Agent Orange Funds

Agent Orange is the collective name given to a chemical defoliant used in the Vietnam War to remove tree cover and other foliage which potentially concealed enemy forces. The manufacturing processes for Agent Orange contains dioxin, one of the most toxic substances known, which, amongst other things can lead to birth defects and other health problems.

After the Vietnam War ended there was much product liability litigation in the United States between the Defense Department and the major chemical companies who manufactured Agent Orange, from persons or groups claiming such damage. To resolve the matter, the various actions were initially brought together into a class action in 1980 before the United States District Court. The senior judge to whom the case was assigned when it recommenced in 1982 in United States District Court, Eastern Division of New York was a World War II veteran, Chief Judge Jack B Weinstein, had presided over the then largest product liability case in the United States.

Those seeking to be included in the class the Court decided were to be covered by the case included 3,214 Australian veterans as well as New Zealand and United States veterans and certain of their dependents. The case then proceeded and after extensive and widely publicised hearings in New York, Judge Weinstein found that the material presented did not meet the legal standard of proof required for disability compensation to be awarded.

To avoid further legal costs, which had then amounted to many millions, the Judge advised the parties to settle. To assist in that process, he appointed a prominent attorney, Mr Kenneth R Fineberg, as Special Master and directed him to recommend an appropriate form of settlement, which the Court decided upon on 7 January 1985.

As the systems for veteran disabilities varied between the three countries, the Special Master was asked consider the different national requirements. As part of that process, a request was made to the Australian government to manage the Australian share of the out-of-Court Settlement, as the Court was not willing to have any one of the competing organizations administer the whole national share. A similar view was adopted for the New Zealand and United States shares.

In Australia, after a conference called by the then Minister for Veterans' Affairs, Senator Gietzelt, where all the major ex-service organizations were represented, interested, the Australian Vietnam Veterans Trust Limited was established on 22 August 1985, as Company Limited by Guarantee.

The main purpose of the Company was to manage the distribution of the Australian share of the Agent Orange Out-of-Court Settlement in the United States District Court, and to act as the Trustee for those funds.

The sponsoring organizations were the Vietnam Veterans' Association of Australia, the Returned and Services League of Australia, the Legacy Coordinating Council and the Australian Veterans and Defence Services Council.

Those ex-service organizations appointed the directors of the Company and the Minister for Veterans' Affairs appointed the Chairman, who served at the Minister's pleasure. The Court required that as many as possible of the directors be Vietnam veterans. The Hon C L D Meares, AC, CMG, QC , a retired NSW Supreme Court Judge and World War II veteran, was appointed as the first Chairman. The Memorandum and Articles of Association of the Company required the Chairman and the directors to serve in a voluntary capacity without remuneration.

After the Special Master's report was considered by the Court and the parties, the Court handed down the Out-of-Court Settlement Order in the Agent Orange Product Liability Litigation, on 28 May 1985.

In late 1989, following finalisation of appeals against the settlement order in the United States, Australia received its $A5,500,000 share of the Settlement funds which by then totalled over $US 243,000,000.

Distribution of the Australian funds was limited to Australian Vietnam Veterans or their dependents in necessitous or deserving circumstances and was governed by the Australian Distribution Plan, a document approved by the US Court.

The Distribution Plan required the funds to be distributed over a timed program, to end by 2012, or earlier if funds were all expended. 90% of the money was to be for a Cash Payments program (or Fund A) and the remaining 10% kept for a Future Assistance Program (or Fund B).

The Cash Payments Program was designed to make individually tailored cash payments to individual veterans and their dependents in necessitous and deserving circumstances. It operated from the start of distribution operations in April 1989 to the end of that program in 1996, through an honorary Regional Committee structure of Vietnam veterans, with delegated approval powers and small, staffed offices in the State capitals and elsewhere, following the pattern established after World War II using disbanded unit canteen funds. To meet the Court's requirement there were also supporting Regional Appeals Tribunal. The composition of the Regional Committees mirrored that of the Board which included from 1990 onwards, a Female Member. The members of the Regional Committees and Appeals Tribunals served in a voluntary capacity without remuneration.

In 1992, as part of its distribution programs, the Trust established the Vietnam Veterans Trust Education Assistance Scheme (VVTEAS) which provided financial assistance to selected eligible children with the costs of their tertiary education. Established for that purpose were independent, honorary regional educational advisory committees, comprising professional educationalists and veterans.

From the end of 1996 when the Future Assistance Fund to June 2003, when the Agent Orange funds ended, the Trust concentrated its activities on VVTEAS. In the later years of that scheme, the Trust accepted responsibility for the administration of similar bursaries and scholarships funded by others.

In late 1996, following the closure then of the United States Agent Orange Payments and Class Assistance Foundation programs, and the imminent closure of the New Zealand Agent Orange Board, the Trust bid for and received an additional $A748, 000 from the US Court.

The following Table shows the use of the Agent Orange funds.

After allowing for outstanding liabilities and the finalisation of the Agent Orange funds, $2001 remained. That, with the approval of the Court, was used to assist the re-structure of the Trust as the Australian Veterans' Children Assistance Trust Ltd, with effect from 30 June 2003. See AVCAT's Background

For answers to frequently asked Questions about AVCAT, click here.