Senate debates

Wednesday, 6 September 2017


Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2017; Second Reading

6:05 pm

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

I rise to speak on the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016. The purpose of the bill is to create the Safety, Rehabilitation and Compensation (Defence-related Claims) Act, the DRCA. The bill aims to duplicate the Safety, Rehabilitation and Compensation Act 1998, the SRCA, as a standalone act with amendments that will give full control of the act to the Minister for Veterans' Affairs. In his second reading speech, the minister emphasised:

… eligibility and benefits under the standalone act will be the same as those currently available to serving and former ADF members under the existing SRCA.

The minister stressed:

There are no other changes to benefits or entitlements in the new act or the enabling bill.

Currently, pensions, compensation, rehabilitation, treatment and other benefits for veterans, members of the Defence Force and their families are provided for under a labyrinth of three separate and complex legislative acts. These are the Veterans' Entitlements Act, the VEA; the SRCA; and the Military Rehabilitation and Compensation Act, the MRCA. Unfortunately, this has meant that there are inconsistencies between the three acts as they each provide for different benefits, rates of payment and different criteria giving rise to entitlements under each of those acts. These complex legislative arrangements have resulted in some ADF members and veterans being covered under multiple schemes and have contributed to the frustration, confusion and, in some cases, despair amongst the Defence Force, veterans communities, advocates and staff as they seek to navigate a legislative minefield.

We know from the Foreign Affairs, Defence and Trade References Committee's inquiry into the suicide of veterans and its report entitled The constant battle that the burden of legislative complexity and administrative hurdles impacts veterans when they are seeking support at a vulnerable period of their lives. These issues were the subject of a number of the report's recommendations that I trust the government will take up, including a systemic review conducted by the Productivity Commission into simplifying the legislative framework of compensation and rehabilitation for service members and veterans.

The VEA principally provides benefits and entitlements for those who served in wartime, particular operational deployment and particular peacetime service between 7 December 1972 and 30 June 2004. Defence personnel who served during the British nuclear tests in Australia of the 1950s and 1960s are also covered, if certain criteria are met. VEA veterans suffering an injury or disease arising from, or further exacerbated by, their full-time service and are entitled to a disability pension and medical treatment. Some veterans may also be eligible for compensation under the SRCA, offset against their pension. The SRCA provides coverage for illness, injury or death suffered as a result of peacetime and peacekeeping service from 3 January 1949 to 30 June 2004 and for periods of operational service between 7 April 1994 and 30 June 2004. The MRCA, on the other hand, covers members who served on or after 1 July 2004, providing rehabilitation and compensation coverage for warlike, non-warlike and peacetime service. The SRCA and the MRCA operate more like modern workers compensation legislation, providing rehabilitation and compensation coverage for military service related injuries, illness or death. The creation of the DRCA will mean that all three of the separate compensation acts that cover members and veterans will now come under the responsibility of the Minister for Veterans' Affairs. The passing of this bill and subsequent implementation of the DRCA will provide for a complete separation of the legislative framework for defence related claims from the Comcare scheme under the SRCA.

The bill was referred to the Senate Standing Committee on Foreign Affairs, Defence and Trade to consider its detail, given the complexity of the bill. I thank the committee for its careful examination of this bill and acknowledge the feedback provided by veterans, those that advocate for them and other stakeholders.

I note, however, that the open period for submissions was only two weeks, during which time 10 submissions were received. Submissions made to the inquiry noted the rushed nature of the inquiry process. The government must be mindful of the limited resources of many veterans advocacy groups when compared with the might of the Department of Veterans' Affairs in being able to assess and analyse proposed legislation. Whilst there had been consultation about the proposed legislation prior to its introduction, DVA officials conceded that ESORT members did not have access to the provisions of the bill until 9 November 2016, the day it was introduced into the parliament. I counsel the government that further consideration of complex legislation as it relates to Defence Force personnel, veterans and their families should be properly ventilated amongst the very people affected and the organisations that advocate for them, rather than simply going higher up the chain of command. This should occur prior to the introduction of proposed legislation. As Brian Briggs of Slater and Gordon Lawyers said in his submission to the inquiry into the bill, consulting only with organisations such as ESORT and Defence 'does not paint a holistic picture of the effects of these reforms' and 'excludes the opinions of those who are at the heart of the system and those who will be most deeply affected'. The government could do this by circulating the exposure draft of the proposed legislation on the department's website for a reasonable amount of time and call for submissions, as the Attorney-General has done recently with proposed changes to the Family Law Act.

