Meadows. The important question which arises in the first instance is whether the standard of proof "beyond reasonable doubt" applies to claims for pensions under Part II of the Act or whether some other standard applies. A standard which is not as high as proof beyond reasonable doubt but which is higher than proof on the balance of probabilities. We will say that the Full Court of the Federal Court has found that there is a standard of proof which falls somewhere between the proof beyond reasonable doubt standard and proof on the balance of probabilities and that involves an erroneous construction of the statute.

The other three matters which we say are of importance are of more general application and the first is whether the stated intention of Parliament, as reflected in the second reading speech of the Minister, can affect the proper construction of legislation; that is, can the plain or established meaning of words in the legislation be discarded iun favour of a meaning which is more attuned to the stated intention of Parliament.

The third matter of importance is whether the Administrative Appeals Tribunal can properly draw inferences adverse to the applicant in proceedings of an administartive nature, where there is no onus on the applicant to put any material before the decision maker, where the respondent is under a duty to fully investigate the claim and place all relevant material before the decision maker and where the standard of proof beyond reasonable doubt is applicable to the decision-making process.

And finally, whether the Administrative Appeals Tribunal, having informed itself of the existence of certain material, should have obtained that material or invited the applicant or the respondent to place that material before it.

In our submission, section 120 makes it clear that the criminal standard of proof is applicable and it uses expressions and concepts related to that standard of proof which have either a plain or established meaning. Now, the Full Court, in upholding the view of the Administrative Appeals Tribunal held that a different standard applied.

BRENNAN J. You derive the standard, I take it, from subsection (1), is that correct?

Meadows. Yes, Your Honour.

BRENNAN J. But then you have got subsection (3) which is superimposed upon subsection (1), directing the decision which is to be made?

Meadows. No, it does not direct the decision which is to be made, Your Honour, it says that certain things must be done by the decision maker before it reaches the point of making a decision as to whether or not there are insufficient grounds.

BRENNAN J. Does it not say that "the Commission shall be satisfied that there is no sufficient ground for determining"? So that if the qualification is satisfied, the Commission has no discretion, but it must be satisfied that there is no sufficeint ground for determining A, B, C. So the whole operation of subsection (1) is hinged upon whether or not the words [in subsection (3)] are fulfilled or otherwise.

Meadows. That is right Your Honour.

BRENNAN J. That seems to me a long way from saying that it is simply a beyond reasonable doubt proposition derived from subsection (1).

Meadows. With respect, Your Honour, when one looks at subsection (3) in context, we would say that it involves concepts which are well known to the criminal law in determining whether or not something has been proved beyond reasonable doubt and that one must go to the decisions in the criminal law context to understand what is intended by subsection (3). And what the Full Court has done is to say, so far as subsection (3) is concerned:

Now we say that what that conveys is that there is some standard other than proof beyond reasonable doubt to be applied, but which is not as high as proof on the balance of probabilities.

DAWSON J. Does it not just mean that there has to be a starting point?

Meadows. No, Your Honour, it does not just mean that. With respect, it means that in order for there to be the required degree of satisfaction, then there must be on the material before the decision maker evidence as to the particular service of the veteran which raises a reasonable hypothesis which, in our submission, means no more than it raises a reasonable doubt as to the required connection.

The expression "reasonable hypothesis" in the criminal law, is one which is used in connection with circumstantial evidence. There may be a number of hypotheses that are raised or left open - in our submission, the choice of words is not relevant - by known facts; some consistent with innoncence and some which are not. If those consistent with innocence are not dispelled by other evidence, then the accused is entitled to an acquittal. And this is no different from saying, in our submission, that if the evidence raises or leaves open a possibility which is neither fantastic nor unreal that the accused is innocent, then the accused is entitled to an acquittal and we would refer to Green v The Queen (1971) 112 CLR 29. This is well illustrated by the judgments of this Court in the Chamberlain case, in particular, by what Their Honours Chief Justice Gibbs and Justice Mason said at pages 567 and 568. There Their Honours talked about the hypotheses of innocence which might arise from the circumstantial evidence which was before the Court in that case. And they talked in terms, at pages 567 and 568, of a reasonable hypothesis, and at pages 570 and 573, Mr Justice Murphy used the term "rational hypothesis" in the same context.

