Advisory from Disability Compensation Branch
No 5/99
This is an advisory note only. Disability Compensation Branch and Legal Services Group have agreed this policy view. It is not a Repatriation Commission Guideline or a Departmental Instruction. The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts. It may be subject to change as a result of further interpretation by the Courts of the legislation. Nevertheless it represents a considered view that should be taken into account by all delegates.
BOUGAINVILLE TRUCE AND PEACE MONITORING GROUPS
POSSIBLE EXPOSURE TO CHEMICALS
Introduction
Numerous members of the Bougainville Truce Monitoring Group and the Peace Monitoring Group have lodged claim forms for disability pension and treatment for potential illness arising from possible chemical exposure during TMG and PMG service. The forms state “Members deployed on OP BEL ISI have had the potential to be exposed to numerous chemicals”.
This advice provides paragraphs recommended for use where the claim does not refer to current medical problems. In such cases no investigation is required and no incapacity can be found.
Should any claim identify a diagnosable medical condition, this requires investigation and subsequent determination.
UPDATE ON SUPPORT MATERIAL
Defence has been asked to provide a nominal roll of those undertaking relevant peacekeeping service.
Defence has advised that a two-week roster system, mainly involving Reservist health professionals, has commenced operations on Bougainville. An environmental health officer is assessing the sites with the assistance of independent contractors.
Attached are the instruments determining non-warlike service for the two groups and a recent press release entitled “Bougainville: Health and Safety Concerns” by Minister for Foreign Affairs, the Honourable Alexander Downer.
W.R. Maxwell
Branch Head
Disability Compensation
22 February 1999
THIS LETTER IS ABOUT YOUR DISABILITY PENSION CLAIM
DECISION
The claim for unspecified conditions has been refused - no incapacity found.
REASONS FOR DECISION
Your claim
On (date) your claim for potential conditions (unspecified) was received at the Department of Veterans' Affairs (DVA). Since you are not currently affected by any such condition, no diagnosis is possible.
Service under the Veterans' Entitlements Act
Our records show that you have service from (date) to (date) with the Truce Monitoring Group (TMG) and/or Peace Monitoring Group (PMG) (select appropriate service) in the area comprising Bougainville and Buka Islands and the Papua New Guinea territorial waters surrounding those islands. This constitutes peacekeeping service.
The Law
Under the Veterans' Entitlements Act 1986 (VEA) you are eligible for disability pension and treatment for illness and injury related to that service. The VEA states that a claim must be accepted, if there is a reasonable hypothesis connecting the claimed disability with peacekeeping service.
Reasons for Refusal
The evidence that is relevant to this claim has been considered.
On the claim form you stated that you "have had the potential to be exposed to numerous chemicals”. The Department of Defence has advised that an Occupational Health & Safety inspection report indicated widespread leaching of chemicals into the ground and groundwater from old drums and depots on Bougainville, particularly in Arawa and the copper mine. Department of Defence advice appears consistent with the claimed potential for exposure to chemicals, and the concern you may feel about the possible consequences of any such exposure is understandable.
However, an illness or injury must first be diagnosed before it can be accepted as connected to your service and treatment provided, and there must be some incapacity resulting from the illness or injury before disability pension can be granted. In the current circumstances, where none has yet been identified, it is not possible to investigate connection to service or incapacity. The claim must therefore fail.
Nonetheless, we have noted your concern and opened a personal file in your name. This contains your claim and ensures details of your relevant service and eligibility status are readily available. You may wish to provide a more specific account of your locations during peacekeeping service to be kept on your file for reference. We have also asked the Department of Defence to provide reports on the situation as more becomes known. These will be available to delegates determining any future claims.
RIGHT OF APPEAL
If you are not satisfied with any part of this decision you can ask the Veterans' Review Board (VRB) to review the case. You have to do this in writing. The time limit for lodging an application to the VRB is 12 months from when you are deemed to have received this advice. To gain the maximum benefit of backdating any pension as a result of the review, you should lodge your application for review within 3 months from when you are deemed to have received the advice. Appeals are explained in more detail in the Information Leaflet.
When an appeal is lodged, a report is compiled in which all documents used in the decision making process are copied and forwarded to you, the VRB, and your representative (if you have nominated one). After receipt of this report, if further document copies are required or you wish to view your files, an application should be made through Freedom of Information.
