Matt Keogh (Burt, Australian Labor Party, Minister for Veterans’ Affairs) Share this | Hansard source

KEOGH (—) (): I move:

That this bill be now read a second time.

Defence Amendment (Defence Honours and Awards Appeals Tribunal) Bill 2025

I am pleased to present to the House today the Defence Amendment (Defence Honours and Awards Appeals Tribunal) Bill 2025.

Background to the Tribunal

Australia established its own national honours system in 1975 under the Whitlam government. Prior to this, Australian Defence Force personnel were only eligible to receive defence honours or awards—medals—under the United Kingdom imperial system.

In 1991 the system was updated by the Hawke government, with the introduction of the Victoria Cross for Australia and a number of gallantry decorations, distinguished service decorations and unit citations.

A further unique part of the Australian honours system was the establishment of the Defence Honours and Awards Appeals Tribunal in Australia in 2011 by the Gillard government, the only tribunal to independently review decisions made within Defence in relation to defence honours and awards.

The tribunal has two important functions.

The first is a review function, whereby individuals are able to apply to the tribunal for review of a decision regarding eligibility for a defence honour, defence award or foreign award.

The second is an inquiry function, whereby the government can refer issues to the tribunal for inquiry and recommendation.

A defence honour recognises a form of gallant, courageous or distinguished service, often for bravery in warlike or other specific hazardous operations for individuals or units.

A defence award is usually awarded for length of service or a participation in a specific operation or theatre.

A foreign award is any foreign award given by any country for which an Australian Defence Force member may be eligible; however, this broad definition creates difficulties where the awarding of the award is not actually within Australia's power. As such, only those foreign awards that are set out in the regulations will be reviewable by the tribunal.

The government is committed to continuing this proud tradition to ensure that there is an appropriate avenue of review of Defence decisions when it comes to ADF members and veterans' medallic recognition.

For the past 14 years, the tribunal has assisted government to explore 30 unresolved complex issues through its inquiry function and reviewed over 350 individual decisions relating to defence honours, defence awards and foreign awards.

Overview of amendments

After well more than a decade of operation, it is necessary to ensure that the tribunal remains fit for purpose and to address a number of concerns that have been raised by the tribunal itself and others over time in relation to its operation.

There are no changes made that affect the inquiry function of the tribunal. This function remains as a ministerial directed avenue to explore complex issues within defence honours and awards.

However, to assist the tribunal in their review function, this bill amends the jurisdiction of the tribunal as set out in the Defence Act 1903in a number of important ways: by updating the time period for which the tribunal can review medallic recognition, by limiting who is able to seek a review of Defence decisions to those with a clear interest in such medallic recognition and by focusing the functions of such a review on eligibility.

The amendments also modernise the operations of the tribunal, including in relation to the time allowed to seek a review of a Defence decision.

Importantly, the bill will not remove the tribunal's ability to review refusal decisions relating to defence honours, defence awards or foreign awards. What the bill will do is redefine the relevant time periods in relation to reviewable decisions.

Amendments to update time period t ribunal can review

Currently, a person can seek a review of a defence honour and award by the Defence Honours and Awards Appeals Tribunal when they are dissatisfied with a decision regarding a defence honour, defence award or foreign award concerning conduct or service dating all the way back to the commencement of our involvement in the Second World War—3 September 1939—a time when our Defence Force members were only actually eligible for imperial awards.

The difficulties of making assessments regarding defence honours and awards for historical actions are considerable, given the senior members of the time are often sadly no longer with us and therefore objective evidence is difficult to obtain and verify. This is the case with nearly all 20th century conflicts that Australia has been involved in.

There has also been an 'end of roll' process, or similar, undertaken after the conclusion of such major 20th century conflicts by Australian defence authorities.

In order to avoid the tribunal being put in a position where it is having to review Defence decisions where it is having to rely on very imperfect evidence, the bill amends the time period that the tribunal can review in three ways depending on the nature of the honour or award and the nature of the operation that the relevant Defence member was participating in.

Going forward, the tribunal will only be able to review a Defence decision to decline a defence honour, operational service award or foreign award if the application to Defence for the medal was made within 20 years of the relevant operation ending.

Where the Defence decision to decline a defence honour or award relates to an operation that does not have an end date or is not operational in nature, the relevant service said to be relevant for such an honour or award must have been within the last 20 years of an application having been made to Defence.

This gives an applicant a reasonable period of time to apply for a defence honour, operational service award or foreign award, and to seek a review of any refusal decision.

This means if a member served on an operation that ended in 2021, and had sought a decision from Defence regarding an honour or award regarding service in that operation by 2041, they would be able to seek a review of a refusal decision by the tribunal.

The exception to the 20-year period is for length of service awards. These are awards that recognise a member's length of service with the Australian Defence Force (ADF).

The bill provides that a refusal decision relating to a length of service award will be reviewable up until the member has, or would have, turned 100 years old. This is an appropriate and inclusive measure and ensures that current and former serving personnel, their families, and other personal representatives can continue to seek a review of decisions relating to length of service awards for a significant period of time, even after the death of the relevant Defence member, without being entirely open ended.

To provide flexibility and to ensure the framework remains fit for purpose, the bill will enable regulations to shorten these 20-year and 100-year threshold periods in the future if required.

Amendment to who can seek a review by the t ribunal

The bill also amends who can make an application to the tribunal for a review. Currently, anyone that made an original application to Defence can seek a review of that decision and there is no restriction on who can make such applications to Defence in the first place.

