Executive

which will be known as the Vietnam Veterans Association of

Australia. So far as is known this or a similar rule does

XII-11

not appear in any of the rules of other associations or

groups in other States.

Included among the motions claimed to be passed at the

meeting of 14-15 May 1983 is the following:

Motion N.S.W. (John Haines) moved a motion

that this congress accept the Terms of Reference and Government appointment of the Q.C. and Junior Counsel and endorse the appointment of Adrian Mclnnes as Queens Counsel. Mr A. Hill as Junior Counsel and Turner Freeman to represent

the W A A case. (sic)

Seconded - Queensland

Carried unanimously

Motion N.S.W. (Don Wilson) moved a motion that the national office begin immediately to brief Counsel for the Royal

Commission and take what ever other steps it deems necessary in the

preparation of our case.

Seconded South Ustralia (sic)

Carried unanimously

Northern Territory requested biographical details of the Q.C. and Counsels. Phill Thompson advised we will write a profile on the persons that (sic) will represent us.

Seconded Queensland

Carried unamimously.

It is understood that the expression "Government

appointment of the Q.C. and Junior Counsel" referred to in

X I 1-12

the first motion above is a reference to Mr Coombs Q.C.

and Mr Max Kimber whose appointment as Counsel Assisting

had been announced by the Government at the time of the

announcement of the Commission.

Nowhere in the twenty-three motions stated to have been

adopted at that meeting does a motion appear as to the

composition of or the names of persons constituting the

"National Office" referred to in the second of the two

motions set out above. The Commission has never been told

nor does it know what is meant by the expression "the

National Office" nor who constitute that "office".

A perusal of the documents handed to the Commission either

by Mr Mclnnes or by Mr Thompson are documents identified

by yellow stick-on markers as "Minutes" of purported W A A

"National Congress" meetings held respectively in May

1981, May 1982, May 1983 and May 1984 together with an

agenda with documents attached for a so-called "Meeting of

Delegates from State Branches and Regional Groups of the

National Office of W A A 11-12 December 1982."

None of these documents include details of rules or

proposed rules of a national association adopted or

proposed to be adopted after confirmation by other

XI1-13

associations. Further, no rules of any State association

(other than those of an association registered in Western

Australia) have been produced to the Commission.

On 4 June 1984, despite the state of affairs briefly

described above, the Commission deemed it expedient in the

all the circumstances to allow Counsel for W A A to

continue to appear but with a "rider" of reservations 7

expressed to and accepted by Mr Mclnnes. Mr Thompson's

assertion in "Debrief" November-December 1984 that W A A

had been examined by the Commission on its bona fides to

represent veterans and been given a 1 clean bill of health1

was bizarre and a complete distortion of what in fact was

stated by the Commission on 4 June 1984. Nothing

happened, so far as the Commission is concerned, between 4

June 1984 and November/Dec ember 1984 that could have led

Mr Thompson to reach the conclusions expressed in that

issue of "Debrief".

By letter dated 12 June 1984 Mr Mclnnes wrote to Senior

Counsel Assisting as follows:

12 June 1984

John Coombs QC

Re W A A - Royal Commission

Following the meeting on 8 inst, minutes of the various State Branch inaugural meetings are being

X I 1-14

obtained - if they still exist.

I have now learned that my instructing solicitors were instructed some time ago to incorporate the Federal Body.

It was, however, considered desirable to await incorporation of all State branches to ensure that there are no gaps.

N.T. is now registered and Tasmania and

Queensland are awaiting certificates of

registration. As you are aware Victoria and South Australia are already registered.

That leaves N.S.W. outstanding and a request will be made for this to be expedited. The A.C.T. branch has been defunct for some years and

veterans have belonged to the N.S.W. branch. There is now a move to form a territory branch but registration cannot await this event.

In respect of the press release of the 7 June, Phill Thompson's remarks were based upon

newspaper reports and information passed on about matters raised in the Commission. You will

recall that he left for New Zealand before 1 June and returned only after the right of appearance was raised.

Regards.

The Commission thereafter caused searches of public

records in the various States and Territories to be made

in respect of the incorporation and/or registration of

various Vietnam veterans' associations.

In March 1985 the Commission was informed by Mr Mclnnes,

Mr Hill and Ms Ward that they would no longer be appearing

for W A A before the Commission.

X I 1-15

Thereafter on 18 April 1985 the Commission held a formal

hearing for the purpose of receiving statistical evidence

from Dr Adena concerning the incidence of certain deaths

of Vietnam veterans. On that day Mr Thompson attended and

requested leave to appear for W A A in order to

cross-examine Dr Adena. The Commission indicated that in

all the circumstances Mr Thompson might cross-examine Dr

Adena but pointed out to him that such leave was granted

in accordance with the riders and qualifications given by

the Commission to Mr Mclnnes on 4 June 1984.

It is trite law that an association of individuals has no

legal status to act for its membership at large. Nor can

its office-bearers validly represent the membership

without the agreement of the members. Such agreement is

usually to be found in express rules (or implications

properly drawn therefrom) which are binding on all members.

In the absence of any rules, the capacity of the de facto

leadership of this "association" to issue a receipt on its

behalf is doubtful and his or their power to make

decisions in any way binding upon or representative of the

association's claimed membership without evidence of an

agreement of all members validly granting such power is

non-existent.

X I 1-16

An unincoroprated association cannot be regarded as a

legal entity in the nature of a partnership, a company or

of any other variation of a legal person or entity.

The Commission repeats that a detailed examination of all

documents produced by W A A to the Commission and of the

relevant searches of Departmental records throughout

Australia has done nothing to allay the concern expressed

in June 1984. This concern does not seem to be shared by

those who represented W A A nor by those who have

authorised funds for its appearance before the Commission,

which funds have been stated to be in excess of $700,000.

Finally, on this subject matter, the Commission, in the

early days when it commenced receiving formal evidence,

was concerned that the views being put by W A A were not

always in accord with those of Vietnam veterans generally

or even those of some of the so-called branches of WAA.

Having had the advantage of speaking informally with

almost 2.000 Vietnam veterans throughout Australia. this

concern increased as W A A continued to put views to the

Commission not in accord with views that had been

expressed quite strongly to the Commission by veterans

personally. Further, concerns were felt from time to time

that allegations that had been made by veterans during

X I 1-17

informal meetings were not being presented or adequately-

presented to the Commission and, consequently, not being

adequately canvassed.

Nevertheless it should be widely known that the Commission

instructed Counsel Assisting it to ensure that no stone

was left unturned. The solicitors and staff of the

Commission were similarly instructed. The Commission

itself, in effect, acted for all veterans and their wives

and children in an earnest search for any possible

connection between chemical agents and adverse health

consequences. It searched also for such consequences and

their connection with Vietnam service.

2. WAA'S SUBMISSIONS

Throughout this Report reference has been made to the

various written submissions made on behalf of W A A

including its initial submission and its toxicology

submission.8 It is unnecessary at this stage to repeat

the Commission's views as to the standard of those two

submissions. At the time of their lodgment with the

Commission it was thought every possible latitude should

be afforded" to those representing WAA, it being hoped

that after all the evidence had been produced W A A through

X I 1-18

its legal representatives would thoroughly and precisely

deal with the issues which had been raised in the oral

evidence and the written material before the Commission.

After all the evidence had been collected in mid-December

1984 the Commission laid down a program for the filing of

final written submissions. Such program provided that

WAA's final submission was to be lodged by the end of

January 1985. It was hoped that this final submission

would repair the lack of particularity and clearly state

WAA's case and at the same time deal in a conventional

way with the evidence for and against on all issues.

However, on receipt of the final submission (Exhibit 1879)

the hopes of the Commission were dashed.

It abounds in generality and bald assertion and is short

on detail and logic. It makes no attempt to state or to

come to grips with the issues raised by the evidence and

fails even to mention. let alone confront. evidence

unfavourable to the veterans' general, if nebulous,

position.

The section on birth defects, for example, fails to deal

with the mechanistic problems. The evidentiary opinions

X I 1-19

of Dr Sune Larsson, Dr Dave Brusick and Dr Zena Stein are

not even mentioned. This is particularly significant in

light of what must be known to Counsel advising WAA,

namely, that Chief Judge Weinstein in the US class action

accepted the opinion of Dr Stein as the only analysis

acceptable as a matter of science and law.

The section on mortality, less than two pages long, makes

no attempt to deal with the primary thesis of all

witnesses called on this topic. namely. that increased

mortality might be expected amongst veteran national

servicemen but that such increase is not chemically caused.

To be blunt, had the WAA;s final submission been

profferred to a university supervisor by a student, it

probably would have been returned with a recommendation

that it be withdrawn rather than damage the reputation of

the submitter.

The effect of these shortcomings has been to throw an even

greater burden on the Commission to seek out what case

might have been made on behalf of veterans, represented

and unrepresented. This was done and done thoroughly.

The Commission takes no pleasure in making these

criticisms but its confidence in the Bar of New South

X I 1-20

Wales was shaken by the quality of this final submission.

That confidence fortunately has been restored by the

workmanlike and thoroughly professional assistance

received from Counsel Assisting and from Counsel for

Monsanto (Australia) Limited.

3. THE ROLE OF JOHN EVANS

From the earliest days of W A A and indeed from the time of

the first allegation by Bernard Szapiel that his ill

health was caused by Agent Orange the name John Evans is

prominent. He was present at almost all the early

meetings at which the association was mooted and its

objects and purposes were discussed.

There is no doubt that Evans was the driving force in the

propagation of the chemical/ill health theory in

Australia. Certainly, he converted Phillip Thompson who

in the early days regarded the Agent Orange story as (to 9

use his colourful phrase) "a wank". He was however a

force not only in "scientific" matters but also in

political and tactical matters from the very beginning.

As Phillip Thompson wrote "Without this man there would be

no Association, no .... counselling service, no ....

Senate Inquiry, no .... Royal Commission".10

X I 1-21

During the currency of the Commission Mr Evans "resigned"

as scientific adviser to WAA. There is little doubt.

that this step was taken so as to avoid giving further

evidence before this Commission.

He had given evidence during the hearing limited to

"Exposure" on 9 and 10 February 1984. He was then

subjected to cross-examination, which the Commission

limited to that subject matter.

John Evans had been the publicist for and largely the

author of the toxicological case believed in by and

presented to the Commission on behalf of WAA. A written

report1· 1 · of his general views was presented to the

Commission as part of W A A 1 s case in December 1983. At

that time toxicology hearings were foreshadowed. Evans1

evidence was to take a prominent place. An expansion of

his toxicological opinions was promised and re-promised by

Counsel for WAA.

When this expansion was not delivered to those Assisting,

the Commission put courteous pressure on those appearing

for W A A to produce the document. Pursuant to the

procedures laid down, as far as possible proofs were

delivered to the Commission and to all parties appearing

X I 1-22

in anticipation of the calling of witnesses so as to

permit proper preparation for cross-examination.

It ultimately became necessary for Counsel for W A A to be

publicly asked about the proof of Mr Evans1 evidence when

the toxicology hearings were drawing towards a close. On

26 June 1984, more than a week after the commencement of

the toxicology hearings the following exchange took place

as the official transcript at pp 3246-7 shows:

MR COOMBS: And, your Honour, we do not have an answer to the Evans question yet.

