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Wednesday, 27 November 1985
Page: 2401


Senator MACKLIN(8.45) —The Veterans' Entitlements Bill, as Senator Lewis indicated, has had a long and somewhat tortuous history. When Senator Messner was the Minister for Veterans' Affairs he launched an inquiry into the whole area of repatriation legislation. It is an area which, over the years, has seen many amendments but rarely a consolidation. Indeed, this is the first major consolidation of this legislation since the 1920s. When Senator Messner announced the inquiry into the operation and, hopefully, consolidation of the legislation he also announced that no attempt would be made during that inquiry to lessen any of the benefits then available to pensioners and beneficiaries under the Repatriation Act. Senator Gietzelt repeated that assurance upon becoming Minister for Veterans' Affairs in the Labor Government in 1983. Hence, what we should be looking at tonight in this legislation is how well that consolidation has taken place and whether improvements still have to be made and, if so, whether they should be made in the Committee stage of the consideration of this Bill. I would hope that we can make many amendments at this stage because I believe that quite a number of those amendments are fairly straightforward. The need for some of them is obviously as a result of oversights and they ought to have appeared in the legislation before now; however, others are matters of principle. Obviously the Government's policy on these matters differs from the policy of the Australian Democrats and we will see when the various amendments are moved whether the Government's position differs from that of the majority in this chamber.

This veterans legislation is still a very complex document. It is still a document which will be fraught with difficulties of implementation and I urge the Government to set about now, at the earliest possibility, the establishment of a monitoring team with a view to investigating problems in the legislation as they arise-many of those problems will arise only as the legislation goes into practice-so that we can have rapid and effective amendments to the legislation brought in. One of the lessons we should have learned from the history of this legislation since the 1920s is that many of those problems can linger on simply through the failure to amend the legislation effectively once problems appear. Hence, one sees a sorry history of many of the veterans being put off side simply by want of an amendment which is necessary and which in the past has ultimately come about but not until many of the veterans have been disillusioned with the operation of the Department of Veterans' Affairs, of the Repatriation Commission and in recent times of the various review tribunals.

With regard to the cost of implementing this Bill, we all understand that it is one of the major cost items borne by any government. It is an item that is difficult to estimate as strictly a veterans' entitlement item. By that I mean that the service pension, for example, with some differences with regard to age entitlements, is identical to the age pension. Many of the repatriation benefits which are provided in the various repatriation hospitals around Australia are identical to those provided by Medicare. Hence it is really not fair to say that the totality of the amount of money which appears in the budget for the Department of Veterans Affairs would appear there if those other areas were not allocated to their proper places. The extra amount which is paid to veterans over and above that which would be paid if they were other members of our community is the amount that is specifically earmarked for those people who have been on service or in the defence forces of Australia. We are talking about a much lesser amount.

With regard to the Veterans' Entitlements Bill, the principle enunicated by the Minister for Education, Senator Ryan, when she was talking about another area, is pertinent. She said this:

I support the Caucus view--

this was in respect of university fees--

that majority areas of philosophical commitment, such as that to public education--

and judging by the speeches of the Minister for Veterans' Affairs I assume that there would be an area of major philosophical commitment to veterans' affairs as well--

ought to be maintained, even at a time of economic hardship.

That seems to me to be a reasonable principle, one which surely should apply in this area. It is a principle which I hope the Government will apply in this area. When we get to the Committee stage of this Bill and we are talking about costs, we need to bear that in mind. The other thing that we need to bear in mind is the attitude that the various political parties in this place are taking on the current tax reform package, part of which is before the Senate. Certainly, the rest of the package will be before this House in a matter of months. The amounts of money contained in some of those Bills is well in excess of $150m and in some it is $200m. Public announcements have been made that many of those Bills will be opposed by the Opposition parties. These are revenue raising exercises. I must say, I would prefer the Government to be able to raise money in order to fulfil its obligations to veterans, rather than knock back those Bills and then say: `We're sorry, we can't fulfil our obligations'. Fairly obviously, the Government must be able to raise revenue in order to be able to pay out in this area and to fulfil the commitments made, not only by this Government but by every government in Australia's history.

The dollars which the community currently provides in this area are provided by way of compensation to people who still carry in their bodies or in their minds the scars of the wars in which they have fought. The cost of a war does not finish upon the declaration of the end of that war. It is carried by many of our citizens and their families. Providing such compensation was a solemn obligation undertaken at various stages when Australia was in dire conflict, a solemn obligation that must be fulfilled. We should be very careful when we say that we cannot or will not continue with any of the benefits which we have provided in the past because of the cost. We have to be very careful about what we are saying when we say that, because we know that if Australia were engaged in a war tomorrow we would find the money. Undoubtedly there is money to fight wars, but it is interesting how, in times of peace, money is never available to pay for the cost of wars in terms of human suffering and in the lives of the families of the people whom we ask to fight them.

