Friday, 8 March 2013

Index

The Repat Racket
An Insider’s Report on Veterans’ Affairs



DEDICATION
To my former colleagues at the Department of Veterans’ Affairs – a great bunch of folks.

AUTHOR’S NOTE
    
     This book describes the broad details of veterans’ law, and how the system went hopelessly wrong. The legislation is very complicated, and to include every reservation and exception which should be made to every statement would both bore and bewilder the reader, while obscuring the big picture.
     No-one’s privacy has been breached. The court decisions discussed in the text are in the public domain, and form an integral part of every veterans’ law course. Indeed, many of the cases described in chapter 7 are also in the public domain, and can be accessed on the internet. However, I have chosen to disguise them with letters.
     If you recognize yourself in any of the cases, it is most likely because so many stories are alike. If you think you recognize your neighbour or your friend, you are probably mistaken. My experience is that people have a very incorrect knowledge of their acquaintances’ history.

CHAPTERS

     Each chapter ends with a link to the next chapter, and another link back to this index. You can access the chapters by either simply scrolling down the page and, when you reach the bottom, click on the link to "Older Posts", or, you can follow the links at the end of each chapter. Alternatively, you can simply turn to the Archives section on the right.
     But before continuing, may I suggest you check the button at the top marked, "Why This Book?"
  1. Repat Will Provide. This is the introduction.
  2. The System as it is Supposed to Work. This explains the various types of pension, the eligibility requirements, and the appeal system ie the essential background to the system.
  3. How the System Went Up in Smoke. This explains how a badly worded law, and an over-generous interpretation of it by the courts, resulted in pensions being handed out to anybody who could claim to have started smoking on eligible service. Although most of the applicants are probably sincere in their claims, I show how the rationale behind it is essentially bogus. Yet this is the basis of approximately two thirds of pensions.
  4. More Horses Bolt. This describes how the courts now sought to grant pensions for every condition under the sun, and Parliament's valiant rearguard action to maintain some semblance of sanity.
  5. The Myth of Agent Orange. These are the facts, and this is the science. After you read this chapter, I hope you never again fall for the line that Vietnam veterans have been adversely affected by this sinister chemical.
  6. Sundry Rorts by Honest People. How the effects of old age are regularly treated as the effects of war.
  7. The PTSD Epidemic. Anybody who works in the Compensation section will tell you that psychiatric claims are the one major area overwhelmed by lies, rorting, and dubious practices. Yes, there are a lot of men genuinely traumatized by their combat experiences. But there are an equal number of people who never faced the enemy, and never had anything serious happen to them, yet are claiming the same status, and being supported by doctors and - what is worse - the law. You will be shocked at the case histories you read here.  This long chapter has been divided into three parts: 7A (part 1), 7B (part 2), and 7C (part 3).
  8. Paid to be Sick. One of the saddest aspects of it all is the way the process inhibits rehabilitation. People genuinely sick or traumatized by war are being sucked into a system which makes them worse.
  9. The War Widow Racket. Forget the relatively young diggers being killed in action in Afghanistan. According to Veterans' Affairs, most of the people giving their lives for their country today are over 80 years of age.
  10. Through the Looking Glass. This is essentially a supplement to chapter 2. It allows you to follow a claim through all the levels of decision making, and all the deficiencies in the process.
  11. What is to be Done? Twenty-six suggestions for fixing the problem.
TO CHAPTER 1. (or just scroll down

1. Repat Will Provide


Let me tell you about my uncle. He wouldn’t mind, even if he were alive. One day he signed a piece of paper, and received a free trip to a lot of exotic places, such as Greece, Crete, Egypt, and North Africa. He also got a free trip home which, he cheerfully used to add, had never been guaranteed.
Several decades later, when he was closer in age to eighty than seventy, he happened to muse to a friend at the R.S.L., “It’s a bit of a nuisance. My hearing’s getting worse, and I’ll have to get a new hearing aid. They’re so darned expensive.”
“Don’t worry!” said his friend. “Repat [that is, the Department of Veterans' Affairs] will provide it” – and he got him to sign another piece of paper. Then, in no time at all, so it seemed, he found himself in receipt, not only of a new hearing aid, but also of a 40% disability pension.
All this rather puzzled him, so, knowing I was an employee of Veterans’ Affairs, he broached the subject on his next visit. “What I can’t understand,” he said, “was how I got that pension. I never applied for it.”
“Oh yes, you did,” I replied. “That form you filled out was headed: ‘Claim for Pension and Treatment for a War-Caused Condition’.”
“But it wasn’t war-caused,” he replied. “It was due to plain old age.”
“Well,” I explained, “the Department would have taken the view that if you hadn’t heard all those guns, you wouldn’t have reached the current level of hearing loss for perhaps another five years.”
He looked dumbfounded. “Well, that is quite amazing,” he said.
"And that," said I, "is the difference between Social Security [now Centrelink] and Veterans' Affairs. Social Security is designed so that any lying parasite can rip off the system. Veterans' Affairs is designed so that even honest people can rip off the system."