THE COMMISSIONER: (To Mr Mclnnes) I was asked to remind you about that.

MR McINNES: I am unable to assist, your Honour. We would not be relying on Mr Evans to

produce the document at this stage. I would say that I would not be seeking to call

him. I just do not have the document and I do not see one coming in the immediate

future and I would not be seeking to rely on it.

THE COMMISSIONER: Does he propose to produce a document?

MR McINNES: I think he does, your Honour. I think it is under way but if the matter

arose and became significant then I would have to take the matter up again in the

future, if and when that occurs.

MR COOMBS: Programming, as your Honour knows, is a very tight problem.

MR McINNES: I say that with the programming in mind, your Honour, because we know the

difficulty with the programming and if the report is not here at this time then it may be a penalty we will have to pay.

XI1-23

MR COOMBS: I think there is a bit more to it than that, your Honour. I think Mr Evans - if my learned friend did not propose to call him, I would call him anyway. He has put

too much into this debate to not face up ---THE COMMISSIONER: When you say call him - on this topic?

MR COOMBS: Yes, your Honour.

THE COMMISSIONER; Toxicology.

MR O'KEEFE: Your Honour, I specifically reserved a number of matters. Mr Evans has gone to the trouble of going on radio and television and absolutely slanging my client all over Australia, and I held back on those matters

on the last occasion and I regard my

cross-examination of him as incomplete. Whether he produces a document or not, I want him again, please, to cross-examine him at an appropriate time.

MR COOMBS: Your Honour, I would not have any inhibition about calling him blind - I do not mean that in the way it sounded, I am

sorry. I would be quite content to call him without a proof. So he should be told that and if necessary we will issue a subpoena.

Again, on 28 June 1984 the official transcript at pp

3446-8 reads:

THE COMMISSIONER: It has been suggested to me, Mr Mclnnes. when we were talking about Mr Evans' paper yesterday - or submission, document, whatever you want to call it - I

did not hear you say this but it was

suggested to me --- I have not got yesterday's transcript --- that you

indicated that if I were to put a time on it that you would not call him.

XI 1-24

MR McINNES: No. I did not say that. Well, I said that he had not got it in within the

time. I thought he would be here this

week. In those circumstances. I would not call him.

THE COMMISSIONER: What do you mean by that? Not call him at all on this aspect?

MR McINNES: Yes, your Honour. I understand that he is doing a paper. The difficulty is that I simply cannot say with any certainty when that paper will be ready. In those

circumstances, I thought that ---MR COOMBS: I certainly took my learned friend to be saying, your Honour, that his problem

was that he could not get a guarantee from Mr Evans. So he was not able to give us

one: it was not any problem with him.

THE COMMISSIONER: No. I am not being critical of you.

MR McINNES: No.

THE COMMISSIONER: I do not want it to be suggested that because it was not done this week that this Commission has blocked you calling Mr Evans to give evidence on this

aspect. Because Mr Evans will certainly be back in the witness box before this

Commission.

MR McINNES: When I get the paper ---THE COMMISSIONER: Even if it is only to conclude the cross-examination.

MR McINNES: Yes, your Honour. I think that I said when I got the paper if I thought it

was significant I would certainly pass it on to the Commission and if I thought it was significant then I would re-apply to call him on the paper.

THE COMMISSIONER: Yes.

MR McINNES: No, your Honour, I did not - I was saying that I cannot call him now....

X I 1-25

MR COOMBS: Timing is a problem. May I suggest that your Honour ask Mr Mclnnes to tell Mr Evans that paper or no he will be called

during the week commencing 20 August.

THE COMMISSIONER: Yes. very well, if you would

MR McINNES: Yes.

On 13 August 1984 at p 3647 the official transcript reads

MR O'KEEFE: Your Honour, before we commence the next witness - having regard to something that my learned friend - Mr Coombs, said late last week, namely, that Mr John Evans had been the subject of a summons to appear on Monday the 20th. I should indicate

formally that, having reviewed the

transcript of Mr Evans' evidence and his cross-examination, we would not wish to ask him any further questions unless he were forthcoming with some additonal evidence in chief by way of proof or otherwise.

THE COMMISSIONER: I have not looked at his transcript for some time, but was not his evidence restricted to the subject matter?

MR COOMBS: It was, your Honour, he gave evidence --- (on exposure only).

THE COMMISSIONER: He may be called on other matters, I do not know, Mr O'Keefe.

MR O'KEEFE: Quite, your Honour. All I am indicating is that, as far as we are

concerned, unless he were to give additional evidence in relation to 2,4-D. 2.4,5-T, TCDD, it would be hard to see that we would want to ask him anything. In fact, the

present decision would be not to ask him anything. Now, undoubtedly, there are other matters outside those three substances that he may wish to give evidence on or on which he may give evidence; but those would be outside the ambit of my brief and I just

X I 1-26

indicate that for the purpose of

programming, your Honour, and

decision-making in relation to his recall or not.

MR COOMBS: Your Honour, there are some other considerations which I would wish to discuss with your Honour privately; but it may be that those assisting would suggest that we

simply cancel his attendance.

MR O'KEEFE; That may assist on your times this week.

MR COOMBS; Yes.

THE COMMISSIONER: Those observations, I take it Mr Mclnnes, have been taken on board by you for whatever reasons you may want ---MR McINNES: Yes, your Honour, I do not propose

to call him again in relation to any matter, (emphasis added)

Senior Counsel Assisting was informed by Mr Mclnnes later

in August 1984 that he had been unable to get any further

document from Mr Evans and that Evans was no longer

scientific adviser to WAA. The Commission notes that Mr

Evans appeared on television and radio supporting the

chemical thesis on several occasions subsequent to the

announcement that he was not to be called by WAA. On

those occasions he was described as a chemical expert and

adviser to WAA. Nothwithstanding his widely publicised

opinions and what Counsel for Monsanto (Australia) Limited

called his "slanging" of chemical manufacturers, he has

lacked the courage to support his opinions before this

Commission, a forum sought by him. He had learnt on 9

X I 1-27

February 1984 when he gave evidence on the topic of

exposure that all opinions expressed by him would not

necessarily be simply accepted but would be subjected to

appropriately rigorous analysis.

It was easier simply to assist in the preparation of

W A A 1 s Toxicology submission (as the Commission suspects

he did) and steer clear of the witness box! ·

A brief examination of his background is helpful. Mr

Evans graduated in Science from the University of

Melbourne in 1963. He appears to have been accepted for a

Master of Science Preliminary Course with which he did not

persist.

Although he embarked upon research for a Doctorate in

Philosophy at the Monash University he never submitted a

thesis.

In 1968 he commenced work at the Division of Applied

Organic Chemistry of the Commonwealth Scientific and

Industrial Research Organization (CSIRO) at Fisherman's

Bend, Victoria. His work in that Organisation gave him no

special gualification as an expert in the herbicide field.

X I 1-28

He has never done any experimental work with any of the

chemicals about which he "spread the word" and gave

reports. Nor has he any qualifications in toxicology,

epidemiology, genetics or bio-statistics.

In the course of his work at the CSIRO he was injured as a

result of coming into contact with a laser beam which

rendered him blind in one eye.

At the time of giving evidence (in February 1984 ) he had

no fixed employment and described himself as a guest

lecturer at the University of Melbourne.

It transpired that this "guest lectureship" involved him

giving two hours of lectures per year in the School of

History and Philosophy of Science. He agreed that his

"expertise" in toxicology had been obtained from a reading

of literature on the topic.

It was put to him that he had read the literature and

picked out only those parts of it which were favourable to

the thesis which he wished to advance. In a series of

evasive answers commencing at. p 1588 of the official

transcript he resisted conceding this proposition. That

that is his method is inescapable from an examination of his written work.

X I 1-29

Nor does he always quote and report accurately. The

consistent nature of the inaccuracies suggests bias rather

than appropriate objectivity. That he must be regarded as

one of those pseudo-scientists earlier referred to is a

sad fact. Sadder still is the heartache and anguish of

many fearful Vietnam veterans and their wives in this

country for which he must bear at least some

responsibility.

4. DISSENSIONS AMONG VIETNAM VETERANS

In Chapter I of this Report reference was made to the

early period of the formation of Vietnam veterans

associations throughout Australia and the mooted

suggestion that a national body be formed. Reference was

there made to the fact that in late 1980 dissension had

developed not only between associations of various Vietnam

veterans within Australia but between members within

particular associations. The suggested dissension was

stated to be in respect to three matters:

(i) The possible liaison and co-operation of a

proposed national body of Vietnam veterans with

the RSL;

X I 1-30

(ii) Dissension between Vietnam veteran groups in the

various States and Territories of Australia

regarding (inter alia) becoming parties to the

U.S. Class Action;

(iii) Whether further support should be given to the

epidemiological studies being carried out or to

be carried out by AVHS during 1981-1982.

In this regard the following documents are set out:

4 .1 Re Relations between RSL and W A A

(a) Report of March 1981 of Mr Holt McMinn. National President W A A on meeting with Sir William Keys QBE, MC. National President Returned Services League at the RSL National Headquarters on 25 and 26 February 1981.

Those attending the meeting were:

Returned Services League:

Sir William Keys QBE, MC - National President Mr John Button - National Solicitor to the RSL Mr Alf Clarke - RLS ACT Branch President Mr Peter Young - Assistant National Secretary

Vietnam Veterans Association of Australia

Mr Holt McMinn - National President Mr Frank Callaghan - National Repatriation Adviser Mr David Harris - State President Victorian Branch

1. Introduction

The following report concerns the meetings with Sir William Keys, National President ofthe RSL, which took place over 25/26 February 1981.

XII-31

The report lists items that were discussed that affect our Association and you will note in my conclusions that I have asked for a response on any aspect of this

report from you.

2. RSL Support for Vietnam Veterans claims before the DVA

I expressed concern to Sir William that whilst

instructions had been issued by the RSL National Executive that every assistance was to be given to Vietnam veterans in pursuing claims before the DVA, there still appeared to be some problems. Sir William

rang the Victorian State Secretary in my presence and asked what procedure was adopted when that Branch was approached by a Vietnam veteran.

The answer to that question is contained in a written report to Sir William by the Victorian State

Secretary. (Copy attached *). Sir William also undertook to establish what the NSW Branch of the RSL was doing to assist the Vietnam veterans in pursuing

claims and to fully explore this issue at the next National Executive meeting to be held 14/15 March 1981.

3 . Direct liaison RSL/WAA

We expressed concern that one cause of friction between our organizations was that the RSL had in the past made statements concerning all Vietnam veterans without consulting this Association.

I reminded Sir William that a request had been made by myself on 28 November 1980 for the RSL to establish a special sub-committee, including representation from our Association, to advise the RSL National Executive on matters that concerned Vietnam veterans. This proposal was put to the RSL National Executive meeting

in December 1980 but was refused. I

I again requested that this sub-committee be

established and Sir William responded by offering our Association participation on the RSL National Committee on Veterans' Affairs. Sir William suggested we put forward two members as our representatives on

the Committee. This Committee's role is to advise the National Executive of the RSL on all policy matters concerning the DVA.

