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Thursday, 13 October 1955

Mr FALKINDER - This year, the rate has been increased to £9 15s. a week. I suggest to the honorable member for Parkes that that rate is not niggardly.

I want to make one or two comments on the remarks of the honorable member for Fremantle in relation to averments made by exservicemen. I think that the honorable member understands the position, but I want it to be clearly understood by all honorable members that the averment is made by the ex-serviceman when he makes application to the commission for a pension. lt is from that point onwards that the appellant may follow the procedure that has been mentioned during this debate. Therefore, he has ample opportunity in which to press his case further.

Because there seems to be some considerable misunderstanding in the minds of one or two honorable members about the procedure that is followed in repatriation pension cases, I shall trace it right, through. When an ex-serviceman makes an application, he makes the first approach to a repatriation board. The board in each State consists of three members, all of whom are returned servicemen. The chairman is appointed by the Repatriation Department. One member is appointed by a servicemen's organization, and the other is appointed by an outside body. In some cases, the member is a representative of the Returned Sailors, Soldiers and Airmen's Imperial League of Australia, or of other ex-servicemen's associations.

If a repatriation board rejects an application, the applicant may appeal to the Repatriation Commission. The present chairman of the Repatriation Commission is Major-General G. F. Wootten, who is a returned serviceman of both world wars. Mr. H. G. Roy, the deputy chairman, is a returned soldier. The other member of the commission is Mr. E. V. Raymont, who was formerly the federal secretary of the returned servicemen's league. He was appointed from a panel of names submitted by that organization. The member appointed by an ex-servicemen's organization holds office for only five years. At the end of his term of office, he has to go back to bis organization for re-appointment. The Minister for Repatriation (Senator Cooper) cannot re-appoint him. Either that man, or some other man must he appointed by the ex-servicemen's organization, so that there is some hold over him to ensure that he will do good work for the organization which appointed him.

If the Repatriation Commission does not uphold the appellant's case, he may appeal to a war pensions entitlement appeals tribunal. Each tribunal has three members, all of whom are returned servicemen.

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - That does not prove anything.

Mr FALKINDER - It proves one thing, surely, which is that the members of the tribunal would be sympathetic towards appellants. That is an indisputable argument. The chairman must be a barrister or a solicitor of the High Court of of the Supreme Court of a State. One member is appointed by an ex-servicemen's organization, and the other by the Governor-General, on the recommendation of the Minister for Repatriation. That is the set-up of the war pensions entitlement appeals tribunals.

In the case of the war pensions assessment appeals tribunals, the position from the ex-serviceman's point of view is better still. The personnel of each tribunal consists of a chairman and two medical members. The doctors are selected from lists of medical practitioners, having regard to the nature of the incapacity in the case or cases under consideration. But the chairman is nominated by an exservicemen's association. Therefore, the ex-servicemen's organizations have complete control of the assessment appeals tribunals. The chairmen of those tribunals are appointed for five years, and since the present Minister for Repatriation has held that portfolio, only one chairman has left his position. He retired because he had attained the age of 65 years. However, there are three chairmen of entitlement appeals tribunals who have graduated to their present positions from being chairmen of assessment appeals tribunals.

The entitlement appeals tribunals are the bodies which decide whether they will accept ex-servicemen's disabilities for repatriation purposes. The assessment appeals tribunals are merely for the purpose of assessing pension rates. If the Repatriation Board decides that a pension rate should be 40 per cent., the man involved may appeal to an assessment appeals tribunal and need not go before the Repatriation Commission at all. However, an ex-serviceman can appeal to the commission and, if dissatisfied with its decision, he can then appeal to an entitlement appeals tribunal. Every claimant who appears before an entitlement appeals tribunal is entitled to an advocate - not a member of the legal profession, because the ex-servicemen's organizations decided that they did not want to be involved in legal technicalities - but an advocate supplied by the Returned Sailors, Soldiers, and Airmen's Imperial League of Australia, other exservicemen's organizations, the Legal Services Bureau or the Repatriation Department.

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - Could a member of Parliament appear as an advocate ?

Mr FALKINDER - Yes, I believe he could. In many instances, the department has supplied an advocate, who hae done a very good job for the exserviceman. In fact, the advocates made available by the department take a pride in winning the cases in which they appear. I know this to be so from personal experiences in my own State.

It is open to the Repatriation Commission to have a representative appear before the entitlement appeals tribunal, but up to the present time it has not availed itself of that opportunity, because it has not desired to influence the tribunals in any way. It has been said that the tribunals do not give to applicants the reasons why their appeals are dismissed. The Repatriation Commission sends to the chairman of the tribunal a summary of the evidence on which the commission has found against the claimant. The commission also sends on all the files on the case. A copy of that summary is handed to the appellant's advocate who then knows exactly why the commission had disallowed the claim. The advocate then takes that summary along to medical specialists and gets their advice on how to handle the medical evidence that he wishes to put before the tribunal.