And that’s about it. I could tell you innumerable anecdotes about the claims I have processed. Take, for example, the old man who lodged a claim for “eyes” because he suffered from cataracts and glaucoma – which are major problems, I agree, but not obviously connected to any military service. It never occurred to him to ask how many men of his age group suffer from these diseases, or what sort of conditions cause them. Rather, he automatically assumed they may must have resulted from his service in the Pacific Islands forty years before. When I telephoned him for more details, the following conversation ensured:
“Well, there were the batteries.”
“The batteries?”
“Yes, I had to fill the batteries for the trucks, and the fumes from the acid made my eyes water.”
“I see.”
“Then there were the centipedes.”
“The centipedes?”
“Yes, you know what a centipede is? Well, in the Islands they were about a foot long. Sometimes you would lift a stone, and there they were. You couldn’t avoid them.”
By now my mind was starting to boggle, but I had to ask the obvious question: “So, how would they affect your eyes?”
“Well, they’d spray some sort of vapour at you, and it’d get in your eyes.”
Good grief! I thought. Where do people get these ideas?
All right, he probably left school at fourteen. The younger generation should be a bit better educated or more savvy. Or are they? A much younger soldier – I think he was even too young to have gone to Vietnam – lodged a claim for about a dozen non-specific symptoms – such as aches and pains, chronic constipation and diarrhoea (!), and general fatigue. In fact, they had caused him to give up his favourite recreation of marathon kayak racing. He could no longer do it without aching all over and feeling exhausted.
Primitive savages believe that disease and death are not natural, but must be the result of witchcraft. We, on the other hand, have educated several generations of Australians to believe that anything which happens to a veteran cannot be natural, but must have been caused by the war. The result is that people are lodging endless claims for every condition conceivable and, what is worse, they are being accepted on the basis of legal fictions.
Most people, if they consider the matter at all, probably assume that the Department of Veterans' Affairs is involved in compensating former diggers maimed or sick from their experiences in war. This is not true. Mostly it is involved in handing out pensions and treatment for conditions which have very little, if anything, to do with any war service. Genuine war-caused diseases and deaths account for only about a tenth of the pensions being granted.
The assumption that a man “must have” been physically damaged by the stresses of war is perhaps a natural one, but it is facile. The medical effects of war are well established, and it depends on the theatre, and the serviceman’s role in it. The Second World War is probably better known than later wars, and so will be used as an example. If a man served in the air war over Germany, he had one chance in two of being shot down and killed. Nevertheless, if he survived, although his nerves may well have been affected, he would probably be physically healthy, because flying in a plane, even into acute danger, is not physically demanding work. On the other hand, if he had been a footslogger in the New Guinea campaign, he would have had a much better chance of survival, but he would have exposed his body to much greater stress, strain, and opportunity for infection. Even so, if any medical consequences were to occur, it would most likely be within the next twenty years. At the other end of the spectrum, being in the ground crew of the air force, especially in the last half of the war, when we were on the offensive, would simply be the equivalent of a civilian occupation.
I myself had been employed by the Department for thirty years, initially as a menial handing out entitlement cards, then as a delegate, handing out pensions, and finally as an advocate before the Administrative Appeals Tribunal, arguing against pensions being handed out. In that time, I have watched the system grow into a monster, fed by good intentions, ivory tower judges, and a lack of political courage by the people who matter. Today, the benefits provided uniquely by Veterans’ Affairs, exclusive of any duplication by other departments, amount to two billion dollars per year, most of it unwarranted.
To understand the situation, it is important to understand the veteran community, and neither idealize nor demonize them. In my career, I have dealt with people who would pass unnoticed in the street, but who once took part in deeds of extraordinary fortitude and courage. There were others whose lives had been genuinely tragic, with little blame attached to either themselves or the war. A few had been shirkers who, despite having been farthest from the front lines, were at the head of the queue when the benefits were being handed out. War sweeps up a cross section of society: the high and the low, the clever and the stupid, the saint and the sinner. Some are the salt of the earth and some are the scum of the earth – although the second group is probably underrepresented, due to their successful attempts at avoiding war service. Mostly, however, they are ordinary people who were once caught up in extraordinary situations.
Objectively, I doubt if the proportion of rogues and rip-off merchants among them is greater than in the general community – probably only a couple of percent. Of course, if you are a Claims Assessor in the Department, that means you always have one or two of them on your books. They are a constant galling irritation, because their lies are as transparent as they are difficult to disprove, but that is not the real problem. It is not that the system is open to abuse, but rather, that the law is an ass, and allows perfectly honest people to rip off the system without even knowing it.
Conversely, the staff of Veterans’Affairs are neither fools, nor hard hearted bureaucrats. The Department contains the usual amount of dead wood present in every big organisation, but by and large, they are ordinary people trying to do a difficult job under pressure, and preferably getting it right the first time.
Also, you will find little discussion of party politics in this book. There is bipartisan support for most measures. Both Labor and the Coalition know that the situation is out of hand, but is too politically dangerous to touch. In the meantime, Veterans’ Affairs is one department which can more or less run itself. It is under the authority of a junior Minister, usually appointed to that position to see if he or she can handle weightier portfolios.
Veterans’ administration is long overdue for criticism and reform. Back in 1969, a book by a Department doctor, and war veteran, John Whiting, entitled, Be In It, Mate! hit the stands and circulated among the denizens of the R.S.L. As they read of widespread rorting and chicanery in the manipulation of pension claims, they nodded their heads and agreed they knew many people who fitted the bill. Some enquiries are initiated in the upper echelons of the Department but, ultimately, nothing much was done. Forty years later, this book can be considered a sequel to Be In It, Mate!, but not even Dr Whiting could have imagined what was going to happen next.
But before we learn what went wrong, it is important to understand how the system is supposed to work. This will be covered in the following chapter. In the meantime, however, may I suggest you click on the button at the top of the page marked "Acronyms". It will stand you in good stead for the remainder of the story.
Go to Next Chapter (or simply scroll down).

2. The System As It Is Supposed to Work

When the First World War broke out, Australia was a new country with a population of only five million, including women and children. Yet 416,809 volunteered for active service. Of these, 331,781 went overseas, 59,330 were killed, and another 152,171 were wounded. By any standards, it was one of the greatest movements of mass enthusiasm in British history, and one which, one hopes, will never happen again, or need to. It became the defining experience of that generation and, not surprisingly, there was an immediate clamour for special care for the countless soldiers returning crippled, wounded, or sick, and for the dependents of those who failed to return at all.
To their credit, the governments of the day were not slow in acting. A War Pensions Bill was introduced before the war was four months old. But it was a task, the scope of which no government had tackled before. To assist it, a Repatriation Commission was appointed to advise the Governor-General on the granting of benefits. Of particular concern were those servicemen who had been blinded, or lost limbs in the conflict. This can be seen by provisions of the current law for special benefits for such disabilities, archaic provisions which have been in the legislation from the beginning, despite the many additions and rewrites which have taken place in the interim.
A couple of early attempts at legislation where eventually replaced in 1920 by the Repatriation Act, which held sway for the next 66 years. The department which administered it – now the Department of Veterans’ Affairs – was, for most of that period, called by some variation of the name, Repatriation Department, and known to the older generation as “Repat” – hence the title of this book. But after six decades of amendments and regulations, along with supplementary legislation for later conflicts, the Repatriation Act bore more than a passing resemblance to a dog’s breakfast, so in 1986 it was given a complete rewrite. The Veterans’ Entitlements Act was the result.
The VEA, as it is known for short, consists of 1315 pages of verbiage drafted before plain English became the vogue. Rumour has it that some law schools cite it as an example of how not to draft legislation. This chapter will attempt to provide a thumbnail sketch, leaving out much of the confusing detail. But before we do that, it is germane to mention a certain legal fiction which underlies the whole framework.

        Just as every government action is performed in the name of the Queen, so, one step down, all the decisions in the veterans’ administration are officially made by the Repatriation Commission. It is what the Romans called a triumvirate, and the Russians a troika: a cabal of three, consisting of the President, Deputy President, and a Commissioner nominated by the ex-service organisations. The law requires the Commission to determine all claims for pension. Since the Commission is only three men, and it has no staff, it delegates this function to employees of the Department of Veterans' Affairs known as Claims Assessors. However, before a claim can be determined, the law also requires the Secretary of the Department to investigate it. The Secretary is also a very busy man, so he appoints one of his own staff to do the work – invariably the same Claims Assessor delegated by the Commission. The Secretary is on a short term contract, and can be dismissed at any time, but the President of the Commission has a much more secure tenure. In practice, it makes no difference, because the Secretary and the President are one and the same person.
As you can see, it is all basically a legal fiction. The work and decision making are all done by bureaucrats in the Department of Veterans' Affairs. Where does the Minister fit in? He has the ultimate oversight over the Department and its legislation, as well as the Veterans' Review Board. But he is not a member of the Commission. That means he cannot make any decisions about granting pensions. Veterans who approach the Minister or their MP asking him to intervene in their claims are wasting their time.