DAWSON J. When you are talking about a reasonable hypothesis in the criminal law, you are talking about a reasonable hypothesis consistent with innocence and in talking about that, you are doing no more really than reformulating the simple rule that the prosecution has to prove its case beyond reasonable doubt, because a hypothesis consistent with innocence is inconsistent with proof beyond reasonable doubt. Indeed, that is said in Grant's case and Green's case, but here it is a different concept altogether, is it not? We are not talking about innocence at all, because innocence is, of course, inconsistent with guilt; we are talking in terms of the connection between the injury, disease or death with the circumstances of the service. So that what is said in the criminal law, namely, that this is no more than to put in different terms the proposition that the Crown has to prove its case beyond a reasonable doubt, does not apply here.

Meadows. What we say in the context of this legislation is not the consistency with innocence but the consistency with guilt, in the sense of the connection between war service and death. So that if it is not proved beyond reasonable doubt that there is no connection, then the applicant is entitled to the pension. Because of the reversal of the onus and the reversal of the standard of proof as contained in the Repatriation Act, what is applicable for the criminal law is reversed.

DAWSON J. These are difficult concepts, I know, but you are not looking - as you are in the criminal law - at the end point here, you are looking for a starting point and if there is a hypothesis which you can postulate, then you have got a starting point and at the end you will consider whether or not the necessary things have been proved beyond reasonable doubt. But the hypothesis is a hypothesis pointing to the same thing, not inconsistent with it.

Meadows. If I could reverse the proposition then and apply Your Honour's reasoning to the criminal law, with the case where circumstantial evidence is the only evidence that exists, then you take the same approach. You examine what are the reasonable hypotheses that are open on the evidence and if those hypotheses are not dispelled beyond reasonable doubt, then it follows that the charge has not been proved beyond reasonable doubt and it is the same procedure.

DAWSON J. We are talking about something different. It would be analogous if you said the Crown has to prove a prima facie case and, in that sense a hypothesis, before the case even goes to the jury, which of course it does. That is analagous to the situation, not the hypothesis relating to innocence which has an effect on the ultimate verdict.

Meadows. Well, with respect, Your Honour, we would say that it you reverse that and apply the same approach to the repatriation, you have a hypothesis of guilt, in the sense of a connection between a war service and death and that the same principles apply.

BRENNAN J. Well, if we were to adopt that approach, I suppose we could take, as an analogy, the case where a person is accused of homicide and the death is proved, but it is proved that the deceased at one stage went into the company of the accused or, taking another set of facts, that the accused punched the deceased and taht the deceased died of a crerbral haemorrhage. But it is not perfectly established that the cerebral haemorrhage was caused by the punch, it may have been due to natural causes. Now, in the second of those cases, there is no doubt, if there was no proof that the punch caused the death, that the accused would be entitled to be acquitted because there would be a hypothesis consistent with innocence. If you appled that to the Veterans' Entitlements Act, there is no doubt either that the veteran would be entitled to recover because the material had raised a hypothesis that was consistent with the connection between the two. But take the case where the deceased simply went into the presence of an accused person, there was nothing to connect the accused person with the death. Then you would say, I suppose, that at criminal law, the accused is entitled to be acquitted, as undoubtedly he would. But putting that into the present situation of the veteran's entitlement, one could scarcely say that it had not been proved beyond reasonable doubt that there was no connection between the acts of the accused and the deceased - the material simply did not give rise to the hypothesis of guilt.

Meadows. But, Your Honour, if it be the case that the accused was simply seen to be in the company of the victim, then the accused would be entitled to an acquittal. If you apply that same analogy to repatriation, it must follow that the applicant is entitled to ...

BRENNAN J. The proposition that you wish to advance is this: once you have got the fact of death of a veteran, then unless it is proved that the death was not connected to the service, he is entitled to recover.

Meadows. If it is proved beyond reasonable doubt that there is no connection, yes, he is entitled to recover.

BRENNAN J. That seems to me to give no effect at all to the words of subsection (3) which speak about the material raising the hypothesis.

