Wednesday, 13 February 2019
Defence Legislation Amendment Bill 2018; Second Reading
Today I rise to speak on the Defence Legislation Amendment Bill 2018. I'd like to start by acknowledging all those men and women who serve in our defence forces around Australia. We talk a lot about the assets—the submarines and ships and a whole lot of different equipment—but of course our greatest defence asset is the people that serve. They put their lives on hold to serve our country, and they deserve our respect, gratitude and support now and into the future. It is also important to recognise those who are no longer serving but who have served our country in the past.
The bill before us today seeks to improve the transparency and independence of the military justice system, to strengthen protection for reservists and to clean up some redundant provisions. Schedule 1 particularly deals with military justice and seeks to enhance the independence of judge advocates and provide greater transparency in their selection and termination.
Judge advocates are senior military legal officers appointed by the Chief of the Defence Force, or service chief, following a nomination by the Judge Advocate General. They may be appointed as the judge advocate for a court martial, assisting court martial members with the application of military law. Alternatively, they may be appointed as a Defence Force magistrate to try charges referred to the Registrar of Military Justice. These members are central to the operation of our superior service tribunals in the military justice system, and, given the importance of such roles, it is appropriate that the bill before us gives consideration to improving the independence and transparency of the selection, length of appointment, termination and remuneration of such members.
There were calls in the past for more independence for these positions. The 2016 annual report by the Judge Advocate General stated:
… the existing legislation does not provide optimal safeguards of the independence of such JA appointments: these other JA appointments are only for terms of three years, are renewable and lack the benefit of pay fixed by the Commonwealth Remuneration Tribunal.
The bill is important in addressing these issues. Under these changes, members of the judge advocate's panel will have their remuneration set by the Remuneration Tribunal, a statutory body which determines the pay of key Commonwealth officers. It is appropriate that the tribunal determines the amount of pay for judge advocates, which will enhance their independence from Defence. This bill also addresses the length of service issue noted in the 2016 report by increasing the length of service from three to five years.
It should be noted that previous Judge Advocate Generals have also called for the appointment of judge advocates to be made not by the Chief of the Defence Force but by the Governor-General-in-Council to afford them greater independence. It is important to note that this bill does not make that change. However, the opposition sees the changes in the bill as important steps in improving the independence of judge advocates, even though the CDF is still able to appoint them.
Labor has sought the views of a number of organisations, including the current Judge Advocate General, and has been advised by the government that those organisations do not oppose this bill. DFWA have also been consulted by the opposition, and they also support this bill. Therefore, we will be supporting these amendments.
In addition, there have been changes to this bill to improve the transparency of the selection criteria for judge advocates which will see the Chief of the Defence Force determine the selection criteria and the selection process for appointment to the panel via an instrument. At the moment, it is completely discretionary around these selection criteria, and so better transparency in the selection criteria and process is an important step forward. I note there were concerns raised about the fact that the selection criteria—while an important step forward in terms of transparency—do not impose a duty on the Chief of the Defence Force to determine the criteria and process for selection of judge advocates, meaning it will still rely on the willingness of the Chief of the Defence Force to utilise this provision. In addition, consideration of criteria such as diversity is discretional, as it only requires the Chief of the Defence Force to have regard to the desirability of reflecting diversity of expertise, experience and gender among the members of the panel. We understand the concerns that have been raised. However, we believe that transparency in the process of selecting judge advocates is important, so, while the change may not impose an obligation on the Chief of the Defence Force, it is still worthwhile to proceed with it.
In addition, the bill goes to transparency around termination: changes will also be made to clarify the termination provisions. Currently, there is no direct provision for the termination of judge advocates. Rather, they are subject to the same regulations as Defence personnel, which enable them to dismiss members if needed. These changes will provide for the termination of an appointment which is consistent with the standard provisions of the termination of statutory appointments. This is an important step in the right direction, ensuring that independence of the judge advocate is preserved. Concerns have been raised with regard to the termination provision in this bill as it still enables the Chief of the Defence Force to remove a judge advocate by terminating their appointment as an officer, essentially going around these termination provisions. While it's correct that this power does exist, the opposition believes that this provision will provide greater transparency around the termination of appointments than what currently exists. For that reason, we support the amendment.
Transparency matters—such as the criteria under which people are appointed, how long they are appointed for, how they are paid and how they are terminated—are important to ensure that there continues to be faith in the military justice system, and, as such, we support the changes in this schedule.
