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Wednesday, 26 November 1941


Mr MORGAN (Reid) (1:23 AM) .Perusal of the last annual report of the War Pensions Entitlement Appeal Tribunal more than bears out "my contention during the debate on the amending repatriation legislation that the tribunal interprets the Australian Soldiers' Repatriation Act to the disadvantage of returned soldiers and their dependants. When I spoke on the bill I said that 90 per cent, of the appeals to that tribunal which had come to my notice had been, rejected. I did not exaggerate the position because the only case in which the appeal was upheld resulted in the War Pensions Assessment Tribunal reducing the amount to which the applicant was entitled. After having fought his case before the tribunal for two years this returned soldier found, after winning his appeal, that his pension had actually been reduced. Therefore, to say that 95 per cent, of the cases were decided against the returned soldiers was an understatement of the facts. The figure should have been 100 per cent. All of the cases with which I was concerned involved constituents of mine, and, although I suspected that their experiences with the tribunal were common to ex-service men all over Australia I had no means at my disposal of proving that, to be the case. As a member of the Printing Committee, I came across the typewritten report of the Waa- Pensions Entitlement Tribunal, which does not form a part of the report of the Repatriation Commission. As I have already said, the figures in that report bear out the truth of my contention about the way in which the War Pensions Appeal Tribunal treats returned soldiers and their dependants. Of 502 appeals by dependants of deceased ex-soldiers, 450 were disallowed, and only 52 allowed. Approximately nine out of ten applications are rejected. The figures for the respective States are as follows: Queensland, disallowed 65, allowed 6; New South Wales, 155, 19; Victoria, 155, 15; South Australia, 27, 5; Western Australia, 45, 4; Tasmania, 12, 3. Appeals by ex-soldiers totalled 1,337, of which 1,120 were disallowed and only 217 allowed, the figures for the respective States being: Queensland, disallowed 192, allowed IS; New South Wales, 434, 93; Victoria, 325, 54; South Australia, 60, 14; Western Australia, 75, 28; and Tasmania, 34, 10. A total of 450 appeals by dependants of ex-soldiers were disallowed, and only 52 allowed, whilst of 82 applications under section 45k seven were disallowed and only 42 allowed. Thus of a grand total of 1,935 appeals by returned soldiers or dependants, 1,652 were disallowed, and only 2S>3 allowed. Coming to appeals in cases arising out of oversens service in the present war I find that all of the four appeals dealt with were disallowed. Included in the figures I have just given were 132 appeals from exsoldliers and their dependants, arising out of the first year of this war, and of these 22 were allowed, and HO disallowed. Those details reveal a sorry state of affairs. They show that something is radically wrong with the present position. I come now to the main report of the Repatriation Commission, which shows that applications for service pensions, that is, applications by returned soldiers who become unemployable before reaching the age of 65, at which age they would become entitled in the ordinary course to the old-age pension, are constantly increasing. The total payments in respect of service pensions increased from £111,840 in 1936, to £533,622 in 1941, the amounts for the intervening years being: 1937, £263,279; 193S, £360,815; 1939, £43-9,552; 1940, £4S4,4S2. Whilst applications for service pensions, that is, applications by men who suffered no actual disability during the war, are increasing, payments to men who actually sustained disabilities, or injuries, during the war are decreasing. The only conclusion" to be drawn from that fact is that the repatriation authorities are entirely unsympathetic towards this class of applicant. The total amount paid in respect of war pensions to exsoldiers and their dependants totalled £7,440,901 in 1936, and increased to £7,599,599 in 1937, reaching the peak of £7,725,963 in 1938, after which they declined to £7.534,677 in 1940, and to £7,346,265 in 1941. These figures showthat the treatment meted out to the exsoldiers who actually sustained injuries during the war and their dependants is not so sympathetic as that given to exsoldiers merely on the ground that they are unemployable. The latter have only to prove that they served in a theatre of war. and that they have become unemployable. Medical evidence that they are unemployable is sufficient proof. One wonders whether the unsympathetic treatment meted out to applicants for pensions on the ground of injury received during the Avar is due simply to the unsympathetic attitude of the Repatriation Commission or to lack of evidence in support of the claims of applicant.;. Obviously, much of the evidence which would have been available to the ex-soldier some years ago had he then decided to apply for a pension, has since been lost; bis claim is further weakened by the fact that many witnesses have died. Section 45w (2) of the Australian Soldiers' Repatriation Act reads -

Subject to this act an Appeal Tribunal and an Assessment Appeal Tribunal shall not. in the hearing of appeals, be bound by any rules of evidence but shall net according to substantial justice and the merits of the case and shall give to an appellant the benefit of the doubt:

Provided that if the appellant or a representative of the appellant shall make out. a prima facie case in support of his claim that the incapacity from which he is suffering or from which he has died was caused or aggravated by war service, the onus of_ proof that such incapacity was not in fact so caused or aggravated shall lie with the commission.

Judging from the figures which I have just given it would appear that this principle has not been applied. Certainly, that fact is clear from the cases which have been brought to my personal notice. I submit that the principle should be applied in respect of not only appeal tribunals but also the commission itself in the first instance. We know, of course, that an appeal tribunal is naturally inclined to lean towards the opinion of the body from which the appeal is made. The section continues -

Provided further that in the case of the death caused by an accident of a member of the forces, who is wholly or partially incapacitated as the result of war services, th» burden of proving that such incapacity did not contribute to a material degree to the death of the member shall lie upon the commission. (3.) Tlie hearing of any appeal under this part shall not bc open to the public. (4.) For the purposes of sub-section (2.) of tills section an appellant shall bc deemed tt> have made out a prima, facie cage when he avers that thu incapacity or death of tin; member of the forces resulted from an occurrence happening during the period he was a member of the forces or from his employment in connexion with naval or military preparations or operations or is directly attributable to his employment as a member of the forces.

In order to make out a prima facie case an applicant need only show that death or incapacity occurred during the period when the ex-soldier was a member of the forces or as a result of such service. All that is required is an averment to that effect. However, that principle is not observed in actual practice. On the contrary, appellants are put to much trouble to adduce evidence, much of which is unobtainable owing to the death of witnesses, or the loss of records. In practice, the onus of proof rests on the applicant and not on the tribunal as stipulated by the act. That is proved by the fact that 90 per cent, of appeals are rejected. I have a summary of every case that has come to my notice during the time I have been a member of this Parliament and that information shows that in each instance the tribunal rejected the appeal although the evidence adduced was sufficient to convince any intelligent person that the disability was due to war service. . Modern conditions of war are severe on the human frame and lay it open to almost all of the diseases to which flesh and blood are prone. In wars men become weakened physically and constitutionally, and contract diseases that in other circumstances they would be able successfully to resist. Our repatriation machinery is due for a complete overhaul and I trust that the Government will heed the requests of honorable members of all parties for the appointment of either a select committee or a joint committee to investigate the position with the object of recommending measures to ensure that justice will be done to our ex-soldiers and their dependants.







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