Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I wish to refer to the first part of the bill, which sets out the title, the commencement and the definition. I want to draw the minister’s attention to the explanatory memorandum and his comments during his summing up that a national memorial is the same as a military memorial of national significance and that this debate has merely been a semantic debate. I reject that right from the outset and I would direct him to the outline and financial impact statement in the explanatory memorandum. I do so in this context. We as legislators have an obligation always to make the law clear, and definition sections of bills, the explanatory memorandum and the second reading speech—which are source material for courts, which may subsequently use them to make a decision—are most important. The outline says:

The Bill will provide a mechanism to honour the Government’s election commitment to declare the Australian Ex-Prisoners of War Memorial in Ballarat, to be a national memorial.

It then says why it needs a mechanism:

National memorials are recognised under the National Memorials Ordinance 1928 and are restricted to memorials within the Australian Capital Territory. This Bill will recognise the national significance of the Australian Ex-Prisoners of War Memorial in Ballarat and will enable, in the future, other memorials that meet specified criteria, to be recognised as a Military Memorial of National Significance.

It makes it quite clear that this is a new category of memorial. I accept that the minister said that this is the way to go forward. I agree with that. This is the way to go forward. I said in my speech in the second reading debate, and I will go on saying, that this is a magnificent memorial of enormous importance that needs to be recognised. The minister conceded that a change in law was required, as the previous Minister for Veterans’ Affairs always said, and that the spurious legal opinion going around was not worth the paper it was written on. The point is this: another way that this could have been done would have been to simply have a special piece of legislation to declare the Ballarat memorial a military memorial of national significance. It could have provided ongoing finance. Although the minister said in summing up that there is nothing in the ordinance that says funding for national memorials comes from the Commonwealth, the fact of the matter is that it does.

There are other aspects in this legislation relating to the question of funding that I want to go through during consideration in detail. I notice there was a line item in the budget for further funding for this particular memorial—to which the former Howard government had already given $500,000. We did that because we believed in the significance of the memorial. Here the government and the opposition are in fact in unison. It needed to be recognised. But I heard the parliamentary secretary rise in the House last week and say they were declaring a national memorial. That just is not true: it is a new category, it is important and it matters. To simply have semantic arguments when we are dealing with legislation and when there is the need to be precise simply will not do. We moved the amendment to put it on the record. In no way did we ever want to deny this bill passage, as I made quite clear all along. The Ballarat memorial for ex-prisoners of war is enormously important in our heritage. There are some other significant points in the bill I want to raise with the minister, but I would like to give him the opportunity now to reply to the points I have made.

Alan Griffin (Bruce, Australian Labor Party, Minister for Veterans' Affairs) Share this | Link to this | Hansard source

To go to the question on the status of a national memorial: the point we are making—and I think it is relatively clear in that paragraph—is that this is about national memorials outside the national capital. That is really what we are talking about here. It sets up the circumstance which allows that to occur. The shadow minister mentions the legal advice. I will clarify our position with respect to that. Our view is that that legal advice was capable of being acted upon. However, upon being appointed in government I had further discussions with the department. They raised some significant questions about what might occur in those circumstances. Therefore, it was a matter of what was the best way in which the government could meet its commitment and ensure that what was intended was actually put in place. In those circumstances there were several options that could have been pursued. This was, in our view, the best option and the cleanest and clearest option to ensure that we had a justifiable and defendable process in the future. The debate has centred around the Ballarat memorial because of the status of that memorial and the work that has gone on—

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

And its importance.

Alan Griffin (Bruce, Australian Labor Party, Minister for Veterans' Affairs) Share this | Link to this | Hansard source

and its importance, as the shadow minister interjects—and I agree. But it has also opened up the other argument, which is: if a memorial in Ballarat—outside the Capital Territory—can be of such significance, is there a possibility that other memorials might be considered in the same fashion? That was the very question that the previous minister was concerned about when he came to his view on funding implications. The government took the view that it was worth while putting in place a process to allow individual memorials to be considered but that we should ensure that that would not occur lightly. It is incredibly serious for a memorial to be granted such status. On the funding issue, I guess what we tried to do was to be up-front straightaway. There is no ongoing funding, there will not be ongoing funding and that is the way it is. That is the position of this government and will remain the position of this government with respect to memorials outside the national capital.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I want to go to clause 4(3) of the bill, just to reinforce the point that you cannot say that a national memorial is the same as a military memorial of national significance. You cannot say that black is white and expect it to be accepted. According to the explanatory memorandum:

... the memorial must be owned or managed by a State or Northern Territory authority and that authority must be responsible for the ongoing maintenance of the memorial, including financial responsibility. The authority must also be responsible for any refurbishment of the memorial.

