1 15 1 https://www.nal.usda.gov/exhibits/speccoll/files/original/3eb3ef1fd30972f028cc82bf0aa34e2b.pdf 3f73479c95c547ee39fed8c2e43972f8 PDF Text Text Item ID Number 01501 Author Coombs, John Corporate Author Report/Article Title ^ne Agent Orange Phenomenon: The Report of the Australian Royal Commission Journal/Book Title Year 000 ° Month/Day Color n Number of Images 42 OBSOrlpton Notes This manuscript is a draft version of a chapter or section from the following book: Agent Orange and its Associated Dioxin: Assessment of a Controversy. Young, A. L. and G. M. Reggiani, eds. New York: Elsevier, 1988. This book is available in the NAL collection, call no.: RA1242 T44 A3. Tuesday, May 15,2001 Page 1501 of 1514 �XIV. "THE ROYAL COMMISSION IS THE RANKING INVESTIGATORY AND ADVISORY BODY FOR THE NATION. IT IS THE GUIDE TO WHATE IS AND WHAT SHOULD BE DONE; IT IS THE IMPLEMENTATION OF THE SOVEREIGN INTENT THAT "RIGHT BE DONE"" THE AGENT ORANGE PHENOMENON; THE REPORT OF THE AUSTRALIAN ROYAL COMMISSION BY JOHN COOMBS QC LIB WHY A ROYAL COMMISSION? Australian Royal Commissions have a long history extending back to the time of William the Conqueror. British Royal Commission that it "is the ranking investigatory and advisory body of that country. and what should be done; it Sovereign intent that It was observed of the It is the guide to what is is the implementation of the 'right be done'."l That established place in the British Governmental system led to the adoption by Australia of legislation concerning Commissions and Governments has utilised the Royal each of its Commission of Inquiry from time to time. Such Commissions have an important role in Australian society. They provide a mechanism for independent and searching inquiry separate from and unfettered by the Government of the day. It is essential in every respect that that independence be maintained. The Parliamentary expert, Todd, said: "As Royal Commissions are not directly amenable but only Parliament ought to Parliament to the Crown, not to interfere with their proceedings unless �2. It can be shown that a Commission was acting unfairly or incompetently or was in some respect unworthy of the confidence of the Government".2 In Canada it was ruled that although a Commission could be terminated by Order-in-Council it could not be directed as to the procedure it should follow or how it ought to interpret its terms of reference.3 recommended Indeed there that the Canadian should be no Law Reform control Commission over "policy conclusions" of Royal Commissions and, further, that there should not even be budgetary might think restraint 1 There is little likelihood one of that recommendation being Australian Government. In the Australian High and adopted by any ." ^LcWwA y&CUA/V/ / Court, Mr Justice Stephen (now Sir Ninian Governor-General of Australia) said in R. v, Collins Exp. ACTU - Solo Enterprises Ptv L.imited4 a Royal Commission's-"mode of conducting its inquiry is entirely unfettered either by statute or by executive direction". The reputation fearless that Royal impartiality and Commissions enjoy rigorous inquiry in Australia of is in particular a result of public recognition of their independence and separation from Government. this The use of independence and blunt, the regularity Judges as Commissioners emphasises separation from the Executive. with which Royal Commissions Governments and politicians enhances that reputation. To be bucket �3. Three examples Government suspected It was spring to mind. appointed a Royal The Fraser Conservative Commission to investigate certain electoral irregularities in the State of Queensland. severely embarassed when Fraser's "Toe-Cutter" Withers was found to be close advisor. Senator the architect of some misdeeds. In New South Wales Justice Nagle Prisons and his report brought Corrective Services after proof inquired into the down conduct of the Commissioner for of systemised violence against prisoners. The Costigan Royal Commission acutely embarassed Federal and State Governments with its disclosures of organised crime, police inefficiency and unexplained cash transactions in high places. Little wonder then that the Australian people accept the findings of Commissions wonder and are confident in too that the permanent their independence. Little bureaucrat always advises the Government of the day, "Never have a Royal Commission unless your already know the answer!" This independence and its, at times, stubborn preservation have led to the use of Commissions to solve problems tha-t the Government of the day wishes to distance itself fi?©»- or which are politically too sensitive or too complex for the executive arms �1. to investigate. So it was that charge of a the Agent Orange controversy was given into he Commissioner, the distinguished Federal Court Judge, Mr Justice Phillip Evatt DSC LIB, by Letters Patent dated 13 May 1335. THE ROLE OF COUNSEL ASSISTING I was appointed Senior Counsel Assisting is responsible one which one Assisting. I accepted involving not only The with role of Counsel pride. It is a the discovery, collection collation and presentation of the evidences but also representing the public interest.6 Counsel Assisting is completely independent.? The independence of Counsel Assisting is important as is his role as separateness of from not having the eliciter of facts. the Commissioner and an to "descend into the It makes possible a /\ objectivity which flows arena" as Mr Justice Ashworth put it to the Salmon Royal Commission.8 Notwithstanding the develops, inevitably a independence of Counsel closeness to Assisting, the Commissioner. there Counsel shares the commitment of the Commissioner to the public interest and to the ascertainment of the truth. He becomes confidante and sounding board and potentially at least private critic. �In the last resort. In the event of major disagreement about a matter crucial to the terms of reference he has the right and the duty to make public submissions in an open hearing to the Commissioner. Why a Royal Commission in respect of Agent Orange and its fellow chemical agents? Firstly, the matter was controversial. Three Government Departments were directly involved, Veterans Affairs, Health protagonists and Defence. Association The of Australia) (The Vietnam CWAA3 had been vocal Veterans in their dissatisfaction with the epidemiological studies put