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Wednesday, 27 November 1985
Page: 2397

Senator LEWIS(8.15) —The Senate is debating-somewhat suddenly-the Veterans' Entitlements Bill 1985 and the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Bill 1985. When Senator Messner was the Minister for Veterans' Affairs in the Fraser Government, he set up a joint committee with the Returned Services League and various other ex-service organisations to examine the Repatriation Act 1920, with its then some 90 amendments and other associated legislation, with a view to removing anomalies and rationalising, updating, simplifying and consolidating the whole in one Act and in a form that was readily understood. That avenue of consultation was put in place by the coalition, and for a while it was maintained by the present Minister for Veterans' Affairs (Senator Gietzelt) and the present Government. But then, instead of consultation, this Government, in the absence of this Minister, who was then overseas, embarked on a savage attack on veterans in the May mini-Budget.

Ex-servicemen who had already fought for their country should not, at this stage of their life, have had to fight for their rights to be heard and consulted, but they had to do so. In May 1985, 40 years after the end of World War II, 35 years after the Korean War, and 10 years after Vietnam the Federal Labor Government selected Australian veterans for particular and unwelcome attention. Before then, ex-service organisations and the Parliament had had an opportunity to consider an exposure draft of the new legislation. In the May mini-Budget the Government introduced the nasties from the proposed legislation and included them as a Budget measure. The coalition parties reacted responsibly to this devious Budget measure strategy. As a responsible opposition, we could not oppose the Budget measure; but we did, with the support of the Australian Democrats, succeed in inserting a sunset clause in the Bill. That forced the Government into bringing the measure back into the Parliament before the end of this year, and we made it clear to the Government at that time that it would have to consult extensively with ex-service organisations.

We received much criticism-some of it personally hurtful-for allegedly not supporting the Democrats in some of the views that they were putting forward at that time. But, in fact, the Democrats were only posturing as to views which might win them votes from veterans, well knowing that they would never have to act in government. But by forcing the Government to consult with its clients-in other words, the ex-service organisations-we now have a better Bill. It still, of course, has its shortcomings and, clearly, the courts ultimately will have to determine the meaning of some areas of it. But most of it is acceptable to the clients, and, with some amendments which I hope we shall carry during this debate, it might be made an even better Bill. On the other hand, as a responsible opposition, we must remember that this is a government measure and respond accordingly.

By shooting from the hip in May, this Government caused enormous and unnecessary worry and concern to many older veterans and created an unnecessarily emotional and tense atmosphere for the discussions and consultations which followed the May mini-Budget. Much credit must go the veterans' organisations for their responsible approach. In particular, the key role played by the National President of the Returned Services League, Sir William Keys, should be acknowledged.

The Senate is now faced with a complex piece of legislation full of legalities. It certainly will not be readily understood by veterans who try to read it and the Government, in fact, acknowledges that the key measure in the Veterans' Entitlements Bill, clause 119, will need to be tested in the courts. That is one of the things which cause the Opposition much concern. We suspect that the Department of Veterans' Affairs has such a hang-up about the two cases known as Law and O'Brien that it is spoiling for a fight in the High Court of Australia to test the current legislation. In fact, it would not be unreasonable to describe the Bill which we are debating tonight as a breeding ground for litigation. The explanatory memorandum comprises 162 pages which, alone, is an indication of the complexity of the legislation. The Standing Committee for the Scrutiny of Bills has 10 pages of reservations in respect of lack of parliamentary scrutiny, reasonableness of time and place, self-incrimination, liability, non-reviewable decisions and discretions, ministerial determinations and burden of proof. In the Committee of the Whole I will move some amendments that reflect that Committee's reservations.

The valuable contributions made by the Veterans' and Defence Service Council and its Chairman, Rear-Admiral Guy Griffiths, along with the roles of the Regular Defence Forces Welfare Association, Legacy and its co-ordinating council, the War Widows Guild, the Totally and Permanently Incapacitated Association, the Vietnam Veterans' Association and many other organisations should also be acknowledged. It says much for the good temper of these organisations that breakthroughs have been achieved, in particular the deletion of the iniquitous 40-year rule. Veterans' organisations have been responsive to the fact that, at present, Australia's economic climate is very bleak and fiscal restraint must be exercised. At the same time, they have sought assurances that adequate funds will be provided and used efficiently and to the utmost effect in looking after our veterans. Despite its long period of gestation, the Veterans' Entitlements Bill contains a number of drafting errors which, I understand, will be corrected by the Government in the autumn session. Those areas apparently relate to hazardous service in particular.

