Ross Hart (Bass, Australian Labor Party) Share this | Hansard source

I rise today to speak on the Defence Legislation Amendment (2017 Measures No. 1) Bill 2017. Labor is supportive of any measure that serves to better support Australia's Defence Force—the ADF personnel. The special nature of defence service is often highlighted in speeches in this place. Indeed, we have heard that from two contributions this morning. This is another case where there needs to be recognition of the nature of service, particularly with respect to service in the Reserve, and the medical treatment of members and/or treatment of their next of kin. Our ADF members put their lives on hold to serve and protect our country, and we owe them our unwavering support during and after their service. Sometimes what we seek to achieve in the nature of legislative reform is lofty in purpose, but sometimes the measures that we seek to address are more practical and more basic in nature. There is nothing of great geopolitical moment or significance in this proposed legislation. It might at one level be regarded as dry and procedural. Nevertheless, as I've indicated in my opening, sometimes the dry and procedural, the minor changes, the smoothing of processes and attention to detail, is of significance to those who have served on our behalf, those who are required to step into danger and those who in many cases look to the express and implied promises that we will look after them in their time of need.

Labor is supportive of this legislation being passed promptly, particularly having regard to the delayed history, which I will later address in this contribution. The bill effects a range of changes, each addressing separate and distinct issues. The bill comprises four schedules which seek to smooth processes, increase protections for Reservists, realise a recommendation from the first principles review of Defence and add contemporary definitions of 'children' in relation to members with respect to superannuation and retirement, and enables reclassification of those who leave Defence and later find out that they could have been medically discharged.

The first schedule addresses a practical issue with respect to medical treatment of defence members. Again, this is something which is designed to smooth processes and remove the possibility for procedure being invoked with respect to a positive drug test. As a former practising lawyer, I can well understand the frustration and anxiety which must arise under the present system upon a positive test for a prohibited substance. The present procedure requires a show-cause procedure to be invoked. This effectively requires, despite the possibility of a reasonable excuse, the defence member or defence civilian, as the case may be, to engage with a process which is geared towards termination. This bill seeks to implement legislative reform required to simplify the conditions upon which a positive test result for prohibited substances must be disregarded when ADF members and civilian employees have used over-the-counter or prescribed medications.

As it stands, defence members and defence civilians who test positive for a prohibited substance solely because they took a prescribed or over-the-counter medication are currently required by the act to show cause why they should remain in the service or why the arrangement at which they are engaged as a defence civilian should not be terminated. This amendment will insert a provision into the legislation which means that a member's test result will be treated as a negative result when the medication has been administered, supplied or prescribed by medical officers, nurse practitioners, dentists, pharmacists or other health professionals who hold authorisations approved by their Australian national registration boards. Further, this provision will apply when medications have been administered, supplied or prescribed by Defence internally authorised health and allied health professionals or Defence-trained health staff, or have been obtained as an over-the-counter medication as a pharmacy medicine, pharmacist-only medicine or a general sales medicine. This is a commonsense approach that does not make our ADF members feel like they've done something illegal. A practical approach is to be preferred rather than automatically invoking a set of procedures which must involve significant stress, anxiety and resources to be devoted to the circumstances of the particular case.

The second schedule seeks to amend the Defence Reserve Service (Protection) Act 2001 to ensure that all reservists would be eligible for the full range of protections under the act in respect of their employment. Again, it is important to reflect upon the reason why, from a public policy perspective, measures such as these are necessary and appropriate. It is obvious that the Defence Reserves plays a vitally important role at very many levels in providing for an effective, efficient and engaged Australian Defence Force. There is, of course, an obvious conflict between the normal activities of a defence reserve list member, whether that be in the workforce or in education, and service in the Defence Reserves. The amendments in this schedule are designed to address and facilitate the mitigation of some of the disadvantages Reserve members might face when rendering defence service because of their absence from their workplace, their education provider and/or absence overseas. The very helpful Bills Digest with respect to this legislation provides some of the background to these amendments.

It is interesting to note that the protection review undertaken by Major General Neil Wilson in April 2007 was initiated to assess the appropriate levels of protection for civilian occupations without burdening employers with unnecessary compliance. It is suggested that the review outcomes were not publicly announced due to the fact that the review was undertaken in an election year—an election which subsequently resulted in a change of government. Three subsequent defence white papers in 2009, 2013 and 2016 all noted the importance of defence reservists to the ADF's overall capability, but there has been no explicit mention of changes to the policies based upon the findings from the review undertaken by Major General Wilson. The explanatory memorandum of this bill does indicate that the protection review concluded that overall the Defence Reserve Service (Protection) Act was working well and achieving its objectives; nevertheless, enhancements were recommended.

