23rd Parliament · 2nd Session
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid) took the chair at 11 a.m., and read prayers.
– I ask the Minister representing the Minister for Territories: What is the maximum amount of credit that an ex-serviceman can obtain under the Government’s land settlement scheme in Papua? Are native ex-servicemen entitled to the same amount of credit under the scheme as white ex-servicemen?
– I think the maximum amount that can be made available is £30,000. I am unable to give the honorable senator an answer to the second part of his question. If he will put it on the notice-paper, I will get the information for him from the Minister for Territories.
– My question is directed to the Minister for Customs and Excise. Is it a fact that full customs and excise duties are imposed on beer and spirits consumed in the parliamentary bar? Have any representations been made to the Minister for a reduction of the duties on liquor consumed in Parliament House, with a view to avoiding the increase of Id. per glass recently imposed by the hotels association of New South Wales?
– It is a fact that full customs and excise duties are imposed on all beer and spirits consumed in this building and also in the Parliament Houses of all the States. No representations have been made to me to reduce the duties. I can say here and now that any such representations would be merely a waste of time, because I can see no reason why members of Parliament should not pay the same price for a commodity as ordinary citizens have to pay.
– I ask the Minister for Customs and Excise: Is the Tariff Board presently inquiring into the plywood industry to ascertain whether more pro tection should be granted to it? Is the Minister aware that the quantity of plywood now being admitted to Australia from Japan and Canada is more than six times the quantity that was being admitted in January of this year? Also is he aware that plywood imported from Japan and Canada is sold at prices substantially lower than the prices of locally manufactured plywood? In order to preserve the Australian plywood industry, which gives employment to several thousands of workers, will the Minister have the report of the Tariff Board expedited?
– The honorable senator’s question is a most important one because the Australian plywood industry is a most important industry. The matter of Tariff Board protection is directly within the jurisdiction of the Minister for Trade. I shall ask the Minister about the steps that have been taken and how far the Tariff Board has proceeded with the investigation which, I understand, it is making. I ask the honorable senator to place his question on the notice-paper.
– Is the Minister for National Development, who is in charge of the Australian Atomic Energy Commission, aware that the commission has arranged a nuclear exhibition to be staged at the Melbourne Royal Show which is to be held later this month? Will the Minister make the same exhibition available at the Perth Royal Show, which is to be held in October, so that the people of Western Australia also may see it?
– There is a rather steady demand for the exhibitions that the Australian Atomic Energy Commission provides. The commission makes its work known to the public by means of two exhibitions, one relating to isotopes and the other to atomic energy matters generally. I have had a number of requests for the exhibits to be made available at various places. I agree that there would be a great deal of virtue in having an exhibit displayed in Perth, and I should like to see that done. I shall have a talk with the commission and ascertain its commitments, and see whether it is possible to meet the honorable senator’s request.
– I direct a question to the Minister representing the Minister for External Affairs. Has the Government any reliable advice on the statement attributed by a section of the press to the Dutch Prime Minister, Professor de Quay, that Holland intends to propose to the United Nations that Dutch New Guinea be placed under international authority? If the statement is correct, will the Government indicate Australia’s attitude to the proposal and its implications generally?
– As of yesterday, the only information which the Government had - and I believe that is still the position - was derived from press reports of remarks and statements alleged to have been made at a cocktail party given to the press by the Information Minister of the Dutch Government. Just what was said at that party and in what context it was said, is not sufficiently clear; but the Government will seek full information on the matter from reliable sources as soon as possible.
– My question is addressed to the Minister representing the Minister for Shipping and Transport. I noticed in the Adelaide “ Advertiser “ on Monday last an announcement by the Minister for Shipping and Transport to the effect that the Australian National Line would soon call tenders for the building of a second roll-on roll-off type of vessel, to run mainly between Sydney and Tasmanian ports, and that the vessel would be a sister ship to “ Princess of Tasmania “, which was launched last year and is now operating between Melbourne and Launceston. I ask the Minister: What is the tonnage of the proposed vessel? Will the Australian National Line call tenders for the construction of the vessel from all Australian shipyards, including the yards of the Broken Hill Proprietary Company Limited at Whyalla?
– On the question of tonnage, I think the vessel to be constructed necessarily will be rather larger than “ Princess of Tasmania “, if only for the reason that more passenger accommodation will be required. It is the general practice for tenders to be called for the construction of such vessels, and I know of no reason why that practice should not be followed. If it is followed, the Whyalla shipyard will, of course, have an opportunity to tender.
– I direct a question to the Minister representing the Minister for Labour and National Service. Is it a fact that, to date, the Seamen’s Union of Australia has been fined a total of £1,300 on charges arising from disputes in connexion with the Foster award? Is it also a fact that a considerable number of similar charges await hearing? If so, does the Minister believe that such savage penalties imposed by the Commonwealth Industrial Court, which is presided over by a former Liberal Party senator, are conductive to industrial peace?
– I deprecate the bringing into a question about a legal tribunal, the personality in charge of that tribunal and the implication that he would not give a completely impartial judgment in any matter brought before the tribunal. With that statement as a preface I reply to the honorable senator’s question in this way: Charges have been laid from time to time by shipowners against individual seamen who have broken the terms of their award, and who are, under the law of the land as it stands, subject to such charges. In my opinion, it is a proper exercise of the arbitration function that the law relating to it should be used by either side to a dispute, if that side feels that it is aggrieved. It has been the experience of Australia that such a provision is conducive to industrial peace.
– My question is addressed to the Minister representing the Minister for the Army. Will he tell the Senate why the study of foreign languagesat the Royal Military College, Duntroon, has been discontinued? Will the Minister take steps to reintroduce modern languagecourses so that each student has the opportunity to study either one European’ language, in addition to English, or one Asian language?
– Last week I asked theMinister for the Army about this matter because I had noted the point to which
Senator McCallum has referred. The Minister’s reply to rae was as follows: -
Some time ago when the curriculum of the Royal Military College was being reviewed it was considered that foreign language training, although it might be desirable, was not essential. If such were to be reintroduced it would supplant some other subject or subjects. It should be added that the curriculum of the Royal Military College is reviewed every two years by a high-level committee which involves representatives of the universities of Sydney and Melbourne and the Director of the Commonwealth Office of Education.
All subjects in the existing curriculum are essential and designed to lead to university or institute of technology credits. These would not be achieved if subjects were dropped.
The difficulty in introducing a foreign language is to determine which language, whether the officer would remain proficient and the certainty that he would serve where such a language were used.
– My question is directed to the Minister representing the Minister for External Affairs. In view of a New York report dated 4th September, appearing in the Adelaide “ Advertiser “ on Monday last, referring to widespread activities by Soviet scientists in Antarctica, will the Minister give the Parliament an assurance that the facilities granted to the Soviet Union for exploration work within the Australian Antarctic Territory during the International Geophysical Year are not being exceeded? Is the Soviet Union still occupying bases established on what is regarded as Australian Antarctic Territory, and which this Government gave permission for the Union of Soviet Socialist Republics to use during that period?
– The question asked will very largely be answered in the terms of the Antarctic Treaty Bill which is to be introduced, I hope, into the Senate this morning. In anticipation of the introduction of that bill, I would reply to the question in this way: No new bases have been established by the Soviet Union in what we regard as Australian Antarctic Territory. There is activity from the bases which that country has established in what we regard as Australian Antarctic Territory.
asked the Minister representing the Minister for Trade, upon notice -
– The Minister for Trade has now informed me as follows: -
If the statement by the delegate to the National Farmers’ Union of Australia has been reported correctly, he has erroneously referred to the lifting of tariffs. There has been no change in tariffs on ordinary products. I assume the reference was meant to be to the removal of import licensing controls from most products including dairy products as from 23rd February, I960.
These controls have been imposed in order to protect our balance of payments and have now been removed in accordance with the Government’s long standing undertaking to remove them as soon as the balance of payments position would permit. Tarriff protection may be accorded to any Australian industry under prevailing policy.
asked the Minister representing the Treasurer, upon notice -
– The Acting Treasurer has furnished the following replies: -
asked the Minister representing the Minister for Health, upon notice -
– The Minister for Health has now furnished the following reply:-
asked the Minister representing the Minister for Primary Industry, upon notice -
What quantities of salmon heads or other material used for crayfish bait were brought into Western Australia during the periods 1958-59 and 1959-60 from-
From which States and/or countries were they obtained?
– The Minister for Primary Industry has furnished the following information: -
Salmon heads and other types of crayfish bait used in Western Australia have been obtained from South Australia and also imported from the United Kingdom, Canada and Hong Kong. The Commonwealth Statistician does not record this information as a separate item and I regret I am therefore unable to provide the honorable senator with detailed particulars of the quantities and sources of supply of crayfish bait imported into and used in Western Australia in the last two years.
asked the Minister representing the Minister for the Interior, upon notice -
Minister for the Interior has furnished the following reply - 1 and 2. Prices paid for leases of residential blocks in Canberra are not rising at each auction. The following are the average amounts bid above the reserve values at each of the last six sales -
These amounts are, in effect, premiums paid by purchasers for the right to leases of blocks for which an annual land rental is payable at the rate of 5 per cent, of the unimproved value. The unimproved value is in every case the “ reserve “ value specified in terms of the City Area Leases Ordinance for the purpose of auction, but the successful bidder at the auction pays only the difference between that “ reserve “ value and the amount of his successful bid. At only two of the sales quoted above was the average premium paid by purchasers greater than the average “ reserve “ value. At the other four sales the average premiums paid ranged from £67 to £329 less than the average “ reserve “ values. It must not be overlooked, however, that many of the residential blocks sold at the above-mentioned sales are considerably larger, with greater frontages, and more favorably located, than are the great majority of residential blocks offered for sale in other cities. Comparison of average prices can therefore be very misleading, particularly as there are very wide variations in the amounts of premium paid for individual blocks.
asked the Minister representing the Minister for Health, upon notice -
In view of the continuing controversy in regard to the advantages and disadvantages of adding fluorine to water supplies as a means of preventing tooth decay, will the Minister arrange for the Commonwealth Scientific and Industrial Research Organization to investigate this proposition and inform the Parliament and State and local government authorities of the result?
– The Minister for Health has now furnished the following reply: -
Inquiry into the advantages and disadvantages of water fluoridation as a means of preventing dental caries is a matter for the National Health and Medical Research Council.
The National Health and Medical Research Council has, on a number of occasions, reported upon and recommended water fluoridation as a public health measure and has set out conditions for its proper administration and supervision.
Motion (by Senator Sir Walter Cooper) agreed to -
That leave be given to introduce a bill for an act to amend the Seamen’s War Pensions and Allowances Act 1940-1959.
Motion (by Senator Gorton) agreed to -
That leave be given to introduce a bill for an act to give effect to the Antarctic Treaty.
Bill presented by Senator Sir Walter Cooper, and read a first time.
Standing Orders suspended.
[1 1 .30].- I move-
That the bill be now read a second time.
The Seamen’s War Pensions and Allowances Act, which it is proposed to amend, first came into operation in 1940 and has since been amended ten times. Since 1952, the act has been amended in each year except 1956, to authorize increases in certain pensions paid to Australian mariners incapacitated by war injury, and to dependants of Australian mariners. These increases had been approved by the Government and provision for them had been made in the respective budgets.
It is the practice to maintain pensions payable under the Seamen’s War Pensions and Allowances Act at the same level as the pensions payable to the corresponding classes of pensioners under the Repatriation Act. The latter act is being amended to implement the Government’s decision to increase pensions of incapacitated exmembers of the forces and war widows, and provision has been made in the bill to grant similar increases under the Seamen’s War Pensions and Allowances Act. A pensioner under that act who is totally and permanently incapacitated or who suffers from a special disability receives a special pension at the same rate as is specified under the Repatriation Act. Widows, and Australian mariners who are totally but not permanently incapacitated, are granted pensions at the rates specified for general pensions in the First Schedule to the Seamen’s War Pensions and Allowances Act, and a partially incapacitated pensioner receives a pension at a rate equivalent to such percentage rate as corresponds to the percentage of his incapacity.
Provision is made in the Repatriation Bill for the amendment of the Second Schedule to the Repatriation Act to increase the special rate by 10s. a week from £12 5s. to £12 15s. a week. In accordance with section 22a of the Seamen’s War Pensions and Allowances Act, this increased rate will be automatically aplied to Australian mariners suffering similar incapacity, and it is therefor unnecessary to include provision for the increase in the bill now under consideration.
