Bob Baldwin (Paterson, Liberal Party, Shadow Minister for Defence Science and Personnel) Share this | Hansard source

I rise today to speak on the Defence Legislation (Miscellaneous Amendments) Bill 2008. The stated purpose of this bill is threefold: firstly, to amend the Geneva Conventions Act 1957 and the Criminal Code Act 1995 to incorporate a third universal emblem, the red crystal, along with the existing emblems of the red cross and red crescent; secondly, to amend the Defence Act 1903 to explicitly allow the making of regulations for the provision of medical and dental treatment to a member of the Australian Defence Force, to a member of the family of an Australian Defence Force member and to cadets; and, thirdly, to amend the Defence (Special Undertakings) Act 1952 to provide that the Joint Defence Facility at Pine Gap is a prohibited area. Given their disparate nature, I will speak to these three issues individually.

Schedule 1 of the Defence Legislation (Miscellaneous Amendments) Bill 2008 incorporates the third additional protocol to the Geneva conventions, which establishes a third universal and distinctive emblem, called the red crystal, for the Red Cross-Red Crescent movement. Schedule 1 also proposes amending the Criminal Code Act 1995 to ensure that the new Geneva emblem is covered by the existing offences related to the improper use of the emblems of the Geneva conventions.

As most of us are aware, the emblems of the red cross and red crescent have for many years been seen as symbols of protection against the violence and brutality of warfare and the promise of aid in times of disaster and distress. Anyone who has seen the Red Cross-Red Crescent organisation in action knows the good work that they do, and the Australian Red Cross of course is no exception. Whether it be helping out in times of disaster or championing the causes of human rights in our region, the work of the Red Cross is invaluable. It is also worth mentioning that this work is yet more remarkable when you consider that much of it is carried out by volunteers—ordinary Australians making extraordinary contributions to their community, to their country and to the world in which they live.

We have seen this contribution firsthand this week as the Red Cross continues to help thousands of people devastated by the bushfires that have raged across large parts of Victoria. Red Cross staff and volunteers are working at 20 relief centres to support people affected by the fires, including at Whittlesea, north of Melbourne, where many people from the devastated township of Kinglake are currently taking shelter. They are providing meals for firefighters, police and people in the relief centres. First aid volunteers are assisting emergency services personnel and other affected people by treating mainly fire related injuries like minor burns and smoke inhalation. Red Cross personal support volunteers are providing practical assistance to evacuees as well as emotional support, information and referrals to recovery services. Red Cross staff and volunteers are also manning donation and blood bank facilities around the country. I urge all Australians to give in any way they can. Now, as always, the red cross emblem stands out clearly as a symbol of help in hard times.

The symbols of the red cross and red crescent have both served as protective emblems for military and civilian medical services in wartime, and as distinctive signs for national Red Cross and Red Crescent societies around the world. Yet since their adoption these now universally known symbols have also been a source of recurrent controversy and the subject of much debate—debate which has at times hampered their effectiveness as symbols of neutrality.

A recent submission to members of this parliament by the Australian Red Cross Chief Executive Officer, Robert Tickner, goes some way to explain these issues of difficulty and to articulate the need for and value of the third additional protocol to the Geneva conventions, which establishes the new red crystal emblem alongside the red cross and red crescent. The red cross and red crescent emblems are legally recognised under international law—most notably the 1949 Geneva conventions and their additional protocols of 1977—and are used around the world to protect medical personnel, equipment and buildings during periods of armed conflict, as well as to identify national Red Cross and Red Crescent societies, the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies. However, the red cross and red crescent emblems have in some circumstances been wrongly perceived as having particular political, cultural or religious connotations. This has affected the perceived integrity of the emblems and has therefore on occasions lessened the protections the emblems offer to victims and to humanitarian and medical personnel.

The debate which has led to the adoption of the additional protocol III arose out of the need to operate in circumstances or in locations where neither the red cross nor the red crescent emblem is perceived and thus respected as neutral. There have also been a number of countries, such as Israel, which, as a result of not using the red cross or red crescent symbols, have been unable until recently to be admitted as formal members of the International Red Cross and Red Crescent Movement. To address this problem, an international diplomatic conference adopted the additional protocol III to the Geneva conventions in late 2005, and the third emblem, the red crystal, allowed the movement in mid-2006 to formally recognise and admit the Palestine Red Crescent Society and Magen David Adom, the Israel society, as full members.

