Veterans’ Review Board

Veterans’ Review Board Relaxed Evidentiary Rules in Veterans’ Legislation History of the relaxed evidentiary rules Empirical study of the effect of relaxed evidentiary rules Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions pre-1929 — no relaxed evidentiary provisions Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions pre-1929 — no relaxed evidentiary provisions 1929 — War Pensions Entitlement Appeal Tribunal: • ‘not ... bound by any rules of evidence’ • must ‘act according to substantial justice and the merits’ • give appellant ‘benefit of the doubt’ • onus on appellant to make ‘prima facie case’ • only then an onus on Commission to disprove Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions pre-1929 — no relaxed evidentiary provisions 1929 — War Pensions Entitlement Appeal Tribunal: • ‘not ... bound by any rules of evidence’ • must ‘act according to substantial justice and the merits’ • give appellant ‘benefit of the doubt’ • onus on appellant to make ‘prima facie case’ • only then an onus on Commission to disprove 1933 — Bott’s case (HC) rules of evidence cannot be ignored but should be used as a guide to the weight to be given. – R. v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1943 • relaxed rules to apply to all decision-makers Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1943 • relaxed rules to apply to all decision-makers • ‘not ... bound by ... rules of evidence’ Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1943 • relaxed rules to apply to all decision-makers • ‘not ... bound by ... rules of evidence’ • must ‘act according to substantial justice and the merits’ Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1943 • relaxed rules to apply to all decision-makers • ‘not ... bound by ... rules of evidence’ • must ‘act according to substantial justice and the merits’ • give claimant ‘benefit of any doubt’as to: • the existence of any favourable fact; or • any question arising in the case Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1943 • relaxed rules to apply to all decision-makers • ‘not ... bound by ... rules of evidence’ • must ‘act according to substantial justice and the merits’ • give claimant ‘benefit of any doubt’as to: • the existence of any favourable fact; or • any question arising in the case • no onus on claimantto produce any evidence Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1943 • relaxed rules to apply to all decision-makers • ‘not ... bound by ... rules of evidence’ • must ‘act according to substantial justice and the merits’ • give claimant ‘benefit of any doubt’as to: • the existence of any favourable fact; or • any question arising in the case • no onus on claimantto produce any evidence • must draw ‘all reasonable inferences in favour of claimant’ Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1943 • relaxed rules to apply to all decision-makers • ‘not ... bound by ... rules of evidence’ • must ‘act according to substantial justice and the merits’ • give claimant ‘benefit of any doubt’as to: • the existence of any favourable fact; or • any question arising in the case • no onus on claimantto produce any evidence • must draw ‘all reasonable inferences in favour of claimant’ • onus on Commissionto disprove Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions Statements concerning the meaning of 1943 provisions 1944 — G J O’Sullivan, Chairman No. 1 WPEAT ‘approximates to the burden of proof in a criminal trial’ Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions Statements concerning the meaning of 1943 provisions 1944 — G J O’Sullivan, Chairman No. 1 WPEAT ‘approximates to the burden of proof in a criminal trial’ 1953 — Attorney-General Spicerclaim should succeed unless disproved beyond reasonable doubt Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions Statements concerning the meaning of 1943 provisions 1944 — G J O’Sullivan, Chairman No. 1 WPEAT ‘approximates to the burden of proof in a criminal trial’ 1953 — Attorney-General Spicerclaim should succeed unless disproved beyond reasonable doubt 1953 — A W Riordan ((1953) 27 Australian Law Journal 315) • there is a compelling presumption of attributability to service• called for right of appeal to a Court, as law not applied in practice Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions Statements concerning the meaning of 1943 provisions 1944 — G J O’Sullivan, Chairman No. 1 WPEAT ‘approximates to the burden of proof in a criminal trial’ 1953 — Attorney-General Spicerclaim should succeed unless disproved beyond reasonable doubt 1953 — A W Riordan ((1953) 27 Australian Law Journal 315) • there is a compelling presumption of attributability to service• called for right of appeal to a Court, as law not applied in practice 1960 — Attorney-General BarwickIf the state of decision-maker’s mind is in equipoise, the claimant must succeed. But facts going against the claimant must be proved beyond reasonable doubt. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions Statements concerning the meaning of 1943 provisions (cont.) 1975 — Toose J - Inquiry into the Repatriation System • where there are competing inferences, any reasonable inferences favouring the claimant should be drawn. • benefit of the doubt should only apply at the end of the process of inference drawing and fact-finding and then only if a doubt arises. • the criminal burden of proof, ‘beyond reasonable doubt’,does not apply. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions Statements concerning the meaning of 1943 provisions (cont.) 1981 — Aickin J (with Gibbs CJ, Stephen & Mason JJ agreeing) (Repatriation Commission v Law(1981) 147 CLR 635 at 639) ‘… the onus of proof was placed on the Commission. The nature of the onus was not stated specifically but there can be no doubt that it was theordinary civil onus, i.e. that of proving the material facts on the balance of probabilities, but it was an onus which required that degree of proof of a negative proposition. The precise operation of the “benefit of any doubt” in such a context is not altogether clear but presumably it meant no more than a doubt as to the balance of probabilities in respect of each of the matters on which entitlement depended.’ Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions Toose Report – 1975 • noted considerable dissatisfaction & frustration concerning the application of the section. • the Act should be amended to make the law clear. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1977 Amendments • not bound by rules of evidence. • act in accordance with substantial justice and merits. • shall take into account the effects of passage of time and absence of official records, etc. • shall grant a claim ‘unless … satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim’. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1979 • abolition of War Pensions Entitlement Appeal Tribunal • creation of Repatriation Review Tribunal and right of appeal to Federal Court of Australia. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1979 • abolition of War Pensions Entitlement Appeal Tribunal • creation of Repatriation Review Tribunal and right of appeal to Federal Court of Australia. 1980 — Law v Repatriation Commission (Federal Court) 1980 — Repatriation Commission v Law (Full Federal Court) 1981 — Law v Repatriation Commission(High Court) • criminal standard of proof applies • onus of disproof on Commission Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions Effect of Law’s case – Acceptance rate by Repatriation Review Tribunal Federal Court Full Fed Court High Court Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1984 • abolition of Repatriation Review Tribunal • creation of Veterans’ Review Board and right of appeal toAdministrative Appeals Tribunal and then right of appeal to Federal Court of Australia Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions March 1985 — Repatriation Commission v O’Brien (High Court) • claim can be accepted even without any evidence to support it. • possibility of connection to service can be ‘left open’ by the evidence. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions March 1985 — Repatriation Commission v O’Brien (High Court) • claim can be accepted even without any evidence to support it. • possibility of connection to service can be ‘left open’ by the evidence. May 1985 — Mini budget • retain beyond reasonable doubt only for those who renderedoperational or peacekeeping service but claim not to be granted unless a reasonable hypothesis is raised by thematerial and that hypothesis had not been dispelled. • all other claims determined to decision-maker’s reasonable satisfaction. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1986 — Veterans’ Entitlements Act 1986 enacted • no presumption of entitlement. • no onus on any party. • deemed to be satisfiedbeyond a reasonable doubt if areasonable hypothesisis notraised by the material. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1986 — Veterans’ Entitlements Act 1986 enacted • no presumption of entitlement. • no onus on any party. • deemed to be satisfiedbeyond a reasonable doubt if areasonable hypothesisis notraised by the material. 1987 — East v Repatriation Commission (Full Federal Court) • a reasonable hypothesis must be more than a possibility, though not proved on the balance of probabilities, consistentwithknown facts. • a reasonable hypothesis must notbe fanciful, impossible, incredible, not tenable, too remote too tenuous. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1992 — Bushell v Repatriation Commission (High Court) • ‘raising’ a reasonable hypothesis does not involve deciding the facts, merely whether the material raises facts that, if true, the hypothesis would be reasonable. • it would be exceptional if a hypothesis were not held reasonable if proposed by an eminent medical practitioner in the relevant field of expertise. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1993 — Byrnes v Repatriation Commission (High Court) Step 1: Do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1993 — Byrnes v Repatriation Commission (High Court) Step 1: Do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? Step 2: If a reasonable hypothesis is established, the claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1994 — Legislative reaction to Bushell’s case Creation of Repatriation Medical Authority (RMA) and Statement of Principles (SoP) system by which: • a hypothesis cannot be reasonable unless upheld by a SoP determined by the RMA • a decision-maker cannot be reasonably satisfied of connection to service unless the contention of connection is upheld by a SoP determined by the RMA Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1998 — Repatriation Commission v Deledio(Full Federal Court) as modified byBull v Repatriation Commission(2001) (Full Federal Court) Step 1: consider all the material and determine whether it points to a hypothesis. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1998 — Repatriation Commission v Deledio(Full Federal Court) as modified byBull v Repatriation Commission(2001) (Full Federal Court) Step 1: consider all the material and determine whether it points to a hypothesis. Step 2: decide whether the RMA has made a SoP. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1998 — Repatriation Commission v Deledio(Full Federal Court) as modified byBull v Repatriation Commission(2001) (Full Federal Court) Step 1: consider all the material and determine whether it points to a hypothesis. Step 2: decide whether the RMA has made a SoP. Step 3: decide if the hypothesis is reasonable by reference to East criteria, and if there is a SoP, it must fit the template of that SoP. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1998 — Repatriation Commission v Deledio(Full Federal Court) as modified byBull v Repatriation Commission(2001) (Full Federal Court) Step 1: consider all the material and determine whether it points to a hypothesis. Step 2: decide whether the RMA has made a SoP. Step 3: decide if the hypothesis is reasonable by reference to East criteria, and if there is a SoP, it must fit the template of that SoP. Step 4: if the hypothesis is reasonable decide whether it is disproved beyond reasonable doubt. