DESEAL/RESEAL BOARD OF INQUIRY
CLOSING ADDRESS OF COUNSEL ASSISTING - 28 MAY 2001
of the Inquiry
- Mr President
and Members of the Board, we will now make our closing address. The address
has been substantially provided to you in writing and forms part of lengthy
written final submissions which have also been provided to you. The Administrative
Inquiries Manual states that it is not our role to present a case to you
nor to attempt to influence your findings.1 The
Manual recommends that there should be submissions on the following topics:
The categories of evidence and any special aspects of particular evidence
that the Board must decide;
facts have been proved by the evidence;
facts are proved;
appropriate the reliance that may be placed upon a view of the scene of
relevance of Rules of Evidence;
treatment of affected persons;
Terms of Reference;
A review of the evidence.
- We will
cover those matters, however, as the categories tend to overlap, the address
does not follow the form or order of the matters just mentioned.
- As mentioned
in our opening, the genesis of this Inquiry can be traced to the Report made
by retired Group Captain Paul Schumak in January 2000 to the Commanding Officer
of the Air Maintenance Squadron and to the Officer Commanding 501 Wing at
RAAF Base Amberley. The Report related to the health of a number of Airmen
who had been engaged in the work of desealing and resealing the lining of
fuel tanks in F111 Aircraft. You will recall from the evidence that Doctor
Schumak reported that the health of those Airmen might have been adversely
effected by the chemicals they used in the Deseal/Reseal process. As a result
of this Report there was an initial suspension of the spray seal, the appointment
of an investigating officer and the subsequent appointment, by the Chief of
the Air Force, of the Board, on 19 July 2000.
- As explained
in the opening address a considerable amount of work was done prior to the
commencement of the public hearings on 19 March 2001. There has been research
into approximately 1.5 million documents covering events over the past 27
years, from which research some 100,000 pages of documents have been entered
into the Board's Database. It is estimated that over four hundred persons
might have been exposed to chemicals used in the Deseal/Reseal process over
the past quarter of a century. A considerable amount of time prior to the
commencement of public hearings was spent in seeking to identify and locate
those persons and take statements from them. In the event some six hundred
and fifty witness statements were taken. In our opening we invited members
of the public, including concerned former servicemen to come forward and let
us, as counsel assisting know of any additional relevant evidence or matters.
We note that a number of ex-servicemen have done just that and we have endeavoured
to respond appropriately to their expressed concerns.
- It was,
of course, not practicable to call all persons who had given statements. Furthermore,
as we said in our opening on 19 March:
regard to [the changes to the ADF Organisation and in particular the place
of the Fuel Tank Repair Section in it and the Occupational Health and Safety
organisations with responsibilities to that Section] it appeared to [us] that
little, if any advantage was to be gained from an historical analysis of how
a now outdated system failed and what as a matter of perfection should have
occurred... in the circumstances the view taken was the ten paradigm [issues]
should be examined and benchmarked against the current Occupational Health
and Safety Regime, to enable an assessment to be made of whether the framework
and the system currently in place is effective, and if not, where shortcomings
can be identified."
- It will
be recalled that the ten paradigm issues were:
Health and Safety Audit and Review;
Human events are not so easily categorised, however, and the course of the
evidence has shown these categories to have been of diminishing relevance.
of the evidence contained in the witness statements, all of which have been
given on oath or affirmation, as well as all of the documents tendered, are
now formally before the Board as evidence and, in the manner we will describe
later, can be taken into account by the Board in its deliberations. However,
as indicated in the opening, Counsel Assisting considered that a representative
sample of the evidence contained in the statements should be given orally
and that has occurred. Oral evidence was taken over fifteen days (including
28 February when Group Captain Sergeant's evidence was taken) and taking into
account the opening day there have been fifteen days of hearing since the
Inquiry opened publicly on 19 March 2001. The Board has heard evidence from
a sample of witnesses at three levels: - ground crew, supervisors, and managers
in relation to the First Deseal/Reseal Program, the Wings Program and the
Spray Seal Program, and we will seek to summarise aspects of that evidence
shortly. As we will explain shortly, the Board is, in our submission, now
in a position to treat the oral evidence as the paradigm from which, together
with the other evidence tendered in the Inquiry, conclusions about systemic
deficiencies may be drawn, and on the basis of which the topics in the terms
of reference may be answered.
