agent1

Agent Orange and the Official War History

by Graham Walker

A paper presented on behalf of the Vietnam Veterans Federation to the Vietnam Voices Conference held at the Casula Powerhouse Arts Center

Sunday, 4 May 1997

The United States Air Force was being frustrated. It had complete mastery of the skies over the battlefields of South Vietnam and ached to unleash its air power on the Viet Cong and North Vietnamese armies. But the enemy soldiers would not cooperate. With great success they sought sanctuary from the seeking eyes of US jet jockeys under the thick canopy of the Vietnamese jungles. To the US Air Force the solution was clear - remove the offending canopy by defoliating the jungles with 'Agent Orange'. Also, enemy troops planted gardens in isolated areas. These crops could he most easily destroyed by spraying them with 'Agent Orange'.

'Agent Orange' is the popularly used term covering a number of toxic chemical mixtures used in Vietnam as defoliants and crop destroyers. More correctly 'agent Orange' was the particular name of only one of them; a mixture of the chemicals 2,4,-D and 2,4,5-T with its impurity, dioxin. The others, agents White, Blue, Purple, Pink and Green were various mixtures of 2,4-D, 2.4,5-T with its impurity dioxin, picloram and cacodylic acid.

Between 1965 and 1971, the US air force sprayed from low flying aircraft some 20 million US gallons (75,700,000 litres) of these chemical agents over the Vietnamese countryside.

Quickly and thickly growing tropical vegetation round the perimeters of our military bases threatened to obscure the soldiers view. This bush, too, was cleared by spraying a long list of defoliants from helicopters, trucks and back-packs. In popular usage, these herbicides, too, are covered by the term Agent Orange'.

The chemical deluge did not end there. In the tropical heat and humidity of South Vietnam particularly aggressive mosquitoes, dangerous spiders and huge scorpions thrived. To kill these and other pests in military bases, large quantities of chemical insecticides2 were regularly sprayed from the air and ground, whilst soldiers in night ambushes saturated themselves with insecticides from pressure packs. Even these insecticides are sometimes included when reference is made to 'Agent Orange.'

Some six years after the end of the Vietnam War, scientific research in the USA began linking Agent Orange' with cancer and behavioral disorders in veterans, as well as birth abnormalities in their children. Worried veterans and their families in Australia got together seeking to know what chemicals the veterans had been exposed to and whether this exposure had effected them. Their questions met with stone walling by the federal government and bureaucracy. In frustration these groups of worried veterans federated to form the Vietnam Veterans Association of Australia which began gathering its own evidence and demanding Departmental recognition of its credibility. When the Department of Veterans Affairs and the government denied responsibility the Association demanded a Royal Commission. In 1983, after a change in government. that Royal Commission was established with Mr Justice Evatt as its Commissioner.

In 1985 the Royal Commission brought down its controversial finding of:

"Agent Orange Not Guilty2"

About the possibility of veterans contracting cancer as a result of their exposure, the Royal Commission gave an unequivocal assurance:

"Service in Vietnam has not and will not cause cancer amongst veterans.'"

Time has not been kind to these verdicts. During the decade since these verdicts were brought down, their credibility has been progressively undermined

In July 1993, the prestigious US National Academy of Science released a report on the association between herbicide exposure during Vietnam service and certain diseases. It had, at a demandingly high standard of proof, reviewed all existing evidence of the possible health effects on US Vietnam veterans of exposure to herbicides. It concluded that exposure to the herbicides used in Vietnam was associated with the following cancers: soft tissue sarcoma, (a generic name covering over 50 individual cancers);
non-Hodgkin's lymphoma; and, Hodgkin's disease Exposure, the Academy concluded, was also associated with the non-cancerous liver disease, porphyria cutanea tarda.

These Academy findings were seriously at variance with those of the Royal Commission Soon other authoritative studies supported these findings and added more cancers to the list4. of course, we cannot completelv blame the Royal Commission for having been so wrong in its findings on cancer. After all. eight years had passed between the Royal Commission reporting and the 1993 US National Academy findings, eight years which produced new evidence.