XI1-32

This offer has been accepted. It is not what was

requested but it is a good beginning. I feel that Frank Callaghan, National Repatriation Advisor to our Association, should be one of those representatives.

The other representative can be appointed at our National Conference but I am willing to carry out these duties in the meantime. This RSL Committee meets every three months, but may be convened on a

more frequent basis if the need arises, and clearly in our case the need is there to influence RSL policy in a way that will assist our members and all

ex-servicemen generally.

4. RSL Executive Position

Mr Peter Young, a Vietnam veteran, has been appointed Assistant Secretary of the National RSL Executive, and is to become National Secretary in June, 1981. Both Sir William Keys and Peter Young expressed very

strongly that the next Assistant Secretary to be appointed would also be a Vietnam veteran.

5. RSL Financial Support

5.1. I brought to Sir William Keys' attention the issue of financial support generally, and the misconceptions that had arisen because of the RSL1 s position on financial support for any veteran involved in the US class action or

Australian litigation. It was pointed out that many veterans had read this to mean complete withdrawal of any financial support for any

Vietnam veteran or this Association. Sir William gave an assurance that this was not the case and the directive was aimed at restricting any legal costs involving veterans without the consent of

the National Executive. Sir William stated that he would make this quite clear to all State

Presidents at the forthcoming National Executive meeting, and further stated that there was no restriction on any State Branch or Sub-Branch supporting this Association in any way other than

that outlined above.

5.2. I raised the question of direct financial support to this Association and Sir William stated that he would examine the ways in which the RSL State Branches could assist us. Obviously this

question depends on the establishment and maintenance of good relations between our two organizations at both State and Federal level.

XI1-33

6. US Class Action

6.1 Mr John Button spoke on the US Class Action and advised:

6 .1 .1 .

6 .1 .2 .

6.1.3.

6.1.4.

6.1.5.

6 .1 .6 .

The US Court is to settle Notices to be

drawn to the attention of all people

comprising the various classes including those in Australia who are in the US Action. Any person who comes within a class must ‘opt out1 or he or she is automatically

involved in the class action. The form of Notices and the context and

method of distribution of the Notices is not yet known. Australian Plaintiffs (i.e. members of a Class) should, in Mr Button's view, expect

to pay costs of the Defendants in the event of the Plaintiff losing the case. That he had heard that in relation to the above action, a proposal had been made to subdivide Australia into three zones with W.T. McMillan Northern Zone; D. Teed

Southern Zone; and R. Lonnie Western Zone. controlling the Australian involvement in the US Class Action with W.T. McMillan

acting as Lead Counsel. He would follow up enquiries as to whether notices will be settled etc by the US Court. That W.T. McMillan had asked the Federal

Government to contact all veterans through these Notices. W.T. McMillan had made

approaches to the Queensland RSL and Service Clubs to bear the costs of issuing Notices in the event that the Government fails to agree to bear the cost.

7. Australian Matters

7.1. Mr F. Callaghan stated that it was immaterial what the Minister or the Secretary, or any body else for that matter, thought about the

connection between toxic chemicals and death or incapacity. This is a question that, under the Repatriation Act, can only be answered by the determining authorities. 7.2. Mr Callaghan raised the question of the proposed

High Court action to be initiated in Victoria. The RSL had, on taking legal advice, decided not to support this case and had insisted that the

XII-34

correct procedure is to seek remedy by appealing to the Repatriation Commission, and Sir William undertook to request that the Minister expedite appeal procedures that would allow, in lieu of our proposal, a rapid hearing of the case by the Repatriation Commission. Mr Callaghan wanted the

appeal to take no longer than four weeks,

including the appeal to the Repatriation Review Tribunal if that becomes necessary. 7.3. Mr Button reguested that copies of forty covering letters to Veterans concerning determinations

unfavourable to the claimant, and where reference was made to their case being reviewed after the Commonwealth Department of Health Epidemiological Study had delivered its finding, be supplied to

the League.

7.4. Mr Callaghan stated that the cases must proceed regardless of the C.I.H. study's findings and again made the point that the issue of

Prerogative Writs (Mandamus) to compel the Secretary to act according to the Repatriation Act had been suggested four months ago and had failed to attract the League's support. 7.5. Mr Button stated that the 82 page report that was

reported to be in the hands of the Department (reported in the Melbourne 'Age'), should be delivered by the Association to Repatriation Boards. Mr Callaghan replied to this by saying

that it was consistent with what was being done by drawing to the attention of the Boards, by way of claim formq. that this information was in the possession of . the Department, and that it was not

the responsibility of the individual claimant to have to submit evidence of this nature to a Board when the Department already had it.

8. Operation Simpson

8.1. This proposal for an independent Vietnam Veterans Counselling Service has been prepared by Mr Dirk Van Neuren, National Welfare Adviser, with the assistance of other professionals. It has been

prepared as an alternative to the Government's decision to establish such a service within the DVA. The reasons for our counter proposal are contained within the proposal paper. which will

be distributed to all State Branches as soon as possible.

XII- 35

8.2. The proposal paper less the supporting statement and budget was discussed with those present. Sir William indicated that he supported the proposal but. in discussing it with the Minister had

established that the independent management of the project by way of a Limited Liability Company was not acceptable to the Minister. 8.3. Many questions concerning the proposal were put by the RSL members and I feel that once they have read the paper on 1 Operation Simpson' fully then a better understanding of our proposals will be possible. It was apparent though that Sir William supported the proposal.

9. Conclusion

Submissions are now required from each State to be placed before the RSL National Committee on Veterans' Affairs. This will NOT be the only avenue we take to place our views before the Government and those organizations who may be able to assist our cause. Strong support has already been attracted from the Combined Ex-Servicemen' Associations Committee which has eleven ex-service organization member bodies. This Committee has been very active in investigating

the implications of our cause plus matters before the High Court may have on the Repatriation Act and are very concerned that an attempt may be made to change either the Act or the Regulations made under the Act

before the Senate majority passes from the hands of the Government in mid year. Please submit any matters you wish me to raise with the Government or the above committees, in writing, as soon as possible. I would be very pleased to receive comments on these

discussions with the RSL. These comments too should be in writing.

This report was circulated to all State and Territory Presidents on 17 March 1981.

(b) Letter dated 12 March 1981 to Sir William Keys QBE, MC, from Holt McMinn

You asked me recently if the W A A would be prepared to nominate two persons for appointment to the RSL National Committee on Veterans' Affairs.

The W A A is pleased to receive this offer and

willingly accepts it. The nominees are:

X I 1-36

Mr Frank Callaghan, the National Repatriation Advisor to the WAA; and

Mr Holt McMinn, the National President of the WAA.

Yours sincerely,

(c) Letter dated 12 March 1981 to Sir William Keys QBE, MC from Holt McMinn

The W A A is to hold a National Conference in Canberra on Saturday the 2nd and Sunday the 3rd of May 1981. The Presidents of all State and Territory Branches, or their nominated delegates, are to attend. The aim of

this conference is to formalize the organization and operations of the W A A as a national concern.

Three of the Branches do not have great financial resources at present and will find it difficult to fund the movement of their Presidents to Canberra. The Branches are those of West Australia, Tasmania and

the Northern Territory.

It is noted that Article 4(1) of the RSL Memorandum of Association states that the League should assist other bodies with like aims. As you are aware, the W A A is moving towards a close association with the RSL on the

problems of the veterans of the Vietnam conflict. It would be of tremendous assistance to the W A A if the RSL could see its way clear to give financial help with the fares of the three W A A Branch Presidents

concerned. Would you please consider asking the National Executive of the RSL if this could be done.

May I point out that the West Australian Branch of the W A A is a Sub Branch of the RSL and that the Tasmanian and Northern Territory Branches have close

affiliations with the RSL in their State and Territory.

Yours sincerely,

(d) Letter dated 1.2 March 1981 to Sir William Keys QBE, MC, from Holt McMinn

You are aware that the W A A grew up in a rather ad hoc manner and that the tremendous pressures on the various states' organizations during the past year have caused a number of problems.

XI I-37

With my move to Canberra and the appointment of Mr Peter Sadler as Acting National Secretary, the W A A is now in a position to organize itself as a properly constituted national body and to rationalize its aims and objectives. The RSL National Executive may be

interested in how we plan to go about doing this and what our overall plans for the future are.

A National conference has been convened for the 2nd and 3rd of May 1981. The stated aims of this

conference are:

a. To define and adopt national aims for the WAA. b. To adopt a constitution for use at the national level, and to form a model for State/Territory Branch constitutions.

c. To determine the duties of National Executive members. d. To determine financial support required at the national level and the provision of that finance. e. To adopt Standing Orders for the conduct of

National Executive and National Conference meetings. f. To elect National Executive office bearers.

The W A A 1 s relationships with the RSL have been the subject of much thought lately, and will, no doubt, be discussed further at the National Conference in May.

Because of the special problems of the Vietnam veteran, brought about by the peculiar circumstances of that conflict, we firmly believe that the W A A has

an important purpose to fulfil. However we are not blind to the necessity to seek advice and guidance from the RSL and to co-operate closely with the League in association with the RSL in resolving the problems

of our comrades from the Vietnam conflict.

It is, therefore, our intention to keep the RSL

National Executive informed of our plans and

activities for the future.

Members of the National Executive may not be aware of 'Operation Simpson1 , the draft proposal for the setting up of counselling facilities for Vietnam Veterans throughout the country. The submission has

been received most favourably by the Minister for Veterans Affairs, who has promised to give it close consideration.

Yours sincerely.

X I I - 38

(e) Letter to Sir Wil l i a m Keys QBE, MC, from Holt McMinn

Thank you for your letter of 16 March 1981. I was

naturally very disappointed that the RSL National Executive would not support the provision of financial assistance to fly three delegates to our National

Conference next May. However I can fully appreciate why this decision was taken: it is a matter of deep concern to me that our members continue to attack the

RSL and I have written to our Branch Presidents on this matter.

As I stated to you in my letter of 12 March 1981, we in Canberra see the need to work with the RSL, not against it, but unfortunately some of our members do not share this point of view. We hope to change this

in time and are actively working towards this end.

May I thank you for presenting the subject of

assistance and support to the W A A to your National Executive and for the assistance and guidance you have given me in recent weeks. Would you please pass on to the members of the RSL National Executive my

appreciation for the consideration they gave to our proposals. I sincerely hope that they will have cause to see us in a better light in the not too distant

future.

Yours sincerely,

(f) Copy of letter dated 20 March 1981 from Mr McMinn to all State/Territory Branch Presidents

I refer you to my letter of 9 March 1981 in which I

formally advised you that I was convening a National Conference of the W A A in Canberra on the 2nd and 3rd of May 1981. For administrative purposes the Acting National Secretary needs to know the names of

delegates to the Conference by the end of this month. Would you please forward names to the Acting National Secretary at the above address. I remind you that one delegate only is required from each State/Territory

Branch and that the delegate should be the Branch President, (though substitutes are acceptable if the President is unable to attend personally).

The RSL National Executive was approached earlier this month with a request for financial assistance to fly delegates from Perth, Darwin and Hobart to the

Conference. This request was refused for reasons that are given on page 1 of the attached letter to me from the National President of the RSL.