Whilst the Nick Xenophon Team support the bill and acknowledge the commonsense approach of having all three pieces of legislation that deal with compensation and rehabilitation come under the ambit of the Minister for Veterans' Affairs, we remain concerned about aspects of this bill and its effects. The bill creates new section 121B that gives the minister the power to modify the act by way of regulation to ensure that no person, except the Commonwealth, is disadvantaged by the enactment of the DRCA. This type of provision is commonly known as a Henry VIII clause. Such clauses give the power for regulations to be made which amend, repeal or are inconsistent with the primary legislation. Henry VIII clauses are a double-edged sword because they allow the executive branch of the government unfettered power to make regulations that can modify the application of legislation without sufficient parliamentary oversight. The explanatory memorandum for the bill states that:

The regulations to be made under new section 121B may require a retrospective application and are intended to operate in a purely beneficial way to deal with any anomalies that may arise where there is a retrospective application of the [DRCA] which will need to refer to the earlier version of the [SRCA] that applied at the time for which eligibility is being determined.

Section 121B is drafted with a qualifier—that is, section 121B(2)—which provides that the minister must be satisfied that it is necessary or desirable to make such regulations to ensure that no person, except the Commonwealth, is disadvantaged by the passage of the DRCA. The department submitted that the inclusion of the Henry VIII clause was made following advice from the Australian Government Solicitor as a means of providing a remedy for any adverse consequences that may arise from the unique manner in which the DRCA was enacted. Further, the AGS recommended that regulations to modify the operation of the DRCA could be made under the clause only if the minister certified to the Governor-General that he or she is satisfied that such a modification is necessary or desirable to ensure the re-enactment of the DRCA does not place any person other than the Commonwealth at a disadvantage. In addition, any regulations which are made pursuant to section 121B are to be tabled in both houses of parliament as a disallowable instrument and to sit for 15 days before coming into operation.

The government has been clear that the intention is for the clause not to be utilised, that its inclusion is there as a fail-safe only in the event of any unintended consequences that would have left a veteran worse off. The Nick Xenophon Team notes the importance of the inclusion of this clause in the bill which can be utilised only should a person be made worse off by the DRCA's creation. We note that the regulations made under this provision of the act will only be made to the benefit of the individual, not to the benefit of the Commonwealth. On this basis, the Nick Xenophon Team supports the inclusion of this clause in the bill.

I have been negotiating with the government on providing a review mechanism for any potential regulations made should section 121B be utilised and believe this will provide an additional safety net to address any concerns. I understand that the senator acting on behalf of Minister Payne will address this during in his summing up of the bill.

During the inquiry, concerns were also raised about case law that pertains to the SRCA not being relied upon when making claims under the DRCA. On that point, Mr Briggs said:

A number of helpful cases have been fought and won in favour of veterans' rights and entitlements under the SRCA. Several of these precedents have rectified unfair and unfavourable DVA decisions regarding veterans' entitlements. As a result, the ability to refer to these important decisions by the courts has given greater certainty to veterans and has improved their access to justice … The threat posed by the DRCA is that these authoritative rulings may no longer apply, especially if the existing SRCA guidelines and policy advices are repealed, amended or revoked …

On this issue, however, the department submitted:

… the enactment provisions of the DRCA make it clear that in retrospectively applying the DRCA to the determination of a claim, it will be the version of the SRCA that was applicable at the time the injury or illness was sustained that will be used in the determination of that claim. As such, any case law (whether related to military or civilian employees), which was applicable to the interpretation and determination of the relevant provisions of the SRCA, will continue to apply for the purposes of the same relevant provisions of the DRCA.

During a hearing for the inquiry into the suicide of veterans Mr Larter, an advocate for SAS soldiers, said:

The DRCA. There is language in there that the veteran will not be disadvantaged. I'm going to give you one example … where the veteran will be disadvantaged under this bill. Under the SRCA, if you go in for permanent impairment, it is condition by condition, and this has been backed up by case law … Under the MRCA they will treat [conditions] as one … If they move DRCA to the responsibility of Veterans' Affairs, there is language that says they want to align that with the provisions of MRCA, specifically around permanent impairment.

I have sought clarification of the issue raised by Mr Larter, about how impairment will be assessed under the DRCA, from the minister's office. I thank his office for providing timely written advice, as follows:

ADF members will not be disadvantaged when the DRCA is enacted. The DRCA replicates the SRCA (with some necessary amendments to make it clear the DRCA only applies to Defence-related claims), including all instruments and guides/determinations made under the SRCA, in force on the date the DRCA is enacted. This will include Comcare's Permanent Impairment Guide. ADF members who lodge claims for permanent impairment under the DRCA will continue to have their injuries/illnesses determined under Part 2 of the [Permanent Impairment Guide]. The existing case law that applies to the SRCA including the assessment of permanent incapacity will also apply under the DRCA.