           The Veterans’ Entitlements Act covers those who served in wars or peacekeeping roles. Members of the peacetime forces are covered by the general legislation involving workers’ compensation – in particular, the Safety, Rehabilitation and Compensation Act, or SRCA (pronounced “serca”). However, certain anomalies are present. Whereas the periods of the minor wars are clear-cut, at the end of World War II, the government was uncertain how large their peacetime army needed to be. In order to encourage people to stay on after the war, or to enlist, they extended Repatriation eligibility for various periods after the war, the exact cut-off date depending on when one enlisted, and whether one had volunteered at the start of the war, or was a career serviceman. It is thus possible to be a World War II veteran even if you enlisted after hostilities ceased, and never left Australia.
Furthermore, the VEA also covers “defence service” after 7 December 1972, providing one served three years, or completed national service. (If you are wondering where the date came from, it was two days after the Whitlam Government was elected.) Service personnel with defence service are covered by both the VEA and SRCA, but benefits from the former are off-set against those from the latter. To make matters more confusing, some people are not covered for defence service, some people are eligible only until 1994, and defence service for everybody ceases on 30 June 2004. After that date, everybody, in both peace or war, is covered by the Military Rehabilitation and Compensation Act or MRCA (pronounced “merca”). This book describes the rorts and abuses of the VEA but, as will be seen in the last chapter, many of them have been carried over into MRCA.
The VEA provides for the payment of three types of pension. A Disability Pension is payable for medical conditions notionally determined to be war- or defence-caused, and should not be confused with the Disability Support Pension paid by Centrelink for invalidity. A War Widow’s Pension is payable to the dependents of those whose death is notionally determined to be war- or defence-caused, or who were in receipt of certain rates of pension. In practice, it is determined in the same way as a Disability Pension, the specific disability being death. The Service Pension is the Veterans’ Affairs equivalent of the civilian old age or invalid pension.
These pensions come with various fringe benefits, the most valuable being medical treatment. Any condition determined to be war- or defence-caused can be treated at government expense. Furthermore, full medical benefits are provided to anyone holding a Gold Card, which is granted to anyone in receipt of:
  • a Disability Pension of at least 100%;
  • a Service Pension above a certain threshold;
  • a Disability Pension of at least 50%, plus any level of Service Pension; or
  • a War Widow’s Pension.
It is also awarded to a few other minor categories of people. Since full medical benefits includes dental and optometric treatment, surgical aids, admission to private hospitals, and a number of other benefits not normally covered by Medicare, you can well understand that the Gold Card is highly in demand. It is worth, indeed, a lot more than even membership of a private medical fund, and many claims are lodged, not so much for the pension involved, but for the Gold Card.
Since the rest of this book will be taken up with the abuse of the Disability Pension, it is opportune to discuss the Service Pension at this stage. During the Depression, there arose the concept of the “burnt out digger”, suffering from the “intangible effects of war”, and statistics were produced to show that ex-servicemen were finding it harder to obtain and keep employment. The solution was the introduction in 1935 of the Service Pension (Old Age), identical to the normal old age pension except that it could be taken at the age of 60, rather than 65.
Two points should be made. Firstly, in those days people were self-reliant, and took pride in the fact that they did not need to go on the pension. These days it is regarded as a right. Secondly, as will be shown in later chapters, the law has been expanded to such an extent that even the slightest connection between a disease and service will result in a pension. In other words, there are no longer any intangible effects of war. A Service Pension is simply an opportunity to retire five years earlier as a reward for serving one’s country, and no-one can complain about that – as long as you acknowledge that that is what it is.
A veteran who is physically incapable of work – in other words, an invalid – can also receive a Service Pension (Permanently Incapacitated). The invalidity need not be due to the war; it could be due to brain cancer, or a congenital disease, or even being hit by a bus. Both Service Pensions are equivalent in value to each other, and the corresponding Centrelink pension, and are subject to the same income and assets tests.
There is one other matter, however. To receive a Service Pension, it is not only necessary to be a veteran, but also to have “Qualifying Service”, which means in operations against the enemy and in danger from the enemy. In the past, this was interpreted very generously to mean being outside the three-mile limit. All Tasmanians automatically qualified, because they had to cross the Bass Strait to enlist, even if they subsequently never left Australia. An army unit travelled from Brisbane to Townsville. Most members travelled by rail, but one of them went by sea, weaving in and out of the three-mile limit – and he got a Service Pension. However, twenty years or more ago, court cases put an end to that practice.
But Australia is a nation of immigrants, and many of them had also served the common cause in time of war. Therefore, eligibility to Service Pension was extended first to members of the Commonwealth forces, and then to all Allied veterans. It is worth noting, however, that they do not receive the coveted Gold Card, like Australian veterans, but have to rely on Medicare. They are also not entitled to a Disability Pension. If they consider that any of their infirmities are due to the war, they must apply to the government of their country of origin.
It is interesting to note that, when the law was rewritten in 1986, the then Labor government attempted to remove our allies in the Vietnam War from any eligibility to Service Pension. This was clearly motivated by the Party’s shameful support of the enemy during that conflict, but they could hardly say so, and that particular amendment was overturned by the Senate.
Finally, this should not need to be stated, but the whole aim of Repatriation benefits is to repay the debt the country owes to those who defended it in time of war. Therefore, in order to be eligible for the Service Pension, you have to have fought on our side, and never with the enemy. It’s amazing how many people don’t understand that. I remember a Hungarian arguing, quite passionately, that it was not his fault that he had served with the Axis forces. He had been conscripted; he had no say in the matter. The answer, of course, is that it was certainly true, and we do not hold it against him, but equally, we do not owe him anything.

The Service Pension is open to the occasional abuse, but not much. In eligibility and fringe benefits, it is more generous than pensions provided by Centrelink, but no-one can take much issue with that. After all, the recipients did fight for their country. In theory, the Disability Pension should also be non-contentious. It is intended to compensate ex-servicemen for what is essentially impossible to compensate for: pain and suffering due to war-caused disabilities, restrictions on lifestyle, and the loss of income due to days off work, loss of a preferred career, and so forth. A person’s position in life makes no difference to the rate payable. If you were an unskilled worker, and never expected to be anything but an unskilled worker, you might find a pension of (say) 60% was a significant supplement to your wages. However, if you were a highly paid professional, or the son of a millionaire, you might well considerate it a paltry compensation for being shot up in the war.
Over the years, pensionable conditions have been the subject of varying terminology. Currently, the legal term is war- or defence-caused injuries or diseases, but departmental staff, and most ex-service advocates, call them simply A/Ds, or accepted disabilities, and this is the term which shall be used in future. Payment is assessed at the General Rate in 10% increments from zero to 100%.
Since 1988 this has been done by reference to a book called the Guide to the Assessment of Rates of Veterans’ Pensions, otherwise known as GARP. (A certain popular film was still in people’s mind when this name was coined.) This requires that every A/D be given an impairment rating from zero (insignificant) to 100 (comatose or dead). For example loss of half the range of movement of a knee incurs an impairment rating of 20 points, as does the loss of a thumb, or impotence at the age of 30- 39. It’s arbitrary, but nobody has come up with a better system.
Obviously, however, a bad knee (say) will have a greater effect on a young infantryman whose recreations are football and marathon kayak racing than on an elderly retiree whose hobbies are reading and jigsaw puzzles. Therefore, GARP takes into consideration lifestyle effects. In four areas - personal relationships, mobility, recreation and community activities, and domestic and work activities – the effects of A/Ds are rated from zero (negligible restrictions) to 7 (all activities prevented). Then the average of these four areas is taken, and linked with the impairment rating to obtain a pension assessment. Thus, an impairment of 40 points with a lifestyle rating of 3 equates to a pension of 70% of the General Rate, while 45 points and a lifestyle 3 results in an 80% pension.
100% is not the maximum pension payable. It is the maximum of the General Rate – the maximum a veteran can get and still work full time. If his A/Ds prevent him from working more than half the normal working hours, he is entitled to the Intermediate Rate. If they get worse, and prevent him from working more than 8 hours a week, then he is eligible for the Special Rate, better known as TPI (total and permanently incapacitated). If he only temporarily unable to work, the same pension is called the Temporary Special Rate, or TTI, but this is only rarely awarded. Most incapacities are assumed to be permanent, and once a veteran receives such a pension, there is a very strong resistance to rehabilitation and return to work. The fact is, although the TPI pension is not very large in absolute terms, most recipients are also entitled to the Service Pension. Those who aren’t are still entitled to a Disability Support Pension from Centrelink. Together, along with the fringe benefits provides, they amount to more than the average wage.

          The legislation concerning TPI is extremely complicated, and somewhat contradictory, and has been the subject of more litigation than any other section of the Act. Any attempt to summarise it will therefore result in oversimplification. However, the point to remember is that the veteran must have ceased work, and be out of pocket, because of his A/Ds alone. If any other factor, even a minor one, is involved, then he is disqualified. The rationale is that the Special Rate is not a veterans’ superannuation scheme, but rather, compensation for lost income, and a person cannot be compensated for opportunities he never had in the first place. As the Acting Minister said in Parliament in 1985:

The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force.