X I I -3 9

Steps have been taken in Canberra to improve our relationships with the RSL for it is recognized that the League has the potential for providing a great deal of assistance to the WAA. The present National President and the National Secretary-designate of the RSL especially are amenable to co-operating with and helping the WAA, but this goodwill will rapidly evaporate if attacks continue to be made on the League by members of the WAA. State/Territory Branch Presidents are urged to take note of this situation.

I do not wish to labour the point now for it is a

matter that we can discuss fully in May at the

National Conference.

The attached letter to me from Sir William Keys

contains other information of interest to you.

Yours sincerely

4.2 Re Internal Dissension

(a) Letter dated S March 1981 from Mr McMinn as National President to Mr P. Thompson. President. Vietnam Veterans Association of Australia (NSW Branch)

I refer to your recent correspondence concerning the position of National Secretary.

You will recall that at our Conference in Sydney in May last year it was agreed by those attending that:

a. The National Executive of this Association must, for obvious reasons, be located in Canberra,

b. That I should, as National President, reside in Canberra, and

c. That as soon as a suitable person in the ACT was found, who was willing to act as National

Secretary that Gary Adams would resign from that position. I

I now advise that Mr Peter Sadler is willing to. and has in fact assumed the position of Acting National Secretary of this Association as from 4th March 1981. Peter Sadler will continue to act in this capacity up

to the proposed National Conference to be held in the near future.

X I 1-40

Mr Peter Sadler Is a serving officer of the Australian Regular Army and brings with him a wealth of

administrative experience.

I express my sincere appreciation for the work put in by Gary Adams on behalf of the Association.

In due course the Acting National Secretary will contact you concerning the holding of the National Conference.

Yours sincerely

Copy of Mr McMinn 1 s letter of 5 March 1981 addressed to the Presidents of the Vietnam Veterans Association of Australia (Old Branch), Vietnam Veterans

Association of Australia (Vic . Branch), Vietnam Veterans Association of Australia (N.T. Branch), Vietnam Veterans Association of Australia, Madbury. S.A.. Vietnam Veterans Sub-Branch Returned Services

League. Armadale. W.A. , South East Asia Veterans Assoc . , Tasmania.

Those States that attended the National Conference in Sydney in May 1980 will recall the Agreement that;

a. The National Executive of this Association must, for obvious reasons, be located in Canberra,

b. That I should, as National President. reside in Canberra, and

c. That as soon as a suitable person in the

A.C.T. was found, who was willing to act as National Secretary, then Garry Adams would resign from that position.

Accordingly, I now advise you that owing to the resignation of Garry Adams from the position of National Secretary, I have appointed Mr Peter Sadler to the position which he shall occupy as

Acting National Secretary until the proposed National Conference is held in the near future.

Mr Peter Sadler is a serving officer of the

Australian Regular Army, and brings with him a wealth of administrative experience.

XII-41

In due course the Acting National Secretary will contact all states concerning the holding of the National Conference.

Yours sincerely,

A copy of the above letter was also sent to Mr John Evans,

Mr D. Van Neuren, c/- de Paul Medical Centre, Fitzroy,

Victoria, and Mr F.C. Callaghan of Cheltenham Victoria.

These three letters were dated 11 March 1981. Mr Evans,

of course, is the John Evans referred to earlier as being

the "Scientific Adviser to VVAA." Mr Frank Callaghan is

National Repatriation Adviser to Vietnam Veterans

Association of Australia. Mr Van Neuren was its National

Welfare Adviser.

(c) Letter from Mr McMinn dated 9 March 1981 to all

State/Territory Presidents of so-called Branches of W A A

1. The National Executive of the W A A is

convening a conference with State/Territory Presidents of the Association to be held in Canberra on Saturday 2nd and Sunday 3rd May

1981.

2. The conference is being convened primarily to formalize procedural and operational matters, therefore the aims of the

conference will be:

a . to define and adopt national aims for the WAA. b. to adopt an Interim Constitution for use at the National level, and to form

a model for State/Territory

associations' constitutions. c. to determine the duties of the members of the National Executive. d. To determine the financial support

required at the National level and the provision of that finance.

XI1-42

e . To adopt Standing Orders for the

conduct of National Executive and National Council meetings. f . To elect National Executive office bearers.

(For the purposes of this letter, the term 1 National Executive1 is defined as the President, Secretary. Treasurer and other National Officers of the WAA. 'National

Council1 is defined as the conference of the National Executive and State/Territory Presidents).

3. It is proposed that the conference should commence at 9 am on Saturday 2nd May and

conclude by 3pm on Sunday 3rd May. The

conference venue has yet to be determined. Accommodation in Canberra will be arranged for interstate visitors for the Friday and Saturday nights.

4. State/Territory representation to the conference is restricted to the President OR his nominated representative only. National level representation will probably only be

the President and Interim Secretary.

5. The agenda has yet to be formalized but its major items of business will be:

a. Elect members of the National Executive. b . Adopt aims of the WAA. c. Adopt Standing Orders.

d. Adopt an Interim Constitution for the WAA. e. Determine duties of the National

Executive members. f . Determine financial matters. g. Other business.

Meeting procedural matters have yet to be determined. They will be advised at a later date.

6. Any time remaining after the stated aims of the conference have been achieved will be used for general discussion of matters of

XI1-43

interest to delegates. However it should be noted that the conference is being convened specifically to resolve procedural matters as listed in paragraph 2.

7. An Interim National Secretary has been

appointed. He is Mr Peter Sadler, who lives in Canberra. Correspondence to the W A A should be sent to the Interim Secretary, WAA, PO Box 63, Hackett ACT 2602. Mr

Sadler's telephone numbers are 062-478458 (home) and 062-662073 (work).

8. The Interim Secretary will prepare draft aims, standing orders, duty statements and an interim constitution and hopes to be able to forward these to State/Territory

Presidents well before the National

Conference in May. It is requested that State/Territory Presidents staff these drafts within their associations and, where necessary, to regional associations within

their states, before the conference.

9. Details of administrative arrangements for the conference will be forwarded at a later date.

(d) Letter dared 17 March 1981 to all State/Territory Branch Presidents from Peter Sadler

The W A A National President, Mr Holt McMinn, met with the RSL National President, Sir William Keys, last month. Enclosed for your information is a copy of the written record of the meeting. The draft of this record was cleared with Sir William.

Arrangements for the National Conference of the W A A on the 2nd and 3rd of May are proceeding

well. The conference venue is to be the Woden Valley RSL Club. A buffet dinner for delegates is being organised at the club, commencing at 6.30 pm on Saturday 2nd May. The Minister for Veterans' Affairs, Senator Messner, the Shadow Minister, Senator Grimes, the National President

of the RSL and the Assistant Secretary of the RSL, Mr Peter Young have been invited to attend. This function will afford a unique opportunity for State/Territory Branch Presidents to meet

these people informally and you are asked not to make alternative social arrangements for that evening.

XII-44

Work on the preparation of the draft aims,

meeting procedures, duty statements and a

national constitution, (in the form of a

Memorandum and Articles of Association) is proceeding well. I hope to have these to you by the end of this month so that you have ample time to consider them within your branches before the National Conference.

Yours sincerely,

(e) Letter dated 27 March 1981 to all State/Territory Branch Presidents from Peter Sadler

Draft Aims and Memorandum of Association for the W A A

As you were made aware in letters from the

National President (9 March 81) and myself (17 March 81) I have been giving consideration to the National Aims and a Memorandum of Association (M of A) for the W A A to be considered (and possibly

ratified) at the National Conference in May.

The first stage of this exercise was devising the Aims, the first draft of these being:

"a. to monitor and where necessary co-ordinate the activities of the various states

branches of the WAA;

b. to represent their interests at the national level; and

c. to lobby, advise and co-operate with

government and non-government bodies, officials and organizations at the national level for the benefit of the association and its members."

I believe that the draft aims are

self-explanatory. They are designed to give a frame of reference to all W A A activities and the M of A has been drafted with these aims in mind.

Copies of the first draft of the M of A are

enclosed. It must be emphasised that this draft is almost wholly my own personal creation and is presented to you as a start point for

discussion. It attempts to fulfill what I

X I 1-45

understand and believe to be the requirements of the W A A at the National level. It and the

draft aims will be discussed at the National Conference, but I would appreciate any comments you might care to make in writing before then. These can be consolidated and possibly

alternative forms of contentious parts prepared before the Conference. In subsequent paragraphs I have prepared notes on the draft M of A to

speed your consideration of it.

It is envisaged that the proposed establishment of the W A A as a national organization with its headquarters in Canberra will require its

registration as a limited company in the ACT. The constitutions etc of a number of

organizations have been reviewed and it is

believed that the Memorandum of Association of the RSL provides the best model for the form of constitution that we require. It will, of course, require legal vetting and some amendments will probably have to be made after this is

done. Arrangements are being made to have the first draft of the M of A vetted by a solicitor in Canberra.

Page 1, Clause 4 . Some of these are formal

statements for legal purposes, while others expound on the Aims of the WAA.

Page 9, Article 4c, d and e . The organizational concept that I define here and elsewhere is of a National Congress which will set policy and determine overall activities for the year, a National Council to manage affairs during the

year and a National Executive (President, Secretary, Treasurer and Solicitor) to run the day to day affairs of the Association in Canberra.

Page li. Article 5. There are a number of

possibly very contentious suggestions here. I look forward to your comments.

Page 13. Article 6. Note that determination of membership (within the guidelines of Article 5) and the withdrawal of it, is seen as a State

Branch responsibility entirely.

Page 15, Articles 7 and 8. As for comments on

Article 5, above.

X I I - 4 6

Page 16. Article 10. Confirmation of correct State Branch titles are required. Note the

implied autonomy of State Branches in relation to Regional Branches within their states.

Page 22, Article 12. I've aimed at a simple. flexible but still formalised procedure for National Congress. This is reflected in the provisions for adjournment„ proxy voting, voting

only on show of hands (no balloting), the

chairing of meetings and the admittance of

non-members of Congress to enjoin discussions there.

Page 25, Article 14. Note that there is no

provision for a Deputy National President. as it is believed that there is no need for one.

Page 26, Articles 15 and 16. The National

Council will probably become the real power of the Association, though it will still be

answerable to Congress. The comments made on Article 12 apply here also. Note especially Articles 16 e and 16 f (pages 28 and 29).

Page 30, Article 17. Note the various provisions that allow for a paid secretary (if one is needed in years to come) and for the President to

quickly replace a 1 lost1 Executive member.

Page 34, Article 22. I see no need for Trustees at present, but provisions for getting some later are included here.

Page 35, Article 23. By-Laws are not drafted yet. They will concern such matters as:

Membership application forms, subscriptions, powers of Branches, meeting procedure and nominations for President.

If possible, I will send drafts of ideas for other matters that need resolution at the

Conference, (e.g. By-Laws, financial arrangements and standing orders) to you before May.

Yours sincerely.

X I 1-47

(f) Letter from Acting National Secretary of WAA, Mr Peter Sadler dated 1 April 1981 addressed to National President W A A and all State/Territory Branch

Presidents

During the past month you have received a number of letters from me, some signed by Holt McMinn and others signed by me in the capacity of Acting National Secretary of the WAA. At present I'm

not sure what position I hold in the

organization, or if any one recognises that I hold one anyway. It might be opportune,

therefore, to write a personal letter to you all and state how I see my position.