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board History of Evidentiary Provisions 1998 — Repatriation Commission v Deledio(Full Federal Court) as modified byBull v Repatriation Commission(2001) (Full Federal Court) Step 1: consider all the material and determine whether it points to a hypothesis. Step 2: decide whether the RMA has made a SoP. Step 3: decide if the hypothesis is reasonable by reference to East criteria, and if there is a SoP, it must fit the template of that SoP. Step 4: if the hypothesis is reasonable decide whether it is disproved beyond reasonable doubt. Byrnes Step 1 Byrnes Step 2 Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules • Aims of the study • Method of data collection • Results Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Aims of the study: Central question: Parliament has provided for more beneficial standards of proof for particular classes of veterans. Does the requirement to apply different standards make a real difference? The study aimed to assess the effect, if any, on case outcomes of: 1. the different standards of proof and different SoPs; 2. the relaxed rules in s 138 (equivalent to s 119); and 3. the pre-1977 evidentiary rules (‘benefit of the doubt’), as they are applied, or might be applied, by Veterans’ Review Board (VRB) members. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Study Method: VRB members were asked, over a 6 week period, to complete a questionnaire each time they decided an entitlement matter. The survey asked: • one set of questions if the claim was GRANTEDunder the reasonable HYPOTHESIS rules; and • another set of questions if the claim was REJECTEDunder the reasonable SATISFACTION rules. The questions were designed to test how the outcome in each case might have been affected if the rules had been different. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Participation in the survey — the response rate: Over the 6 weeks there were: 720 hearings involving 3 members per hearings; 60% involved entitlement issues; with an average of 1.2 entitlement issues per hearing; 80% involved reasonable hypothesis; 20% involved reasonable satisfaction; 18% of entitlement matters of each type were granted.There were potentially 224 reasonable hypothesis responses; and 255 reasonable satisfaction responses. Actual responses were 103 and 119, respectively. Thus nearly a 50% participation rate by VRB members. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Questions if claim granted under reasonable hypothesis rules: 1A. Would the result have been the same if you had applied the reasonable SATISFACTIONstandard with thereasonable HYPOTHESISSoP? 41% Yes 27% Maybe 32% No Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Questions if claim granted under reasonable hypothesis rules: 1A. Would the result have been the same if you had applied the reasonable SATISFACTIONstandard with thereasonable HYPOTHESISSoP? 41% Yes 27% Maybe 32% No 32% of grants would have been rejected. 27% of grants might have been rejected. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Questions if claim granted under reasonable hypothesis rules: 1A. Would the result have been the same if you had applied the reasonable SATISFACTIONstandard with thereasonable SATISFACTIONSoP? 42% Yes 16% Maybe 42% No Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Questions if claim granted under reasonable hypothesis rules: 1A. Would the result have been the same if you had applied the reasonable SATISFACTIONstandard with thereasonable SATISFACTIONSoP? 42% Yes 16% Maybe 42% No 10% more cases would have been rejected. The different SoP increased the certainty of rejection. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Questions if claim granted under reasonable hypothesis rules: 1C. Did the s 138 rules affect the result? s 138(1) provides that VRB:– is not bound by rules of evidence– must act according to substantial justice and the merits, taking into account difficulties in deciding facts, e.g., due to:· passage of time· availability of witnesses· deficiency in official records 30% Yes 6% Maybe 64% No Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Questions if claim granted under reasonable hypothesis rules: 1C. Did the s 138 rules affect the result? s 138(1) provides that VRB:– is not bound by rules of evidence– must act according to substantial justice and the merits, taking into account difficulties in deciding facts, e.g., due to:· passage of time· availability of witnesses· deficiency in official records 30% Yes 6% Maybe 64% No 30% of grants would have been rejected. 6% of grants might have been rejected. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Questions if claim granted under reasonable hypothesis rules: 1D. If YES or MAYBE to 1C, which s 138 rule(s)? Of the 36% who answered that the decision to grant may have been affected by s138, the following factors influenced the decision: 11% Hearsay 26% Passage of time 17% Unavailable witnesses 37% Deficient records 9% Other Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Questions if claim rejected under reasonable satisfaction rules: 2A. Would the result have been the same if you had applied the reasonable HYPOTHESISstandard with the reasonableSATISFACTIONSoP? 64% Yes 18% Maybe 18% No Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Questions if claim rejected under reasonable satisfaction rules: 2A. Would the result have been the same if you had applied the reasonable HYPOTHESISstandard with the reasonableSATISFACTIONSoP? 64% Yes 18% Maybe 18% No 18% of rejections would have been grants. 18% of rejections might have been grants. Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board Empirical study of effect of relaxed evidentiary rules Questions if claim rejected under reasonable satisfaction rules: 2B. Would the result have been the same if you had applied the reasonable HYPOTHESISstandard with the reasonableHYPOTHESISSoP? 59% Yes 11% Maybe 30% No Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Veterans’ Review Board