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Thursday, 13 October 1955

Mr DAVIDSON (Dawson) .- I have no intention of competing with honorable gentlemen opposite on some of the legal niceties that they have used in this debate. But I believe that there are several cogent reasons, based purely on common sense, as to why the proposed amendment should not he adopted. I point out that the amendment, as drafted, means, first, that a decision in the matter of an appeal by an ex-serviceman to a tribunal will be transferred from the competent experience of those who now handle those appeals and placed in the hands of a single judge of the High Court or of a Supreme Court. I make no apology for saying that I believe that that would be a retrograde step. It would not bc in the interests of ex-servicemen.

I feel strongly that the members of the appeal tribunals have had considerable experience in a task that requires a peculiar knowledge to determine these questions properly. These gentlemen have acquired a knowledge of such matters which I say, with all. the respect in the world to the judiciary, the judges cannot have because they have not had anything like the same experience in this type of work as the members of the tribunal. Therefore, I feel that it would not be of advantage to ex-servicemen generally to transfer the determination of these matters from the bodies that now handle them into the hands of a judge.

The second practical reason that I advance against the proposal is that it will mean that the whole case must be re-heard because, in order to determine whether the onus of proof provision has or has not been carried out, the whole of the evidence must be sifted again. Therefore, the whole of the evidence, including the submissions of medical men, will become the subject of wrangling by lawyers. The whole case will develop into an argument among medical men as to whether the disability was war caused or not. In short, this proposal simply means that we would provide a feast for lawyers at the expense of ex-servicemen. That is another practical reason why the proposal should not be adopted. It is very significant that this proposal, which is not new, has been consistently opposed by ex-servicemen's organizations, which have had considerable experience of this sort of thing.

My third reason why the proposal should be rejected is that in clause 14 of the proposed amendment, it is stated that the court hearing an appeal under this section may make such an order with respect to the appeal as it thinks fit and that order shall be final and conclusive. In doing that the amendment would take away valuable rights now enjoyed by appellants. At present, even though an appeal has been rejected, it may be reopened if fresh evidence is brought forward. The bill provides that if such fresh evidence has been submitted, and referred back to the commission, the appellant and his advocate can appear before the tribunal and argue the matter anew. The amendment would take away that right. The bill also provides that if, in the light of advances in medical science, it becomes evident that a case should not have been rejected, the commission may re-open the matter and grant the application. Sub-section (4.) of the proposed new section would deny that right to the ex-serviceman.

Sub-section (5.) of the proposed new section states that an order for the costs of an appeal under that section shall not be made. I am not a legal man and therefore I do not know whether the sub-section means what it says, but as a practical layman it would seem to me that the appellant could win his case and still be required to pay all the costs. Would that be of advantage to exservicemen? If the amendment were accepted the Parliament would be saying, "We shall give you the right to appeal to a High Court, but you must brief counsel, stand up to cross-examination by clever lawyers and, when you have won your case, dig into your pocket and produce a couple of hundred pounds to meet the costs ".

Mr Haylen - That is not so. The honorable member should read the amendment.

Mr DAVIDSON - The amendment should be rejected on practical commonsense grounds.

Question put -

That the new clause proposed to be inserted (Dr. Evatt's amendment) be so inserted.

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