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Thursday, 13 October 1955

Clause 6 (Appeals).

Mr. JOSHUA(Ballarat- Leader of the

Anti-Communist Labour party) [8.35]. - I move -

That, after paragraph (d), the following paragraph be inserted: - "(da) by inserting after sub-section (6.) the following sub-section : - (6B.) At the conclusion of its deliberations where an Appeal Tribunal cannot find in favour of the appellant on the medical and other evidence submitted to it, the Appeal Tribunal may if it thinks fit, render to the Commission a certificate recommending sympathetic consideration by the Commission of certain important features of the evidence. Upon receipt of this certificate the Commission may grant a pension to the appellant.';".

This amendment was carefully framed after a great deal of personal investigation into the operation of the section dealing with the onus of proof. As honorable members know, I have given a great deal of attention to it. Every year we hear poire honorable members complain about the operation of the onus of proof provisions, whilst other honorable members declare that those divisions and the work of the appeal tribunals are completely satisfactory and that there is nothing wrong with them. But there is something wrong with them. Many men who should receive a pension do not get one, and that is the cause of much discontent.

The object of the amendment is to permit appeal tribunals, not only to make their findings on the technicalities and precedents which are at present the basis of their findings, but also to express opinions concerning other matters which at present it is not within their province to decide. Those matters come before the tribunals as a part of the evidence, yet the tribunals must completely disregard them except insofar as they affect technicalities and legal points. For example, the character of the appellant is important. He may be a straightforward type of man who is obviously telling the truth. That is a point in his favour and is something that is most important when the facts of the case are being decided.

Many appellants encounter difficulty in collecting evidence to support their cases. In many instances, it is a very real difficulty. Some of the men concerned were injured many years ago and, owing to the lapse of time, it is very difficult for them to collect evidence to refute the evidence brought against them by the commission. Frequently, evidence is lost. Doctors' clinical notes are lost or are not handed on. Sometimes chemists' records are not available. Frequently an appellant finds that a doctor who attended him in the past has died. Some appellants have had great difficulty in collecting the evidence required to support their claims. I think a tribunal should be able to take that into account, but at present all that a tribunal can say in such a case is, " There is not sufficient medical evidence to support the claim". It cannot take account of the difficulty that the appellant may have had in collecting evidence.

Another important factor is the character of the appellant. He may be a man of an independent nature a man who is not always on the back of the community, a man who has never sought the assistance of the Repatriation Department, perhaps because he has been a member of a lodge. Those circumstances may make it more difficult for him to prove his case, but all that the appeal tribunal can say is, " There is not sufficient medical evidence to support his claim. Therefore, we cannot allow it ". Then there is the appellant's service record. An appeal tribunal must have a great deal of sympathy for a man who has fought gallantly. The appellant's service record may show that he fought in a number of campaigns and that he was very seriously hurt. I believe the service record of an appellant also ought to be taken into account by the tribunal.

But these factors cannot be taken into account now. They may create a doubt in the mind of the tribunal, but it is not the sort of doubt that the tribunal can take into account. It decides the case on the basis of the opinion of one doctor versus the opinion of another doctor of equal standing. On the other hand, there is very little room for doubt, because the disabilities and sicknesses are codified, and a certain degree of consistency is maintained. So the whole thing becomes a science. Similarly, the legal considerations are systematically examined by the legal member of the tribunal. These are technical matters, and the Government cannot say that the decisions of the tribunal are based on, or are influenced by, the quality of human sympathy. I feel sure that the act requires that appeals shall be considered sympathetically, but they are not so considered. At the most, one can only say that the appeal tribunals apply a kind of comprehensive diligence to a consideration of all the evidence that is put forward. They have not even the power to seek evidence, but must decide on the evidence that is placed before them.

If the amendment is agreed to - and I hope that it will be 'agreed to - it will mean that if, at the conclusion of its deliberations, an appeal tribunal cannot find in favour of the appellant on the medical and other evidence submitted to it, it may, if it thinks fit, render to the commission a certificate recommending sympathetic consideration, and the com mission may, if it concurs, grant a pension. I emphasize the words " if it thinks fit ". I do not say that, after the hearing of every appeal, the tribunal should, as a matter of course, render a certificate recommending sympathetic consideration. I know that, in the course of a hearing, an appeal tribunal feels circumscribed by the method of finding that it is obliged to adopt. If a tribunal could render such a certificate, I believe that it could give to the Repatriation Commission valuable advice on which it could act and, in a number of cases, grant a pension which would undoubtedly be warranted but which otherwise could not be granted merely because legal, scientific and medical evidence could not be adduced. The method of hearing has been reduced to a science, but this amendment provides for a means of introducing a little sympathy. I know of a number of cases where relief could be granted if such a provision were operative. If the amendment is rejected, I say without any doubt that, when another repatriation measure comes before honorable members next year, there will be a flood of protests from the Opposition about the application of the onusofproof clause. On the other hand, if the amendment is accepted, a provision will have been added which will make the legislation more effective.


Mr Haylen - Why does the honorable member not vote with Labour members instead of stonewalling. He should wipe out this silly nonsense of his. He is only wasting time.







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