- As will
be noted later, the Board also heard expert evidence both of current and historical
interest as well as evidence from civilian officers in the Department of Defence
particularly the Defence Safety Management Agency in relation to the current
systems used in assessing and then addressing chemical and other hazards of
the type which appeared in the Deseal/Reseal Programs and continue to appear
in the spray seal program.
- We now
turn to the Report. The Administrative Inquiries Manual requires you, Mr President,
"to prepare a written Report signed by each member of the Board setting out
the Board's finding and its recommendations. The transcript of oral evidence
given to the Board and all of the evidence before the Board is to be forwarded
with the Report." The Manual goes on to say "where the Members of a
Board of Inquiry cannot agree on a Report, the President is to arrange for
each member individually to submit a Report setting out their findings and,
.recommendations. The Report.is to be submitted to the appointing authority."
It is appropriate, then, to mention the possibility of disagreement amongst
you. Of course we do not do so to encourage disagreement but to emphasise
the importance of the individual views of each member. Each of you is responsible
for the Board's ultimate findings and recommendations and each of you must
conscientiously develop your own thoughts and come to your own decisions.
You will no doubt find, if you have not already found, some differences of
opinion amongst you. Those differences should be respected and, if we may
say so, calmly and objectively debated, and if possible, resolved.
- Mr President
and Gentlemen, you are the sole judges of the facts. Accordingly we will say
something about the finding of facts. Of course, we are conscious of the knowledge
and expertise of the President in this regard, nevertheless it is appropriate
to make some brief submissions on this point. First, you must decide on your
findings according to all of the evidence. This does not mean that you must
accept all of it, but it does mean that you must consider all of it that you
propose to rely on. Given the extensive quantity of evidence in this case
you are entitled to rely on accurate summaries of the evidence prepared for
you by staff assisting the Board. Having considered the evidence, you must
decide which you accept and act on and which you do not. Now, in making the
decision about which evidence to act on, you will be guided firstly by relevance
of the evidence to the Terms of Reference, which define your task.
you need to bear in mind that the evidence before you is in different categories.
First, there is the oral evidence, where you have been able to see and ask
questions of particular witnesses and so assess their demeanour. Pausing here,
we have endeavoured to call all those persons whom we thought could give necessary
and relevant evidence bearing in mind the approach outlined in the opening,
and that expressed from time to time by the Board. Nevertheless, even now,
if the Board wishes us to call further witnesses to provide further assistance
to the Board in performing its functions, that should be indicated so that
the possibility of doing so could be investigated.
there is the evidence comprised in the witness statements or expert reports
where you have not had the advantage of being able to see and ask questions
of particular witnesses.
there is the documentary evidence contained in the exhibits. These fall into
various sub-categories. So, for example:
are photographs of places and of things such as personal protective equipment.
are government records containing records of decisions or procedures.
There are medical records.
to the oral evidence the following things should be borne in mind. The first
is that, in reading the transcript of evidence, it is the answer to a question
not the question itself that is evidence. Secondly, where a witness has been
invited to speculate, and has given a speculative answer in response, you
ought critically to evaluate that speculative response before relying upon
it. Having said all of that, the weight you accord a witness's testimony is
entirely a matter for you.
when acting upon the evidence you are effectively judges and accordingly you
must act only on the evidence, and according to reason, excluding from your
mind sympathy or other emotion such as antipathy to an individual or an institution.
On the other hand you can take into account your experience and expertise
in your assessment or appreciation in the evidence. Common sense will also
play an important part.
- In some
aspects of this case you may find that the evidence proves something directly,
for example where a witness testifies that he or she personally observed something,
and you accept that this recollection is accurate. In contrast, you may also
find a fact proved based on inferential reasoning. To give a simple example
of this process, if you were to receive evidence from one witness that person
'X' was in Sydney at midday and from another witness that person 'X' was seen
at 3.00 pm on the same day in Melbourne, you would be entitled to infer that
that person travelled by aeroplane. In the absence of anything further however
it would be pure speculation to find as a fact that person X travelled on
Qantas - that is because there is a difference between inferring the fact
-which is permissible - and merely speculating that the fact existed -which
brings me to Defence Inquiry Regulation 50 which states that "the Board
is to conduct its Inquiry without regard to legal forms, is not bound by any
Rules of Evidence and may inform itself on any matter relevant to its inquiry
in such manner as [it] thinks fit."
the Board is not bound by the rules of evidence you should be careful about
accepting hearsay evidence, that is, evidence of a statement made to a witness
by a person who is not called as a witness when the object of the evidence
is to establish the truth of what is stated by the person who is not called.