FREEDOM OF INFORMATION
You can apply to see documents on your Veterans' Affairs files. See the Information Leaflet for details.
Yours sincerely
Minister for Defence Industry, Science and Personnel
Veterans' Entitlements Act 1986
Determination of Non-warlike Service
1. I, Bronwyn Bishop, Minister for Defence Industry, Science and Personnel, on behalf of the Minister for Defence, under subsection 5C(1) of the Veterans' Entitlements Act 1986 (the Act), determine that service rendered as a member of the Truce Monitoring Group in the area comprising Bougainville and Buka Islands and the Papua New Guinea territorial waters surrounding those islands during any period on or after 20 November 1997 is non-warlike service for the purposes of the Act.
Dated this 23rd day of December 1997
(signed)
BRONWYN BISHOP
Minister for Defence Industry, Science and Personnel
Minister for Defence Industry, Science and Personnel
Veterans' Entitlements Act 1986
Determination of Non-warlike Service
I, Bronwyn Bishop, Minister for Defence Industry, Science and Personnel, on behalf of the Minister for Defence, under subsection 5C(1) of the Veterans' Entitlements Act 1986 (the Act), amend the determination of non-warlike service made on 23 December 1997 by inserting after "20 November 1997" the words ''and before and including 30 April 1998".
Dated this 13th day of May 1998
BRONWYN BISHOP
Minister for Defence Industry, Science and Personnel
Minister for Defence Industry, Science and Personnel
Veterans' Entitlements Act 1986
Determination of Non-warlike Service
I, Bronwyn Bishop, Minister for Defence Industry, Science and Personnel, on behalf of the Minister for Defence, under subsection 5C(1) of the Veterans' Entitlements Act 1986 (the Act), determine that service rendered as a member of OPERATION BEL ISI II in support of the Peace Monitoring Group in the area comprising Bougainville and Buka Islands and the Papua New Guinea territorial waters surrounding those islands during any period on or after 1 May 1998 is non-warlike service for the purposes of the Act.
Dated this 13th day of May 1998
BRONWYN BISHOP
Minister for Defence Industry, Science and Personnel
MEDIA RELEASE
MINISTER FOR FOREIGN AFFAIRS
ALEXANDER DOWNER
22 January 1999
Bougainville: Health and Safety Concerns
I have received reports about chemicals and possible radiation sources left behind in the Panguna, Loloho and Arawa areas on Bougainville when Bougainville Copper Limited (BCL) abandoned its mining operation there in 1989. These may now be in a hazardous state.
I am concerned about the potential health risk that these materials might pose to people in Bougainville, including Australians and others in the province with the Peace Monitoring Group (PMG), as aid workers or in other capacities. I have raised those concerns directly at the highest level with BCL, which shares them.
Australian officials have been working closely and actively with the parties to the Bougainville peace process and consulting with BCL to determine the state of these materials. This is a difficult task because storage containers and instruments may have deteriorated or have been damaged over the past decade. In addition, due to security concerns, access to the Panguna mine site, where some of the materials may have been stored, is impossible at present. This makes it even harder to assess the possible risks involved.
As a strong supporter of the peace process and as Commander of the PMG, Australia takes very seriously its duty of care obligations to Australian and other personnel on Bougainville. We have therefore also informed the other countries participating in the PMG (Fiji, New Zealand and Vanuatu) about the possible hazards.
At the Government's request, the PMG has made strenuous efforts in the Arawa/Loloho area to isolate and contain chemical sites there and to minimise the risk to the PMG and others. The ADF has also tested the air, water and soil around the Arawa/Loloho area and undertaken a preliminary sweep for radioactivity. Both have shown no contamination, although the ADF is continuing to monitor the situation very closely.
This is, however, a short-term measure and does not cover the former Panguna mine site. The question of a longer-term cleanup now needs to be addressed quickly. This is a matter for the PNG Government, the Bougainville parties and BCL to discuss, as those most directly concerned. Australia stands ready to facilitate their efforts.
These problems underline how essential it is to continue down the path of peace in Bougainville and for all involved to work together. I warmly welcome the progress that has been made so far towards this goal. Australia is committed to continuing to assist the efforts of the PNG Government and Bougainvilleans to achieve this result.
For further information:
Geoff Leach (02) 6277 7500 (Ministerial)
Tony Melville (02) 6261 1555 (Departmental)