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Australian Participants in British Nuclear Tests (Treatment) Bill 2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Australian Participants in British Nuclear Tests (Treatment) Bill 2006
Date introduced:
House: House of Representatives
Portfolio: Veterans' Affairs
Commencement: Royal Assent
To provide for an Act to provide for the testing and treatment of Australian
participants in the British nuclear tests conducted in
From October 1952 to October 1957, British atomic weapons detonation
tests were conducted at
| List
of British Atomic Detonation Tests in |
|||
| Location |
Operation |
Date/s |
Kilotonnes |
| |
Hurricane |
|
25 |
| Emu Field |
Totem |
|
10 8 |
| |
Mosaic |
16 May 1956 |
15 60 |
| Maralinga |
|
|
15 1.5 3 10 |
| Maralinga |
Antler |
|
0.9 5.67 26.6 |
There were also British tests (involving hydrogen bombs) at
The purpose of the Australian nuclear tests was to enable the United Kingdom (UK) to develop nuclear fission bombs and, later, nuclear fusion or hydrogen bombs and the tests occurred with the full cooperation of the Australian Government.
The Explanatory Memorandum sets out who is to be regarded as a nuclear test participant for the purposes of the testing and treatment provided for by the Bill.(4) It is important to note that a participant refers to more than a person who witnessed or was present when the detonations occurred but includes persons involved at the test sites up to 1965, in the case of Maralinga.
There were also six hundred minor trials conducted between 1953 and 1963,
including the testing of bomb components. For example, one series was
designed to determine what would happen to a nuclear weapon in the event
of a transport or storage accident such as a fire. Some of these trials
are claimed to have caused some of the most extensive site contamination.(5)
There is also more detail of these minor trials in the Dosimetry
A summary of the levels of exposure to radiation that could have occurred
during the nuclear testing is provided in Appendix 1 attached to the recently
released Repatriation Commission Cancer and Mortality Incidence
Anecdotal claims by personnel involved are that service personnel were required to line up with their backs to the detonation with their hands over their eyes for the first minute or so and then told to turn around to witness the mushroom cloud of the blast. It is also claimed few wore anything more than shorts and service uniform to witness the blast and it is only those who were considered at risk of radiation who were issued with any protective clothing and radiation dose badges.(9)
Both Australian and British personnel were involved in the tests and included military and civilian participants. Details of the numbers of Australian persons (civilian and military) recorded as present at the British nuclear tests were provided in a press release issued by the Hon. Mr Bruce Scott, MP on 29 June 2001. The Nominal Roll of test participants lists:
The total of 17 023 persons comprises 8 116 service personnel and 8 907 civilians.
More than 20 000 British servicemen took part in the nuclear tests conducted
in
Several inquiries and studies have been conducted by both the
The Australian Ionising Radiation Advisory Council (AIRAC) was asked in September 1980 by the then Minister for Science and Environment Senator the Hon. James J Webster to investigate certain matters related to the British nuclear tests including their effects of radiation fallout, the occurrence of ‘black mists’ and their possible health affects. The report by AIRAC was provided in January 1983(12) and essentially concluded that the tests were conducted within the limits existent at the time and no persons were exposed to any excessive radiation that might lead to adverse health affects in the future.(13)
Arising from concerns about the health of nuclear test participants, a survey was conducted by the Commonwealth Department Health into the health of atomic personnel that was released in 1983.(14) The survey consisted of a health questionnaire survey of all then surviving nuclear test participants and an analysis of the causes of death for non-surviving participants. The aim of the survey was to identify associations between test participation and subsequent illness. The survey did find a correlation between illnesses and test participation and also a higher incidence of some illnesses with increased exposure to radiation through the tests. These instances were mostly ascribed to chance.