It is useful to consider the scope and significance of our ADF Reserve force. In 2001, there were 19,830 ADF Reservists. This was 22.4 per cent below the budget estimate. By 2007, the number had increased to 23,810. The most recent Defence annual report shows that 19,338 Reserve members received pay for days served; although this does not record the total number of Reservists but those who were in some way engaged sufficiently to trigger payment for days served. The importance of the Reserve is also highlighted by the statistics as to deployments. Since 1999, approximately 14,000 Reserve members have deployed on operations in Australia and overseas. This represents approximately 18 per cent of all deployed ADF personnel. It is notorious that the ADF has increased its operational tempo with overseas peacekeeping and training roles as well as service in overseas theatres, which, in turn, has seen a greater use of Reserves to support large-scale national security events, including the Olympics and the Commonwealth Games, and humanitarian assistance. Disaster relief operations have also seen significant ADF Reserve deployments, including the 2009 Victoria bushfires, the 2011 Brisbane floods, and regional deployments, including Timor-Leste and the Solomon Islands.

The ADF has made changes to its workforce structures and policies which involve the implementation of a total workforce model, including changes to service categories to allow greater flexibility for permanent and Reserve members. These structural adjustments have been positively acknowledged by Reserve advocates such as Paul Irving, the then national president for the Defence Reserves Association, who has stated that this has raised the awareness of the Reserve capability. However, this association has been sceptical of the degree of difference it would make to the overall use of Reserve members. In fact, the association has been critical of the low priority given to Reserves, including the delay with these proposed amendments to the Defence Reserve Service (Protection) Act, which was reportedly moving through the system and was supposed to be considered by this parliament in 2015. It can be fairly said that, if there was criticism of delay with respect to the introduction of amendments which were supposed to be introduced in 2015 with bipartisan support, whilst these measures still receive that bipartisan support it has taken far too long for these amendments to reach the parliament.

The objective and policy behind the Defence Reserve Service (Protection) Act is, as appears in the original 2001 Bills Digest, to provide for the protection of the Reserves in their primary employment and education. It facilitates their return to civilian life. The basic protections provide for the members' employment status and entitlements, such as accrued leave, to be protected, they protect members from a partnership being dissolved while they are absent on defence service and they allow members to re-enrol in and resume a course of education that was disrupted because they undertook defence service. There are additional protections in addition to the basic protections, which address the postponement of debts that a member might be liable to pay or would otherwise fall due after a member starts to render service as a result of a call-out; protection from bankruptcy proceedings whilst the member is rendering service following call-out; and allowing a member who has rendered defence service after a call-out to obtain access to loans and guarantees to enable that person to resume civilian life after returning from service. There are also protections against discrimination, which make it unlawful to refuse to give work to a person on the grounds that that person is rendering, has rendered or might in the future render defence service.

The amendments made by this legislation improve clarity and consistency and address some gaps in the protections I've broadly outlined. The amendments operate to expand the scope of employment, partnership and education protections, apply to all defence service by Reserve members and introduce a new expanded definition of operational service. The amendments also expand the scope of the financial liability and bankruptcy protection to apply to all operational service by Reserve members. They also clarify the employment protections to give greater certainty about Reserve members' rights when they are absent from employment to render defence service. They also enhance the education protections to create an obligation on education providers to make reasonable adjustments to accommodate Reserve members' defence service. They introduce antivictimisation and antiharassment provisions to improve the experience of Reserve members in their civilian workplaces. Finally, they introduce a civil penalty regime as a complement to the criminal offences which already exist within the act.

The amendments are sensible and implement the recommendations of a review in 2008 made into this act, which was introduced first in 2001. Our Defence Reservists should be valued. It is regrettable that this portion of the legislation has not received greater priority.

The third schedule transfers the hydrographic, meteorological and oceanographic functions from the Royal Australian Navy to the Australian Geospatial-Intelligence Organisation in accordance with the recommendation from the first principles review of the ADF. The transfer is expected to realise synergies in the exploitation of imagery and other data to produce intelligence and non-intelligence geospatial-related information which will support Australia's defence interests and other national objectives.

Schedule 4 operates to align a small number of provisions in the Australian Defence Force Cover Act with other military superannuation schemes and to provide clarity on the definitions of an eligible child of a member or invalid. The amendments will also ensure that a member who has resigned from the ADF and later finds that they could have been medically discharged will be able to apply to the Commonwealth Superannuation Corporation to have their mode of discharge circumstances reassessed. This is consistent with other military superannuation schemes and of course makes very good sense.

The schedule also creates a more contemporary definition to allow a child to become eligible at a later date when the child is found to be ineligible at the time of the member's death. This of course is beneficial in operation and is designed to address a number of shortfalls in the present legislation, which only assesses a person's eligibility at a particular point in time. The example given by the government is that a child over the age of 18 might cease full-time study to care for a veteran. As they are over 18 and not a student they would not otherwise be regarded as a dependant but would be a dependant if they were studying. This amendment would allow a child to become eligible for a benefit in additional circumstances.

Overall, these measures, whilst not groundbreaking, are sensible and continue bipartisan support for the ADF and former members. Labor supports this bill.

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