This means that for permanent incapacity the High Court decision in Canute will also apply to DRCA cases. The constant battle: suicide by veterans, a report I have previously referred to, provided a detailed and searing analysis of issues within Defence and DVA regarding the manner in which they deal with members and veterans. A common theme amongst the cavalcade of submissions dealt with inherent issues with the service delivery and processes and procedures of the administrative bodies designed to assist veterans and their families. The report raised concerns with    DVA's administrative and staffing issues, delays in claim determinations, medical assessments by contracted practitioners, incorrect payments, communication issues and the adversarial approaches to litigation. Each issue was examined in detail by the committee, which made reasonable and sensible recommendations in light of the evidence given. I appeal to the government to implement those recommendations as a matter of urgency to improve the culture, climate and capability of DVA.

On the issue of the combative nature of the adversarial relationship of the Department of Veterans' Affairs with some veterans advocates, veterans advocacy groups and lawyers acting on behalf of veterans I make the following observations. The Constant battle report noted that DVA has acknowledged that less than 1.5 per cent of claims are disingenuous. I further note that the Attorney-General's legal services direction dated 29 March 2017 stipulates, under appendix B, the obligation on the Commonwealth and Commonwealth agencies to act as a model litigant in the conduct of litigation. Specifically, the obligation to act as a model litigant requires that the Commonwealth and Commonwealth agencies act honestly and fairly in handling claims and litigation brought against them, including: dealing with claims promptly, paying legitimate claims without litigation, keeping the costs of litigation down and not taking advantage of a claimant who lacks the resources to litigate a legitimate claim.

We know from Trooper Donaldson's public statements that his eight-year battle with Defence cost him $850,000 in legal fees. Donaldson's case was ultimately settled. We can only speculate that the Commonwealth's legal fees in that case could have run into the millions. Donaldson has stated publicly that the process for him was demoralising. Sadly, this is a familiar response from veterans I have dealt with. The department's own figures show that DVA spent $6.24 million on external litigation in 2013-14. I note that the DVA are yet to update their website with current figures for litigation costs from the 2015-16 annual report, which shows that it spent $8.16 million on external legal fees. The 2016-17 figures aren't yet available. I ask the department to address this immediately as they are required to do pursuant to the legal services direction.

Given the paucity of claims that are disingenuous and the amount expended to fight genuine claims, I call on the government to change its approach to litigation pursuant to the legal services direction so that the vast majority of clients, in the words of the TPI Federation:

… need not be put through the wringer to prove a case with very expensive medical reports and, at times, legal reports…

The issue of the present situation of three different acts relating to the pensions, compensation, rehabilitation, treatment and other benefits for veterans, members of the Defence Force and their families will continue even with the passage of this bill. As noted, this has led to confusion and frustration, with appeals and claims being processed differently depending on which act applies.

The Nick Xenophon Team acknowledges that the complexity of the current legislative framework was a key theme from the evidence received during the inquiry into suicide by veterans. The minister has indicated that, following the passage of the bill, the government will look to areas of potential alignment with the other acts in the future. The Nick Xenophon Team is cautious about the future alignment of legislation, and we urge the minister to clarify details of the proposed reforms to provide certainty to ADF members and veterans. However, the Nick Xenophon Team cautions the government that any attempt to address the current legislative complexities and possible consolidation of the legislative framework will not be supported by the Nick Xenophon Team if the result leaves any ADF members or veterans worse off. Legislative reform should never come at the expense of the brave men and women who currently serve and who have served valiantly in defence of our nation and the freedoms that we hold so dear.

6:21 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Independent) Share this | | Hansard source

My amendments to the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2017, simply known as the DRCA, will fix the shortcomings of this bill that have not been replicated from the SRCA. The same functions which have been used by Comcare since 1998 with respect to the SRCA and which are currently binding upon the Military Rehabilitation and Compensation Commission would be restored through this amendment. Those functions provide for minimising the duration and severity of injuries to employees by arranging quick rehabilitation. This was noted in the Senate Foreign Affairs, Defence and Trade Legislation Committee's report, specifically in my additional comments, which concur in part and dissent in part to the committee's report. Those additional comments may serve as an explanatory memorandum to my amendment.

