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Friday, 15 June 1984
Page: 3104


Senator MACKLIN(10.01) —The Repatriation Legislation Amendment Bill is obviously the first of a number of pieces of legislation arising out of the Administrative Review Committee report which reviewed the entire repatriation system. To that extent, it is welcomed by the Australian Democrats. Our original intention was to seek to delay the legislation until the Budget session. However , it has been made clear by the Opposition that it would not agree to such a course and hence I will move a number of amendments in the Committee stage. I would have moved more except for the short time that has been available to the Senate actually to digest this legislation.

That essentially is the problem with the legislation. Regardless of the consultations beforehand, it is recognised that this area has been a matter of contention and legal argument for a long period and that many of these arguments turn on words or phrases in the original Act. It is not a matter of semantics or legal jargon. We are talking about people's entitlements; we are discussing their livelihoods. It seems to me in those circumstances that some time might be given to mature consideration of such dramatic changes. Over one and a half million people in Australia are affected by such legislation, and I would have thought more time would have been given to allow all concerned to view the legislation in detail and consider its merits or demerits. That is essentially what we were seeking, but obviously the numbers are against us.

It is very difficult at the moment to discern in the veteran community what veterans' concerns are. We have heard from the national executive of the Returned Services League, as the previous speaker, Senator Scott, said, but there is a considerable number of other organisations in the veteran community. It is probably not well known that Australia has more veterans' organisations than any comparable country. The reasons for that are numerous, but at least one of them is that many people have felt dissatisfied over the years with the major organisation in the area, that is, the RSL, not in terms of the type of work it has set itself but in the type of work they see as being left aside, mainly in the welfare area. I believe that in that area, regardless of the comments made in letters and publicly by the Minister for Veterans' Affairs (Senator Gietzelt) and other people denigrating these organisations, they actually work on the ground and in the hospitals. They do visit the various people in their homes and they do support them before the Repatriation Review Tribunal and the Repatriation Commission as advocates, and they do it unpaid. They do it out of regard for their former comrades and their widows and children. It seems to me that one ought to be very careful about the types of comments made about such people. I am referring here to the Air Force Association, the Australian Legion of Ex-servicemen and Women, the New South Wales Ex-Prisoners of War Association, the Federated TB Sailors, Soldiers and Airmen's Association, the Partially Blinded Soldiers Association of Australia, the Vietnam Veterans Association, the Regular Defence Forces Welfare Association, the Rats of Tobruk Association and so on. These people give up enormous amounts of their time and energy and have done so for years. I think it is reasonable if those types of groups come forward and ask: 'Can we have some time-eight weeks-just to go through this legislation to satisfy ourselves that it is in the interests of the people we are looking after?' That is all they have requested, just that short period to be able to do that. That does not seem to me to be too much, because after all, this Bill will pass only the Senate in this session; the House of Representatives is not here to pass it so it cannot become law. We are being pushed into a situation where the Government is saying: 'Once it has passed the Senate we do not have to worry about the House of Representatives. We are not concerned with the House of Representatives and its views on the matter because that would simply be a number crunching operation'. I think that is a pity. That short period should be allowed so that those people can satisfy themselves that this piece of legislation is in the interests of their members. There are a number of concerns with it, not the least of which is that it abolishes the Repatriation Review Tribunal. The equanimity with which the Opposition has accepted the destruction of that organisation I find intriguing, particularly as it was the Opposition which established it in 1979.

In looking at the annual report of 1982-83 we note a very interesting fact in terms of Commission decisions set aside or affirmed. Thirteen per cent were affirmed and 87 per cent were set aside-87 per cent of appeals to the Repatriation Review Tribunal were set aside. That is the body which is being abolished by this legislation. I do not think, with the best will in the world, any people who work with veterans could say that they could face the abolition of that Tribunal with equanimity. They have to trust in the Minister on this one . Essentially what is being abolished is the best part of the whole repatriation system, the part which has worked for the veterans. Looking beyond the Repatriation Review Tribunal at how its judgments have survived at higher courts , one finds tremendous support in the Federal Court in terms of its upholding the Tribunal's judgments. This is not so, of course, with the Administrative Appeals Tribunal, which is going to take over this type of operation. In the Committee stage I will go through a number of the judgments which have been made recently in which some of the AAT's operations have been castigated severely by the courts.

It may be that the new organisation will work better, but all we have at the moment are promises on that. Undoubtedly, the system does not work and has not worked for some time. There are people who have been in the system whose medical condition and status in life have been destroyed, not by war service but by the system which was established to help them. They have been in the system sometimes for up to 11 years. Every time they get to a point where they feel they will get some justice, there is a new round of doctors to be seen, a new round of psychiatrists and a new set of dates for more medical opinions. Everybody has known for a long time that it is vitally necessary to update the system and improve it for the benefit of the people for whom it exists. In many ways, many veterans-one would think, when one goes around the annual conferences of the various organisations in Australia, that maybe the overwhelming number of veterans-feel that the system is set against them, not set up for them. It seems as though they are battling the system rather than having the system battle for them. That is essentially why the system was put in place and why it was established.

What we have now is a new system based on identical process lines. Why one would believe that it will work when the old one did not I have no idea because the lines of process are identical. There are no innovative approaches to determine those. All we have is a changing of the numbers, and a moving around of bodies and giving them new names, but essentially, the operation of the system will be identical and the system will crunch the people in it in an identical fashion. However, there are ways of moving that system around. There are ways of improving the system for its clientele. It seems to me that, ultimately, when this system fails, as unfortunately I believe it will fail, those other process systems will have to be tried. Some of them have been attempted overseas and have worked well. Of course, that is absolutely no reason why they should work in Australia. But at least it may give us pause to look and consider the other types of systems that might be available to us.

