Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Friday, 27 November 1936

Senator HARDY - The point which I was endeavouring to make was that even if the ease were reheard by the tribunal, how can that body expect to reach a decision when the reasons which governed the previous decision were not recorded. In my opinion, justice cannot possibly be done by that means to the appellant. I contend that there is no earthly reason, in view of the position which I have outlined to honorable senators, why the decisions of the tribunal should not be given to not only the appellant, but also the Repatriation Commission itself.

Senator ALLAN MACDONALD (WESTERN AUSTRALIA) - "Would not that involve a disclosure of medical evidence, which, in certain instances, should be confidential?

Senator HARDY - If so, the evidence could be made available only to the appellant and to nobody else. The appellant himself would not object for one moment to receiving medical information concerning himself.

Senator ALLAN MACDONALD (WESTERN AUSTRALIA) - Some appellants would object.

Senator HARDY - Actually, the medical evidence is obtained at a very early stage of the investigation, and not during the hearing of the appeal by the "War Pensions Entitlement Tribunal. The first step in connexion with an appeal for a pension is taken when the appellant is admitted into the Randwick or some other military hospital for examination. In such an institution the whole of his disabilities are catalogued. In those circumstances there is no earthly reason why the medical opinion and the decision of the tribunal setting out the reasons for the disallowance of his appeal should not be communicated to the appellant.

Senator ALLAN MACDONALD (WESTERN AUSTRALIA) - But there is a medical reason, which is also an earthly reason.

Senator HARDY - I have proved beyond doubt that first of all the individual members of the tribunal do not keep any records of cases. That is the final reply given to me by the Government. Yet on . several occasions when sponsoring certain cases, I was a most interested observer of the procedure of the tribunal, and I was informed by the secretary of that body that each judge and each member possessed a judge's notebook in which decisions and the reasons governing those decisions were recorded.

Senator Sir GEORGE Pearce - Are these reasons required for the purpose of an inquisition?

Senator HARDY - No ; not of the Government, but I desire to make an inquisition of the tribunal, because when the Government sets up a statutory body for the purpose of carrying out certain principles laid down in an act of Parliament, it is quite competent for Parliament to ascertain whether or not those principles have been adhered to.

Then there was a third point. According to the information supplied by the Government the decision of the "War Pensions Entitlement Appeal Tribunal is recorded on form TC, provided for in the regulations, and is signed by the chairman of the tribunal. I do not know whether honorable senators have ever had a look at form TC ; I have seen many of them. Honorable senators should bear in mind that the appellant has applied to a court bound to give substantial justice, bound by the law to act on the merits of the case and to give the benefit, not of reasonable doubt, but of any doubt at all to the appellant. The form of the reply simply states the the appeal to the tribunal has been either approved or, if disabilities of the appellant are not recognized as being due to war causes, disallowed. The Postmaster-General stated that it was the custom of their Lordships of the Privy Council not to give individual judgments; but it is the custom of that court to give a very detailed judgment. The appellant at least knows where he stands. I contend that a very detailed judgment is required in connexion with every application by a returned soldier to the tribunal; otherwise he might just as well not have the right of further appeal to which he is entitled under the act.

Another point in this connexion is purely financial, and I refer to the haste of the tribunal in deciding cases; I made mention . of this aspect a few days ago. I allude to the number of cases which are daily heard by the tribunal; they average approximately ten per diem. Ten appellants go before the tribunal in an endeavour to secure recognition of their disabilities as being due to war causes. Let us assume for one moment that the ten were successful in .their appeals. What is the financial liability incurred thereby by the Government? It is difficult, of course, to obtain accurate figures, but, on referring to the report, which stated that the average rate of pension is about £2 a fortnight, only an elementary calculation is required to discover that the tribunal, every d,ay it sits, deals with a potential Commonwealth liability of between £10,000 and £15,000. 'Surely that constitutes a further reason why the reasons governing the decisions of the tribunal should be clearly set out: are we going to allow this tribunal to continue to give decisions without it submitting its reasons? Although I criticize the tribunal, I desire sincerely to congratulate the Government on the announcement made on its behalf in the Senate this morning. It has seen fit to appoint a second War Pensions Entitlement Tribunal, which will commence to hear appeals on the 18th January, 1937. In my opinion the appointment of this tribunal was urgently necessary, because a reply to a question which I asked informed me that 1,329 cases are listed for hearing and remain unheard. I urge the Government with every ounce of energy at my command to request the members of these tribunals to record the reasons governing their decisions and to administer the act with the utmost sympathy and liberality.

I turn now to the subject of service pensions. This particular matter was the subject of considerable debate during the discussion of an amending bill some months ago. If a man can prove that he is over 60 years of age, or that he is permanently unemployable through any causes whatsoever - not necessarily war causes - he may secure a service pension. But one of the qualifications required of an applicant for a service pension was that he had served jr. the " theatre of war ". The definition of this phrase gave rise to considerable debate; it states - " Served in the theatre of war " means served at sea, in the field or in the air, in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when danger from hostile forces of the enemy was incurred in that area or on that aircraft or ship of war by the person, so serving.

