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Thursday, 28 November 1985
Page: 2488


Senator LEWIS(5.00) —by leave-I move:

(2) (a) Sub-clause 84 (6), leave out ``determined'' (first occuring), insert ``prescribed''.

(b) Sub-clause 84 (7), leave out ``determined by the Commission, in writing'', insert ``prescribed''.

(c) Sub-clause 84 (7), leave out ``The Commission may, by instrument in writing, determine'', insert ``The regulations may declare''; leave out ``the instrument'', insert ``the regulations''.

(3) (a) Sub-clause 105 (1), leave out ``The Commission may, by instrument in writing, prepare a scheme'', insert ``The regulations may prescribe a scheme''.

(b) Leave out sub-clauses 105 (2) and 105 (3).

(c) Sub-clause 105 (6), paragraph (c), leave out sub-paragraphs (i) and (ii), insert ``the Vehicle Assistance Scheme as in force from time to time.''.

(4) (a) Sub-clause 110 (1), leave out ``as the Commission determines'', insert ``as are prescribed''.

(b) Sub-clause 110 (2), leave out ``as the Commission determines'', insert ``as are prescribed''.

(5) (a) Sub-clause 116 (1), leave out ``The Commission may, from time to time, by instrument in writing, prepare a scheme'', insert ``The regulations may prescribe a scheme''.

(b) Leave out sub-clauses 116 (2) and 116 (3).

(c) Sub-clause 116 (4), leave out ``the powers of the Commission under sub-section (1)'', insert ``the generality of sub-section (1)''.

(7) Sub-clause 122 (4), leave out the sub-clause, insert the following sub-clause

``(4) Application may be made to the Administrative Appeals Tribunal for review of a decision of the Commission in respect of the payment of an amount under sub-section (1).''.

(8) Clause 127, after sub-clause (1), insert the following sub-clause:

``(1A) A person may be required under sub-section (1) to furnish information, produce a document, or appear before an officer, only at a reasonable time and place.''.

(9) (a) Sub-clause 131 (1), leave out ``as the Commission determines'', ``as are prescribed''.

(b) Sub-clause 131 (2), leave out ``as the Commission determines'', insert ``as are prescribed''.

(c) Sub-clause 131 (2), leave out ``as the Commission considers reasonable'', insert ``as are prescribed''.

(d) Sub-clause 131 (3), leave out ``as the Commission determines'', insert ``as are prescribed''.

(e) Sub-clause 131 (4), leave out ``as the Commission determines'', insert ``as are prescribed''.

(f) Sub-clause 131 (4), leave out ``as the Commission considers reasonable'', insert ``as are prescribed''.

(g) Sub-clause 131 (5), leave out ``as the Commission determines'', insert ``as are prescribed''.

(h) Sub-clause 131 (6), leave out ``as the Commission determines'', insert ``as are prescribed''.

(j) Sub-clause 131 (6), leave out ``as the Commission considers reasonable'', insert ``as are prescribed''.

(k) Sub-clause 131 (7), leave out ``as the Commission determines'', insert ``as are prescribed''.

(l) Sub-clause 131 (8), leave out ``as the Commission determines'', insert ``as are prescribed''.

(m) Sub-clause 131 (8), leave out ``as the Commission considers reasonable'', insert ``as are prescribed''.

(n) Sub-clause 131 (9), leave out ``as the Commission determines'', insert ``as are prescribed''.

(10) Clause 134, after sub-clause (1), insert the following sub-clause:

``(1A) A person who is dissatisfied with a decision of the Commission in respect of the grant of-

(a) a clothing allowance under section 97;

(b) an attendant allowance under section 98;

(c) a benefit towards the funeral expenses of a veteran, a dependant of a deceased veteran, or a service pensioner under section 99, 100 or 101;

(d) a decoration allowance under section 102;

(e) a Victoria Cross allowance under section 103;

(f) a recreation transport allowance under section 104;

(g) special assistance or benefits under section 106;

(h) a temporary incapacity allowance under section 107; or

(j) a loss of earnings allowance under section 108,

may make application to the Board for a review of the decision of the Commission.''.