Working with the Australian Red Cross, the coalition government, under the Howard administration, played a significant role at the international negotiations to develop the protocol, and 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 International Red Cross and Red Crescent Movement, protocol III.

Protocol III entered into force internationally on 14 January 2007. On 9 May 2007, protocol III was tabled in parliament with a proposal that Australia take binding treaty action to ratify the protocol. The Joint Standing Committee on Treaties reviewed the protocol and conducted hearings on 18 June 2007. The committee tabled its report to this parliament on 16 August 2007 and recommended that binding treaty action be taken. The bill incorporates the red crystal emblem along with the existing emblems, the red cross and the red crescent, into Australian statute and will conclude a process fully supported and facilitated by the coalition both in government and in opposition. The incorporation of additional protocol III to the Geneva conventions has demonstrated that the Red Cross and Red Crescent Movement continues to stand as a neutral and independent organisation capable of putting aside political and religious tensions in its commitment to humanitarian need.

As stated previously by the Minister for Defence, schedule 2 of the Defence Legislation (Miscellaneous Amendments) Bill 2008 amends section 124 of the Defence Act 1903 to enable the making of regulations to cover the provisions of medical and dental treatment including pharmaceuticals to an ADF member or cadet or a member of the family of an ADF member. Currently, the Defence Force regulations contain a provision that recognise the provision of medical and dental treatment to members of the ADF in order that they are healthy for the purpose of discharging their duties, as well as cost recovery in specified circumstances. The amendments to section 124 will enable a more comprehensive regime in the Defence Force regulations, including broadening the regulations to enable the making of regulations to cover the provisions of medical and dental treatment, including pharmaceuticals, to an ADF member or a cadet remember or a member of the family of an ADF member. This is not necessarily contentious and the coalition certainly supports the government in addressing any shortfalls in the regulations relating to the provisions of medical treatment to members of the ADF.

In briefings on this matter, the minister’s office has specifically mentioned the treatment of cadets and the treatment of ADF members by civilian contractors as at least two possible shortfalls. However, it must be pointed out that the government have not mentioned in the bill, in the explanatory memorandum, in the minister’s second reading speech or in any brief that he or his staff have provided to either my office or the office of the shadow minister for Defence their very bold election promise to extend the free health coverage provided to ADF members to the families of ADF member’s. A plan has now been reformed and rebadged as the ADF family medical and dental trial. This is, we assume, because they do not wish to draw attention to the fact that they have in every way failed to deliver on this promise. It must be pointed out that such an entitlement, even if provided as only a limited trial to a select few, will indeed require the making of regulations to cover the provision of medical and dental treatment, including pharmaceuticals, to a member of the family of an ADF member. Some explanation of this promise is necessary, given the amendments proposed in schedule 2, as it would seem any planned regulations are likely to be directly related to this provision.

In the lead-up to the election, the Labor Party promised free medical and dental care for ADF families, stating in Labor’s Plan for Defence that:

ADF families can face significant difficulties obtaining access 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.

However, come budget time the government funded the promised entitlements only as a trial, clearly failing to deliver on this extraordinary pre-election commitment. May I remind the House that that elaborate election commitment included the promise of dedicated Defence family healthcare clinics which would be open five days a week and include a doctor, nurse, dentist and dental nurse. The election policy promised that Defence family healthcare clinics would be located at Lavarack Barracks, Townsville, for around 4,000 dependent spouses and children and at all Defence facilities in and around Townsville, and at Robertson Barracks in Darwin for around 3650 dependent spouses and children at all seven Defence facilities in and around Darwin. The remaining 10 were to be located in Cairns in the electorate of Leichhardt, RAAF Edinburgh in the electorate of Wakefield, Elizabeth North in the electorate of Wakefield, RAAF Amberley in the electorate of Blair, Jerrabomberra in the electorate of Eden Monaro, Williamtown in the electorate of Newcastle, Shoalhaven in the electorate of Gilmore, Singleton in the electorate of Hunter, East Sale in the electorate of Gippsland and Karratha-Pilbara in the electorate of Kalgoorlie.

