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Friday, 20 November 1936

Senator HARDY (New South Wales) . - I take this opportunity to discuss a certain matter of intense interest to the returned soldiers of Australia, and also to the people of our community whoare interested in the welfare of these men. I refer to the principles governing thework of the War Pensions Entitlement Tribunal and the interpretation of those principles by its members. Having personally observed this body at work, I am amply satisfied that a grave danger existsthat its findings and decisions may becomea serious hardship to the ex-soldier appellants whose appeals are submitted to it for determination. In my opinion, it isabsolutely essential that appellants submitting cases to this tribunal shall have the most complete confidence in it, and in the impartiality of its members. The object of Parliament in setting up the tribunal was to ensure to all appellantsa thoroughly impartial investigation of the merits and demerits of their claimsfree from the usual procedure characteristic of courts of law. For honorable senators to understand the situation it- is necessary that they should clearly appreciate the procedure to be followed by applicants for war pensions, and the exact relationship existing between the Repatriation -Commission and the tribunal. The ex-soldier, in order to secure recognition of his disability as warcaused, has first to make his claim to the branch of the Repatriation Commission in the State in which he lives. That body examines all the evidence offerer! by the applicant, and in order that his disabilities may be ascertained it also subjects him personally to a thorough examination in a military hospital. His medical record while abroad is carefully scrutinized, and all the information available regarding his service which may have a bearing on his disability is sifted and catalogued. In the course of time the claimant is advised as to the success or failure of his application. In very many cases the application for a pension is disallowed, for obviously, after the lapse of twenty years or more, many difficulties are encountered in the determining whether disabilities are due tothe war or not. Let us now consider the next step. Upon the rejection of an application for a pension by the State branch of the Repatriation Commission the applicant is entitled to approach the head-quarters of the commission. In other words, an appeal is made to the

Commonwealth Repatriation Commission. His case is thereupon again examined in close detail, and again it frequently happens that the claim is disallowed. At this stage, the applicant has the right of appeal to the final court - the War Pensions Entitlement Tribunal. It was because so many claims were rejected by the Repatriation Commission that the Parliament in 3929 constituted the War Pensions Entitlement Tribunal with the intention that ex-soldiers whose pension claims had been rejected should be enabled to submit their cases to a tribunal which would consider all the evidence in an entirely informal way with the object of assuring the appellant substantial justice. I have carefully read the debate on the proposal to appoint this tribunal, and the record indicates clearly that Government supporters and Opposition members alike desired that the new tribunal should deal with the claims submitted to it with the utmost sympathy and liberality. It was said that the members must be men of the greatest understanding and human sympathy. I draw the attention of the Senate to the principles enunciated in the act. Section 45 w 2 of that act provides that -

An assessment appeal tribunal shall not, in the hearing of appeals, be bound by any rules of evidence, but shall act according; to substantial justice and shall give to the claimant the benefit of the doubt.

Every endeavour was made to enable the tribunal to act freely and on a most informal basis. It was not intended that it should be cluttered by the procedure of courts of law, or that there should be a majority of legal thought amongst the members of the tribunal. Applicants were to be put in a position to state their own case in their own way without the embarrassment of a legal atmosphere. I say without any hesitation that this was the intention of Parliament, and I also state that those principles have now been infringed. In order that it should be perfectly clear that these principles should be adhered to, the act provided that every appellant should be permitted to be represented before the tribunal by an advocate; if the soldier's disability did not enable him personally to submit his case, or if he felt that a third person could better present his case, he could have the services of a " soldier's friend The act, however, on one point is perfectlyplain; it provides that the services of a legal practitioner could not be used. Why was that provision inserted? That provision was made because the tribunal was intended to be a friendly body, consisting of members appointed by the Government, who would, free from legal thought, interpret the law with wide sympathy and the utmost liberality. That was the reason for providing in the act. that the tribunal should not be bound by rules of evidence, and that legal assistance should be denied to the appellants. The Government did not leave to the members of the tribunal the interpretation of what constitutes wide sympathy and utmost liberality. The act is clear. Section 45 w, sub-section 2, of the Australian Soldiers Repatriation Act 1929, sets out -

Subject to this act, an appeal tribunal and an assesment appeal tribunal shall not, in tlie hearing of appeals, he bound by any rules of evidence, but shall act according to substantial justice and the merits of the case and shall give to an appellant the benefit of tlie doubt.