(12) (a) Sub-clause 208 (1), paragraph (a), at the beginning of the paragraph, insert ``knowingly''.

(b) Sub-clause 208 (1), paragraph (b), leave out ``that is not payable'', insert ``knowing that that pension, allowance, benefit or instalment is not payable''.

(c) Sub-clause 208 (1), paragraph (e), at the beginning of the paragraph, insert ``knowingly''.

I seek leave to incorporate in Hansard a copy of the report of the Scrutiny of Bills Committee, as it relates to those amendments.

Leave granted.

The report read as follows-

VETERANS' ENTITLEMENTS BILL 1985

This Bill was introduced into the House of Representatives on 16 October 1985 by the Minister Representing the Minister for Veterans' Affairs.

The purpose of the Veterans' Entitlements Bill 1985 is to consolidate, rationalise and simplify the entitlements available to members of the veteran community. It represents the most important and comprehensive overhaul of the repatriation system since its establishment over 60 years ago.

The Committee draws the attention of Senators to the following clauses of the Bill:

Clause 84-Lack of parliamentary scrutiny

Sub-clause 84 (6) provides that the Commission may determine a scale of charges in respect of the treatment at its hospitals and institutions of veterans (otherwise than for war-caused injuries or diseases) or persons other than veterans. Under sub-clause 84 (7) the Commission may determine that persons in a specified class of persons are to be exempt from paying the charges fixed under sub-clause 84 (6). There is no provision for parliamentary scrutiny of the scale of charges or of the exemptions determined by the Commission.

The Committee draws the clause to the attention of Senators in that it may be considered to subject the exercise of legislative power insufficiently to parliamentary scrutiny.

Clauses 97, 99, 100, 101, 102, 103, 104, 106, 107 and 108-Non-reviewable discretions.

Under Part VI of the Bill the Commission may grant to a veteran a clothing allowance (clause 97), an attendant allowance (clause 98), a decoration allowance (clause 102), a Victoria Cross allowance (clause 103), a recreation transport allowance (clause 104), special assistance or benefits (clause 106), a temporary incapacity allowance (clause 107) and a loss of earning allowance (clause 108). The Commission may also grant a benefit towards the funeral expenses of a veteran, a dependant of a deceased veteran, or a service pensioner (clauses 99, 100 and 101). There is a right of review in respect of only one of these allowances and benefits, namely the attendant allowance (see clause 134). In respect of the grant of the other allowances and benefits the Commission's decision would be final, subject only to challenge as to its legality pursuant to the Administrative Decisions (Judicial Review) Act 1977. Because no criteria are given for the excerise by the Commission of its discretion in the grant of these allowances and benefits the scope for such review would be limited.

The Committee draws these clauses to the attention of Senators in that they may be considered to make rights, liberties and/or obligations unduly dependent upon non-reviewable administrative decisions.

Clause 105-Lack of parliamentary scrutiny

Clause 105 empowers the Commission, by instrument in writing, to establish a Vehicle Assistance Scheme for the provision of motor vehicles to veterans and for the payment of allowances towards the cost of running and maintaining the vehicles so provided. The instruments establishing, varying or revoking the scheme must be approved by the Minister but they are not required to be subjected to any form of parliamentary scrutiny.

The Committee draws the clause to the attention of Senators in that it may be considered to subject the exercise of legislative power insufficiently to parliamentary scrutiny.

Clause 110-Lack of parliamentary scrutiny

Clause 110 states that a veteran or a dependant of a deceased veteran who travels for the purpose of obtaining treatment and an attendant accompanying such a person are to be entitled to the payment of travelling expenses `subject . . . to such conditions so the Commission determines'. Such determinations by the Commission are not required to be subjected to any form of parliamentary scrutiny.

The Committee draws the clause to the attention of Senators in that it may be considered to subject the exercise of legislative power insufficiently to parliamentary scrutiny.