Some seven months after the US National Academy of Science findings were released, the volume of the official Australian war history covering the 'agent Orange' controversy5, was published. It is puzzling that its author, Professor FB Smith, made no mention of these vital Academy report or of its findings. Neither did Professor Smith make mention of the evidence used by the Academy committee in reaching its conclusions, even though the Academy committee used only evidence which was on the public record

Indeed it is as though Professor Smith has written his account of the Agent Orange9 controversy without the benefit of those eight years of hindsight. His account unreservedly supports the Royal Commission cancer findings. He recounts approvingly the Royal Commission's rough handling of many of the expert witnesses supporting the harmlfulness of exposure to herbicides. He recounts approvingly the Royal Commission's unqualified dismissal of the evidence supporting the carcinogenicity of most of the chemicals. He recounts approvingly the Royal Commission's denigration of the veterans who pursued the issue. He recounts approvingly the Royal Commission's ridicule of 'greenies'. In fact, Professor Smith's history reads like a synopsis of the Royal Commission report with the following endorsement tacked on:

"Mr Justice Evatt's work remains the pre-eminently thorough, authoritative survey of the Agent Orange episode.

And it was not only the US Academy report and the evidence supporting it that should have alerted Professor Smith to flaws in the Royal Commission findings.

In 1989 a conference was held at the Australian National University titled Evatt Revisited: Interpretation of Scientific Evidence. It brought together scientists from all sides of the issue to present papers and discuss the scientific evidence presented to the Royal Commission and that which had emerged since. The four academic editors of the report on the conference6 concluded:

"We believe on balance that, contrary to the findings of the Commission, herbicides in "Agent Orange" probably do increase the frequency of some types of cancer and birth defects."

Professor Smith does not mention this conference in his history, even to dismiss its findings. There were also obvious clues in decisions of the Administrative Appeals Tribunal. When a veteran applies for compensation for a war caused injury or disease, the claim is firstly determined by the Department of Veterans Affairs. Even alter the Royal Commission's adverse findings. veterans continued to make compensation claims for cancer caused by exposure to 'Agent Orange'. When these applications were, as usual, rejected by the Department, Tim McCombe and others, then officials of the Vietnam Veterans Association, sponsored appeals. By the early 1990's these cases were reaching the second level of appeal, the Administrative Appeals Tribunal.

The first of these appeals heard by the Administrative Appeals Tribunal was the Adrian Crisp case7. He was an infantry soldier in Vietnam who later died from malignant schwannoma (cancer of the nerve sheath). In 1990, the Tribunal found that Adrian's cancer had been caused by his exposure to toxic chemicals during his Vietnam tour of duty. Running in tandem with the Crisp case was that of Vietnam veteran Dixon Sellars. He died of non-Hodgkin's lymphoma (cancer of the lymph gland). Before the Tribunal could bring down its decision, the Department of Veterans Affairs conceded the case and announced that, because of new evidence, it would accept future claims of eligible veterans suffering non-Hodgkins lymphoma. Then in 1991 the Administrative Appeals Tribunal accepted veteran John Huniffray's7 death from astrocytoma (a cancerous tumor of the brain) as chemical caused. Later in 1991 the Tribunal found that veteran Michael Shars8 pituitary adenoma (a cancerous tumor of the pituitary gland) had been caused by 'Agent Orange'. Next were the cases of Peter Edwards8 and Ken Kain9 heard jointly. In December 1991, the Tribunal found (page5l)that both veterans' Hodgkin's lymphoma. was caused by their exposure to toxic chemicals whilst in Vietnam.

Ml these Tribunal decisions were brought down more than a year before the February 1994 publication of Professor Smith's official history.

In his history, Professor Smith discusses the Crisp and Sellars cases, and briefly alludes to, without naming, the Shar case.9. He does not mention the others.

The lack of significance Professor Smith accorded the Shar case is unfortunate. Central to one of the scientific theories put forward on Adrian Shar's behalf was that the effects of his exposure to toxic chemicals whilst in Vietnam could have been worsened by the processes known as 'synergy' , 'initiator promoter effect' and 'no safe dose'. The Royal Commission unequivocally dismissed any possibility of these processes making veterans more susceptible to contracting cancer. Without this dismissal, the Royal Commission could not have come down with its unequivocal verdicts of

"Agent Orange Not Guilty"

and

"Service in Vietnam has not and will not cause cancer amongst veterans".

One of the witnesses whose evidence had been influential in the Royal Commission dismissing the relevance of these effects was one of its consultants'0., Professor BW Stewart. This very Professor Stewart appeared on behalf of the Department of Veterans Affairs during the hearing of the Shar case.