You will notice it says that it must be owned by a state or the Northern Territory authority, because it specifically excludes the ACT. It says:

The Australian Capital Territory ... is excluded from this Act because national memorials in the ACT are approved under the National Memorials Ordinance 1928. The Ordinance applies only to National Land within the ACT. The Ordinance cannot apply to memorials located outside the ACT and this Act cannot apply to memorials located in the ACT.

In other words, it is stating very clearly that the two are not the same but are different, and it makes that difference for a very good purpose. In the ACT, the Commonwealth does pay for the ongoing upkeep. The bill makes it very specific. Part 3 of the bill says the Commonwealth is not responsible for declared memorials, which it is responsible for in Canberra under the old ordinance. This bill does not amend the ordinance. This bill will stand alone. Clause 9 in part 3, entitled ‘Miscellaneous’, says:

The Commonwealth does not have any responsibility (financial or otherwise) for a memorial merely because a declaration has been made under section 4 in relation to the memorial.

That is very clear. But a memorial that is declared under the ordinance of 1928 in the ACT is the responsibility of the federal government, whereas this bill specifically says that the War Memorial will not, must not and cannot be the responsibility of the federal government. I would ask the minister to reply.

Alan Griffin (Bruce, Australian Labor Party, Minister for Veterans' Affairs) Share this | Link to this | Hansard source

On the question of the difference with respect to the Military Memorials of National Significance Bill 2008 and the reason why the ACT is excluded, if you wanted to put it in absolutely anally specific terms, this is for national memorials outside of the ACT versus the question—

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

Mrs Bronwyn Bishop interjecting

Alan Griffin (Bruce, Australian Labor Party, Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I mean I am being specific.

Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

Keep it clean, please!

Alan Griffin (Bruce, Australian Labor Party, Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I meant no offence. I think we know in what context I meant that term. The member for Sturt knows, I am sure, that that is what I meant as he is a fine user of the English language on occasions and would know that what I meant was the retentive nature of what I said.

Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I am sure you meant anally retentive.

Alan Griffin (Bruce, Australian Labor Party, Minister for Veterans' Affairs) Share this | Link to this | Hansard source

Indeed. My point, though, is that, in respect to the actual situation, that is the difference. On the question of what occurs in relation to the ACT and national memorials in the ACT, it is my understanding that there are different approaches taken around the question of funding provision for maintenance et cetera with respect to some memorials which are national memorials in the ACT. My understanding is that, for example, the financial support for maintenance of the police memorial is provided through police sources. I believe that to be the case. I have seen a report to that effect. I also understand, from some discussion that I have had, that different sources sometimes provide the financial support or have, on occasions, passed that financial support on to authorities that have then had responsibility. I do not think it is quite as clear-cut as what has been suggested.

My point, though, is that, if we get into an argument about funding and funding sources, I think we take away from the significance of what we are supposed to be talking about here, which is about recognition of how significant a memorial is. I do not think we want to get into a situation of arguing that it is about the question of how much money is provided in the longer term or get into a situation of saying a memorial that cost $5 million is better than one that cost $7 million or one that cost $3 million. The point here that we need to stick to and emphasise is that it is about the significance of what the memorial stands for and the size and nature of its construction—it is about the issues that go through the bill about what the criteria should be to judge these sorts of matters. My point is that this provides a vehicle for memorials outside the national capital to be considered on that question of whether they qualify as national memorials, and we ought not to be in a situation where we focus that onto a question about provision of national funding. Frankly, it misses the point.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

The reason I said that a second alternative would have been to have had a Ballarat prisoner of war memorial specific bill is that it then the bill could have provided ongoing funding for that memorial and the Commonwealth could have remained responsible for that memorial. I do believe that the nature and history of this memorial is such that it was deserving of such status. But the government has chosen to create this new category. As I listen to the debate that has gone on in the chamber, I heard again and again members talk about memorials in their own electorate—ones which, I would imagine, people are going to be making applications to have listed. The criteria are set out in the Military Memorials of National Significance Bill 2008 for how the Prime Minister has to be satisfied. Firstly, the minister has to be satisfied that the criteria, which are very broad, are met, and then the Prime Minister has to sign off on it in writing. Then it can be declared. I suspect that, in developing just what the meaning of these protocols or these criteria are, some people are going to become disappointed. The other thing that has not come out in the debate to this point is that the government retains the right to publish in the Gazette a revocation of such a declaration. It simply says in the bill:

if:

…            …            …

(i)

the Minister is no longer satisfied that the memorial meets the criteria specified in subsection 4(3); or

(ii)

the memorial has been altered since the declaration was made, and the Minister has not approved the alteration under section 5; and

If that is the case, it becomes automatically no longer so from the time of that signature or that gazettal; it immediately becomes a memorial which no longer has the title of military memorial of national significance.