In May 1984, the then Minister for Resources and Energy, Senator the
The Kerr Report was heavily criticised by the AIRAC as being ‘too thin’ on professional analysis of the evidence and the AIRAC took the Kerr Report as an attack on their professional conduct and integrity in advising the government on the issues.(18)
Arising from concerns about the impact of the tests in the Kerr Report
and the conflict between the opinions by the AIRAC with the Kerr Report
conclusions, the government in July 1984 appointed
The South Australian government reports questioned the reliability of post epidemiological studies, be they prospective studies, or cross-sectional studies or retrospective case-control studies, due to the very small population of Aboriginal people involved and the lack of any comparable population elsewhere in the community. The McClelland commission report seems to have concluded that these comments/analysis made in the South Australian reports would also apply to nuclear test participants as well, notwithstanding they are a much larger group with a comparable population in the broader community. The McClelland commission report was also critical of the management of the conduct of the tests by the Atomic Weapons Tests Safety Committee (AWTSC) claiming:
The AWTSC failed to carry out many of its tasks in a proper manner. At times it was deceitful and allowed unsafe firing to occur. It deviated from its charter by assuming responsibilities which properly belonged to the Australian government.(21)
A report was commissioned by the Australian Radiation Laboratory (ARL)
into the public health impact from fallout from British nuclear tests
in
In the
More recently, an Australian-born academic working at the
The British Government has announced that a further inquiry is to be
conducted by the National Radiological Protection Board. Also instigated
by the
The process by which the Government monitors the results of studies into
the impacts of the nuclear tests was outlined by
The
The value of further mortality or cancer incidence studies of Australian test participants and the combination of those studies with the NRPB studies should be investigated.
It was largely due to the recommendations in the Kaldor report that the
Government announced a study into the mortality and cancer incidence of
nuclear test participants in 1999.(29) The cancer incidence
and mortality studies studies were released on
Compensation for illness/injuries arising out of participation in the nuclear tests
The
There have been a number of means by which those who participated in the British atomic weapons testing program have been able to claim compensation for any adverse health effects, which they claim to have suffered as a result of the tests. The Explanatory Memorandum attached to the Bill sets out in brief these compensation arrangements.(33)
The Safety, Rehabilitation and Compensation Act 1988 (SRCA), which is administered by Comcare Australia in relation to civilian employees of the Commonwealth and more recently by the Department of Veterans’ Affairs (DVA) in relation to Australian Defence Force personnel, has applied at all times during and since the tests were carried out in the 1950s and 1960s. This means that claims for compensation for illness or injuries claimed to have been instigated by participation in the tests are covered by the compensation arrangements in the SRCA.
The SCRA has since been replaced by the Military Rehabilitation and
Compensation Act 2004 (MRCA).(34) However, the MRCA only
covers military service personnel still in the armed services on the date
the Act received royal assent, being
The Department of Education, Science and Training (DEST) and the Australian Government Solicitor’s office have also been involved in compensation matters relating to the British atomic weapons testing program. Claims under these arrangements involve common law actions.
DVA and the Department of Defence have accepted 25 claims from claimants under the SRCA for services related to nuclear tests, the majority of which have not been related to ionising radiation but were for other (unspecified) conditions. Nine were for the effects of ionising radiation and they have been paid in total $1 047 781.12.(35) There was also some detail provided in an answer to a question on notice in the Senate on 22 August 2001.(36)
The Commonwealth had a ‘Special Administrative Scheme’, which is now closed and it provided compensation for participants in the tests who developed multiple myeloma or leukaemia (other than chronic lymphatic leukaemia) within 25 years of participation in the tests.
There was also an ‘Act of Grace’ scheme jointly administered by the former Department of Primary Industry and Energy and the Attorney-General’s Department. This enabled plaintiffs with common law actions issued and served on the Commonwealth from 1988 until September 1989 to have their cases settled outside of the court system. This provided some redress to plaintiffs who did not have the financial resources to pursue a common law action through the courts.
One of the long-standing hurdles for nuclear test participants (civilian and Defence Force) seeking compensation is that the compensation arrangements detailed above (claims against the SRCA and common law claims) place the burden of proof on the participant through the legal and court system. This makes the process very time-consuming and expensive for any individual claimant. In contrast the Government has ‘deep pockets’ to fund the defence of any claim. The ordinary individual does not have this access, rendering the contest and process very one-sided.