The last speaker, Senator Lewis, raised a pertinent issue-and this is the last point that I wish to make about the costs in this area until we get to the Committee stage-and that is the cost of the administration of this particular exercise. In the past I have suggested some ways in which we could streamline the administration areas where we could save on administration and spend the dollars on the veterans. I have made suggestions taken from various examples around the world and I have gone to the extent of introducing private members Bills on these matters, so I do not wish to reiterate the points I have made previously. However, I suggest that there are some areas in which automatic acceptance is and should be possible.

I have suggested in terms of the complete computerisation of the operation, which is now under way within the Department, that we may find a certain coming together of various problems. Take the example of the soldier who has been in a concentration camp for six months and has certain diseases-we may find on going through the system that such people have an acceptance rate of 80 per cent or 85 per cent. We can easily do the figures that show that to put them through the system costs more than to give them the automatic entitlement. Quite frankly I would prefer the few who are not entitled under that system to get the extra dollars getting them, to that money being spent on the operation of the system itself. It is the system which brings the whole thing into disrepute so often. Indeed, as the Minister has said before-and I would certainly support him in this-we do have an extremely generous repatriation system in this country. Why then are there so many problems? It is not because of the generosity of the system, it is the operation of the system. I would much prefer us to work out ways in which that system's operation does not involve putting everyone through it and does not exacerbate many of the illnesses that those veterans suffer as they grind through the bureaucratic mill.

I wish to point to another interesting fact about the Department. People may draw their own conclusion from the statistics. For every 1,000 surviving veterans, the number of public servants available to process their applications was 11 in 1966, 12 in 1971, 17 in 1979 and 22 in 1984. In other words, between 1966 and 1984 the number of public servants for every 1,000 surviving veterans rose from 11 to 22. I have put this proposition at quite a number of meetings of veterans' organisations around Australia: Has the operation of the system doubled in efficiency in that time? Let us be very clear what we are talking about when we mention costs. There are places where reforms can be undertaken and there are places where costs can be saved. But let us not save those costs at the expense of the veterans. Let us have a look, or ask our public servants to have a look, at saving the costs amongst themselves. Let us try that first, if we have to save dollars and cents.

I turn now to what I consider to be one of the interesting parts of the debate that has gone on over the past year or so with regard to the changes the Government has mooted in this area; that is, the changes made to old section 47 of the Act, which is now proposed new section 119. The Minister said in his second reading speech-it is a line that the Minister has been using in quite a number of places:

The Government does not accept that a pension should be payable where there is no evidence to suggest a war service relationship to the claimed disability or death.

The Minister said that with regard to the O'Brien case and suggested that that was what the majority judgment of the High Court of Australia said in the O'Brien case. I quote this section from the end of the majority judgment in the O'Brien case:

The question for the Tribunal is whether it is satisfied, beyond all reasonable doubt, that there are insufficient grounds for granting the claim; it will disallow a claim if it is satisfied beyond reasonable doubt that `any fact necessary to establish entitlement' . . . does not exist.

That is the High Court's interpretation of the law. I wish that the lawyers who have been running around in the Department spreading this particular view would shut up. Plainly, it is not what the judgment of the High Court said, if anybody ever has bothered to read it. What is more, it is not the judgment of Mr Justice Brennan in that case. It is obvious, in terms of the briefing notes that have been given to the Minister, that his advisers have not even read the judgment of Brennan, because Brennan's dissent from the majority judgment was not with regard to the standard of proof but with regard to the medical evidence. Yet the Minister has been floating around this nation saying that he has to change the Act because the O'Brien case will allow unfettered licence. It would do nothing of the sort.

The High Court judges in fact were interpreting the law as it was laid down. That interpretation is very clear; people must be able to establish the context and the tribunal has to establish beyond reasonable doubt that there are insufficient grounds for granting the claim. In other words, it is the reverse onus of proof, which has been a very important function. The start of that reverse onus of proof came from a previous Leader of the Australian Labor Party, Dr Evatt. It is often entitled the Evatt amendment because he fought for many years to have it included after the Second World War.

I emphasise this particular point on the O'Brien decision because I think that it illustrates a mentality that has set the veterans against the Department and the Department against the veterans. It is an unhealthy development that has taken place over a number of years, not only during the term of the current Government, which I do not think is useful for this area. Certainly it is not beneficial, either for the Department or for the veterans, yet anyone who knows the area knows and understands what is going on. There is an understanding amongst veterans that the Department is an adversary. The Department has no brief to be an adversary. The Department in most of its operations is not an adversary and in most of the things its staff do it is very supportive of the veterans and their problems. Hence, where does this feeling come from within the veteran community? When one looks at the day to day handling of individual cases, in almost every case it is exemplary. Where are we looking for the problem? The problem clearly is in the presentation of cases at the various levels-the operation whereby the lawyers, the various people who present the cases, the various appeals that are made and the taking of cases through higher and higher courts leads to the point where this type of statement has been made by the High Court judges:

With all respect and despite the valiant advocacy of the Solicitor-General, we consider it to be a surprising conclusion.

