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Thursday, 28 November 1985
Page: 2439

Senator GIETZELT (Minister for Veterans' Affairs)(10.16) —The debate on the Veterans' Entitlements Bill 1985 is the culmination of some three years of preparation, consolidation and simplification of the very many Acts that come under the general heading of repatriation. It is also the culmination of extensive consultation over that period with the veteran community. I remind the Senate that the Government in good faith continued the process that was begun by Senator Messner in establishing an advisory committee when it became apparent to him that the various Acts had become so cumbersome and no longer relevant in the new circumstances of service of veterans to their country, that there was a need for modernising and consolidating the legislation.

From the Government's point of view-and, indeed, from that of the Opposition, when it was in government-the emphasis has always been on consultation with the veteran community. During the debates on the Veterans' Entitlements Bill, both in the House of Representatives and the Senate, honourable members have claimed that the Opposition had compelled the Government to consult the veteran community on this Bill by forcing the inclusion of a sunset clause in the Repatriation Legislation Amendment Bill 1985. This is an attempt by the Opposition to claim credit where credit is not due. Consultation with the veteran community on the Veteran's Entitlements Bill began long before the enactment of the Repatriation Legislation Amendment Bill 1985, which was carried in the autumn session this year following the economic statement by the Treasurer (Mr Keating) in May. In fact, it was the Opposition when in government in 1982 which began the consultative process to which I have referred when it announced the establishment of the Advisory Committee on the Repatriation Legislation Review. This Government readily acknowledges the efforts of Senator Messner who was then the Minister for Veterans' Affairs. When the Labor Government came into office in March 1983 I announced that the program of review of the repatriation legislation by the Advisory Committee would continue.

The Advisory Committee was chaired by Sir William Keys and comprised representatives of the major ex-service organisations. I took the additional step of inviting the Australian Veterans' and Defence Services Council to be co-opted on to the Committee so that we would have a broader imput from the veteran community. In November 1983 the Advisory Committee submitted its report to the Government. As I have stated on a number of occasions, the Veterans' Entitlement Bill has been based upon the recommendations of the Advisory Committee. In fact, 95 per cent of the Committee's 292 recommendations have been incorporated in the Bill. I remind the Senate that there are some 20 improvements in respect of entitlements for veterans arising out of this piece of legislation. Judging by the publicity and comments made by Opposition members in the House of Representatives and the Senate, one would believe that this is not a good Bill. In fact it is a good Bill. As was pointed out by Senator Messner when he established the Advisory Committee in 1982, it was not to be regarded as part of the jurisdiction of that Committee to take on board all the ambit claims that have been around in the veteran community in the post-war years.

Nevertheless, the Government has maintained the generous provisions of the repatriation Acts over the years and this has continued in this legislation. The Advisory Committee was the major channel in the consultations with the veteran community in the early period of the development of the Veterans' Entitlements Bill and I had many discussions with members of the Committee as well as with representatives of the veteran community. Copies of the Committee's report were widely distributed in the ex-service community and comments were invited from interested persons. I doubt whether any other piece of legislation has received such wide public interest and discussion.

In February 1984 a preliminary draft of the Bill was made available to members of the Advisory Committee for their comment. Constructive comments were received and those comments were taken into account in the subsequent drafting. The Opposition did not force that consultation; that was part of the whole process in the preparation of the Veterans' Entitlements Bill. Early in March 1985, well before the introduction of the Repatriation Legislation Amendment Bill 1985, the national Secretary of the Returned Services League requested that officers of my Department be made available to discuss and explain the provisions of the Veterans' Entitlements Bill, when the exposure draft of that Bill was tabled in Parliament, and this request was agreed to. The Oppositiuon obviously did not force that consultation.