Widows of Australian mariners in receipt of pensions at the general pension rate specified in the First Schedule to the act at present receive pensions ranging from £5 5s. to £6 3s. a week. These pensioners will receive an all-round increase of 5s. a week, and the rates will thus be increased to amounts ranging from £5 10s. to £6 8s. per week.
The bill includes provision for the amending act to come into operation on the day on which it receives Royal Assent, and for the increased pensions to become payable on the first pension pay-day thereafter.
The bill will. I feel sure, have the support of honorable senators on both sides of the chamber.
Debate (on motion by Senator O’Byrne) adjourned.
Bill presented by Senator Gorton, and read a first time.
Standing Orders suspended.
– I move -
That the bill be now read a second time.
The purpose of this bill is to make such legislative provisions as are necessary to enable the Government to proceed with the ratification of the Antarctic Treaty. The treaty was signed in Washington on 1st December, 1959, by representatives of the Governments of Argentina, Australia, Belgium, Chile, the French Republic, Japan, New Zealand, Norway, the Union of South Africa, the Union of Soviet Socialist Republics, the United Kingdom and the United States of America.It will enter into force when ratified by all twelve signatories.
This treaty, while in no way diminishing Australia’s rights in the Antarctic, is designed to eliminate or at least postpone international controversy by putting into cold storage the troublesome question of territorial sovereignty. It is also designed to promote co-operation in scientific investigation in this vast area, and to ensure that the Antarctic is reserved solely for peaceful pursuits.
The Antarctic contains 5,500,000 square miles - nearly twice the area of Australia - and the Territory claimed there by Australia is 2,362,575 square miles in area, including some 29,000 square miles of iceshelf.
Australia has a long record of exploration and scientific activity in the Antarctic. Australian sealers and whalers operated there in the nineteenth century. Australia participated in the expeditions of Scott and Shackleton, and in both the Australasian Antarctic Expedition of 1911-14 led by Sir Douglas Mawson and the BritishAustralianNew Zealand Antarctic Research Expedition of 1929-31. Australians, Sir Hubert Wilkins and John Rymil, pioneered
Antarctic aviation. In 1947, the Australian Government formed the Australian National Antarctic Research Expeditions - A.N.A.R.E. - which, between 1947 and 1953, established a base on Heard Island and another on Macquarie Island. In 1954, our third station and first permanent base on the mainland were set up at Mawson. In the following year, Heard Island Station was closed down, but in 1956-57 a second mainland base was opened and named Davis, and an automatic weather station was erected on Lewis Island. Early in 1959, A.N.A.R.E. took over from the United States the administration of Wilkes base on the Budd Coast.
From these bases, scientific research and exploration have been carried out on a considerable scale, and have resulted in the accumulation of a large amount of information on such subjects as meteorology, geomagnetism, ionospheric studies, cosmic radiation and cartography. Australian scientists have made a significant contribution to the programmes of the International Geophysical Year - I.G.Y. - and the subsequent period of co-operation organized by the Special Committee on Antarctic Research.
This is in briefest outline the record of Australian activity in the Australian Antarctic Territory. Other sectors of Antarctica are held by France, New Zealand, Norway and the United Kingdom, while Argentina and Chile also claim sectors. The United States and the Union of Soviet Socialist Republics have made no territorial claims, and recognize none. Both countries claim the right of participation in Antarctic affairs and the right to operate anywhere on the continent.
Because it was realized that there would be an increase in Antarctic activity, and in the hope of eliminating political disputes, a number of proposals were put forward after the Second World War for some form of Antarctic agreement. None of these met Australia’s minimum objectives, which were that no activity should take place in any part of the Antarctic which might threaten our security or prove prejudicial to our interests.
Early in 1957 Australia stimulated consideration of this question by countries interested in Antarctica and in June, 1958, at the invitation of the President of the
United States, the twelve nations participating in the Antarctic programmes of the International Geophysical Year began a series of meetings in Washington with the aim of drafting a treaty upon which to base future Antarctic activities. The negotiations were long and difficult because of the divergent - and often conflicting - views and interests of the countries involved. The fact that agreement was reached is a tribute to the farsightedness of the governments represented there, and is an important, and indeed a unique, step forward in post-war international relations.
The Government welcomes the Antarctic Treaty which, if ratified by all its signatories, will satisfactorily meet Australian requirements by protecting our position in Antarctica and, at the same time, by providing an atmosphere - and a legal framework - in which scientific exploration and research may continue, unhindered by controversy over territorial sovereignty. The bill itself is very short. It consists virtually of one operative clause. The purpose of this clause is to enable Australia, when the treaty comes into force, to give effect to Article VIII. of the treaty, which relates to the exercise of jurisdiction over persons in Antarctica. I shall come back to the terms of the bill in a moment. But first let me make a few comments of a general nature as to the circumstances in which this treaty came to be proposed and the effect it will have.
The twelve governments negotiating the treaty were confronted with a complex international legal situation. Seven out of the twelve had asserted rights to territorial sovereignty over various areas of Antarctica; some of these claims overlapped and were in conflict with each other, namely, those of the United Kingdom, Argentina and Chile; while the remaining five Governments had made no territorial claims, and, what is more, recognized none. Obviously, there was scant chance of any antarctic treaty being concluded unless a “ without prejudice “ - and I use this expression in the lawyer’s sense - formula could be found that would take account of the position, on this question of territorial sovereignty, of each of the twelve countries concerned. The solution to the problem is to be found in Article IV. of the treaty, which I shall explain in a moment. The Government is satisfied that this article properly preserves, for the full period of the treaty, Australian sovereignty over the sectors of Antarctica known as the Australian Antarctic Territory.
If honorable senators will look at paragraph 1 of Article IV. they will see that nothing in the treaty is to be interpreted as a renunciation of our asserted rights or claims to sovereignty. Thus there is no detraction from Australian sovereignty as a result of Australia’s becoming a party to the treaty. Moreover, paragraph 2 of the same article provides that no other party to the treaty can use its activity in the Australian Antarctic Territory for the purpose of building up a claim of its own, or - and this is equally important - for the purpose of denying Australia’s claim.
There is necessarily a quid pro quo. For its part, Australia will not be able to say, for example, that the United States, by entering into the treaty, is to be treated as having recognized Australian sovereignty over the Australian Antarctic Territory. Nor will Australia be able, as against any other treaty party, to rely on its activity during the period of the treaty for the purpose of supporting or enhancing Australia’s own position. In short, what Article IV. means is that, as between parties to the treaty, the status quo as to territorial sovereignty will be entirely preserved for 34 years at least, for that period, under Article XII., is the minimum period that the treaty will remain in force. If, after that period, the treaty should for some reason or other be terminated, Australia’s position will not, in relation to another party to the treaty, be any stronger than it is now; but neither will it be any less strong.
Mr. Deputy President, with that description of the manner in which the treaty deals with the problem of territorial sovereignty, I come back to the provisions of the present bill. Australia has, as the sovereign of the Territory, applied to the Australian Antarctic Territory a complete code of law. Apart from the treaty, that law is, in our view, applicable to all persons in the Territory, and a breach of the criminal law, for example, would be punishable in an Australian court. Similarly, breaches of the law in the Ross Dependency would be breaches of New Zealand law and would1 be punishable in the New
Zealand courts, and so on. But, having regard to the conflicting views existing among the twelve governments on the question of sovereignty, the only practicable course to adopt in the treaty was to give to each government authority, in the entire treaty area, over certain categories of its own nationals. These are properly designated observers, exchanged scientists and their accompanying staffs - personnel, that is, who would be most likely to come into contact with nationals of other countries and to work in sectors of the Territory claimed by other countries. With the safeguards contained in Article IV., about which I have just been speaking, this is a perfectly acceptable proposition for Australia, as it is indeed for the United Kingdom, New Zealand, and others who make territorial claims similar to our own.
To give effect to Article VIII., some legislative adjustments are needed. First, and this is provided for by sub-clause (1.) of clause 4, the way must be opened for another contracting party to exercise jurisdiction, in the Australian Antarctic Territory, over the particular personnel - observers, and so on - in question. Secondly, it is necessary for Australia to be in a position to exercise jurisdiction over its own observers, &c, in respect of acts committed in Antarctica, elsewhere than in the Australian Antarctic Territory; for example, in the Ross Dependency. This is achieved by sub-clause (2.). Honorable senators will note that the zone of application is as broad as possible. The whole area south of 60° S. latitude is covered by the agreement, except that nothing in the treaty is to affect the rights of States under international law with regard to the high seas in this area.
Honorable senators will also note that the signatories are the twelve nations that have taken part in Antarctic research during and since the International Geophysical Year. But accession to the treaty would be welcomed of additional countries which are members of the United Nations or which, by unanimous consent of the original signatories and other parties that conduct substantial scientific research in Antarctica, are invited to accede. Article IX. provides, however, that participation in regular consultative meetings will be confined to such acceding parties as demonstrate their interest in Antarctica by conducting sub stantial scientific research activities there. Even those countries which do not accede to the treaty will still benefit greatly from the establishment of an area of permanent peace and scientific co-operation and the exchange of information among the signatories.
The new scientific knowledge obtained from Antarctica will itself prove of great value to Australia. In addition to the accumulation of new fundamental knowledge, there will be many benefits arising from the application of scientific discoveries made by Australia and other countries. Work in a number of disciplines is being carried out by the signatories of the treaty, and the results of all this will be available as a result of the exchange of scientific information for which the treaty provides. Subjects now covered include meteorology, cartography, the determination of icethickness, geology, seismology, auroral observation cosmic ray studies, biology, upper atmosphere physics, geomagnetism, radiophysics and glaciology. Scientific cooperation in these fields already exists but, if the treaty achieves its objectives, still greater benefits may be expected for Australia in many ways, for example -
Australia also has a special interest in the non-militarization clauses of the treaty and those relating to prohibition of nuclear explosions, because of the technical possibility of attack from military bases in Antarctica on Australia.
Honorable senators will find the text of the Antarctic Treaty attached as a schedule to the bill. They will note that Article I. asserts that Antarctica shall be used for peaceful purposes only and that measures of a military nature shall be prohibited. Article V. bans nuclear explosions and the disposal of radio-active waste in the Antarctic. The significance of this clause has been underlined recently by the announcement that the United States Government has ordered a power reactor for one of its Antarctic stations. The United States Government has made it clear that radio-active waste from this reactor will be dealt with in accordance with the treaty. In order to promote the objectives of Articles I. and V. and to ensure that they are observed, signatories to the treaty and subsequent adherents who are engaged in substantial activity in the Antarctic have the right to designate observers to carry out isnpection of all areas in Antarctica, including stations, installations and equipment, and of all ships and aircraft at points of discharging or embarking cargoes or personnel. Aerial observation may be carried out at any time. Moreover, the contracting parties have agreed to give advance information to one another about their expeditions and stations and details of military personnel and equipment introduced into the Antarctic.
Article III. states that international cooperation in scientific investigation is to be promoted by the exchange of information about plans for scientific programmes, observations and results. Scientific personnel are to be exchanged between expeditions and stations. In giving effect to this article, every encouragement is to be given to the establishment of co-operative working arrangements with those United Nations specialized agencies and other international organizations having a scientific or technical interest in Antarctica.
Article VIII. concerning jurisdiction is designed to facilitate the exercise of their functions by observers designated in Article VII. and by scientific personnel exchanged under Article HI. If any dispute should occur over the exercise of jurisdiction, the parties will consult together with a view to reaching a mutually acceptable solution. Article XI. also provides that if any dispute arises over the interpretation or application of the treaty, it will be resolved by negotiation, mediation or other peaceful means; failing which the dispute will be referred - with the consent, in each case, of all parties to the dispute - to the International Court of Justice for settlement. It was not possible to obtain agreement to the compulsory reference of disputes to the International Court.
Article IX. states that representatives of the parties are to meet in Canberra within two months of the treaty’s coming into force, and thereafter at suitable intervals and places, to exchange information, consult in matters of common interest regarding Antarctica, and to formulate, consider and recommend to their governments measures in furtherance of the principles of the treaty. The Australian Government welcomes the honour of acting as host to this first consultative meeting, a choice which reflects the importance of our Antarctic activity and the role of Australian diplomacy in negotiations leading up to the treaty.