The really disappointing part of this is that, because we are dealing with something that is so important in our national psyche and because of our national concern with memorials, which are important to us, the bill specifically declares that it is not a legislative instrument, which means that it is not subject to tabling disallowance in both houses of parliament, which in turn means that the parliament will have no say on whether or not that revocation of status of military memorial of national significance remains or fails. It will merely be on the personal interpretation of the minister of the day and the Prime Minister as to whether or not the memorial is, for instance, being modified in a way they do not approve of. Perhaps it is no longer playing a major role in the community or perhaps the flag protocols are not being observed. Indeed, because there is no money provided, it might have become run down and might not have been preserved.

By saying that we have this important new category of military memorial of national significance which, unlike a national memorial in the ACT, can by the stroke of a pen have its status taken away without the parliament having a say and with this legislation specifically saying that there will be no money or responsibility taken by the Commonwealth, I think we have created a difficulty for the way ahead. I would like the minister to respond.

Alan Griffin (Bruce, Australian Labor Party, Minister for Veterans' Affairs) Share this | Link to this | Hansard source

Again, I think we are getting into arguments around the edges about the nature of how this will operate. The intention from the government’s point of view is to ensure that there is an open process. If decisions are taken, they will be gazetted and it is clearly understood publicly that that is the case. It is hard to envisage a situation where something could occur with a memorial of this significance. An example I could think of would be perhaps a natural disaster such as the complete destruction of the memorial with the decision being taken that it is not appropriate to rebuild at a location. But I cannot think of too many examples.

The nature of what is intended, which goes off the criteria that are there, is that there is no doubt that these are memorials which will be maintained into the future. The intention with this bill is that the authorities that are currently responsible for them will continue to be responsible for them, in many cases as they have been responsible for them for 20, 30, 40, 50 years. There is the question of what might happen in the future with regard to other applications for national memorial status. There is no doubt, having heard from a number of speakers on both sides of the House, that individual members of parliament have a strong belief that there are memorials in their electorates that are worthy of consideration for national memorial status. I would say that that is true; there are certainly some that are. There are others that I think probably are of enormous significance in themselves that do not meet the criteria we are talking about. That is something that will be tested by an application process. It will be an application process where, as I said, the results will be clear and public and the circumstances are that the debate will be considered on that basis.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

As I said, the provisions in clause 4(3) set the criteria out very specifically. I have to say to the minister, one can talk about intent and one can talk in global terms. You can wish something will happen but, when you are talking about the initiation of a policy and you start to put that policy into legislation—and I am sorry; I know you are not a lawyer—you must put it in specific terms. It is our obligation as legislators to make it as clear and precise as we possibly can. You said I am talking at the edges when I am talking particularly about the clauses in the bill itself. That is the reason we have this discussion in detail because we are looking specifically at the way in which those clauses may impact.

So I now want to look at the general nature of clause 4(3) and what is required for a memorial to be declared a military memorial of national significance. It says that it must be ‘of a scale, design and standard appropriate for a memorial of national significance and appropriately dignified and symbolic’. In whose judgement is that to be the test? Secondly, it must commemorate ‘Australia’s military involvement in a significant aspect of Australia’s wartime history’ and that must be its sole purpose. Again, there are subjective criteria there. The memorial must have a ‘major role in community commemorations’. What is the evidence to prove that? How does one judge whether that is the case or not?

The observation of Commonwealth flag protocols in relation to the memorial is another requirement. Does it have to be every day, all day or a majority of the year—what is the test to be applied? The memorial must be ‘owned and managed by a state or Northern Territory authority that has responsibility, including financial, for the ongoing maintenance of the memorial and for any refurbishments’. It can be an authority under either the state or the Northern Territory and it may be an authority which has an ongoing nature or an authority that does not. What happens if that authority folds? What judgement will the minister make? The memorial must comply with ‘applicable planning, construction and related requirements’. That seems to be a straightforward requirement. It must be on public land. It must be publicly accessible and there must be no entry fee. What happens if some barricade is erected? What sort of judgement will be made there? The memorial must be a ‘completed and functioning memorial’. I am not sure what a functioning memorial is, but no doubt there will be some criteria developed. The bill says the memorial must not be associated with ‘a commercial function that conflicts with its commemorative purpose’. What will be the judgement about that? Will people be able to buy replicas of the memorial or whatever the case may be?