A frequent objection to such evidence is that it may be unreliable and that
there is no opportunity to cross-examine the maker of the relevant statement.
Although the hearsay rule has been relaxed somewhat where evidence has a high
degree of reliability, or where the evidence is of a representation of the
third person's health, feelings, sensations, intentions, knowledge or state
of mind (when it may not be hearsay at all), hearsay evidence should be treated
the absence of binding rules of evidence does not mean the Board can make
findings based on, for example, assumption or logically self-contradictory
I address the question of onus of proof. The onus of proof for the Board before
it can find a fact existed, is the civil onus - the balance of probabilities
- that is to say whether something is more likely than not to have occurred.
But there is a gloss on this, and it is that where a finding would affect
a person's or an organisation's reputation, or otherwise adversely effect
them, you should act only on evidence of sufficient weight and compulsion
which is commensurate with the seriousness of the consequences which might
follow from the finding. As was said by Sir Owen Dixon in Briginshaw -v-
satisfaction is not a state of mind that is attained or established independently
of the nature and consequence of the fact or facts to be proved. The seriousness
of an allegation made or the gravity of the consequences flowing from a
particular finding are consequences which must affect the answer to the
question whether the issue has been proved to the reasonable satisfaction
of the Tribunal. In such matters, a reasonable satisfaction should not be
produced by inexact proofs, indefinite testimony or indirect inferences.
- A very
important legal rule is that of natural justice or procedural fairness. Among
other matters, in this context it requires that a person whose interests are
likely to be affected by a decision of the Board has a right to be heard,
at least by being given the opportunity to make submissions in writing.
- To take
an extreme example, and one which ought not arise in this Board, if you considered
that a witness had deliberately lied in his testimony to you and you
proposed to make that finding in your Report, it would be a serious legal
error for the possibility of that finding not to have been squarely put to
the witness by the Board or by Counsel Assisting. To take a less dramatic
example, if the Board were to conclude that a current or former Defence member
had been derelict in his or her duty then similarly that allegation would
need to have been put to them in order for a finding in those terms to have
rules of natural justice or procedural fairness need, in this case, to be
considered in the light of the President's ruling on 28 February 2001 on an
unsuccessful application by Counsel for a potentially affected person to be
heard. On that occasion, Mr President, you said this:
breadth of the Board's inquiries will extend over a range of issues and an
extensive period of time. The material made available to the Board so far
in the form of a discussion paper points to ongoing failings at a managerial
level to implement a safe system of work and co-ordinate processes within
a complex organisation. The incidence of reported workplace transgressions
are numerous and it appears consistent.. over a period of some 27 years. The
Board's investigation has lead to a preliminary view that much of that which
requires close scrutiny concerns systemic issues. At this point it is considered
that given [that] any transgressions . have occurred over a period of 27 years
there would be little utility in closely examining all of them particularly
as many persons have now left the Service. Such detailed examination would
not assist the Tribunal as it understands the issues at this point in considering
remedial action, finding out what happened and meeting the other requirements
of the Terms of Reference."
Board concluded that "at this stage of the proceedings and in the context
.outlined..none of the applicants is an affected person". Accordingly
those persons were not given leave to be dealt with as affected persons. Later,
when an application was made after the opening of the case for another person
to be treated as an affected person, the application was deferred by the Board
on the basis that it could be renewed at any time (and in relation to any
person) by a member of the affected persons team. No such application was
- In the
result, procedural fairness would require you, if you are proposing to make
findings against any person, at a minimum to indicate to them the critical
comments on their conduct that you contemplate making together with any relevant
evidence on which you would base that possible conclusion, and then give those
persons a suitable opportunity to respond, initially at least in writing.
of Reference and the Evidence
- I have
said something about conflicts in the evidence. On the approach the Board
has taken up to now it may not be necessary to resolve conflicts in the evidence.
For example there is a conflict in the evidence on the question of whether
personal protective equipment was or was not worn, or was or was not required
as a matter of practice to be worn, at particular times during the Deseal/Reseal
process. It would be open to the Board to conclude that there is substantial,
although not undisputed, evidence that PPE was not always worn and to proceed
on the assumption that this was so assuming that the Board does not consider
it necessary to criticise any individual.