Article XIII. defines the qualifications of acceding States as being membership of the United Nations or unanimous invitation by the original signatories and such subsequent adherents as are conducting substantial scientific research in the Antarctic. Such subsequent adherents, however, will not be permitted to participate in regular consultative meetings, or to send observers and exchange scientific personnel unless they are conducting such substantial scientific research. This is reasonable, since a country which does not maintain an active interest in the area is obviously not qualified to participate in these matters. Similarly, the treaty may be amended by the unanimous consent of all original signatories together with those acceding countries which conduct substantial scientific research in Antarctica - Article XII. 2 (b)- but “inactive” adherents to the treaty may withdraw from membership after two years if such modifications are unacceptable to them. The treaty will have a minimum life of 34 years.
It is significant to record, in this context, the attitude adopted by the U.S.S.R. The fact that the U.S.S.R. has signed this treaty may perhaps provide some encouragement, for the treaty will be unique. It will, when ratified by the U.S.S.R. and other remaining signatories be the only agreement between the Soviet Union and the Western Powers providing for a ban on military activity and appropriate inspection arrangements to see that the ban is carried out, in an area in which both sides are interested.
The treaty has already been ratified by Belgium, Japan, Norway, South Africa, the United Kingdom and the United States of America. Our latest information is that it now remains to be ratified only by Argentina, Australia, Chile, France, New Zealand and the Soviet Union. Passage of the bill now before the Senate will enable the Australian Government to ratify the treaty in the certainty of being able to carry out its obligations. The treaty will, of course, not come into force until the remaining governments ratify. In the light of the co-operative attitude of the U.S.S.R. during the negotiations, there is every reason to hope that it will ratify the treaty.
The treaty will not settle all the problems relating to Antarctica, nor does it attempt to do so. Bu it represents a significant advance in bringing international order to an area where none existed, in preserving the spirit of co-operation which marked the International Geophysical Year, in introducing at least a small breakthrough in disarmament relationships and in offering some prospect of useful experience in the detailed processes of international inspection.
In summary, the treaty will -
Finally, any reference to the Antarctic would be incomplete without a tribute to the tireless efforts of our former colleague and Minister for External Affairs, Lord Casey. His enthusiasm was one of the driving forces leading up to the Washington conference, and the agreement which was reached, in many cases as a compromise between conflicting positions, was very much a direct result of Lord Casey’s personal diplomacy.
I recommend the bill to honorable senators.
Debate (on motion by Senator McKenna) adjourned.
Motion (by Senator Spooner) agreed to -
That the Senate, at its rising, adjourn till Tuesday, 20th September, at 3 p.m.
– I move -
After clause 3, insert the following new clause: - “ 3a. Section thirty-seven of the principal act is amended -
by inserting in sub-section (1.) after the words ‘ pulmonary tuberculosis ‘, the words ‘ or cancer ‘; and
by omitting from paragraph (b) of subsection (3.) the words ‘pulmonary tuberculosis ‘ and inserting in their stead the words ‘ pulmonary tuberculosis or cancer’.”.
Over the years all State branches and the national congress of the Returned Servicemen’s League have passed resolutions requesting the Minister for Repatriation (Senator Sir Walter Cooper) to make this amendment of the act, and each time the Minister has replied that he does not intend to do so, notwithstanding that a precedent for the amendment was established when pulmonary tuberculosis was accepted as a war-caused disability.
The fields of research into cancer and tuberculosis have been wide and diverse, Over the past ten years or so there have been dramatic developments in the understanding of the cause and the treatment of tuberculosis. The States have established mobile clinics, and most of them insist on annual X-ray examinations. As a result, the incidence of tuberculosis has decreased and the disease is now well under control. Only the knowledge of the disease acquired through the activities of research workers and scientists has enabled the problem to be tackled in such a workmanlike way.
After the First World War, tuberculosis was a mystery. There were various names for it. When a miner had particles of granite dust in his lungs, he was said to have a miner’s disease. Whether tuberculosis was an inherited or a contagious disease was not known. With the growth of knowledge, scientists and medical men have been able to perfect a technique for treatment that has transferred tuberculosis from the top of the list of killing diseases to a very minor position. I am very pleased to be able to say that our tuberculosis hospitals in Tasmania have many vacant beds and are able to accept Victorian patients for treatment. 1 submit that exactly the same case can be made out in regard to cancer as has been made out in relation to tuberculosis. We hear at times that cancer is hereditary and at other times that a bad bump or a similar accident may create a situation in which cancer can develop. Exposure to the hot sun of Queensland can cause skin cancer. It is more or less generally agreed by members of the medical profession that long exposure to the sun can cause skin cancer. We are now considering the plight of ex-servicemen who served during World War I. in trenches in areas where gases were present. The severe bouts of coughing they had could have caused contusion of or damage to the lungs with the result that tuberculosis or cancer could develop. We think also of conditions in the desert, where men were exposed to the blazing sun. I am quite certain that Senator Dittmer knows of the prevalence of skin cancer amongst people living in the far west of Queensland who are subject to the direct rays of the sun. Those who served in the desert during the last war must have been exposed to similar conditions. We know also about the incidence of malaria and dysentery in the islands during World War II.
People outside their natural environment are exposed to circumstances that can and do - I am sure no one will contradict me when I say that - create conditions in which cancer can develop in either the short term or the long term, lt is interesting to note that, despite constant approaches by the various ex-servicemen’s organizations over the years, the Repatriation Department does not seem to have equipped itself with the necessary statistics and comparative records to show whether there are any definite trends in the incidence of cancer amongst people who served in one theatre of war as against those who served in another, or whether there were any set wartime conditions that were conducive to the development of cancer. We on this side of the chamber, together with a vast number of o’.her people who are interested in ex-servicemen’s problems, believe that, if it is logical to accept tuberculosis as being a war-caused disability, it is just as logical to accept cancer.
– It would be just as logical to accept heart disease as being a war-caused disability.
– Under certain circumstances. I am quite certain the honorable senator has taken up cases of heart disease on behalf of some of her constituents. I believe that, if during the war a man suffered from dengue or malaria or some other complaint which may have affected his heart, his condition would be accepted by the Repatriation Commission as being a war-caused disability. All these matters are considered by the commission on their merits, and quite rightly so. It has been suggested that rare diseases like thalassaemia, to which reference was made yesterday, have spread from the Mediterranean area. Our scientists and research men are very much in the dark about the cause of these diseases. The same may be said about leukaemia. I have had personal friends who were strong and healthy but who were suddenly attacked by the dread disease leukaemia. With that disease, the red blood corpuscles are attacked, the person’s health declines, and he dies within a very short space of time. In fact, we have heard just recently that one of our highly esteemed sportsmen, who performed terrific athletic feats, faded out in the very flower of his manhood as a result of contracting leukaemia.
We are literally in the dark about the cause of cancer and the environment in which it can be contracted. We have a definite responsibility towards those who have genuinely contracted the disease as a result of war service. During the debate yesterday at the second-reading stage Senator Mattner reminded me that he had been successful in obtaining a war pension for one of his constituents who suffered from cancer. 1 believe Senator Mattner felt that that was a great achievement. It was a great achievement. The fact that the Repatriation Commission accepted cancer in that case as being a war-caused disability, even though the origin of the disease is obscure, supports my claim that provision should be made in the act to have cancer regarded as being a war-caused disability, as is the case with pulmonary tuberculosis.
I hope the Minister for Repatriation will take note of the views that have been put forward. The long struggle that was waged with various Ministers for Repatriation to have pulmonary tuberculosis regarded as being a war-caused disability was eventually successful. To-day tuberculosis is accepted as a war-caused disability as a matter of course. The present Minister would go down in history as having taken a wise, sympathetic and very humane view if he took steps to have cancer, which is of indefinable origin but which is affecting so many ex-servicemen years after their discharge from the services, recognized as being a war-caused disability.
[12.19]. - Senator O’Byrne is quite correct in saying that on various occasions cancer has been accepted as being due entirely to war service. The Repatriation Department has conducted a great deal of research into this disease. Research has shown that there are many different forms of cancer. When a person contracts tuberculosis, he has tuberculosis and that is the end of it. But 1 repeat that there are many different forms of cancer. For example, skin cancer, which is caused by the sun’s rays, is quite different from the malignant forms of cancer that may occur in various parts of the body.
I should like to give the Senate the benefit of hearing the conclusions which my department has reached after years of research. First, 1 shall state the general basis on which this question in regard to the tribunals, the commission and the board is raised. In relation to section 47, the provision which states that the claimant shall be given the benefit of the doubt, usually a person who raises the question of the entitlement to pension of an ex-serviceman suffering from cancer, first says that the causes of cancer are unknown, or at least uncertain. That is quite true. Secondly, he says that, as this is so, the determining authority must be left in some doubt. That is also true. Thirdly, he says that because of the unknown or uncertain factors it is impossible for the commission to produce evidence which can dispel the doubt in the mind of the determining authority, and accordingly it is impossible for the commission to discharge the onus of proof placed upon it of disproving the claimant’s or appellant’s case. That is quite true.
As a result of research, I make the following comments in regard to the questions which have been raised. While generally it may be said that the cause of cancer is not known, a good deal is known both as to the cause of some cancers and as to factors which have no apparent effect in relation to either the cause or the development of a cancer. In a particular case it is often fair to say beyond reasonable doubt that the cancer arose from causes associated with post-war conditions, or was not aggravated or contributed to by the conditions of war service. A good deal is also known about the development of certain types of cancer - sufficient to be able to say beyond reasonable doubt that a particular cancer could not have had its origin during the period of war service.
The argument for the automatic acceptance of cancer is not supported by any statistical evidence that the incidence of cancer in the ex-service population is any higher than in similar age groups in the community generally. Amongst exservicemen themselves there is no evidence available that service of a particular kind, or in a particular area, has resulted in a higher incidence of cancer in one group of exservicemen than in another. Tn those types of cancer in respect of which a good deal is known of their source and development, there is no evidence that the life history of the cancer is any different among exservicemen from what it is among civilians. The amendment proposed by Senator O’Byrne would cover all ex-servicemen, many of whom during their period of service lived at home or at base camps under conditions which were little or no different from those of civilians and were often more conducive to general good health. lt is possible, therefore, for a determining authority in a particular case to say beyond reasonable doubt whether a particular cancer can have any relation to the ex-serviceman’s war service where the medical and other evidence before it covers the following points: First, known factors which could have caused it; secondly, when the cancer first caused disablement; and thirdly, how long it might have been present before causing disablement. In any case in which the determining authority is left in any doubt, the claim or appeal must be, and in fact is, resolved in favour of the ex-serviceman or his dependants. In fact, many claims are allowed solely because the onus cast on the commission to resist the claim has not been discharged, or because there is some possibility that a wound or a war injury has been a contributing factor to the subsequent development of a cancer.
I shall now deal with the statistics. Figures taken out for this disease up to 30th June, 1958, which are the latest figures I have, show that of 2,705 applications by living members of the Forces, 1,307 have been accepted, so there is roughly a 50 per cent, acceptance. Secondly, of 1,326 applications for acceptance of death as due to cancer caused by war service, 886 have been accepted. A considerable amount of research is being carried out throughout the world into the causes and treatment of cancer and it is not beyond the bounds of possibility that effective methods of treatment will be discovered.
Coming now to the question of tuberculosis, it is relevant to note that the provisions of section 37 which, in the case of those who have served in a theatre of war, provide for the automatic acceptance of tuberculosis and the payment of pension at the minimum rate of 100 per cent, of the general rate, have resulted in payment of life pensions to many former sufferers from tuberculosis who, with the advance of modern medical science, have been successfully treated and no longer have any incapacity. In the meantime, it is not unreasonable for the determining authorities to do what they now do; namely, determine each case on its merits in accordance with the provisions of the act, including section 47. The statistics show that a substantial number of cases has been and is still being accepted.
That is the position as I and my department see it. The research work is being continued. It has shown that there is no difference in this respect between civilians who have not seen war service and those who have seen war service. The factors connected with cancer are far more varied than those connected with tuberculosis. There are many types of cancer. I should also like to point out that I have read in the newspapers that at a medical conference held in Melbourne on the subject of cancer, one of the distinguished delegates from India said that far more was known about cancer than about many other diseases, such as blood pressure and heart trouble. I am not a medical man, and I must be guided by the advice I receive from my department. It is not the policy of the Government automatically to accept cancer as being due to war service. Therefore, I am unable to accept the amendment.
