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Thursday, 28 November 1985
Page: 2453


Senator MACKLIN(11.43) —I move:

(6) Sub-clause 19 (4), leave out `the claim shall, by force of this sub-section, be deemed to have been refused', insert `the Commission may refuse the claim'.

Currently as clause 19 (4) stands it states:

(4) If, at the expiration of 6 months after a claimant has been informed under sub-section (3) that a claim has been deferred by reason of the refusal or failure of a veteran to undergo a medical examination, the veteran has not undergone the medical examination, the claim shall, by force of this sub-section, be deemed to have been refused.

My amendment seeks to take out the words `deemed to have been refused' and to insert instead the words `the Commission may refuse the claim'. What I have tried to do is give some flexibility and some discretion to the Repatriation Commission with regard to a situation that often arises. There has been the need for a medical examination of a claimant after the expiration of six months, but clause 19 (4) states that the Commission shall have absolutely no discretion in such a case, that the claim shall `be deemed to have been refused'. Reasons beyond the control of a claimant may very well be such that that person could not have undertaken that medical examination. I point to problems such as ill health, the death of a family member in another country and a whole host of other possible genuine reasons.

I believe that my proposed amendment would not affect the operation of this clause in any material way except to broaden the discretion of the Commission. If in fact a veteran refused to undertake that examination, the Commission would have been in receipt of all of the details of that person's claim and would see that that was a wilful refusal and, under its discretionary powers, it could simply deem the claim to have been refused. I see no problems in the operation of that clause if my amendment were to go through. It would simply broaden the Commission's discretion and enable it, if it found a genuine reason, to allow a claim and if it could not find a genuine reason it would not have to allow it.

It seems to me that the Commission will find great difficulty at some stage when it is confronted by someone with a genuine reason. At the moment we are not necessarily able to point to what might actually happen, but at some stage a genuine reason may arise. I find it very odd that under those circumstances the Commission could not use a discretionary power and allow a claim to continue rather than having to scrub it and move back to the beginning and start the whole operation all over again.

There are other circumstances that one could imagine. There is an arbitrary period of six months-there always has to be a date. I cite the problem of a veteran undertaking to have the required examination but the doctor, for circumstances quite beyond the reach of the claimant, is away on the day for which that person has made the appointment. If the appointment were made for a Friday but the doctor was unable to conduct the examination until the following Monday and the six-month period expired on the intervening Saturday or Sunday the operation of this provision would be rather absurd, and I am sure that the Commission would find it absurd. I feel that simply broadening the Commission's discretion as I have suggested would enable any of those injustices or problems that may arise to be eliminated.