Reference Explained and Addressed
- We have
prepared a schedule setting out in a summary fashion what the evidence discloses
in relation to each term of reference. With that as an aide memoire, I propose
to make some remarks on the evidence. Given the large quantity of evidence
it is not a comprehensive summary; rather it attempts to draw attention to
critical evidence on key issues arising under the Terms of Reference.
The Four Phases
Terms of Reference in paragraph 1 direct the Board to inquire into the four
phases of the deseal/reseal and spray seal programs. The first, third and
fourth phases were carried out on Commonwealth property by Commonwealth employees.
In contrast, the second deseal/reseal program which took place in the late
1980s and early 1990s was conducted by Hawker De Havilland (Victoria) Pty.
Ltd., a private corporation, independent of the Commonwealth. The early investigations
on behalf of the Board indicated that there were no systemic lessons to be
learned from this program alone which were not to be learned from the other
programs. Furthermore, Hawker De Havilland used its own workforce to conduct
the work, it had its own publications dealing with quality control and occupational
health and safety, and it has provided a standard form of indemnity to the
Commonwealth. In these circumstances the decision was made to call oral evidence
dealing with the three other phases of the deseal/reseal spray seal programs.
Furthermore, following liaison with the solicitors for Hawker De Havilland,
the company did not seek leave to be treated as an affected person. In the
circumstances, in our submission, there is no need to make findings in relation
to compliance by Hawker De Havilland with its procedures,( HdH would be happy
to stop at this point) nor to the very limited extent they were applicable,
with Air Force procedures.
However, in contrast there has been a close focus, both in the investigative
work prior to the commencement of oral evidence, and in oral evidence itself,
on the remaining three phases which, to recapitulate, are:
first deseal/reseal process in the late 1970s and early 1980s;
wing tank procedures in the last 1980s and early 1990s; and
spray seal process conducted since 1996."
Terms of Reference Require
- As was
explained in the opening, WCDR Secker was the principal Investigating Officer
under the Defence (Inquiry) Regulations investigating the spray sealing
practices. Essentially, the Inquiry was overtaken by, and its researches subsumed
in, the Board. WGCDR Secker's reports, along with the material he collected,
has therefore been made available to the Board. Furthermore, WGCDR Secker
chose to give oral evidence shortly before Easter this year before the Board,
and the Board then had an opportunity to question him about his recommendations.
Terms of Reference require the Board to identify, investigate and report on
matters set out under four headings, namely:
the Terms of Reference generally speak for themselves, we make the following
submissions about them.
- It should
first be noted that the Chief of Air Force has amended paragraph 3A(1) of
the Terms of Reference so that it will read that the Board is to identify,
investigate and report on "each of the chemicals used in DR procedures
(the chemicals), the chemical management systems and details of manufacturers
and/or the suppliers of such chemicals". What has been deleted is the
reference to the acquisition of the chemicals. There are two main reasons
for this change. First, there has been little, if any, information uncovered
concerning the acquisition of the chemicals, particularly in the earlier programs.
Secondly, the view was taken that this aspect of the Inquiry, which had already
taken up considerable time and resources to little effect, was of relatively
remainder of the topics for inquiry under the heading "General Details" relate
to the chemicals used (paragraphs 2 and 4), the personal protective equipment
(paragraphs 3 and 5), the regulatory framework under which the work was to
be conducted (paragraphs 7, 8 and 9), how the work was done and whether it
met those regulatory requirements (paragraphs 6 and 10), the state of medical
and scientific knowledge concerning the chemicals and their use (paragraph
1), systemic issues required to be addressed by the Air Force and the Australian
Defence Force (paragraph 12) and whether further inquiry for the purposes
of administrative action being taken is appropriate in relation to any person.
aspect of the terms of reference essentially required identification of :
the nature and details of compensation claims resulting are to be listed.
RAAF or ADF personnel (or individuals contracted by the organisations,
or their surviving next-of-kin) affected;
reported health complaints in-so-far as they are thought to arise out
of the deseal/reseal program; and
resulting preventative action.
and perhaps most importantly, the Board is to recommend what action, if any,
should be taken to prevent a recurrence of the apparent incidence of adverse
effects on ADF and contracted personnel arising out of the deseal/reseal process.