in train by the Conservative Government and the findings, somewhat Committee.9 They vehement in their rejection of tentatively expressed, of a Senate Select sought a Royal Commission which Labor in opposition promised and delivered when in Government. HAS A ROYAL COMMISSION AN APPROPRIATE FORUM? Science and Law are construction witnesses. cases long term architects comrades. and In building and engineers are the key In personal injury cases medical evidence is often at the core of the conflict. In criminal trials forensic scientists are crucial. The so-called toxic tort has brought toxicology and epidemiology into those who the courtrooms of the world. actually fight such So it cases, usually is that in Australia barristers, strive to become familiar with scientific method and in particular case to learn enough of the discipline of a �6. particular science to be able to properly understand and adequately test the evidence of the professional scientist. The comradeship above referred to is not surprising for the forensic method is truly similar to scientific method. In scientific method observation leads to hypothesis development. After an tested hypothesis is postulated, (usual by careful hypothesis, or data fail to collection to disprove in null form) it is designed to disprove it. If a the number of investigators replicate the result, a scientific consensus about the It is hypothesis develops. scientifically sound if not necessarily final as Karl Popper is firm in reminding us.10 The forensic process begins with a statement of the protagonist's position similar to the hypothesis Defendant pleads his defence trial. The of the scientist.' The and an issue or issues presents for protagonist leads that evidence which he feels supports his position. This evidence is laboratory tool. subjected to cross-examination, the legal This process begins with a courteous insistence upon a common language. For example the phrase "neoplasms in the newly born" might be used by a witness. Any cross-examiner would insist upon a definition co-iriciding with national statistics or at least with like. convertible thereto so as to Next permit comparison of like the cross-examiner explores the qualification �7. and experience of the witness so as to assess his or her opportunity for observation and skill in assessing that which has been observed. Next the data upon which the witness relies is explored with the witness apparent errors or by searching questioning misconceptions put and any to the witness for explanation. Then the witness is confronted with any other data which might be thought to be inconsistent with his conclusion, so as to permit him to defend and to display that there is no inconsistency if he can. The process is rigorous: incompetent are the biased, soon revealed. The has his skill and thoroughness the careless and the careful competent scientist pointed up by proper testing. It is also similar in both philosophy and method to the work of the scientist. The defender then calls his evidence which is subjected to the same process. All this takes place under the control of a respected judicial officer who forms from it, in non-jury cases, a conclusion. I have spent some suggestions that time on the process because there have been lawyers were inappropriate people exploring the Agent Orange, Chemical Agents question. respectful submission that chosen for they are fitted both to be It is my lawyers were entirely appropriately by training and experience to �8. assess scientific issues particularly where a multi-disciplinary approach was needed. A WORD OF CAUTION Karl Popper's model is rigorous only from controlled experiments. if based on data derived The Agent Orange data being human data is, like much epidemiological data observational only. Further, it is said that one can never Strictly ,this is true but it can be that alleged effect if any systematic professional negative. said for practical purposes is not search "prove" a detected after there is an extensive extremely high probability that any effect is so small as to be undetectable and this can validly be accepted as proof of the negative in any legal context. This problem has been perceptively analysed by Sir Richard Doll, in 1983 in The Royal Society's paper, Risk Assessment: Report of a Study Group. But the theoretical limitation is of only small concern. claim number is, for example, that Agent of cancers in Vietnam Orange has veterans and the studies show no raeasureable increase then the out. caused a If the large observational claim is not made �An increase in the risk of cancer of 1 :c 10:6 in humans exposed to 10 nanograms per kg body weight daily quant i tat ive assessment made by Such theoretical individuals. risks are the only WAA. routinely disregarded by Those who smoke heavily assessment that of TCDD was almost all disregard the statistical the 2 pack a day man has at least a one in 100 risk of respiratory cancer and much higher risks of emphysema and cardiovascular disease. I do not suggest that they are wise. Those who ride in motor vehicles in Australia take an annual risk of death or although seat serious maiming injury belts arid random breath of one in 400 at least, testing are improving the situation. These precautions reflect good epidemiology. Alcohol risks many orders of magnitude higher than that suggested by Dr Schneidermann cancer from TCDD for WAA as the highest exposure are also routinely level of taken, by risk of me at least and no doubt many others. Negligible risks can be and generally are ignored. rarely are willing to live like risks of madness are surely Howard Hughes. Men and women If they do the greater than the risks of illness by contact with negligible risks. STANDARD OF PROOF Unlike a scientist the lawyer must produce a final determination on the evidence before him. A report must be written, a judgment �10. delivered or a verdict found. He or she is not merely contributing to the state of the art. Thus just as the scientist states the confidence lawyer has a limits of his statistical findings the defined standard of proof for reaching conclusions. Such a standard applies in Royal Commissions as well as in party and party litigation. The creates a context different Executive direction "to inquire" from party and party litigation. investigative Royal Commissions, In of which this was one, there