The Liberal and National parties have always cared for our defence forces. We must ensure that those presently serving receive their just entitlements. The Opposition recognises that a number of general improvements have been made to the new Bill compared with the original draft exposure. Of course, the Minister would like the Senate to believe that there are a great many improvements but the list of voiced and written concerns of the veterans speaks for itself. I understand that the Minister has given representatives of ex-service organisations an assurance that, in the autumn session, the Government will rectify drafting errors in the Bill and that those amendments will be backdated to 5 December or the date of commencement of this Bill. In due course, I will seek that assurance from the Minister. In May the coalition parties assured ex-service men and women that where their claims were dealt with between May of this year and the passage of this Bill we would ensure that they were not disadvantaged. We will move an amendment to that effect.

The centrepiece of this legislation is, without question, clause 119 replacing section 47 of the previous Repatriation Act. It attempts to set out the standard of proof. The new clause 119 has a revised definition which the RSL and other ex-service organisations, but not all in the veterans' community, have been prepared to accept. It seems that the Government or, in any event, departmental advisers were concerned by comments made in the High Court about possible interpretations of the old section 47. Those comments were just that-obiter by the judges and not binding on future decisions. I believe that the Law case would have succeeded under the new clause 119 on its merits. I also believe that the O'Brien case might also have succeeded under the new clause 119 on the evidence produced. However, the Government has reacted by introducing this measure. It is complex and, in effect, it takes particular comments of High Court judges and adopts or counters them. So reasonable hypothesis is adopted and presumptions are negatived. The purpose seems to be to prevent an application from simply establishing service, war service, and a condition, or a medical condition, and then saying that the determining tribunal should prove that the condition is not a result of war service. The legislation states that the tribunal is not allowed to presume that conclusion and before granting the claim it must be of the opinion that the material before it raises at least a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the person.

I doubt that the old section 47 would have been so interpreted in the ultimate by the High Court but the Opposition accepts that it is the Government's prerogative to introduce this measure to counter its fears. I have some concern that the new clause might, in fact, have gone too far. I raise, for example, the consequences of sub-clause 119 (5) (d). I hope that the sub-clause will not be used to disadvantage a genuine claimant who is unable to establish some minor proof and needs the Repatriation Commission to make a minor presumption. I understand that the Minister has given representatives of ex-service organisations an assurance that no part of clause 119 will act in an unfair way to the detriment of veterans and I will seek, in due course, an assurance from the Minister to that effect.

I would appreciate it if the Minister would consider what assurances he can give to the Senate about the possible interpretations of clause 119 in relation to claims by veterans. In fact, the Opposition will move an amendment to clause 119, not an amendment which goes to the kernel of the clause but an amendment which will simply make it clear that claims prior to 15 May 1985 shall be considered under the old section 47 and claims since then shall be considered under the legislation we are debating at present, not under the amendments which were carried in May this year. It may very well be that the measure, as presented in the Senate tonight, covers the second possibility but, in any event, we will move an amendment to make sure that there is no doubt about it.

With some 90 existing statutes to be consolidated in this measure it is not possible to detail all the clauses which embrace a measure of controversy. But key areas are, firstly, the iniquitous assets test on service pensioners. Our belief is that 13,272 veterans have had their pensions reduced or cancelled by the assets test. Secondly, there are problems concerning the assessment of rates of pension and those people whose disability worsens after leaving the work force. While the legislation does not prevent someone over 65 from receiving a totally and permanently incapacitated pension, it requires that there be a loss associated with remunerative work as a consequence of the condition of the veteran. The veterans' organisations and the Opposition seek an assurance from the Minister that this area will be reviewed. I understand that the Minister has indicated to veterans' organisations that the Government will investigate the concept of what has now become known as an exceptional disability allowance. The Australian Democrats have an amendment in this regard, but, in our view, no responsible opposition could impose this provision on a government simply because it seems like a good idea. It might seem like a good idea but, clearly, the Government must be given the opportunity to explore its ramifications.