Clause 116-Lack of parliamentary scrutiny

Clause 116 empowers the Commission, by instrument in writing, to establish a Veterans' Children Education Scheme to provide education and training for eligible children. As with the Vehicle Assistance Scheme the instruments establishing, varying or revoking the scheme must be approved by the Minister but are not required to be subjected to any form of parliamentary scrutiny.

The Committee draws the clause to the attention of Senators in that it may be considered to subject the exercise of legislative power insufficiently to parliamentary scrutiny.

Paragraph 119 (7) (b)-Ministerial determination

Under paragraph 119 (7) (b) the Minister for Defence may determine service in the Defence Force of a specified kind to be `hazardous service'. Where a claim is made in respect of the incapacity from injury or disease of a member of the Forces or the death of such a member which relates to `hazardous service' rendered by the member the Commission is required to determine that the injury, disease or death was defence-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. If the service of the member of the Forces is not determined to be `hazardous service' then the member or the dependant of the member does not have the advantage of this criminal standard of proof: the Commission is merely required to decide the issues relevant to the claim to its reasonable satisfaction.

Despite the importance of determinations of `hazardous service' to the claimants concerned there is no parliamentary scrutiny of such determinations. The Committee drew attention in its Eighth Report of 1985 to the lack of such scrutiny in respect of similar determinations under section 107J of the Repatriation Act 1920 as amended by clause 25 of the Repatriation Legislation Amendment Bill 1985. The Private Secretary to the Minister for Veterans' Affairs responded to this comment on 16 August 1985 indicating that what might be designated as `hazardous service' had yet to be decided:

`In some circumstances, it might be possible to define it by a generic description of the service (e.g. parachuting duties), at other times on the basis of service with a specific Defence Force group (e.g. service with the Special Air Services Regiment), or by a description of particular incidents (e.g. neutralising an unexploded device).

The Department of Defence has advised, however, that the Minister for Defence may consider a highly sensitive operation should be declared as `hazardous service'. In these circumstances, issues of national security could require that such a determination not be made public. Even if there were to be a legislative provision requiring the tabling of determinations, it would need some companion provision whereby the Minister for Defence was enabled to issue a conclusive certificate to avoid tabling specific determinations. This in turn raises the further question whether a conclusive certificate would be required to be tabled. Whether legislative provisions of such complexity can be justified in the present circumstances would require further consideration.'

The Committee assumes that it has been concluded that tabling and disallowance of determinations of what constitutes `hazardous service' cannot be justified since the provision remains unchanged in the present Bill. However the Committee still takes the view that the determinations are of sufficient significance in the scheme of the legislation that some mechanism should be found whereby the Parliament may be informed of such determinations (other than those which may concern matters of national security) and may debate the making of a determination or the failure to make a determination in respect of particular service. The Committee also notes that it would be concerned at the use of conclusive certificates if the issue of such certificates were not to be clearly restricted to situations involving considerations of national security.

The Committee draws the provision to the attention of Senators in that it may be considered to subject the exercise of legislative power insufficiently to parliamentary scrutiny.

Clause 122-Non-reviewable decision

Clause 122 enables the Commission to pay to the legal personal representative of a person who has died or to distribute among the dependants of such a person any accrued amount of pension, allowance or other benefit unpaid at the death of the person or any amount which has become payable after the death in respect of the grant of a claim made before the death of the person. Such an amount may be not insubstantial since the Commission may grant pensions with effect from a date 3 months before the date on which the claim for the pension was lodged with the Department. By virtue of sub-clause 122 (4) the Commonwealth is not to be liable to any action, claim or demand in respect of any amount paid or distributed in accordance with the clause. The effect of this clause is to prevent any review of the exercise by the Commission of its discretion under the clause. Thus, for example, if the Commission were to distribute an amount unequally among the dependants of the deceased, a person who felt aggrieved by that decision would not be able to challenge it.

The Committee draws the clause to the attention of Senators in that it may be considered to make rights, liberties and/or obligations unduly dependent upon non-reviewable administrative decisions.