With increasing frequency, applications are being made to Defence for the issuing of a defence honour or award or for the upgrading of a defence honour by academics and amateur historians with no connection to the member or their family.

Such applications, subsequent refusals and resultant tribunal hearings can serve to create unnecessary angst and concern with family members of a deceased Defence member, long since passed away, for no objective benefit. However, if the family themselves wish to have the matter reviewed, that should and will remain open to them.

For a defence award and foreign award, the bill provides for a suitably broad range of potential applicants. This includes the affected person, their immediate family member, or, if the member is deceased, an executor, administrator, trustee of the estate or other personal representative of the affected person.

For a defence honour, given the discretionary nature of such medals, only an ADF member that is, or was, more senior in the chain of command, or an ADF member or veteran who was an eyewitness to the action or service, may apply for a review, provided they have the consent of the member under consideration or their immediate family.

An individual will not be permitted to seek a review in relation to a defence honour for themselves.

Amendment to focus review function of t ribunal

The bill amends the functions of the tribunal so that its recommendations to government regarding a defence honour are focused on eligibility for the honour rather than making broader recommendations regarding the honours and awards system, which is properly the scope of the tribunal if conducting an inquiry, or recommendations concerning other aspects of service or government decisions that are not relevant to the question of eligibility per se.

Amendments to modernise operations of the t ribunal

Currently, there is no time limit on when a review by the tribunal can be sought after a refusal decision has been made by Defence. This means a review by the tribunal could be sought now for a decision to refuse a defence honour or award that was made sometime last century.

The bill creates a six-month time limit to seek such a review.

The six-month timeframe is significantly longer than the usual period for seeking a review of a government decision by a tribunal. This is appropriate as it takes into account that there could be a range of reasons why a person might need more time to prepare for and seek such a review.

The tribunal will also be able to accept applications for review beyond this timeframe in exceptional circumstances—for example, if an applicant has a serious health condition.

In order to avoid a loop of Defence decisions, followed by tribunal reviews, further Defence decisions and further tribunal reviews, the bill also removes the ability for the tribunal to refer a decision regarding a defence award or foreign award back to Defence. However, the tribunal retains the power to either affirm the original decision or set it aside and replace it with a new decision.

The bill also clarifies that a decision regarding a previously cancelled defence honour, defence award or foreign award is not reviewable by the tribunal. A cancellation decision is already not reviewable under the Defence Act 1903. However, under the current framework, a subsequent application relating to a previous cancellation decision is considered a reviewable decision.

The intent of this amendment is to correct this anomalous situation by ensuring that a decision regarding a previously cancelled defence honour, defence award or foreign award is not a reviewable decision. A cancellation decision is given high levels of scrutiny, often relates to serious misconduct and is made by the Crown or their representative. Accordingly, it is not appropriate for such decisions to be reviewable.

To ensure transparency, the bill will also require the tribunal to prepare an annual report for tabling in parliament. The tribunal already voluntarily prepares an annual report, so this measure formalises the current practice.

The bill also enables regulations to provide for the conduct of reviews of reviewable decisions or inquiries conducted by the tribunal.

This measure represents a way to address certain proposals raised by the tribunal during consultation. The intent is for regulations to be made to support the tribunal with administrative matters that would better enable the tribunal to deal with applications made to it.

The chair of the tribunal must be consulted before any regulations are made that affect the practice, procedure or operation of the tribunal. Importantly—and acknowledging the independence of the tribunal's decision-making—the bill also provides that the regulations must not direct the tribunal or tribunal members in relation to the performance or exercise of the tribunal's or members' functions or powers.

The bill will commence on proclamation, or six months from royal assent.

The application and savings provisions of the bill generally provide for the current law to continue to apply where the original application to Defence is made before the commencement of the bill. Those who apply to Defence after the commencement of the bill and then seek a review of that decision will be dealt with under the new law as amended by this bill.

Recently, the Foreign Affairs, Defence and Trade References Committee held an inquiry into the Defence honours and awards system and made several recommendations to government for consideration. I would like to thank the committee for their time and consideration on this matter.

Recommendation 6 of the committee's report recommended that Defence and the tribunal work together to undertake a review of part VIIIC of the Defence Act 1903to improve the tribunal's review and inquiry functions, whilst ensuring that the tribunal continued to operate independently.

The tribunal was consulted throughout the development of the bill, and, while not all of its specific recommendations have been adopted, its input has been invaluable in shaping the legislation, which seeks to largely achieve the same aims as the tribunal's recommendations.

These amendments will maintain the independent review process but will focus the tribunal on reviewing contemporary matters where objective evidence and living witnesses can contribute to the review process, instead of historical matters.

The bill will prevent reviews being undertaken when the member or their family have no involvement or awareness of the application.

The bill will protect the integrity of the defence honours and awards system by removing the risks of decisions being made when it is difficult, if not impossible, to refer to proper documentation or speak with decision-makers of the day.

The amendments are reasonable, appropriate, and ensure that the tribunal is focused on reviewing decisions about contemporary actions, with modern functions that are fit for purpose.

Importantly, the amendments proposed as part of this bill do not prevent the government issuing recognition to the tens of thousands of ADF members that are recognised annually. Nor does the bill prevent Defence itself from reviewing or upgrading honours or awards.

Rather, this bill will provide for the continuation of a proud tradition of recognising Australian Defence Force members for their service as a prerogative of the Crown, while ensuring refusals are transparent and justifiable before an independent tribunal.

I commend the bill.

Debate adjourned.

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