I intend to show that those principles have been definitely abrogated. The returns for the year ended the 30th June, 1936, show that 2,725 ex-soldiers approached this tribunal - this court of friendly atmosphere and substantial justice, bound to consider the merits of the case and to give to the appellant the benefit of the doubt - to have their disabilities recognized as being due to war service. Of that number, only 699 appeals were granted; in other words, a bare 25 per cent. Surely such a result should cause honorable senators to wonder whether the tribunal is really carrying out the intentions expressed in the act, and, I believe, the desires of this Government. The facts support my statement that the principles laid down in the act have been abrogated. I wish, at this stage, to emphasize that when the legislation was originally before Parliament the words " reasonable doubt " were contained in the section of the act to which I have referred. It is interesting to note, however, that after consideration in committee the word " reasonable " was omitted. The then Attorney-General, Sir John Latham, now Chief Justice of Australia, fought most strenuously to have the qualification expressed in the word " reasonable " retained. He said - " Tlie benefit of any reasonable doubt " is a well established legal term. In this legislation it means that the benefit of any doubt s u eli us a reasonable man would entertain in the circumstances of the case, shall be given to the appellant. If the word " reasonable " is omitted, the effect will be that the benefit of any doubt at all - whether reasonable or unreasonable - must be given to the appellant.

Nevertheless, the then Minister for Repatriation, Sir Neville Howse, accepted an amendment for the omission of the word " reasonable " and the act to-day in that respect states that the appellant shall be given the benefit of the doubt. In view of the objection taken by the present Chief Justice, Sir John Latham, when he was AttorneyGeneral, to the omission of the word " reasonable ", the interpretation which must be placed upon the sub-section is that, if there exists the slightest element of doubt in any appeal, even if that doubt is an- unreasonable one, tie appellant must receive its benefit and secure recognition of his disabilities as having been caused by war. Even admitting that nearly twenty years have elapsed since the termination of the war, the fact that only one-fourth of the appeals have been allowed shows that there is wide room, for doubt as to whether the particular principle outlined in the sub-section is being carried, out. Personally, I am satisfied that the benefit of The doubt is not being given to returned soldier appellants. I say frankly that it is common talk among appellants that, as the years go by, the Appeal Tribunal is becoming harsher and harsher in its dealing with appeals, and that one member of the tribunal, except in special cases, invariably casts his vote against the appellant. By questions in the Senate, I have sought information as to the number of affirmative votes cast in each year by each individual member of the tribunal, because that is the only way in 'which we can Satisfy ourselves as to whether the advantages of the principles which the act sets out to give to the appellants are, in fact, being given to them. I have grave doubts *as to the impartiality of the tribunal's decisions.

The history of the establishment of the War Pensions Appeal Tribunal is interesting, as it reveals the purpose which the tribunal was intended to serve. The first time it was definitely advocated was at the federal congress of the Returned Sailors and Soldiers Imperial League of Australia in 1928.

Senator ALLAN MACDONALD (WESTERN AUSTRALIA) - The necessity for its establishment had been talked about in the Returned Sailors and Soldiers Imperial League of Australia for years.

Senator HARDY - That is so, but it was at the congress of 1928 that the first definite steps were taken. That congress decided on the principles that are contained in the legislation which set up the tribunal and which should govern its decisions. The decision of the congress was later affirmed by a meeting of the federal executive of the Returned Sailors and Soldiers Imperial League of Australia which was attended by the late Sir Neville Howse, in his capacity as Minister for Repatriation. The federal executive re-affirmed the principles enunciated by the congress: it decided that the personnel of the proposed tribunal should not include a majority of representatives of any one profession - legal, medical - but that, in order to guide the tribunal as to procedure, the chairman should be a barrister-at-law. Those principles were accepted by the Government of the day and are still in the act. Yet, when the last appointment to the tribunal was made they were set aside and a barrister was appointed. I wish to make it clear -that I do not attack him personally - I understand that he is a fine character - but I do attack his appointment because it represents a breach of one of the fundamental conditions upon which the tribunal was established, namely, that there should not be a majority of members representing either the medical or the legal profession.

My second point, which is a vital one, is that an appeal comes before the tribunal, not as a direct claim by the applicant, but as an appeal from the decision of the Repatriation Commission. The act which governs the principles to be followed by the commission provides -

Provided, too, that if the appellant or the 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.