Senator CAMERON (Victoria) [12.301. - I desire to bring a case before the notice of the committee in order to indicate the extent to which some applicants are denied the treatment and consideration by the tribunal to which, in my opinion, they are entitled. The case is well known to the Minister. The name of the applicant was Mr. C. A. Whiston, of 24 Combarton-street Box Hill, Victoria. According to his own account, he was the sole survivor of a platoon that was attacked for up to 48 hours with mustard gas at Villers Brettoneaux, when 700,000 gas shells were sent over, causing very heavy casualties. He was X-rayed in 1923 by the repatriation authorities, who said that his pulmonary fibrosis was not due to war service. According to this man’s own account, he has appeared before ten hostile entitlement appeal tribunals. On one occasion he was ordered out of the room. When he asked for an apology, he was told that he was probably cured by then. But there has been no cure. This man appealed to the press to invite his mates who saw his condition after the mustard gas attack in 1918 to write to him in order to assist him to prove his bona fides to the Repatriation Commission. Needless to say, they were all in receipt of pensions for disability caused by the effects of the gas.
Mr. Whiston has now contracted angina pectoris and he suffers daily. He has had two bad heart attacks and dreads the next. He is not after big money; he is only asking for the T.P.I, pension. This is the reply he received from Mr. T. M. Stephens, the Deputy Commissioner of Repatriation -
Dear Sir - I refer to your recent letter in which you are dissatisfied with the decision of the War Pensions Entitlement Appeal Tribunal. Your first claim, in respect of a heart condition, was lodged at this office on 3rd May.
– Order! The honorable senator may speak only to the amendment, which has no relation to heart conditions. It deals specifically with the question of cancer. There will be other opportunities for the honorable senator to speak about heart conditions. It is not permissible for him to do so at present.
– Mr. Temporary Chairman, 1 point out that Senator O’Byrne referred to a heart case when he was dealing with Senator Wedgwood’s remarks.
Order! The amendment that has been moved by Senator O’Byrne deals only with the question of cancer. If the honorable senator were permitted to speak about heart conditions now, it would be competent for any member of the committee to speak about any medical condition. The honorable senator’s remarks are out of order. 1 am afraid I cannot allow him to continue.
– I will put it this way, Mr. Temporary Chairman: In my opinion, the treatment that is meted out by the tribunals is quite unsatisfactory.
Order! The honorable senator may not continue on that line. He will have an opportunity to deal with that subject on another occasion.
! - The Minister for Repatriation (Senator Sir Walter Cooper) was good enough to inform the committee of some of the research that has been done by the department in connexion with cancer. I was very interested to learn of that work, and I am very glad that that contribution to a solution of the problem caused by this mysterious disease is on record. However, I could not help noticing that in each of the conclusions in the departmental submission there was an element of doubt; the subject was allowed to remain in a state of uncertainty.
Men who joined the services went through a medical test and were classified according to their degree of physical fitness. Within a short period of time, magnificent specimens of men, who had been classified A.l, contracted diseases which necessitated extensive treatment and, in some instances, their discharge. I concede that their disabilities might not have been caused solely by war service. Some of them might have had a pre-disposition to the diseases before they entered the service, but the conditions of their war service could have contributed to the onset of the diseases.
I am putting forward the same proposition in relation to cancer, the origin of which is unknown. A pre-disposition to cancer could be hereditary. Because of the environment associated with active service on the battlefield, the seeds of cancer could be sown in the body of a person predisposed to cancer, and later he could contact the disease. There is no proof that this has not occurred. I could use the department’s decision in relation to this particular matter when speaking in support of the next amendment I shall move. The department has taken a stand on this matter despite the fact that very little is known about cancer. It puts the onus on to this side of the chamber to prove that cancer can be a war-caused disability. Although we are grateful for the information the Minister has given us, I still feel - I have been reminded of this aspect by Senator Dittmer - that the uncertainty that permeates the whole of the departmental statement confirms the opinion held by honorable senators on this side that cancer should be specifically included in the act, along with pulmonary tuberculosis, as a disability that may be attributable to war service. We are not prepared to accept the explanation that the Minister has given.
I hope that time will prove that our argument is correct. I feel sure that, although the appeals of hundreds of people have been refused by the tribunals, eventually proof will be forthcoming that their disabilities were war caused.
I should again like to remind the committee that this matter calls for the same amount of sympathy as other aspects of repatriation. Of course, the provision of hospital treatment to sufferers from cancer would cost a lot of money. I think this has been a very strong factor in the Government’s refusal to include a provision in relation to cancer in the act. On the other hand, we have always been able to face our problems in the past. We have always seemed to get by, and I say that the proposition that I have advanced should bc accepted.
– I am amazed that cancer is not accepted by the Repatriation Department as a condition attributable to war service The only reason I have risen is that I am interested in a cancer case. I do not think the department receives many letters from me, because I pass repatriation inquiries over to a colleague who has made a study of the subject. In the case in which I am interested, I know that the statements that were made by the person concerned were true, because he was very close to me. He served in France in the First World War and was gassed. He later developed cancer. Not only did I write to the Repatriation Department, but I also went down to see what could be done. I must say that J was received very courteously. I have no complaints on that score, but nevertheless, that did not compensate the individual for whom I was attempting to do something.
I have had associations with tha Prince Henry Hospital in Melbourne, in which I have taken a keen interest, and I put the case to one of the men in charge of the hospital when, it was found that the person of whom I am speaking had developed cancer. The hospital authority said to me, “ You had better go over to the Repatriation and have a go.” He added, “ The man is a returned serviceman.” I said: “ Yes, I will do that. What chance have I got? “ He said, “It will be all right.” I thought to myself, “ If he thinks it is all right, I will write a letter, and over I will go.” The man who gave me that advice happened to have been a colonel in the First World War, and he told me that he knew of a case similar to the one we were discussing. That being so, I was amazed that the person on whose behalf I was taking the matter up, could not receive any help at all and was not even able to gain admission to a repatriation hospital. I admit that, at the time, there was no provision, for ex-servicemen of the 1914-18 war to be admitted to such hospitals unless they came within the provisions of the act.
I proceeded to make inquiries about the case and discussed it with some of my colleagues who have more to do with the Repatriation Department than I have. Having heard something about the onus of proof provisions, I wanted to know how far they went. I was told by a responsible person that an ex-serviceman who had been gassed in World War I., and who later developed cancer, applied to the Repatriation Department for assistance and was treated as I had hoped the person in whom I was interested would be treated. The person who told me about that case had been known to me for a long period of years. I knew his standing in the community and was certain that he would not advise me wrongly. There was no need for him to do so. Nevertheless, the person in whom I was interested got nothing from the department. He has since died.
We all know that people who have not been in war areas where gas was used also develop cancer, but the fact remains that I received medical advice to the effect that gas could be a major contributory cause of the disease. I have no individual cases to present other than the one I have mentioned, but I know that in that case the intention of the act was not observed. We hear of other cases which have been rejected, but to be candid, I am not well versed in this subject. I believe that others who deal with such cases more frequently are able to give details. I see no reason why men of the First World War, who were in areas in which poison gas was used and who later developed cancer, should not receive their just due under the Repatriation Act. I have heard a lot, during the debate on this bill, of the vexed question of the onus of proof. Every year, we hear the same thing. If the wording of the act means that the returned serviceman is entitled to the benefit of the doubt, he should be given it. In the case that I have mentioned, for the life of me I could not see that there was room for doubt. I have no quarrel with the department. Who could ever have a quarrel with the Minister for Repatriation (Senator Sir Walter Cooper)? He is always kind and courteous and prepared to do what he can. To be honest, during the seven years that I have been in this Parliament I do not think I have dealt personally with more than three repatriation cases. One of my Victorian colleagues is very interested in this matter, and when I hear of a case that calls for attention I say to him: “ Here you are. You had better get to work on this one and let me have an answer.” I took up the case that I have mentioned because I was personally associated with the man concerned.
Sitting suspended from 12.45 to 2.15 p.m.
– The matter under discussion is whether cancer should be placed in the same category as tuberculosis for acceptance as a war-caused disability. I was most interested in what Senator Mattner said about this subject yesterday. He stated that he was delighted that after a long struggle he had induced the Repatriation Commission to accept a case of cancer as being attributable to war service. Referring to a statement by Senator O’Byrne, Senator Mattner said -
I am pleased to tell him that, in some instances, it has been accepted. I hope that the honorable senator will not think that my remarks are personally directed to him. This is one of the things that I have fought through the Repatriation Commission, and the fact that cancer has been accepted as war-caused will be a great boon to the sufferers from this disease. 1 am afraid that parliamentary procedure here, as elsewhere, has reached the stage where the Government submits a bill to the chamber and the Minister in charge of it feels that it is his duty to see that the bill is passed in its original form. I do not think that is good enough. This fault is not peculiar to the present administration, but nevertheless the practice is not a good thing for parliamentary procedure. As I have said previously, one could not find a nicer person to deal with than the Minister for Repatriation, and I hope that in this instance he will see fit to accept this amend ment. The fact is that people outside the Parliament feel that if a person served in a war zone in the First World War where gas was used, and he is now suffering from cancer - particularly lung cancer - the probability is that cancer was due to his war service.
It is difficult to prove these things. The great majority of men who served in the First World War wanted to get out of the forces as soon as the war was over. For three or four years they had been in uniform and they wanted to get back to civilian life. Many of them did not think of the future. I do not think any one can argue against that point. At present an ex-serviceman can obtain the benefits of the Repatriation Act if he suffers from tuberculosis, and the Opposition submits that cancer should be placed in the same category. The department must have records which show the zones where gas was used. It certainly should have records to show the battalions or brigades that fought in those areas. Rather than adopt the attitude that this bill has been submitted to the Parliament and that the Opposition must accept it or vote against it, the Government should consider the suggestions we make. Tt has never been the intention of the Opposition to vote against provisions in a repatriation bill. It has always been our desire to see the act improved.
I do not know how many claims for pensions would be made if cancer was accepted as a war-caused disability. It appears that Senator Mattner was able to get a cancer case accepted as such, but others - to use a colloquial phrase - have been knocked back. We have to bear in mind, too, that the onus of proof is always on the department and not on the ex-serviceman. The department has to prove that the person who submits a claim is not entitled to the benefits of the act. The amendment applies only to those who fought in World War I. I have no recollection of gas having been used in World War II.
– It was not.
– The men who served in World War I. are getting older all the time. They are now in their sixties. T cannot understand why the Government is prepared to grant the benefits in one case and not in another. I do not think the
Government is doing a service to the parliamentary institution when it says, in effect, “ Opposition members can talk and waste a bit of time, but the bill will still go through without amendment “.
– Does your argument apply to cancer and tuberculosis?
– Senator O’Byrne has moved an amendment which, if accepted, will mean that cancer will be classed as one of the diseases which may be considered attributable to war service. I understand that at present if an exserviceman is suffering from tuberculosis, his claim will be accepted. I think by not including cancer in this category of warcaused disabilities we are doing exservicemen a disservice.
I repeat that I think the Minister is wrong in adopting the attitude that this bill must be passed in the way it was submitted to the Parliament. I admit that the Minister is responsible to Cabinet, but an anomaly exists when some cases are accepted and others are rejected. The department does not have an easy job in deciding eligibility for pension cases. I can well imagine the feelings of people who are trying to get something to which they consider they are entitled but which the repatriation authorities believe they are not entitled. However, I am certain that every honorable senator would really be pleased if this amendment were accepted. I would be delighted if the Minister would accept the amendment subject to some qualification, such as the necessity to prove that a claimant was in an area where gas was used. The department would have records which would indicate those areas.
When all is said and done I do not think that the number of claims would be exceedingly large. Even if they were, this is a matter of principle and I do not think the Minister should be adamant and refuse to accept the amendment. He should deal with it in the way he deals with the majority of cases that come within his personal purview. If he were to do so, and if the amendment were accepted, a number of people would receive a benefit to which they are entitled.
Question put -
That the words proposed to be inserted (Senator O’Byrne’s amendment) be inserted.
The committee divided. (The Temporary Chairman - Senator K. M. Anderson.)
Majority . . . . 6
Question so resolved in the negative.