Honourable senators will be aware that following the tabling of the exposure draft of the Veterans' Entitlements Bill on 30 May this year, consultation with the veterans' community was intensified. Material explaining the Veterans' Entitlements Bill was produced and circulated widely to the veteran community by officers of my Department, who then conducted information seminars for members of the veterans' community; not just for the leaders of the community but for the ordinary veterans in the community. Over 80 such seminars were conducted throughout Australia and about 10,000 interested persons attended those seminars. Further seminars were held for specific groups in the community when requested. Separate briefings were held for the leaders of the ex-service community in each State, as indeed they were for members of parliament. There has also been publicity in the newspapers and on television and radio. Some ex-service groups were also involved in meetings with me and I have received and responded to well over 1,000 letters on matters relating to the Veterans' Entitlements Bill. I stress that this consultation has been genuine and has been part of the whole preplanned process.

Members of the Opposition have intimated that the Government has been forced to back down on some of its proposals that were contained in the exposure draft of the Veterans' Entitlements Bill of May this year. They have referred specifically to the 40-year rule and other aspects of the standard of proof provision. Those opposite obviously do not appreciate the meaning of the word `consultation'. Consultation involves seeking the views of people and having regard to their advice. This is just what the Government has done. It has engaged in dialogue with the veterans' community, noted its concerns and reacted to those concerns. I was involved, even as late as a few weeks before the Bill was presented to the Parliament, in discussions with national leaders of the veteran community about the precise rewording of clause 119. The redraft of clause 119 is the result of such extensive discussions with veterans' leaders. After at least 10 or 12 different drafts, some provided by the legal advocates of the veterans' movement and others provided by my Department, finally a form of words was agreed to and became the substance of the legislation.

If there are any defects-we concede that there are some defects in the drafting of the legislation-they are because of those changes that were agreed to in the final period of the discussions. Of course, they will have some counter effects, or flow-on effects, which we have acknowledged exist and which will be rectified in the autumn session. I particularly acknowledge the assistance given by Judge Paul Toose in this regard in respect of the reframing of clause 119.

The Bill now before the Senate is the outcome of one of the most extensive and thorough processes of consultation that has been undertaken by any government. Senator Reid will acknowledge that in her presence and my presence, Sir William Keys admitted only a week or 10 days ago that this had been the most extensive consultation ever with the veteran community by any government in respect of a piece of legislation.

The Government acknowledges that not all of the demands of the ex-service community have been met in this Bill. Realistically, the veteran community does not expect that all of its demand will be met, and the veterans' leaders have acknowledged responsibly that the O'Brien decision went too far in terms of pension entitlements. Within its overall economic strategy, the Government has attempted to accommodate concerns and priorities indicated by veterans. I refer to what Senator Boswell said in the debate. He asked me what the Government had done in respect of the $116m saving involved in the assets test. The $116m saving was for the Government generally and not for veterans' affairs. It included the amount that was saved in the social security area. Our savings approximated $30m. As Senator Boswell has raised this matter, I draw his attention to the statement I issued in the Budget period this year to show that the increases in my Department's spending from last Budget to this Budget exceeded $267m. Whatever savings have been made in respect of my Department have been spent in other sections of my Department. In fact, we have made no contribution in net terms to the reduction in the Commonwealth deficit. We have spent considerable sums in upgrading the repatriation hospitals which everybody in the veteran community accepts is an essential step to take. The Bill is the Government's positive response to the consultative processes that have taken place over the entire period of this Government's term.

Questions have been asked of me in respect of clause 119. I am happy to give an assurance that the operation of clause 119 will be closely monitored. Some issues were raised in the House of Representatives debate in relation to the standard of proof. In particular, the opinion of Mr McInnes, QC, was referred to as suggesting that there were problems in the drafting of clause 119. In my view this opinion is not worth the paper it is written on. I am happy to make available an opinion I have received on this matter. Having discussed the matter with Senator Lewis, I seek leave to incorporate in Hansard the legal opinion of Mr Bennett, QC, dealing specifically with the matter raised by Mr McInnes.

Leave granted.

The document read as follows-




1. Our instructing solicitor acts for the Minister for Veterans' Affairs. The Minister seeks advice in relation to the Memorandum of Mr McInnes QC dated 8 November, 1985 (``the Memorandum'') which concerns the effect of clause 119 of the Veterans' Entitlements Bill 1985 (``the Bill'').

