Skye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | Hansard source

I rise to speak on the Defence Legislation Amendment (2017 Measures No. 1) Bill 2017. The bill comprises four schedules, which seek to apply a commonsense approach to Defence prohibitive substance testing, to expand and strengthen protections for reservists, to add contemporary definitions of children and to apply reclassifications for those who leave Defence. Finally, the bill includes measures to transfer certain functions from the Royal Australian Navy to the Australian Geospatial-Intelligence Organisation.

The first schedule of the bill amends the Defence Act 1903 to streamline the policy framework by broadening and expanding the conditions under which a positive test result must be disregarded due to circumstances relating to the appropriate usage of over-the-counter medication and substances administered or dispensed by authorised persons. This is a commonsense measure that is supported by the Nick Xenophon Team.

Schedule 1 also repeals sections 101 and 104 of the Defence Act and substitutes a new proposed section 101 which simplifies the process leading to the termination of a defence member to align with the provision contained in the Defence Regulation 2016 and provides for procedural fairness during the termination decision-making process. A defence member retains redress of grievance provisions contained in the regulation, including the possible investigation by the Inspector-General of the Australian Defence Force and the Defence Force Ombudsman. Currently, defence members and defence civilians who test positive for a prohibited substance, even if they took a prescribed over-the-counter medication, are required to show cause as to why they should remain in service or why, in the case of defence civilians, they should not be terminated. However, if the same medication was administered, supplied or prescribed by a qualified medical practitioner, the act allows the result to be treated as if it were a negative.

The proposed changes to schedule 1 of the bill establish a new policy with the effect that a defence civilian's test result will be treated as negative test result when a medication has been administered by medical officers and health professionals or obtained as an over-the-counter medication, as a pharmacy medicine, pharmacist-only medicine or a general sales medicine. In addition, items 3 and 4 of schedule 1 expand on the conduct of testing for prohibited substances to include an option of a chaperone if the person being tested makes such a request. The rationale for including this provision is to provide comfort and support for the person being tested. However, the proposed subsection 95(5) states:

To avoid doubt, the test may be conducted even if the requested person is not present.

The explanatory memorandum says testing may proceed in circumstances where the request is considered unreasonable or impractical. This seems to defeat the benefit of having the option of a chaperone or a support person present in the first place. That aside, the Nick Xenophon Team is supportive of the practical measures proposed in schedule 1 that would ensure defence members and defence civilians who test positive for taking over-the-counter and prescribed medications are not unfairly penalised as a consequence.

Schedule 2 amends the Defence Reserve Service (Protection) Act 2001 to expand the protections for our reservists. The Nick Xenophon Team welcomes these measures, which have been a long time coming. The DRS(P) Act provides for protection of reservists in their employment and education to facilitate their return to civilian life after providing defence service and for related purposes. The amendments are described by Defence as being needed to mitigate some of the disadvantages reserve members face when active in defence service, because of absence from their workplace, their education provider and, in some cases, their country. The proposed measures will expand the scope of the financial liability and bankruptcy protections to apply to all operational service by reserve members. It will clarify the employment protections to give greater certainty about reserve members' rights when they are absent from employment to render defence service. It will also enhance the education protections to create an obligation on education providers to make reasonable adjustments to accommodate reserve members' defence service. This schedule introduces anti-victimisation and anti-harassment provisions to improve the experience of reserve members in their civilian workplaces and also introduces a civil penalty regime as a complement to the existing criminal offences throughout the act.

Our reservists undertake an incredible balancing act between their civilian work, their families and their reserve service. We agree with the minister when he says that no-one should be disadvantaged by choosing to wear a reserve uniform and we welcome the measures in this schedule to assist our reserve members in serving their country without concern about returning to their civilian working lives.

The DRS(P) Act was reviewed in 2008, with the protection review concluding that, whilst the act was working well overall, it did make a number of recommendations of enhancements. The government tells us that the amendments in schedule 2 implement many of those recommendations, but, until recently, the protection review had not been made public, and the explanatory memorandum is silent as to the number of recommendations implemented. However, following consultations I had with the government, the department has now made the protection review public, with the department confirming the measures in schedule 2 are a complete response to those recommendations, along with other matters raised by defence reserves.

I thank the government, in the interests of transparency and accountability, for publishing the protection review on the Defence website. It is clear that the number of reservists has been in decline over recent years. The Defence annual report for 2015-16 reported that 19,338 reserve members received pay for days served. The report showed that, while the number of service days increased from the previous year, the number of reservists undertaking paid service had in fact declined.

Major General Paul Irving, National President of the Defence Reserves Association, said in the April 2016 issue of The Australian Reservist that the Defence Reserves Association has been extremely concerned by the rapidly declining numbers in the Australian Reserves. He went on to say:

At the 2015 National Conference, we were advised that a detailed review of the Naval Reserves would be undertaken. The DRA has been critical of the state of the Standby Reserve in the three Services, particularly in the RAN. A recent review of the RAN … found that a number of members were deceased and contact details of around 90% of Standby Reservists were incorrect.

The Defence Reserves Association received 'advice emanating from the 2015 National DRA Conference that the proposed amendments to the act were moving through the "system" and should be considered by parliament in early 2015'. This did not, of course, occur, and we are finally at that juncture, over two years later.

While it took Defence 12 months to endorse the findings of the protection review, which were made in 2008, it is an indictment of both major political parties that, more than nine years later, these relatively non-controversial amendments, which received bipartisan support, are only now being considered by the parliament. These changes are supported by the Nick Xenophon Team and will improve the protections for reservists in many facets of their lives, with a view to encouraging greater retention and capability in the reserve forces.