is no party who will "lose" if he fails to discharge the "onus" upon him to prove something to some defined standard. As well, in such inquiries, wide-ranging manner and the Tribunal from many produced by those given leave informs itself sources other to appear.11 in a than material In the Evatt Inquiry a huge pool of background information was available in addition to the oral evidence and context may suggest in the documents tendered. Further, the such an inquiry that the Executive wishes to know not only that which is found to be probably so, but also that which may possible be so. It was such considerations that led Law Professor Hallett to say, "For most inquiries it is satisfactory that the standard of proof should be flexible".12 But to flexible is not to say that such as standard it is irrational nor that a. Tribunal a Commission can be common flexibility. Evidence" said: law rules. say that the standard of proof is guided by For these anything other than rules have their own Professor Wigmore in his "Treatise on the Law of �11. "In civil cases it should be enough to caution and the unusual positiveness in criminal cases do not obtain. further, and here of persuasion required But is is customary to go also to attempt to define in words the quality of persuasion necessary. of say that the extreme mind in which there It is said to be that state is felt to be a evidence" in favour of "preponderance of the demandant's proposition. Here, too, moreover, this simple and suggestive phrase has not been allowed to phrases - suffice; and in many "satisfied", "convinced" and the put forward as equivalents words precedents sundry discussed other like - have been and their propriety and a form of and sanctioned or disapproved, with much waste of judicial effort.13 Such a statement the civil requirement. Briginshaw v. opinion clearly countenances a degree of flexibility in Dixon J (as he Bricrinshaw (1938) 60 CLR 336 at that a state of fact exists may then was) said in 361, "No doubt an be held according to infinite gradations of certainty". The Commission the Inquiry adopted as its the normal standard of proof of civil standard. It required any fact in itself to feel, as Dixon J. put it, "an actual persuasion of its occurrence or existence allegation before it can had to be made satisfaction, as did be found".14 The out to the the negative common lawyer, Dixon J. continued: where affirmative of an Commission's reasonable relevant. The great �2. But reasonable attained or consequence satisfaction is not established of the seriousness of an of an the a state of independently fact or facts mind that is of the to be nature proved. and The allegation made, the inherent unlikelihood occurrence of a given description, or consequences flowing from the gravity of a particular finding are considerations which must affect the answer to the question whether the the issue satisfaction of satisfaction' indefinite has been the Tribunal. should not testimony, or be proved In to reasonable such matters, 'reasonable produced by inexact indirect inferences. proofs, (Emphasis added).15 The Commission emphatically agreed. THE REPATRIATION CONTEXT For many years no onus was placed on a veteran and the Australian Government (to speak a little tribunal beyond reasonable for granting a Repatriation relevant outcome was made by loosely) had to satisfy the doubt of the insufficiency of grounds claim.16 So, where an allegation of WAA, the Commission, if it was not satisfied that such allegation has been proved in accordance with the civil should) that standard, observed (when it felt the circumstances were such it was able and that it was "satisfied beyond reasonable doubt," that the allegation was not made out or �.3. that an allegation was hypothesis to support reasonable doubt accepting the "fanciful";17 it"IS or that there that are allegation", all or had it was "no reasonable "satisfied beyond insufficient grounds phrases chosen because use by holders of high Judicial office or legislators. for of their Criticism of extravagant language should be evaluated in that context.19 Thus, the Commission considered that it should have regard to the sections of the Repatriation Acts relevant to the question of the onus and that standard of proof when considering what recommendations it might make. RELEVANCE OF EPIDEMIOLOGICAL STUDIES Another important influence or contextual matter bearing upon standard of proof was the epidemiological nature of the causation aspects of the Inquiry. that exposure The case for WAA, in a nutshell, was to chemical agents amongst children. This is classically an epidemiological case. disease is as those patterns. investigation disease and inferrincr you know occurrence in human influence may and and is causing illnesses Epidemiology veterans in Vietnam has show birth defects concerned with populations and The results a statistical of an such an association their the patterns of the factors that epidemiological association an exposure or risk factor. that amonst between a The usual criteria for is causal include the �14. following: (a) The statistical strength of the association; (b) The occurrence of a dose response relationship (the response is proportional to the dose of risk factor or exposure); (c) Observation that a decrease in an exposure is followed by a decrease in the frequency of the disease; (d) The temporal sequence of the relationship (ie the risk factor or exposure almost always precedes the outcome or disease); (e) The consistency or reproducibility of the association; (f) The specificity of the association; and (g) The biological plausibility of the association. Support for a causal association is the stronger as more of these criteria are met.20 The relationship of the risk factor and the disease are expressed in a and number of ways: attributable important By way risk. and that different things absolute risk, That absolute these risk and is critical in of example, the relative risk, odds ratio, are different things relative the standard of annual incidence of risk are is very proof context. lung cancer amongst �15. white Americans who smoke is approximately 1 per 1000 prsons. However, the proportion of lung cancer attributable to smoking is close to 85%. The relative risk of developing lung cancer is 10 times greater in smokers than in non-smokers.21 though a white American