Cory Bernardi (SA, Australian Conservatives) Share this | Link to this | Hansard source

The committee is considering the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2017 and amendments (1) and (2) on sheet 8100 revised, moved by Senator Lambie.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

I have a few more questions to ask, but I want to go back to the veterans mental health inquiry where, very recently, we put a number of questions on notice in reference to the Foreign Affairs, Defence and Trade References Committee report published on 17 March 2016 concerning the mental health of Australian Defence Force members and veterans. We asked the minister if he could advise which of a number of recommendations had been actioned, or when they would be actioned. If they were not to be actioned, we asked why not. There were 17 questions that we put on notice, and this is the answer that we got back: 'The Senate inquiry report presented the government with 25 recommendations comprising 17 main recommendations and eight minority report recommendations. Of the 17 main recommendations, three were agreed to by the government, four were agreed to in principle, six were partly agreed and four were noted. The government did not rate any of the main recommendations as not agreed. Of the eight minority report recommendations, one was agreed to by the government, one was partly agreed, two were noted and four were not agreed.'

What they didn't say is that not one of those things has been put into place. So, nearly 16 months later, nothing that was recommended by that committee to start helping those veterans with their mental health has been done. That is shameful in itself. I simply say this: if the government's intention in introducing the DRCA bill is to streamline veterans legislation—if that is what they believe it will do—are they prepared to make a commitment to adopting the Foreign Affairs, Defence and Trade References Committee's recommendation in the veterans suicide report for a Productivity Commission study into veterans' entitlement law today, instead of us all waiting for the 90-day period?

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

As I said last night, senators have put a lot of time and effort into preparing the report of the Senate Foreign Affairs, Defence and Trade References Committee, and it's only appropriate that the government make a considered response to reflect that. In relation to the senator's earlier comments, that is within the remit of the Minister for Health.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Chair, I want to clarify whether I'm able to do this. Labor are not supporting the amendments. Is there any way I can ask them a couple of questions? Can that be done somehow, or is that just a no?

Cory Bernardi (SA, Australian Conservatives) Share this | Link to this | Hansard source

Senator Lambie, based on my experience, you can ask questions, and if any senator chooses to rise in response to those questions it is entirely in order. However, they don't have to.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Thank you, Chair. Labor has stated that it received advice that the provision in the SRCA for arranging quick rehabilitation has not been used since 2004. What authority is Labor relying upon?

Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

Just to be clear, are we now dealing with your amendments on sheet 8101 revised or are we still on sheet 8100?

The TEMPORARY CHAIR: Senator Farrell, we're considering amendments (1) and (2) on sheet 8100 revised.

Thank you, Chair. As Senator Lambie would appreciate, I am not the shadow minister for this particular area. But we do have a fantastic shadow minister in Amanda Rishworth. I will try to contact her while this debate is going on and get a response to your question.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Labor stated that my amendments for arranging quick rehabilitation might conflict with another section of DRCA relating to rehabilitation. If that is truly the case, wouldn't it be prudent to amend that other section to include arranging timely or quick rehabilitation in this DRCA bill so that veterans may recover faster through the arrangement of quicker rehabilitation?

Skye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | Link to this | Hansard source

I rise to outline the Nick Xenophon's Team's position in relation to Senator Lambie's amendments. At the outset I would like to emphasise our acknowledgement of the place of deep concern from which Senator Lambie's amendments arise. I understand she is seeking to incorporate into the DRCA a section in relation to emphasising that, in order to minimise the duration and severity of injuries to a veteran or a Defence personnel member, rehabilitation should be arranged quickly. We acknowledge this. We have received advice from the government and also from the opposition that, while these amendments have come from good intentions, they may in fact have some unintended consequences for those veterans. That is why, although we strongly support Senator Lambie and we strongly support the principle of allowing veterans and Defence personnel access to timely rehabilitation, we are uneasy about supporting these amendments.

Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

I have received advice about the question that Senator Lambie raised earlier in respect of the opposition's communications. The answer to her question is that we received that information from John Harris, who I understand is the ministerial adviser to the minister. I notice that's brought a smile to Senator Lambie's face.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

I was wondering whether the minister could afford me what qualifications Mr Harris actually has.

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

That's not relevant to the discussion at hand.

Skye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | Link to this | Hansard source

It may be beneficial for the chamber and for this debate if the minister could outline what some of these potential unintended consequences could be, should this amendment pass.

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

Certainly. The primary focus of rehabilitation under Comcare is to arrange an employee's return to work as quickly as possible after a work-related injury or disease. While the arrangements include restoring the individual's social as well as vocational status, this is considered within an employee's workplace setting. As former members of the ADF, DVA clients often have different needs from the typical Comcare rehabilitation client who is returning to work. Their ADF employment not only gave them an income and meaningful work, it also provided housing, health care, recreational facilities, social networks, training, and a structured career path.