          This was clarified by the courts, and later by Parliament, just at the time when many World War II veterans were reaching retirement age. To their dismay, they realised that, after the age of 65, there would be no more TPI pensions available. For many of them, that had been their ultimate financial goal, and now their dreams were shattered. So the government introduced a special Extreme Disablement Adjustment (EDA) worth 150% of the General Rate for those ineligible for the Special Rate. It had three criteria: the applicant had to be at least 65 years old, and have an impairment rating of at least 70 points, and a lifestyle rating of at least 6. That was a very high bar to cross. Indeed, if a person really were that severely restricted, one might wonder what he could spend the money on. It was assumed that very few people would qualify, but somehow a lot have managed to slip through.

The system of administering the claims has varied over the years, but basically, there is a primary decision making process, and two levels of appeals. If a person wishes to claim a condition, or the death of a spouse, as service-related, or believes that his accepted conditions have worsened, he lodges a claim with the Department of Veterans’ Affairs. A Claims Assessor will then do all the investigations, and ultimately make a decision as a Delegate of the Commission. If the claimant has any evidence, or a good argument, in support of his claim, he would be advised to submit it, but he is under no obligation to do so, and many claims in fact succeed with minimal input from the claimant.
At this point, mention might be made of issue estoppel. Essentially, this means that the Commission is not “estopped” or bound by its earlier decisions. An example might assist in making it clearer. Hypertension, or high blood pressure, is a risk factor for strokes and heart disease. If a veteran has hypertension as an A/D, therefore, you might assume that any later stroke or heart disease would be automatically accepted. Not necessarily. The decision maker has to look at hypertension afresh. It may be that the original decision was made when the law was more lax in the way it handled such diseases – as will be made clear in the next two chapters. Or the original decision maker may have simply interpreted the evidence incorrectly, and got it wrong. The veteran’s entitlements to pension and treatment with respect to hypertension will never be lost, but stroke or heart disease can only be accepted if hypertension can also be accepted under the current law.
In any case, if the claimant is dissatisfied with the Delegate’s decision, he can appeal to the Veterans' Review Board (VRB). This is a separate body from the Commission, and quite independent of it. The Department will provide both the veteran and the VRB with copies of all the documents used in the original decision. The veteran is then free to submit whatever new evidence he can obtain, and eventually he will able to sit around a table with the Board and explain to them why he thinks the Commission got it wrong. He is permitted to be represented at the hearing by anyone he likes – provided that person does not have legal qualifications. The government, in its wisdom, decided that lawyers, with all their demurring and objecting, will only slow things down.
If the claimant comes up with good evidence, or a good argument, his appeal need not even go to the Board. Section 31 of the Veterans’ Entitlements Act permits the Commission – in practice, a delegate of higher rank than the original Delegate - to review its decision if it thinks the original decision maker got it wrong.
It he is still dissatisfied with even the Board’s decision, he can appeal to the Administrative Appeals Tribunal (AAT). This time, it will be best if he obtains a lawyer and legal aid, and the Commission will send an Advocate of its own to argue the case against him.
Sometimes it occurs that the VRB has accepted one condition, but not another, or has increased his pension, but he still wants more. If he appeals to the AAT, it is possible for the Commission to ask the AAT, not only to refuse his appeal, but to take from him the entitlements granted by the VRB. It doesn’t happen very often, but it does occur, and the veteran can get around it by simply withdrawing his appeal. This is one of the few opportunities for mistakes in the claimant’s favour to be rectified. As a general rule, however, mistakes against a veteran are corrected, but mistakes in a veteran’s favour accumulate.
The role and nature of the AAT are not often appreciated in Australian society. It is under the aegis of the Attorney General, and reviews a wide range of government decisions, including those related to compensation, immigration, social security, taxation, and various lesser administrative areas – not just Veterans’ Affairs. Anyone who comes before it would imagine it to be an informal court, but it is fact a branch of the executive government, whose task is to make the correct or preferable decision, which the original decision maker could have made and should have made if all the evidence had been available. As such, its decisions do not have precedence value. A particular tribunal is not bound by the decisions of earlier tribunals in similar cases but, in practice, they do attempt to maintain some degree of consistency. The AAT produces lore, rather than law.
There is, however, one awkward consequence of the AAT’s independence of any other government department. In the case of Veterans’ Affairs, the minister’s input is via the Commission, not the AAT. The Commission produces policy guidelines on practical matters on which the law is unclear – for example, in their understanding of a particular Statement of Principles (see chapter 4), or the circumstances under which they will accept alcohol consumption to be war-caused. Policies are binding on the delegates of the Commission, and result in a certain consistency and predictability in decision making. But the Tribunal is not bound by them. In fact, it is not the least bit interested in the Commission’s policies. Any Advocate who was foolish enough to raise them at a hearing would be treated with scorn.
This is clearly a defect in Australian administrative law. The Tribunal is an agent of the executive government, and there is no reason why it should not be bound by government policies – providing the latter are consistent with the law. Indeed, it is hardly conductive of good government if the Minister’s agents are busy telling its delegates how to act in certain circumstances, only to be overruled by another branch of government. But that is how it stands, and it has resulted in at least one very bizarre course of action.
As mentioned before, the legislation regarding TPI is neither simple, nor internally consistent. You might consider that the logical thing for the Commission to do would be to provide a set of guidelines introducing some clarity into the situation – at least until some judge decided one of them was inconsistent with the law. However, they would still have to run the gauntlet of the AAT, so the Commission decided on another approach. They would test the law, and let the AAT produce de facto guidelines. Instructions went out to the various delegates that they were to take a very hard line, rejecting every claim where anything at all other than the A/Ds could be suspected of preventing a veteran from working. The veterans then had to appeal to the AAT, and after enough rulings had been made, the Commission reviewed the (often contradictory) Tribunal decisions, decided which way the wind was blowing, and then issued policy guidelines which they hoped would stand the test of future appeals. The Commission advocates, as well as the AAT and its attendant staff, were all paid by the government. So were the veterans’ lawyers, under legal aid. Everyone had cause to be happy except the taxpayer – and, of course, the many sick, unemployed veterans who were forced to go through the appeal mill in the first place.