smoker does not have probability of Thus, even a 50.1% or greater acquiring lung cancer, it is more probable than not that an individual's smoking caused his lung cancer. Toxic tort litigation has not reached proportions in Australia similar to those pertaining in the United States. Accordingly, the very difficult problems that small absolute with even substantially risks combined increased relative risks have not yet exercised our appellate courts. Accordingly, sought civil to apply standard flexible. issue the Commission, when deciding questions was the principles referred to in respect of the of proof, remembering that such And in reaching proved to of fact, standard is a decision as to whether a particular the reasonable satisfaction of the Commission, the epidemiological principles referred to above were borne steadily in mind. THE COMMISSION'S APPROACH After an initial and lengthy self-education inter alia, the collection and relevant literature, the program involving, absorbtion of the available and Commission proposed to the parties �16. hearings on aspects of the topic which were contentious and which were appropriate to the forensic method. These were: Exposure Toxicology and Health Effects, including cancer Reproductive outcomes Mental Health Mortality And a WAA presentation on Health Effects In almost every topic area the independent experts as witnesses. Commission chose its own Counsel Assisting called every >//uCt/V witness that WAA of the sought to have called. These includedfcfespick US scientists who had assisted in the preparation of the US Agent Orange Class Action, where millions of dollars were spent attempting important. repeat to prove the Cries of "David every expert witness called and Some thought plaintiff's and Goliath" have This is been heard. sought to be called by WAA I was at the Government's expense, through the Commission. helpful to the WAA's position were Commission itself, for example Dr Hardell (The case. Australian Medical Corp Chief called by the and Brigadier Rodgers in Vietnam). (Australia) Limited who appeared throughout also Monsanto sought to have witnesses called on most topics and this was permitted. All were examined and cross examined. �17. The Commission also went into the laboratories and indeed into the very work sheets of many of the scientists who have worked in the field, in Australia, the USA, Vietnam and in Europe, with the total co-operation of all concerned. Some examples of the data of Lennart studies were association "work in Hardell were the only between progress" are appropriate. relied upon by WAA. epidemiological exposure to Since his evidence supporting phenoxy The herbicides and an an increased incidence of soft tissue sarcoma and malignant lymphoma the Commission examined this very closely. This involved not research and only examination of the widespread publicity the background of his he had received but also careful analysis of his data case by case, and of his methods. Dr Hardell hours in himself was totally co-operative. In San Francisco he spent conference with Counsel Assisting to courteous but searching and freely submitted questioning by Counsel Assisting, Counsel for Monsanto and Counsel for the Veterans. In the result the Commission found the following criticisms of his work to be substantially made out: (i) The inclusion of the data which generated which the studies were designed to test; the hypotheses �18. (ii) Information bias as a result of: (a) selective recall by the prevailing publicity and cases other because of the factors including a preliminary phone call from Dr Hardell; (b) a difference exposure in the completeness of of cases when the histories of compared with those of controls; (c) interviewer bias arising out of the fact that the interviewers knew the purpose of the various studies; (iii) Inadequate, unsatisfactory and inaccurate exposure data; (iv) Methodological problems arising from: (a) the inadequacy of the instructions for the telephone interviewer; (b) the form of "yes" or the questionnaires "no" answers and which required only gave no opportunity "don't know" reply or for explanations; for a �19. (c) the linking by types histological the of results of sarcoma 12 different with exposure - an improbable situation. (vi) the presence of confounding variables for which adjustment could not, on the available data, be made. The Commission felt that the studies were contrary soundly opinion based conducted studies. been replicated. and the results of a to a body of number of well The results of Hardell's studies have not Accordingly, the Commission did not accept the Hardell studies as proving, on the balance of probabilities, any causal association between Soft Tissue Sarcoma and Lymphoma and exposure to 2,4,-D, 2,4,5-T and TCDD. Of this Sir section of the Richard Doll Hardell's Report the great wrote work with to the British epidemiologist # Commissioner, "Your review of the additional from him at interview showed many were exaggerated or not supportable opportunities for bias of his evidence obtained directly of his published statements and that there were many to have been introduced in the collection data. His claims cannot be sustained and in my opinion his work should no longer be cited as scientific evidence. clear from 2,4,5-T reason your review (the phenoxy to animals..." suppose of the published evidence of herbicides in question) that they 2,4-D and that there are carcinogenic in It is is no laboratory �The US Air Force made the source data of Dr Lathrop and others at San Antonio questioning freely by both available Counsel and and Dr Lathrop scientific himself for consultants for assessment of the Ranch Hand Studies.22 The Centre for Disease Control made Dr Eriksson and his team available in Atlanta for analysis of the Birth Defects Study.23 In Australia particularly by Dr John Donovan was searchingly Counsel for the Veterans but questioned as well by Counsel Assisting, as to the Australian Birth Defects Study.24 In every case the quality of the science was pointed up by the investigatory process. A particularly interesting example of the way in which flawed science can find its way become conventional wisdom into the media and is provided by the Addendum to Volume 3, which I have made an annexure to my paper. So effective was the forensic process that the authors of report to the Commission (leaked to the press and widely publicised as withdraw it rather than have reading of the unmasking valid) sought to its content evaluated. of a piece of I commend a pseudo-science as example of the mode of operation of the Commission. an �21. FINDINGS In a nutshell the Commission found: As To Exposure, 1. Contrary to popular Australians, belief only a very small number of perhaps 18-30 were actually directly sprayed with Agent Orange or other colour coded herbicides. 