Claire Clutterham (Sturt, Australian Labor Party) Share this | Hansard source

I rise to speak on the Defence Amendment (Defence Honours and Awards Appeals Tribunal) Bill 2025. The Australian honours and awards system recognises the outstanding service and contributions of Australians who have served in the Australian Defence Force. Recipients of awards are granted insignia as a visual expression of the honour conferred on them, and there are guidelines for the order in which awards are worn, noting that many defence personnel have been the recipients of multiple awards. Defence honours and awards recognise the exceptional service, sacrifice and achievements of members of the Australian Defence Force and of veterans and reflect the bravery, merit and dedication so many current and former service personnel have demonstrated. Gallantry, distinguished service, campaign participation and long service are all celebrated and acknowledged pursuant to Australia's honours and awards system.

The Defence Honours and Awards Appeals Tribunal is an independent statutory body established under the Defence Act 1903 to consider matters relating to defence honours and awards. Following a decision of the Department of Defence regarding a person's eligibility for a defence honour, defence award or foreign award, a person is able to apply to the tribunal for an independent review of that decision. General award and honour eligibility issues can also be referred to the tribunal by the government for inquiry and recommendation.

In short, the tribunal has two important functions. Firstly, there is the review function, whereby individuals are able to apply to the tribunal for review of a decision regarding eligibility for an honour, defence award or foreign award. Secondly, there is the inquiry function, whereby the government can refer issues to the tribunal for inquiry and recommendation. With respect to the first function, the review function, the past 14 years saw the tribunal review over 350 individual decisions relating to defence honours, defence awards and foreign awards. With respect to the second function, the inquiry function, the tribunal has assisted the government to explore 30 unresolved, complex issues through this process. There is no suggestion that, in exercising these functions, the tribunal has acted with anything other than integrity, honesty and fairness.

The review function involves the tribunal considering what is called a reviewable decision, as defined in the Defence Act. Decisions are reviewable if certain relevant conditions are satisfied, those being that the decision is or was a refusal to recommend a person or a group of persons for different award categories in relation to eligible service. Eligible service is service in the Defence Force or service under the control of or at the direction of the Defence Force or a member of the Defence Force. The different award categories are defence honour, defence award or foreign award. The tribunal has now been operating for well over a decade; that means it is important to review its operations to ensure that it does remain fit for purpose and to ensure that any issues or concerns about its operations are considered and addressed.

This Defence Amendment (Defence Honours and Awards Appeals Tribunal) Bill 2025 would operate to amend the arrangements that affect the first function of the Defence Honours and Awards Appeals Tribunal, that being the review function, to address these concerns and to make the tribunal more fit for purpose. It is important to note that the Defence Amendment (Defence Honours and Awards Appeals Tribunal) Bill 2025 makes no changes to the process that is used for the inquiry function. This process is detailed and considered, remains unchanged and is underpinned by a broad approach to consultation.

With respect to this function, if the government refers general eligibility issues relating to defence honours and awards to the tribunal for inquiry, terms of reference are established and they are published on the tribunal's website. Then the inquiry commences with a national call for submissions to address the terms of reference that have been established. Submissions might contain facts, opinions, arguments or recommendations. Public hearings are then convened, and some submitters—be they individuals or representatives from a group or an organisation—may be invited to give oral evidence to the tribunal to assist it in its deliberations.

There are no time limits for inquiries. The time that is required is dependent on a range of specific factors relevant to the inquiry, including the breadth of the terms of reference, the number of submissions received in response to those terms and the number of people called upon to give oral evidence to the tribunal to assist it with its independent deliberations. Typically, a minimum of 12 months is required for an inquiry to be finalised.

With respect to the review function, the scope of the current legislation is broad. It enables reviews of decisions for actions since 1939—85 years ago—and does not limit who can apply for a review. Understandably, given the passage of time since 1939, both the Department of Defence and the Defence Honours and Awards Appeals Tribunal have identified issues with sourcing appropriate evidence that is relevant to a decision to confer an award when witnesses and many of the commanders and other participants of the day are no longer available to establish a definitive record of what took place.

On 3 July 2024, the Senate referred an inquiry into the defence honours and awards system to the Foreign Affairs, Defence and Trade References Committee, which tabled its report in June 2025. It produced six recommendations in relation to a range of issues, including a review of part VIIIC of the Defence Act 1903 to improve the tribunal's review functions but complement its continued operational independence.

To assist the Defence Honours and Awards Appeals Tribunal in their review function, this bill amends the jurisdiction of the tribunal as set out in the Defence Act in a number of productive ways. Firstly, the bill updates the time period for which the tribunal can review awards and honours recognition by limiting to those with a clear interest in such recognition those who are able to seek a review of Defence decisions regarding the conferral of awards and honours. This update is achieved 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, so that the operations are better aligned with other contemporary review bodies. At present, no time limits apply on when a review by the tribunal can be sought after a refusal decision has been made by Defence. This creates the uncertain situation where 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.

This bill creates a reasonable and practical 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, but that is appropriate in this case, as the timeframe reflects the fact 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 a review beyond this timeframe in exceptional circumstances—for example, if an applicant has a serious health condition.

So that progress, certainty and closure are achieved and to assure a more efficient and effective use of tribunal resources, the bill removes the ability for the tribunal to refer a decision regarding a defence award or foreign award back to the Department of Defence, although 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; 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 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 in the first instance is given high levels of scrutiny, often relates to serious misconduct and is made by the Crown or the Crown representative. Accordingly, it is not appropriate for such decisions to be reviewable.

To formalise transparency, which underpins several of the six recommendations made by virtue of the referral by the Senate to the Foreign Affairs, Defence and Trade References Committee, this 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.

A further significant amendment prescribed by this bill that is designed to focus the tribunal's efforts on reviewing and validating contemporary evidence, where living witnesses can contribute to the review process, is the provision 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. The effect of this is that refusal decisions relating to some conflicts, including World War II, the Korean War, the Vietnam War and other more historic conflicts, will no longer be reviewable by the tribunal. Recommendations made to government about a defence honour will be refocused on eligibility for the honour, rather than the current system of making broader recommendations regarding honours and awards, which is properly the scope of the tribunal if an inquiry is being conducted—a process that is unchanged by this bill.

This bill will uphold the respect and integrity of the defence honours and awards system by removing the risks associated with making decisions in circumstances where it is impossible or at least incredibly difficult to refer to proper documentation or speak with decision-makers of the day. Evidence supporting eligibility is critical in promoting the integrity of the honours and awards system. Not only is contemporaneous evidence important in establishing a proper factual basis for making a decision, but reliance on and recourse to contemporaneous evidence builds trust and helps avoid bias, guesswork and conjecture. Verifiable and validated evidence backs up and supports the theory of the case being examined.

The Defence Honours and Awards Appeals Tribunal is unique to Australia. No other Commonwealth country has an independent review tribunal for their defence honours and awards decisions. Australia will continue to lead the way in ensuring this recognition is conducted in a transparent and fair manner which ensures public confidence in the system. Designed to promote the efficient and effective use of tribunal resources, with a focus on reviewing decisions about contemporary actions, the amendments proposed by this bill are reasonable and appropriate.

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