Even if the AAT finds against him, there is still further action a claimant can make. The simplest is to just wait a few months, and then claim again. It probably won’t be successful, but you never can tell. Even if no new evidence is adduced, and there has been no change in the legislation, and both the Delegate and the VRB reject it again, there is always the possibility that it will end up in front of a more sympathetic, or more gullible, Tribunal member. There is no restriction on the number of times a person can claim the same condition as war-caused. There is no cost involved to the claimant – at least at the first two decision making levels. Most ex-service organisations (ESOs) will provide an advocate at the VRB level, even when they know the case is hopeless, and many of them will appear, free of charge, at the AAT when no lawyer is prepared to go. Wasting the taxpayer’s money is never an issue.
The second option is to appeal to the Federal Court. This will cost money, so legal aid needs to be sought. Otherwise, some ESOs will be prepared to finance an appeal if it shows promise of setting a precedent for easier acceptance of claims in the future. Also, the appeal must be on a point of law, rather than the facts of the case. What this means is that the veteran must make a case that the Tribunal misconstrued the legislation or the Statement of Principles, used the wrong standard of proof, failed to consider a vital piece of evidence, or considered the wrong evidence, or make some other similar mistake in law, but not that, after following all the legal requirements, and considering all the evidence, the Tribunal simply got it wrong. Even a perverse or stupid decision may still be legally valid.
You may think this is a bit rough, but the courts are already overworked, there must be some end to the litigation, and experience shows that judges are just as liable to make perverse and stupid decisions as tribunals. Also, it must be remembered that any case which goes to the AAT has already been effectively rejected four times: by the original Delegate, by the review officer considering a section 31 intervention, by the VRB, and by the Advocate who could have conceded the claim prior to the hearing. This process effectively removes all the straightforward cases with good evidence, and leaves only the weakest to go to a hearing. In other words, a perverse or stupid decision is more likely to be made in favour of a claimant than against him.
The Commission can also appeal a decision of the AAT, but is circumspect in doing so. No policy maker in Veterans’ Affairs loses sleep if some elderly digger or widow gets an unwarranted pension. However, the Commission is concerned if the Tribunal is egregiously flouting the legislative requirements, or if some decision, left uncontested, can serve as a precedent for a blow-out of pensions in a direction the lawmakers never intended. They are also aware that judges are human and, despite being paid huge salaries to be dispassionate, may not always dissociate their feelings from the strict requirements of the law. When the Commission initiates an appeal, therefore, it tends to avoid cases where the applicant is likely to arouse sympathy.
The AAT knows this, and acts accordingly. When you’ve actually appeared for the Commission in hearings, as I have, you realise that the written reasons do not always tell the full story, and you gain the strong impression that many a case has been decided on its sympathy value, rather than its merits, after the Tribunal has decided they can “get away with it” in that particular incident.
The workings of the Federal Court are another anomaly about which the general public know very little. If you do not understand the precise meaning of something I have said, the logical thing to do would be to ask me to clarify it. But when an aspect of the law is perceived to be ambiguous, you don’t ask the government; you ask the court. Indeed, the government has to go to the court to find out what Parliament intended in writing the law. The Minister, you see, in his capacity of administering the law, is considered to be a separate entity from Parliament, even though he is a Member of Parliament, and introduced the law through Parliament, and oversaw the passing. In fact, we can lay down three rules of thumb concerning the workings of the Federal Court:
  1. As a matter of politics, when the government is upset by a decision of the Tribunal, its first act is to appeal to the court, and only after all legal avenues are exhausted does it go back and change the law.
  2. There is a legal fiction that the executive government is somehow independent of the legislature.
  3. The judges consider that they know the intentions of Parliament better than those who are actually members of that body.
In 2007 the reputations of the Courts received a severe blow when Dr Jason Pierce published the interviews he had with various assorted judges, including nine from the High Court, current and retired, and twenty-four from the Federal Court. Many candidly revealed that they had based their decisions on their own political opinions instead of the wording and intentions of the law, and saw their role as making the law, rather than simply expounding it [Jason L Pierce (2007): Inside the Mason Revolution: the High Court of Australia Transformed. Caroline Academic Press].
In the field of veterans’ law, the courts have had a long history of frustrating the intentions of the elected government. In the next chapter you will read about the ground-breaking cases of Law and O’Brien. In the former case, the government who fought hard, and failed, to get the courts to see its point of view was the very same government which produced the legislation. In the second case, a new government was in power, but there was bipartisan support for its position. You did not hear a peep from the opposition concerning its action.
Sometimes the government reacts by changing the law; sometimes they just cop it on the chin. But one perverse decision, involving the old favourite, TPI resulted in a very perverse reaction. Section 24(1)(c) of the VEA requires that, in order to qualify for TPI, a veteran must have been preventing from working due to his A/Ds alone. However, since it is harder to obtain employment than to keep it, this is ameliorated by section 24(2)(b): if a veteran is not working, but has been genuinely seeking work, and his A/Ds were the substantial (not sole) reason why he was unable to obtain employment, then he will be treated as being prevented from working by virtue of his A/Ds.
In the 2005 case of Giesen, the Federal Court voiced the opinion that this could only apply to a veteran who had never been working at any time. If he had once been working, and then was made redundant (say), he could never take advantage of section 24(2)(b). This is definitely, absolutely not was the government had intended. And since the ex-service organisations looked askance at it as well, the government simply promised them they would never invoke it, and instructed their servants to totally ignore Giesen. It’s the law, but it is never going to be enforced. Doesn’t that give you a warm feeling about the way the country is being run?
Clearly, we are here contemplating another defect in Australian administrative law. All decisions of the government can be challenged on matters of law, and that is how it should be. The law is so complicated, that agents of the government can be in error unwittingly. Also, sometimes a government decides to ignore a law which had been passed by its opponents, but which it does not have the moral courage, or the numbers in the Senate, to change. They should not be allowed to get away with it. But, in the vast majority of cases, government policy is a reasonable interpretation of the legislation and, as such, should be allowed to stand.
Yes, we know that governments win power with only slightly more than 50% of the vote. Yes, we know that the particular matter involved is seldom an issue during an election – or even on the list of campaign promises. But the bottom line is: they are elected by the people, and ultimately responsible to them, and that is more than can be said for any judge.

Continue to Chapter 3

Return to Index

Wednesday, 6 March 2013

3. How the System Went Up In Smoke

Every organisation has its own culture. The Department of Veterans’ Affairs has a long and recognized culture of courtesy and helpfulness to their clients. While many ex-service organisations complain that it ought to be more generous in the assessment of pension claims, they are virtually unanimous in not wanting its functions transferred to another Department, such as Centrelink – which apparently has a reputation of seeing claimants as potential rorters. (Perhaps they know something.)
Originally, the department was staffed wholly by veterans, with all the advantages and disadvantages that entailed. They took a sympathetic view of claims, they could draw on the experience of their colleagues in various areas of conflict, and understand the sort of experiences the applicants had been through. They also found it easier to recognize phonies. On the debit side, there was a tendency to look after one’s own, and often staff members were given a TPI pension as a retirement present. It may well be, nevertheless, that the level of respect and sympathy received by veterans is actually greater now that most staff have never been to war. Their clients are, for the most part, a generation older than them, and actively served in the defence of their country – and that counts for a lot in most people’s eyes.
Prior to 1977, the method of dealing with pension claims was rather hit and miss. Although a different determining system prevailed, it still involved a primary decision making body and two levels of appeals, and incorporated a medical opinion. But medical examinations were often not thorough, and psychiatric reports, in particular, tended to be brief and open to question.
It also involved a peculiar interpretation of the law. Diseases and injuries can be linked to service in a variety of ways: due to an occurrence on service, or if it arose out of, or was attributable to service, or was caused by an accident going to or from service, or would not have been contracted but for service, or was aggravated by service. (I am paraphrasing the more complex wording of the legislation.) Within this broad framework, it is not necessary for a condition to be wholly due to service; any minor contribution is sufficient.
But at least from the 1920s, the terms “occurrence” and “arose out of” were considered to have been satisfied if a condition was first discovered on service. In this way, we saw such conditions as “congenital syphilis” and “horseshoe kidney”, diseases which, almost by definition, were present at birth, labelled as war-caused. Another favourite was “refractive error”, popularly known as weak eyes – something we all acquire eventually, some in middle age, others while we are still children. But if the first prescription for glasses was made on service, then the condition was deemed to have been war-caused. Not only that, but the resultant pension was calculated on the uncorrected visual acuity ie how good his vision was without the use of glasses. Thus, a significant number of people were receiving substantial pensions, even though they could see perfectly well with the free spectacles the department provided. This sort of thing does not happen any more.
Even so, on reading some of the old files, one is often at a loss to understand how some of those early decisions were made. There was no obvious connection to service – not even a temporal one – and a medical officer had specifically said so, but the determining authority accepted it anyway. On the other hand, many claims were rejected which appeared quite reasonable, even under the standards of the time. Perhaps the department handed out the right number of pensions, but to the wrong people.
In 1963 a group of Departmental Medical Officers wrote to the Medical Journal of Australia, with allegations of widespread manipulation of the system, typically by people who were the farthest from the front line, of millions of pounds being paid in pensions for diseases which were not realistically war-caused, of veterans working towards the TPI pension as their ultimate financial goal, and of departmental staff colluding in granting pensions to one another. As far as I know, the government did nothing to rectify the situation. However, it did inspire one of those doctors, John Whiting, himself a veteran, to turn it into a book, Be In It, Mate!, already mentioned in the first chapter.