Labor incorrectly believes that, with the inclusion of this clause, quick rehabilitation that now exists in the SRCA would cause a conflict between the different aims of rehabilitation, which could result in lesser protections for veterans. It believes that that provision has not been used since 2004. How legislating quick rehabilitation which now exists in the SRCA could lessen protections to veterans defies logical reasoning. This is a cop-out by the Labor Party. The expanded aim of rehabilitation which Labor relies upon is misplaced. Labor states that the aim of rehabilitation is to:

… maximise the potential to restore a person who has an impairment, or an incapacity for service or work, as a result of an injury or disease to at least the same physical and psychological state, and at least the same social, vocational and educational status, as he or she had before the injury or disease.

That means that a veteran's claim will be determined quickly. That is not my view. There is no provision in the DRCA bill which requires the arrangement of quick rehabilitation. It is a furphy. The failure to incorporate a provision for the arrangement of quick rehabilitation may cause delays in the arrangement of rehabilitation and serve to harm the veteran.

One only needs to look at Minister Tehan's ministerial statement on veterans and their families. Turning to page 7, it shows that determinations on certain claims have gone from waiting 129 days under the MRCA and 112 days under the SRCA to 156 days under the MRCA and 148 days under the SRCA. That is unacceptable. Are veterans expected to have an increased wait for the arrangements of rehabilitation given the omission of the 'quick rehabilitation' language in the DRCA?

In relation to the Henry VIII clause in the DRCA, my amendment drops it from the bill altogether. Without my amendment, this bill effectively handballs parliament's legislative function to that of the executive branch of the government. It gives a government unfettered power to make regulation modifying the operation of the act itself. That would be absolutely unprecedented in the history of Australian veterans entitlement law—absolutely unprecedented!

Labor's reliance upon the High Court's decision in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 to support a Henry VIII clause is absolutely misplaced. Section 121(b) in the DRCA regulation-making power provides that the regulations themselves may modify the operation of any part of the act itself. In the ADCO Constructions case, that regulation-making power was limited to making regulations not inconsistent with the act itself. Further, in the ADCO Constructions case, this limited Henry VIII clause was used for the purpose of providing a flexible means of making adjustments to the savings and transitional provisions of an act of parliament as noted by Justice Gageler. It is, therefore, different and should not under any circumstances be relied upon.

The government's power grab in incorporating a Henry VIII clause comes on the heels of the recently tabled Foreign Affairs, Defence and Trade References Committee report entitled The constant battle: suicide by veterans, which noted concerns about the inadequacy of staff training and recommended a review of its training. The committee recommended a Productivity Commission study be completed within 18 months on Australia's veterans legislative framework. In the committee's support for such a review, it unanimously and in a rare bipartisan manner rejected the Department of Veterans' Affairs saying that there is no easy way to untangle the current legislative complexities. Rather, the committee concluded:

It is time for a comprehensive rethink of how the current system operates and will operate into the future.

Labor, in its response given by Richard Marles MP to the second reading speech in the House of Representatives, failed to consider the Senate FADT references committee report into veteran suicide and the systematic problems raised in the bipartisan report. Rather, it hopes, on a wing and a prayer, that the government's intention to just use it as a 'fail-safe' in case something has been overlooked in the process, which would have left a veteran worse off, will work. That's right—they're hoping on a wing and a prayer that a veteran may not be worse off. One only has to look to the 180-page Senate FADT references committee report on veteran suicide to draw the logical conclusion—although logic around here is in very short supply—that this government's intentions don't always match their actions.

Besides the FADT references committee report into veteran suicide, the Australian National Audit Office has flagged a potential performance audit into the efficiency of veterans service delivery by the Department of Veterans' Affairs as part of its annual audit works for 2017-18. In fact, the FADT references committee recommended that such an audit by the ANAO start as soon as possible. The Senate signing off on granting the Department of Veterans' Affairs unfettered powers in a Henry VIII clause flies in the face of the FADT references committee report into veteran suicide. It gives more power to the institution when questions are being asked over how it is using its power. That's a mistake, and it's a mistake my amendment fixes.

The committee's report lays bare a culture, a very deep culture, of systematic problems within the Department of Veterans' Affairs. It lays bare how the legislation governing veterans affairs has been slapped together with blu tack and held together with bandaids. Slipping a Henry VIII clause into the DRCA under these conditions is such bad policy. It is very, very bad policy from an unprincipled government which takes veterans and their sacrifices for granted.

This bill should be put on the shelf and await a Productivity Commission review, as requested by the committee in its bipartisan report into veterans affairs. Let me my remind my Senate colleagues of the following recommendations:

Recommendation 1

The committee recommends, that in the context of recent Australian Institute of Health and Welfare findings concerning veterans at risk of suicide, the Australian Government:

• develop and implement specific suicide prevention programs targeted at those veterans identified in at-risk groups; and

• expand the DVA Reconnects Project to proactively contact veterans in these identified at-risk groups.