Schedule 2 will enshrine protections for reservists in the act by moving existing complaint mechanisms, investigations and mediation schemes for reservists into the principal act. Reservists are fundamental to maintaining Australia's defence capability, and help safeguard our security and national interests. Reservists provide support to the ADF, help rebuild following natural disasters, deliver humanitarian support overseas, and deploy alongside our regular ADF members in times of war. They are vital to our capacity and it is important that they are not disadvantaged by their participation in the ADF.
Currently, Defence reservists have a number of protections to assist with their civilian employment and education, and to mitigate some of the employment and financial disadvantages some reservists can face when rendering Defence service. Schedule 2 proposes moving these protections from the regulations into the principal act, as recommended by the Senate Standing Committee for the Scrutiny of Bills. These changes will insert a new division into the act based on the complaint and mediation scheme currently in the regulations. The scheme will be simplified and improved by these changes.
Some of these changes include reducing the prescriptive provision for complaint handling and investigation, replacing them with broad discretions of the Chief of Defence Force to deal with complaints and investigations. One of these changes relates to the investigation of complaints that would give the Chief of Defence Force the power to compel civilians and employers to provide information or documents; seek a civil penalty from a relevant court if a person fails to produce the information or documents; and direct a person to attend a conference and, if the person fails to attend, seek a civil penalty.
This element has caused some concern, as it has been argued it's uncommon to give the Chief of Defence Force power over civilians during peacetime. However, the government has advised the opposition that this power already exists in regulations for this act, and there are several examples in both acts and regulations where powers exist that enable the Chief of Defence Force to compel citizens during peacetime. These include the Defence (Inquiry) Regulations 2018, which compel both civilians and military members to provide documents or things that are relevant to inquiries; and section 86 of the Defence Act 2003, which can apply penalties if people fail to appear as required by a summons under the Defence Force Discipline Act 1928. In addition, the government has advised that this provision is for the Chief of Defence Force to exercise a statutory power and is not a use of his command executive powers that would give rise to any constitutional or other concern.
It is because of these assurances that Labor supports this element of the bill that moves regulations into the principal act. As a consequence of moving these provisions into the act itself, a number of the regulations will become redundant. Most of these are due to sunset later this year, but two of the regulations that are not moving into the act will need to be remade. These two remaining regulations deal with financial arrangements.
In addition, the amendments in this schedule will also require the Chief of Defence Force to prepare a report in relation to the administration operation of the act for inclusion in the Defence annual report. This is an important addition. Given the significance of the role our reservists play and the importance of the regulations that enable their participation, it is appropriate that this act be reviewed annually and a report be made public. I understand the Defence Reserves Association is in support of these changes and gives assurance around broader issues that have been provided by the government. Under those circumstances, Labor offers support to this schedule.
I would like to thank both the Australian Defence service associations and the Defence reservists for their examination and independent feedback of the proposed changes. In addition, I would like to acknowledge the assurances provided by the government in relation to judge advocates and the use of powers to compel civilians by the Chief of Defence Force which enable us to support this bill.
In closing, I will end where I started. I would like to thank all of those who serve our country. The service provided by approximately 83,700 members of the ADF and reservists, and all those family members who stand by them, is fundamental to the protection of our country and is appreciated by all of those in this place. I commend the bill to the House.
I would like to thank the member for Kingston for the way in which she conducts herself in a bipartisan approach, generally speaking, in this important portfolio. This bill delivers on two things which I believe should be critical priorities for any national government: delivering fairness in our military legal system and looking after those who volunteer to serve our nation in the Australian Defence Force.
The ADF is full of dedicated, hardworking and professional people. I've been fortunate to meet many of them during my time in this place. I've taken part in a number of exchanges and activities under the ADF Parliamentary Program, including spending some time with our personnel in Afghanistan. As a member of the Defence Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade, and in my work on the Parliamentary Standing Committee on Public Works, I've had further opportunities to work closely with our ADF personnel.
Our soldiers, sailors and air men and women are some of the best trained and most disciplined in the world. In any large organisation like the ADF, especially one which by its nature involves stressful work under pressure, individuals will occasionally make less than optimal decisions. Some people will fall foul of the rules, and when they do a court martial stands ready to assess the facts of the case and pass judgement. Although a court martial has special procedures most appropriate to the administration of military justice, it remains ruled by our society's core legal principles. One of the most important legal principles that underlies our justice system is the independence of our judiciary. To deliver fairness in legal proceedings, judges must be independent from the state's prosecution arm. It is that independence which helps to ensure the judiciary's impartiality, and impartiality is at the heart of fairness. In civilian life a judge has tenure. There is clarity of their remuneration structures and, at least in some jurisdictions, there is a transparent process in respect of their appointment.