The year 1977 was the turning point. The first important change in the law was a reform which applied across the board, not just to veterans’ legislation: henceforth all decision makers had to provide written reasons for their decisions. Incredible as it might seem, up till then, a veteran could be absolutely convinced his disease was due to the war, make a claim, have it rejected, submit an appeal, using the same arguments he had used before, have it rejected again, appeal, and again see it rejected, without ever knowing why.
The second change related to the standard of proof. In criminal cases, the jury has be convinced of the defendant’s guilt “beyond reasonable doubt”, but in ordinary civil proceedings, the standard is that of “balance of probabilities”. If, for example, you lodge a claim for worker’s compensation, it must be established that there is at least a 51% chance that your injury was caused by your work. Should the same apply to veterans? Not only can it be argued that they are a more deserving group of applicants, but there are special circumstances relating to war.
In the few cases when I had to deal with First World War veterans, it was surprising how meagre were their wartime medical records. There was a good reason for this. At the end of the war, the bulk of them were held by the British Museum. In 1919 they ran out of storage space, and destroyed the lot! But even in later wars, it is common to find that medical records, though very detailed while the serviceman is in Australia, suddenly become scarce once he goes overseas. Over there, the military is too busy fighting a war to worry about paperwork. If a man gets sick he is given some pills and put on light duties. Sometimes it might be recorded; at other times it may not. Or he may simply “soldier on”. If he is posted to a distant outpost or, worse still, a small ship, there may be no medical aid available – only a first aid officer.
Even when the war ends, there are difficulties. A final medical examination is performed at discharge, but if he says he has anything wrong with him, he will be held a few more weeks while they process his claim. Meanwhile, his wife is awaiting him, and other dischargees are grabbing the jobs. Even if he had a clean bill of health at discharge, it might be another couple of decades before he starts to make a connection between his increasingly bad back (for example) and what happened on service. In the interim, the civilian doctor who first treated him has retired, and his medical records have disappeared.
Good reasons therefore exist for the law having taken an increasingly lenient view of the evidence required to grant a disability pension. Decision makers are obliged to take into account the typical deficiencies of records in time of war, and the passage of time on the availability of witnesses and the preservation of records. The result is that – and this cannot be emphasized too strongly – in the majority of cases, the only evidence for a particular event is the unsupported testimony of the veteran himself, or even, indeed, merely that of his widow. No doubt, it would be unreasonable not to take their word for it under such circumstances, but the problems involved can well be imagined.
What happens if the exact cause of a disease is unclear? The RSL had always contended that such questions should be resolved by assuming the disease to be war-caused. In the 1960s they were campaigning to have all cancers be made pensionable. The government refused, but as a sop, offered free treatment for cancers – thus removing a great weight from the victims’ shoulders.
It would be tedious to both the writer and the reader to detail the gradual change in the standard of proof used by the department over the years, but it came to a head with the Toose Report of 1975. In it, Justice PB Toose recommended that :

“[A] determining authority should accept as proof of any fact favourable to the member, any credible evidence in respect thereof submitted to him that is not contradicted. This may be but another way of stating that a member shall have the benefit of all favourable inferences and of any doubt.”

In other words, he was recommending a modified civil standard of proof. The decision makers should be required to weigh all the evidence, pay due attention to the difficulties in obtaining evidence, listen to what the veteran said, and if it came down to the wire, instead of tossing a coin, they should find in the veteran’s favour. It was all quite reasonable, and not very different from the way the department was already acting. When the government got around to amending the Act in 1977, the minister indicated that that was the intention of the amendment. Unfortunately, that was not what the amendment actually said.
Departmental rumour has it that, on a wall in the Canberra office hangs a copy of the memo of the drafter of the amendment: “What about beyond reasonable doubt?” - kept as a reminder of how things can go terribly wrong. The fact is, the actual wording of the new amendment was that the determining authority:

“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.”

Little did they know that, already working its way through the appeal system, was a claim which would turn the entire Repatriation compensation system upside down.

On 15 September 1976, James Law finally succumbed to lung cancer, and one month later his widow, Nancy applied for a war widow’s pension. She remembered quite well that, when her husband had enlisted at the age of 30, he had been a non-smoker, and when he came home, emaciated and sick, he was smoking. In her mind, there was thus no doubt that the smoking habit which killed him was a result of his war experiences.
This was all very well, but the decision to smoke was still a personal choice, and the Commission rejected the claim. Thus began a long series of appeals, reconsiderations, and new appeals lasting almost three years, in the middle of which the law changed. The result was, when the last administrative avenue of appeal was exhausted, she was able to go to the court and cite the new standard of proof.
Now, we know that the law is supposed to play no favourites. Whether a veteran’s service was meritorious should, strictly speaking, make no difference to the case. Nevertheless, the court found is necessary to record that James Law had served in both the Middle East and Java, and had survived three and a half years in Japanese prisoner of war camps. He had come out a living skeleton, suffering from enteritis, bacterial dysentery, malaria, hookworm, beriberi, and middle ear infection. In later years he suffered from sarcoidosis of the liver and sigmoid diverticulitis of the colon. He had had a piece of his bowel removed.
In other words, this was one case which the Commission would definitely not have chosen to fight. But they had no choice; hard cases make bad law. They took it all the way to the High Court, and when that august body agreed with Mrs Law, the law itself had been changed.

The government should have acted to amend the legislation then and there. It was a little cloud no bigger than a hand, but everyone could see how it would soon develop. Looked at dispassionately, the court’s decision was probably right – for that specific case. If the fallout could be restricted to the very severe and deserving cases represented by James Law, not much would have been at stake. But even as the Law case was going to the Full Federal Court, another case was wending its way up to a single judge of the same court – that of the late Edward McGlynn.
Here was another prisoner of the Japanese, who had commenced smoking on service, and had died of lung cancer. Evidence was provided as to how prisoners used tobacco to deaden the gnawing pangs of hunger, how they would scrounge rank, wire-like tobacco from the local Chinese, and how the less fortunate were reduced to smoking paper, bark, even pine needles. But there was a twist. There were people still alive who could testify that Mr McGlynn had been a non-smoker on enlistment, but had taken up the habit in Australia, before he went overseas. It made no difference. It could not be disproved, beyond reasonable doubt, that he did not acquire the tobacco addiction because of the changed circumstances of service: the handing out of cigarettes to troops, the example of other soldiers, and the stress of knowing that he would shortly be posted to a war zone, nor could it be disproved that his addiction was not intensified by his POW experiences.