Recommendation 2

The committee recommends that the Australian Government commission an independent study into the mental health impacts of compensation claim assessment processes on veterans engaging with the Department of Veterans' Affairs and the Commonwealth Superannuation Corporation. The results of this research should be utilised to improve compensation claim processes.

Recommendation 3

The committee recommends that the Australian Government establish a National Veteran Suicide Register to be maintained by the Australian Institute of Health and Welfare.

Recommendation 4

The committee recommends that the Australian Government review the enhancement of veteran-specific online training programs intended for mental health professionals. In particular:

• requirements for providers to undertake training;

• the introduction of incentives for undertaking online training and demonstrating outcomes in clinical practice.

Recommendation 5

The committee recommends that Defence and the Department of Veterans' Affairs align arrangements for the provision of professional mental health care.

Recommendation 6—

Here it is—

The committee recommends that the Australian Government make a reference to the Productivity Commission to simplify the legislative framework of compensation and rehabilitation for service members and veterans. In particular, this review should examine the utilisation of Statements of Principle in the determination of compensation claims. The report of this systemic review should be completed within 18 months and tabled in the Parliament.

The question needs to be asked, and I will be asking it: why would you be doing any legislative changes right now? Why aren't you adopting these recommendations? This is what is going to make the difference—not coming in when we have put all these recommendations in, not adopting them, nearly three weeks after we tabled the report.

Recommendation 7

The committee recommends that the Australian Government continue to support the 'Veteran Centric Reform' program within the Department of Veterans' Affairs.

Recommendation 8

The committee recommends that, while the Veteran Centric Reform program is being implemented, the Australian Government continue to fund measures to:

• alleviate pressure on claims processing staff and to reduce the backlog of claims; and

• increase case coordination staff to assist clients with complex needs.

Recommendation 9

The committee recommends that the Department of Veterans' Affairs conduct a review of its training program to ensure relevant staff:

• have an understanding of the realities of military service—

If you can get to that point you're starting off well—

• have an understanding of health issues of veterans;

• have appropriate communication skills—

That would incorporate not blacklisting advocates and myself—

to engage with clients with mental health conditions; and

• have sufficient training to interpret medical assessment and reports—

which, quite clearly, they do not.

Recommendation 10

5.105 The committee recommends that the Department of Veterans' Affairs review its use of medico-legal firms—

because it's taking out veterans—

in relation to the assessment of the conditions of veterans. In particular, this review should confirm:

• assessments undertaken are appropriate to the conditions considered—

For those people who don't understand that, that means when you have PTSD and they want to send you to a doctor that's checking out your need, that's medicolegal and you probably shouldn't be there. They're the sort of mistakes that the Department of Veterans' Affairs continually makes—short-changing the veterans.

• that the medical professionals used have undertaken training on treating veterans and can demonstrate their expertise working amongst this client group; and

• the need for independent medical assessments where information is already available from the veteran's own doctor or treating specialist.

You may want to start there, because nothing annoys a veteran more than, when they've had a treating specialist or GP for 10 years, you send them to a medico legal, and everything that doctor or specialist has been doing for them in the past is wiped out in a 15-minute appointment. There's no fairness in that.

Recommendation 11

The committee recommends the Department of Veterans' Affairs expand its online engagement with younger veterans through social media to raise awareness regarding available support services.

Maybe they should try using that, rather than trying to make them remove it off Facebook.

Recommendation 12

The committee recommends that the reference to the Productivity Commission should also include examination of the following areas in the Veterans' Affairs portfolio:

        That in itself will keep you busy for a couple of years, I can assure you. You have a bit of cleaning up to do over there.

        Recommendation 13

        The committee recommends that the Australian National Audit Office commence the proposed performance audit of the 'Efficiency of veterans' service delivery by the Department of Veterans' Affairs' as soon as possible.

        Nearly three weeks you've had these recommendations. You still haven't started any of this. What it goes to show me is you actually don't give a stuff about a veteran. All you're doing is talking the talk, but you'll be damned if you walk the walk.

        Recommendation 14

        The committee recommends that Transition Taskforce examine and address:

          You might actually want to start there at the transition, let's be honest. Defence may want to make sure they're transitioned properly before you pass them to DVA. Here's a better idea: why don't you leave them on Defence's manning list and watch how quick they'll get the medical attention that they need. Get some of those commanders off their rear end, start standing up for their troops, start being real leaders in military, hey?

