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VETERANS' ENTITLEMENTS ACT 1986 - SECT 120

Standard of proof

             (1)  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.

Note:          This subsection is affected by section 120A.

             (2)  Where a claim under Part IV:

                     (a)  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

                     (b)  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

                     (c)  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.

Note 1:       For member of a Peacekeeping Force , peacekeeping service , member of the Forces , hazardous service and British nuclear test defence service see subsection 5Q(1A).

Note 2:       This subsection is affected by section 120A.

             (3)  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:

                     (a)  that the injury was a war-caused injury or a defence-caused injury;

                     (b)  that the disease was a war-caused disease or a defence-caused disease; or

                     (c)  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.

Note:          This subsection is affected by section 120A.

             (4)  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.

Note:          This subsection is affected by section 120B.

             (5)  Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

                     (a)  an injury suffered by a person is a war-caused injury or a defence-caused injury;

                     (b)  a disease contracted by a person is a war-caused disease or a defence-caused disease;

                     (c)  the death of a person is war-caused or defence-caused; or

                     (d)  a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

             (6)  Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

                     (a)  a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

                     (b)  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.

             (7)  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.



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