– On behalf of the Opposition, I move -
After clause 3, insert the following new clause: - “ 3a. After section forty-seven of the Principal Act the following section is inserted: - 47a. - (1.) Where a claimant, applicant or appellant under this Act considers -
that, in hearing, determining or deciding his claim, application or appeal, the Commission, a Board, an Appeal Tribunal or an Assessment Appeal Tribunal did not give to him the benefit of any doubt in respect of a matter or question referred to, in paragraph (a) or (b) of sub-section (1.) of the last preceding section; or
a person or authority who contended that his claim, application or appeal should not be granted or allowed to the full extent claimed did not discharge the onus of proof placed on that person or authority by sub-section (2.) of that section, the claimant, applicant or appellant may appeal to the High Court, or to the Supreme Court of the State or Territory of the Commonwealth in which he resides, against the determination, or decision of the Commission, Board, Appeal Tribunal or Assessment Appeal Tribunal, as the case may be, on the ground that he was not so given the benefit of a doubt or that the person or authority did not so discharge the onus of proof. (2.) Jurisdiction is conferred on the High Court, the several Supreme Courts of the States are invested with federal jurisdiction, and jurisdiction is conferred on the several Supreme Courts of the Territories of the Commonwealth, to hear and determine an appeal under this section. (3.) The jurisdiction conferred on, or invested in, the High Court or a Supreme Court by this section shall be exercised by a single Justice or Judge, as the case may be, of the Court. (4.) The Court hearing an appeal under this section may make such order with respect to the appeal as it thinks fit and that order shall bc final and conclusive. (5.) An order as to the costs of an appeal under this section shall not be made. (6.) The regulations may make provision for the furnishing to a Court to which an appeal is made under this section of any records in the possession of the Commission which relate to the appellant.’.”.
On 24th September, 1959, in a debate on a repatriation bill, the former honorable member for Balaclava, Mr. Joske, who is now, Mr. Justice Joske, said -
I have received many requests by various exservicemen in several States to examine their repatriation hies. I have spent many hours going through those files with a view to seeing whether there is any chance of their cases being re-opened on the ground that a mistake has been made by the tribunal, particularly in connexion with the application of the onus-of-proof provision. .[ regret to say that on occasions I have found that such mistakes have been made, and I am happy to say that on quite a number of those occasions I have been able to get the mistakes rectified. In the main, I find that the tribunals have very conscientiously carried out the obligations imposed on them and have, in fact, applied the onusofproof provision correctly.
That statement is recorded on page 1420 of the “ Hansard “ report of the debates during the second period of the first session of this Parliament. It goes to the very nub of the matter of an appeal beyond the body which is at present the final tribunal. We have seen that tribunals and the commission lake stands according to precedent and according to their own views. It is very difficult to diagnose borderline conditions such as neurosis. Separation from his wife or knowledge that his children were having very little parental control during the war could upset a man’s mental balance, and such a condition could rightly be regarded as being war caused.
Reference has already been made to cancer and its causes. One person is able to establish that it is a war-caused disability but another is not. Many hundreds of tuberculosis sufferers were in a similar position prior to 1952, but eventually, if they lived long enough, their condition was accepted as being war caused. I could go through the whole range of diseases and complaints in relation to which it is very difficult to say whether or not they were war caused. The spirit of the legislation when it was originally conceived was that the onus of proof should rest with the commission or with the appeal tribunal. However, members of the Repatriation Commission, like all other human beings, are liable to error, and the amendment I have submitted is designed to determine whether the onus of proof has been properly discharged.
We do not want a judge to say whether the medical opinion in question was right or whether the case put forward by one side or the other was right. We simply want him to determine whether the onus of proof provision has been complied with. We believe the amendment will remedy the situation referred to by Mr. Joske, as he then was, who said that he had been through a number of files and that in some cases he had found that mistakes had been made.
– You do not want the court of appeal to decide the case on the facts?
– You want it to decide whether the onus of proof provision has been correctly applied?
– Exactly. He would make it his business to ascertain the spirit of the act and what the Parliament and the people of Australia wanted, and to satisfy himself that the spirit of the act had been observed by the commission, lt is quite likely that in every case of appeal the justice would uphold the commission’s decision. I have quoted a passage from “ Hansard “ to show that a man who, if this amendment were accepted, could quite easily be called upon to give a decision on the onus of proof provision, found, when he was a practising lawyer and a member of the Parliament, cases where the appeal tribunals were in error. It is on those premises that I submit the amendment to the committee. I hope it will be considered sympathetically.
– As I did not speak at the second-reading stage, I should like to say now how much I admire the work of the Minister for Repatriation (Senator Sir Walter Cooper) over the last eleven years. lt seems to me that the following is the main passage of the amendment that has been submitted by the Opposition: -
The amendment goes on to suggest that in those circumstances the matter should be taken on appeal to a higher court. It seems to me that a higher court could hardly say whether an appellant had been given the benefit of the doubt by an entitlement appeal tribunal. Surely the members of the entitlement appeal tribunal would be the only persons who could say whether they had given the appellant the benefit of the doubt. The matter would be quite outside the knowledge of the appeal judge. I repeat that the only people who would know whether the onus of proof had been discharged correctly would be the members of the entitlement appeal tribunal, and they would already have given their decision. I do not think the amendment would work satisfactorily.
My quarrel, if I have any, is about the length of time taken to decide these matters. The delay in the determination of cases causes great hardship to people who are waiting for a decision. I address myself to the Minister for Repatriation when I say that these matters should be dealt with in the shortest possible time. I have in mind a case that is well known to the Minister. An officer who served with me during the war has been trying for five or six months to get some satisfaction from the department. In the meantime hospital, doctors’ and chemists’ bills have been coming in and the family is in a parlous condition financially. I repeat that that is my only quarrel with the administration of the Repatriation Act. I disagree with the suggestion that the Opposition’s amendment would do some good.
.- I believe that the amendment would do a lot of good, particularly in the more deserving cases. When the previous amendment was being discussed, I referred to the case of a Mr. C. H. Whiston. I have before me a letter dated 4th March, 1960, which he received from the Deputy Commissioner in Victoria, Mr. T. M. Stephens. It reads -
I refer to your recent letters, in which you are dissatisfied with the decision of a War Pensions Entitlement Appeal Tribunal.
Your claim in respect of heart condition was lodged at this office on 3rd May, 1957, and following investigation, your disability was diagnosed as Coronary Sclerosis and rejected by a Repatriation Board as not attributable to war service. Your subsequent appeals to the Repatriation Commission and a War Pensions Entitlement Appeal Tribunal were disallowed on 13th June, 1957, and 3rd October, 1957, respectively.
The decision of a War Pensions Entitlement Appeal Tribunal is final, and therefore you may reopen your claim on this condition only if you submit further evidence which has not previously been considered, and is admitted as being material to, and having a substantial bearing upon, the claim.
Angina Pectoris is another name for Coronary Sclerosis, and the decision mentioned above covers both diagnoses.
I know the man personally, and I would not be surprised if he dropped dead at any time with a heart attack. His is a most pathetic case, and it seems to me that the only chance he will have of getting any consideration - he is entitled to it - will be if the amendment is carried. At the present time and for some years past, he and his wife have received £12 8s. a week. He receives a service pension of £4 15s. a week and £2 4s. as a war pension. His wife receives an age pension of £4 15s. a week and a war pension of 14s. For people of their age and state of health, £12 8s. a week is a paltry payment. I cannot see how it can be said, by any process of reasoning, that that is a liberal allowance.
Senator O’Byrne and Senator Toohey referred to the cost that would have been involved if the previous amendment to the bill had been carried, and directed particular attention to the argument in respect of limiting expenditure. Why should expenditure in this field be limited? The Government should not be influenced in the slightest degree by that argument because the financing of war, mainly by private banking and other financial institutions, has been and still is a most profitable investment for the shareholders of those institutions.
– Order! The honorable senator must confine his remarks to the amendment before the Chair and link them up with that amendment.
– I am pointing out that it is unreasonable to talk about the cost when one considers the profits of millions of pounds the banks made during the war and are still making, while exservice men and women are practically dying on their feet. Yet the Government says it cannot give favorable consideration to the amendment. Of course, this is not a new experience for me. I have seen thousands of ex-servicemen who risked their lives in war-time and, when they came home, they worked on the waterfront or at sea for most of their lives, and ended up on the dole. Those men made it possible for the financial institutions to make large profits, or assisted in making the Australian banks as rich as they are to-day. Yet the Government rejects the amendment and will not give ex-servicemen the benefit of the doubt, although over the years since the war they have been living in poverty. There is an old saying that where wealth accumulates mer) decay and where poverty increases they wither away. That is exactly what is happening. The wealthy people are indifferent to the welfare of humanity in their dealings with the men and women who all their lives have served them so faithfully. It will be the Government’s responsibility if this amendment is rejected.
I feel so strongly on this matter because I have seen so many ex-servicemen in poverty. I have seen Boer War veterans selling papers in the streets and getting barely enough to eat. To all intents and purposes, that is happening to-day. Some war pensioners are living under conditions of semi-starvation.
Order! The bill is in committee and we are dealing with the specific amendment before the Chair. The honorable member must confine his remarks to that amendment. This is not the second-reading debate.
– I am trying to give the reasons why I believe the amendment should be carried.
– The honorable senator must link his remarks with the amendment.
– In this amendment the Government is asked to give ex-servicemen the benefit of the doubt and in the cases I have mentioned that has not been given to them. Then the Government is asked to give ex-servicemen the right to appeal to a court. I do not know whether many applicants would be in a position to brief lawyers to present their cases to a court. My experience of lawyers is that in many cases they want their fees in advance if they have any doubt about being paid. I can. imagine what they would say if water.sider workers asked to be paid in advance. This amendment provides for the right to appeal to a court and I believe it should be passed. I suggest that if this amendment is carried, we make an organized move to raise money to assist ex-servicemen who have not the means to brief lawyers to conduct their appeals before a court. I support the amendment, but I am not optimistic enough to believe that the Government will agree to it.
– I wish to make a personal explanation. Senator Cameron, I think inadvertently, mentioned that I had made certain statements during this debate. In order to keep the records straight, I ask that such reference be deleted from “ Hansard “, because I have not taken part in this debate.
Senator TANGNEY (Western Australia) 2.52]. - T rise to support this amendment. I do so for two reasons. Firstly, of course, I support it in the interests of the exserviceman who has made every possible approach under the existing machinery and whose claim is still disallowed, particularly when he is unable to supply the proof that is required under the present provision. I support the amendment even more strongly in the interests of the women who after the demise of their husbands are still trying to have the cause of death recognized as having been war-caused. I cannot see why a man who has been honorably discharged from the Army, and has been told by one of the services that he has served his country with honour. has difficulty in obtaining a pension in respect of a disability. I have in my hand a certificate which belonged to a lady whose husband was discharged after having served overseas for two and a half years. He was disabled at the age of nineteen. After some years he received a pension in respect of neurasthenia and eventually he died. At the present time his widow is receiving a pension of £1 15s. 6d. a fortnight. She appealed to the tribunal for an increase in that pension, but her appeal was disallowed. Now she is living in straitened circumstances. She is not the type of woman who could appear before a tribunal or court with great confidence in herself. In many cases the disabilities of a husband were contracted before he met the woman who was to become his wife. She does not know many of his colleagues in his Army days.
This case I mention now is the one to which I referred last night. A soldier from one State enlisted in that State, and later came to Western Australia and was married there. His wife has not a great deal of knowledge of his war-time comrades and therefore she is unable to secure personally the additional information which could assist her in presenting a case which would be acceptable to the tribunal.
If, having produced evidence, we are told to get additional evidence, from where are we to get it? If there were some authority to which ex-servicemen and their dependants could appeal from decisions of the tribunals, quite often that would result in those people receiving justice. I know of many cases in which appellants to entitlement appeal tribunals have accidentally been able to obtain additional evidence. I remember an incident on a plane when, in the course of conversation, somebody mentioned a person’s name to me, and I discovered that that person had knowledge of the matter upon which we were trying to get evidence. A thing like that would not happen again in a hundred years.