          Recommendation 15

          The committee recommends that the Department of Veterans' Affairs develop a two-track transition program for serving members leaving the ADF. Those identified as being in 'at risk' groups or requiring additional assistance due to their circumstances should be able to access intensive transition services. These intensive transition services should include additional support:

                    I know this is very strange for you people over there, but it's pretty easy: it's called early intervention. You know what? It will save billions of dollars over a period of time if you get onto these illnesses and help these men and women who have served their country a lot earlier, instead of using the 'delay, deny, die' method that Veterans' Affairs consistently uses.

                    Recommendation 16

                    The committee recommends the Australian Government issue all ADF members transitioning into civilian life with a DVA White Card—

                    No matter what condition they have.

                    Recommendation 17

                    The committee recommends that the Career Transition Assistance Scheme include an option for veterans to undertake a period of work experience with an outside employer.

                    Recommendation 18

                    The committee recommends that the Australian Public Service Commission conduct a review into mechanisms to further support veteran employment in the Australian Public Service and the public sector.

                    It's shameful you don't even have a quota for that. You're not even serious, really, are you?

                    Recommendation 19

                    The committee recommends that the Department of Veterans' Affairs review the support for partners of veterans to identify further avenues for assistance. This review should include services such as information and advice, counselling, peer support and options for family respite care to support partners of veterans—

                    Because while you're destroying their lives, you're destroying the lives of their kids, their wives, their families and those around them. That's the impact. That's the result that Veterans' Affairs is dishing out to them.

                    Recommendation 20

                    The committee recommends:

                        Recommendation 21

                        The committee recommends the Australian Government fund a trial program that would provide assistance animals for veterans with Post Traumatic Stress Disorder (PTSD) stemming from their military service in order to gather research to support the eventual funding of animals for veterans—

                        Quite frankly, you don't need a trial program: it's already proven; it's already working. Veterans' Affairs knows that—they just don't want to pay a little bit of extra money to make a veteran better. Whatever helps a veteran to get better, DVA will be right against it. That's what they do.

                        Recommendation 22:

                        The committee recommends that the Australian Government provide funding to support the Veterans and Veterans Families Counselling Service:

                        •create and maintain a public database of services available to veterans; and

                        •provide an information service to assist veterans and families connect and access appropriate services provided by ex-service organisations and others.

                        Recommendation 23:

                        The committee recommends that the Australian Government establish a Bureau of Veterans' Advocates to represent veterans, commission legal representation where required, train advocates for veterans and be responsible for advocate insurance issues.

                        This was promised by the current PM. We're still waiting.

                        Recommendation 24:

                        The committee recommends that the Australian Government establish an independent review of the representation of veterans before the Veterans' Review Board. This review should assess whether the rights of vulnerable veterans are being adequately protected and whether further support mechanisms for veterans appearing before the Veterans' Review Board are required.

                        Now let's go back to recommendation 6, which is:

                        The committee recommends that the Australian Government make a reference to the Productivity Commission to simplify the legislative framework of compensation and rehabilitation for service members and veterans. In particular, this review should examine the utilisation of Statements of Principle …

                        So I ask once again: why would this chamber, less than a month after the references committee made that recommendation—the government has yet to issue a formal response—vote to enact new veterans legislation without any regard to a Productivity Commission report or review? This does not make any sense to me and the veterans community at large. It puts another bandaid on veterans legislation without waiting for a systematic review of it.

                        If this government is so hell-bent on pushing this bill through, then my amendments to DRCA are reasonable and protect veterans in what has been a chaotic legislative framework year in, year out. Quite frankly, I can assure you: the veterans, their community, their families and their friends have had an absolute gutful. (Time expired)

                        6:41 pm

                        Photo of Jacinta CollinsJacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | | Hansard source

                        I had hoped to hear from Senator Bernardi and Senator Burston in this second reading debate, but, absent of their contributions, taking time at the moment might allow them to get to the chamber if they've been delayed. I wanted to follow Senator Lambie's contribution by focusing on a couple of areas in the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2017. I think Senator Farrell, in the second reading contribution on behalf of the Labor Party, has covered the breadth of the provisions in the bill. But, particularly following Senator Lambie, I think it is helpful to revisit a couple of areas.