After the tribunal has accepted or dismissed the claim, the advocate knows, because the matter has been decided largely on the summary, the reason for the verdict, and may inform the claimant. I think the suggestion made by the honorable member for Bowman that a member of the Repatriation Department might also notify the claimant is a very good one indeed. It is one that I think might well be considered. The advocate gets the summary a week or a fortnight before the case comes on. If he has not sufficient time to consider the evidence he may have the hearing deferred. After a case has been disallowed by the tribunal, the appellant can obtain further evidence at any time and resubmit his case for further hearing by the tribunal. The tribunal then sends that evidence to the commission, which may rehear the case, and the ex-serviceman's disability may be accepted for repatriation purposes.

If the commission again refuses to accept the disability, the fresh evidence may be placed before an entitlement appeal tribunal, which will hear the appeal again. An ex-serviceman can bring fresh evidence forward at any time. If new discoveries in medicine or science have a bearing on his entitlement, he can put fresh evidence before the commission, and an amendment to that effect is coming before the committee. Australia is the only country in the world in which that procedure may be followed. In Great Britain, for instance, once a man's claim has been refused, he has no redress.

Mr Francis - It is a very comprehensive review.

Mr FALKINDER - Exactly. Now I propose to turn to the interpretation of the onus of proof, and here may I say that the honorable member for Dawson (Mr. Davidson), who is chairman of the sub-committee on repatriation of our Government members ex-servicemen's committee, of which I happen to be president, did a very fine job indeed, first of all, as he himself said, in approaching the subject of the onus of proof with a critical mind and then making a very thorough investigation into the whole subject with the department, with the Minister, and with many outside people.

I thought he made a very fine speech indeed in introducing this subject into the Parliament.

The honorable member for Fremantle (Mr. Beazley) has referred to the opinion given by the AttorneyGeneral (Senator Spicer) on the subject of the onus of proof. He said, and I quite agree with him, that the interpretation as given by the AttorneyGeneral was the spirit in which, and means by which, the Repatriation Department should administer the question of the onus of proof. Indeed, if the department does not administer in that spirit and intent, then it is failing in its duty. The honorable member for Fremantle quoted the specific opinion of the AttorneyGeneral on the interpretation of section 47, which provides that, (a) it shall not be necessary for the claimant, applicant or appellant to furnish proof to support his claim, application or appeal, and (b) that in all cases whatsoever the onus of proof shall lie on the person or authority opposing the claim, application or appeal.

The AttorneyGeneral goes further in his interpretation and I want to quote this to the House so that all honorable members may be aware of it. Later on in his statement, the AttorneyGeneral says this -

Of course, the claimant may find himself in a position in which it is greatly in his own interest to supply evidence in support of his claim. For example, the opposing person or authority may be able to supply evidence which, taken alone, might discharge the onus of proof which the opponent carries. In such a case, it would be advisable for the claimant to supply evidence which would at any rate raise a doubt in his favour.

The onus remains with the opposing person or authority throughout the proceedings. The claimant need not, but he may, if he so desires, furnish proof in support of hie claim. But, whether he furnishes proof or not, the onus will, at the end of the proceedingswill be upon the opposing person or authority to satisfy the determining authority that the claimant is not entitled.

Section 47 does two things-

(a)   firstly, it requires that the determining authority shall give the claimant, applicant or appellant the benefit of any doubt in regard to certain enumerated matters, which, in effect, cover the whole field of matters relevant to the inquiry; and

(b)   secondly, it provides that the adjudicating authority shall be entitled to draw, and shall' draw from all the circumstances of the case, from the evidence furnished and from medical opinions, all reasonable inferences in favour of the claimant, applicant or appellant.

To aid the determining authority in carrying out the will of Parliament as thus expressed section 48 (2) requires a medical practitioner, where he entertains any doubt concerning any of the matters upon which he is required to report, to state that he entertains such a doubt and to indicate, as far as practicable, t he na ture and extent of his doubt.

A claim is not to be dismissed because the Tribunal is left in a state of doubt as to any question whatsoever which arises from its decision. The claimant is always to be given the benefit of any such doubt. As the onus of proof in all cases whatsoever lies on the person or authority who contends that the claim should not be granted and the claimant is to be given the benefit of any doubt, it follows that the claim should be allowed unless that person or authority proves beyond doubt, i.e., beyond reasonable doubt, that the claim is inadmissible. Only if the evidence is such that the determining authority is left in no such doubt that the claim should be refused can it properly dismiss the claim. If the authority has some doubt, that is to say if it is not convinced beyond doubt that it should refuse the claim, the claimant must be given the benefit of the doubt and his claim must be granted

I turn now to some of the improvements that are encompassed in this amending act, in partic ular, in relation to tribunals. In the present, sections relating to appeals to tribunals, there is a lack of uniformity in the language used. This occurs in relation to the operations of both entitlement appeal tribunals and assessment appeal tribunals, and it has given rise to some differences of opinion as to the exact meaning of some of those sections.