Instead of the $33.1 million that they promised, they have allocated only $12.2 million over four years to trial the provisions of basic GP services and limited dental care to families of ADF members in the selected locations of Singleton, Katherine, East Sale, Cairns and Karratha-Pilbara. The budget allocation of $12.2 million over four years falls some $20.9 million short of the election promise, while the amount allocated for 2008-09 is only $2.4 million, with dental care limited to $300 per dependant per annum. Having pledged that initial $33.1 million investment to start these 12 Defence family healthcare clinics with a focus on remote base locations and major regional centres, only five of the rural and remote Defence locations were mentioned, excluding, amongst others, Townsville and Darwin where the commitment to provide clinics was replaced by a plan in which families would have to access the health department’s GP Superclinics in Darwin and Townsville. Similarly, instead of providing the promised Defence healthcare clinics, Defence families in other limited locations are now to source their own doctor and dentist. This can be very hard on a family every time that they are posted to a new base. Given that the regulations likely to be made and/or changed following the amendment of schedule 2 of this bill are those that will allow for the provision of medical and dental health care by the ADF to civilian family of ADF members, there are a number of areas of concern to the coalition regarding this proposed entitlement.

As stated, the bill provides for the making of regulations about medical and dental treatment for a ‘member,’ ‘cadet’ or a ‘member of the family’ of an ADF member. These terms are defined in section 58A of the Defence Act as follows:

‘member’ includes a person who has ceased to be a member, whether by reason of death or otherwise.

‘cadet’ means an officer, instructor or cadet in the Australian Army Cadets, the Australian Navy Cadets or the Australian Air Force Cadets, and includes a person who has ceased to be such an officer, instructor or cadet, whether by reason of death or otherwise.

‘member of the family’ includes:

(a)

in relation to a member—a member of the household of the member and a dependant of the member; or

(b)

in relation to a cadet—a member of the household of the cadet and a dependant of the cadet.

It is important to note that, under the act, the term ‘member of the family’ includes but is not limited to a member of the household and a dependant of the ADF member or cadet. There are some concerns here as to what model will be used to determine the meaning of the terms ‘household’ and ‘dependant’ in the provision of such an entitlement. Thus the extent of medical and dental treatment, if any, available to persons other than members of the ADF and their families is not clear. The terms ‘member of the household of the member’ and ‘a dependant of the member’ are not defined in either the Defence Act or the bill. It is therefore not clear whether the proposed medical and dental treatment could, for instance, be extended to people other than spouses and dependent children who are members of the household of the member. It would seem to hang on the extent of their dependency, and it is not clear whether the member of the household of the ADF member must be totally dependent or whether they need be only partially dependent on the member in order to receive the proposed medical and dental care. Given that the government is still apparently promising to extend free health coverage to all ADF family members, the financial ramifications of such definitions could be considerable.

Another area of concern is the provision of such an entitlement to reservists. Section 4 of the Defence Act 1903 defines a ‘member’ as including any officer, sailor, soldier and airman. It is not clear whether the government, through this bill, intends that reserves and their families are to be included in the class of persons who will have access to the proposed medical and dental treatment. This would, perhaps, seem unlikely, given that in section 4 and elsewhere in the Defence Act—for example, section 58B—a distinction is drawn between the terms ‘member’ and ‘member of the reserves’. Does this mean that reservists and their families will not be covered for medical and dental treatment? And, if they are not to be included, why do families of ADF members get preferential treatment over reserves? Why is free health care offered to non-ADF persons before reservists, many of whom are currently serving their country overseas and have recently been counted amongst those who have made the ultimate sacrifice in giving their life in service to their country? We remember, sadly, the recent death of Private Gregory Sher.

There are also concerns about whether the relevant medical and dental care entitlements are to be contained in planned regulations. The details of the treatment available to ADF members are contained in Defence Instruction (General), issued under the authority of the Secretary of the Department of Defence and the Chief of the Defence Force. In particular, Defence Instruction (General) PERS 16-1 emphasises that health care for ADF members is based on operational readiness, as well as equity with Medicare, stating:

The Australian Defence Force … requires the medical and dental fitness of its personnel in order that they are able to undertake operational duties. As such, the provision of health care by the Defence Health Service … to members of the ADF is a requirement of service.