Next, any other matters deserving investigation are to be identified and,
as secondary matters, what systemic inadequacies which, albeit perhaps not
causative of any injury to ADF personnel, ought nevertheless to be improved,
and, finally, whether any environmental matters arising ought be further examined
by appropriate authorities.
turning to the Terms of Reference in detail and what the evidence discloses
in relation to those terms, we now seek to answer, in a necessarily generally
way, the question "what happened?"
of the Evidence by Reference to the Terms of Reference
heard in the opening in some detail a description of the nature of the deseal/reseal
process. We then described the work as "dirty, mundane and, when coupled with
the confined space activity associated with executing the works..a generally
undesirable task and one for which volunteers were not readily available".
The oral evidence the Board has heard allows it confidently to come to those
is also considerable, although not unchallenged evidence, that personal protective
equipment was not always used, sometimes because it was too uncomfortable
in the climatic conditions, and sometimes because it was too constricting
to be worn in the confined spaces where the work was done. While people were
admonished on occasions for not wearing appropriate PPE and, in very rare
cases, were charged, it seems quite clear that there were many, many, instances
of failure to wear the prescribed PPE.
you now know that the PPE was often unsuitable; for example, the protective
suits were not impervious to all of the toxic chemicals.
quite often the degree of risk was not known to the ground crew or, indeed,
their supervisors and on occasions ground crew were given false reassurances
that the chemicals were not toxic or unsafe at all or were not unsafe when
used with the PPE provided.
when the ground crew and other workers presented to the medical wing at Amberley
with symptoms of ill-health, or indeed discernible signs of ill-health, they
were told that the medical conditions were not caused by the deseal/reseal
process or the chemicals there used.
enough, however, there are many former, and indeed some current, ground crew
and other workers who believe their health has been badly affected by the
deseal/reseal process, and certainly there is some powerful circumstantial
evidence that former ground crew and other workers involved in the deseal/reseal
process suffer from a high incidence of conditions known to be caused by the
toxic chemicals. The link, however, is not yet conclusively proved. That,
of course, is the province of the Department of Veterans' Affairs study which
ought to provide the answer to the question.
however, the evidence seems to have amply justified the appointment of the
Investigating Officer, this Inquiry and, indeed, the DVA inquiry.
notable fact is that the complaints made by the ground crew and other workers
over the years seem not to have got to the attention of senior officers when
they should have.
- In summary,
there have been many systemic failures in the RAAF organization over a period
of a quarter of a century. The details are contained in the written submissions.
- A significant
aspect of the Board's function is to make recommendations which, if acted
on, ought to prevent a recurrence of these failures. Accordingly, we now turn
to the individual terms of reference and seek to summarise the evidence in
relation to each term. Again, what we say here is underpinned by more detailed
written submissions which, for example, contain the references to particular
items of evidence.
(1) The chemicals used
in the DR procedures..the chemical management systems and details of manufacturers
and/or the suppliers of such chemicals.
or not the chemicals are toxic and, if so, the toxicity of the chemicals used
in the DR procedures and their general effect upon personnel exposed to the chemicals
and the extent of exposure necessary to have any adverse health effect.
A sets out in detail the chemicals used in programs. [Overhead to be displayed].
It will be observed that some of the chemicals were common to all programs,
notably MEK (a cleaner/solvent), PR148 (a primer) and PR1750 (a sealant).
In summary, for the first deseal/reseal program the desealants SR51 and SR51A
and the cleaner/solvent ED500 were acquired directly from El Dorado Chemical
Company, whereas the remainder of the chemicals were acquired through the
normal RAAF acquisition system. All of the chemicals bar those supplied by
El Dorado were managed by the RAAF Chemicals Management System, and all of
the chemicals used had a material safety data sheet (MSDS) with manufacturers'
instructions. The precise details are set out in the written submissions.
items of personal protective equipment used in the deseal/reseal procedures, the
PPE management systems, the manufacturers and the suppliers of such PPE.
