David Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | Hansard source

I commence by stating that the opposition supports these amendments, with some qualification. The purpose of the Defence Legislation (Miscellaneous Amendments) Bill 2008 is to make amendments to the Defence Act 1903 for three separate measures. The first of these three measures will amend the Geneva Conventions Act 1957 and the Criminal Code Act 1995 to implement the third protocol to the Geneva conventions in Australian legislation. The second measure will amend section 124 of the Defence Act 1903 to explicitly enable the making of regulations to cover the provision of medical and dental treatment, including pharmaceuticals, to an ADF member or cadet or a member of the family of an ADF member. The third measure amends the Defence (Special Undertakings) Act 1952 to insert a new part to provide specific arrangements for the joint defence facility at Pine Gap.

The bill was read for the second time in the House of Representatives on 3 December 2008 and subsequently passed through that House on 10 February without amendment. The bill was referred to the Senate Standing Committee on Foreign Affairs, Defence and Trade and the report was dated 20 February 2009. The first schedule of the bill makes amendments to the third additional protocol to the Geneva conventions and is supported by the opposition, as I have indicated. On 8 March 2006, Australia signed the protocol additional to the Geneva conventions of 12 August 1949 relating to the adoption of an additional distinctive emblem for the Red Cross-Red Crescent Movement, which is called protocol III. On 9 May 2007, the treaty on the protocol additional to the Geneva conventions of 12 August 1949 and relating to the adoption of an additional distinctive emblem, protocol III, at Geneva on 8 December 2005 was tabled. The treaty proposes that Australia takes binding treaty action to ratify the protocol additional to the Geneva conventions of 12 August 1949 and relating to the adoption of an additional distinctive emblem. The Joint Standing Committee on Treaties reviewed the treaty and conducted a hearing on 18 June 2007. The committee’s report to parliament was tabled on 16 August 2007.

The Red Cross has extensively lobbied many senators to support this legislation. This part of the legislation amends the third protocol, as I have indicated, so as to recognise the red crystal in situations where the red cross could be considered culturally inappropriate, obviously predominantly in Islamic countries. The red crystal emblem has no religious, ethnic, racial, regional or political connotations, and the amendment ensures that the new emblem is used only with the consent of the Minister of Defence. The bill also amends the Criminal Code Act 1995 to ensure that the new Geneva emblem is covered by existing offences relating to the improper use of emblems of the Geneva conventions. The protocol includes a description of the new emblem, indicative and other uses of the emblem and, annexed to the protocol, a pictorial representation of the red crystal emblem.

Schedule 2 of the bill amends the Defence Act 1903 to explicitly enable the making of regulations to cover the provision of medical and dental treatment, including pharmaceuticals, to an ADF member or cadet or a member of the family of an ADF member. At present the Defence Force regulations contain a limited provision that merely recognises the provision of medical and dental treatment to members of the Australian Defence Force so that they are healthy for the purpose of discharging their duties, as well as cost recovery in specific, named circumstances. Medical and dental treatment includes the provision of services or goods, including scheduled pharmaceuticals, related to medical and dental treatment for an ADF member or cadet or a member of the family of an ADF member. In relation to pharmaceuticals, it is intended that the regulations will cover the possession, storage, supply, dispensation and administration of scheduled pharmaceuticals by ADF pharmacists, ADF medics, ADF nurses and civilian health professionals engaged by the Australian Defence Force. The effect of the amendments will ensure that the Australian Defence Force and its members are not hindered in the uniform application of their duties here and overseas by competing state or territory laws.

The contentious part of this schedule relates to a broken promise—an election promise—of the Rudd government. The health care commitment for ADF family members was set out in Labor’s plan for defence under the heading ‘Free medical and dental care for ADF families’. The promise stated:

ADF families can face significant difficulties obtaining access and to general medical and dental care for dependants, especially in regional and remote localities.

Posting to a remote location can mean that ADF families struggle to access the sort of health care that Australians enjoy.

A Rudd Labor Government will progressively extend free health care currently provided to ADF personnel to ADF dependent spouses and children.

Labor will begin this with a $33.1 million investment starting at 12 Defence Family Health Care Clinics, with a focus on remote bases locations and major regional centres.

This commitment was clearly—and has been acknowledged to have been—broken with the announcement of the government’s 2008-09 budget, which has only funded the new entitlement as a trial, allocating a mere $12.2 million over four years to trial the provision of free basic GP services and limited dental care to families of ADF members in rural and remote areas such as Singleton, New South Wales; Katherine, the Northern Territory; East Sale, Victoria; Cairns, Queensland; and Karratha, in the Pilbara region of Western Australia. The amount allocated for 2008-09 is a paltry and quite outrageous $2.4 million, with dental care limited to $300 per annum per dependant. Only five of the 10 rural and remote defence locations were mentioned—that is, excluding Townsville and Darwin. Rather than defence families attending defence family healthcare clinics at these locations, families are to ‘select the doctor or dentist of their choice’.