Schedule 3 of the bill will transfer the hydrographic, meteorological and oceanographic functions of the Royal Australian Navy to the Australian Geospatial-Intelligence Organisation. Currently, the AGO's functions are limited to activities relating to geospatial and imagery intelligence. The proposed changes are in line with a recommendation from the 2015 first principles review of Defence, the focus of which was on minimising bureaucracy and maximising frontline services. The proposed changes will also permit the AGO to provide its non-intelligence products and related assistance to an expanded range of entities in accordance with Australia's legal obligations and national interests. The first principles review found:

Geospatial information management is currently under-resourced, with poorly coordinated investment, limited leadership, obscure accountability, low management prioritisation and disaggregated thinking about strategy and direction.

Current planned and future Australian Defence Force platforms and operations are all critically reliant on integrated geospatial data and services. The remediation of this key enabler is urgent.

The Nick Xenophon Team does not dispute the need to provide a coordinated approach between the various Defence geospatial functions in order to deliver better service through the integration of the associated production and distribution systems and stronger professional linkages between the maritime, land and aerospace geospatial intelligence domains under the umbrella of the AGO. The Minister of Veterans' Affairs, in his second reading speech, said:

The transfer of these functions is expected to realise synergies in the exploitation of imagery and other data to produce intelligence and non-intelligence geospatial related information in support of Australia's defence interests and other national objectives.

However, while the Nick Xenophon Team is broadly supportive of the proposed transfer of these functions to the Australian Geospatial-Intelligence Organisation, I raised concerns about the level of parliamentary scrutiny that the AGO is subjected to. On this issue, Defence has advised:

The AGO is established under the Intelligence Services Act 2001 and is subject to both parliamentary and statutory oversight similar to other intelligence agencies.

The advice continued:

The Australian Hydrographic Office is outlined and will continue to be outlined in the Defence portfolio budget statements following the merger with the AGO with intended outputs to meet Defence's obligation for providing hydrographic services in accordance with the Navigation Act 2012. Defence will also continue to provide updates on the progress and achievement of published targets during Senate Estimates.

Finally, the advice told me:

On an annual basis, the AHO publishes HydroScheme, which provides more detail on these services and related activities. Both documents are available to maritime stakeholders and the public.

On this basis, I am satisfied that the Senate and the parliament will retain sufficient oversight of the functions being transferred from the AHO to the AGO with the passage of this bill.

I also raise concerns about the Australian Geospatial-Intelligence Organisation being a body exempt from the Freedom of Information Act 1982. This means that proposed paragraphs 6B(1)(e), (ea), (f) and (h), which together comprise the AGO's revised non-intelligence functions, will also become exempt from the FOI Act. However, in consultation with the department, I have been advised that Defence will not seek to rely on the exemption in relation to AGO's non-intelligence functions without strong justifications. Defence has undertaken to apply the provisions of the FOI Act as a matter of policy to requests for access to information concerning its non-intelligence functions, and I understand that the minister will confirm this during the summing-up of this bill. I thank the government and Defence for listening to and acting on the concerns of the Nick Xenophon Team.

Finally, schedule 4 of the bill will align a small number of provisions in the Australian Defence Force Cover Bill 2015 with other military superannuation schemes and provide clarity of definitions. This schedule will ensure that members who resign from the ADF and who later find that they could have been medically discharged will be able to apply to the Commonwealth Superannuation Corporation to have their motive for discharge reassessed. The measure operates to allow individuals who were not discharged as medically unfit at the time of their discharge to apply to the CSC at a later time to consider if the grounds existed on which a person could have been medically discharged because of a physical or mental impairment that they had at the time of discharge. If the CSC is satisfied that such grounds exist then the CSC must, as soon as reasonably practical, determine the percentage of incapacity for civil employment at the time of discharge. It is entirely just and appropriate that people in this situation have the ability to have discharge circumstances reassessed. I welcome the measure and commend the government for doing so.

The Nick Xenophon Team is supportive of these changes, especially as it will benefit those suffering from undiagnosed mental health conditions. I have personally dealt with constituents who left the Defence Force as a result of an unknown medical condition, whether it was a physical or mental illness. Many of the veterans I assisted while I worked as a constituent manager for Senator Xenophon experienced difficulties. Given what we know and continue to learn about the complexities of trauma and its manifestations, coupled with our growing understanding of mental illness, it is entirely reasonable that Defence members in this situation might leave the Defence Force without being entirely aware of any underlying health issues. For many, mental illness can go undiagnosed for a very long period of time. This measure is an important step in the healing of those persons affected.

Schedule 4 will also provide for a more modern definition to allow a child of a deceased member or invalid to become eligible at a later date in circumstances where the child was found ineligible at the time of the member's or invalid's death. The government has provided the following example for this: when a child of the member is over 18 and ceases full-time study to care for the member or to undertake a gap year prior to the member's death, subsequently resuming full-time study after the member's death, while still under the age of 25. The measure amends the definition of 'eligible child' by removing the requirement that the person was wholly or substantially dependent on the invalid or member when they died. Instead, being wholly or substantially dependent on the invalid or member at the time of their death will only be one of the factors to be taken into account in determining whether a person is a child of the invalid or member.

The Nick Xenophon Team continues to support changes which seek to better the lives of Defence Force members, veterans and their families. That is why we support this bill.