It goes on to state, in paragraph 5:

Equity with Medicare under the provisions of the Health Insurance Act 1973 underpins the basic entitlement to the range of medical services provided to members of the Permanent Forces. Usually the range of, and ease of access to, health care provided to such members will exceed that available through the public health care system because of the requirement to meet and maintain operational readiness. However … the Director-General of the Defence Health Service … will, from time to time, issue policy which may exclude or limit the provision of certain medical or dental treatment on the grounds that such treatment is contra-indicated or unnecessary for operational readiness.

It is not clear whether the nature and extent of the medical and dental treatment provided to family members 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 to the individual service chiefs, as is the case currently with the relevant Defence Instruction. It would seem preferable, in the interests of transparency and accountability, that the medical and dental care entitlements are contained in regulations which would be subject to disallowance under the Legislative Instruments Act 2003, rather than in internal Defence documents such as Defence Instruction. Yet, as I said, there has been no explanation about such detail.

The coalition is not alone in its concerns. Even the Defence Force Welfare Association have expressed serious reservations about the government’s plan. I quote from a recent statement entitled ‘ADF healthcare trial: the hidden tax slug!’ which states:

The medical component of the trial is based on a payment being made to general practitioners who participate in a program to bulk bill eligible dependants for eligible services. Basic dental services, capped at $300 per dependant per year, may be accessed by eligible dependants at any dental practice in Australia.

However as with many ADF ‘benefits’ there is a sting in the tail that Government conveniently neglects to mention: in this case, the benefits associated with the trial will be considered a fringe benefit under the Fringe Benefits Tax Assessment Act 1986. Consequently, the benefits will be subject to FBT and the FBT will be paid by Defence. However depending on individual circumstances the ‘grossed-up’ value of the benefits provided during the FBT year may be recorded on a member’s annual payment summary.

We therefore recommend participating members seek financial advice relevant to their individual circumstances before registering for the trial.. Participation in the trial is voluntary and members may elect to participate only in the medical or the dental, or both, and may decide to only register certain members of their family. Participants may also opt out of the trial at any stage, or change registration as required. For example, a child with a Health Card may only require the Dental component of the trial, with the remaining dependants requiring both Medical or Dental.

It is also worth mentioning here that Labor’s election promise specifically acknowledged that ADF families can face significant difficulties obtaining access to general medical and dental care for dependants, especially in regional and remote localities. Now that the plan to provide ADF health clinics in these locations has been dumped, how will this trial plan, where people must source their own GP and dentist, help these families?

It is my opinion that the Labor Party has dishonoured the defence community by breaking its promise to provide free medical and dental care and to do so through the creation of dedicated defence health care clinics. Given the little, or no, explanation or articulation from them of the details and parameters of either their initial or current plan to provide free health care to ADF families, they appear to have made this promise either without any comprehension of what it would take to implement it or with no intention to actually deliver on it. If this is the case, is there any worse betrayal? The Prime Minister and the Minister for Defence looked our service men and women in the eye and made them a promise they had no intention of delivering upon, and it would seem they did so only for political gain.

As I have said, the coalition has no reservation in supporting any measure which more efficiently allows for the provision of health care to members of the Australian Defence Force. However, we would be much more comfortable in supporting these particular amendments if the government would provide at least some detail of the proposed regulations relating to the provision of free health care to ADF families.

The issue now is, given the Rudd Labor government is simply handing out cash reimbursements or vouchers for GP and dental visits, why this is limited to a couple of select bases as a trial. It should be spread across the whole of the Defence Force. In fact, today I call on the minister to expand this ‘trial’ to every serving defence family and to stop discriminating. Now that the government is not providing clinics it can be equally hard to get access to a GP or a dentist no matter where you are posted.

Schedules 3 and 4 of the Defence Legislation (Miscellaneous Amendments) Bill 2008 amend the Defence (Special Undertakings) Act 1952 to provide that the Joint Defence Facility at Pine Gap is a prohibited area. These amendments were designed to overcome certain shortfalls in the drafting of the act which were brought to light by both the Northern Territory Criminal Court and the Northern Territory Criminal Court of Appeal in the prosecution of four protesters charged under the act with breaking into the Pine Gap facility after cutting through wire fences in 2005 to gain entry.