- A number
of reports on this topic were commissioned by the Board and in turn these
were summarised by Mr. Stefan Danek from the Defence Science & Technology
Organisation in his oral evidence given on 28 March this year. We will not
now repeat the very detailed evidence he gave on that occasion. In his evidence,
however, Dr. Danek identified a number of chemicals used in the D/R process
which were both toxic and which produced a significant health risk for ground
crew who may have inhaled some of the chemicals, or absorbed it through their
skin, either because no, or no adequate, PPE was worn. Mr Danek noted that
the risks were significantly exacerbated, in relation to inhalation, in confined
spaces such as fuel tanks. Dr. Danek also indicated possible adverse health
effects which ranged from:
acute, such as irritation, respiratory distress, nausea and nervous
chronic, such as dermatitis and possible ulceration, to
systemic, such as serious effects on the liver, kidneys, respiratory,
nervous or cardiovascular systems.
- A final
report from Mr. Danek dealing with additional matters raised with him by the
Board during the hearings on 28 March has been provided.
nature, extent and adequacy of work methods, instructions and training, including
technical instructions provided by the manufacturers and/or suppliers relevant
to the application of the chemicals used in the DR procedures together with the
nature, extent and adequacy of instructions, instruments and orders provided by
the RAAF, if any, concurrent with or further to the suppliers' and/or manufacturers'
instructions from time to time.
B summarises the PPE used in the spray seal and the second deseal/reseal program
and lists the suppliers in relation to the spray seal.[Overhead] For the earlier
programs, it was more difficult comprehensively to identify all of the PPE
used and often not possible to identify the manufacturers or suppliers - so
it may not be possible to make a finding under this term, at least for all
periods of the D/R process. The PPE management systems topic is dealt with
nature, extent and adequacy of work methods, instructions and training, including
technical instructions provided by the manufacturers and/or suppliers relevant
to PPE used in the DR procedures, together with the nature, extent and adequacy
of instructions, instruments and orders provided by the RAAF, if any, concurrent
with or further to the suppliers' and/or manufacturer's instructions from time
- The evidence
on this topic has been analysed in two expert reports in particular, namely
the report on the toxicology of deseal and reseal chemicals by Professor Connell
and Dr. Miller, and also in the reports by Mr. Danek. Broadly speaking, the
extent and adequacy of instructions and technical instructions relevant to
the application of chemicals in the deseal/reseal process improved over time.
it came to be understood that the chemicals used in the deseal/reseal and
later the spray seal processes were considerably more toxic to those using
them than had initially been thought. This later understanding is to be contrasted
with, for example, the advice given to ground crew in relation to SR51 - the
desealing fluid using in the first and second deseal/reseal programs. It appears
that the material safety data sheet provided by the manufacturer of SR51 understated
the toxicity of SR51 and understated considerably the necessary PPE. The United
States Air Force was more cautious in its approach to handling the SR51.
- The Materials
Research Laboratory within the Defence Science & Technology Organisation was
then asked to provide an opinion on the appropriateness of SR51 and, in this
regard, the safety measures needed to be taken when in proximity to SR51 solution
or its vapour. Dr. Brenton Paul - then and now a senior scientist in the DSTO
- headed up the MRL task group in this regard. He provided a statement and
gave oral evidence on 2 April in this Inquiry. His evidence was that, as a
chemist, he was not giving an opinion on the appropriate PPE (at transcript
page 384.7) but, nevertheless, he advised the Air Force to err on the side
of caution and follow the US Air Force recommendation.
- As already
noted, over time the extent and adequacy of instructions provided by the manufacturers
and suppliers of the chemicals urged greater and, in the light of subsequent
scientific knowledge, more appropriate use of PPE. The Air Force did not add
to those instructions, although, by the use of Air Force Publications, it
adopted those instructions.
work methods and practices applied by personnel (ADF or otherwise) and training
undertaken from time to time in executing the DR procedures.
the RAAF did not supplement what was provided by the manufacturers in this
regard. Furthermore, the PPE was not tailor-made for the specific work environment,
so that the instructions were generic only. Very little has been discovered
of ad hoc instructions from manufacturers or suppliers about the use of PPE
and, similarly, very little has been discovered in relation to the involvement
of manufacturers in work methods, instructions or training in the use of PPE
specifically focused on the deseal/reseal processes. It may, therefore, be
that the Board is unable to make any findings under this term.
