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Thursday, 13 October 1955


Mr TURNER (Bradfield) , - I wish to speak very briefly and without heat about the amendment that has been moved by the honorable member for Parkes (Mr. Haylen). First, I think it is desirable that the matter should be placed in due proportion. It must be recalled that every year hundreds of applications are submitted to the Repatriation Department and are allowed, in the first instance, by the Repatriation Commission, and that only a very small proportion go to the entitlement appeal tribunals. A number of that proportion is granted also. In regard to some of the applications that are rejected, it may be that there are some cases - indeed, there must be some cases - where justice is not being done. But let us be quite clear about the fact that we are dealing with a very small proportion of the total number of applications that are submitted to the department.

The debate revolves around section 47 of the Repatriation Act, which establishes the principle that the onus of proof lies upon the commission and not upon the applicant. It also provides that, in all circumstances, the benefit of the doubt shall be given to the applicant. I do not think there is any quarrel with the wording of that section. I believe that it carries into effect the intention of the Parliament. The matter for debate is whether the section is being carried into effect by the entitlement appeal tribunals. If, in some cases - I suggest there are only a few such cases - it is not carried into effect, a question arises as to how the Parliament can ensure that effect is given to it.

The amendment that has been submitted by the honorable member for Parkes does not represent the best way of dealing with this matter. The Leader of the Opposition (Dr. Evatt) has stated, in so many words, that the amendment merely seeks to give effect to the provisions contained in the English legislation. That is not true. There is a vital distinction between the amendment and the provisions of the English act, as honorable members will observe when I quote the wording of the English act in a moment or two. What is contemplated by the amendment now before the committee is a rehearing by a judge of the High Court of Australia. A re-hearing, or rather a complete review of the case, and a reassessment of the whole of the evidence would take place. In other words, the High Court judge would be put in a position of being a super entitlement appeals tribunal. There would be a complete re-consideration of the case. I suggest that this would lead to a multiplicity of appeals, and in the long run would result in the supplanting of the entitlement appeals tribunals by a High Court judge.. I believe that that is not what ex-servicemen want. It would replace an expert and sympathetic tribunal by a judge without the expert knowledge of the tribunal which I believe, is so essential in the administration of matters of this kind. It is not what the ex-serviceman wants, and I suggest, in any event, it would be wrong to, in effect, deprive that expert tribunal of the function that it ought to perform.

For those reasons I believe that the Opposition's proposed amendment is not a desirable amendment to the law, and that it does not represent the best way of effecting the purpose which, I have no doubt, all sides of this Parliament wish to see carried into effect.

In another place it has been argued that there is no need to make a provision such as is contained in the British act for appeals on points of law. It has been argued in that place that a writ of mandamus will serve the purpose. It is a technical matter, and I am not qualified to express an opinion on it, but I believe from what competent lawyers have told me that the procedure of issuing a writ of mandamus is extremely expensive and cumbrous and, indeed, is a very blunt instrument for effecting the purpose that no doubt the Parliament has in mind. The Leader of the Opposition will be aware of that fact, as a result of his sitting on the High Court bench in an appeal Rex v. War Pensions Appeals Tribunals ex parte Bott in 1933. Despite his dissenting judgment, it was decided that under that procedure it was not possible to do justice in the particular case before the court. So I reject the suggestion that has been made in another place that that is an adequate means of giving effect to the purpose the Parliament has in mind. I believe that the provisions of the British law are those best designed to achieve the purpose we have in mind. The British Appeal Tribunals Act 1943, provides in section 6 (2) as follows : -

Where, in the case of an appeal to the Tribunal (under certain other sections of the act) the appellant or the Minister is dissatisfied with the decision of the Tribunal as being erroneous in point of law, he may, with the leave of the Tribunal or of a judge of the High Court nominated for the purpose by the Lord Chancellor appeal therefrom, . . .

It is quite clear that the appeal provided under the English law is not an appeal such as is contemplated in the Opposition's amendment at present before the committee.


Dr Evatt - Then why does not the honorable member move for the inclusion of the English provision, which we will support ?


Mr TURNER - The Leader of the Opposition admits, in effect, that the English procedure is not the same as would be introduced by the Opposition's amendment. I believe that the system of appeal on points of law is the right way to approach this matter, because it would mean that, whereas the expert tribunal would still deal with cases, it would enjoy the benefit of judicial supervision and guidance. It would mean that, from time to time, when an appeal was made on a point of law, a judge of the High Court could give some guidance to the tribunal as to how it should interpret the law in cases in which the same set of facts was involved. In the course of time the tribunals would have the benefit of an accumulated body of guidance that would enable them to give effect to the intention of the Parliament as expressed in section 47 of the principal act. I do not think that this would result in a great number of appeals, but it would mean that tribunals, having had the benefit of judicial guidance, would be able to frame their decisions on cases in which the facts were similar to those on which a judge had already ruled.

I pass now to something that I regard as another weakness in this matter. I believe that the procedure before the entitlement appeal tribunals could be greatly improved. My experience of cases that have come under my notice is that very often the advocates who appear before the tribunals on behalf of appellants are, not so competent as they should be, and very often evidence that should have been obtained and submitted to the tribunals has not been obtained and submitted to them. A week or two ago, when I was speaking on the debate on the proposed vote for repatriation services, 1 told the committee of a case where, quite obviously, the evidence of a psychiatrist was essential to enable the tribunal to have before it all the facts it required to determine the case in accordance with considerations of justice. I blame the advocate, whoever he may have been, who did not see that all the evidence was before the tribunal. I believe that it is unfortunate that lawyers may not appear before those tribunals, or that those who do appear for applicants are not more competent than they are. If the advocates who appear for appellants were more competent, a certain number of faulty decisions would not be given. The tribunals themselves are hardly to blame for making faulty decisions, because all the evidence has not been placed competently before them ; but those who present cases for appellants in an incompetent manner are blameworthy.

It is impossible for members of Parliament to have both the time and the necessary training, when they are dealing with cases that are brought before them, to do the job that ought to be done by the advocates before the tribunals. I think that mort honorable members have had cases brought to their notice only becauseadvocates before- the tribunals have not done their jobs properly.

I oppose the amendment, and I commend to the Government and the Minister for Repatriation (Senator Cooper) that careful and sympathetic reconsideration should be given to the question of adopting the English provision for appeals on points of law. It is not something to be lightly brushed aside. I believe that it would give great satisfaction to all concerned in this matter. I think, also, that the returned servicemen's league might put its own house in order by ensuring that cases are far better presented to the tribunals in future than they have been in the past.







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