I hope that the legal brains will find some way out of the difficulty. Instead of the entitlement appeal tribunal being the end of the road, there should be some other avenue open to ex-servicemen and their dependants to try to prove their claims for a pension. I do not think that everybody who applies should get a pension merely because he has applied for one, but we know of cases in which a pension has not been granted for a disability even though the ex-serviceman’s discharge papers show that he was disabled in the war. He could not just write that in himself. If these are facts that cannot be disproved, I feel that greater consideration should be given toapplicants in the assessment of disabilities, and that if a tribunal cannot see its way clear to grant a penson there should be a court of appeal available to the applicant.
– I take the view that every appropriate court of justice should be open to an Australian who considers that he has a grievance, so that he may receive justice according to the law of the land. Acceptance of this amendment would provide that opportunity. I think very few members of this Parliament would contend that the onus-of-proof provision has worked out as the Parliament meant it to work out. I have a personal knowledge of many repatriation cases. I have had just as much experience in this field as has Mr. Justice Joske. In one case, after the appellant had exhausted every avenue of appeal, I went through the files and I was successful in obtaining a pension for him, without his having to go back to a tribunal. I did not know how the case was fixed up, and I did not care. All 1 was interested in was in getting a favorable result, and I got it.
Since Senator Sir Walter Cooper has been the responsible Minister, I have had cases knocked back by appeal tribunals. When they found that I was insistent on inspecting the files, I was asked to wait. I did wait, and eventually the returned soldiers were given pensions. The point I am making is that mistakes are made. Mistakes have been made in a few cases in which I was interested. I do not say that they were made deliberately. I do not accuse anybody at this stage of having made a mistake deliberately. But mistakes are made. Plenty of mistakes have been made In applying the onus-of-proof provision. The onus rests on the tribunal to show that the claim is not justified. At least, that is my interpretation of the provision, and I think it is the interpretation that most members of Parliament place on it.
If a claim is not granted, why should not the claimant be entitled to go to the highest authority in this land? Why should anybody, particularly a returned serviceman, be debarred from taking his claim to the highest court in the land? Although an ex-serviceman’s claim is rejected by a tribunal, he may be convinced that the tribunal has made a mistake. What can he do then under the existing system? Acceptance of this amendment would open up other avenues for him - avenues similar to those available to other citizens who are not satisfied with verdicts. They may appeal to a higher court. As matters stand, justice is denied to one section of the community - the returned servicemen. I think it is a blot on the record of this Parliament that we have allowed a system to continue under which ex-servicemen have been denied a right of appeal to a court of justice.
The Minister for Repatriation has nothing to lose by accepting the amendment. He claims that justice is being done to the ex-servicemen and that mistakes are not being made. If that is so, why should not returned servicemen be given the benefit of the doubt? Why not give them a right of appeal to a higher authority, so that they would have an opportunity to prove they had not received justice from an entitlement appeal tribunal? For the life of me, i cannot see that the Government has anything to lose by accepting the amendment, and I assure the Minister that acceptance of it would be welcomed by the people of Australia.
I emphasize my view that no person in the land should be denied justice. By denying ex-servicemen a right of appeal to the courts - right up to the High Court of Australia - I claim that we are doing them an injustice. No citizen of Australia should be barred from getting justice.
– I do not intend to delay the committee for any length of time, but I feel constrained to comment on some remarks that were made last night by Senator Anderson, who followed me in the debate. Senator Anderson implied that my view was that all that an ex-serviceman had to do in order to get a pension was to apply to the commission or an appeal tribunal. He implied that my view was that the application should be granted automatically. I want to correct him. Each year, as successive repatriation measures have come before this chamber,
I have mentioned cases in which the persons concerned had substantial evidence of war-caused or war-aggravated disabilities but still were refused pensions. This is the most controversial and vexatious matter covered by repatriation legislation.
As I said last night, the Minister for Repatriation (Senator Sir Walter Cooper) is always most courteous and sympathetic. However, 1 cannot agree with his statement that the officials of the various exservicemen’s organizations throughout Australia are perfectly satisfied with the operation of the onus-of-proof provision. The Minister may have gained that impression from the people with whom he confers, but I know from personal experience of many exservicemen’s organizations that their officials are completely dissatisfied with and perturbed by the working of the onus-of-proof provision.
Senator Kendall, in his contribution to the debate, stated that if the amendment were accepted and a right of appeal to the High Court of Australia or the Supreme Court of a State were made available to ex-servicemen, there would be delays. Under the present arrangements, the exservicemen have to appear before tribunals. To use a colloquialism, it would be far better for them to wait a little longer and go before a court than be scrubbed altogether. As the Minister said last night, two more tribunals are to be established so that the hearing of appeals can be expedited. No stone should be left unturned to see that justice is done to the ex-servicemen and women. They should be afforded every opportunity to substantiate their claims. If they think they can prove that the onus-of-proof provision has not been properly applied in their cases, let them appeal to the highest tribunals that we have in this country. As was said previously, the Government has nothing to lose and everything to gain by doing so. I repeat that the Minister is very sympathetic, particularly in matters such as this.
I point out that, under the civil law, a person who considers that he has not received the damages that he should have received in a lower court has the right of appeal to a higher tribunal. Again, I emphasize that I do not cast any reflection on the personnel of the repatriation tribunals.
They are continually handling cases of this kind and become well versed in the procedure, whereas those who appear before them, thousands of whom are not represented by advocates, are at a decided disadvantage. Unsuccessful applicants should be given the opportunity to take their cases to the highest tribunals in the land, as we have suggested in the amendment. They should be able to go either to the High Court or to the Supreme Court of the State in which they live. I ask the Minister, who I believe is both sympathetic and conscientious, to accept the amendment. By doing so, he would give a great fillip to the aspirations of ex-servicemen generally.
.- I appeal to the Minister for Repatriation and, through him, to the officers of the Repatriation Department, to accept the amendment put forward by Senator O’Byrne on behalf of the Labour Opposition. This matter has been discussed in the Parliament over a considerable period of time. When the Australian Labour Party was in office the act was amended and it was thought that that would improve the operation of the onus of proof provision. However, it appears that there is still considerable dissatisfaction about decisions that are made by repatriation tribunals from time to time. The amendment that has been proposed offers a way out of the difficulty.
The administration of the onusofproof provision, more than anything else, is bringing into disrepute a wonderful department and an excellent Minister. No one can deny that great work has been performed on behalf of our ex-servicemen by both the previous government and the present Government, as well as by the Repatriation Department. An honorable senator said earlier that we have the finest repatriation service in the world. If that is so, why should we besmirch it by reluctance on the part of some one to grant the right of appeal against decisions of tribunals? As we know, under the civil law a dissatisfied litigant may appeal from the decision of a lower authority to a higher authority. I could not understand the reasoning of Senator Kendall when he said that the tribunal concerned with a particular case would have made up its mind and would feel that it had exercised all the functions required of it under the onus of proof section. Of course, every tribunal that makes a decision is of the opinion that justice has been done to the parties before it. A police magistrate or a judge of the Supreme Court thinks that he dispenses justice. But decisions given by those authorities are subject to appeal, first to the High Court of Australia, and eventually, if necessary, to the Privy Council, which has the final say.
As I have said, the onus-of-proof section is the one thing that is causing dissatisfaction. Every honorable senator must know of cases in which the operation of the section has led to discontent. I have had my share of them. One that I remember had been proceeding for a considerable time. Eventually, it came to me, and when I began to investigate the circumstances 1 found that various people had taken it before tribunals. A friend of mine said to me, “ If you win that case you will deserve a gold medal, because some of the most able advocates from the organizations have tried it “. I kept at it, and appealed to the repatriation authorities to go through the papers again. I felt ashamed to see the widow coming along week after week to inquire whether anything was being done on her behalf. The case was becoming an obsession with her. In desperation, I said to the people at the Repatriation Department, “ For goodness sake, look through the papers once again and see whether it is possible, if you cannot do anything else, to increase this widow’s pension “. To my surprise, at a later date, when I went to the department about another matter, I ascertained that the officers had gone through the papers and found that a mistake had been made. The previous decision was reversed, and the woman concerned received the full widow’s pension, with back pay.
It is of no use saying that such things do not happen. The instance I have just referred to is complete proof that they do happen. I am conversant with the case that Senator Cameron brought to the notice of the committee. I know all about it. Because of lack of evidence about the happenings at Villers Bretonneux during a gas attack - the records are not complete - that man has for years been trying to get justice from the Repatriation Department. I have spoken to soldiers who were subject to similar conditions and it is obvious that during a gas attack there is no opportunity to record details. I appeal to the Minister and to honorable senators opposite to accept ihe amendment. If we were in government and you were on this side of the chamber, I should be very uneasy if I had to resist amending the act in the way that is suggested.
I am interested at the moment in the case of a man who served in the Navy and who suffers from tuberculosis. lt appears that we have made no provision to cover members of the Navy who did not land in enemy territory. If the man of whom 1 speak had served in the Army, his tuberculous condition would have been accepted as war-caused, but because he served in the Navy it is not accepted. His case was referred to the workers’ compensation authorities. Such men must be told after their claims for compensation under the Commonwealth Employees’ Compensation Act have been rejected, “You may appeal against the decision to a magistrate or to a county court “. Surely to goodness we should have uniformity somewhere. If the Government is not prepared to accept this amendment because a member of the Labour Party Opposition has moved it, then let a Government member move the amendment in order that justice might be done to these people who feel that at present the Repatriation Act is against them.
– I had something to say about onus of proof last night. I agree that this provision is one of the greatest benefits that returned servicemen have and I do not want to see it lost. As I said previously I was a member of the Opposition when this provision was introduced by the Labour Government, and I ask myself this question: Did the Parliament that inserted this onusofproof section believe that appeal tribunals should accept an inference that would sustain the ex-servicemen’s claims? I believe that was the position the then government had in mind. It was hoped that the onus-of-proof provision would be a safeguard and that the benefit of the doubt would be given to the claimant even in spite of inferences that could be drawn.
I believe that the onus-of-proof provision cuts right across all the accepted principles of law. That is why I am not in favour of ex-servicemen having to go to the courts. As I said last night we, as returned servicemen, have to be careful that we do not give up the best benefit we have ever had. It is a benefit that cuts right across accepted principles of law. If we go to the courts we will lose what we have got because these claims will be decided according to principles of law. Are we going to give up what we gained in 1945? Perhaps the provision could be modified somewhat; and I am fortified in saying that because of what Senator Hendrickson stated last night. He suggested that a doctor might express the opinion that an exserviceman’s disability was war-caused. The reply of the Minister was interesting. He said that another doctor - a specialist - might be quite certain that the disability was not war-caused and that the adjudicating authority would accept the opinion which it thought was right.
I repeat that the onus-of-proof provision cuts right across the intention of the original framers of the legislation. With that in view I suggest that we would have a snowball’s chance in hell if the matter were to go to a court. Let us hold what we have. I admit that there are human problems involved in this matter. One thing we have to get over is the advice tendered by a medical practitioner. I have quoted cases where a doctor has said that be believed that a disability was warcaused, and where a specialist has said that it was not war-caused. In those cases the onus-of-proof provision cuts right across accepted principles of law and gives the benefit of the doubt to the ex-serviceman. If the matter went to a court of law, what would the judge do? The ex-servicemen would be ruled completely out.
– That statement is an insult to our judges.
– It is not my intention to insult the judges. What I am saying is that the onus-of-proof provision cuts right across the principles of law followed by the courts. A doctor, in expressing his opinion, has his integrity and reputation at stake. I know something about returned servicemen and something about service in the war. A lot has been said about gas and so on. I shall not deal with that matter, but I think I have had some experience of it. The point at issue to my mind is that a young doctor - I said this twelve months ago - has his reputation at stake. He says that in his opinion the disability is not due to war service. I venture to say that if a doctor were to say that in a court of law, the court would uphold his opinion; but in the tribunals to which we can go, if there is any shadow of doubt, the decision is given to the claimant. We have that advantage, and for goodness’ sake let us keep out of the law courts. The members of every one of our tribunals are returned servicemen. I know there are cases where wrong decisions have been made - we wonder why - but that does not happen very often.
Senator Sir WALTER COOPER (Queensland - Minister for Repatriation) [3.23]. - I have listened with very keen interest to the debate that has taken place on the proposal to set up a court of appeal. Some honorable senators opposite have said that returned servicemen should have the same right of appeal as civilians have. I impress upon honorable senators that a civilian cannot appeal from one court to another without obtaining leave to appeal.
– You can give the exserviceman that opportunity.