The impact of military life means the families of DVA clients also have complex needs. A DVA client's rehabilitation plan also addresses the family's requirements, in addition to the client's needs. For all these reasons, and others, there's a belief in the government that the treatment of ADF members using guidelines designed for public servants is not desirable.

Skye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | Link to this | Hansard source

Minister, I might try to summarise what you just said to ensure that I understand it properly. It is that an unintended consequence of inserting this provision could be to force somebody into rehabilitation for the purposes of returning them to work, when in fact returning them to work may not be in the best interest of the veteran or the member of the Defence Force, and they need a more holistic approach to their rehabilitation?

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

That is the intention of the government.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Is the government able to provide any assurances today that veterans will receive the arrangement of timely rehabilitation in this new DRCA bill, given the blow-out times in which determinations of certain claims are made under SRCA—I note that in his recent ministerial statement Minister Tehan said that permanent impairment determinations on claims under SRCA increased from 112 days to 148 days, an increase of 36 days?

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

In regard to the bill that is before the Senate, I don't think that, particularly, is relevant.

Cory Bernardi (SA, Australian Conservatives) Share this | Link to this | Hansard source

The question is that amendments (1) and (2) on sheet 8100 revised, moved by Senator Lambie, be agreed to.

Question negatived.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

I oppose schedule 1 in the following terms:

(1) Schedule 1, item 45, page 13 (line 19) to page 14 (line 2), TO BE OPPOSED.

This amendment drops the Henry VIII clause altogether from the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2017, known as the DRCA. A Henry VIII clause added to DRCA effectively handballs parliament's legislative function to the executive branch of government. It gives the government unfettered power to make regulations modifying the operation of the act itself. That would be unprecedented in the history of Australia's veterans entitlement law. My amendment to scrap the Henry VIII clause has the support of our nation's leading ex-services organisations, including the Returned and Services League of Australia, the Alliance of Defence Service Organisations, or ADSO, the Defence Force Welfare Association, and the Australian Peacekeeper and Peacemaker Veterans Association, among many other ESOs.

The report The constant battle: suicide by veterans, by the Senate Foreign Affairs, Defence and Trade References Committee, noted concerns about the adequacy of staff training and recommended a review of its training. Further, the committee recommended that a Productivity Commission study be completed within 18 months on Australia's veterans legislative framework. Granting additional powers to the executive branch of government under the provision of a Henry VIII clause is bad policy, given the current situation with the chaotic legislative framework as well as the shortcomings of the Department of Veterans' Affairs—and there are many of them, as indicated in the report The constant battle: suicide by veterans. This delegation of legislative power to the executive branch of government will likely serve as a slippery slope.

The foreign affairs, defence and trade committee recommended that the Productivity Commission review Australia's complex veterans legislation. So why has the government brought the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2017 on for consideration before the review could even be conducted—or you people taking 90 days to even decide whether you're going to conduct that? That would be the best way forward.

Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

I seek to give the Labor Party's response to Senator Lambie's amendment 8101, known as the Henry VIII motion. Unfortunately, Labor will not be supporting this amendment, as the Henry VIII clause is intended only as a fail-safe in the unlikely event that something else has been overlooked in the drafting of the bill which would leave veterans worse off. Henry VIII clauses enable the government to make regulations with the power to modify the act, which are then introduced to parliament as a disallowable instrument. In the DRCA, a condition has been added to the Henry VIII clause that requires any regulations made under this provision to act in a purely beneficial way for the veteran to deal with any anomalies that may arise where there is a retrospective application of the DRCA. This condition states:

Before the Governor-General makes regulations under subsection 1:

a. the Minister must be satisfied that it is necessary or desirable to make the regulations to ensure that no person (except the Commonwealth) is disadvantaged by the enactment of this Act;

As such, it is clear that, in the event of this clause being utilised, it can only be when someone has been made worse off by the creation of the DRCA and any changes will benefit only an individual claimant and not the government. This is a very important condition, and it is the reason the Labor Party is in a position to support the inclusion of this clause.