I turn to the Democrats' proposal to extend the definition of allied veterans. I assure the Minister that, when we get around to that provision in the Committee stage, I will be seeking from the Minister some details as to what would be the costs of adopting the Democrats' amendment in relation to the definition of allied veterans. Our shadow Minister in the other place has been told by an officer of the Department of Veterans' Affairs that the cost will be $20m. I am not sure whether that is $20m per annum or $20m cumulative. I am not sure, but I think it is $20m in 1989-90 dollar terms. I think that is what was put. I will be seeking from the Minister details of how that is made up. It is estimated that some 4,000 people will be eligible for that allied veteran's entitlement by 1989-90. I would like to know how the Government has been able to estimate that 4,000 allied veterans have managed to get to Australia. We are talking about ex-Vietnamese soldiers serving in the Vietnamese forces, who, having been overrun in late 1972, early 1973, managed to escape and make their way to Australia. How many Thais and United States servicemen have come to Australia in that period? The Government's advisers have been able to estimate that there are 4,000. Quite frankly, that seems to me to be a nonsense, an absolute guess. I would be interested to get the details of how that-what I think is a guess-is made up.

Under the legislation introduced by the Fraser Government, those people would be entitled, as allied veterans, to the pension at the earlier age of 60 instead of 65. This Government is saying with regard to those people: `If you are an allied veteran who served in the Vietnam war you will not get any benefits when you come to Australia.' To my mind, that indicates this Government's approach to the Vietnam war. The Government brought back our troops in November 1973 as if it was ashamed of them, instead of bringing them back proudly. Now, in effect, it is saying: `There was something different about the Vietnam war. It was not a war like the other wars that Australia fought in. This Government will not allow any benefits to these allied personnel who served with Australians in Vietnam'.

I will not have a bar of any suggestions that there are difficulties of proof; that is up to the applicants. The applicants themselves will have to establish that they were serving in the regular Vietnamese army, or whatever the force was. Those are questions of proof. I am talking about the legal situation in regard to allied veterans who, under the Fraser initiative introduced in 1979, would currently be entitled to be treated as allied veterans but who, under this Government's legislation, will be chopped off apparently because in 1990 dollar terms-this has been estimated by someone in the Department using some statistical information or whatever-it might cost $20m, and I presume that that is per annum.

Thirdly, it is iniquitous that after 30 December 1985 recruits to our defence forces will be ineligible for repatriation cover. The Government says that it will introduce a military compensation Act but that, in the meantime, these recruits will be covered by workers compensation. Being in the Services cannot be equated to being in a civilian job. Much more is expected of service personnel, and opportunites to promote their own causes are severely limited. They cannot go out on strike. If they are required to work 50 hours a week, they have to work 50 hours a week. Indeed, the inadequacy of workers compensation for service personnel was the main reason for bringing peacetime defence forces under the repatriation umbrella in the first place. Given this Government's shabby treatment of service personnel and its May 1985 attack on repatriation benefits, should this Government be trusted to provide an adequate military compensation Act? The Opposition says: Let us see the package first. I must say, though, that I welcome the deletion from this legislation of the miserable arbitrary 40-year rule introduced in May this year. It imposed on war widows a more stringent standard of proof 40 years after the conflict in which their spouses were involved. The deletion of this miserable provision in itself is justification of the sunset clause we introduced in May this year.

Many other areas of the legislation are the subject of some degree of controversy, not the least of which are the different levels of entitlements and categories for allied veterans which are embraced by the legislation. There are, of course, limits to the financial resources available, but successive Australian governments made commitments to Australian service personnel and their dependants in war and, until now, they have honoured those commitments in peacetime. It should be noted that in May this year the Government made it clear that the purpose of its amendments was to save money. That purpose has been continued in this legislation. Estimated figures and statistical costs were quoted in May by the Minister for Community Services (Senator Grimes) in the absence of the Minister. Those figures and costs failed to recognise that Australia was in World War II from the very beginning, with a high percentage of our population in the forces, and that most of our troops were serving overseas, or at least very long distances from their homes and families.