That did it. The floodgates were open. Soon would be swept away everything which stood in the way of disability pensions. The standard of proof was the reverse of the criminal standard. Now a veteran only had to claim that he started smoking on service to receive a pension and treatment for any disease for which smoking is a risk factor. Remember: it only needs a contribution from service for a condition to be ruled as service related.
Of course, we all know that smoking causes lung cancer. No doubt most of us are aware that tobacco harbours many other dangers. But it is a fair bet that very few people know the full extent of the tobacco peril. So, for those of you who need yet another reason to stop smoking, here is the current comprehensive list. No doubt more will be added in due course. For some of these conditions, you need to smoke heavily for most of your life before it becomes a risk factor; for others, a mere whiff of the weed is sufficient. In a few cases, the risk is only a possibility, rather than a probability. For many conditions, giving up smoking reduces the risk, or even eliminates it completely. For others, the risk remains strong for most of your life.
First of all, cancers: smoking has been linked to cancers of the lung, liver, and pancreas, the skin of the lip, the mouth, hypopharynx, and larynx, oesophagus (gullet), stomach, colon, rectum, anus, kidney, renal pelvis and ureter, bladder, the skin of the anus and genitals, the cervix, as well as Hodgkin’s disease, and acute and chronic myeloid leukaemia, not to mention squamous cell carcinoma of the skin. Thus, most of the body involved in breathing, digestion, and waste disposal is covered. However, you will be relieved to know that smoking does not cause cancer of the small intestine, the muscles, brain or nerves, or the breast. Nor, to the chagrin of the ex-service organisations, can it be blamed for prostate cancer.
Moving to non-cancerous conditions, smoking obviously enough, destroys the lung by producing bronchitis and emphysema – but not asthma, or pulmonary fibrosis.
The next major group of smoking related diseases are those involving atherosclerosis or hardening of the arteries ie ischaemic heart disease (the most common type of heart disease), carotid artery disease, aortic atherosclerotic disease, renal artery atherosclerotic disease, pulmonary thromboembolism, peripheral vascular disease of the legs, and various types of cerebrovascular disease (stroke), and well as the dementia which multiple strokes can cause. For most, but not all, of these conditions, the risk of disease gradually returns to normal after giving up smoking.
By reducing the blood supply to the back, smoking can lead to intervertebral disc prolapse (slipped disc). By reducing the blood supply to the eyes, it has been implicated in the cause of cataracts and macular degeneration, the latter of which is a major cause of blindness in elderly people. (So let that be a lesson to you smokers: stop it! or you’ll go blind.) Other effects on blood flow can result in impotence (now that’s a good reason not to smoke) and aortic aneurysm (which can kill you).
Smoking is also a risk factor for a whole host of other diseases: type 2 diabetes, osteoporosis, goitre, gastro-oesophageal reflux disease (heartburn), stomach and duodenal ulcers, Crohn’s disease, colorectal adenoma (which can lead to cancer), rheumatoid arthritis, and Buerger’s disease. It is possible, but not proven, that it can cause chronic sinusitis, myelodysplastic disorder, and motor neurone disease, which is both crippling and fatal.
Lastly, and also least, smoking does not cause ulcerative colitis, nor does it protect you from it. But giving up smoking puts you at risk.

Any of the above conditions can become a royal road to a pension for any veteran who tells the right story about smoking. Now, ask yourself: if you were sick, and needed treatment, and could do with some extra money, wouldn’t you at least be tempted to bend the truth a little? It is a well established principle that the best way to get money out of the government is to tell a lie which cannot be disproved. Veterans’ Affairs staff are long acquainted with stories bearing the ring of untruth. One professional soldier had only three weeks of service covered by the legislation: when he was seconded to Malaya, and he patrolled the backwaters without ever encountering the enemy. By then he had been in the army for nine years, and had reached the age of thirty while resisting all the peer pressure, advertisements, and temptations to smoke – until those three weeks. I contacted him by telephone to confirm it, but could not shake his story.
Sometimes veterans say the wrong thing the first time round, and then get themselves tangled up trying to counter a prior inconsistent story. But even then, it is possible to brazen it out. Yes, said one, I know there are many references on file to my being a non-smoker. I made numerous attempts to quit, and it seems every time I got involved with the Department was during one of those attempts. The prize must surely be given to the man who came out straight and said: I lied. I thought that if I admitted I was a smoker, it would harm my claim. Now that I have discovered it will actually assist me in getting a pension, I have decided to tell the truth. Did he get his pension? Ask yourself: can you be certain, beyond reasonable doubt, that he wasn’t telling the truth the second time round?
Not only does one have to deal with dishonesty from veterans (and their widows!), but also from the advocates employed by the ex-service organisations to assist them. I would not want to leave you with the wrong impression of these advocates. They are ordinary people, and most of them, I suppose, put themselves in the same position as the ethical lawyer, whose job it is to put the best spin on a client’s case, without actually telling a lie, or revealing anything which might harm the claim. Some are scrupulously honest. After I had defeated one veteran at the AAT, one advocate telephoned to congratulate me. He’d known he was a phoney from the start. Another pair of advocates asked my advice on how to “dob in” a client whom they were sure was telling lies.
Unfortunately, there remains a handful of advocates who believe that anything goes as far as getting a client a pension, and only occasionally are they found out. Once an advocate submitted a smoking questionnaire from an ex-merchant mariner indicating that he had started smoking while on a particular ship. Merchant mariners are eligible only for the specific voyages they made outside of the country, and in this case, the dates he gave did not coincide with our records. I therefore picked up the telephone, and asked him exactly when he started smoking. It was some time during the war years, he replied. Was it while he was at sea or on shore? I asked. Could he relate it to a specific voyage? “How on earth would I know?” he responded. “How can anybody remember when he started smoking?” How, indeed? After the conversation had continued in this vein for some time, it became perfectly clear that everything on the smoking questionnaire was fiction. The advocate had simply made it up, and the veteran, already sick and in hospital, had signed it without proof reading it. (This same advocate also signed a smoking questionnaire on behalf of a veteran on the day he died – of dementia.)
Another advocate was more forthright. “Some of these old fellows are too honest for their own good,” he told me. “I told Joe Blow to say that he started smoking during the war, but he refused. He kept saying he started before the war.” Presumably, some of his other clients had fewer scruples about taking his advice.