On that occasion we asked the Minister whether the interpretation' given to theatre of war would be liberal. We were assured that, as the policy of the Government was liberal - and it has been remarkably liberal to the returned soldiers, as shown by constant amendments of the act - the interpretation of this matter would also be liberal. At the present time, the Repatriation Commission metaphorically holds the interpretation of the definition in the hollow of its hand. It has been permitted to say that any soldier who served on the west side of the Suez Canal .in Egypt cannot be held to have served in a " theatre of war ". To refute such an opinion, and to stress the ridiculous anomaly that has arisen, I shall quote an extract from the History of the Fifth Australian Division. Every honorable senator has doubtless heard of the famous Blue Nile march, during which, as the result of exhaustion and thirst, men fell by the wayside like flies. The march was carried out under extreme conditions, probably unequalled iu severity by any other conditions experienced by the Australian Imperial Force. But, according to the definition by the Repatriation Commission of " theatre of war ", any man who participated in the Blue Nile march is not eligible for a service pension. Sitting suspended from 12.^5 to 2.S0 p.m.

Senator HARDY - In Chapter 3 of The Story of the Fifth Australian Division, Captain Ellis tells the story in the following words: -

The move of the rest of the division from Tel-el-Kebir to Ferry Post is memorable for the distressing experience, of the 14th Infantry Brigade flight, which consisted, in addition to the Infantry Brigade, of details of Divisional Headquarters Divisional Artillery, Signal Company, 8th Field Company, Artillery Engineers, and the 8th Field Ambulance. The other two flights also found the march extremly trying, and it is questionable if the troops as a whole were quite ready for an undertaking of such a nature. The first day's march was from Tel-el l-Kebir to Mahadina, a distance of about fourteen miles. To people unacquainted with the sands of Egypt, it may appear incredible that even untrained Australian soldiers should find any difficulty in such a march, but all who have trudged through long stretches of heavy sand will realize that it was a big undertaking. In order to enjoy the full benefit of the cool hours of early morning, General Irving wisely provided for an early start.

Subsequently General Irving was retired for having undertaken the responsibility of that march -

Reveille was at 4.30 a.m. and the long column was under way by 7.30 a.m. The formation of the assembly was complicated by a very heavy fog, which not only made it extremely difficult to maintain direction, but also drenched the men's clothing and equipment, while their boots soon became soaked in the damp sand.

And yet, according to the Repatriation Commission, a man who participated in that march did not serve in a theatre of war ! -

Before many miles had been covered there were numerous stragglers and the 8th Field Ambulance at the rear of the column was busy collecting sufferers from sore feet, sickness, and exhaustion. A burning sun was now beating down upon the column, aggravating the men's distress and causing extreme thirst. Many water bottles wore soon empty, although the necessity for the careful conservation, of water had been emphasized in the Brigade order for the march. Tlie water discipline seems to have been bad. At every halt it was found necessary to post picquets on the Sweet Water Canal, the water of which was unfit for human consumption.

But that is not the end of the story. The record continues -

However, water and food supplies had boon provided at Mahsama, and after tea the mcn settled down for the night and awoke much refreshed on the following morning. But a still more trying march of sixteen miles to Moascar awaited them, and, unfortunately, the day turned out to be particularly hot. A start was made at 7 a.m., and for an hour or two, the column swung along well on good going over comparatively firm ground. By 10,3(1 a.m. the goo'd ground was left behind and the route, followed under directions received from Division, struck across heavy sandhills. These, in the rapidly heat, proved too much for tlie stamina of scores of the men. They literally dropped in their tracks, overcome with thirst and exhaustion.

The march was undoubtedly an inauspicious beginning to the careers of the new units concerned in it. On behalf of the Brigade it may be stated that many of the troops were not yet physically fit, that a percentage of foot injuries. "B" class men. worn-out hoots, and recent inoculations, all contributed their quota to the great suffering that it undoubtedly experienced.

How should a man who, to-day suffers a disability, or is broken down in health, as a result of that march be treated? Is he, or is he not, entitled to be recognized as having served in a theatre of war? The Repatriation Commission says he is not so entitled because he did not serve on the east side of the Canal. Parliament did not intend that construction to be placed on the term " theatre of war." If the commission has the authority to decide whether or not a man served in a theatre of war it should give to every appellant the benefit of the doubt. I urge the Government to give sympathetic consideration to my suggestion; and referring once more to the tribunal I go further and say that unless it gives reasons for its decisions the belief of returned soldiers in its justice will be completely shattered; they will regard it as a secret junta. That, I know, is not the desire of the Government. That it desires returned soldiers to be treated with liberality, the introduction of amending legislation from, time to time is evidence. I am confident that these anomalies having been revealed, the Government will remove them.

Suggest corrections