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Tuesday, 10 September 1985
Page: 405

(Question No. 66)


Senator Macklin asked the Minister representing the Attorney-General, upon notice, on 19 March 1985:

(1) Can an Australian Vietnam veteran, who has commenced a common law case against the Commonwealth in respect of consequences of his service in Vietnam, apply for legal aid.

(2) Would the common law case referred to in (1) above be allowed to proceed at the same time as the Royal Commission into the Use and Effects of Chemical Agents on Australian Personnel in Vietnam, or would it be declared sub-judicial; if the case was allowed to proceed, why should an application for legal aid be denied on the grounds that the matter was sub-judicial.


Senator Gareth Evans —The Attorney- General has provided the following answer to the honourable senator's question:

(1) Yes.

(2) There is no legal prohibition against an Australian Vietnam veteran's common law case proceeding in a court at the same time as the Royal Commission is conducting its enquiries. It would, however, be possible for the parties to the court proceedings to agree to defer those proceedings pending the results of the Royal Commission. If one of the parties to the court proceedings sought deferral of those proceedings pending the outcome of the Royal Commission but the other party wished to proceed, the court's decision on deferral would be influenced on the one hand by the reason for the requested deferral and on the other hand by the prejudice which deferral would cause to the other party.

An application to the Australian Legal Aid Office (ALAO) for legal aid would be considered in the usual way having regard to the guidelines of the ALAO. The fact that the matter for which the aid was sought was under investigation by a Royal Commission would be a factor that would need to be considered in deciding whether it was reasonable, in all the circumstances, to approve or refuse aid.

Where assistance has been sought not from the ALAO but from the Government on the basis that the proceedings raise a matter of public interest or are a `test' case, and the proceedings seek to establish liability for exposure to chemical agents in Vietnam, the Government has suspended assistance (if it had been approved) or deferred consideration of the application. It did so following the establishment of the Royal Commission referred to in the question because the matters which that Commission is required to inquire into clearly have an all important bearing on, inter alia, claims such as are made in such proceedings. As indicated by the Government when announcing its establishment, the Commission's terms of reference were purposefully made wide and general, so that as many matters as possible relevant to the effects of exposure to chemical agents in Vietnam could be canvassed by the Commission.