So, the system is open to abuse. What system isn’t? But, as I pointed out in Chapter 1, most people are honest. How did the decision in Law affect the average veteran? We will start off with the veterans of World War II, because they were the contemporaries of James Law, and because 99% of smokers from that war claim to have started during the war.
The first point to understand – and this will need to be reiterated many times in later chapters – is that the human brain is not a computer. It does not have perfect recall. You have no doubt had the experience of listening to a song after an absence of years, and discovering that some of the words were different from the way you remembered them. Or else you viewed a painting, a scene, or a film a second time, and realised that, not only had you forgotten some details, but your memory had also been false about some of the details, such as colour or shape. Whenever we remember something, the mind has to recreate the event from all the original perceptions of sight, sound, and smell. Every time we do so, there is the opportunity for details to be lost, or reassembled incorrectly. In matters of contention, there is also the subconscious tendency for our memory to morph into a version which supports our position – and all this for concrete events, not just vague trends over time, such as a smoking habit.
The second point is that, in those days, starting to smoke was not a memorable occasion. It was no big deal. Even if a boy’s parents disapproved of smoking – and only a few did – he would still see grown men smoking. He may even have sneaked a couple of fags as a boy, and been punished because he was “too young to smoke”. As soon as grew up, he would enter a workplace and social setting which regarded smoking as normal. Advertisements for cigarettes were everywhere, and on the silver screen he would watch glamorous stars light each other’s cigarettes as part of their courtship ritual. Smoking, in other words, was something grown ups did. It wasn’t a temptation he resisted stoutly until some extraneous pressure, like a war, was put upon him. It was something he just drifted into.
Considering how the Law decision revolutionised the legal landscape, it is remarkable that there has never been a study into whether veterans are more likely to be smokers than their contemporaries who stayed in civvies. However, there are some pointers. According to Quit Victoria, a coalition of government and private organisations set up to help people quit smoking, the first year that reliable prevalence data became available was 1945, at which date 72% of the adult male population of Australia smoked. Such a level is much too high to be explained by the sudden return of newly addicted servicemen. Although a million Australians enlisted at one time or another, twice as many stayed home. Also, many veterans remained non-smokers. Besides, as already mentioned, anyone who follows the popular culture of the interwar years – books, films, and magazines – knows that smoking was the rule rather than the exception. If there was any increase in smoking rates among veterans, it is unlikely to have been more than (say) 10%.
It is a safe bet, therefore, that most of those who started smoking on service would have done so in any case if they had remained civilians. The age at which men normally start smoking – between 18 and 21 – was also the age at which that generation enlisted. Prior to joining up, most of them were working for low teenage wages. For many, their introduction to the military was the first time they had been away from home. But, of course, those who stayed in civvies were also, at the same time, leaving home, setting themselves up independently in their own homes and careers, and joining the general community of peers where smoking was the norm, and cigarettes were almost as readily available as in the services. Therefore, I would say that the veterans are being perfectly accurate when they say that they commenced smoking on service, but for most of them, the military was not the cause of their smoking habit, but merely the setting of various pressures and enticements which applied equally to civilian life. At least, that is what I would say – except for one thing.
Any man who wanted to become an airman had to pass a medical exam a couple of months before he enlisted, at which a quite different form was completed to that required for the army, navy, or the R.A.A.F. ground staff. It was not obviously more comprehensive than other medical forms, but for some reason or other, it contained three questions about the enlistee’s habits: athletics, drinking – and smoking. Driven by curiosity, I once did a survey of a hundred such files which passed my desk. In more than half of them, the veterans were recorded as smokers before they enlisted. Admittedly, there was usually no reference to the amount smoked, so it was open to them to state that they increased their tobacco consumption on service. But that is not what they claimed. In nearly every case, they claimed to have started smoking on service. Many of them have been genuinely surprised when informed of the facts.
I have no reason to doubt their honesty or sincerity. It is just a natural transformation of the memory forty to fifty years after the event, when self-interest is at stake. As the merchant mariner quoted previously said, “How can anybody remember when he started smoking?” And since there is no obvious reason why airmen should be any different from the other members of the defence forces, I thus conclude that this memory failure is general. At least half the veterans who claimed to have taken their first cigarette on service are mistaken.
Contemporary references to smoking habits are frequently encountered on veterans’ medical and hospital files, and from these it becomes clear that there are two other areas where memories are regularly defective. The first is the date a man gives up smoking. One did so as a fiftieth birthday present to himself. Another gave up after a severe illness the year after his marriage. But without such an anchor, how does anyone remember just when he ceased smoking? As the actual date recedes into the past, the tendency is for memory to bring it closer to the present. So, for example, in 2000 a veteran might say that he gave it up in 1980. However, his admission sheet to hospital in 1995 contains the annotation, “Smoking: nil for 20 years.” That would put it back to 1975. Further research reveals that, in 1982, he told a doctor: “Gave up smoking 12 years ago.” Now we are back to 1970. Not infrequently such details are vital, because certain diseases require a certain minimal amount of tobacco consumption, or onset within certain time limits.
To be fair, it should be recorded that many smokers deny their habit to their doctors, because of the latter’s propensity to nag. However, it is hard to see why anybody would tell his doctor he smokes twenty cigarettes a day when the correct figure is thirty. This brings us to the second area where veterans’ histories are regularly false: the amount smoked. The average smoker has a pretty good idea of how many cigarettes he buys, and how often. But if it has changed over a lifetime, how can he possibly remember when it was he started buying a second packet at the end of each day because his consumption had gone up from twenty a day to thirty? Mostly, of course, the veteran’s account must be accepted on the “benefit of doubt”, but where contemporary records actually are available, time and time again they contract the official story. The tendency is to overestimate the quality smoked in the past. Sometimes a veteran provides a complex history of five or six fluctuations over the course of decades. He is no doubt telling the truth as he sees it, but you know it is about as accurate as a peak hour bus timetable.
So much for World War II veterans. What about those of later conflicts? The statements in the above two paragraphs still hold good, but the issue of commencing smoking is more complicated. For the World War, the whole of a veteran’s service, from enlistment to discharge, is covered by the legislation, but for the smaller wars, only the period outside of Australia is covered. It is a credit to most people’s basic honesty that very few actually claim to have started smoking in Vietnam – or Malaya, or Korea, as the case may be. Nearly always, they claim to have started on enlistment. The first batch of Vietnam veterans to enter the system got a raw deal. They were mostly older, professional soldiers who had been in the defence forces, and smoking, for years before they went to war, and their longtime smoking habit was unaffected by it.
However, in less than a decade a younger set of veterans was getting sick and lodging claims, and a consistent pattern began to emerge. Almost invariably they claim to have started smoking when they enlisted, usually at around five cigarettes a day. Then, a year or so later, when they were dispatched to a war zone, what with the stress of war and the ready availability of cheap cigarettes, their tobacco consumption went up to twenty or thirty a day, and remained high after the war. The only difference was how high, and whether and when they stopped smoking. On this basis, most smoking related diseases are now accepted for veterans of this era.
If you stop to think about it, however, a couple of questions should spring to mind. The first is: is it credible? Commencing smoking upon enlistment rings true, especially since the servicemen were usually quite young at the time. (However, even that is open to doubt. These days, when the services are more aware of the hazards of tobacco, the habit is often recorded on the enlistment medical form.) But, apart from that, how can anybody remember, decades after the event, the detailed progression of his smoking habit in the first couple of years? How can he remember when it went from five a day to ten a day, to twenty a day? No-one kept records at the time; no-one considered the issue important.
But even if his memory were accurate, what does it signify? The entire thrust of the claim, the logic by which they are accepted, is that, had it not been for the war, the man’s smoking habit would have remained at five cigarettes a day for the rest of his life. How many smokers do you know who smoke like that? It can be safely asserted, with a confidence close to certainty, that if a young man started smoking on enlistment, his tobacco consumption would have reached twenty or thirty a day before very long. If it took place in Vietnam, it was only because the timing of his overseas service happened to intersect with the normal progression of the habit.
In the original Law case, the courts took judicial notice of the fact that tobacco is strongly addictive, and the addiction very difficult to break – especially in an environment where the drug is readily and cheaply available and socially acceptable, and its inherent dangers little known. If the addiction is the result of war service, then every cigarette smoked from then on becomes a result of service. But there has never been any evidence provided as to how the addiction can be increased.
Under such circumstances, one might have recourse to common sense, and say that a smoker’s tobacco consumption is ultimately conditioned by his body’s need for nicotine. Despite the caveats already mentioned about official smoking histories, two definite trends are evident. In some cases, the smoker develops a greater and greater tolerance to the drug throughout life, and his smoking increases slowly but consistently over the years. The other trend is that, shortly after commencing, he reaches a plateau which satisfies his nicotine cravings. Most commonly, this is about twenty or thirty cigarettes a day – which is why they are packaged in such quantities. After that, his tobacco consumption tends to fluctuate up and down around that level, depending on such factors as finances, availability, and pressure of work. “Stress” can certainly make a person smoke more in the short term, but nobody has ever presented evidence that it can produce any long term change in the level of the addiction.
Despite all this, it is an article of faith at all levels of decision making that any increase in smoking on eligible service is a direct result of service, even if the increase is permanent. This applies even if the veteran was a confirmed smoker prior to service; increases from thirty a day to fifty a day are accepted without question. And the only evidence is the veteran’s say so.

To summarise: the change in the standard of proof, and the actions of Nancy Law completely revolutionised Veterans’ Affairs. Overnight, disability pensions turned into a massive growth industry, with smoking the main engine driving it. At a rough guess, it accounts for about two thirds of all pensions. And the premises on which it is based are essentially bogus. At least half on the successful claims are the result of faulty memories. Even when a veteran did, in fact, commence or increase smoking on service, it was due to circumstances which applied equally to civilian life. In very, very few cases did service actually “cause” the smoking habit.
Even then, we tend to forget, it was still a matter of personal choice. “Look,” one R.S.L. advocate said to me, “I always think they made a mistake in ruling smoking was due to war service. Of course, I argue it at the VRB when I’m assisting veterans, but the fact is, I served in the same battles as they did, and I don’t smoke.”

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