(8) All Defence instructions,
instructions, instruments and orders with respect to the use of the chemical and
PPE in the DR procedures.
occupational health and safety approvals, processes, management structures, procedures,
training, equipment, personal protective equipment and workplace environment in
force or implemented concerning the DR procedures from time to time, including
any hazard identification, risk assessment and consideration of appropriate control
- In the
opening we identified in some detail the RAAF hierarchy of instructions and
we do not repeat them now. Generally speaking, the high level documents such
as the Air Force publications or the Defence Instructions (Air Force)
deal with what was to be achieved, whereas Bench Level Instructions described
how the particular processes were to be performed - often attaching detailed
has been detailed evidence summarising all of these documents in the discussion
paper and oral evidence of the work methods and practices. The nature of the
task was, similarly, summarised in the discussion paper, as were the general
work practices. What is controversial, and this is dealt with later, is the
extent to which required procedures were followed.
- As far
as training goes, there was a clear training requirement that personnel working
on deseal/reseal operations were to be instructed as to the toxicity and pollution
hazards particularly in relation to SR51. After the conclusion of the first
program, as late as 1986, manuals dealing with safe work in a confined space
were produced for the first time. Later still a confined space entry course
was introduced by the RAAF as a prerequisite for FTRS ground crew - this now
takes five days to complete.
Defence instructions, instruments and relevant orders concerning use of chemicals
and PPE are comprehensively listed in the discussion paper, and in the written
final submission, and we do not repeat them here.
Commonwealth compensation legislation that applied during relevant periods.
regulatory regime for safety management in the Australian Defence Organisation
has progressed considerably in the period of concern to the Board. For example,
the current position is set out in the attached table [Overhead] which makes
reference to the statutory requirements of the Occupational Health & Safety
(Commonwealth Employment) Act, the Australian Defence Organisation Safety
Policy Manual known as "DOHSMAN" and the relevant Defence instructions and
lower level instructions designed to implement the ADO policy. Apart from
these ADO specific requirements, there are a number of State or Territory
regulations and relevant Australian Standards.
from the regulatory framework to the OH& S management framework, this too
has become more sophisticated over the years. Evidence in relation to this
topic has been given by the EMOHSO and the EMOHSA. What is notable about that
evidence, in our submission, is that personnel who were part of an OH & S
structure were often unaware of their role in the structure, and the OH &
S structure indeed often existed only on paper, with meetings not being held
as required and co-ordination not occurring as required. Similarly, the safety
surveys and audits appear not to have operated as they should. This is a complex
topic and we refer the Board to our detailed written submissions.
extent to which personnel (ADF or otherwise) performed their duties (supervisory
or otherwise) in accordance with procedures and policies in force from time to
time, concerning the DR procedures including, if applicable, the extent to which
such personnel failed to perform their duties (supervisory or otherwise) and the
reasons (if any) for such failure.
- A detailed
written submission has been provided on this topic. Furthermore, on 10 April
this year, there was a helpful oral presentation by the Regular Defence Force
Welfare Association ("the RDFWA"), whose representatives then provided a brief
summary of the various compensation schemes that might be applicable to RAAF
personnel who worked on any of the programs. In essence, the statutes are
the Compensation (Commonwealth Employees) Act, the Veterans' Entitlements
Act, the Military Compensation Act, the Safety, Rehabilitation
& Compensation Act. The Safety, Rehabilitation & Compensation Act
also has an effect on any common law claims such as negligence claims which
might be brought against the Commonwealth, although not claims which might
be brought against third parties.
RDFWA also made submissions seeking legislative reform in this area.
(13) Whether the performance
or actions of any person (ADF or otherwise) whose performance or actions are directly
related to the DR procedures might warrant further inquiry for administrative
state of domestic and international medical and scientific knowledge from time
to time concerning the hazards, health risks and best practice related to the
chemicals and their use in the DR procedures.
there is some contest in the evidence between ground crew and their supervisors,
there seems little doubt that there was fairly widespread non-compliance with
procedures and policies required to be complied with, notably in the wearing
of suitable personal protective equipment. The evidence is that, in all but
a very few cases, no formal action was taken under the Defence Force Discipline
Act or its predecessors against those involved and, of course, such action
under the DFDA is, certainly for three out of the four programs, now time-barred
in any event.