In late February I was approached to be the

Interim or Acting National Secretary because the previous National Secretary, resident in Sydney, had resigned and there was a need to establish a national-level organization of the W A A in

Canberra. It was my understanding that I was acceptable in this role to the National President and the NSW and Victorian Branch Presidents and I gathered that the opinions of one or other of

these branch presidents are acceptable to the other State Branches. (Some of what I have said here may not be quite true, but that is what I

understood to be the case). I believed my

charter to be to get the W A A established as a

national organization in Canberra and that I would be required to organise a National

Conference.

Although I'm known personally to only two

addressees, the rest of you should by now have an idea of my administrative capabilities. If you have been suitably impressed, and are happy with the way the National Conference in May turns out, then I'm prepared to act as an elected National Secretary, but certain matters need to be made clear before that stage is reached.

It became clear to me fairly quickly that the W A A as a national organization is in a fair sort of mess - however effective the State Branches may be. There has obviously been a lot of

backstabbing, lack of cooperation and ill

feeling. I suspect that I have been misled about a number of aspects of the WAA's past

activities. I don't know all the background to

XI1-48

the whole business and quite frankly I'm not interested. What I am interested in is getting an efficient and effective National organization of the W A A operating in Canberra. This I

believe, is absolutely essential if the W A A is to achieve its full potential in serving our less fortunate comrades-in-arms.

You have all seen the results of my efforts so far and know of the arrangements I'm making for the National Conference. You may then imagine the shock I received in finding that the former National Secretary, who I had good reason to

believe had resigned, was calling a National Conference of the W A A without the knowledge and concurrence of the person I believed to be the National President, (whatever the 'legalities' of

that move may have been and however mistaken I may have been about the 'facts' of the

situation) . I can assure you, gentlemen, that that move however it came about, set the W A A

back to a marked degree in the eyes of those

members of the National Parliament with whom we have established working relationships and the RSL. We cannot afford to be a split organization and I'm not interested in serving a part of one.

Let me briefly discuss three matters that affect the National Conference next month.

Apparently it came out of the Sydney meeting that two representatives from each branch should attend the National Conference. In the W A A

letter of 9 March 1981 I suggested that only one delegate from each branch should attend, because of travel expenses. However the National

Conference might be seen as the 'form of National congress' described in the draft Articles of Association for the W A A (posted to you on 1st April 1981), Articles 11 and 12, so I'm prepared

to agree to having two delegates from each branch.

As I understand it, it was also suggested in

Sydney that all National executive positions be declared vacant on Friday 1st May 1981. This sounds like a good idea and I endorse it.

It was suggested last month that an independent, disinterested person should be invited to chair the National Conference. This is believed to be

XI1-49

a sensible approach and I will endeavour to find a suitable person willing to do the job.

There is no reason, despite all that has gone on in the past, why the National Conference in May should not go ahead and achieve its aims. I'm prepared to continue organizing it and do the hack preparatory work on the constitution, meeting procedures, etc. But. gentlemen, on my

terms. This is what I propose:

1. That the convening, organization and

preparation for the National Conference be left solely in my hands.

2. That the aims and agenda items as proposed in paragraphs 2.5. and 6 of the W A A letter of 9

March 1981 stand as the basis of the meeting's business.

3. That a disinterested person act as Chairman of all meetings of the National Conference, or at least until major items of business are resolved.

4. That two representatives from each

State/Territory Branch attend the National Conference and if only one attend that he or she have a proxy vote for the other.

5. That the conduct of the meeting, as far as is reasonable and applicable, be in accordance with Articles 11 and 12 of the draft Articles of

Association. and that meeting procedure be in accordance with draft procedures that I will prepare and send out later this month,

(notwithstanding that the meeting may alter the content of these drafts). (It is my intent to draft meeting procedures based, as far as is practicable, on the book "Handbook for Chairmen and Secretaries" Bentlv C.F.. Reed. 1970.)

Unless I receive written agreement to the general principles of these terms from the National President, the Presidents of the NSW and Victoria Branches and at least four of the remaining six State Branches. I will withdraw my services to

the W A A and dismantle the arrangements I have in hand for the National Conference on 2nd and 3rd May 1981. I request your replies by 17 April

1981, please.

Yours sincerely.

X I 1-50

(g) Letter dated 8 April 1981 to Mr A. Hill, Barrister, of New South Wales, from Peter Sadler

I believe that you indicated to Holt McMinn

recently that you would be prepared to chair the National Conference of the W A A in Canberra next month. We would be very pleased if you could do this because there will be a requirement for a

skilled, independent negotiator to handle the conference - for reasons that I know you are

familiar with.

You are, therefore, formally invited to attend the National Conference of the WAA, to be held at the Woden Valley RSL Club, Phillip, on

Saturday 2nd and Sunday 3rd May 1981, and act as Chairman of the meeting sessions. I would

appreciate an early indication of your

willingness to act in this capacity, please, so that I can make alternative arrangements if you cannot accept.

Enclosed for your information are copies of a number of letters and papers. The most important of these as far as the conduct of the conference is concerned are:

a. The first draft of the Aims and Memorandum of Association of the WAA. b . The first draft of the By-Laws and an

addendum to the Memorandum of Association of the WAA. c. The Agenda. d. My letter of 1st April 1981 to Branch

Presidents which. in part, sets out my

conditions for the running of the conference.

The other papers will help give you a feel for the way things are shaping up with the W A A at the National level.

Please call me if you need further information. My contact numbers are 062-478458 (home) and 062-662073 (work). I look forward to meeting you next month.

Yours sincerely.

X I 1-51

(h) Letter dated 8 April 1981 to Mr Frank Alcorta. Darwin NT from Peter Sadler

Thank you for your letter of 25 March 1981. I

haven't been with the W A A for very long and am not competent to comment on the legal and

scientific aspects of the Association's

activities. My primary job at present. (as my letter of 1st April 1981 to all Branch Presidents tried to explain). is to get the W A A organized and set up as a going concern at the national

level. The first stage of this exercise was to develop aims for the Association, the goals that we need before we can plan where exactly we are going.

Your suggestion that we ' are attempting to

broaden the terms of our charter to including symptoms and problems not directly attributable to chemical usage in Vietnam', is correct. I'm not sure what the original charter of the W A A was. (if it had one), but I believe that at the National level our charter should be to concern ourselves with problems of the Vietnam Veteran from whatever source, whether they be chemical sprays, the tropical climate, battle stress, social stress, or whatever. In fact, probably none of the potential causes of veterans'

problems should be considered in isolation.

I can understand your concern about diluting our effort, but this should not be a problem if we recognise the limits of our capabilities, determine our priorities and operate within those guidelines. Work in this direction is overdue. but we are now tackling it in Canberra.

There is no doubt within the W A A in Canberra

that we must remain an autonomous organization - let me reassure you of that. It is firmly

believed that we must co-operate with and seek the assistance of the RSL and other

organizations, but as an independent body

concerned solely with the problems of the Vietnam veteran.

Some of the matters you mentioned in your letter and to which I have alluded here, need to be

discussed at the National Conference next month. I sincerely hope that you and Alastair Henderson can make it to Canberra then, so that we can hear

X I 1-52

your points of view on them. Also, of course, we look forward very much to having a chance to meet you both.

Please don't hesitate to contact me on anything that concerns you about the W A A and its

operations at the national level.

Yours sincerely.

(i) Letter forwarded to Mr F. Alcorta, President, Vietnam Veterans Association of Australia. Northern Territory Branch by P.C. Thompson as National President W A A dated 12 April 1983

Thank you for your letter of 6 April 1983.

As you know our Association for several years now has had as its unambiguous goal the establishment of a Royal Commission into the effect on veterans of their exposure to toxic chemicals whilst in Vietnam. Successive National Congresses have

left no doubt that the National Office should pursue that goal boots and all.

The National Office in conjunction with your Branch and the Branches and Regional Groups of other States have done that. We have, as you know, spent many, many hours briefing the media,

until now we get good and sympathetic coverage. We have worked hard at lobbying politicians, so that both Labour and Democrat members of both houses carried our fight into the Parliament. We

have collected thousands of signatures on petitions which have been presented to

Parliament, displaying to its members the wider community support for us. Recently, we ran public meetings in marginal Federal electorates to show politicians that we can influence their futures. Most recently, we have conducted an

intensive publicity campaign, including a concert at the Sydney Town Hall in conjunction with the release of an Australian song about the Vietnam war.

During these campaigns the National Office has sought to keep all States informed of its

activities and to seek from them opinions and advice.

X I 1-53

This long and hard campaign has finally succeeded in achieving at least the first part of or goal; a government commitment to establish a Royal Commission. The second part to be achieved is a

terms of reference wide enough to cover our

concerns and flexible enough to allow the

Commissioner to pursue any direction of enquiry he accepts as relevant. There remains too. the appointment of a Royal Commissioner of high quality and undoubted integrity who we can trust

to pursue the truth with intelligence and

tenacity.

In our negotiations so far with the government, we have seen no reason to doubt its good-will and desire to approve wide ranging flexible terms of reference and to appoint an appropriate Royal Commissioner. Even if this good-will should evaporate behind the closed doors of cabinet. I feel that, as long as the Association remains united, the potential we have developed for effective political fighting would discourage the government from attempting to stage a whitewash.

Certainly, we have made our demands on these matters clear in the consultations we have had so far and certainly, the government is in no doubt that we would withhold agreement until we examine

its final announcement is made, we shall, as always, seek advice and opinion from all States.

Given acceptable terms of reference and a

suitable Royal Commissioner, the National Office does not share your pessimism on the quality of evidence available to support our case. Whilst we have been campaigning for the Royal

Commission, we have also been watching the

continuing growth of the body of evidence in our favour. Some of it is evidence not previously presented. It is of course impossible to predict the outcome of any tribunal hearing, but we

believe and in support of our case, is worthy of forum of a Royal Commission. As you suspect

otherwise, I invite you to Sydney a couple of days before the National Congress (or sooner) so I can have you fully briefed on that situation.

As we are all aware, past governments have

continually resisted our demands to be fully

XI1-54

informed about our potential for exposure to toxic chemicals whilst we were fighting in Vietnam. Our best chance of finding out about that is through the enquiries of a satisfactorily-

constituted Royal Commission. We believe too. that the Department of Veterans' Affairs has so far played an adversary role in the chemically caused disabilities debate„ a role contrary to

its statutory obligation to give veteran

claimants the benefit of the doubt where

substantial conflicting evidence exists. It is important that we get our own Repatriation System, a system with vast resources and a two billion dollar yearly budget. to fulfill its obligation and work for us, rather than continue with its present improper behaviour. In short,

it is, we believe, of primary importance to force our own war disability compensation system to properly and fairly compensate us. A properly constituted Royal Commission, we believe, is the only tribunal capable of wrenching the truth from the jaws of this reluctant bureaucracy, exposing any negligence, or worse, of which it may be

guilty and forcing it to act fairly.

Because, then, the resolutions and debate at National Congresses have left us in no doubt of the Association's strong demand for a Royal Commission to thoroughly examine all aspects of

the issue, because we believe we have good

quality evidence to present to such an enquiry, and because an Australian Royal Commission is the only tribunal which could effectively uncover the truth on many of the matters about which we feel

strongly; the National Office has given and continues to give the establishment and operation of an acceptably constituted Royal Commission, unlimited priority.

