No. 11/1945:

MILITARY SERVICE PENSIONS (AMENDMENT) ACT, 1945

ARRANGEMENT OF SECTIONS

1 Interpretation.

2 Retrospective amendment of certain provisions of the Act of 1934.

3 Appeals against certain orders of the High Court relating to reports of the Referee.

4 Application of subsections (3), (4), (5), (6) and (7) of section 2 of this Act to reviews under sections 8 and 13 of the Act of 1934.

5 Cesser of powers of Minister under section 8 (5) and 13 (1) of the Act of 1934.

6 Short title and collective citation.

AN ACT TO AMEND THE MILITARY SERVICE PENSIONS ACT, 1934.

[29th March, 1945.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

1.—(1) In this Act, the expression "the Act of 1934" means the Military Service Pensions Act, 1934 ( No. 43 of 1934 ).

(2) This Act shall be construed as one with the Act of 1934 .

2.—(1) Section 6 of the Act of 1934 shall have effect as if the following subsection were substituted for subsection (1):—

"(1) There shall be established a committee to be styled and known as the Advisory Committee (in this section referred to as the Committee), each member whereof shall, if so requested by the Referee, assist him, in such manner as he may request, in the exercise of his functions under this Act.".

(2) Subsection (4) of section 8 of the Act of 1934 is hereby amended by the deletion of the words "before the Referee".

(3) Nothing in the Act of 1934 or in any regulations or rules made thereunder shall be construed as—

( a ) requiring the Referee, in investigating an application for a service certificate,—

(i) to summon the applicant, or

(ii) to hear the applicant, or

(iii) to be present at any time when the applicant is being heard, or

( b ) prohibiting the Referee, in investigating an application for a service certificate, from authorising or permitting a person to hear the applicant.

(4) Nothing in the Act of 1934 or in any regulations or rules made thereunder shall be construed as—

( a ) requiring the Referee, in investigating an application for a service certificate,—

(i) to make inquiries from any person, or

(ii) to summon any person who is not the applicant, or

(iii) to hear any person who is not the applicant, or

(iv) to be present at any time when any person who is not the applicant is being heard, or

( b ) prohibiting the Referee from investigating and reporting on an application for a service certificate, notwithstanding that—

(i) there is a vacancy amongst the members of the Advisory Committee, or

(ii) a member of the Advisory Committee is temporarily incapacitated from performing his duties as such member, or

( c ) prohibiting the Referee, in investigating an application for a service certificate, from authorising or permitting a person to hear any person who is not the applicant.

(5) The Referee, in investigating an application for a service certificate, shall not be obliged—

( a ) to inform the applicant of any evidence or information obtained as the result of inquiries made by the Referee or on his behalf or furnished by any person, or

( b ) to allow any person to be present at any time when any other person is being heard, or

( c ) to afford the applicant an opportunity of tendering rebutting evidence.

(6) The Referee in making his report on an application for a service certificate may take into account any evidence or information which is in his opinion relevant.

(7) ( a ) References in subsections (3) and (4) of this section to hearing a person shall be construed as including references to—

(i) examining that person,

(ii) receiving representations made by, or on behalf of, that person,

(iii) taking evidence (whether on oath or otherwise) from that person.

( b ) References in subsections (3), (4) and (5) of this section to a time when a person is being heard shall be construed as including references to a time when—

(i) that person is being examined,

(ii) representations are being made by or on behalf of that person,

(iii) evidence (whether on oath or otherwise) is being taken from that person.

(8) The preceding subsections of this section shall be deemed to have come into operation on, and shall have effect as on and from, the 13th day of September, 1934.

(9) Where a conditional order of certiorari, directing the Minister to send before the High Court for the purpose of being quashed a report of the Referee on an application for a service certificate, has been made absolute by order of the Supreme Court or the High Court made before the 1st day of February, 1945, the following provisions shall have effect—

( a ) the application shall be again investigated and a report made thereon by the Referee as if subsections (1), (2) and (3) of this section had not been enacted,

( b ) if—

(i) before the making of the said order of the Supreme Court or the High Court, a pension under the Act of 1934 was granted to the applicant, and

(ii) as a result of the report made in pursuance of paragraph (a) of this subsection a pension under the Act of 1934 is granted to the applicant,

then, any payments made on foot of the first-mentioned pension shall be treated as payments on foot of the second-mentioned pension.

3.—Where—

( a ) a conditional order of certiorari has been granted directing the Minister to send before the High Court for the purpose of being quashed a report of the Referee on an application for a service certificate, and

( b ) the conditional order has been made absolute by an order (in this section referred to as the absolute order) of the High Court made at any time during the period commencing on the 1st day of February, 1945, and ending on the date of the passing of this Act,

then, whether or not any further order or orders to quash the said report or allowing costs or otherwise is or are made (whether before or after the passing of this Act) in the matter by the High Court, the following provisions shall have effect—

(i) the Minister may, notwithstanding any rule of court, appeal, within twenty-eight days after the date of the passing of this Act, to the Supreme Court against the absolute order and such further order or orders (if any),

(ii) if the Minister so appeals and the appeal is allowed, no costs in the High Court or the Supreme Court shall be awarded to, or recoverable from the Minister by, the prosecutor, but the Supreme Court may make such order as it thinks fit for the payment to the Minister by the prosecutor of the costs of the Minister in the High Court or the Supreme Court or in both.

4.—(1) Subsections (3), (4), (5), (6) and (7) of section 2 of this Act shall apply to a review by the Referee under subsection (5) of section 8 or subsection (1) of section 13 of the Act of 1934 as fully as if the said subsections (3), (4), (5), (6) and (7) were re-enacted in this section with the following modifications, that is to say:—

( a ) the substitution, in the said subsections (3), (4) and (5), of

(i) the words and figures "reviewing, under subsection (5) of section 8 or subsection (1) of section 13 of the Act of 1934 , a report" for the words "investigating an application for a service certificate" wherever the latter words occur, and

(ii) the words "the person to whom the report relates" for the words, "the applicant" wherever the latter words occur,

( b ) the substitution, in the said subsection (4) of the words "reviewing, under subsection (5) of section 8 or subsection (1) of section 13 of the Act of 1934 , a report and confirming or varying the report" for the words "investigating and reporting on an application for a service certificate",

( c ) the substitution, in the said subsection (6), of the words "confirming or varying, under subsection (5) of section 8 or subsection (1) of section 13 of the Act of 1934 , a report" for the words "making his report on an application for a service certificate".

(2) Subsection (1) of this section shall be deemed to have come into operation on, and shall have effect as on and from, the 13th day of September, 1934.

5.—On and after the 1st day of January, 1946, the power conferred on the Minister by subsection (5) of section 8 of the Act of 1934 and the power conferred on the Minister by subsection (1) of section 13 of the Act of 1934 shall cease to be exercisable, save in respect of any report in reference to which the Minister has, before the said date, received an application or request for the exercise of that power.

6.—This Act may be cited as the Military Service Pensions (Amendment) Act, 1945, and the Military Service Pensions Acts, 1924 to 1944, and this Act may be cited together as the Military Service Pensions Acts, 1924 to 1945.