The other concerns expressed by nuclear test participants in pursuing compensation and common law claims arising from participation in the nuclear tests were outlined in the Clarke Review report:
Section 7(1)(37) of the SRCA (and the predecessor s.30 of the 1971 Act) has been applied to claims for disease or death related to exposure to ionising radiation from the tests only where:
it has been established that the member was at a test site at the time of, or after, a test was carried out there;
it has been confirmed that the member was actually exposed to a dose of ionising radiation at the test site; and
the member has suffered from a disease that is characteristic of exposure to ionising radiation.
The major difficulty that atomic test participants have had in satisfying these requirements has been in providing evidence that they were exposed to a dose of ionising radiation. Less frequently, claims have failed because claimants were not at the test sites at the required times (or, if documentary evidence did not record their presence, they were not able to prove that they were there), or because they claimed for conditions not recognised as characteristic of exposure to ionising radiation.(38)
The records of who participated in the tests, and those exposed to ionising radiation (and dosage levels) have their origins in UK Ministry of Defence records and Australian Radiation Laboratory records. Criticisms of these records include: they are incomplete, and do not present exposure to all radiation types.(39) Without a record of exposure to ionising radiation, section 7(1) of the SRCA was considered not to apply. Therefore, claimants were forced to use the civil standards of proof under section 14(40) of the SRCA, with the onus of proof on the claimant applying; that is it is more probable than not that the illness/injury is related to the service. Under this test few claimants have been able to prove exposure to ionising radiation and, therefore, a link between that exposure and their disease.(41)
Frustration in the lack of access to proper compensation has been recently manifest in the considerations by the Clarke Review into veterans’ entitlements which reported in January 2003.(42) The Review received some 160 submissions about the tests, mostly from former Defence Force personnel and a small number from civilian personnel involved in the tests. The Clarke Review’s terms of reference was to generally review outstanding claims for ‘veterans’ entitlements’. However, participants in the nuclear tests are not considered to be ‘veterans’ under the Veterans’ Entitlements Act 1986 (VEA). Notwithstanding this, the Clarke Review was specifically commissioned to examine the nuclear test participation issue.(43)
The majority of the submissions to the Clarke Review urged the classification of nuclear test service as ‘hazardous service’, and, therefore, covered by Part IV of the VEA. A small number of submissions also sought classification of participation in the tests as ‘qualifying service’ for the service pension.(44) If this latter claim was accepted it would basically allow access to the service pension and also to the Gold Card for those aged 70 or more. This was not supported by the Clarke Review and it did not recommend that the nuclear test participation be classified the same as ‘qualifying service’, or war service.
Part IV of the VEA provides for the classification of peacekeeping service for members of the Defence Force. Classification of ‘Hazardous Service’ under Part IV provides for access to the disability pension provided under Part II of the VEA for illnesses/injuries arising out of the service. It also allows for access to the war widows’/ers’ pension provided under Part II of the VEA, to surviving partners of a person whose death is accepted as being caused/attributed to their hazardous service. Such classification also allows access to a health treatment card (White Card) for the medical condition/s accepted as being caused/attributed to the hazardous service. For those with a significant impairment arising from the hazardous service (that is with an impairment of 70 per cent or more), there is also access to the Gold Card providing coverage for all medical conditions.
Hitherto, governments have considered participation in the nuclear tests
in
In this context, it is interesting to note that the name of the Bill refers to ‘nuclear test participants’ and not ‘nuclear test veterans’, being the terminology that is commonly used in the media, in studies and by commentators on this issue. The Government is careful to refer to them as ‘participants’ and not ‘veterans’, as it may be confused with the use of the term ‘veteran’ in the VEA. In the VEA ‘veteran’ refers to a service person with ‘qualifying war service’, so not all old ex-service personal are ‘veterans’. Notwithstanding this, in the community any old sailer, soldier or airman is commonly called a ‘veteran’. This Bill provides for treatment and testing separate to the VEA and re-states the Government’s view that nuclear test participants should not be provided for under the VEA.