Section 6-1 (6.) is a good example of this. In accordance with sub-section (4.), when an entitlement appeal tribunal has further evidence produced to it, that tribunal refers the matter back to the commission to reconsider the case. If the commission's decision is adverse to the appellant, the appeal tribunal is then required by sub-section (6.) to "consider and decide" the appeal. Some doubt has arisen as to whether that further consideration by the tribunal is a "hearing" at which the appellant may appear and be represented if he so desires. These amendments will make it clear that when the case is referred back to the tribunal under sub-section (6.), there will be a further hearing at which the appellant can appear. To avoid any other similar doubts, other sub-sections of section 64 are being amended. The general effect of all these amendments is to give greater clarity to all the sections I have mentioned, and to make sure that an appellant, with his advocate if he desires, will before the tribunal gives its decision, have full opportunity to comment on or answer all evidence which has been produced to the tribunal. That is, indeed, a very desirable forward step.

I wish now to refer to an amendment proposed by the Opposition in another place to provide for an appeal to a court either the High Court or a Supreme Court. The members of the Government Members Ex-servicemen's Committee have discussed this matter very fully, and I am sure that they all would support the proposal if it were genuinely felt that it would be of real advantage to exservicemen. The members of that committee consider that, in the form in which the amendment was proposed, it had serious defects from the point of view of ex-servicemen. On the general principle of an appeal to a court, whether it be the High Court or a Supreme Court, the members of the ex-servicemen's committee consider that it would be detrimental to the interests of ex-servicemen to provide such an appeal on questions of fact. Let me explain what I mean by that statement. As I have already stated, the repatriation tribunals are composed of men who are skilled in sifting the facts of cases of the kind that might be presented to a court if the amendment proposed in another place were accepted.I am sure that honorable members on both sides of the House will agree that the exserviceman is more likely to obtain a favorable decision and, after all, that is what we are striving for from exservicemen who thoroughly understand the facts and must favour the interests of ex-servicemen. The question of an appeal on matters of law is another matter altogether, and it deserves careful consideration.

There would probably be a great deal of merit in an amendment to provide for appeals to a court on questions of law. But there is another factor that causes members of the Government Members Exservicemen's Committee to oppose the amendment proposed by the Opposition in another place. That amendment made provision for the court to make an order for costs. The result would be that the ex-servicemen who appealed would be required to pay the costs of counsel engaged. That might be to his detriment, because most ex-servicemen who apply for pensions are fairly impecunious. Another point also arises. I have not been able to have it clarified, but I believe that if an appeal on matters of fact and questions of law were made to a court the decision would be final and there would be no opportunity for recourse to a further appeal at a later date.

The honorable member for Ballarat (Mr. Joshua), who made a very wellreasoned contribution to the debate this afternoon, referred to medical benefits for the dependants of blinded ex-servicemen. 1, in common with the honorable member, understand that the British Medical Association would probably accede to such a proposal. I point out that, at the present time, no means test is applied to blinded persons who are not ex-servicemen and that they receive free medical benefits. I am hopeful that the principal act will soon be amended to make provision for the payment of medical benefits to the dependants of blinded ex-servicemen. I, for one, propose to support such an amending measure if and when it is introduced. I wish to refer also to another matter, which is closely related to repatriation benefits. The Department of Social Services subsidizes, on a £l-for-£ 1 basis, organizations that build homes for aged people. In the repatriation field we have a regrettably diminishing number of ex-servicemen who served during World War I. The survivors are in their late fifties or, more numerously, in their sixties. In most States, there are homes that provide accommodation for the diggers who served during World War I. In Hobart, for instance, there is a home known as Gellibrand House, which does excellent work. I should like the Government to consider a proposal that such homes be assisted on a £l-for-£l basis when any new building is constructed or any substantial extension of an existing home is made for the accommodation of ex-servicemen.

Mr Francis - Are these residential establishments ?

Mr FALKINDER - They are wholly residential, and they provide for all the needs of the ex-servicemen accommodated in them.

I wish to refer, in passing, to one other matter. Recently, I put on the noticepaper a question about promotions in the Hobart office of the Repatriation Commission. Having made some investigations of my own, I now believe the answer I received to be not completely satisfactory. On the information that I have, the Hobart office, regrettably, seems to be conducted as a sort of promotion centre for officers from other States. I propose to give further information about the matter to the Minister for Repatriation (Senator Cooper). The principle on which the Hobart office is conducted is a very bad one, and I hope that the position will be corrected. I regret to say that it has resulted in the resignation from the commission of a number of Tasmanian officers who found that, once they had attained a certain level of seniority, they had no further opportunity of advancement. One cannot blame any man for resigning when such a situation exists and taking a better joh or an equally good job with better prospects of promotion elsewhere.

I do not suggest - and I do not think any honorable member would contend - that our repatriation system is 100 per cent, perfect. Indeed, the need for amending measures such as this from time to time is evidence that we are continually improving the administration of repatriation affairs. I know that many honorable members feel as I do from personal experience in handling repatriation cases. We have talked a great deal about the repatriation tribunals in the last two days. Many honorable members feel that a rejected claim was justified and that justice has not been done entirely. This measure will do much to make appeals easier for unsuccessful applicants who, in the opinion of myself and other honorable members, were entitled to succeed. Finally, I say that, generally speaking, we may well be proud of our repatriation system, and I commend all governments that have helped to make it what it is to-day. We take pride in the Minister for

Repatriation, who is a fine administrator and enjoys the respect and admiration of us all.

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