Meadows. Well, if you go back to your example of being found in the company or being seen in the company of the victim, now that raises a number of hypotheses - well, just two relevant ones: one that whilst he was in the company of the victim he murdered him and another that whilst he was in the company he did not murder him. Both of those hypotheses are raised or are open on the evidence and that is why the accused would be entitled to an acquittal.

GAUDRON J. That equates an hypothesis with a possibility, and the Act with which we are concerned speaks of a reasonable hypothesis.

Meadows. It does, Your Honour. We would equate reasonable hypothesis with a real possibility, or at least a possibility which is neither unreal nor fanciful.

GAUDRON J. Well, would you not still, on the wording of subsection (3), have to find material which points to a real possibility before it becomes necessary to ask whether or not the tribunal is satisfied beyond reasonable doubt that there is no connection?

Meadows. No, Your Honour. We would disagree with that proposition, with respect. It is not necessary for there to be material which points to a connection. It is sufficient if it arises from the evidence which is before the tribunal.

GAUDRON J. As a real possibility?

Meadows. Yes. That is a real possibility in the sense that that expression is used in the criminal law.

BRENNAN J. What work then do you give to subsection (3) to do in a case where you have the fact that the deceased was a veteran and the fact that he died and nothing else?

Meadows. Well, it may be that on that evidence it would be open for a tribunal to say that there was no connection.

BRENNAN J. How could it?

Meadows. I am not suggesting that it necessarily should but it would be open to it to do so. But we are not talking about a case such as that here. We are talking about a case where we know what the deceased died from; we know that that is a disease of unknown aetiology; there is some evidence which suggests that environmental factors as yet unidentified can be incriminated in the development of this particular condition. And we would say that in that context it was open for a finding to be made that a reasonable hypothesis arose from that evidence as to a connection between the war service and death.

DAWSON J. Well, you would say that but the argument that you are putting is really that you do not have a starting point at all. You come to the standard of proof which is beyond reasonable doubt right at the beginning when you are considering whether there is a reasonable hypothesis. Now, they are two entirely different things. You can put right to one side any question of the standard of proof when you are considering whether ther is a reasonable hypothesis and look at that quite separately under the section. That is entirely different from the criminal law when you come to look at the existence of a hypothesis consistent with innocence at the end when you are answering the final question. This is a separate question to be asked at the beginning irrespective of what the end question is going to be.

Meadows. Yes, Your Honour, but if you get to the point of asking whether there is a reasonable hypothesis and it does arise on the evidence, then you move to the next step.

DAWSON J. You do not move to the next step unless you can say there is a reasonable hypothesis. If there is not, you stop at that point.

Meadows. You could never get to the point of saying that it has been proved beyond reasonable doubt.

DAWSON J. We are not concerned with proof beyond reasonable doubt at that point.

Meadows. In the Chamberlain case at page 606, Your Honour Mr Justice Brennan, said:

The reason I cite that passage is that Your Honour has there acquainted hypothesis with inference and that in the context of circumstantial evidence that where it can be reasonably inferred from the primary facts that innocence exists then that is, in the context of the criminal law, a reasonable hypothesis.

What we say about subsection (3) is it does not change the standard of proof. It merely directs the decision maker to look at the particular circumstances of the veteran's war service and that a reasonable hypothesis in this context means no more than a real possibility existing of a connection between death and war service. We would see nothing in Your Honour's dissenting judgment in O'Brien's case which is inconsistent with the propositions that we have put. In our submission, what Your Honour was concerned to do there was to examine the effect of a total lack of material and not to say anything inconsistent with the general principles of proof beyond reasonable doubt and, indeed, the concept of a reasonable hypothesis in that connection, and that what Your Honour had to say about reasonable hypothesis is entirely consistent with the well understood position under the criminal law. So, what we will say is that the criminal standard of proof beyond reasonable doubt applies and that the Full Court fell into error in saying that some other standard applied, which it did.

BRENNAN J. When you say, "which it did", you are referring to that passage that you have already directed us to?