2. The Memorandum proceeds upon the basis that sub-clause 119(3) of the Bill will require the Commission

``to look at the whole of the evidence before it and determine if that evidence raises a reasonable hypothesis'' (see the Memorandum at page 4).

The Memorandum then expresses the view that clause 119 is at least open to the construction that a reasonable hypothesis is that which the Commission considers most likely so that where there are several hypotheses the Commission will determine which is the most likely and determine that to be the reasonable one.

3. In our opinion, this view is based upon a fundamental misconception of the provision. Sub-clause (3) will require the Commission to make a determination which will result in the refusal of the claim if it is of the opinion that the material before it does not raise a relevant reasonable hypothesis. Mr McInnes considers it to be arguable that the words ``reasonable hypothesis'' mean ``the most likely hypothesis'', so that, if the most likely hypothesis is against the claimant, the Commission will be of the view that the material does not raise that hypothesis and be bound to apply sub-clause (3) so as to make an adverse determination. This is simply not what the words ``reasonable hypothesis'' mean in the sub-clause and we consider, with respect, that the contrary is not reasonably arguable. We express this view for the following reasons:

(a) The sub-clause refers to the material not raising ``a'' reasonable hypothesis of the relevant kind. The indefinite article ``a'', when preceded by the adverb ``not'', means ``any''. To say that there is not a lion in sight is to say that there is not any lion in sight. It does not mean that a particular lion is not in sight although other lions may be. Applying this to the present context, an opinion that material does not raise ``a'' reasonable hypothesis means an opinion that the material does not raise any reasonable hypothesis; in other words an opinion that there is no relevant reasonable hypothesis at all raised by the material. It does not mean an opinion that one particular relevant reasonable hypothesis is not raised although others may be.

(b) There is no way in which one can read the words ``a reasonable hypothesis'' to mean ``the most likely of a number of hypotheses.'' The English words simply do not bear that meaning.

(c) Even if, contrary to our very firm views, the words ``reasonable hypothesis'' were given this meaning, the literal language of the sub-clause would not support the contention. The sub-clause would then provide that the Commission would be bound to make the relevant adverse finding if it were of the opinion that the material before it did not raise what the Commission considered to be the most likely hypothesis. This is internally inconsistent.

(d) The timing of the amendment in relation to O'Brien's case, the reference to that case in the Explanatory Memorandum and the general context of the provision make the view expressed by Mr McInnes quite untenable. Apart from anything else, it would have the effect of reversing the policy expressed in the Explanatory Memorandum and the Second Reading Speech.

4. The difference is not one of mere semantic nicety. If after considering the whole of the material before it the Commission is of the opinion that there are a number of reasonable hypotheses either for or against a war-service relationship or of both kinds, no question of choosing between them will arise. This is because any one reasonable hypothesis in favour of a war-service relationship which remains will have the result that the Commission could not be satisfied beyond reasonable doubt that there was no sufficient ground for determining the connection.

5. It follows that comparative likelihood of different reasonable hypotheses is not an issue under this clause. It is sufficient if the Commission is of the opinion that there is one reasonable hypothesis.

6. In our view the misconstruction which we have set out in paragraph 2 above vitiates the conclusions of the Memorandum. As we have said, there will be no occasion for the Commission to choose between reasonable hypotheses found to remain at the completion of the Commission's consideration of all the material before it.

7. There remain to mention two further matters.

8. First, it is said in the Memorandum that there is an evidentiary burden placed upon an applicant. This conclusion is closely associated with what we regard as the error in relation to competing reasonable hypotheses. Nevertheless we repeat that it is the duty of the Secretary of the Department to investigate a claim and of the Commission to satisfy itself with respect to or determine all matters relevant to the determination of a claim or application.

9. Finally, we advert to that part of the Memorandum which concludes that a reasonable hypothesis ``would be determined on the usual civil standard''. This conclusion is said to follow from sub-clause 119 (3) of the Bill. What this fails to recognise is the relation between the opinion that the material does not raise a reasonable hypothesis and the requirement that the Commission shall determine that the injury, disease or death was war-caused or defence-caused unless satisfied beyond reasonable doubt that there is not sufficient ground for making that determination.