2. The Commission concluded that the exposure of Australians to chemical agents did not produce dosage levels likely to cause long term health effects. 3. Toxic doses of (TCDD) almost the most poisonous ingredient of Agent Orange invariably causes a skin condition called chloracne. 4. No Australian suffered chloracne. As to Health Effects Generally, 1. Vietnam Veterans are significantly more healthy than Australian males of their age. 2. They are slightly peers who did more likely than their National service not go to Vietnam, to suffer cardiovascular �disease and digestive disease, and to indulge in risk taking behaviour. As to Mental Hell Beincr, 1. There have been mental well-being casualties amongst veterans of all wars. 2. Homer describes the Ulysses symptoms of the ancient Greek in terms very similar to descriptions of hero those in 20th Century veterans. 3. After World War I the syndrome was called "shell-shock". 4. After World War II it was called "psycho" or "troppo". 5. The group of symptoms suffered includes: Flashbacks to terrifying events; nightmares; irritability; rage reaction; dizzy spells; anxiety; insomnia; depression; by some Vietnam veterans �guilt feelings; headaches; low back pain; ulcer; migraine; irritable bowel syndrome; irritable colon; hypertension; paranoia; suspicion; crowd phobia; alcoholism. 6. This syndrome there or group of symptoms (few suffer all of them, is usually a cluster however), has been closely observed in veterans of WW I, WW II, Korea, Malaya, and the veterans of both sides of the middle eastern wars. 7. It is not caused by the chemicals used in Vietnam. 8. It is caused by stress. 9. The Vietnam War was particularly stressful because: (a) It was a guerilla war without lines; for its veterans �14. (t>) The enemy was hard to identify; (c) There was no relief from stress because any Vietnamese could be an enemy; (d) Women and children were combatants and had to be killed at times; (e) Australia did not win; (f) There was no welcome home: veterans were often shunned rather than regarded as heroes; (g) No one wanted to listen to talk about the war; (h) It produced a sense of waste, futility and guilt. 10. The same natural set of and symptoms other is often disasters seen in survivors (earthquakes, of floods, car accidents, etc). 11. It is now called Post Traumatic Stress Disorder. 12. No one needs to response. feel any shame or guilt about this normal �As to Mortality. 1. Vietnam veterans are dying significantly more slowly than other Australians (83%). 2. They are probably dying Servicemen who served slightly in the army faster but who than National did not go to Vietnam. 3. The excess (if it exists) is not caused by chemical agents. 4. It is probably behaviour, Vietnam caused and in smoking service, or by an increase in risk-taking and in drinking connected perhaps with methods of with selection for Vietnam service. 5. Suicide rates amongst veterans are lower than for Australian males of the same age (about 94%). 6. Cancer rates amongst veterans are no higher than for Australian males of the same age (about 99%). 7. There is no statistically significant excess cancer by comparison with group although a the non-veteran of suicides or national service small excess of suicides by comparison with that group cannot be excluded. �As to Birth Defects. 1. It was alleged chemical agents that exposure in Vietnam to Agent Orange or other had resulted in birth anomalies amongst the offspring of Vietnam veterans. 2. Between 3% and 10% of all babies are born with some defect, the accurate percentage you count depending on what you count and when it. For example a minor defect, an extra nipple, is often not discovered until puberty. 3. A study was done of more than 8500 infants with birth defects, carefully matched with the same number of controls. The babies with birth defects were no more likely to have a Vietnam veteran for a father than the healthy babies. 4. No association between length or year of service and birth defects was found were (which you would expect if chemical agents to blame, when the same agents were not used in all years or times of years). 5. No excess of birth defects found or other untoward outcomes were amongst the US group most heavily exposed Orange, the Ranch Handers themselves. to Agent �27. 6. No excess of birth defects or other untoward found in a major study outcomes were comparing Vietnam veterans with non veterans in Altanta Georgia, USA (The CDC Study). 7. No reliable study shows any association between exposure of the father to chemicals and untoward birth outcomes. 8. Biologically such an association is highly implausible and has never been established. 9. The hypothesis Vietnam caused that exposure birth of fathers defects in to chemicals in children conceived in Australia is fanciful. THE CLASS ACTION If there is no connection between unfavourable exposure to Agent Orange, why did the chemical outcome and companies pay US$180M? First let us examine the sum: 2.5 million Americans were technically eligible members of the class not counting children of veterans. the chemical and The settlement represents less than companies it represented an end to to continuing settlement sum. of liability. legal costs which already A commercial decision $90 each. To the litigation outweighed the rather than an admission �28. During legal argument as Weinstein said to the fairness of the settlement Judge to Australian settlement was too small, Counsel who submitted that "$180 million, $360 million, the $720 million they are all a lot bigger than zero Mr Lonnie". He found that evidence of causal connection between Agent Orange Exposure and any ill health of veterans was lacking and that the settlement was available. manifestly inadequate After lengthy evidence if such evidence had been and inquiry he settlement because he was satisfied approved the that such evidence was not available. ABE THE FINDINGS RIGHT? They coincide with those of a Supreme Court Judge of Nova Scotia who tried a similar issue.25 Broadly speaking, a group of environmentalists brought action in Sydney, Nova Scotia before Mr Justice Nunn for herbicides by conclusion an injunction restrining the use the defendant. that no injunction The trial Judge was warranted. of phenoxy came to the In giving his reasons for judgment he made the following findings: "591 I am accepted view of satisfied that the responsible overwhelming currently scientists is that there is little evidence that, for humans either 2,4-D or 2,4,5-T is mutagenic or carcinogenic and that TCBD carcinogen, and further, is not an effective that there are no-effect levels and �29. safe levels for humans and wildlife for each of these substances. 