The Joint Defence Facility Pine Gap contributes directly to the national security of both Australia and the United States by verifying arms control and disarmament agreements and by the monitoring of military developments. Australia also supports the United States in its ballistic missile early warning program through the relay ground station at Pine Gap. This program makes a significant contribution to global security.

The coalition supports these amendments and is well aware of the circumstances which highlighted their need. Section 8 of the Defence (Special Undertakings) Act 1952 provides that the Minister for Defence may, by notice published in the Gazette, declare an area of land or water to be a prohibited area if it is necessary to do so for the purposes of defence during protests, many of which have been anti-nuclear or anti-USA in nature.

In December 2005 four protestors cut through wire outer fences to access the facility and were subsequently charged with indictable offences under the Defence (Special Undertakings) Act 1952—charges carrying a possible custodial sentence of up to seven years. Serious issues and concerns arose during the prosecution of the four protestors when it was contested whether the area on which each of the defendants allegedly committed the offences was in fact a prohibited area. The Crown case argued that there was a valid declaration that the Joint Defence Facility Pine Gap was a prohibited area and that the activities of the four defendants in that prohibited area were therefore subject to criminal penalties.

In their defence, the four protesters sought to challenge the Crown case based on the interpretation of section 8 of the Defence (Special Undertakings) Act 1952. They argued that the minister’s declaration in 1967 was invalid. Particularly, they sought to establish that in 1967 the Pine Gap facility was not being used for defence purposes. In addition, the defendants also sought to advance a case that the Pine Gap facility was not a prohibited area in 2005 on the basis that in 2005 the Pine Gap facility was primarily used for the purposes of aggression rather than defence and therefore the continuation of the declaration was not necessary for defence purposes.

The trial judge ruled that evidence about these matters was inadmissible and in June 2007 the four were convicted and fined over $3,000 but not given custodial sentences. The trial judge also ruled that the precondition to the exercise of the power to declare an area a prohibited area under section 8 was satisfaction by the minister that the declaration was necessary, rather than the objective fact that the declaration was necessary for defence purposes.

In February 2008 the convictions were overturned on appeal to the Northern Territory Criminal Court of Appeal. In making his decision, Chief Justice Brian Martin stated:

It is appropriate to note that following the ruling by the trial Judge, in the conduct of the trial it appears to have been overlooked that in challenging the validity of the declaration, the defendants were entitled to attack the basis upon which the Minister in 1967 reached his state of satisfaction that the declaration was necessary for defence purposes. If, as an objective fact, the declaration was not necessary for defence purposes, that fact could be used by the defendants to mount an argument that in the absence of a factual basis for the declaration the Minister could not reasonably have been satisfied that the declaration was necessary for defence purposes. This was a way in which the defendants could seek to attack the validity of the declaration under the terms of her Honour’s ruling. However … this basis of relevance appears to have been overlooked.

The Joint Defence Facility Pine Gap makes critical, vital contributions to the security interests of both Australia and the United States of America and is an outstanding example of the level of cooperation that has been achieved in Australia’s closest defence relationship. The Defence (Special Undertakings) Act makes it an offence to enter, without government approval, a place used for a special defence undertaking. Such an undertaking is defined as one for the defence of Australia or ‘some other country associated with Australia in resisting or preparing to resist international aggression’. These amendments to the Defence (Special Undertakings) Act 1952, contained in schedules 3 and 4 of this bill, are intended to overcome the inadequacies in the drafting of the Defence (Special Undertakings) Act 1952, which were highlighted by both the Northern Territory Criminal Court and the Northern Territory Criminal Court of Appeal in this matter.

The coalition supports these measures unreservedly, However, I wonder if the Labor Party can say the same. Over the years the honourable Minister for the Environment, Heritage and the Arts, Peter Garrett, has voiced his opposition to the facility in both song and speech, campaigning vehemently for its closure. It would be interesting to know his thoughts on these amendments, which will, in effect, make it easier to prosecute his fellow protestors. I commend this bill to the House.

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