10. The error in the Memorandum is that an extra step is inserted in the process which overlooks the fact that the notion of ``reasonable hypothesis'' stems from the criminal law and contains within it the ``beyond reasonable doubt'' standard. The true position therefore is that the opinion as to whether a reasonable hypothesis remains or does not remain constitutes the satisfaction beyond reasonable doubt. That this is so is clear from the words ``the Commission shall be satisfied'' in sub-clause 119 (3) of the Bill. It follows that no question of the civil standard of proof arises in relation to the sub-clause.

11. We advise accordingly.




25 November 1985

Senator GIETZELT —It has been claimed that the eligibility criteria for totally and permanent incapacitated pensions discriminate against those veterans whose service-related incapacity increases following their retirement from work. The Returned Services League has proposed that these veterans should receive an exceptional disability allowance if they do not qualify for a TPI pension. It could be said that the introduction of such an allowance for veterans whose service-related incapacities did not cause economic loss is a TPI pension by another name. Therefore, it is a concept that needs comprehensive study. The need for and the cost of the proposal should be fully examined. No responsible government could introduce such a scheme without full knowledge of its implications. That knowledge is not available at present.

I thank Senator Lewis for his comments on this matter. He accepted the argument and noted that this is a matter that will have to be considered in the overall budgetary context. That is the view the Government takes. If the RSL or other veterans' organisations consider this as a priority area for repatriation expenditure, no doubt the matter will be raised with the Government and examined along with other competing priorities in the context of new policy proposals. The Government does not close the door to such a proposal; rather it views it in the perspective of a policy proposal to be considered in some future budgetary context. It must be noted, however, that any expenditure in this area may need to be offset by savings in another area.

There has been a lot of debate about members of the regular defence forces. I stress to the Senate that the responsibility for repatriation for the regular defence forces occurs substantially as a result of a decision made by the Whitlam Government in the latter part of 1972. Prior to that, members of the regular defence forces had very little association with repatriation benefits. Notice has been given that amendments to clauses 68 and 69 of the Bill will be moved in the Senate. The effects of these amendments would be to provide that future enlistees or appointees to the regular Defence Force would be eligible for repatriation cover. Honourable senators will be aware that it is the Government's intention that repatriation cover will be extended only to those persons who enlist or who are appointed to the regular defence forces after the commencement of the Veterans' Entitlements Act where they undertake hazardous service or are designated by the Minister for Defence for peacekeeping service. I acknowledge that there are drafting errors in the hazardous service provision and these will be rectified with retrospective effect.

At this stage it might be relevant if I were to refer to a letter that has been given to me by the Minister for Defence (Mr Beazley) on this very important issue of providing for members of the regular Defence Force and the military compensation aspects involved. I am doing this because it has been suggested to me that if the Government were to introduce a military compensation scheme, some of the Opposition's concerns about the Veterans' Entitlements Bill may not be pressed. In a letter sent to me yesterday, Mr Beazley said:

My Dear Minister,

The Government has agreed that there should be an examination of the need for a military compensation scheme to meet the special circumstances of Defence Force service in peacetime.

I will be shortly setting that examination in train, with the direction that the report to the Government is to be available next year within a time table such that, should cabinet endorse the scheme, the necessary legislation will be able to be enacted in 1987.

I must point out with regard to the suggestion that new enlistees should remain under the Repatriation Act that they do not become eligible for repatriation benefits until such time as they have had three years service. No existing beneficiary in the defence services or any person who is currently eligible for repatriation benefits will be affected by the legislation. Only the new enlistees will be affected. As there are three years to go before that exigency arises-that is, before they are eligible to become beneficiaries under the repatriation legislation-I think that the Government's commitment has clearly been expressed in Mr Beazley's comments in the House of Representatives and in the letter he has given to me to confirm the Government's intention to introduce a military compensation scheme.