– If the honorable senator will be patient I will tell him what the soldier’s position is. It is quite wrong to think that as a matter of course a civilian can take his case to the High Court of Australia and then to the Privy Council. He has not that right. The Opposition submits that an ex-serviceman should have the right to appeal to another court. At the present time the exserviceman can appeal from the decision of the Repatriation Board to the Repatriation Commission and can then appeal from the commission to the tribunals. The tribunals were established in 1929 for the purpose of giving some finality to a decision of the Repatriation Commission. They were specially set up as statutory bodies which had no connexion in any way with the Repatriation Department. Over the yean alterations have been made to the act, but by and large the system of appeals has carried on since it was commenced in 1929. In 1945 an alteration was made to section 47. The ex-serviceman has the right of two appeals. The Opposition suggests that there should be a right of appeal to a court. There is at present opportunity for appeal from a tribunal to a court by means of a writ of mandamus, and that procedure has been adopted on more than one occasion.
– It would cost the ex-serviceman something.
– Yes. I could not say how much it would cost. Especially since I returned from overseas recently after seeing what other countries are doing, I am convinced that our system of appeals is the finest in the world. In Great Britain an applicant may appeal direct to a court but he must obtain the permission of the Department of Pensions, which is somewhat similar to our Repatriation Department. In Canada also the right of appeal to a court exists, but sanction for appeal has to be obtained. Here a man has a full right of appeal from the department’s decision to an independent tribunal.
Senator Sandford said that the returned servicemen’s organizations wanted the right of appeal to a court. He mentioned that I had said previously that these organizations were satisfied with the present position and did not want it altered. I still adhere to that statement. The bulk of the ex-service men and women and their organizations are quite happy and would sooner retain the present system without change. The last New South Wales conference of the Returned Servicemen’s League made headlines with a request for the right of appeal from a tribunal to a court. I deal with the federal body of that organization and I have received no such proposition from its executive. That request may be made after the federal conference in October, but up to the present it has not been made. Senator Armstrong referred to the cost of proceeding by writ of mandamus. I do not know whether the amendment envisages the payment by an applicant of his own costs, but it seems to me that that would be the position.
– That is not very desirable.
If that is the position, I am even more firmly opposed to the amendment. The matter has been considered by the Government. This is not the first suggestion of an appeal to a court of law. The proposal has been made before and been very carefully considered. The Government is not prepared to accept the amendment.
– I am not happy with the reply of the Minister for Repatriation (Senator Sir Walter Cooper), nor with the case put up by Senator Mattner, who placed emphasis upon a doctor’s opinion. When a man’s health, and probably thousands of pounds, are at stake, we want more than just an opinion. In order to achieve justice, we want an opinion backed by facts. A mere medical opinion, unsupported by facts, is not sufficient when a man’s future is at stake.
I shall be very interested to hear the stand taken by the legal fraternity on this matter. I understand that the lawyers’ idea of justice is that every man should have the right to approach a higher court if he feelsaggrieved. Many of the legal fraternity hope to become judges one day. If they were sitting on the bench of the High Court or some other court, and they found that somebody was being denied the right to come to them for justice, they would feel very peeved indeed.
The Minister said that a civilian has not a right of appeal to a court without first obtaining leave. When a man is convicted of a parking offence, he need merely give notice that he intends to appeal to a supreme court. He does not need to ask the magistrate for leave to appeal against the magistrate’s decision. It is said that ex-servicemen have the right of appeal from the decisions of a commissioner or deputy commissioner. Of course, that is true, they may appeal to a tribunal. A civilian must obtain leave if he wishes to appeal to the High Court, but if leave is granted he has a mighty good chance of winning his case, because most of the facts are heard by the court before he is given the right of appeal. If I applied for and was granted leave to appeal to the High Court, I would feel that I had a much better than 50-50 chance of winning. An ex-serviceman has not such a right under the Repatriation Act, but the amendment proposes that he be given the right. The existing right of appeal is like appealing from Caesar to Caesar, because a deputy commissioner who rejects an application does his best to support the ruling he has given when the matter comes before a tribunal.
– That is absolutely wrong.
– I should be very pleased to know that I was wrong, but that has been my experience in cases with which I have dealt. The biggest hurdle to overcome was the man who made the initial decision. Once I got over that hurdle, I was pretty right, and I have won a few cases after every avenue of appeal had been exhausted. In these instances the matter was fixed up inside the department and I did not ask any questions, as I was only after results. As long as I got results, I did not care how they did it.
– What an admission!
– I dealt with the matters fairly and squarely. In one case that I recall I spent hours going through a file. The applicant had been rejected because of having had tuberculosis of the spine before joining the forces. I found that there was nothing in the file to indicate that he had the complaint then. That is an admission, is it not? I took down twelve pages of notes when I examined the file. Fortunately or unfortunately, when the file went back to the department my notes accidentally went with it. The next thing I knew was that the ex-serviceman received not only a war pension but also a special pension. He has since been receiving them for years.
– Who would have made that decision?
– I told you that I was not concerned about who decided it. That man had exhausted every avenue of appeal and had been knocked back. All I was interested in was getting results, and it was not my intention to kick anyone in the pants for not having acted properly in the first place. I was only too happy to get theresult that I did get.
Some honorable senators have claimed that the procedure suggested in the amendment would have the effect of causing delay. It would do nothing of the kind. Air we want to do is to give an ex-serviceman who has exhausted all avenues of appeal, and who claims he has not received justice, the right of appeal that is enjoyed by any ordinary civilian. The suggested procedure would be much less cumbersome than the procedure mentioned by the Minister a few moments ago. Senator Mattner, who is again interjecting, may not believe in giving ex-servicemen the right of appeal that is accorded to the ordinary civilian under the Constitution, but that is not my idea of justice. I do not believe in barring anyone who has Australian citizenship from access to the highest authority in the land if he feels aggrieved or feels that he is not getting justice.
I shall be most interested in the way honorable senators who are members of the legal fraternity will vote on the amendment. So far they have been silent on the matter. 1 am not trying to bait them, but 1 do feel that they are a little uneasy. Senator Wright has left the chamber, and it will not surprise me if he remains outside when the vote on the amendment is taken. Knowing what Senator Wright’s attitude is when points of law and justice are raised, my tip is that, if he does come into the chamber when the vote is taken, he will be on our side.
I cannot agree with what the Minister has said. I know he is very sympathetic, and I suggest that, as so much is involved on this point, even at this late stage he should move that progress be reported and should have another look at the matter. If he did that, he would be hailed throughout Australia as attending to what is an urgent need. Even at this late stage, the Minister would get full marks from all sections of the community, irrespective of their political creeds, if he were to do as I have suggested.
Senator O’BYRNE (Tasmania) 13.391. - This discussion has convinced me still further that the amendment is necessary. The attitude of the Government in indicating that it has made up its mind and is not prepared to accept the amendment highlights the importance of the principle involved. The Opposition has been placed in the position of discharging the onus of proving that the amendment is necessary. The Government has said, in effect, “We know best. What is good for the Government is good for Australia and the exservicemen generally.” The principle involved is whether, in the final analysis, entitlement appeal tribunals are likely to make mistakes. Of course, evidence has been adduced this afternoon to show that mistakes have been made.
The reports that appear on the files of ex-servicemen were often made by medical men who before the war were in private practice but who responded to the call to the colours and were sent to various fields of battle. In the heat and rush of battle and in the midst of improvisation in field and base hospitals, they made the diagnoses which are recorded on the files. Often the reports of those men are used as evidence when a tribunal is deciding whether or not a particular disability is war caused. I have known many cases in which a digger has gone to a medico who has been discharged from the services and has gone back into private practice and has said to him, “ I would like you to have a look at me, Doc. I have this, that or the other thing which I feel is war caused. What do you think? “ The doctor has given the man in question an overhaul and has said, “ Yes, I think your condition could be due to war service”. Then that man has been given a certificate by the doctor, which he has sent to the Repatriation Commission, and he has sought a pension. We often find that reports given by doctors under battle conditions have set off a certain line of thought. The diagnosis made in the first place may not have been right and may have done the patient an injustice. Such diagnoses must have some bearing on the ultimate decision of the tribunal.
As I said earlier, only a man trained in legal processes and having a trained legal mind can determine finally whether the spirit and letter of the act have been followed and whether the onus of proof has been properly discharged. It is for that reason that I continue to support the amendment. I admit that members of the entitlement appeal tribunals are very practical, experienced, capable and generous men; but they have precedents to follow. They operate in an atmosphere in which, as well as the genuine cases, there are cases of men who are inclined to drag their feet or swing the lead. They have the important task of differentiating between the genuine applicant and the lead swinger. It has often been said that it is better that ten guilty men should go free than that one innocent man should be punished, and the same principle applies in the discharge of the onus of proof. In principle, it is much better that a final appeal should be made to a judge than that a man who is justly entitled to repatriation benefits should be debarred from them because an entitlement appeal tribunal makes its determination in a certain set of circumstances. A very important point which has been mentioned during this debate is that claims which have been rejected by tribunals have been won at the final appeal. The report of the Repatriation Commission for the year 1958-59, appendix No. 7, the assessment appeal tribunal statistics, shows that the number of appeals by ex-servicemen from the First World War which were allowed was 1,239 and 1,196 were disallowed.
– Over 50 per cent, were successful, which is not a bad average.
– Yes, but the point is that it is 40 years since those men were discharged from the forces and they may have appeared before the commission four or five times in that period and had their applications refused. Then they might have approached the department again with further evidence. Just recently I saw an old chap who was very sick. He said to me, “ I have to get some new evidence “. I said, “ Can’t you possibly think of some of the fellows who were with you? They might be able to speak on your behalf.” He said, “ I think they are all dead “. I said, “ Have you any photographs of the boys who were with you? “ He said, “ My word, I have. At home I have a photograph we had taken in France.” We went out and saw a chap at Scottsdale, whom Senator Henty knows very well. He was overseas with this old chap and he was prepared to give evidence of the circumstances in which the old fellow claimed that he had sustained disabilities. It was only just by chance that he kept that photograph.
– It would not have made any difference whether or not the appeal was made to a court. If he can produce evidence the commission will grant his application. You have just proved the case.
– He did not have the evidence. The onus of proof was still on the commission, even if he did not have the good fortune to obtain that piece of evidence which became part of a stronger case. The onus of proof was on the commission and the ex-serviceman’s claim eventually was granted. At times it must be extremely difficult for the commission to decide claims. That is quite obvious from the records. There are about 120,000 men who served in the First World War and approximately half of them are receiving pensions. In 1958-59, no fewer than 1,239 of them were able to get through the barrier and obtain pensions, but 1,196 who did not get through that barrier might have been successful had they had more evidence. The decisions might have been on the border line of success.
Therefore, I submit that the provision contained in the Opposition’s amendment is a very worthy one which would be availed of on only very rare occasions. There is a wide choice available in the State Supreme Courts or a federal judge, and the interpretation on that level of the spirit of the act in relation to a case could be taken as a final decision.
– Why stop there? If an appeal to the High Court failed could the claimant appeal to the Privy Council?
– No, he would not appeal to the Privy Council because the decision would be an interpretation of the law in relation to the case by a judge, a man with legal training, on whether or not the onus of proof had been discharged. That would be the only point.
– Surely you would not deny an ex-serviceman the right of further appeal, on your own argument? You say he should have the same rights as a civilian, but now you want to deny him the right to appeal to the Privy Council. You do not want to let him appeal against the decision of the High Court.
– I regard the Repatriation Act as the diggers’ workers’ compensation act. The diggers volunteered for service and were employed by their country. During that employment, some of them sustained injuries. Under a workers’ compensation act a man who has been injured in his employment is entitled to certain compensation, and if a decision is unfavorable to him he has immediate recourse to the courts. In the past, in setting up the organization of the Repatriation Commission, we have decided - I think in our wisdom - that, as the matter is under the control of the commission and the various appeal tribunals, it is in very practical and sympathetic hands, and legalisms have been removed. However, this aspect relates to the legal interpretation of the onus of proof provision. I do not think I have convinced honorable senators on the Government side that that is the point at issue. Although we do not want legalism in the appeals and the other processes through which a claim goes, on this point we do want legal interpretation.
– On whether the onus of proof has been discharged by the commission.
The TEMPORARY CHAIRMAN.Order! The honorable senator’s time has expired.
