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Friday, 11 October 1985
Page: 1120

(Question No. 483)


Senator Watson asked the Minister for Veterans' Affairs, upon notice, on 22 August 1985:

Does the `onus of proof', under the provisions of the draft Veterans' Entitlements Bill 1985, rest with the widow of a World War II Veteran to establish her claim where the Veteran dies after 30 October 1985 from a disability not already accepted as related to his war service or if he was not in receipt of a totally and permanently incapacitated war pension; if so, why.


Senator Gietzelt —The answer to the honourable senator's question is as follows:

Clause 119 of the draft Veterans' Entitlements Bill 1985 (VEB) deals with the standard of proof to be applied in determining claims and applications for Repatriation benefits. My answer to Senate Question No. 492 outlines the reasons why clause 119 does not place an onus on any claimant, including a widow of a Veteran, to prove a claim.

The significance under clause 119 of whether a Veteran died or dies 40 years or more after service is in what standard of proof is to be applied by the Repatriation Commission in deciding whether or not the Veteran's death was service-related. Where, for example, a Veteran served overseas in World War II and died 40 years or more after the end of the war, namely after 30 October 1985, the civil standard of proof is to be applied under the VEB in determining a claim for a war widow's pension. This requires reasonable satisfaction that there are sufficient grounds for granting the claim. By contrast, the standard of proof that applied before amendments made by the Repatriation Legislation Amendment Act 1985, in respect of the determination of all claims, was satisfaction beyond reasonable doubt.

Even in those cases where the civil standard of proof now applies, I would expect many war widows' claims to be successful. Where a Veteran dies from an accepted war-related disability, a war widow's pension will be payable. Where a TPI pensioner dies, his war widow will be entitled automatically to a war widow's pension.