Honourable senators will be aware that it is the Government's intention that the repatriation cover will be extended only to those persons who enlist or are appointed to the regular Defence Force after the commencement of the Veterans' Entitlements Act where they undertake hazardous service or are designated by the Minister for Defence for peacekeeping service. I suggest that the Repatriation Act is primarily directed towards providing compensation for veterans and the dependants of deceased veterans who served in wars or war-like operations. It must be remembered that members of the regular Defence Force, unlike veterans, are undertaking an occupation of choice, albeit a very important occupation and one that involves an element of danger. Generous compensation for any personal injury suffered is available to the Defence Force members under the Compen- sation (Commonwealth Government Employees) Act of 1971.

If I draw attention, briefly, to the entitlements that are available under the Compensation (Commonwealth Government Employees) Act some of the concerns that have been expressed will be dissipated. Members of the Defence Force are eligible to receive compensation under that Act in respect of an injury arising out of or in the course of defence service, or any disease to which the defence service was a contributing factor. During the first 26 weeks of incapacity, compensation will be paid at the member's full pay rate. Weekly payments for total incapacity after that 26-week period will be $164 for a Defence Force member, $43.20 for the spouse and $20.50 for any dependent child. Full medical treatment is also available for compensable injuries or disease. An allowance is also payable, where required, for constant help and attendance, and where the death of a Defence Force member is related to service a dependant is eligible to receive a lump sum of $51,290.

Having regard to the availability of these compensation entitlements and the Bill's continuation of repatriation coverage in respect of hazardous and peacekeeping service, it can scarcely be argued that future Defence Force enlistees will be seriously disadvantaged by removal of the repatriation cover for general peacetime service. I should point out to honourable senators that members of the regular defence forces who were serving immediately before the commencement date of the Bill and who continue to render such service will retain their eligibility for repatriation benefits in respect of both past and future service. There has been a suggestion that repatriation cover should continue for future enlistees until military compensation is introduced. I do not consider it would be wise to take that course of action. In any event, new enlistees will not be disadvantaged, even under the present legislation.

Uncertainty in the minds of veterans has been created in the discussions about the Bill. It is claimed that the Government has tried to ram through this legislation and in so doing has created uncertainty and in many cases real fear, both for war widows and war veterans of all types. Any uncertainty in the veteran community about the entitlement Bill stems from disgruntled elements who it seems have set out to distort the effects of the various provisions of the Bill to confuse veterans and widows about the changes which flowed from the Treasurer's May economic statement. I have already spent some time outlining the considerable efforts the Government has made to involve the veteran community, and that process will continue.

One honourable senator opposite criticised the provisions made for veterans' dental expenses. Let me put the record straight. It is considered necessary to restrain the rate of growth of dental cost, but I should point out that all World War I veterans in receipt of a 50 per cent disability entitlement with service pension, those who are 100 per cent incapacitated, TPIs and war widows still have access to a wide range of dental treatment in access of that covered by the $300 annual allowance. It applies only to a certain number of more sophisticated dental items-chrome cobalt dentures, crowns, bridges and inlays. It appears to me that some honourable senators and members have not understood the intent of the Government's decisions in these matters. It is palpable nonsense to suggest that as a result of this initiative the veterans' teeth may rot to hell, as was suggested in another place. There will be no basic change to the normal dental treatment that is available to those who are eligible. The new rules do not apply to dental treatment provided in respect of war caused disabilities or cancer.

During the debate on the Bill much has been made by a number of honourable senators of the increased administrative costs associated with the repatriation determining system and the delays in processing claims and applications within that system. Prior to the introduction of the new determining system in January 1983, which had the overwhelming support of the Senate, there was a dramatic increase in the level of claims which was not matched by a sufficient increase in staffing resources in the Department to meet the extra demand for pensions, treatment and other services. This was in no small part due to the staffing restrictions imposed by the previous Fraser Government.

In line with the recommendations of the Administrative Review Tribunal in its report of 16 September 1983, this Government implemented a new determining system which came into operation on 1 January this year. Much of the initial expenditure, estimated at $21m, was for additional staff to reduce delays in the determining system. The new determining system inherited over 30,000 claims and applications for review. Once this backlog is eliminated it is expected that some savings of administrative expenditure will be achieved as well as a reduction in the time taken to process the claims and the applications for review.