– I have in mind a claim that was refused. I would say that if the onusofproof provision had been correctly applied in that case the claim would have been granted. The man concerned had been decorated in the First World War. He had very high personal qualities and had a responsible job as superintendent of labour in a big factory. He came out of the First World War with neurosis, which flared up at the beginning of the Second World War. He lost his memory completely for a week. His behaviour was completely out of character and after about seven days his family found him in gaol. He attributed his condition to the impact on him of the declaration of the Second World War. His condition gradually deteriorated over the years.
What would be my approach to the matter as a layman? Having verified the details of the case, I would say that what happened to him was obviously the result of his experiences during the First World War. He had been blown up and had undergone severe nervous strain. I think he was awarded the Military Medal and a couple of other decorations. He was in the front line all the time. Obviously, the effect of his wounds and of his experiences in the First World War had lain dormant in him. There was in his mind a fear of war - a neurosis - which flared up under the impact of the declaration of the Second
World War. To me, that would be prima facie evidence that his aberration was due to his experiences in the First World War. Unfortunately, that man’s application was refused, and the refusal was upheld on appeal. The onus-of-proof provision was not applied in his favour. He should have received better treatment than he got. This sort of thing disturbs the Opposition. I am sure that all members of the Parliament know of other cases of this kind.
.- I wish to submit another amendment. Mr. Temporary Chairman, are we going to take a vote on the previous amendment?
The TEMPORARY CHAIRMAN.The vote has been taken. Senator O’Byrne has been a member of the Senate long enough to know that he cannot call for a division after a vote has been taken. I put the amendment to the committee, and it was negatived.
– Could we recommit the clause, or will you put the amendment again?
– I understood, Mr. Temporary Chairman, that you called on Senator O’Byrne to continue the debate on the previous amendment.
The TEMPORARY CHAIRMAN.Senator O’Byrne can move for the recommittal of the clause later, if he so desires. The position is that I put the amendment, that nobody called for a division, and that I declared the amendment to have been negatived. No voice was raised in relation to this matter until another senator came into the chamber.
– 1 move -
After clause 6 insert the following new clause: - “ 6a. After section one hundred and twentythree of the Principal Act the following section is inserted: - 123a. The Commission may, subject to such conditions as it from time to time determines, provide medical and hospital treatment for a member of the forces as defined in Section 23 of this Act and for a person to whom Section 120 of this Act applies.’.”
The purpose of the amendment is to enable the provision of free hospital and medical treatment to all ex-servicemen of the Boer War and the First World War. This concession has applied throughout the years - and is continuing to be applied - to burnt-out diggers. Like yourself, Mr. Temporary Chairman, I do not like the term “ burnt-out digger “. The is plenty of evidence available to show that service in the First World War has had a tendency to shorten life. Quite a number of people who participated in the First World War are not eligible to receive a service pension. Some of them are men who put their ages forward in order to enlist. They were really only fifteen or sixteen years of age at the time, and are not yet 60 years of age. Other people, also, would benefit from the acceptance of this amendment. lt is the desire of the Opposition that repatriation hospital facilities be made available to all First World War and Boer War veterans. I understand that there are approximately 120,000 First World War veterans still alive, of whom about 50 per cent, are receiving pensions, lt is the remainder of them, regardless of whether or not they are eligible to receive pensions, that we wish to cover.
The Opposition has submitted this amendment in the belief that one great responsibility that devolves on any properly organized community is to help people who are sick. As we know, in these days hospital treatment is very expensive. We believe that it will be a great comfort to people who took part in the First World War to know that, in the event of their becoming sick in their old age, hospital treatment will be provided for them in repatriation hospitals. It is not expected that all ex-servicemen who would become eligible for this benefit if the amendment were accepted would avail themselves of it. There is an old saying to the effect that old soldiers never die; they dry up and blow away. Many of them are like that. They never become sick; you could not kill some of them with an axe. We say, however, that during the drying up process, as it were, hospital treatment should be available to them in repatriation hospitals or, if necessary, in other hospitals.
I believe that these benefits should be provided by the Government in discharge of the debt that this country owes to the men who disrupted their lives and embarked on a most dangerous venture in the defence of this country. It would be a very fine thing if the provisions of the Repatriation
Act could be extended in this way to give justice to all the men who were subjected to great hazards in war. I urge the Minister to accept the amendment.
Senator Sir WALTER COOPER (Queensland - Minister for Repatriation) [4.5]. - I rise to make a short reply to Senator O’Byrne. I think he realizes that this Government has gradually extended the benefit of hospital treatment in repatriation hospitals to various groups. The Opposition has requested the Government, by this amendment, to provide such treatment for all ex-servicemen of the First World War and the Boer War. In the first place, we do not have available sufficient repatriation hospital accommodation to enable us to meet the request. As Senator O’Byrne knows, until the extensions to the Repatriation General Hospital in Hobart were completed, it was not always possible to provide hospital treatment in Hobart for all ex-servicemen who were entitled to it. We have proceeded gradually with the granting of benefits because we want to be sure that we can do what we set out to do. We shall be able to find accommodation throughout Australia for these service pensioners. In Melbourne and Sydney we may have a little difficulty at the beginning, but that will be overcome. The necessary accommodation will be made available, even if wards that have been closed have to be re-opened.
I do not think that the amendment has been very well thought out. Our approach all the way through has been to provide hospital treatment for those who most need it. It may be that some of the eligible ex-servicemen of the 1914-18 war are wealthy people who do not need free hospital treatment, whereas other ex-servicemen with 90 per cent, disability probably have great need of it. We have achieved the matter by trying to meet the greatest need, instead of simply dealing with a group, some members of which might not need free treatment. The Government is not prepared to accept the amendment.
.- The Minister has referred to Tasmania. I remind him that until the introduction of the Federal Government’s health scheme, we in Tasmania had a free hospital service that provided for all members of the community. It did not matter whether a man was an ex-serviceman or not; he could obtain free hospital treatment. The introduction ot this Government’s health scheme and the increase of inflation made it imperative for the State government to impose charges for hospital treatment. The people of Queensland still enjoy free hospital treatment. All that we on this side are seeking to do is to restore to Tasmania and the other States benefits of which the ex-servicemen were deprived by the action of the Federal Government.
– Oh, no. I will not have that.
– That is correct. All ex-servicemen were previously entitled to free hospital treatment.
– The State governments did away with it.
– The State governments were put over a barrel, so to speak. In fact, they were at the end of a double barrel. They found that unless they availed themselves of the assistance offered -by the Federal Government, the only taxing authority, they would not be able to find the money to provide adequate hospital facilities. In Tasmania, we ran lotteries, raffled hotels, and did other things of that kind to try to keep our hospitals going.
– We still have free hospital treatment in Queensland.
– Yes, I know that, the case I am making is strengthened by the Minister’s interjection. Tasmanian ex-servicemen of the First World War and the Boer War, who previously were entitled to free hospital treatment, have been deprived of that benefit, as have the ex-servicemen of other States. By a small amendment of the act, that benefit could be restored.
– That is ridiculous. We do not run the State hospitals.
– The State hospitals were prepared to run themselves, but they ran out of funds. They now have to rely on the Federal Government because of the scheme that it put up. We on this side of the chamber would like to see free hospital treatment re-introduced. One of the first responsibilities of a Christian community is to care for the sick. A sick man is a liability to the community. By restoring him to health as quickly as possible he can be made an asset. That is the philosophy ot Christian people. But in Tasmania and the other States except Queensland, free hospital treatment cannot be provided because of the introduction of this Government’s health scheme. We are trying to bring certain members of the community under the shelter of the Repatriation Act.
– That is very selfish of you. You are not bothering about any of the other States.
– We want that benefit for ex-servicemen in all the States. It is the Minister who is selfish, because the ex-diggers of Queensland enjoy free hospital treatment.
– Anybody may get it there.
– Yes, but the people of Victoria, Tasmania and New South Wales cannot get it, although they would like to enjoy that benefit. In my opinion, the amendment is justified and I hope the Government will accept it.
– If this bill is passed it will bring within the range of repatriation benefits, particularly hospital benefits, a large number of ex-servicemen of the First World War. As I said last night, the easing of the means test will also play a part in that respect. I agree with the Minister that we should proceed to grant benefits step by step. I know of Senator O’Byrne’s interest in this matter. Surely he will agree that it is wise to see how our repatriation hospitals cope with the increased numbers of patients who will seek treatment. We know that there are at present 25,000 exservicemen eligible to benefit, but we can only guess at the number that will be eligible as a result of the easing of the means test. Perhaps there are about 40,000 exservicemen who have been unable to qualify because of the means test. It is reasonable to assume that those men are in comparatively affluent circumstances. I take it that most of them subscribe to hospital benefits schemes. I have a suggestion to make to the Minister. I am wondering whether it would be possible later to devise a scheme under which their contributions to hospital benefits funds would entitle them to treatment in military hospitals, where they could be with their comrades of former years.
– I understood Senator Mattner to say that, without taking into account the number who would qualify as the result of any relaxation of the means test, the number who would be entitled to hospital treatment would be about 25,000. I should like to know how many returned men are now entitled to hospital treatment.
Senator Sir WALTER COOPER (Queensland - Minister for Repatriation) [4.16]. - The total number, including the 25,000, is 309,284.
– Is that the total number of men?
– No. The number in receipt of pensions is 206,931, and the number not receiving pensions is estimated at 31,200. Those in the latter group have an incapacity, but it is not a pensionable incapacity. The men are entitled to hospital treatment for their warcaused disability, but it is so small that they are not entitled to a pension. Those in receipt of the 100 per cent. pension or higher - that includes those receiving the special rate pension - number 38,502. Nurses of the 1914-1918 war number about 1,000 and war widows and certain widowed mothers, 36,047. The number of children of deceased parents is 7,436 and the number of persons suffering from tuberculosis not due to war service is approximately 1,670. If we add 25,000 service pensioners the total is 309,284.
– That is the total number of people who are entitled to hospital treatment?
– I thank the Minister for the information he has given me.
Question put -
That the words proposed to be inserted (Senator O’Byrne’s amendment) be inserted.
The committee divided. (The Temporary Chairman - Senator K. M. Anderson.)
Majority . . 7
Question so resolved in the negative.
Bill agreed to.
Bill reported without amendment.
.- I move -
That the bill be recommitted for the purpose of reconsidering the insertion of proposed new clause 3a (Senator O’Byrne’s second amendment).
This is to permit further consideration of the second amendment proposed by the Opposition. The Temporary Chairman was so efficient that the debate proceeded too quickly to enable a division to be called for. It is the wish of the Opposition that a vote on the amendment be recorded.
– I second the motion.
Question put -
The Senate divided. (The Deputy President - Senator the Hon. A. D. Reid.)
Majority . . . . 6
Question so resolved in the negative.
Motion (by Senator Sir Walter Cooper) proposed -
That the bill be now read a third time.
.- It is contrary to the Standing Orders to reflect upon a vote of the Senate, and I regret very much that it was thought necessary to ask for the bill to be recommitted. I ask for your ruling, Mr. Deputy President, on the whole of the proceedings in relation to this bill. Through an over sight, there was no suspension of the Standing Orders to permit the bill to pass through all its stages without delay. This is a very unusual situation and in such circumstances concessions are usually made.
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid). - Before the honorable senator proceeds further, I should tell him that the correct procedure was adopted from the outset and Standing Orders were suspended.
– No, they were not.
The DEPUTY PRESIDENT.- Yes. I was in the chair and I assure the honorable senator that the proper procedure was followed. Each motion was taken in its correct sequence.
-I bow to your ruling, Sir, but the records of the Senate will show the position. During the confusion that existed at the introduction of this measure, when the Minister for Repatriation was preoccupied with his papers, which were a little mixed up, the motion for suspension of the Standing Orders was overlooked.
The DEPUTY PRESIDENT.- I direct the honorable senator’s attention to the “ Journals of the Senate “ for yesterday, which read -
Suspension of Standing Orders. - Senator Sir Walter Cooper, pursuant to contingent notice, moved -
That so much of the Standing Orders be suspended as would prevent the Bill from being passed through its remaining stages without delay.
Question - put and passed.
Question resolved in the affirmative.
Bill read a third time.
Senate adjourned at 4.34 p.m.
Cite as: Australia, Senate, Debates, 8 September 1960, viewed 22 October 2017, <http://historichansard.net/senate/1960/19600908_senate_23_s18/>.