- The Board
made it very clear at the outset that it did not wish to identify individual
failings but rather systemic failings, and in those circumstances, and also
given the previously mentioned rulings of the Board on the unsuccessful applications
for possibly affected persons to be joined, it is not now appropriate to make
individual findings of fault against any person.
is, however, another aspect to it and it is this. There is considerable evidence
that persons who failed to wear personal protective equipment were admonished
verbally but not formally charged. One consequence of formally charging individuals
for breaches of this type would have been to bring to the attention of senior
officers at 501 Wing the extent of the problems at 501 Wing caused by failure
to wear personal protective equipment when dealing with toxic chemicals. It
may well be that the Air Force wishes to reconsider its approach to discipline
in this context.
the same period health surveillance practices in the general community had developed.
Unfortunately, however, there is little evidence to demonstrate a rigorous and
appropriate occupational health monitoring program having been undertaken by the
Air Force 'on the ground'. Indeed, there seemed to be a general recognition from
all medical witnesses that, for at least the past decade, there has been no record-keeping
system which has permitted trends in health across a group, such as the Fuel Tank
Repair Section, to be monitored over time. It is understood that the Defence Health
Organisation is developing such a system and this would seem to be urgently needed.
- The principal
evidence on this topic is contained in the Envirotest Report - The State
of Medical and Scientific Knowledge - Deseal/Reseal Chemicals F111 Fuel Tanks.
In summary, the knowledge of the extent of toxic effects or longer term risks
from repeated exposures to the chemicals used in the first deseal/reseal program
was limited and inadequate and this may also have been the case in relation
to the wings tank program.
- By 1995
scientific and medical knowledge on the toxicity of almost all of the chemicals
used in the spray seal process had improved considerably. At the same time,
there was by then a more general appreciation of the risk in the use of toxic
chemicals and this found expression in national models of safety, and relevant
State legislation for the control of hazardous substances.
(12) Whether there
were or are any systemic issues arising from..any matters identified which should
be addressed by the RAAF or ADF.
- As earlier
noted, it is not the role of counsel assisting to "make a case". However,
systemic issues which might be addressed, having regard to the evidence before
the Board, include the following:
suitability of the ADF's hazardous substance management systems including
identification, evaluation, risk assessment and control measures.
adequacy of ADF health management systems, including for biological monitoring,
and in this regard the availability of specialist occupational medicine,
policy and advice.
of hazardous substances and personal protective equipment.
of comprehensive management oversight.
of, and compliance with, workplace procedures.
design and implementation of correct facility requirements for the undertaking
in OH & S matters.
(1) The identify of
personnel who may have been exposed to chemicals used in the DR procedures and
the details of their duties, including duration of those duties while so exposed.
nature and extent of health complaints reported as resulting from exposure to
chemicals used in the DR procedures of those personnel identified above and the
treatment provided, if there was any health monitoring of those personnel, details
of preventative action taken as a result of health monitoring.
- A list
of all relevant personnel, as comprehensive as the state of the evidence permits,
has been provided in the written submissions. We have also produced a number
of tables which seek to summarise in relation to each process and then each
sub-aspect of the process, the details of the process and the individual duties
of personnel in that process. [Overheads].
nature and details of all claims for compensation arising from the DR procedures
that have been received or notified.
are a number of aspects to the evidence here. First, there was a report by
Dr. Dai Lewis, who examined the RAAF's health monitoring system over the period
of the D/R programs. While he noted many positive matters, he found that much
documentation appeared to be incomplete, that not all medical monitoring requirements
appeared to have been followed, and that there had been little regular, multi-departmental
reviews of the overall programs. There was also a lack of continuity and multi-disciplinary
audit by the command and control structure. Dr. Lewis, however, also noted
that the current document dealing with health monitoring met all Australian
regulatory requirements and, in the main, exceeded best practice standards
- An audit
was conducted by Dr. Eric Donaldson, a medical aviation/occupational medicine
expert. He examined the medical records for 110 of the 662 persons identified
as being possibly exposed to chemicals in the deseal/reseal program, together
with some additional information provided as a result of this inquiry. He
gave evidence on this topic.
is provided in an appendix.
topic is the province of the Board and we say nothing about it. Subject to
any other matters the Board now wishes to raise with us, these are the submissions
of Counsel Assisting the Board. May it please the Board.
28 May 2001
COUNSEL ASSISTING THE BOARD
LTCOL RICHARD TRACEY QC
WGCDR MICHAEL BURNETT
LEUT JAMES RENWICK RANR
1. ADFP202 Para 7.36(e)
2. Not relevant here.
3. (1938) 60 CLR 336