The effect of schedule 1 of this bill is to enhance the independence of these processes in the military judicial structure to further secure fairness in the cases that come before it. The bill will increase the maximum term of appointment for members of the judge advocates' panel, who sit as Defence Force magistrates and provide legal advice to court martial members, from three years to five years. It will also provide for the Chief of the Defence Force to set selection criteria and processes for the appointment of judge advocates to the panel in a notifiable instrument. This will support a more open selection process, providing transparency for all in how candidates apply and how they are assessed.
The bill also ensures that remuneration for judge advocates when acting during a court martial is determined by the remuneration tribunal rather than by the ADF, ensuring that judge advocates do not depend on the chain of command for their pay. This will bring the process of setting remuneration of judge advocates in line with the process for the Registrar of Military Justice and the Chief Judge Advocate, ensuring consistency and clarity as well as maximising their independence. The rules and procedures of these courts are set by the Judge Advocate General, who is supported in their work by the Chief Judge Advocate. Once again, this bill makes similar provisions enhancing the independence of that position. The bill provides for the Judge Advocate General to lay out, in a notifiable instrument, the selection criteria and process for the role. It provides for more-robust processes for the termination of the Chief Judge Advocate where necessary, which are consistent with the standard provisions for termination of statutory appointments.
Taken as a whole, the amendments in schedule 1 will bring greater guarantees of fairness to the military justice system. They are part of this government's growing track record of bringing greater fairness to all aspects of our national policy making. We have brought fairness to our taxation policy, eliminating bracket creep for low- and middle-income earners and cracking down on multinational taxation avoiders. We've brought greater fairness for vulnerable workers, passing legislation to punish employers who exploit them and banning dodgy deals between employers and unions. We've brought greater fairness to industrial relations, reinstating a tough cop on the beat in the construction sector and reducing exploitation of workers by the criminal CFMEU. We have increased fairness in the distribution of GST with a more equitable and sustainable funding formula and greater fairness in medical treatment, listing an additional 1,900 medicines on the Pharmaceutical Benefits Scheme.
The contrast with the Labor Party and the Leader of the Opposition is stark. While we've introduced fairer taxes, the Leader of the Opposition wants to slug retirees with a huge new multibillion-dollar tax. He wants to ensure that high-income earners on $200,000 a year can get a refund on their franking credits, but a self-funded retiree who has done the right thing and saved for their future will get nothing. While we've introduced fairer taxes for small businesses and more opportunity for society's vulnerable jobless, Labor's tax plans threaten 1.4 million workers' jobs and will undermine the investment decisions—
The speaker might turn his remarks to the bill. We will give him some leeway. I note that he started off with a plea for bipartisanship. The last several minutes have had no relation to the bill which is before the House.
So while schedule 1 of the coalition government's bill will support greater fairness in the administration of our military justice, schedule 2 will improve fairness and security in the treatment of reservists who render defence service.
Reservists are a vital part of our Defence Force and are commonly required to interrupt their lives and their employment to go on active duty alongside regular service men and women. I met a number of the most amazing, dedicated reservists who had given up nine months of their lives and served their country in Afghanistan. I met neurosurgeons, emergency medicine specialists, dentists, lawyers and a chaplain—to name just a few. Often in the process of rendering this service these men and women sacrifice career opportunities as well as their personal lives, and existing legislation provides them with some critical entitlements and protections to mitigate some of the impact of these sacrifices. However, unfortunately, sometimes reservists may not feel that those entitlements and protections have been complied with and complaints sometimes arise. In fact, in 2017-18 there were some 1,400 inquiries of this nature.
I recently had a discussion at one of my listening posts with a retired reservist—I'll call him Tim—who served in the Solomons. Tim felt that a number of his needs weren't being properly met by the DVA, and I undertook to look into that for Tim. Tim personifies what being a reservist is all about. He has a common day job but has served his country in the Solomon Islands and other places where he experienced some graphic and very unfortunate circumstances which stay with him every waking moment of his life. This bill will go some way to improving the reservist complaint process. I want to give a shout-out to Tim and thank him once again for the service that he has given this country.