There was some discussion by Senator Lewis in respect of those veterans who served in other wars. He suggested that somehow or other the Government was discriminating against a group of veterans who served on the allied side in wars in the Pacific region. I want to nail that erroneous view on the head. I point out to the Senate that under the legislation embodied in this Bill, and agreed to by the Advisory Committee, it is not the Government's intention that Vietnamese nationals, Americans, Filipinos and others who served in Vietnam should have access to our repatriation system. We are the only country in the world that extends any benefits to those who were not Australian veterans during the war. It is wrong to suggest that we have taken something of a racist position in denying a disability pension to those groups of people who have migrated to our country in recent times. I just point out to the Senate that the mere assertion by a person that he served on the allied side in a particular war does not constitute sufficient evidence to warrant the granting of a service pension based on reaching the age of 60 or based on unemployability, perhaps because of his problems of assimilation in the Australian community. It is not envisaged to extend that benefit in this legislation, which is designed overwhelmingly to assist the rehabilitation of ex-servicemen and veterans generally, to a large group of migrants who have come to our country for whom there would be great difficulties in establishing the validity or otherwise of their claims.

The Government does not resile from its responsibilities and obligations to veterans. We believe this is a good Bill and that the steps that the Government has taken in this legislation will substantially meet the obligations on government to provide a ready access for genuine claimants to benefits arising out of their service to Australia.

Senator Macklin, in his speech in the second reading debate, made some outrageous statements when comparing the number of staff in the Department in the years 1961 to 1984. He suggested that cuts should be made in the administration and that the figures reflect over-staffing of the Department and a wastage of resources in the administrative area. In comparing the number of staff with the number of survivors from wars, he has failed to take into account that the greater proportion of staff in the Department of Veterans' Affairs is employed in the institutions. For example, in 1961 of a total of 8,079 staff, 5,412 worked in institutions. At 30 June 1984 of a total of 11,338, the number of staff working in institutions was 7,750.

He failed to take into account that 1984 staff figures include many new staff required to undertake functions which did not exist in 1961. He should be aware of the Vietnam Veterans Counselling Service and the additional functions of the Office of Australian War Graves, which is obviously an area that requires more staff and resources. He should be aware of the free limbs scheme under which limbs are provided to amputees in the community-not only veterans but also civilian amputees are eligible-and paid for by my Department. He should be aware that the introduction of the freedom of information legislation required the Department of Veterans' Affairs to process a record 12,000 claims a year. In addition, the reasons for decision in respect of applications or assessments for pensions have to be given on determination. There has been an extension of benefits, which has been widely applauded by all political parties and ex-service organisations, and a growth of expenditure on benefits, reflecting an improvement in conditions and the widening of benefits.

Overall, it must be said that there is no substance to the criticism that has been made by Senator Macklin of the way in which the Department carries out its responsibilities in a period in which the average age of veterans has now reached 67 and when the great majority have retired from the work force and desire to be recognised for benefits. In addition, practically all of them, apart from those who served in the Vietnam war, have reached the age of 60, which makes them eligible for a service pension. With the increased number of services that have to be provided, both in hospitals and through other facilities, inevitably the Department's work has intensified, putting more responsibilities on the Department and the Government to provide the range of services to which the veterans are entitled.

I indicate that the Veterans' Entitlements Bill contains a number of new provisions that will benefit veterans and their dependants, specifically war widows. An extended range of benefits will become available. I table a document which indicates in very brief form the 20 additional benefits available as a result of the consolidation of the Veterans' Entitlements Bill. I confidently expect that the Senate will take a mature and responsible position on the legislation and support it.

The DEPUTY PRESIDENT —The immediate question is: That the words proposed to be left out-Senator Macklin's amendment to Senator Lewis's amendment-be left out.

Amendment negatived.

The DEPUTY PRESIDENT —The question is: That the words proposed to be added by Senator Lewis's amendment be added.

Question put.