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Friday, 15 June 1984
Page: 3110


Senator MACKLIN(10.51) — by leave-I move:

(1) Page 30, clause 19, after proposed section 107VZC, add the following new section:

Qualifications for appointment

'' ' 107VZCA. (1) A person shall not be appointed as the Principal Member unless he is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory and has been so enrolled for not less than five years.

'' ' (2) A person shall not be appointed as a Senior Member unless-

(a) he is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory; or

(b) he has obtained a degree in law of a university or equivalent institution.

'' ' (3) A person shall not be appointed as a member unless he is a medical practitioner or has, in the opinion of the Governor-General, other special knowledge or skill which is of substantial relevance to the duties of a member.' '.

(2) Page 30, clause 19, proposed section 107VZD, leave out sub-section (1), insert the following sub-section:

'' ' (1) Subject to this Division-

(a) the Principal Member holds office until the date on which he attains the age of 65 years; and

(b) a member other than the Principal Member holds office for such period, not exceeding 7 years, as is specified in the instrument of his appointment, but is eligible for re-appointment.''.

The amendment inserting proposed new section 107VZCA essentially seeks to restore to the new organisation, The Repatriation Commission, the structure of the old organisation, the Repatriation Review Tribunal. In particular it seeks to establish a legal status of sufficient status and standing for the Veterans' Review Board to make its determinations and views stand at later stages of appeal. Since the RRT began operating in 1979 almost 50 decisions on repatriation matters have been handed down by the High Court of Australia and the Federal Court. It would seem that it is important, because of the amount of activity in the past and, undoubtedly, the resurgence of activity that will follow the new repatriation Act-when it is brought in at the Budget session next year-that the Review Tribunal be of sufficient calibre that we do not have flowing from the new Board such a large number of cases as would cause further concern and unrest in the veteran community.

If we look at the recent full Federal Court decision in the O'Brien case, in which the Commission's view of the standard of proof under the Repatriation Act was said to be demonstrably fallacious and inconsistent with the legislation, and the decisions of the High Court, surely we must take some pause. Likewise in the Perrot case when Mr Justice Kirby said that the earlier views of the court which gave some support to the Commission's views sought to:

. . . resuscitate precisely the two stage process that Aickin denied and for which the Act gave no warrant.

Undoubtedly the legal complexities of the Repatriation Act as it currently stands will be simplified in the new Act. Nevertheless I believe that the Board will undoubtedly be pressed on matters of law. I think that the prospect now exists under the Act for the Veterans' Review Board, with no legal expertise, to decide appeals contrary to the decisions of the Commission. One can certainly speculate as to what might happen in those circumstances. I do not think that would be very fruitful. I think that surely the best way to go is to ensure that the Veterans' Review Board has sufficient standing-indeed identical standing to that of the Repatriation Review Tribunal that the previous Government established. Indeed, my amendments are taken directly from that previous Repatriation Review Tribunal's organisation. They are identical to what the previous Government, now the current Opposition, established when it established the Review Tribunal. They seek to establish an identical operation. We believe it ought to be established in a way which will give it that same type of legal standing.

Amendment (2) looks at a slightly different matter, but I have moved the amendments together because both refer to the qualifications of members. It refers to the principal officer holding office until a date on which he attains the age of 65. That provision was in the previous Repatriation Review Tribunal. It is not in the Veterans' Review Board. That, coupled with part (b) of my amendment, which changes the period from five years to seven years-which after all was the recommendation of the Administrative Review Council report which the Minister says he is seeking to implement-will give that Board the desired degree of independence that is necessary. It is not absolutely vital in terms of the operation, but rather it is vital in terms of the perception of the operation, that that Board be seen to be independent, as the RRT was independent, and as the previous Government saw that that Board ought to be independent and ought to have that perception of independence. So my second amendment is taken directly from the current Act and seeks to restore the principal member holding office until the date on which he attains the age of 65, and to provide that a member other than the principal member shall hold office for such period, not exceeding seven years, as is specified in the instrument of his appointment, but is eligible for reappointment.