This improved complaint process makes the handling of complaints the responsibility of the Chief of the Defence Force, ensuring that accountability for looking after reservists lies with the ADF's most senior officer. The bill provides the Chief of the Defence Force with the necessary powers to investigate complaints of this kind and, indeed, any suspected breach of the relevant act, including the power to give notices to produce information or documents. The bill further provides the Chief of the Defence Force with the flexibility to deal with complaints in the most appropriate manner. In particular, it broadens the ability of the Chief of the Defence Force to deploy dispute resolution services other than formal mediation and gives them the power to compel parties' attendance at a conference to facilitate discussion.
These powers will help ensure that complaints are dealt with as quickly, fairly and efficiently as possible and, by extension, that as many reservists as possible get good employment outcomes following their active service. This is only the latest in this Liberal-National government's strong track record of delivering support for transition and future employment for those who have served in our armed forces. In total, in the most recent federal budget the government committed more than $11 billion to provide the essential services that our veterans rely on. This is accompanied by a substantial package of reforms. We've instituted a policy of no discharge without documentation, for example, to ensure ADF members are prepared for civilian life and future employment with all the documents they need, including medical and training records, to make transition as seamless as possible. We've delivered an extra $8 million for the Prime Minister's Veterans' Employment Program, which includes a new veterans employment commitment to which businesses can sign up. This program will help veterans to identify employers who are likely to support them and will reward employers for their insight. To help further, we've established individual professional career coaching for ADF members prior to and up to 12 months following separation from the ADF.
Employment prospects for veterans can often be improved by further education. We've allocated $10.8 million to remove the reduction in the amount of incapacity payments which eligible veterans who are undertaking approved full-time study as part of their rehabilitation plan receive. There's much more to be done in this space, and I'll continue to encourage the government to examine ways that Australia can look at adopting a US-style GI bill.
Employment outcomes for veterans can also be significantly impacted by their mental health, and we've taken action to support them in this regard. The coalition government has made mental health treatment free of charge for anyone who has served at least one day full time in the ADF, whatever their mental health condition, and whether or not the condition is related to their service. We're funding a coordinated veterans care program for mental health, which will support up to 250 DVA clients living in rural and regional areas who have mild-to-moderate anxiety or depression, alongside a chronic physical condition accompanied by pain. In total, we've committed an extra $89.6 million to support veterans' mental health, including $16.1 million for a new veterans payment for financially vulnerable veterans living with a mental health condition; $9 million to pilot new approaches to suicide prevention; and $7.1 million to extend support to families of veterans. To administer all of these programs we have provided an additional $100 million in the 2018 budget, on top of the $166.6 million last year to support the coalition government's improvements to DVA, upgrading internal computer systems and making sure we have faster and better service delivery to people when they need it.
There are an estimated 15,000 veterans living on the Sunshine Coast, and I'm absolutely passionate about ensuring we support our armed forces—both those who are serving and those who have served. In my own electorate of Fisher I've introduced a Fisher defence industry initiative to try to support new employment opportunities for former service men and women on the Sunshine Coast. I've held a local veterans forum, instituted a Sunshine Coast Veterans Day and advocated in this place for more support for veterans' tertiary education.
I believe this bill, though modest in its effect, will make important changes to the administration of military justice and the handling of reservists' complaints, which will see greater fairness for all ADF personnel. For that reason, I commend the bill to the House.
I have made it known in this place many times that I am proud and honoured to represent the largest garrison city in Australia. But the recent extreme weather event in Townsville has demonstrated to me just how amazing and committed our community of ADF are to the people of Townsville, and that is just another reason why I am honoured to represent the ADF constituents in Herbert.
Townsville has experienced our worst flood event in history. It's being called a one-in-1,000-years event. In fewer than nine days Townsville received more than a year's worth of rain. More than 22,000 homes were affected, and 110 roads were also affected. The ADF played a major role in ensuring that lives were not lost in this catastrophic weather event. The men and women of the ADF doorknocked thousands of homes, advising residents that they were in a flood zone and would need to evacuate their homes. They spent evenings rescuing residents from the sudden wall of water that would flow from the dam and also the rain that was falling. Our dam had reached a capacity of 244 per cent. Our ADF personnel put their own lives at risk to rescue Townsville residents, and they did so when many of them were not able to even protect their own homes. An estimated 100 Defence personnel were affected by the floods. A newspaper article said:
LANCE Corporal Daniel Hyman of the 2nd Cavalry Regiment is one of the many Townsville based personnel who helped residents evacuate as their own homes were inundated.