As stated above, the Clarke Review did examine the nuclear test service and what would be appropriate assistance by government. In short, the Clarke Review recommended the accreditation of participation in the nuclear tests for Defence Force staff as ‘non-warlike hazardous service’.(46) Governments have for a long period been very reluctant to accredit peacetime military service the same as warlike service or hazardous non-warlike service (peacekeeping service) as defined and recognised in the VEA. Classification of the nuclear tests participation as hazardous peacekeeping service would allow Defence Force staff access to the same benefits under the VEA as for ‘Hazardous Service’ as covered in Part IV of the VEA, which is described in ‘Complaints about lack of recognition of service by nuclear test participants’ above.
Essentially the Government rejected the Clarke Review recommendation to accord Defence Force personnel involved in the nuclear testing with accreditation as being involved in non-warlike hazardous service. It didn’t do this overtly, rather in a general way stating:
The Government also had decided to respond positively to the needs of those affected by the British Atomic Test programme when the outcomes are available of the Australian Participants in the British Nuclear Test Programme – Cancer Incidence and Mortality Study.
The Government will continue to provide special recognition
and comprehensive assistance to those who have served
In keeping with this approach, we have accepted the Clarke Report’s recommendation that there be no change in the incurred danger test for Qualifying Service. However, we reject the view that this test has been interpreted too narrowly.(47)
There was a period from 1973 to 1986 when provisions of the then Repatriation Act were applied to peacetime service of members of the permanent military forces, allowing access to the disability pension for illness and injury and the war widows’ pension for loss of life under the VEA. This originally arose out of pre-1972 election commitments made by the Whitlam Government but this was discontinued with the passage of the VEA in 1986.
There were several submissions made to the Clarke Review to have various
forms of peacetime military service accredited as either warlike or non-warlike
hazardous service under the VEA.(48) Some of these claims included
special submarine operations to the north and west of
However, this extension of access to accreditation as warlike service for mine and bomb clearance post WWII in the South Pacific does show that some peacetime service, which is not during a war period, has been recognised as service for the VEA. But it should be acknowledged that this is exceptional. Generally, governments have not wanted to have peacetime service recognised in the VEA, as it would then diminish the special recognition given to the special service provided for in the VEA. This was again emphasised in the Prime Minister’s press release when announcing the Government’s responses to the Clarke Review recommendations(51)
Governments have considered that illness/injuries/death incurred by Defence Force staff during peace time activities should be covered by workers compensation arrangements, as applies to public servants generally. The most recent affirmation of this was the Military Rehabilitation and Compensation Act 2003.(52)
In releasing the nuclear test participant cancer incidence and mortality studies, the Government announced the extension of coverage for all testing and treatment for all cancers for the participants. The Government announced:
"Although the study found that the rate of some cancers
among the nuclear test participants was higher than in the general Australian
population, it did not find any link between the increase in cancer rates
and exposure to radiation,"
"Despite the lack of association between cancer rates and radiation exposure, the Government has decided that it would be appropriate to provide health cover for nuclear test participants who have any form of cancer."(53)
The Government has decided to provide (for participants in the nuclear testing), coverage for testing and treatment of all cancers. So again the Government has decided not to extend accreditation of the nuclear test participation as hazardous service, as recommended by the Clarke Review. This is consistent with past actions by government to not to provide coverage under the VEA for peace time service.