We are, of course, also most concerned with the progress and outcome of the U.S. Class Action. Indeed, you may have a copy of a long letter we recently sent to the U.S. lawyer running the Class Action, in which we asked a long list of questions compiled from queries we have received

from members. When the reply to our letter is received, . both a copy of our letter and the reply to it, will be published in DEBRIEF to inform veterans and perhaps give more of them the confidence to join it.

X I 1-55

We are. like you, aware of all the injustices. brush-offs and insincere words meted out to Vietnam veterans in the last ten or so years and if there is any difference between us, it appears

to be in the relative importance we attach to the Royal Commission and the Class Action. Your letter suggests that your emphasis on the Class Action may spring from a feeling that the

composition and terms of reference of the Royal Commission may be unsatisfactory, and from doubt about the quality of the evidence to be presented on our behalf. However, present indications are that the government is sympathetic to our demands on the Royal Commission composition and terms of reference and. in any case, knows that we will simply not accept a potential whitewash. Also, we are confident, while not being able to

guarantee the outcome of this or any other

tribunal hearing, that the evidence which will be presented on our behalf will surprise many

observers by its high quality. I invite you again to briefings on this evidence.

Be assured that we are working with diligence, with careful thought and with trusted expert advice, to promote the interest of Vietnam

veterans in a Royal Commission in the best

possible way.

I hope you will not mind my having sent a copy of this letter to State Presidents.

Thank you again for your letter.

Kind regards.

Phill Thompson. National President

4■3 Re Epidemiological Studies September 1981

(a) Letter forwarded by P.C. Thompson as National President W A A to all Members of Federal

Parliament dated 8 September 1981 I

I am writing to you on behalf of the Vietnam

Veterans' Association of Australia which

represents some 5,000 Australians who served this country in South Vietnam.

X I I -56

Regardless of the political party you belong to, your support is needed by these veterans and their families to force the Government to

implement an independent judicial inquiry into the use of herbicide sprays in Vietnam.

Australia's involvement in the Vietnam War is not the key issue here; the war is over and is

history but the problems facing the veteran and his family are not. It is quite apparent now

that the psychological and physical difficulties facing these young Australians are in fact

increasing beyond belief. I say young because the average age of the 15,000 national servicemen who served in the Vietnam war is 34 years. They should in fact be in the prime of life but they

are not.

The Government's current epidemiological study which is being conducted by the Commonwealth Institute of Health, is purely a cosmetic

exercise. The Scientific Advisor and former Principal Investigator to the study has been appointed to the Queensland Institute of Medical Research. It is unknown how many key personnel

of the study will follow in the next few months. Why have other professionals from this group been isolated, suppressed and sworn to secrecy about aspects of this study which have no grounds to be

classified as confidential?

This study will cost the taxpayer in excess of $20 million in the long term. In the years to

come, if and when it reaches completion, it will only prove that statistically, veterans who served in South Vietnam have a higher incidence of certain illnesses in themselves and in their offspring. The cause of these illnesses will not have been established and the problem will not have been solved. Therefore some positive action has to be taken right now to ease the minds of

those affected. This can only be achieved by an independent inquiry which can evaluate the medical and scientific research which is

available now.

If you are a member of the Government and you believe the Minister's view that there is no creditable evidence to support the claims of the

X I 1-57

Vietnam Veterans, there is no reason why you should not support a judicial inquiry into the matter. Such an inquiry would be far less costly and less time consuming than the present

epidemiological study.

I am appealing to you not only as a politician but also as a human being; to let your conscience be your guide when this matter is brought before you in either the Senate or the House of

Representatives, and to stand up and be counted in your support for any of the motions which call for a judicial inquiry, regardless of the

political party which puts them forward.

The Vietnam Veterans' Association already has the support of two Ministers and a number of

Government backbenchers in its call for the appointment of a judicial inquiry. In addition. 26 other ex-service organizations support this

move.

I appeal for your support and would welcome any comments you might care to make regarding the appointment of a judicial inquiry into the

effects of herbicides on the health of Vietnam Veterans and their families.

(b) Letter by Senator A.J. Messner, the then Minister for Veterans' Affairs. dated 18 September 1981 to all Members of Parliament

You will have received from Mr P.C. Thompson, the National President of the Vietnam Veterans Association of Australia, a letter dated 8

September 1981 seeking your support for a

judicial inquiry into the effects of herbicides on the health of Vietnam veterans and their

families. As Mr Thompson has written to all

Members and all Senators I have elected to do likewise.

For some eighteen months the Government has been responding to periodic calls for a judicial inquiry into this question. Beginning with that contained in the Statement in the House on 31 March 1980 by my predecessor, the Hon. A .E .

Adermann, M.P., the response has been that such an inquiry will not answer the questions which need to be answered.

X I 1-58

It is all very well to refer to information in certain scientific literature which suggests that certain chemicals used in Vietnam are inherently toxic to varying degrees. The proponents of the argument that there is a causal link between the chemicals used in Vietnam and a range of

disabilities among veterans have selectively referred to supportive literature but ignored a large body of literature which does not suit their argument. To refer to just one example, in 1977 the International Agency for Research on

Cancer (IARC), reviewed the scientific literature as part of its evaluation of the carcinogenic risk of certain chemicals to man. It was unable to evaluate the risk from 2.4.5-T. 2,4-D and dioxin (TCDD), essentially because adequate, epidemiological studies were not available.

I do not doubt that a judicial inquiry would

weigh impartially the evidence at hand. It is naive I suggest, to expect that it would come to a firm conclusion on a scientific issue in which the world's most reputable scientists say that

inadequate evidence is available. Such an

inquiry has no prospect of "easing the minds" of veterans as Mr Thompson suggests.

The fundamental questions are about Vietnam and not about industrial accidents or long-term exposure to chemicals in the manufacture

process. No one has suggested that the chemicals are not toxic; if you drink most of them in

sufficient concentration they will kill you. The same is true of most of the pesticides - and many other chemicals - used in homes throughout

Australia.

The real issue is to determine which veterans were exposed to potentially dangerous chemicals in Vietnam and whether or not the extent of

exposure was sufficient to have placed a veteran at risk. There are major differences in risk between drinking a chemical, working every day for years in a factory which makes the chemical,

and walking through an area which might have been chemically defoliated days or months before. I might add on this point that in the eighteen or so months that the issue has been debated in

Australia less than one fortieth of the veterans who served in Vietnam have come forward to claim for disabilities which they believe might be associated with possible exposure to chemicals in

Vietnam.

X I 1-59

The Government has been responsible and objective in its approach to this matter and in attempting to get the answers it has followed the advice of experts. The problem is that no scientific

evidence is available concerning service in Vietnam. Logic suggests that such evidence should be sought. It is worth noting that the very literature which a judicial inquiry would be

required to evaluate places a high evidentiary value on properly conducted epidemiological studies, and urges that specific new ones be conducted.

Those who urge abandonment of the scientific approach in favour of a judicial inquiry have not appreciated that such an inquiry would almost certainly be forced to the conclusion that

epidemiological evidence was needed.

There are a number of points in Mr Thompson's letter that I feel should not be allowed to pass without comment.

It is true that the Scientific Adviser to the study team in Sydney has been offered a new

position in Queensland. The post is a senior and challenging one, and is further evidence of the high repute in which the Commonwealth Institute of Health team is held. Movement of qualified people in the scientific community is a normal process. I am advised by the Institute that

arrangements are in hand for the changeover in personnel to proceed with the minimum of

disruption to current work. There will be an obvious need from time to time to replace those who exercise their right to move to other areas.

The letters suggests that the study group has been sworn to secrecy about aspects of the

study. In actual fact, the Institute has given progress reports to the W A A on several occasions.

As to information which might be made available to the group to help the study, veterans as

individuals or groups are free to offer the

investigation any material or advice they like. As to information to be made available from the group, reports are given from time to time in response to enquiries, and via statements and

news releases which I issue. You will recall

X I 1-60

that a progress report was tabled in both Houses a few days ago. However, apart from the

time-constraint difficulties in trying to keep up a continuous flow of information to outside enquirers, the Director of the Institute has

quite properly been concerned for the

preservation of the best possible conditions for the conduct of a scientifically valid

investigation. This objective will not be reached if facts or analyses are taken out of context. Scientific work of this nature should be judged on its merits when it has been taken to finality, and should not be required to be

released in an incomplete state for public debate.

Mr Thompson suggests that a judicial inquiry would be far less costly and time consuming than present studies. You will be aware that a pilot study is being conducted to test matters relating

to the format of a major survey. The results of the pilot study are not yet available. Until they are neither I, Mr Thompson nor anyone else is in a position to discuss likely duration or cost. I do not have to remind you that judicial

inquiries are not necessarily completed quickly. Indeed in my own area, the inquiry into the

Repatriation System some years ago took over four years to complete.

Mr Thompson says that the study will only prove that statistically veterans who served in South Vietnam have a higher incidence of certain

illnesses in themselvesa and in their offspring. I have been accused of having pre-judged the issue; apparently Mr Thompson has taken the view that pre-judgement is acceptable if you argue one particular side of the debate, but not the other.

The Government does not ignore the possibility that, in the event, the exposure data which can be obtained will be judged to be scientifically insufficient to allow valid conclusions on the effects of chemicals on Vietnam veterans. In that case, the valid comparison would be between

the health status of Vietnam veterans and that of veterans who did not serve in Vietnam. I do not see that this would be a failure in terms of the Government's obligations to veterans. If the

study showed that there were no appreciable health differences between the two groups, the

X I 1-61

chemical issue would lose its relevance and a lot of families could stop worrying. If, on the

other hand, there were appreciable differences, then that fact would have been established

scientifically. I agree it would not provide the specific cause of the health disabilities, but would be vital information in a number of

respects. It would provide a basis for further scientific investigation and it would be very important in the context of the Repatriation legislation which is concerned with the

compensation of service-related disabilities.

The Government has never sought to avoid its responsibilities in this area and it will not do so in the future. Its main concern has been to follow the very path that it has been accused of not following; to resolve the question as soon as possible. It has recognised from the outset that the anxiety, needlessly created by exaggerated claims, can be removed from veterans only if the final answer is as scientifically accurate as is humanly possible. In the circumstances, the

Government believes that there is no realistic or reasonable alternative to the scientific

resolution of what is essentially a scientific problem.

Yours sincerely,

(c) Press Release by Vietnam Veterans Association of Australia dated 25 October 1981

"Revelations in the 'National Times' today, that the Australian Veterans Herbicides Study is in deep trouble, are extremely serious.

It has been alleged to my Association that the Commonwealth Institute of Health (CIH) study is a complete shambles.

Not only has the Director resigned, along with two other senior scientists, but because CIH contracts are due for renewal in December, 1982, it is highly unlikely that any reputable

scientist will associate him or herself with an insecure position on a study of doubtful

scientific validity.

X I 1-62

My Association now calls for a public

investigation of why the CIH study has collapsed.

The Government and the Minister for Veterans Affairs have placed total reliance on this study as the only answer to our claims.