Displaced Defence families were being housed in evacuation centres as their loved ones worked—
to save and help other residents. The article continued:
LCpl Hyman said the ordeal has been physically and mentally taxing but was proud of the Army's efforts.
"I put it to the back of my mind and tried not to think about what was happening … there were people who needed our assistance more, so we had to put our stuff aside so we could help the community," he said
"I was very happy that we were out there to help our community, we put the community first."
However, the ADF's amazing efforts have not stopped there. Since the devastating flood, ADF personnel have spent every single day assisting in the clean-up, making their way through mountains of smelly mud, walking through sewage, removing the mountains of damaged furniture from people's homes and assisting with the disposal. Their efforts have helped Townsville residents and have been vital in helping Townsville get back on our feet. In this place, it's important that we acknowledge their amazing work. I want to sincerely thank all of our current serving Defence personnel and their families. You looked after Townsville, and I will work hard to ensure that you and your families are looked after also and to assist you to get back on your feet.
I am proud to support the Defence Legislation Amendment Bill 2018 in the House today. This bill amends the Defence Reserve Service (Protection) Act 2001 and the Defence Force Discipline Act 1982 to help improve transparency, ensure protections for reservists and clean up some redundant provisions.
Schedule 1 will enhance the independence of judge advocates and provide greater transparency in the selection of judge advocates. Judge advocates are senior military legal officers appointed by the Chief of the Defence Force or a service chief following nomination by the Judge Advocate General. They may be appointed as the judge advocate of a court martial, assisting court martial members with the application of military law. Alternatively, they may be appointed as a Defence Force magistrate to try charges referred to them by the Registrar of Military Justice. Members of the judge advocates panel are central to the proper operation of the superior service tribunals in the military justice system. The amendments made in this section will ensure transparency in the selection of judge advocates and greater independence when it comes to their remuneration. Under these changes, members of the judge advocates panel will have their remuneration determined by the Remuneration Tribunal, establishing an independent process to determine their pay. In addition, the selection criteria will be established by a notifiable instrument, providing greater transparency in the selection and termination of their appointments.
Schedule 2 moves existing complaint mechanisms, investigations and mediation schemes for Defence reservists from the regulations into the principal act. Defence reservists are afforded a number of protections in their civilian employment and education, mitigating some of the employment and financial disadvantages that reserve members may face when rendering Defence service. Reservists are fundamental to our capability, and we should be doing all we can to ensure that there are no barriers to their participation in the ADF. The amendment will insert new divisions into the act based on the complaint and mediation scheme currently in the regulations. The scheme will be simplified and improved by these changes.
The final schedule makes a number of minor technical amendments, most of which relate to redundant and repealed provisions. For example, the amendments will update the definition of 'prohibited drug' to reflect other legislation and provide for court martial records to be disclosed by the Registrar of Military Justice rather than the Attorney-General. Given the technical nature of these changes, I offer my support to this schedule.
I have spoken in this place on every single Defence or veteran bill because our current serving and ex-serving veterans and their families deserve the strongest representation and assurance that they have a member who stands up for them in this place. I stand here again today, as I have done many times before, to support a bill that supports our Defence personnel. Once again, I thank the men and women of the ADF for the outstanding contribution they have made in Townsville in recent events.
In summing up, I would like to acknowledge the honourable members who contributed to the debate on this bill, acknowledge the bipartisan support shown in the second reading debate, and also acknowledge the member for Herbert's contribution in particular, in relation to the contribution our Australian Defence Force personnel have made in response to the Townsville flooding event. The efforts of our serving men and women have been nothing short of extraordinary. Lives have been saved as a direct result of their intervention. Their efforts during the response phase and now the recovery phase have been commended right across our country, and we're very proud of them. We are also particularly proud of their families, many of whom have themselves been exposed to flooding and have had to deal with their own situations while their serving member of the Defence Force has gone out to protect the community. It has been quite an extraordinary effort.
The Defence Legislation Amendment Bill 2018 has three separate measures. The first measure amends the Defence Force Discipline Act 1982 to ensure greater transparency in the selection of the members of the judge advocate's panel and to enhance the independence of judge advocates. The second measure amends the Defence Reserve Service (Protection) Act 2001 to move the complaint, investigation and mediation scheme from the regulations to the act, whilst simplifying and improving these processes. The third measure also amends the Defence Force Discipline Act, making number of technical, flow-on and minor amendments.
In conclusion, this bill moves to make some small but significant changes to Defence legislation. I commend the bill to the House.
Question agreed to.
Bill read a second time.