593 Having reached this point it is appropriate to add that the evidence of risk assessments clearly indicates that any risk here in Nova Scotia, if, indeed, there is a risk at all, is infinitesimally small and many, many times less than one in a million which level, apparently, is regarded as a safe and acceptable risk by agencies. most of the world's regulatory Putting this in perspective, as indicated by Dr Wilson in his evidence, the risk of cancer to a smoker is 1 in 800 and for a non-smoker continuously in the same room with smokers it is 1 in 100,000, while the risk to a person drinking two litres of water per day from a stream immediately after being sprayed (which will not happen with buffer zones) is 1 in 100,000 million or which itself is regarded as a 'de minimus' risk." Judge Weinstein in one of the Class Actions in the USA s.aid, as to birth defects, "Plaintiffs have probative value produced no evidence to contradict the Government's of any overwhelming showing of no present proof of causation" (emphasis added).26 In a motion for summary Judgment defendants in respect of out of the Class by the US Government those plaintiffs who had elected to opt settlement, the "unarguably hopeless". and other Judge described the claim as �30. The Australian AVHS Birth Defects and Mortality Studies are to the same effect as the US studies. The major study of the most exposed Americans, the Ranch Handers, who conducted the spraying reached the same conclusions as Evatt J.27 The Centre for birth outcomes Disease Control in Atlanta Georgia of Vietnam veterans and controls. studied the Their results confirm Evatt J's findings.28 HOW COULD IT HAPPEN? If the findings are right, and I am confident that they are, how did it happen? The development of the Agent Orange story should be constrasted with that of the normal epidemiological process. progress is often syndrome or set made by of the symptoms Epidemiological observation of a particular and signs associated with a particular exposure leading to deduction by a trained observer of an hypothesis of a cause and scientific inquiry. It involves effect to be tested by proper a deductive leap from a large number of particular cases to an hypothesis for testing. �31. The Agent Orange ascribed his then story was One man cancer to being sprayed with Agent Orange. ascribed a huge range cause this process in reverse. because of a wish of other Others disabilities to the same to believe, not by an observation of value. In June 1977 one Maude de Victor, a counsellor Chicago Office of Veterans' Administration telephone call from the wife of Charles Owen. were convinced that which he his cancer had been sprayed in Vietnam. Airforce for about 24 years. employed in the (US) received a Owen and his wife caused by a chemical He had been a member of the US Shortly after his contact with Ms de Victor, Owen died. Ms de Victor, herself a cancer sufferer in remission, pursued Mrs Owen's claims to appeal following Owen's death and the initial refusal of a pension. She "called up" information from a computer terminal about cancer victims who had served in Vietnam. She found what seemed to her to be She also a large veterans number of cancers. seeking assistance about closely questioned their herbicide exposure. Between June and October 1977 she became convinced not only that Owen was correct Agent Orange about the caused a wide cause of his cancer but variety of disabilities also that amongst Vietnam veterans and she prompted such veterans to file claims for compensaion, the first in October 1977. Her "calling up"29 �32. of cancer cases was noticed by her superiors and neither medically nor individual files in any other way qualified since she was to look at for general or research purposes her order for the files was cancelled. This she took as evidence of a cover up and she began a personal crusade.30 The Veterans' Administration responded, predictably enough, by requiring medical support for the veterans' claims. Maude de Victor approached the local television channel and over the next few months Bill Kurtis called, "Agent Orange - Vietnam's Chicago on coverage. 23 March 1978 put together a documentary Deadly Fog", first played in and thereafter The program was a masterpiece. watches television has seen evening of the tabling of Every Australian who extracts from were used in the lead in to The National receiving national it. Portions of it Television News on the the Evatt Report. truth, half truth, falsehood and innuendo Its mixture of all in an explosive emotional mix must, it seems, be credited, (if that is the right word), with much of what flowed thereafter. The first human example used in the film was that of James Simmonds. It is clear from the film that Simmonds was prompted by remembering ascribing his that he was de Victor both into exposed to herbicides and also symptoms to that exposure. into She gathered together the group who appeared in the program. The documentary concentrated its attention on birth defects, cancer and a general malady involving non-specific symptoms but �33, including in many cases fatigue, loss of libido, anxiety, tingling of the extremities and "just not feeling the first, the program failed to mention well". that As to there is no established case in either human beings or animals where exposure of the The father to chemicals has led to deformities in children. scientists shown on the program deformities in monkeys, are talking about birth rats and mice which occurred after heavy dosing of the mothers in early