                        I am concerned to hear Senator Lambie highlight issues such as having been blacklisted as an advocate, because I think the contribution that she makes to this parliament for veterans is significant, very useful and helpful, and we should continue to listen to her experience, her advice and her advocacy. I understand what she said in terms of frustration with the process, the outcome and the intention of the amendments she is proposing. Unfortunately, I haven't been as intimately involved in the parliament's consideration of these issues to be able to reflect on the assurances that the government may have provided in relation to a range of concerns raised by both her and the Labor Party in terms of how these provisions might be applied. But I do understand her frustration with intention not necessarily equalling action in implementing provisions around veterans and, indeed, her frustrations, as with many, with attempts to modernise an enormous bureaucracy in terms of how it treats our veterans with the respect that they deserve. I experienced that myself with my father's time as a veteran after many years of service in the Australian Air Force. In Senator Lambie's case, I think she gives us all a very refreshing example of how the provision of veterans affairs hasn't necessarily been modernised to the extent that it should be. It's a very important reminder for all of us.

                        I know that Senator Farrell will be here to deal with Labor's position on Senator Lambie's amendments, but there are other elements of this bill that I wanted to highlight. I started looking at this when I was listening to Senator Kakoschke-Moore talking about the MRCA, the SRCA, the DRCA and how people can even be lost in the acronyms of it all! I think it's helpful to remind us that this legislation proposes to remove all the Defence Force elements from the SRCA and create an exact replica called the DRCA, which will apply only to Defence Force members. There can be some advantages and disadvantages of that. This is why I think the Senate committee took the time to ensure that things weren't inadvertently overlooked from the existing arrangements.

                        From work I've done over many years in other occupational rehabilitation areas, I can give credence to Senator Lambie's point about ensuring timely rehabilitation. If that's an area where veterans affairs is still well behind the game, that's quite concerning to hear. I would hope that, through this parliamentary discussion, and through her continued advocacy as well, the Department of Veterans' Affairs will continue to be held to account to lift its game in that area. Any suggestion that our veterans are not receiving the timely rehabilitation that is necessary to help them return to the best health possible is, I think, as Senator Lambie said quite passionately, just not good enough. There is the general hope that consolidating the management of these areas to apply only to Defence Force members will assist that process.

                        In reading about this bill, I think the creation of this act to bring all legislation relating to veterans affairs under the responsibilities of the Minister for Veterans' Affairs is a good one. Obviously how effectively that occurs might depend on who the Minister for Veterans' Affairs is at the time, and I think Senator Lambie and I would both agree that as much pressure as possible should be put on the Prime Minister of the day not only to meet what commitments the government have previously made but to ensure that the person with responsibility for veterans affairs meets the rest of the criteria you were referring to, Senator Lambie, from the report—that the minister is capable of having an understanding of the circumstances around veterans and is capable of ensuring, with some passion and dedication, that the standards that apply to their circumstances are the best that they possibly can be.

                        I was concerned to see that, to date, some of these areas have been mixed between the Minister for Employment and the Minister for Veterans' Affairs. We only need to look at the types of debates we saw today and yesterday about what was, once upon a time, a bipartisan agreement that enterprise bargaining was a good thing for our country, for industrial arrangements into the future and for ongoing productivity. That's now a contest for partisan debate. I would hate to see the culture that's developed in employment policy, particularly workplace relations type policy, infect the policy discussion about veterans affairs. I would hate to see our political milieu deteriorate into veterans becoming the same fodder as we have seen in the discussions about employees and the role of unions in contemporary Australian society, because that could only make things worse.

                        I see some advantages, obviously, of consolidating all of the arrangements to the Minister for Veterans' Affairs and keeping it away from that policy space, but I would like to take this opportunity to revisit Senator Lambie's focus on the importance of early intervention in rehabilitation. It's too easy, in a land where we're dealing with legislation with complex acronyms and the like, to forget the fundamental principle: we know that in rehabilitation, occupational rehabilitation particularly, early intervention is the most significant factor. If you can't intervene early, if you allow bureaucracy and rules and classifications and egos and defence hierarchy and all of that to contaminate that fundamental principle of early intervention, then Senator Lambie's quite right to highlight—and, indeed, very passionate in doing so—that it's the dignity of our veterans that we are compromising.

                        I know some of these issues have been discussed amongst the committee and between the minister and the shadow minister, and I hope assurances in relation to those issues have reached a satisfactory point. But I don't think it hurts for someone other than Senator Lambie to say that, if our arrangements aren't meeting that fundamental criterion of early intervention in the rehabilitation of our veterans, we are compromising the dignity of our veterans.