It's worth remembering that in the event that the clause is utilised there would be an individual veteran who has been made worse off for the creation of this bill and has had this acknowledgement by the department and regulations drafted, approved and tabled. To deny or delay them the provision of receiving this benefit is unfair, particularly given that, in these circumstances, if the DRCA had not been created there would have been no delay and they would have received this assistance immediately. We call on the department to, in the event that this clause is utilised, exhaust all avenues to ensure that anyone else who would benefit from the changes to the regulations is afforded the same benefit. The government has agreed to this at Labor's request and has committed to ensuring that everything possibly will be done by the department to locate and contact any person who would be affected by the DRCA Henry VIII clause. Labor supports the inclusion of this clause without the requirement to consult prior to making the regulations, for one reason only, and that is to ensure that that there is no delay in correcting the issue which has come about due to the creation of the bill and its impact on the veteran.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

We've seen in the past that this is an absolute mess, that Veterans' Affairs is a shambles. There's no denying that; it's a basket case. I want to know whether there are unintended consequences from your actions in putting in that Henry VIII clause. First of all, what is your action plan to take care of it and remove it? And how long is that time frame going to be?

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

I think you had two questions there that merged into each other. I am wondering if you can just clarify what you meant, please.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

We have seen in the past, when it comes to veterans affairs legislation, a lot of unintended consequences because of the legislation that is supposedly supposed to be a good thing for veterans, which it certainly has not been. I could go through them if you want, but we won't do that. But both the major parties are just as much to blame here. What you do is simply say, 'Oh well, okay. Too bad,' but you don't go in and fix it, even though there are unintended consequences because of it. So I simply want to know this: do you have an action plan for the Henry VIII clause if it has unintended consequences, and, if so, what is it?

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

The purpose of the Henry VIII clause is to ensure that there is a safety net for veterans in case a person does suffer detriment due to the DRCA's enactment. Without a Henry VIII clause, it would take a much longer time to remedy any detriments suffered by the veteran, as it would require an amendment to the principal act. Every effort has been made by the government to ensure that ADF members are not disadvantaged by the DRCA's commencement. However, in the unlikely case where it comes to light that a person is unintentionally disadvantaged by the DRCA's enactment, a Henry VIII clause would enable the minister to override the DRCA where a case of disadvantage came to his or her attention. This would allow the Minister for Veterans' Affairs to quickly address any disadvantage suffered by the veteran. Regulations can be quickly enacted to fix the disadvantage, and regulations are flexible because they allow the minister to address both individual and group needs.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

I just want to clarify something. When you decided to put this Henry VIII clause in, did Mr Harris—is that correct?—decide that he was going to do this? You didn't use somebody else? You didn't use any other recommendations from anyone else? You didn't go out and use somebody else? You didn't use a QC and hear what they had to say or anything like that? Did you simply use the department without going any further, as you would on most legislation—that's why the Department of Veterans' Affairs is in such a mess—and use no other expertise outside of the Department of Veterans' Affairs to decide on this matter?

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

We had advice from the Australian Government Solicitor.

Skye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | Link to this | Hansard source

Once again, the Nick Xenophon Team acknowledges the place of deep concern that Senator Lambie's amendment has come from. Indeed, I think it's reflective of, sadly, the state of deep suspicion and distrust amongst the veterans community for the DVA. I'm hopeful that that distrust will be rectified in the future, but I think it would be helpful, for the purposes of those listening and for the purposes of Hansard, if the minister could outline why a veteran could, in fact, be worse off if the Henry VIII clause wasn't inserted into this bill.

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

Very simply, actually, it would take longer to remedy any detriments suffered by a veteran because it would require an amendment to the principal act. So it is our advice, if there are disadvantages that come to light, that the quickest and most effective way to remedy that disadvantage is through this Henry VIII clause, which will enable regulations to be enacted quickly to fix any disadvantage suffered by an individual veteran or a group as such.

Skye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | Link to this | Hansard source

Just finally, I noted, Minister, that in some of your remarks last night you mentioned that the government would be looking to conduct a review of any legislative instrument made following or utilising the Henry VIII clause. I think this may go to some of what Senator Lambie was referring to in terms of unintended consequences. If, for example, a regulation is tabled as a result of the Henry VIII clause, will the government conduct a review of how that regulation actually plays out for the veteran or veterans?

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

Any senator can refer the regulation, as a disallowable instrument, to a committee for review. Any senator in this chamber can do that. The Henry VIII clause is not intended for regular use and may never be used. It is a safety net for any unintended consequences of this change.

Skye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | Link to this | Hansard source

Just to clarify—I may have misunderstood—it was my understanding that the government would be looking to conduct a review of any legislative instrument which was tabled in parliament and was not disallowed, and once that instrument had come into force there would be a review as to whether or not that instrument achieved the ends it was seeking to achieve.

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

Yes, the government will guarantee any review.

Cory Bernardi (SA, Australian Conservatives) Share this | Link to this | Hansard source

The committee is considering Senator Lambie's amendment on sheet 8101 revised. The question is that schedule 1, item 45, page 13 (line 19) to page 14 (line 2) stand as printed.

Question agreed to.

Bill agreed to.

Bill reported without amendments; report adopted.