Therefore, if an application has been disallowed by the commission it is, in the majority of cases, because the soldier has not been able to make out a prima facie case before the commission. The provision I have quoted was made so that the tribunal, which has to dispense substantial justice and reach a decision on the merits of the case, and is not bound by rules of evidence, might even, if, in the opinion of the commission, a prima facie case had not been made out on behalf of the applicant, decide in his favour. The debates in the Parliament when this legislation was introduced clearly showed that it was intended that the tribunal should act in this way. The Minister for Eepatriation (Mr. Hughes) said it was wrong for a man to have to appeal from Caesar to Caesar, but that is what is happening to-day. The Repatriation Commission, itself arrives at its decisions on a legal basis, particularly as to whether a prima facie case has been made out. If the applicant wishes to appeal against the decision of the commissionhe has then to appear before the tribunal, two of the three members of which are barristers, who, in turn, have to decide whether or not a prima facie case has been made out. To my mind that state of affairs is contrary to the requirement of the act, that the tribunal shall " act according to substantial justice and the merits of the case, and shall give to an appellant the benefit of the doubt ".

Senator Sir George Pearce - Surely the merits of a case determine whether a case has been made out.

Senator HARDY - Exactly, but if the tribunal is cluttered up with barristers, legal considerations and the process of legal thought must come into the cases, and that is exactly what the act was designed to avoid. Does the right honorable senator think that a barrister, as a member of the tribunal, could dissociate himself from his legal training and reach judgment in the same way as a layman would? He would not. It was in order that the tribunal should not be cramped by the need for legal proof that the word " reasonable " was omitted from the original act.

I shall now describe the actual work of the tribunal, which, from personal observation, I have had the opportunity of studying. There are definite features of its work which do not seem to be in the interests of the soldier appellants. Unaided by any legal representation, as required by the act, the appellant or his non-legal advocate, enters a room in which the three members of the tribunal, two of whom are barristers, and the secretary, are sitting. The advocate for the appellant commences the presentation of the appellant's case, and speaks generally from ten to fifteen minutes in an endeavour to show that the disabilities of the appellant should be recognized as being due to war service. But no record beyond notes in a minute book are taken of the advocate's remarks.

Sitting suspended from12.45 to 2.15 p.m.

Senator HARDY - I stress the absence of any verbatim record of the advocate's address. The secretary to the tribunal merely includes in the minutes of the proceedings a brief outline of what has taken place. Undoubtedly there should be a record of the proceedings. The tribunal is popularly regarded as the last court of appeal, but in certain circumstanees there is a further appeal, for the soldier may present his case before the Repatriation Commission again, and failing there, he may again appeal to the tribunal. Section 45k sub-section 7 of the act provides : -

If at any time after a decision of an Appeal Tribunal, made under sub-section (3) or subsection (6) of this section, the appellant submits to the commission in writing any further evidence which, in the opinion of the commissioner, is relevant to the appellant's claim, the commission shall reconsider the claim and, if the claim is refused by the commission, the appellant may, within twelve months of the decision of the commission, appeal in writing to an Appeal Tribunal which shall consider the further evidence and decide the appeal.

That clearly demonstrates that, in certain circumstances, there is a further right of appeal. But let us see how it can be exercised. An appellant, who is dissatisfied with the decision of the tribunal, and wishes to make a further appeal, naturally desires to have access to tlie evidence offered in support of his case. But he cannot get that evidence, because the minutes, which are the only record of the proceedings, are not made available to him. Surely it is an elementary principle of justice that a person who desires 'to carry an appeal to a higher court is entitled to obtain a full record of the proceedings in the lower court. That principle evidently not apply to the tribunal, for the appellant is expected to make his appeal without that record. The absence of a verbatim record of the advocate's address, in which reasons are given for attributing to war causes the disabilities of the appellant, operates to the disadvanage of the appellant when medical advice during the progress of an appeal is secured. Sometimes the tribunal postpones the hearing of an appeal in order that the appellant may be examined by a specialist. The specialist is asked to express an opinion as to whether or not the disabilities of the appellant are the result of his war service. Is it reasonable to ask a specialist to express an opinion in the absence of full particulars of the case? Obviously, the specialist cannot know the full circumstances, but the advocate does, because he has set them out in his plea. The failure to keep a full record of the proceedings before the tribunal is a grave defect, and operates against the interests of the appellant.