                        Senator Lambie says that she's concerned that we're relying on a wing and a prayer, that that fail-safe isn't here, and refers to the Foreign Affairs, Defence and Trade References Committee inquiry into veterans' suicide. Senator Lambie highlighted that that committee recommended a review by the Productivity Commission. Now, I wonder sometimes whether the Productivity Commission is necessarily the most appropriate body to conduct such reviews. I do understand Senator Lambie's concern that a review per se hasn't occurred, before proceeding with this consolidation. My confidence in a review like that being conducted by the Productivity Commission is a bit mixed. They've done some good work—for instance, in relation to paid parental leave. That report challenged my preconceptions about the quality of a report that the Productivity Commission could produce. But, whether today they are now in the best position to pick up the concerns that Senator Lambie and the Foreign Affairs, Defence and Trade References Committee had, I think, is an open question.

                        I would hope, absent the Productivity Commission, that the government had indeed addressed in some detail the recommendations of the references committee report because all of those issues that Senator Lambie raises have merit and need to be addressed. At the end of the day, she may not be satisfied with precisely how those issues have been addressed—and I'm sure, in the committee stage, Senator Farrell will discuss her particular amendment. I don't think it harms this consideration to highlight that her point about early intervention and timely rehabilitation is a fundamental principle that we in this parliament, on a bipartisan basis, should be guaranteeing, for the dignity of our veterans.

                        6:53 pm

                        Photo of James McGrathJames McGrath (Queensland, Liberal National Party, Assistant Minister to the Prime Minister) Share this | | Hansard source

                        I'd like to thank all senators who have contributed to the debate on this bill and acknowledge the continued tradition of bipartisan support for the veterans community demonstrated by the opposition, the Greens, the crossbench and, indeed, the entire Senate.

                        The purpose of the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2017 is to excise compensation coverage for Australian Defence Force members and former members with service prior to 1 July 2004 from the Safety, Rehabilitation and Compensation Act 1988, commonly called SRCA, and duplicate that coverage under a standalone act. The SRCA currently provides compensation to all Commonwealth employees and is administered by Comcare on behalf of the Department of Employment. It also covers Australian Defence Force members and former members for injuries and disease related to service rendered prior to 1 July 2004, as administered by the Department of Veterans' Affairs. Military members with injuries or disease related to service on or after 1 July 2004 onwards have coverage under the Military Rehabilitation and Compensation Act 2004, commonly known as MRCA.

                        The main benefit in excising the coverage of Defence Force members from the SRCA into a standalone act, to be titled the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988, or DRCA, is that the Minister for Veterans' Affairs will have responsibility for all compensation acts covering Defence Force members. This bill simply replicates SRCA. Eligibility and benefits under the act will be the same as those currently available to current and former ADF members under the existing SRCA. This means that all precedents and case law relating to this act will continue.

                        The enactment of the DRCA is also a foundational step towards broader reform being undertaken by the department to significantly improve services for veterans and their families. In keeping with the aims of this reform activity, it is essential that responsibility for all relevant legislation and policy sits with the Minister for Veterans' Affairs. The enactment provisions have been carefully drafted to ensure that eligibility and benefits under the DRCA will be the same as those that were available to serving and former Defence Force members under the SRCA at the time the injury or illness was sustained. This has been further reinforced by the inclusion of a Henry VIII clause, which will act as a safety net for unintended consequences of the creation of the standalone act. Most importantly, it can only be used to the benefit of the veteran and never to benefit the Commonwealth.

                        On behalf of the minister, I would like to thank the Senate Foreign Affairs, Defence and Trade Legislation Committee for their work on the inquiry into this bill. In particular, I would like to thank their former chair, Dr Chris Back, and the deputy chair, Senator Alex Gallacher. The committee have recommended that the Senate pass the bill.

                        I would like to acknowledge the contributions to the debate on this bill made by senators today. While we note the concerns of some senators about the use of a Henry VIII clause, this clause, as we have mentioned, is purely a safety net and can never be used to benefit the Commonwealth. The government also notes the concern of some senators to have a review of the use of the Henry VIII regulations under the DRCA. While this, hopefully, will never be used, the government and the department have undertaken to place in each instrument created by the Henry VIII clause a requirement for a review to be conducted by parliament. This will allow the review to be tailored to the regulation that is being made, as well as allowing the benefits to flow to affected veterans while the review is conducted. Additionally, the government noted the suggestions of some senators to introduce aspirations into the bill. However, as we have suggested, the changing nature and complexity of rehabilitation of individuals does not lend itself to rigid legislation. The department must be able to meet individual needs to provide for all veterans and their families.

                        I would also particularly like to thank the shadow minister for her cooperation in developing the bill. I commend the bill to the Senate.

                        Question agreed to.

                        Bill read a second time.