It was, of course, now eight years since Professor Stewart's testimony to the Royal Commission and in that time, Professor Stewart had changed his mind on this vital matter The Tribunal reports that, though he was unimpressed with some other elements of the evidence for Shar, Professor Stewart

"did not disagree with the concepts of 'synergy', 'the initiator promoter effect' or 'no safe dose'...

The important turn-around is not included in the official history.

Professor Smith does not even mention the jointly heard Edwards and Kain cases. Appearing once again for the Department of Veterans Affairs was Professor Stewart. As I have already reported, he was a valued Royal Commission consultant and witness. Indeed, the Royal Commission said of him:

"Dr Stewart's membership of such committees as are referred to in his curriculum vitae, establishes him as an expert of international renown in the chemical carcinogenic field"."

During cross-examination Dr Stewart agreed that the verdict of the Royal Commission that "Service in Vietnam has not and will not cause cancer amongst (page52) veterans" was flawed'1 The latency periods for cancers were, too long, he conceded, to make such a prediction.

There is no mention of this important admission in Professor Smith's history.

Other evidence in the Edwards and Kain case was given by Mr Greg Miller. an environmental chemist. Central to the Royal Commission's verdicts had been its conclusion that:

"Calculations show that no Australian would have received a toxic dose of any constituent of Agent Orange12."

Mr Miller's evidence contradicted this conclusion. As a result of Mr Miller's detailed analysis of the chemicals used, their behavior over time and their toxicity, the Tribunal wrote:

"... the Tribunal accepts Mr Miller's methodology and agrees with his conclusion that the evidence shows that the applicant was exposed to biologically significant amounts of dioxin during his service in Vietnam.'2"

Ken Kain and Peter Edwards followed a somewhat typical pattern of activity in Vietnam. Mr Miller's analysis has, therefore, a much wider application than just the Kain and Edwards case..
Mr Miller's evidence did not find a place in Professor Smith's official account.
That the official historian should produce such an incomplete and unbalanced analysis of the evidence is deeply disappointing.
But what of the Administrative Appeals Tribunal decisions themselves? The Administrative Appeals Tribunal did, alter-all, decide over and over again, that a veteran's cancers were caused by his exposure to 'Agent Orange'. Professor Smith brushes aside the significance of these findings with a dismissive sentence; so dismissive in its context as to imply that the veterans were unjustly successful. He says:

"The appeals Tribunal had taken to its limits the onus of disproof Professor Smith brushes aside the significance of these finding with a disrule governing the Commonwealth. ~

Professor Smith neither provides an explanation of the 'disproof rule' nor evidence that in these Tribunal cases the rule had been 'taken to its limit'. Yet it is this onus of disproof rule which is central to the whole Agent Orange controversy.

So what is the 'onus of disproof rule'. To explain that I must take you back to the 1914-18 War. Parliaments then were grappling with what responsibilities they had to the soldiers returning to Australia from the front. The Commonwealth Government' 5 answer was the Australian Soldier's Repatriation Bill.

In introducing this Bill into the Australian Parliament in 1917, Senator Millen explained.

"Repatriation, he said, was an attempt to indicate Australia's obligation 'to those who on its behalf have gone into the Valley of the Shadow of Death... ""~

The Prime Minister at that time, Billy Hughes, had no doubts that this obligation was the result of an unwritten but binding contract between the Australian Parliament and Australia's service men and women. He declared:

"...we say to them 'You go and fight, and when you come back we will look after your welfare"

And:

[W]e have entered into a bargain with the soldier, and we must keep it..."'

Billy Hughes was also clear that the service men and women had every right, to expect that the government would honour its promises:

"The soldier will say to the Commonwealth Government: "You made us a promise,. We look to you to carry it out."

In 1941 the Federal Parliament again considered its responsibilities to the members of the armed forces returning from the front. The adequacy of existing repatriation arrangements was examined by a Joint Parliamentary Committee "in the light of the conditions caused by the 1939 war15" and under the pressure of some well publicised grievances generated by the existing legislation'6. Out of this committee's considerations came the Australian Soldiers' Entitlement Act 1943, Australia's new repatriation contract with its fighting forces.