Coverage for treatment and screening is to apply from
In announcing that the government would provide for free testing and cancer treatment for nuclear test participants, the government emphasised this measure was not an admission that they accepted there was a link between increased cancer rates and exposure to radiation.(55)
The 2006 mortality and cancer incidence study of the Australian participants of the British nuclear tests found that the death rate from cancer was 18 per cent higher in this group than in the general population, and that the incidence of cancer was 23 per cent higher than expected.(56) No link with radiation exposure and cancer incidence or mortality was established. However, the findings of the mortality and cancer incidence study were challenged by veterans and others, notably because of the exclusion from the study of test participants who died before 1982, alleged errors in data in the original hard copy (that were subsequently corrected in the online version) and alleged underestimates of the levels of radiation exposure.(57) Although radiation exposure was not implicated in these higher than expected mortality and morbidity findings, the government;
‘is of the view that support is appropriate for a group that has a clearly defined healthcare need’.(58)
Funded through DVA, this Bill provides for eligible persons to access free cancer treatment and ongoing cancer tests, provided the test does not replicate an existing community wide government screening program. Testing or screening for cancer is seen to be of benefit because it is assumed that the person tested will benefit from early diagnosis through early access to treatment. However, there are risks and potential harms to cancer testing. Some cancer tests, such as the prostate specific antigen (PSA) test for prostate cancer are not considered reliable, and can result in further invasive and potentially damaging procedures being undertaken. The Cancer Council has expressed particular concern over the negative effects of unnecessary testing for prostate cancer in asymptomatic men:
testing well men for prostate cancer exposes them to tests that can cause harm and treatment that may not offer long-term benefits but may leave them with side effects such as impotence and incontinence.(59)
Therefore, the Cancer Council advises that where screening is initiated by the health system, individuals invited to participate should be informed, prior to any testing, of potential adverse effects as well as the potential benefits.(60)
In Australia cancer testing for individuals is already subsidised under pathology arrangements through Medicare, provided the patient is referred by a registered medical practitioner and provided the test is considered ‘clinically relevant’(61). Most services are bulk-billed.(62) The Health Insurance Act 1973 specifically excludes payment of Medicare benefits for community-wide screening programs, except where Ministerial direction allows (as in the case of the Pap test for cervical cancer).(63)
Testing for cancers already covered by community-wide screening programs is specifically excluded under this Bill. Community-wide free cancer screening is provided for under the Public Health Outcome Funding Agreements (PHOFAs) between the Commonwealth and the States.(64) Community-wide free screening is defined by the Cancer Council as:
the application of a test to a population which has no overt signs or symptoms of the disease in question, to detect unsuspected disease while a cure is still possible.(65)
The community-wide screening programs that are currently available are:
the Breastscreen Australia Program, which funds biennial mammographic screening for women aged 50-69 years,(66)
the National Cervical Screening program which funds biennial pap tests for cervical cancer for women aged 18-70, and.(67)
the National Bowel Cancer Screening Program (NBCSP) has recently commenced
in
The staged rollout of the NBCSP is to allow for the States to prepare
for an expected increase in demand on publicly funded services (such as
follow-up colonoscopies in public hospitals for un-insured patients).
Initially only people turning 55 or 65 years of age between
Concerns have been raised that the NBCSP may increase the burden on public hospital services (such as increasing demand for follow-up colonoscopies in public hospitals for un-insured patients), and lead to delays in timely treatment.(70) If these concerns are founded, then nuclear test participants who are referred to undergo bowel cancer screening through the NBSCP (especially those who are uninsured) may face delays in accessing treatment. Such delays are unlikely to be experienced by those nuclear test participants who are ineligible for NBSCP but eligible for bowel cancer tests under the provisions of this Bill, because the tests and subsequent treatment (including in private facilities) will be funded by DVA. To address this potential discrepancy in equitable access to treatment services, the definition of testing in s 4(1) could be amended so that the requirement that testing which replicates an existing community wide government screening program is not included, is removed.
The Explanatory Memorandum estimates the financial impact of the Bill to the Commonwealth at $15.8 million over four years.(71) However, estimating the cost of cancer testing and treatment is complex, because treatment regimes often involve a mix of surgery, chemotherapy, radiotherapy, and in future, possibly gene therapy.(72) The direct cost of cancer is lower to the health system than for many other diseases, including circulatory, respiratory, digestive, mental and musculoskeletal diseases. The total cost of cancer to the government in 1993-94 was around $2 billion, or just 6 per cent of total recurrent health expenditure.(73) Most estimates of the cost of cancer treatment relate mainly to inpatient costs, that is, treatment in hospital, which in a public setting are largely borne by State/territory governments. However, it has been noted that there has been a trend away from inpatient treatment toward community-based care for cancer, an area where the Commonwealth meets most of the cost.(74)
Item 4 in Part 1 sets out the definitions that are used in the Bill.