Paragraph 127 (1) (c)-Reasonableness of time and place

Sub-clause 127 (1) empowers the Secretary, by notice in writing, to require persons to furnish information, to produce documents and to appear before a specified officer to give evidence or produce documents. While in each case not less than fourteen days notice must be given for the person to comply with the requirement, there is no limitation as to the reasonableness of the time and place at which a person may be required to appear before an officer. Failure to attend at the time and place notified would constitute an offence carrying a penalty of a fine of up to $1,000 or 6 months imprisonment or both unless the person concerned was incapable of complying with the notice.

The Committee has expressed its concern in relation to a number of similar provisions that the failure to require that the time and place specified be reasonable may result in the provision operating harshly in some cases. Accordingly the Committee draws the provision to the attention of Senators in that it may be considered to trespass unduly on personal rights and liberties.

Clause 128-Self incrimination

Clause 128 provides that a person is not excused from furnishing information, producing a document or giving evidence on the ground that the information or evidence or the production of the document may tend to incriminate the person. The clause is subject to the usual proviso that any information so furnished, evidence so given or document so produced is not admissible in evidence against the person except in proceedings for a failure to furnish information, give evidence or produce a document or for furnishing information or giving evidence that is false or misleading.

As is its usual practice the Committee draws the clause to the attention of Senators in that the removal of the privilege against self incrimination may be considered to trespass unduly on personal rights and liberties.

Clause 131-Lack of parliament scrutiny

Clause 131 provides for the payment of travelling expenses to persons attending before the Commission to support claims or as witnesses and to persons accompanying such persons as attendants. As in clause 110 the entitlement to travelling expenses is in each case expressed to be `subject to such conditions as the Commission determines'. There is no provision for parliamentary scrutiny of such determinations. Furthermore, whereas under sub-clauses 131 (1), (3), (5) and (7) the relevant travelling expenses are to be prescribed, the travelling expenses to be paid to attendants under sub-clauses 131 (2), (4), (6) and (8) are to be such as the Commission `considers reasonable'. If it is intended that the Commission will determine these expenses in accordance with a standard scale then it is suggested that any such scale should be subject to parliamentary scrutiny. If, on the other hand, the Commission is to determine such travelling expenses on a case by case basis then it is suggested that its decision should be subject to review by an independent, quasi-judicial body like the Veterans' Review Board.

The Committee draws the clauses to the attention of Senators both in that it may be considered to subject the exercise of legislative power insufficiently to parliamentary scrutiny and in that it may make rights, liberties and/or obligations unduly dependant upon non-reviewable administrative decisions.

Paragraph 208 (1) (a)-Strict liability

Paragraph 208 (1) (a) provides that a person shall not make a false or misleading statement in connection with a claim for a pension, allowance or other benefit under the Act. The more usual form of such a provision would be to create an offence only if a person `knowingly' makes a false or misleading statement (see, for example, sub-clauses 127 (5) and 168 (2)). Because the requirement that the person making the statement knows that it is false or misleading has been omitted in paragraph 208 (1) (a) it may be thought to create an offence of strict liability: that is, it would be sufficient to secure a conviction if it were proved that the statement was in fact false or misleading even if the person making it believed it to be true.

The Committee draws the provision to the attention of Senators in that it may be considered to trespass unduly on personal rights and liberties.

General Comment

The Committee notes for the information of Senators that clause 119 continues in force the change in the standard of proof for the determination of veterans' entitlements made by the Repatriation Legislation Amendment Act 1985. By virtue of that change the Commission is required not to grant a claim if it is reasonably satisfied that there is no material before it raising a reasonable hypothesis that the injury, disease or death giving rise to the claim was war-caused. Previously, in order not to grant a claim, the Commission had to be satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim: see Repatriation Commission v. O'Brien (1985) 58 ALR 119 per Gibbs CJ, Wilson and Dawson JJ at 128.

