Final koha to those who have served

Sir Wira Gardiner was a soldier, public servant, author and historian.Picture Supplied

This week the New Zealand High Court released a judgement of public interest in regard to a case brought by the estate of Lieutenant Colonel Tā Harawira Gardiner KNZM. The New Zealand Herald’s David Fisher examined why the case is so important.

Sir Wira Gardiner’s final “koha” to those who served in our military has come to fruition in the form of a High Court judgement that should make it significantly easier for support to be provided to veterans.

Gardiner’s widow Lady Hekia Parata, former Cabinet minister and now Royal Commissioner, said the judgement offered clear guidance to Veterans’ Affairs to take a more empathetic and less bureaucratic approach to claims.

She said the ruling showed the current system “was being applied rigidly and in an excluding and almost bureaucratic tick-box way”.

Gardiner was diagnosed with a brain tumour in July 2021 and — after encouragement from a fellow Vietnam War veteran — lodged a claim for Veterans’ Affairs support.

The type of tumour — a glioblastoma — was known to other Vietnam veterans who had been exposed to the chemical herbicide Agent Orange during the conflict.

Friend and fellow veteran Ross Himona said Gardiner was aware he would likely die before the claim ran its course but wanted it pursued as a test case because of the potential benefit it could offer other veterans.

“He wanted to leave a koha for all veterans.”

Gardiner’s claim was initially rejected by Veterans’ Affairs and rejected again on review. It was then accepted by the Veterans’ Entitlements Appeal Board.

That led to a High Court challenge from Veterans’ Affairs against the estate of Gardiner, who died in March 2022, to challenge the finding of the board.

The judgement has paved the way for a fresh ruling to be sought that Gardiner’s military service led to the brain tumour that claimed his life.

But the objective to achieve a benefit for all veterans was realised with the judgement removing many of the fishhooks on which claims had been caught.

The judgement from Justice Helen McQueen found against Veterans’ Affairs interpretation of the law on a number of fronts, saying the primary purpose of the legislation was to recognise the sacrifice made by veterans.

McQueen’s judgement endorsed scrutinising veterans’ claims through the principle of “benevolence” — as written into the 2014 law — rather than holding it up on administrative and procedural points.

She said it was important “a benevolent approach is taken” so that the justice and merits of the claim are considered rather than technicalities.

McQueen traced the genesis of the new act and the end of the War Pensions Act 1954, saying the older legislation was designed with World War 2 veterans in mind and “did not reflect modern understandings of psychological and environmental trauma”.

It also needed to take account of the 2010 Law Commission report later incorporated into the 2014 law that described an “enduring obligation” to those who put themselves in “harm’s way” and that veterans’ claims should be decided with an approach of “benevolence”.

Gardiner’s claim followed the legal process which checks to see if conditions claimed are covered under a list drawn up by Australian authorities, and if so, if the accepted causes were among the specific rules.

While Gardiner’s glioblastoma was a recognised condition, his claim was rejected because it did not fit with the three specified clauses set out in the Statement of Principles.

McQueen said administration of the Act centred on the section of the legislation that provided a framework that had to be applied to claims. Unlike most legislation, the judgement said, it compelled those making decisions under the law to use the framework to guide decisions rather than simply pay heed to the framework.

The framework included “promoting equal treatment of equal claims”, “taking a benevolent approach to claims” and to focus on the justice and merits of the claim rather than “any technicalities, legal forms, or legal rules of evidence”.

It was this section of the law that led into the list of conditions and qualifying causes which, said McQueen, was “not an exhaustive process”.

“I do not consider that Parliament intended the effect of introducing the default process to be to exclude possible claims, to the disadvantage of veterans.”

McQueen said when cases before Veterans’ Affairs were found to be recognised conditions but did not meet qualifying causes, it was not reason to dismiss the claim.

Instead, she said the claim should then follow the process of those that did not involve recognised conditions and be judged on whether they were supported by a reasonable explanation.

McQueen was also said it was open to claimants to urge consideration of an earlier case under the preceding legislation in which a Vietnam veteran sought after being diagnosed with a brain tumour blamed on Agent Orange.

She said ruling out consideration because it occurred under earlier legislation was an argument of “legal technicalities over substantial justice” and earlier cases should be allowed.

McQueen also endorsed the validity of claimants seeking support from overseas jurisdictions as was attempted in Gardiner’s case when similar claims in United States’ tribunal showed rulings in favour of veterans.

She said it did not mean it was always correct to do so but those deciding on claims had wide-ranging freedom to seek support.

McQueen would not rule on Gardiner’s claim but questioned the reasoning underpinning the board’s support for it. She said the board should approach the appeal again and make a fresh decision with the benefit of the High Court ruling on how the law worked.

Parata said the judgement recognised her concern around the process followed in assessing veterans’ claims which was meant to “be far more responsive and inclusive”.

“The emphasis is on applying the principle of benevolence. Trust these people - they are not making stuff up.”

Parata said it raised questions over whether NZ Defence Force was the right place for Veterans’ Affairs to be housed as the parent body wasn’t a natural fit for an agency focused on support and welfare.

Himona said Veterans’ Affairs worked for about 90 per cent of claims made but the remainder - “the tricky ones” - were those not well-served by the way the law had been interpreted.

For those claims, he said the new judgement opened up pathways that would provide support and wellbeing to those who needed it.

Himona said Veterans’ Affairs remained under pressure with a 300 per cent increase in claims over the last year as improving Returned and Services Association support for contemporary veterans helped lodged claims.

He said the next mandated review of the legislation was 2025 but he urged an independent inquiry ahead of that with the aim of improving the system.