They then go on to talk about why they thought it was a surprising conclusion. When one reads the judgment, one has to ask why this case ever happened at all. Why do some of those cases ever seem to take place? It has been established, I think, in the minds of many veterans that there seems to be a group within the Department who think that it is their God-given duty to do the work of the Treasury. The duty of the Department is to look after its clients, the veterans. It is the duty of Treasury to look after the Treasury. I think that we could have a much better system operating if those two operations were not so confused by some people at senior levels within the Department of Veterans' Affairs. Without that, from the counter staff upwards, most of the clients who have to deal with the Department would find that their dealings always were done in the most exemplary manner.

This particular Bill will not affect the operations of the Department. That Bill went through at the end of last year and we have yet to see whether that particular operation has borne the fruits that this Government hoped it might bear. I believe that quite beyond the legislation there must be attitude changes to accompany this consolidation and, hopefully, those attitude changes on the part of people in senior positions within the Department will enhance the operations of veterans' affairs in this country.

I will deal with the Bill in more detail in the Committee stage, but I will rehearse briefly where we are since a previous change to this legislation took place at the end of May this year. The Government has looked again at this, has had discussions with many veterans' organisations and has dropped a number of the proposals it had in that previous legislation. It has taken the opportunity also, hopefully in cognisance of the types of things that the various veterans' groups have been telling them, to rectify what I hope-I suppose in charity I should say that-were omissions. One omission which particularly intrigued me was the one in proposed section 85 (2) which again eliminated pulmonary tuberculosis. I would have thought that would have been one which would have got in, considering the history of that particular problem in the Senate in the past five years, but for some reason or other that was eliminated in the first draft, but has now been put back in as one of the acceptable areas.

There are a number of other matters at which I wish to look in the Committee stage. I will propose some 17 amendments in the Committee stage and, hopefully, we can discuss those in detail. I wish to point to a couple of amendments, other than the one dealing with proposed section 119, that will be necessary in this area and also in the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Bill, with regard to the retrospective development of this legislation. Undoubtedly there is a retrospective element that applies to people within the system-those people who have gone into the system and sought determinations and have been in there at the time of the promulgation of the legislation in May. During the Committee stage of the Repatriation Legislation Amendment Bill I raised a question as to whether clauses 69 and 70 were retrospective. The Minister for Community Services (Senator Grimes) who was acting for the Minister for Veterans' Affairs at the time said that they were not. The Senate Standing Committee for the Scrutiny of Bills said that it thought they were. However, the problem with the Scrutiny of Bills Committee was that it could not work out why two clauses were in the legislation which said exactly contradictory things. The reason given was that the draftsman was given two different and separate briefs and decided to include both of them in the Bill. I think it has now been accepted by the Minister that undoubtedly the legislation applies to all those whose applications and appeals are in the determination system.

The problem with this exercise is that, in the normal course of events in changing these types of determinations, in most government areas dealing with social security the date at which the Bill is promulgated becomes the date for the operation of the new legislation. So those people who, for example, put in applications under the former home loans system-applications which would have been allowed under the previous rules-after the date of promulgation of the new legislation have to be assessed under the new set of rules. I think that is fair. Quite obviously there is a disadvantage in having a cut-off point, but there has to be a cut-off point somewhere.

Making the legislation retrospective to include the people who are in the system involves some major inequities and injustices. I say that because once a person has gone into the system seeking a determination he does not really have any control over how speedily his determination takes place. I am quite sure that all honourable senators in this chamber who have been here a while can go to their filing cabinets and pull out a drawer in which they have a list of files of various cases they have taken up on behalf of constituents. Many such cases involve people who have been wandering around within the system sometimes for two, three, four or five years. In fact I had one case which had been in the system for seven years. At the end of that exercise some of these people are granted pensions. Others are granted part pensions or disability allowances or are rejected. However, whatever the outcome, the ability to influence the pace at which the determination moves through the system as often as not is outside their control. Sometimes it is within their purview but often it is outside it.

I am concerned with those people whose purview is outside. They have presented all the material they have. Their files are lost. They receive bad advice from somewhere, so they put in another claim, which means that their files are pulled out of the system where they were proceeding at a reasonable pace, and shunted off somewhere else. There is a whole host of reasons why these problems can occur. They happen even in the best-regulated operations. I do not want to look at what actually happens, except to say that it does happen and that it is outside the control of the person involved. I think that those people who went into the determination system prior to the date of the previous legislation ought to have their determinations made under the previous rules.

Likewise, those people who have had determinations made but against which there may be some appeal operating-either one they have launched at some stage or one which has been lodged against them at some higher level; it is not important who initiated the appeal-ought to have their determinations made under the previous rules. Determinations which are now in the system will now be assessed under a new set of rules. That hardly seems to me to be fair to those people. I ask the Minister to look very closely at this issue. I will certainly be moving an amendment to have a closer debate on it. I hope that at that stage we will have some details from the Minister as to the numbers involved, the extent of the operation, and the probabilities and possibilities of injustices that may have already occurred and are likely to occur in the future.

For the benefit of the Minister I also flag now an amendment I have already circulated in the chamber and which I will move in the Committee stage with regard to the statement the Minister made about the people who were on board the various vessels that went to South Vietnam. I draw the Minister's attention to that amendment.