The Committee recognises that this change in the standard of proof for the grant of repatriation benefits is clearly a matter of government policy. The Committee also recognises that in strictly legal terms a claimant bears no onus to prove his or her claim before the Commission. While the Committee therefore takes the view that the change in the standard of proof is not a matter on which it should formally make comment under its Terms of Reference, it draws attention to its concerns with provisions which reverse the traditionally accepted onus of proof in other contexts, most particularly in criminal proceedings: see pages 26 to 32 of the paper on `The Operation of the Australian Senate Standing Committee for the Scrutiny of Bills 1981-85', tabled in September, and see also the report of the Senate Standing Committee on Constitutional and Legal Affairs on The Burden of Proof in Criminal Proceedings (Parliamentary Paper No. 319/1982).

VETERANS' ENTITLEMENTS (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 1985

This Bill was introduced into the House of Representatives on 16 October 1985 by the Minister Representing the Minister for Veterans' Affairs.

The Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Bill 1985 will provide arrangements for the transition from the existing Repatriation Act 1920 and other supplementary legislation to the Veterans' Entitlements Bill 1985.

The Committee draws the attention of Senators to the following clauses of the Bill:

Clauses 42, 43 and 44-Retrospectivity

The Repatriation Legislation Amendment Act 1985 altered the standard of proof applicable in respect of claims for pensions by requiring that the Repatriation Commission not grant a claim if it was reasonably satisfied that there was no material before it raising a reasonable hypothesis that the injury, disease or death giving rise to the claim for a pension was war-caused. Previously, in order not to grant a claim, the Commission had to be satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim: see Repatriation Commission v. O'Brien (1985) 58 ALR 119 per Gibbs CJ, Wilson and Dawson JJ at 128.

In its Eigth Report of 1985 the Committee drew attention to the fact that sections 69, 70 and 71 of the amending Bill (as it then was) applied the altered standard of proof to claims made before 15 May 1985, to applications for review by the Veterans' Review Board made before 15 May 1985 and to certain applications for review by the Administrative Appeals Tribunal of decisions made before 15 May 1985. The Committee suggested that such retrospective alteration of entitlements might be considered to trespass unduly on personal rights and liberties. The Private Secretary to the Minister for Veterans' Affairs responded to this comment on 16 August 1985 stating that:

`It is a matter of Government policy that the [responsible hypothesis modification intended to overcome the effect of the High Court decision in O'Brien] should be applied in a consistent manner to all decisions made after the date of effect of the Amendment Act. It is the Government's view that personal rights flow from the determination of Commonwealth liability to pay a pension rather than the mere act of lodging a claim.'

Clauses 42, 43 and 44 of the present Bill are similar in effect to sections 69, 70 and 71 of the Repatriation Legislation Amendment Act 1985 although the Committee is pleased to note that the terms of these clauses have been clarified so as to overcome any doubts similar to those which the Committee also raised in its Eighth Report concerning the continued application of the more advantageous criminal standard of proof to claims lodged before 15 May 1985. The Committee indicates as a matter of record that it accepts the Government's view that the application of the altered standard of proof in the determination of claims and appeals after the date on which the amending legislation came into operation does not involve any retrospectivity (even though such claims and appeals may have been lodged or initiated prior to the commencement of the amending legislation).

Clause 59

Reasonableness of time and place

Clause 59 amends the Acts set out in the Schedule including the Seaman's War Pensions and Allowances Act 1940. New paragraph 30 (1) (c) to be inserted in that Act is in similar form to paragraph 127 (1) (c) of the Veterans' Entitlements Bill 1985 and the Committee's comment on that paragraph also applies to this provision.

Self incrimination

New section 31 to be inserted in the Act is in similar form to clause 128 of the Veterans' Entitlements Bill 1985 and the Committee's comment on that clause also applies to this section.

Strict liability

New paragraph 58 (1) (a) is in similar form to paragraph 208 (1) (a) of the Veterans' Entitlements Bill 1985 and the Committee's comment on that paragraph also applies to this provision.