pregnancy. The program makes a quantum leap from massive doses in pregnant females to minuscule doses in fathers long before conception. That extrapolation from animal data to human beings is never more than indicative and notoriously unreliable is not even mentioned. As well most cancer victims have an urge to seek out causes for their disease. The program refers to tumours in rats and mice but fails, to mention the then 30 years of uneventful use of the components of Agent Orange in agriculture world wide, including use by farmers world wide, public authorities and a very large number of ordinary gardeners. The conclusions omitted people and Academy of Sciences instead rumours about unvisited by lower than "high of the National the mountain its Committee members, birth defect rates those of comfortable western incidence" and illnesses of Report are unverified cities are described as claims of connected with Agent Orange are emphasised. liver cancer ceing The Commission found �54. that for scientists irresponsible. extrapolate exposure defects As from the the particularly make such public statements scientists, they roust have of potential in to pregnant mice and fathers to context was known that monkey data spray, and to totally irresponsible because of was to to the predict birth unscientific. the notorious It was anxiety of those who parent birth-defected children to ascribe come external cause to the defect. It must also be borne in mind that 'even in sophisticated communities the bearing of a defective child is a matter for some shame. Educated middle-class parents simply don't talk about the child who or with a was born with six toes or with a supernumerary nipple cleft palate defective babies. birth which could be corrected. No-one has In more primitive societies, infanticide and concealment are still common when defected children are born. On the other hand, where concentrate upon birth a group of people have a defects or have wishing to assign those defects to a very inclined to talk about them far a reason to common reason for particular cause, they are amongst those in the group. as the Australian contingent is concerned, if As one assumes that it was 50,000 strong and all male, statistics would indicate they they would father would expect to 3,000 with of the order find amonst of 100,000 children. these children at least serious abnormalities. In a One 2,000 or context where such �35. matters are usually not even mentioned, such a number when well publicised could indeed look, like an epidemic. So successful was the Kurtis film that the US National press took up the cry and a veritable flood of Agent Orange claims produced a predictable reaction from the Veterans' Administration (VA) in the United States. The concern of continued to Orange theory the press, of veterans the present day. and of Congressmen has Studies contradicting the Agent have received little publicity and when publicity is received it is almost invariably put beside outraged cries of "white-wash" from individual veterans or pseudo-scientists with an axe to grind. In Australia no disability was claim of herbicide or other received by the Department chemical related of Veterans' Affairs, Australian, prior to January 1979. Meanwhile in the United States, a helicopter crew member, Paul Reutershan, becoming convinced by Maude de Victor that his cancer was linked to the retained Attorney who filed spray into Edward Gorman a claim for damages which he had flown in of O'Hagan, Reilly for him in New York. Vietnam and Gorman, Gorman was not experienced in that field of civil litigation known as "toxic torts". The specialist in litigation against the manufacturers and distributors of chemical substances was Victor Yannacone, who �36. had as early as 1966 conducted litigation leading to the banning in Suffolk County of DDT. The prominent Long Island Attorney was consulted by Gorman. After Reutershan's death on 14 February 1978 his friend and fellow Vietnam veterans, Frank McCarthy, contacted Yannacone and urged him McCarthy to pursue the case on behalf had formed a group International" and as received by this of all Vietnam veterans. called "Agent Orange Victims the publicity increased, so also did calls group. Reutershan's case as a. Yannacone rewrote the pleadings "Class Action Complaint" in and thereafter travelled the United States with McCarthy. As tape recordings of his powerful public orator. system, his performances tones reminiscent of veterans To lawyers reveal, Yannacone is a trained in the Australian are nothing short of incredible. In of a southern revivalist, he reeled off lists symptoms ranging Vietnam speeches from tingling that they were toes to headaches symptoms of sickness." By his only gained many clients but also spread and told "Agent Orange evangelism at many public meetings, he not fear of toxic reaction and birth deformity far and wide. The media quoted him, McCarthy, Kurtis and anyone else who would say something sensational. �37. The Magazine, "Rolling Stone"31 and later the National brought the myth to Australia. sole WAA was founded in 1979 for the purpose of pushing the Agent Orange barrow. founders, newspapers Bernard Zapiel, and knew Significantly his said that (later) media One of its to the Press, "I read the US I had Agent Repatriation Orange sickness".32 benefit claim never mentioned chemical caused illness. How the myth became something "everyone knew was disclosed by the headlines: "AGENT ORANGE GOT ME SAYS VIETNAM VETERAN" "SOLDIERS' BABIES DEATH AT BIRTH" "AGENT ORANGE FATHER AN ANGRY MAN" "AGENT ORANGE RUINED MY LIFE" "THE AGENT ORANGE HORROR" "LIFE HELL FOR AGENT ORANGE VICTIM" "SPRAYING TO KILL" "SHOCK REPORT ON AGENT ORANGE BABIES" "ORANGE FOR DANGER. THE DEADLY JOKE" "AGENT ORANGE CAUSE DEFORMITY" "VETERANS TELL OF ILLNESS AND DEFORMITY" "THE AGENT CALLED HADES" "AGENT ORANGE VETERAN FACES LIFE OF AGONY" "AGENTS OF DEFOMITY AND DEATH"33 true" is �38. A RIPOSTE The Report has conclusions. been criticised for the firmness of its How can you be so sure ask those who have read only the summary. One answer is because the Commissioner can as to cancer Dr count. For example, Marvin Schneidermann came from the United States for WAA to postulate by extrapolation from animal data a maximum increase in the life time risk life-time- daily dose of of cancer of 1 x 10-6, from a 10 nanograms