In framing the new act, much thought had been given to how difficult it should be for sick and disabled veterans to have their illness and disabilities accepted as war caused. The thought of sick war veterans having to fight their way through court hearing alter court hearing, with a heavy burden of proof on the veteran to prove his case, was abhorrent to the Parliament and to the Australian people. So the new legislation included a more lenient test of whether a veteran's sickness could be linked with war service. The Attorney General, during the Parliamentary debate on the bill, explained in the following terms:

'The whole purpose of this provision is to reverse completely the method of proof and put the burden of proof upon the authorities to negative any connection between war service and the disability. 16

And:

'In other words, if any question which is material to the case before any of these tribunals cannot be placed beyond reasonable doubt, the question must be determined in favour of the member of the forces'7. " (emphasis added)

In other words, a veteran's claim that his illness or injury was linked to his war service would be accepted unless the determining authority was convinced beyond reasonable doubt that there was no link. This is what Professor Smith refers to as

"the onus of disproof rule governing the Commonwealth".

During the long parliamentary debate on the 1943 bill, the Federal Opposition's only objection to this provision was that it might not be generous enough. Its spokesmen pursued the point vigorously1~

Successive Federal Parliaments supported these Provisions of the Repatriation act, so that it was these provisions which were in force when Australians were again sent to war, this time in Vietnam. These provisions were part of what Billy Hughes had described as the bargain, the promise.

Even in 1977 when the Repatriation act was completely overhauled, these onus of proof and standard of proof provisions were retained, indeed, they were made more explicit. So when Vietnam veterans began applying for compensation for cancer on the grounds that it was caused by their exposure to 'Agent Orange', it was under these long standing provisions.

For a cancer suffering veteran's claim to succeed' then, there had to be enough evidence supporting a link between the veteran's exposure to 'Agent Orange' and his particular brand of cancer to at least cause the reasonable doubt that would prevent a determining authority rejecting the claim. The Vietnam Veterans Association and its medical and scientific advisers felt certain that there was more than enough evidence for that. They saw the Department's rejection of these claims as its failure to do what the law directed. The Association therefore demanded a Royal Commission to both gather and publish all the available evidence, evidence which the Department could then not deny, and expose the Department's failure to obey the law.

I In the April 1983 edition of the Association's journal, Debrief the Association's hopes for the Commission were explained:

"It is possible that the Royal Commission could recognise that substantial conflicting evidence exists, therefore leaving the question in doubt. In this ease the Department's policy of not accepting chemical exposure as the cause of certain disabilities would be shown to be wrong because it is the Department's obligation to give veterans the benefit of any doubt18"

So with the 'onus of disproof rule' the central issue of the 'agent Orange' controversy, why did Professor Smith not discuss it in his history? After all, it was the Vietnam Veterans Association's belief that the Department was not giving veterans the benefit of this rule which resulted in their demand for a Royal Commission. Had they believed that the Department was applying it there would have been no 'Agent Orange' controversy in Australia. So why did Professor Smith not discuss the central issue. The probable answer is: he didn't know it was the central issue. After all though, he interviewed Justice Evatt, the council assisting the Royal Commission John Coombs, and a member of the Department of Veterans Affairs, he failed to interview even one Vietnam Veterans Association member involved in lobbying for the Royal Commission or any Vietnam Veteran Association member who later pursued the issue in the appeals tribunals.

Perhaps we are dealing with a war historian so arrogant as to despise the soldiers' view. Arrogance is certainly evident in Professor Smith's writing style. Perhaps, in the end, it was this arrogance which lead our official war historian to support obsolete and discredited findings of the Royal Commission and to miss the central issue of the 'Agent Orange' controversy. Perhaps it was this arrogance which condemned Professor Smith to write such bad history.

Neither, can the chief official historian, Dr Peter Edwards, avoid responsibility. The Bulletin of 15 March 1994 reported that

"Edwards says he is happy with Smith's contribution' 18

'. There is much more that could be said in condemnation of this wildly wrong account of 'Agent Orange' saga but time dictates that it must be said and written elsewhere.
And there is more evidence which has emerged since the publication of the history which confirms its irrelevance'9. One thing is clear. This badly researched, insulting, flawed and misleading Piece of official war history, must be rewritten.

