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Wednesday, 7 November 1973
Page: 1581


Senator BYRNE (Queensland) -I congratulate the Senate Standing Committee on Health and Welfare on its report which, whilst it is in a short compass, is very embracing in the matters which it canvasses and in the recommendations which it makes. My comments are directed to Chapter 3- The Repatriation Act, paragraph 4, which relates to the onus of proof. I am intrigued by the nature of the evidence given to the Committee in relation to this heading of investigation. This paragraph of the report of the Committee recites the opinion of the Repatriation Department in justifying the present method of approach to the operation of the onus of proof section of the Act. I have no doubt that the evidence given by the Department was an objective presentation of its assessment as to how the section operates.

In many of the cases which have come to my notice I have been concerned about whether in fact the spirit of the section was being complied with although the technicalities of the section appeared to be complied with. When a claim for a benefit is made evidence does not have to be submitted at that stage. Apparently the Department has available to it the records of the exserviceman or ex-servicewoman concerned, and on that the Department makes its decision. The applicant may be asked to give medical evidence in rebuttal of the decision or in support of the claim. Technically he or she is not asked in the initial stages to present medical evidence, but as a matter of fact and as a matter of practical operation he or she is carrying an onus which I feel, in the spirit of the section, he or she is not required to do. In many cases which have come to my notice I have felt that the spirit of the Act was being avoided. I know that this section is an extremely difficult one to operate. I know that it is the function of the Repatriation Commission and of the tribunals to consider objectively claims and to give benefits on the merits of the case and on the facts as they are presented and as they are assessed. Nevertheless, there is a tendency to require subconsciously an onus to be carried by the applicant. I have never been able to convince myself that the onus is not unduly imposed and is, to that extent, a circumvention of the spirit of the statute which quite clearly and without any qualification or equivocation places the onus elsewhere.

Therefore, I would have been happier if the report had recited in this chapter what it recited in another chapter. The Committee actually looked at a number of cases and physically inspected the files of a number of applicants so that it could establish, from an investigation of particular cases, whether a certain situation existed. The number of that chapter escapes my memory for the moment. I would like to have seen in chapter 3 a reference to a similiar type of investigation conducted along this line of inquiry as to whether, on the flow of a particular case, an onus was being subconsciously placed on the applicant which, in the spirit of the Act and in the technicalities of the drafting of the Act, he or she was not required to carry. Therefore I rise at this stage to give Senator Brown, who chaired so successfully the initial stages of the investigation and who was subsequently appointed as Chairman, an opportunity when the debate is resumed to inform the Senate further as to the type of investigation which the Committee conducted in this area and whether from any examination of case histories conducted this conclusion which, on the face of it, appears to me to be merely a recital of the section of the Act and the opinion of the Department as to how the section is being operated, was reached. To my mind, that is not conclusive and cannot satisfy me that the Act, in its spirit, is being observed as I think each honourable senator has so often indicated that he expects the section to be observed.

For those reasons I rise to alert members of the Committee of the fact that I would welcome their giving some attention to this factor so that when the debate is resumed they may be able to indicate the nature, extent and depth of their investigations in this area and reassure the Senate that the matter received their scrutiny and that on their assessment, not so much on the opinion of the Department, as is recited in the chapter by an extract from the submission of the Department, they are satisfied that the spirit of the Act is being observed.


Senator Devitt - I ask for leave to make a very brief statement.


The PRESIDENT - Leave is not required.


Senator Devitt - I hope there will be an opportunity for me to debate the matter when the debate is resumed.


The PRESIDENT - I will put the motion in such a way as to enable you to speak again when the debate is resumed.







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