Changes to the commitment to provide defence healthcare clinics in Townsville and Darwin were also reportedly being considered, with the possibility that two defence family healthcare clinics promised in the campaign—those at Lavarack Barracks in Townsville and Robertson Barracks in Darwin—would be replaced by defence families accessing health department GP superclinics in Townsville and Darwin. No doubt in reaction and response to the public outcry from defence families that they had been completely misled by the Rudd government’s promises during the election campaign, the Minister for Defence Science and Personnel announced in October 2008 that the free ADF family healthcare trial would be expanded to include Townsville, Darwin and, in Victoria, Puckapunyal. He said:

The trial is being expanded to fully test the delivery model, and ensure the development of evidence based policy to implement the Government’s commitment to progressively extend free basic health care for ADF dependants.

The initial phase of the trial is set to commence in early 2009 for 2,700 ADF dependants within the Singleton (NSW), Cairns (QLD), Katherine (NT), East Sale (VIC) and the Karratha/Pilbara (WA) regions.

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Under the trial, ADF dependants will be able to visit general practitioners at no cost for standard consultations.

ADF dependants will also receive a benefit of $300 per dependant per annum for basic dental services.

When the trial is expanded in late 2009, it will provide for a total of approximately 16,000 ADF dependants.

While government statements have clearly limited ADF family dependants’ entitlements to visits to general practitioners at no cost for standard consultations and benefits of $300 per dependant per annum for basic dental services, this is not stated in the proposed legislation, the explanatory memorandum or the minister’s second reading speech. The bill provides for the making of regulations about medical and dental treatment for a member, a cadet or a member of the family of an ADF member. Details of the medical and dental treatment available to ADF members are contained in defence instructions issued under the authority of the Secretary of the Department of Defence and the Chief of the Defence Force.

It is not clear, however, if the nature and extent of the medical and dental treatment will be detailed in the proposed regulations or whether it will be left to the discretion of the Secretary of the Department of Defence, the Chief of the Defence Force or the individual service chiefs, as is the case currently with the relevant defence instructions. In the interest of transparency and accountability, it would be appropriate if the government would give an assurance on behalf of the minister that any medical and dental care entitlements for non-ADF personnel—that is, the families—and thus expenditure be contained in regulations subject to disallowance under the Legislative Instruments Act 2003 rather than in internal defence documents, such as defence instructions. I think that is a very clear and salient point. If anything, the recent fiasco with the SAS soldiers pay dispute highlights the fact that all of these things happening behind closed doors means that the service personnel and their families have no rights unless, as a last resort, they can come to parliament and have matters disallowed.

Turning to the last schedule of this omnibus bill, schedule 3 makes minor but important amendments that affect the joint defence facility at Pine Gap in the Northern Territory. As I have indicated, this is supported by the opposition. In the late 1960s, Prime Minister Harold Holt entered into an agreement with the United States which led to the establishment of the Joint Defence Space Research Facility, a top-secret base 20 kilometres south of Alice Springs at Pine Gap. Minister for External Affairs Paul Hasluck, as he then was, signed the agreement in December 1966. Pine Gap is run by Raytheon. As at 14 May 2008, there were 50 Australian Federal Police Protective Service officers stationed at Pine Gap. This schedule, which contains amendments to the Defence (Special Undertakings) Act 1952, has been developed to explicitly provide that the joint defence facility at Pine Gap is a special defence undertaking and a prohibited area, and it inserts a purposive clause to make it clear that the defence power is not the only constitutional basis relied upon to support the act. This measure has been developed as a consequence of protestors questioning the Commonwealth’s ability to successfully prosecute the existing offences under the Defence (Special Undertakings) Act 1952 in relation to the joint defence facility at Pine Gap.

The Pine Gap facility has been the site of many protests over some long time, generally anti-nuclear or anti United States in nature. Protesters attempting to enter the facility have generally been charged with minor summary offences. However, in May 2007, four pacifists who cut through wire fences to access the facility in December 2005 faced court charged with indictable offences under the Defence (Special Undertakings) Act 1952. They were the first to be charged upon indictment under the act. The four were convicted in June 2007 in, I think, the district court of the Northern Territory and together were fined over $3,000. But, in February 2008, their convictions were overturned by the Northern Territory Court of Criminal Appeal and His Honour Mr Justice Brian Martin found that there had been ‘a miscarriage of justice’ and that the defendants were deprived of a possible defence, namely establishing that the facility was not necessary for defence purposes, which is a threshold issue within the terms of the act. I pause to say that, having read the case, I think it would have been quite obvious to any jurist that that defence was available to the defendants and was erroneously removed from consideration by the jury.

The amendments contained within this part of the bill proceed by (a) specifically declaring that the joint defence facility at Pine Gap is, without question, a special defence undertaking and a prohibited area for the purposes of the act, leaving no matter now open to question and (b) inserting a purposive clause to make it clear that the parliament’s power to legislate with respect to the defence of the Commonwealth is not the only constitutional basis relied upon for the act. The amendments will specifically declare the facility a special defence undertaking and a prohibited area directly under the act rather than by the existing process—which requires a ministerial declaration—and will provide a firmer basis for any future prosecutions by removing the opportunity for argument about the validity of a declaration, as I have indicated. These protections are essential for a facility of such sensitivity and importance to Australia’s national defence and external relations in order to deter mischief makers and those with other, more sinister intent. I commend this bill to the Senate.