Meadows. And also, of course, in that it was there agreeing with the approach taken by the Administrative Appeals Tribunal where it said:

Now, we would say that that goes too far if one looks at section 120(3), and that if one looks at what the Full Court said, we are left with a position where some other standard of proof is to be applied.

I refer Your Honours to the way in which this is being applied by the Administartive Appeals Tribunal. In Re Johnston and the Repatriation Commission, a decision of the Administrative Appeals Tribunal in this State, one can see the way in which the Tribunal is applying it. They said:

Now, the other point that we would make in this connection is that reference was made in the judgments to the second reading speeches of the Minister. The significance which was attributed to these passages is the statement by the Minister that it was intended to overrule the decision in O'Brien's case. This, we would submit, raises an important question as to when reference can be made and what influence can the speeches have on construing words which do have a plain or established meaning. We would make two points in that respect: first, that recourse to the second reading speech cannot be had for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision is to be construed as ambiguous or obscure or, in its ordinary meaning, leads to a result that is manifestly absurd or unreasonable and neither of these conditions exist in this case. Our authority for that is Billing's case (1986) 68 ALR 416 at page 420. In our submission, the ordinary meaning of words convey that the criminal standard of proof is to apply and no refinement of that standard of proof is open. And that, if the Minister believed that Your Honour Mr Justice Brennan was saying anything different about the standard of proof to be applied, then he was mistaken. It might have been the government's intention to overrule O'Brien's case, but they did not choose the language to do so. In our submission, the government has misunderstood or misconceived what Your Honour Mr Justice Brennan had to say.

We would say that everything which Your Honour said in O'Brien's case was consistent with the principles to be applied in relation to the standard of proof beyond reasonable doubt and that if anything different from that is to be said to flow from the legislation as it is now drafted, then it would be inconsistent with that approach and inconsistent with those principles.

I turn now to the question of adverse inferences and this raises some most important issues, in our submission, regarding the conduct of administrative proceedings. We would say that it is inappropriate to draw adverse inferences in a case such as this under the Veterans' Entitlements Act. The passage which we complain about is where the Administrative Appeals Tribunal said:

And of course, from that an adverse inference was drawn and if one sees what the Full Court said:

And they refer to Jones v Dunkel. In our submission, that is not an approach which is available or proper under the Administrative Appeals Tribunal Act or, indeed, yunder the Veterans' Entitlements Act. In a case where there is no onus on an applicant, where there is a duty on the respondent to fully investigate the claim and where a criminal standard of proof applies, it is inappropriate to draw an adverse inference against an applicant.

Now, Jones v Dunkel, we would say is of no relevance, it being a civil case involving the question of an inference of negligence from a failure to explain and we would submit that it is not appropriate to draw such an inference in a case involving the criminal standard of proof and if it is allowed to stand, this particular proposition, this case will be authority for that proposition in all matters before the Administrative Appeals Tribunal involving the Veterans' Entitlements Act.

The Full Court says that the approach that was taken by the Administrative Appeals Tribunal as complained of, was not objectionable and they go on:

So we would submit that that is a clear sanction of what the Administrative Appeals Tribunal did and carries with it the message that adverse inferences or implications can be made where there is an absence of evidence where the applicant was in a position to call evidence.

BRENNAN J. Well, I am not sure that it does go that far. If it did go that far, I think there might be some substance in your argument. Does it not simply say this: The Tribunal did not speak of onus so, therefore, there was no question of adversarial conduct of the litigation. "It ... observed that there was no evidence of the particular matters." And therefore, there was no material before the Tribunal and that if there had been something in this additional point which the applicant may have wished to agitate, then one would have thought that the applicant might have done something about it. Not doing anything about it, the Tribunal was justified in assuming that there was nothing in that additional point which required investigation.

Meadows. There is more to it than that because the Court goes on to say thatthere was any evidence available her which would have assisted her case, the inference being that the evidence would not have assisted her case.

BRENNAN J. The converse is not quite the same as the first proposition, is it?

Meadows. With respect, Your Honour, that if it is true to say that the implication is that any evidence available to her would not assist, it follows that the evidence which would seem to be available presumably was of no assistance to her case but we would go further than that, Your Honour.