Let us now consider how the members of the tribunal deal with the cases which come before them. I again remind the Senate, that the act requires that substantial justice shall be done, that each case shall be decided on its merits, and that the appellant must be given the benefit of the doubt. It does not even say reasonable doubt. Each member of the tribunal who is required to judge the case has a notebook, in which, as the case proceeds, he makes entries; but, so far as I am aware, the minutes of the proceedings record merely the decision of the tribunal as to whether the pension shall, or shall not be granted. The notes of the judges do udt appear in the records. How different is the procedure of this tribunal - a tribunal that is expected to dispense justice - from the procedure in our courts, particularly th* High Court! There, 'the judges do not merely say, after a short consultation, " The appeal is upheld ", or " The appeal is disallowed " ; each judge records his individual judgment, and gives substantial reasons for arriving at that decision. But an appellant who appears before the entitlements tribunal cannot ascertain any reason for the decision given in his case. He cannot secure the judgment of any individual member of the tribunal, and, therefore, is unable to say whether that member has decided the case on its merits, and given to the appellant the benefit of the doubt as required by the act. He does not even know whether the tribunal has, in fact, set out to do substantial justice. Of what use is a further appeal if the record of the proceedings, and the reasons for the decision, are not available to the appellant in order that he may prepare grounds for an appeal. He is, as it were, blindfolded, and is forced to rely on his own ingenuity when presenting new facts for the consideration of the Repatriation Commission, to whom further evidence must be submitted. There is no doubt that 'the judgment of each member of the tribunal should be released to the appellant. I say, emphatically, that many soldiers are losing confidence in the entitlements 'tribunal. They believe that it acts harshly, in dealing with their cases, and that they are not receiving the benefit of the doubt. That may, or may not, be so; but the fact that only. 25 per cent, of the 2,700 cases submitted to the tribunal have been decided in favour of the appellant gives ground for the belief. One has only to sit among the men waiting for their cases to be heard to realize that, in their opinion, the chairman of the tribunal will decide against the appellants in all but extraordinary cases.

Senator Guthrie - Most of them think they are beaten before they start.

Senator HARDY - I hope that it can be shown that the charge against the members of the tribunal is unfounded ; but something must be done immediately if confidence in the tribunal is to be restored.

In conclusion, I repeat that a tribunal, the majority of whose members are bar.ristersatlaw, is not in accordance with the spirit of the act. In my opinion, the appointment of a second barrister to tlie tribunal was a grave mistake; it means that every appeal is in fact an appeal from Caesar 'to Caesar. In saying that, I make no charge against the integrity of the second barrister on the tribunal. Nothing is further from my mind; 'but I ask that the position be corrected. I understand that the term of the present members of the tribunal expires in May, 1937, and I ask the Government to remedy the present unsatisfactory position when the tribunal is being re-appointed. I suggest that a second entitlements tribunal be created, and that Colonel Mason, the last appointee to the existing tribunal, who is a barrister, be transferred to the new body as the only barrister member. The number of cases awaiting hearing justifies beyond doubt the appointment of a second tribunal. To-d'ay, there is only one entitlements tribunal for the whole of Australia, and, as much of its time is necessarily taken up in travelling between the various capital cities, arrears of work are piling up. No cases can, of course, be dealt with while the tribunal is travelling. I understand that the present tribunal deals with from eight to ten cases on each sitting clay; but as there are more than 1,000 cases awaiting hearing, a second tribunal is necessary if they are to be heard without undue delay. It is not fair that men, many of whom are in desperate circumstances and in a delicate state of health, should have to wait months to have their Gases heard. The fact that they are appealing for further consideration of their claims shows that they suffer disabilities which they honestly believe are war caused, and it is only reasonable to assume that they are not in the best of health. The appointment of a second tribunal would not only expedite the hearing of cases, but would also correct the unfortunate position which has arisen through having two barristers on the existing tribunal, for, as I have suggested, the latest appointee, Colonel Mason, could be appointed chairman of the new body. That action would be in accordance with the act, which provides that the chairman of a tribunal must be a barrister, and the existing tribunal would no longer have a majority of legal men which is contrary to the intentions of the Government and, I believe, the real spirit of the act.

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