per kilogram body weight of TCDD, the most toxic ingredient of Agent I/20th of an extra case from Orange. the cohort of 50,000. This predicts There was no evidence that any Australian received dosage remotely approaching this level, let alone daily for a lifetime. As to Birth Defects, a major and highly regarded Australian Study shows no increase consistent with including a effect cannot the major be produced US studies For be exposing has never been shown. evidence of experts effect. in veterans offspring. of veterans study of the most exposed, the Ranch mediated response was the 2 in risk This offspring Handers. male animals. is The The male Most convincing of all as to biological example sperm production implausibility of is continuous and contaminated sperm would remain in the system of a young healthy male for The suggestion effect 90 days at the most. through intercourse months nonsense. or years of a teratogenic later was frankly �39. It has also been said that the time since Vietnam is too short - that latency periods preclude a negative conclusion about cancer. The point about However the was that latency course claim which the Commission there was (already) a vast Vietnam veterans. has some validity. was asked to investigate increase in cancers amongst There is not.34 Further, sprayers and Orange, period of 2,4-D and undoubtedly exposed other handlers of the ingredients of Agent 2,4,5-T were investigated and over periods in depth. of 30-40 years Those had cancer rates within normal ranges.35 The latency period factor does not undermine the Commission's conclusions. Firmness of conclusion environment, cautious it was not only was correct. indicated The to the less scrupulous. social Commission perceived understatement by responsible field open by the scientists had Lawyers call a that left the finding of "not proven" in a clear case a resort to the "Coward's Castle" of the onus of proof. His Honour rejected cautious understatement as a strategy and eschewed the Coward's Castle. finding completely standard Report, of proof. let alone justified by the For those the evidence He made a robust evidence and on who have to cry clearly not "not proven the proper read the yet", only �40. established that they have been duped into believing that only a guilty finding is OK. Some criticism of the Commissioner himself has emerged. I think I should say that he is a big man intelligence and command of this remarked upon wherever we went,. of his in every sense. vast His and complex topic were His objectivity and the openness mind were maintained until the pen was finally put down, at about 2am on the 31st of July. His compassion, his question. scholarship I will embarass him and his integrity are beyond I know, but I must say publicly how proud I am to have been associated with him and his work. He is a great leader and a great Judge. Forum will congratulate him I hope that this august on his work. He has already received, perhaps, the ultimate accolade. Sir Richard Doll wrote of the Cancer Volume: "I am sorry only that you review has had book form and not much in a scientific less readily available to to be published in journal as books scientists. are so I am sure however, that it will be widely quoted and it will come to be regarded as definitive work on the subject". All fairminded critics who read the whole report will agree. �41. FOOTNOTES 1. Hanser Guide to Decision: The Royal Commission (1965) Preface IX. 2. Todd's Parliamentary Government in England by Spencer Walpole quoted in WA Parliament debate 3/12/47, 2345,46 (1979). 3. (1979) 94 DLR 365 at 370. 4. 8 ALR 691 at 699. 5. Sir Charles 386, 387. 6. Lowe, The Commissioner, Royal Commission 24 ALJ cf eg Queen's Memorial Infectious Diseases Hospital Inquiry (1913) Report 3, The Gas Board Inquiry (1912) Report, V). 7. cf The Beach Police Inquiry (1975) Transcript p 71/72. 8. Gt Britain, "Documentary Evidence Commission on Tribunals of Inquiry". Received by 9. Senate Select Committee on Science and the Pesticides and the Health of Vietnam Veterans. 10. 1976 Fontana Paperbacks, Sir London. Karl Popper, the Royal Environment. William Collins, 11. See The Bread Industry Commission Report 1949, pp 5-6. 12. Hallett, L R. Royal Commissions and Boards of Enquiry, Some Legal and Procedural Aspects, The Law Book Company Limited, Sydney, 1982, p 164. 13. Wigmore, "Treatise on the Law of Evidence" 2nd Ed. (1923) Vol 5, Section 2498. 14. Bricrinshaw v Bricrinshaw (1938) 60 CLR 336 at 361. 15. ibid, at p 362 16. See s. 47 of the Repatriation Act 1920, as amended in 1977. 17. The Repatriation Commission Murphy J. at p 640. v. Law (1981) 174 CLR 635 per 18. O'Brien's case (supra) per Brennan J at p 369. 19. ibid per Gibbs CJ, Wilson and Dawson JJ at pp 367. 20. Evans Prof A.S. Causation and Disease 49 Yale and Medicine 1976 pp 175-195. J. Biology �42. 21. Doll and Peto JNCI Vol 66 No. 6 June 1981 pp 1193-1308. 22. See footnote 27. 23. Eriksson et al 1984 24. Donovan et al 1983. 25. Palmer et 271. al v Nova Scotia Forest Industry 60 N.S.R. (2d) 26. Ford v United States CV-79-747. 27. Ranch Hand I & II, US Mortality Study Report and US Air Force, An Epidemiological Investigation of Health Effects in Air Force Personnel After Exposure to Herbicides - Baseline Morbidity 24/2/84. 28. Eriksson et al, Vietnam Veterans Risks with Birth Defects. 29. By which system. is meant seeking of information from 30. Personal Communication to 1984, Victor Yannacone. 31. August 1978 "The Poison Legacy" by Edward Kohn. for Fathering Babies Senior Harvest: the computer Counsel Assisting, Agent Orange, March A Vietnam 32. Heidelberg "Voice" 25.4.79. 33. Report Chapter I, p 47. 34. cf footnote 27 and Greenwald et al 1985, Kogan et al 1985. 35. Victorian Sprayers, Department of Conservation 1985, Smith et al (New Zealand Applicators) 1982-83. � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 056 Folder The folder containing the original item. 1501 Series The series number of the original item. Series III Subseries II Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Creator An entity primarily responsible for making the resource Coombs, John Title A name given to the resource The Agent Orange Phenomenon: The Report of the Australian Royal Commission Subject The topic of the resource Australia veterans health studies Australian Royal Commission hearings ao_seriesIII