In the Senate, on 15 October 1981 Senator Messner said:

"In fact, the route the Government is

following, that is, a solid scientific inquiry, we believe will finally produce the goods in this matter."

His solid scientific inquiry is in tatters.

Although Vietnam veterans have co-operated with the study (as acknowledged by Prof. Davidson in his letter to me on 24 August 1981), we have

consistently maintained the need for an

independent judicial inquiry.

We were supported in this by the Senate on 15

October 1981.

The Government can no longer hide behind the epidemiological study and must now announce the terms of reference for the judicial inquiry as a matter of urgency.

Apparently the Government is considering four other options for the CIH to carry out.

All of these options will take further time, be very costly, will suffer from the lack of

scientific respectability of the CIH, and will not necessarily be conclusive in any way.

The Government has ignored our claims for well over two years.

Do we have to wait thirty years for justice, as the Second World War mustard gas guinea pigs have done?

Phil Thompson National President

X I I -63

Press Release dated 26 October 1981

Scientific Studies continue despite Staff Changes

Work on the Vietnam Veterans' studies being carried out by the Commonwealth Institute of Health would continue despite some staffing changes, the Ministers for Health and Veterans' Affairs said today.

They were commenting on media reports that the Director of the Institute at Sydney University, Professor Lindsay Davidson, and two other senior staff working on the studies were leaving.

"It is mischievous nonsense to suggest that because certain personnel are going the studies are falling apart" Mr MacKellar said.

Professor Davidson had decided to return to Scotland, largely for family reasons. while the two other scientists mentioned in press reports intended to be available part time for

consultation. "Arrangements are in hand for provision of additional staff," Mr MacKellar said.

Senator Messner noted that Mr Thompson of the Vietnam Veterans' Association had repeated yet again his call for a judicial inquiry. The

Government had already pointed out that such an inquiry would not provide a scientifically valid answer on possible effects of Vietnam service on veterans and their families.

Mr Thompson seemed to have been unaware, or to have chosen to ignore the fact, that the Senate had decided to conduct an inquiry into herbicides and their possible effects on Vietnam veterans.

In so far as a non-scientif ic body can assess this matter, the Senate Committee has extremely wide powers of investigation and should be

capable of doing so. "The government was still of the view that it should also seek to pursue the line of scientific investigation to the extent that this was possible," Senator Messner said.

X11 - 6 4

5. CONCLUSION

It will be seen that there are still grave doubts as to

the legal status of W A A and its capacity to "represent"

its so-called membership of 9,000 people. The Commission

decided in all the circumstances not to withdraw the leave

granted on 14 July 1983 to W A A to appear before it as it

was considered that to do so would only have led to cries

of "foul" by certain veterans!

The Commission reiterates it should be widely known that

the Commission instructed Counsel Assisting it to ensure

that no stone was left unturned. The solicitors and staff

of the Commission were similarly instructed. The

Commission itself, in effect, acted for all veterans and

their wives and children in an earnest search for any

possible connection between chemical agents and adverse

health consequences. It searched also for such

consequences and their connection with Vietnam service.

Any inadequacies in research, inquiry and presentation by

W A A 1 s legal representatives were thoroughly redressed by

the Commission's legal team.

Further, it is the fervent hope of this Commission that

the present discord between various Australian veteran

X I 1-65

organisations in regard to the settlement and distribution

of moneys following the U.S. Class Action, reference to

which is made in Chapter XI of this Report, will soon

abate so that Australian Vietnam veterans, their wives and

their children may obtain whatever benefits there may be

from that settlement at the earliest possible time.

X I 1-66

ENDNOTES

1. Transcript at p 8.

2. See Ch I.

3. Transcript at p 2095.

4. Transcript at p 2102.

5. Transcript at p 2103.

6. Transcript at p 2210.

7. Transcript at p 2210.

8. Exhibits 1040 and 1878.

9. Personal Communication from Phillip Thompson to Senior Counsel Assisting, March 1985.

10. VVAA National Journal "Debrief" February/March 1985, p 9.

11. Exhibit 1160.

X I 1-67

INTERIM REPORT ΆΝΡ S.47

"We then that are strong ought to

bear the infirmities of the weak"

Romans 15:1

CHAPTER XIII

INTERIM REPORT AND S.47

On 30 May 1985 this Commission delivered to the

Governor-General an Interim Report and Recommendations in

the following terms:

Pursuant to Letters Patent dated 13 May 1983, (as extended). I, Justice Phillip Evatt, Royal Commissioner. hereby recommend:

(1) That s.47 of the Repatriation Act 1920

remain unamended pending my final report and recommendations.

(2) That S.107VG of the Repatriation Act 1920 remain unamended pending my final report and recommendations.

DATED this 30 day of May 1985.

It will be recalled that the Letters Patent dated 13 May

1983 charged this Commission, in part, as follows:

And we require you to make such recommendations arising out of your inquiry as you think

appropriate, including recommendations regarding the legislative or administrative changes, if any, that are necessary or desirable.

Prior to Thursday 30 May 1985 the Commission had received

no submission that the relevant legislation ought to be

XIII-1

changed and it had formed a preliminary view that no

recommendation for change would emanate from this

Inquiry. This preliminary view was to some extent

reinforced by Repatriation Commission v O'Brien (1985) 59

ALJR 363.

The context of this Commission included not only the Toose

Report but also an elaborate consultative process leading

towards a total revision of the Repatriation legislation.

The process included The Report of the Advisory Committee

on Repatriation Legislation and some continuing

consultation with DVA clientele. Clearly this Commission

was not intended to duplicate that process which was

working steadily towards the production of the Veterans'

Entitlement Bill 1985, which was tabled on 31 May 1985, to

permit consideration of its provisions and comment

thereon, inter alia, by veteran organisations.

No draft of this Bill had been sighted by this Commission.

on 14 May 1985 the Treasurer announced, as part of a

mini-budget, amendments to s.47 and s .107VG of the

Repatriation Act 1920.

These proposed amendments as the explanatory notes clearly

displayed1" at pages 8 and 9, bore upon the onus of proof.

XII1-2

Section 47 immediately before amendment read:

47.(1) The Commission in hearing, considering, determining or deciding a claim or application -(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) shall act according to substantial justice and the merits and all the circumstances of the case, and, without limiting the

generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or

circumstance, including any reason

attributable to -(i) the effects of the passage of time,

including the effect of the passage of time on the availability of witnesses; or

(ii) an absence of, or a deficiency in,

relevant official records, including an absence or deficiency resulting from the fact that an occurrence that

happened during the service of a member of the Forces was not reported to the appropriate authorities.

(2) The Commission shall grant a claim or

application unless it is satisfied. beyond reasonable doubt. that there are insufficient grounds for granting the claim or application, as the case may be. (emphasis added).

Sub-section 107VG (3) before amendment read:

(3) On the completion of its consideration of a review of a decision -(a) if the decision was a decision to refuse to grant a claim for a pension - the Board

shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application; or

XI11-3

(b) in any other case - the Board shall set

aside the decision unless it is satisfied, beyond reasonable doubt, that the decision is the decision that the Board would have made if it had had the responsibility for

making the decision the subject of the

review.

The veteran community generally and W A A in particular,

were deeply concerned at the proposed amendments and urged

this Commission to hold a special sitting. The Commission

agreed and sat on Thursday, 30 May.

W A A appeared and leave was also granted to AVADSC, a peak

organisation of 15 other veteran associations. The RSL

and the Departments of Prime Minister and Cabinet.

Attorney-General's, Treasury. Special Minister of State,

Finance, and Veterans' Affairs were offered opportunity to

appear.

As a result of submissions made, the Commission prepared

urgently and delivered in Canberra,an Interim Report and

Recommendations on that very day.

On 31 May 1985. notwithstanding that Interim Report the

Parliament passed the Repatriation Amendment Act 1985.

which took effect on 6 June 1985.

By s.16 that statute amended s.47 of the Principal Act by

substituting the following section:

XI11-4

16. Section 47 of the Principal Act is amended by omitting sub-section (2) and substituting the following sub-sections:

(2) Where the Commission is considering and determining a claim for a pension with respect to the death or incapacity of a member of the

Forces, the Commission shall not grant the claim if it is reasonably satisfied -(a) that the investigation of the claim did not disclose material, and there is no other

material before the Commission, that raises a reasonable hypothesis that there exists a connection required by this Act to exist between the death or incapacity of the member and the member's war service; or

(b) that any such reasonable hypothesis raised by material before the Commission has been dispelled.

(3) Subject to sub-section (2) -(a) in respect of a claim for a pension

made under Section 24 -(i) by a member of the Forces whose

war service included qualifying war service; or

(ii) by a dependant of a deceased

member of the Forces who died

before 12 November 1958 and whose war service included qualifying war service,

the Commission shall grant the claim unless it is satisfied, beyond

reasonable doubt, that there are

insufficient grounds for granting the claim; and

(b) in respect of any other claim for a

pension - the Commission shall not grant the claim unless it is reasonably satisfied that there are sufficient grounds for granting the claim.

X I 1 1-5

(4) Subject to sub-sections (2) and (3), in determining, or making a decision in relation to, any matter under this Act or the regulations, including the assessment or re-assessment of the rate of a pension, the Commission shall decide the matter to its reasonable satisfaction.

(5) For the purposes of sub-section (3) -(a) the qualifying war service of a member of the Forces consists of the war

service (if any) of the member outside Australia; and

(b) a reference to the grant of a claim

shall be read as not including a

reference to the assessment of the rate at which pension is to be paid.

(emphasis added).

By s.32 it amended s .107VG(3) and added s .107VG(7) as

follows:

(3) On the completion of its consideration of a review of a decision -(a) if the decision is a decision to refuse to grant a claim for a pension, being a

claim to which paragraph 47(3)(a) applies - the Board shall set aside the decision unless it is satisfied, beyond

reasonable doubt, that there were insufficient grounds for granting the claim; or

(b) in any other case - the Board shall not set aside the decision unless it is reasonably satisfied that the decision is not the decision that the Board

would have made if it had had the

responsibility for making the decision the subject of the review; and

(7) Where the Board is reviewing a decision granting or refusing to grant a claim for a

pension with respect to the death or incapacity of a member of the Forces, or is considering and

X I 1 1 -6

determining the decision to be made by it in

substitution for a decision that it has set

aside, the Board shall not grant the claim if it is reasonably satisfied -(a) that the investigation of the claim did not disclose material, and there is no

other material before the Board, that raises a reasonably hypothesis that there exists a connection required by this Act to exist between the death or

incapacity of the member and the

member's war service; or

(b) that any such reasonably hypothesis raised by material before the Board has been dispelled, (emphasis added).

The Senate added a so-called "Sunset Clause" as follows

Cessation of Operation of Certain Provisions 72.(1) Section 16, sub-sections 17(2), 19(2), 21(2), 23(2) and 24(2), sections 25 and 32, Part IV, sub-sections 54(2) and 61(2) and sections 69. 70 and 71 shall cease to be in force at the

expiration of 6 months after the commencement of this Act.

(2) When provisions of this Act cease to be in force by virtue of sub-section (1). the relevant Acts shall have effect as if those Acts had not been amended by those

provisions.

