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Thursday, 28 November 1985
Page: 2495

Senator GIETZELT (Minister for Veterans' Affairs)(5.21) —The Government will have to reject the amendment, and I will give reasons why. I do not think that the Opposition or the Australian Democrats appreciate the immensity of what the proposed new sub-clauses seek to do. The requirement that there be a reasonable hypothesis for a connection with service is the only change in the standard of proof applied to claims lodged before 15 May. I am referring to clauses 20, 42, 43 and 44 of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Bill. I do not think it is an unreasonable requirement that there be at least a reasonable hypothesis of a service connection before a pension is payable. That ought to be fairly fundamental.

By lodging a claim a claimant is in fact asserting that there is a connection with war service. Pension entitlements flow from a determination of a liability on the Commonwealth to pay a pension. The mere lodgement of a claim carries no vested right to have that claim determined irrespective of legislative amendments. The Senate Standing Committee on the Scrutiny of Bills has accepted that no retrospectivity is involved in the provisions of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Bill.

I do not know whether the Opposition appreciates the enormity-I stress, the enormity-of the consequence of adding proposed new sub-clause (9) to clause 119. This would have the consequence that every decision involving the granting or refusing of a pension or increasing or refusing to increase a rate of pension would be cancelled. In other words, every pension granted after 15 May 1985 would be taken away under this amendment that the Opposition has moved. The same would apply to any increase in the rate of pension, such as that granted to a totally and permanently incapacitated pensioner.

Since the amendments to the standard of proof section came into operation on 6 June 1985, about 18,000 pension claims and applications have been determined at the primary level of the new determining system. Some 1,800 applications for review have been determined at the Veterans' Review Board level, and two applications have been reviewed by the Administrative Appeals Tribunal. At least 12,100-that is, over 60 per cent-of these decisions were in favour of a veteran or his or her dependant. My advice is that if the Opposition were to persist with this amendment it would cancel those 12,000-plus favourable pension decisions.

On what basis is this action to cancel a pension justified? Imagine the outrage in the veteran community that this would cause. Presumably the effect of the proposed amendment would be also that substantial amounts paid as pensions will have to be repaid to the Commonwealth. I draw Senator Lewis's attention to the administrative chaos that this amendment would cause.

While proposed new sub-clause (9) to clause 119 is misconceived, its suggested basis is that a claim may have been rejected under the standard of proof provisions of the Repatriation Act as amended in June and a claimant may be disadvantaged if such a claim were successful under the revised provisions in clause 119. In the case of a claim rejected at the Repatriation Commission level since 6 June 1985, there is a period of 12 months in which an applicant may seek a review by the Veterans' Review Board. Where the Veterans' Review Board reviews such a matter after 6 December 1985, it will be required to apply new clause 119 to clause 20 and clause 43 of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Bill. A dissatisfied claimant can ensure the application of the modified section 119 simply by availing himself of the normal review mechanisms.

The same principle will apply where people's claims have been rejected at the Veterans' Review Board level and they appeal to the AAT. Such a review of the decision of the Veterans' Review Board will ensure that a claim is reconsidered by the AAT on the basis of new clause 119 as applied to clauses 20 and 43 of the transitional provisions Bill.

In order to satisfy Senator Lewis I am happy to undertake that the question of whether any cases might have been disadvantaged as a result of those changes will be examined. I am advised by my officers, who obviously have the responsibility in this area, that there are likely to be some 200 cases involved. If any disadvantage is identified in any of these cases, the Repatriation Commission has advised-I remind the Committee that the Repatriation Commission is an independent statutory authority-that it will arrange for those cases to be referred for immediate review.

It is not considered appropriate that a ministerial decision on what constitutes hazardous service be subjected to external review. I spoke about that previously. Whilst acknowledging that there is a technical defect in some of these areas, it would be a matter of some great consequence if the Opposition were to pursue the amendment that it has moved. I urge, therefore, on the basis of stability and continuity, that the existing clause stand as printed.