In particular, if one looks at the success rate of many of the individual areas of claims, one is struck by the fact that one can pick out certain groupings which have a very high success rate at the initial level of the system. This new method will probably treat those in almost the same way. A large number of claims, indeed, the overwhelming number of claims which are put in, are satisfied at that initial level. That is probably the best aspect of the system. But it is the people who have to go on from the initial element who really become the concerned because they are the difficult cases. They are the cases which do not fit, as it were, like a suit off the peg; they do not fit in precisely and, therefore, more judgments are needed to be made about their cases .

Each claim that goes on involves an individual and probably a family and children. It is those people about whom I am concerned and I know the Minister is concerned, as have been previous Ministers. But it is a matter of how it is organised and treated. It seems to me that the Act is a tremendously strong supporter of the veteran community. This Parliament traditionally has been an extremely strong supporter of the veteran community. The Parliament has not been remiss in this matter. It has been made very clear in what was probably the most celebrated case of which most people are aware-the High Court case concerning Nancy Law-that what was going on was not the wish of the Parliament or the legislation.

My worry is that what may occur under the new system, as occurred under the old system, is a backsliding into an area where veterans feel that they have to prove yet again that they are worthy. The veterans have to be able to show that they are not bludgers. The specific problems which arise out of each war have to be treated in a sympathetic way, so that the community understands why it has chosen to take on an obligation to those veterans and why it wishes to support those veterans. It is extremely important in a debate such as this that we make very clear that the Parliament re-affirms its attitude on this matter and that the Parliament's attitude is that it is not the responsibility of the veterans to be able to prove that their disability is war-caused; it is the responsibility of the determining organisations to show that it is not war- caused.

It has been an essential ingredient of this legislation since it was first enacted that the onus of proof is on the community; it is not on the individual veteran. That must be retained, and retained at all costs. But it must be retained not only in the broader philosophical sense but also in the sense that each level of the system operates with that view in mind; that it is not the veteran's obligation to present voluminous material and medical records; that the system should make sure, if it wishes to raise doubt, that it can prove that doubt.

I believe that when one reads through the various determinations, particularly the determinations of the Repatriation Review Tribunal and the 87 per cent of the Commission's decisions that it tossed out last year, one sees time and again at that level that the medical officers simply made the statement, 'this is not war-caused', and that is accepted as proof. It is not proof at all. That is why the Tribunal had to do what it did last year. That is why the year before, for example, it set aside only 67 per cent of the decisions and the year before that it set aside only 34 per cent. It became more and more aware that the Commission was not operating for the veterans, but was operating in an antagonistic way towards the veterans and in a way which was not in their interests. There is no other way to explain why the Tribunal threw out 87 per cent of those decisions. I am concerned that we do not have all the veterans' groups now on side with this new legislation. I believe that given eight weeks we could have had them on side. But we have not been able to have that opportunity. I think that is to be regretted. It is extremely important in this area that we not only make sure that we are doing the right thing, but also that we assure every veterans' group and every veteran in Australia that we are doing the right thing. That is important, because it is their perceptions of the system which will make it work .

We are dealing with a very difficult area which in many ways is intractable. Since we are to have this system, the way to make it work is to convince every group that it will work. We can do this by getting them on side prior to the passing of the legislation and by making sure that every clause that they might be worried about is not to their disadvantage. If we can do that we will give this system a chance of working. If we start as we are now by being offside with significant groups in the veteran community-whether they be the majority or not is not to the point-we are not giving the legislation the best chance possible. I appeal to the Minister that this legislation, if at all possible, be held over to the Budget session to allow the Minister to meet each of those groups personally and to assure them that their worries about the legislation are unfounded. Having watched the Minister's performance to date, I believe that he has the capacity to get those groups to agree that the legislation can work and will work in their interests. His personal approach to these groups, rather than one made by his Department or any other group, would satisfy them on each point. I believe that when we come back in the Budget session the Bill could pass, probably in a form very similar to that which is now before us.

I understand that the Minister has problems in getting the legislation operational by the beginning of next year. Overriding the arbitrary choice of 1 January next year as the starting date for the operation of the legislation is a far more important principle; that is, that every group in the veteran community be in support of what the Minister is trying to do. If they support the legislation, the Minister has a very good chance of overcoming the problems that are likely to occur. One knows that this legislation will not be a panacea. Indeed, I believe only a change of philosophy or an increase in the administration in such a way as would make it entirely unacceptable in terms of cost would ever solve the enormous backlog. But I hope that we can get everybody to agree to give this legislation a go and to give it his full support. But we do not have that as yet. If we start on this foot, this system will end up looking very similar to the previous system.

The Minister gave an undertaking about the legislation which would be brought down as a result of the recommendations of the Administrative Review Council report that there would be a delay. Fairly obviously, the guarantee given at that time was in response to a total package. Therefore, I for one believe it would not be fair to hold the Minister to the promise that he gave in terms of the total package by applying it to this matter. However, I believe it would be in the spirit of the Minister's original guarantee, although I do not accuse him of breaking any specific promises made in respect of consultation with various veterans' groups, to give sufficient time to groups to go over the fine details of this legislation. This undertaking ought to apply to this legislation as well , even though it deals only with the determining aspect.

Since it seems this matter will not be delayed-the Minister seems to be intractable on this point and has the support of the Opposition-I make one last request that the Minister, between now and the Budget session, meet with the groups which are still concerned and, if there are any outstanding points that the Minister feels ought to be changed, he undertake to change them, first up in the Budget session. That probably is the second best approach but at least if we are going to get the system going, as undoubtedly now we are, we ought to have everybody behind it and everybody supporting it to give it the best possible chance of success.