I note that there is provision for a regulation-making power. These are such broad definitions and their impact is so great. Even if one achieves a declaration for a memorial in one’s own electorate that makes it a memorial of national significance, what happens when those tests are no longer met and that status is taken away? As I said, it can be taken away by the stroke of a pen and without the parliament having any say because it is specifically not a disallowable instrument. There is power to make regulations. I wonder whether the minister will comment on the comments that I have made and also tell me whether or not it is intended that there will be regulations drawn up and what will be the timetable for those regulations if that is to be the case.

Alan Griffin (Bruce, Australian Labor Party, Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I am sorry; I was not alerted to the fact that there would be a significant amount of questioning occurring at the consideration in detail stage—there is no requirement that it be done—so I apologise to the House for having to seek further advice on aspects. It is getting much more like a dealing in the Senate, but that is fine. On the criteria with respect to the operation of the bill and how a decision will be made, what we have there, if you like, are the parameters—the basic bones for consideration. Yes, there will be an element of testing how those matters will be considered over time. I will use an example which relates to the operation of my portfolio now with something which I think is similar although not exactly the same. I think it makes the point by way of example. The Minister for Veterans’ Affairs has responsibility for the use of the word ‘Anzac’—where it can be used and in what circumstances. There are regulations with respect to that which outline a number of sets of circumstances for when it can be used in a commercial setting—for example, anzac biscuits cannot be called ‘cookies’ and so on and so forth. On a regular basis—and on a much more regular basis than I expect for applications under this legislation—applications come in from various sources seeking approval to use the term ‘Anzac’. When they do, applicants are required to consult with the department around the question of what circumstances they will use it in.

As is always the case in these circumstances, you can have only so much prescription around the question of the operation of the regulations, and there is often a need for some interpretation as to how you would apply the regulations. In those circumstances—and I note that Mr Deputy Speaker Scott would be aware of this from his time as Minister for Veterans’ Affairs—sometimes a judgement is required to be made as to whether or not the guidelines have been met. What do you do in those circumstances? You endeavour to form a judgement on the basis of advice. Your principal source of advice will be the department, but if there are other circumstances which may be taken into account then you could consult—and I have consulted—with ex-service organisations about their view and sometimes also with local authorities.

On this issue, those criteria give you the basis to work from. The minister will seek advice from the department and from other organisations like the RSL—in my view—and come to a decision. If that decision is viewed as being the wrong decision, I guess that will be tested in the court of public opinion. But I stress that I do not believe that we will face this situation on a regular basis, and I do believe that we have to test the legislation and any criteria on the basis of the applications received. I certainly believe that there will be a need to see how that develops over time, but I am conscious of the fact that this is a significant set of criteria which will not enable many very good memorials to meet. However, I believe that there are some that will. That will be tested through the application process in consultation with the department and the ex-service community.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

Minister, the reason we have consideration in detail of a bill is to see how, precisely, the legislation is going to operate. There is no provision in the bill for consultation with anyone. The decision is to be yours and the Prime Minister’s. Indeed, under the ordinance of 1928 there is a group of people who make a decision about the ACT and a national memorial. This is a different category and a different way that a decision is made as to whether a memorial will be a military memorial of national significance or not. So it is not good enough to say that there is some analogy with using the term ‘Anzac’ in relation to a cookie. I am afraid that we are dealing with a specific piece of legislation here. In that instance you are not. So there is a difference.

That is precisely why I said that a better route may well have been to have declared the Australian Ex-Prisoners of War Memorial in Ballarat a specific military memorial of national significance, given it ongoing funding and given it very specific status so it would be certain and not subject at any time to a revocation clause. That would have been my preferred way to proceed. Should there have been other memorials of similar importance, those could have been considered by the government as a matter of policy and further legislation introduced to make those memorials similar memorials of national significance. But in introducing a bill such as this and to simply say about the Ballarat memorial that it does not have to apply—in other words, that it, and it alone, is automatically said to meet the criteria, which is the way you have chosen to proceed—there is nothing to save the Ballarat memorial from the revocation clause. So, although you say that you are going to consult, there is no provision to consult—the decision is yours—and that is precisely why I asked you whether it is your intention to bring forward regulations and what is the timetable for those regulations if that is your intent.

Alan Griffin (Bruce, Australian Labor Party, Minister for Veterans' Affairs) Share this | Link to this | Hansard source

To pick up a couple of points there, clause 8 of the bill is actually on consultation. It does not give specifics, but it says:

For the purpose of making decisions under this Act, the Minister may consult any persons or bodies that the Minister thinks it appropriate to consult.