(3) After the expiration of 6 months after the commencement of this Act. the relevant Acts apply, in accordance with sub-sections (1) and (2), to and in relation to -

(a) decisions of the Commission in respect of claims for pension where

consideration of the claims by the Commission commenced after the

expiration of that period;

(b) decisions of the Veterans' Review Board in respect of reviews of decisions of the Commission referred to in paragraph (a); and

XI11-7

(c) decisions of the Administrative Appeals Tribunal in respect of reviews of

decisions of the Commission referred to in paragraph (a) or reviews of

decisions of the Veterans' Review Board in substitution for decisions of the Commission so referred to.

(4) In this section, 'relevant Acts' means the Acts referred to in section 65.

It is appropriate to trace the history of repatriation

claim-making and onus and standards of proof relating

thereto.

Australians have long accepted the responsibility of

caring for service personnel and their dependants in

circumstances where death or incapacity may be related to

war service or to service in war-like operations.

Governments in Australia have met this responsibility by

passing and implementing legislation aimed at providing

suitable repatriation benefits.

The initial statute was the War Pensions Act of 1914 and

after it in 1917 the Australian Soldiers' Repatriation Act

was passed.

The 1920 Act implied a civil standard of proof and left at

least an administrative onus on the claimant. In 1929 the

"Little Digger", William Morris Hughes, reversed the onus

XI11-8

of proof at Tribunal level once a finding that a prima

facie case was made out and he also introduced the notion

that the benefit of any doubt should be given to a veteran

or other appellant.

These two notions were continued in amendments which were

passed in 1934.

Difficulties however continued because of the requirement

that the veteran establish a prima facie case. These

difficulties were to a substantial degree resolved by an

amendment passed in 1940. This amendment to the then

s.45W introduced an important new notion. It said.

(4) For the purposes of sub-section 2 of this section an appellant shall be deemed to have made out a prima facie case when he avers that the

incapacity or death of the member of the Forces resulted from an occurrence happening during the period he was a member of the Forces or from his employment in connection with naval or military preparations or operations or as directly

attributable to his employment as a member of the Forces, (emphasis added).

Further difficulties and perhaps even bureaucratic

obfuscation led to amendments being proposed in 1943. A

war was current and the Government of the day wished to

recruit young Australians to fight and die in that War.

X I 1 1-9

Clause 39B of the amending Bill became s.47 by the

operation of the schedule to the 1943 amending Act.

Without setting out the amendment in full, suffice it to

say that four important notions were contained in ss.47

and 48 as adopted in 1943. The four notions are:

. the benefit of any doubt on any matter required

to be proved was to be given to the claimant;

. the claimant need not furnish proof;

. all reasonable inferences were to be drawn in

favour of the claimant;

. medical practitioners were required to express

any doubts they might entertain concerning any

matter they were required to report on and to

indicate the nature and extent of such doubts.

The amendments had a rocky passage through the House of

Representatives and the Senate because the section did not

include the establishment of a prima facie case or a

shifting of the onus by reason of mere averment.

XIII-10

However, an examination of the Hansard of the second

reading debate establishes that it was the intention of

the Parliament to place the onus of proof on the

Commission; to give the benefit of all doubt, reasonable

or unreasonable, to the veteran and to require him merely

to aver a connection between his war service and his

disability.

The then Labor Minister for Repatriation, Mr Frost said

Amendments affecting this subject were made to the Act in 1934 and then again in 1940. These

amendments removed the onus from the appellant to make out a prima facie case in support of a

claim, and the appellant is now deemed to have made out a prima facie case when he avers that the incapacity or death resulted from war

service. In addition, section 39B (i.e. s.47) provides that the Commission shall, in the

determination of appeals, act according to substantial justice and to the merits of each case and give the appellant the benefit of the doubt. The government intends going further than

this in the present bill, as has already been referred to in this speech, (emphasis added).2

On 11 March 1943. during a continuance of the second

reading debate, Mr Francis, the member for Mcreton said:

Another point in debate was the onus of proof. Under the law as it previously stood the onus of proof rested upon the applicant, but now, in all applications for pensions, the onus rests on the

Repatriation Commission to prove that the disability is not due to war service. That was the recommendation of the Committee and I am pleased to say that the Government has accepted

it. (emphasis added).

XIII-11

MR HARRISON: But the onus of proof is still on the claimant.

MR FRANCIS: The claimant has only to aver that his incapacity is due to war service and the onus is on the Commission to prove otherwise.

MR SPENDER: I am afraid that that is not so.

MR FRANCIS: The government has accepted the recommendation of the committee in this respect and if the honourable member can show that the recommendation is not properly embodied in the bill, I shall be happy to co-operate with him in placing the matter beyond doubt.3

On 18 March 1943. Dr H.V. Evatt said:4

We are reinforcing the position by the provision, amended at the instance of the Right Honorable member for North Sydney, that in all cases the member shall be given the benefit of the doubt.

The 1943 statute intended to apply the reverse criminal

onus to claims at all levels as the Repatriation

Commission itself conceded.5

Section 47 continued to cause difficulties of

interpretation as Mr Justice Toose observed.®

As a result of his recommendation, s.47 was amended in

1977. His Honour's intention is clear. He said:

Conclusion I am of the view that proceedings for

determination are, and should be. administrative proceedings of an inquisitorial character in which there are no opposing parties. Section

XI11-12

47(2) of the Act should be amended so as to

delete the onus it places on a person or

authority contending.7

The 1977 amendment reads:

47(1) The Commission. a Board. an Appeal

Tribunal or an Assessment Appeal Tribunal. in hearing, considering, determining or deciding a claim, application or appeal -(a) is not bound by technicalities, legal forms

or rules of evidence; and

(b) shall act according to substantial justice and the merits and all the circumstances of the case, and, without limiting the

generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact. matter. cause or

circumstance, including any reason

attributable to -(i) the effects of the passage of time,

including the effect of the passage of time on the availability of witnesses; or

(ii) an absence of, or a deficiency in,

relevant official records, including an absence or deficiency resulting from the fact that an occurrence that

happened during the service of a member of the Forces was not reported to the appropriate authorities.

(2) The Commission, Board, Appeal Tribunal or Assessment Appeal Tribunal shall grant the claim or application or allow the appeal, as the case may be, unless it is satisfied, beyond reasonable

doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal, (emphasis added)

XI11-13

As a result of the Toose Report claims for pension were to

be in accordance with an approved form but the requirement

that a form be lodged was "not to be taken as imposing any

onus of proof on a claimant.®

It is clear that DVA and the Repatriation Commission

regarded these amendments as having "tightened up" the

basis for allowing claims. Over the next few years the

DVA and the Repatriation applied in effect a threshold

onus requiring a reasonable prima facie case to exist

before allowing a claim.

That this approach was wrong was finally established in

Repatriation Commission V Law (1981) 147 CLR 635 after

amendments to the section in 1979. In that case Aickin J.

at p.652 said:

The Commission also relied on the difference between the former s.47 and the present s.47 and 107 VH but the general nature of the 1979

amendments demonstrates that the intention of the Parliament was to expand, rather than to reduce, the extent to which pensions are payable under

the Act. In my opinion the present form of ss.47 and 107VH does not demonstrate an intention to make pensions harder to obtain or to deny

pensions in cases in which, under the repealed sections, there would have been an entitlement to a pension.

Accordingly the submission that S.107VH is not an "evidentiary provision" should be rejected. I am satisfied that the operation of that section does

X I 1 1-14

not involve a two-stage process and that it

requires that, in relation to any fact necessary to establish entitlement, the Review Tribunal must be satisfied beyond reasonable doubt that the fact does not or did not exist before it can

refuse an application or dismiss an appeal by a claimant. The reference in sub-s(2) to the

"completion of its consideration in a proceeding on a review" is to the entire process of

examinining the evidence and determining whether the Review Tribunal is satisfied beyond

reasonable doubt that each of the factual

requirements has not been established.

Sub-section (2) then directs the Review Tribunal as to what it must do in the light of its

determination, i.e. to set aside the decision if it is not so satisfied, and to uphold the

decision if it is so satisfied.

DVA and the Repatriation Commission continued to contend

for a threshold onus (inter alia) in cases where disease

of unknown aetiology was the basis for the claim.

Law's case produced an increase in the number of claims

and the Repatriation Commission sought further

clarification (or tightening) by the High Court through

Repatriation Commission V O'Brien (1985) 59 ALJR 363.

This decision has, in this Commission's respectful

opinion, been misunderstood. It surely does not require

the allowing of a claim when the basis for it is mere

speculation. Speculation cannot be a ground. let alone a

sufficient ground. (See Chapter II supra).

XI11-15

Nonetheless the Government„ without promised prior

consultation with veterans groups. proposed to amend the

crucial sections in indecent haste.

Brennan J. (at p.369 in O 1Brien's case) drew attention to

what he called the legislative legerdemain embodied in

s . 47(2). One speculates that the 1977 amendments attempt

to actually tighten up the claim process whilst appearing

to keep faith with veterans. and to comply with Mr Justice

Toose's recommendation. In the Commission's view, similar

sophistry is apparent in the May 1985 amendments.

The proposed May 1985 amendments were at least open to an

interpretation dramatically changing the basis for dealing

with claims.

It could well be argued that a two-stage process for

entitlement was introduced. At the threshold the

determining authority is required to be reasonably

satisfied that a reasonable hypothesis linking service

with incapacity exists whether the veteran served overseas

or not.

It is also required to be so satisfied that any such

reasonable hypothesis has not been dispelled.

X I 1 1-16

Before those amendments the determining authority was

obliged to grant a claim unless satisfied beyond

reasonable doubt that there were insufficient grounds for

granting it.

After amendment the determining authority was obliged NOT

to grant the claim unless reasonably satisfied that a

reasonable hypothesis existed and had not been dispelled.

This effected, in the Commission's view, a most

substantial change to rights enjoyed by Australian

veterans (including Vietnam veterans) for more than 50

years.

Solemn promises had been made to Australia's fighting men.

For a Government to make such a change as part of a

mini-budget and in haste and without consultation with

veteran groups. whilst this Commission was charged to

consider changes in the legislation demanded a response by

this Commission.

The cost of providing pensions and benefits and comparison

between repatriation spending and defence spending are

matters for the Government as the Commission acknowledged

at its hearing on 30 May 1985.

X I I 1-17

The Commission's concern was that all members of the

Government be aware of the impact and effect of the

proposed changes and it therefore sought delay (of a mere

six weeks) so that its views as set out in this Report

would be available to the Government and Parliament.

It is the Commission's view that Australia's veterans

ought to have re-enshrined in legislation the following

notions:

. the claimant need furnish no proof„ but merely

aver;

. the benefit of any reasonable doubt should go to

the claimant;

The Commission so recommends.

X I 1 1-18

ENDNOTES

1. Commonwealth Government Printer, Ref No 84/1637, Cat No 85 09155.

2. Hansard 17 February 1943. p 816.

3. Hansard 11 March 1943, p 1545.

4. Hansard 18 March 1943, p 2015.

5. Repatriation Commission Report 1943, p 4.

6. Toose Report, Vol I, pp 246-247.

7. Ibid p 249.

8. S.24AA of the Repatriation Act 1920

provisions are now in s .25 .

24372/85.

- Similar

XII1-19