Item 5 sets out who is to be regarded as a nuclear test participant for the Bill and also the areas to be regarded as nuclear test areas.
Item 7 sets out who is eligible for treatment under the Bill. Essentially the person needs to be a nuclear test participant as set out in Item 5 in Part 1 and an Australian resident. A person is not entitled to treatment if eligible for treatment coverage under the VEA or the SRCA, or the Administrative Scheme set up by the Commonwealth government to provide for nuclear test veterans. Item 10 provides that it is to be the Commission who can determine claims refers to the Repatriation Commission as set out in section 179 of the VEA – see Item 4 in Part 1 of the Bill.
Item 12 empowers the Commission to approve treatment. Item 13 allows the retrospective approval of treatment for up to 3 months prior to a claim for treatment approval. Item 14 removes from the Commission the obligation to provide treatment or the right to access to treatment for an individual other than that approved by the Commission under the Bill.
Item 16 empowers the Commission to set out in writing the treatment principles that are to apply under this Bill and that they are binding on the Commission. Item 16 also empowers the Commission itself to modify the treatment principles without amendment to the Bill in the Parliament. Any modifications to the treatment principles have to be approved by the Minister in writing. Such an approval is a legislative instrument.(75)
Like Item 16, Item 17 empowers the Commission to set out in writing the principles for private patient treatment and also for the Commission to change these principles without having to amend the Bill in the Parliament. Any modifications to the treatment principles have to be approved by the Minister in writing. Such an approval is a legislative instrument.(76)
Item 18 empowers the Commission to set out an approved pharmaceutical scheme and to modify such a scheme after approval in writing by the Minister. Such an approval is a legislative instrument.(77)
Item 19 sets out the power for the Commission to provide for travelling expenses to access treatment provided under the Bill and Item 20 allows for the advances of treatment expenses. Item 21 requires a claim to be made for the provision of treatment expenses and Item 23 empowers the Commission to determine travel expenses claims.
Division 1 in Part 4 empowers the Commission to review its own decisions made under the Bill.
Division 2 in Part 4 empowers the AAT to review decisions made by the Commission under the Bill. This means if a person is not satisfied with a decision by the Commission or a review of a decision by the Commission they can appeal to the AAT.
Item 30 prescribes that the Commission has responsibility for the application of the Bill subject to the control of the Minister.
Division 2 in Part 5 of the Bill contains the normal and usual information access and information obtaining powers for a department, or agency required to process claims. These powers only extend to that which is necessary for the determination of the claim.
Item 37 contains standard offence provisions attached to legislation governing the lodgement of claims for assistance and knowingly providing false or misleading information. Items 38 to 44 provide provisions to ensure that there is no misuse of powers and practices associated with servicing under the Bill by medical practitioners or medical service providers.
Division 4 provides items in the Bill to allow the recovery of amounts obtained by way of false or misleading statements. Item 44 provides for the recovery of amounts overpaid under this Bill from ongoing payments provided under the Bill.
The history of claims about adverse health reactions and deaths suffered
by nuclear test participants goes back many years, far longer than the
first studies and reports undertaken in
Governments have consistently said that the redress for nuclear test participants is available through claims for workers compensation under normal workers compensation arrangements. However, for many, this is a prohibitively costly, time consuming and exhausting process, where the government choses to contest a claim. The low number of successful claims made against the government via the workers compensation route has been a source of frustration to affected nuclear test participants.
In effect, this Bill does little to address the long-standing issues of recognition and compensation for the ill effects claimed to have been suffered by the nuclear test participants but does provide assistance in identifying cancers and for treating cancers.