Standard of proof
120 Standard of proof
Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
This subsection is affected by section 120A.
Where a claim under Part IV:
in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member; or
in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to British nuclear test defence service rendered by the member;
the Commission shall determine that the injury was a defence‑caused injury, that the disease was a defence‑caused disease or that the death of the member was defence‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
For member of a Peacekeeping Force, peacekeeping service, member of the Forces, hazardous service and British nuclear test defence service see subsection 5Q(1A).
This subsection is affected by section 120A.
In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
that the injury was a war‑caused injury or a defence‑caused injury;
that the disease was a war‑caused disease or a defence‑caused disease; or
that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
This subsection is affected by section 120A.
Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
This subsection is affected by section 120B.
Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
an injury suffered by a person is a war‑caused injury or a defence‑caused injury;
a disease contracted by a person is a war‑caused disease or a defence‑caused disease;
the death of a person is war‑caused or defence‑caused; or
a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
In this section:
hazardous service means service in the Defence Force, before the MRCA commencement date, that is of a kind determined in writing by the Minister administering section 1 of the Defence Act 1903 to be hazardous service for the purposes of this section.
This provision refers to the regulations (the regulations
). Made under this Act:
- Veterans' Entitlements (Rehabilitation Allowance) Regulations · under s 216
- Veterans' Entitlements Regulations 1986 · under s 216
26 more instruments made under this Act are listed on the Act’s overview.
This Act’s bill:Second reading speech
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