References
I Mr Justice Phillip Evatt, Royal Commission on the Use and Effects of Chemical Agents on Australian Personnel in Vietnam, (Australian Government Publishing Service), Volume 1 Chapter IV, page 6
2Paraquat, diquat, bromacil, diuron, monuvon, disti1late creosote and borate-chlorate.
3Such as DDT, malathion, lindane, chlordatie and dieldrin. Mr Justice Phillip Evatt, Royal Commission on the Use and Effects of Chemical Agents on Australian Personnel in Vietnam, (Australian Government Publishing Service), Volume 8, Chapter XV, pages viii and 1.
5Mr Justice Phillip Evatt, Royal Commission on the Use and Effects of Chemical Agents on Australian Personnel in Vietnam, (Australian Government Publishing Service), Volume 8, Chapter XV, pages 22.
6 "The committee was... conservative in its evaluation of evidence" in Professor Robert MacLennan and Professor Peter Smith, Veterans and Agent Orange, Health Effects of Herbicides Used in Vietnam, (Department of Veterans' Affairs, September 1994), page 3. The US Academy of Science produced the list of cancers quoted above which it described as having 'sufficient evidence of association' It produced another list which it described as having 'limited suggestive evidence of association' The subsequent US Department of Veterans' Affairs Task Force, which demanded a standard of proof approximating the Australian civil standard (balance of probabilities), included m its list those in the Academy's 'limited suggestive (see MacLennan and Smith, op cit.). + Leukemia, lung cancer, trachea cancer, larynx cancer, and multiple myeloma. see Professor Robert MacLennan and Professor Peter Smith, Veterans and Agent Orange. Health Effects of Herbicides Used in Vietnam, (Department of Veterans' Affairs, September 1994).
8 There was some criticism leveled at the Royal Commission's report when it was released in 1985, some of it, in the authors view, valid. It is not the purpose of this paper to pursue that criticism. ,Brendan O'Keefe with FB Smith, The Official History" of Australia's Involvement in Southeast Asian Conflicts 1948-1975, Medicine at War. Medical Aspects of Australia's Involvement in Southeast Asian Conflicts 1950-1972, (Allen and Unwin in conjunction with the Australian W& Memorial, 1994), part Iv, FB Smith, Agent Orange: the Australian Aftermath, page 283.
10 Brendan O'Keefe with FB Smith, op. cit., Part IV, FB Smith Agent Orange, the Australian Aftermath, page 361
11 EJ Steele, AJD Bellett, PL McCullagh and B Sellinger (editors), Evatt Revisited, Interpretations of Scientific Evidence, Proceedings of a Conference which Re-examined the Findings of the Royal Commission on the Use and Effects of Chemical Agents on Australian Personnel in Vietnam, ( Centre for Human Aspects of Science and Technology, 1989).
12Ibid, page 1
13 Administrative Appeals Tribunal, Reasons for Decision, Repatriation Commission v Smith (1989)
14 Administrative Appeals Tribunal, Reasons for Decision, Humffray V Repatriation Commission (1991)
15 Administrative Appeals Tribunal, Reasons for Decision, Repatriation Commission v Schar (1991)
16 Administrative Appeals Tribunal, Reasons for Decision, Edwards v Repatriation Commission (December 1992) 17 Administrative Appeals Tribunal, Reasons for Decision, Kain v Repatriation Commission (December 1992) 18 Brendan O'Keefe with FB Smith, op.cit., Part IV, FB Smith, Agent Orange: the Australian Aftermath. Page 334 and 335 19 Mr Justice Phillip Evatt, Royal Commission on the Use and Effects of Chemical Agents on Australian Personnel in Vietnam, (Australian Government Publishing Service), Volume 1, Chapter l, page x Ibid., Volume 4, Chapter VIII, pages 392-398
20 Administrative Appeals Tribunal, Reasons for Decision, Repatriation Commission V Schar (1991), page 9
21 Mr Justice Phillip Evatt, op.cit., Volume 4, Chapter VIII, page 22-23
22 Administrative Appeals Tribunal, Reasons for Decision, Edwards V Repatriation Commission, (December 1992), page 15 Administrative Appeals Tribunal, Reasons for Decision, Kain V Repatriation Commission (December 1992), page 16-17
23Mr Justice Phillip Evatt, op. cit., Volume 8, Chapter XV, page 15
24 Administrative Appeals Tribunal, Reasons for Decision, Kain V Repatriation Commission

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