More and more of these ex-service men and women are passing the age of 65, not 60, which is the requirement for a service pension. These men and women are now exceeding the age of 65 and they would be entitled to an age pension anyway. In my view, the figures quoted in May this year by Senator Grimes-he has walked into the chamber-were statistical nonsense, designed to confuse the people as to the benefits being paid to our veterans. The difference in costs is actually the difference between medical treatment under repatriation and medical treatment under Medicare. That should be insignificant. If it is not insignificant, that is the Government's responsibility, not the patient's responsibility. The Government should be looking at its own costs and whether or not a simpler, less expensive system could be introduced which would do away with the enormous administrative burden of this legislation. I ask: What is the cost of administering legislation that is so complex and clearly a breeding ground for litigation? As John Howard recently said, ex-service men and women `should be treated with the greatest generosity that responsible government can afford'. Surely that is little enough for the community to pay where veterans have service-related disabilities and health which cannot be restored.

One amendment that is welcome is the removal of an anomaly with the decision to cover some defence personnel who served in Vietnam and had previously been denied benefits and also to cover the crews of HMAS Sydney and other support ships. But the cut-off date of 11 January 1973-the official date of Australian withdrawal from Vietnam-may fail to cover Australian forces retained in Saigon to protect our embassy until July 1973. This must be clarified as they should be covered by repatriation benefits.

It is sad to note some of the Government statements which sought to prove by statistics that the Australian repatriation system was the most generous in the world and that it remains so regardless of these changes. The Government uses these statistics as a drunken man uses a lamp post-for support rather than illumination. Those statistics are irrelevant. Firstly, we can only judge our repatriation system in relation to the Australian community. Secondly, the numbers it is required to support result principally from the structure of our forces at that time, their periods in combat, casualty rates, numbers of prisoners of war and their treatment, the environments they fought in, the opposition they were up against, and the ratio of combat to support forces. Thirdly, there is the question of the cost-effectiveness of the administering department.

We would be hard pressed to convince those war widows who have struggled to bring up families on the war widows pension that the system is generous. They will tell us of the debt they owe to Legacy and other voluntary organisations. We would be hard pressed to establish that our repatriation hospitals were the best in the world. In particular, there is a strong feeling among Vietnam veterans that the Department is unsympathetic to their problems and that it lacks staff with experience of the Vietnam war that could assist and counsel them. I urge the Minister to appoint many more Vietnam veterans to the Department. To some degree this is also true of Korean veterans and those who served in the Malayan emergency.

I think it is timely to remind this chamber of the debt Australia owes to its veterans. Few of our allies were sent into battle quite so ill-prepared or ill-equipped. I remember Wirraways against Zeros, ships without adequate anti-aircraft guns and troops, desert trained and clothed, dumped on the Kokoda Trail. They were engaged in more military misadventures and in battle for longer periods than those of most other nations, and they suffered on a per capita basis some of the worst casualties of war as a result of enemy action, incarceration and endemic diseases, and in the case of Vietnam the Whitlam Government brought them home as if they were in disgrace instead of proudly honouring them. Notwithstanding the repeated admonition not to, we do forget.

Senator Tate —You are a bloody disgrace.

The ACTING DEPUTY PRESIDENT (Senator Colston) —Order!

Senator LEWIS —The Opposition will not oppose the second reading of the Bill but I now move as an amendment to the motion that the Bill be read a second time:

At end of motion, add ``, but the Senate-

(a) expresses its concern in relation to-

(i) the reimposition of the Government's assets test in respect of veterans' service pensions because of its iniquitous impact,

(ii) the removal of repatriation cover for members of the Defence Force enlisting after the date of commencement of the new legislation without a new military compensation Act being in place,

(iii) the creation of different levels of entitlement, and categories, in respect of allied veterans and war widows and,

(iv) the degree of anomaly associated with the retrospectivity implicit in various aspects of the proposed changes; and

(b) calls on the Government to monitor closely the operation of the new legislation because of the significance of the changes and the many new definitions and provisions it introduces into the administration of veterans' affairs''.

The ACTING DEPUTY PRESIDENT —I remind honourable senators that interjections are disorderly and bad language is grossly disorderly.