I think that is a standard situation, frankly, but it states the fact that consultation will be part of what occurs. The shadow minister referred to the issue around the ordinance and its operation with respect to consideration of memorials in the ACT. I guess the argument there is that the committee itself, if you like, is a consultative mechanism. The bottom line is that it is not required to consult with anyone either. The bottom line here is to have a bit of common sense, and frankly that is what we will be looking to try and do. I can assure you that that is the intention of the bill and the intention of the government in the future. I think we are really getting bogged down here a bit.

I will go now to the other points made by the shadow minister. The shadow minister’s position is that it would have been preferable to have passed a bill on the Ballarat POW memorial as a single piece of legislation. If that was the only national memorial that we thought ought to be considered or if we thought that we ought be in a situation where we accept that, other than for a specific location, a national memorial cannot be located outside of the national capital then that would be an approach one could take. Frankly, I would not want to see a situation where, every time a memorial was mentioned as being worthy of consideration as a national memorial, we would have to deal with the situation by individual, specific pieces of legislation. I do not think that would be a sensible use of the parliament’s time with respect to considering these matters.

There was a suggestion made in relation to the cookie reference that it is not a particularly appropriate comparator. This relates to the use of the term ‘Anzac’, which has particular significance in our society, which the shadow minister well knows. It is something which on occasions, and rightly so, is treated with tremendous reverence within the Australian community. That is why there are regulations which relate to its use. That is why it requires a ministerial decision around the question of when it can be used. It is because of many of the very criteria contained in this bill and the intention of this bill with respect to national memorials that in fact it is a very relevant comparator to use in the circumstances. It is about appropriate recognition for terms, or in this case for monuments, that are significant within the Australia community.

On the question of whether regulations will be required in future in relation to this matter, it is quite possible. Do I have a timetable on actions with respect to that? At this stage, I do not. I am happy to get back to the shadow minister with respect to that. I now understand that the shadow minister’s intention is that this bill will go through the other place unamended. That is not something we were clear on until just now. We have a view about how something will operate but, while there is still a question mark over what in fact is being passed, it is best to wait to see what we end up with before we go to the question of what our next step will be beyond that. The fact of the matter, though, in respect of this particular issue is that this is legislation which provides a capacity missing within the Australian community to deal with national memorials outside the national capital and therefore it ought to be supported.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

This will be my last intervention on the Military Memorials of National Significance Bill 2008. It is to simply say that my intention was made clear all along—that the bill would receive the backing of the opposition because it is important for the bill to pass. However, it was important to make the point and hence the amendment, which is of course preceded by the words ‘while not declining to give the bill a second reading’. That is precisely why we did not vote against the bill on the second reading, why we did not divide and why it will go through the Senate unamended. We had to make the point that you cannot just call it a semantic argument and say that a national memorial and a military memorial of national importance are exactly the same. You cannot say that white is just pale black. They are not the same and the distinction had to be made between them.

In listening to the debate it was really very moving to hear many members talk about the significance of memorials that they have in their own electorates. Clearly some of them intend to hopefully see them recognised under the new classification. We will be watching this with interest. I am pleased to hear you say, Minister, that you will be making regulations if you see that that is necessary, because the criteria and the parameters as set up are broad. To comment on your comments relating to the decision you have to make about the term ‘Anzac’, it is the most revered term we have in our lexicon in this area. You and I both agree on that, Minister. I think we both agree also on the significance of the Ballarat prisoner-of-war memorial. It is of enormous significance to the 36,000 who were taken as prisoners of war and to their families.

Alan Griffin (Bruce, Australian Labor Party, Minister for Veterans' Affairs) Share this | Link to this | Hansard source

Briefly, basically I agree with the comments made by the shadow minister in the last components of her contribution. There is no doubt about that. I think we are all as one in terms of the significance and importance of this and the fact that the POW memorial in Ballarat is a fantastic memorial that does justice to the tremendous courage and sacrifice of those it commemorates. I look forward to being in a situation where we can in a bipartisan fashion commemorate that in the future.

I understand the tactical approach taken by the opposition to dealing with this bill. I do not agree with it, as you would expect. I would stress the point that, although I was clear on the circumstances with respect to what would occur in the lower house, as to the end result and the approach being taken I was not aware of what might occur in the Senate. I have seen plenty of occasions where an opposition—and I have been part of an opposition which has done this on occasion—has put up second reading amendments for various reasons in the lower house and then done its level best to seek amendments in the Senate of a substantive nature. That is not a new thing. Certainly it is something that for the next week the current opposition has the capacity to do, although it is a bit more problematic come September. Nonetheless I think we have covered these issues in a fair bit of detail now and I think the government’s intention is clear. I commend the bill to House.

Bill agreed to.