Stuart Robert (Fadden, Liberal Party) Share this | Link to this | Hansard source

I rise to make some brief comments on the Defence Legislation Amendment Bill (No. 1) 2009, notwithstanding some amendments we will seek to move with respect to parliamentary oversight. It is an important move forward for Defence to provide the standing military with an opportunity to provide ex gratia payments in the event of death or property and the destruction thereof. It is important to understand that defence, in combat operations, is operating in an ambiguous environment across land, sea and air, in conditions generally not of our choosing, on ground we did not select and operating more and more frequently in urban environments with highly technical gear. Whilst with a greater degree of precision in munitions and firepower, inevitably in all wars unfortunate civilian casualties occur. Whilst our Defence Force has made, and will continue to make, every effort to ensure that non-battle casualties are at best zero or at worst extremely minor, the harsh and brutal reality of combat operations is that fighting in difficult conditions, in difficult terrain, in unseasonable weather and against an enemy that at times is unidentifiable makes it extremely difficult. In such an environment, for a bill to come forward that provides a quick and easy manner for a battlefield commander to approve an ex gratia payment on the ground is most welcome. Whilst the death or, indeed, the destruction of property is unfortunate, for a commander to quickly and simply negotiate the issue, to achieve an agreed solution with communities and to exact payment on the ground within days or, indeed, hours will go a great way to ensuring strong relationships are built between Defence Force personnel and those in whose country we serve.

Presently the situation in the event of a civilian death, a non-battle casualty or the destruction of property may require an appropriation to Defence Force headquarters or perhaps even to parliament that can take weeks and, indeed, months and during that intervening period the ability to build a relationship with the people of that community or that nation is substantially and, in many cases, irreparably damaged while the waiting process goes on. If a field commander of appropriate rank could approve a payment on the spot that allows reparations to be made at whatever the going rate in the community is, it will allow our Defence Force to build those bridges, to acknowledge wrong, to compensate at the appropriate rate and level as is culturally applicable, and to move on. In that respect the bill is strongly supported. What is needed of course is a strong accountability process and an ability to understand exactly what is occurring on the field; hence, the amendments to be moved by the coalition on reporting to an appropriate committee such as the Parliamentary Joint Committee on Intelligence and Security or the Defence Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade.

There is also room, and I acknowledge the Parliamentary Secretary for Defence Support, to widen the legislation at some particular time. It is important that we look to the areas of intelligence and security and look at exactly how we can widen the ability for payments to be made by field commanders on the ground to achieve a whole range of outcomes—not just in the ex gratia component of a compensatory nature, but also in other areas where intelligence and security works. With that, considering the parliamentary secretary and I both served operationally overseas, and we both know exactly where dollars and cents could be used by field commanders on the ground, I will leave it stated.

Mike Kelly (Eden-Monaro, Australian Labor Party, Parliamentary Secretary for Defence Support) Share this | Link to this | Hansard source

It is a great pleasure to speak on this bill, and I acknowledge the words of my colleague the member for Fadden; he makes some very valid points. Certainly we have seen this sort of degree of discretion available amongst our colleagues in coalition environments such as the United States forces, who have what is known as the CERP funds available to them—the Commanders Emergency Response Program funds—which have been used to great effect in many operational environments. This legislation, for the tactical payments scheme and the defence homeowners assistance scheme, is vital for the two operational reasons of (1) dealing with our operational situation and enhancing our ability to operate in more difficult environments where there is no host nation authority available and (2) as an incentive towards retention and recruitment in the Australian Defence Force.

The tactical payment scheme is a defence-specific discretionary mechanism, which will be managed solely by Defence. This does not preclude Defence from having the option to use the existing act of grace provisions in the Financial Management and Accountability Act, but it does give the minister the power to authorise payments to a person who is not an Australian citizen who may suffer loss, damage or injury outside of Australia because of an incident that occurs in the course of the operations of the ADF, and the minister considers it appropriate. It acknowledges that in many cases and in many areas where the ADF operates, financial compensation for collateral damage to property or for injury or loss of life is often a common expectation of local cultures. In this respect, I claim some parentage in relation to this scheme in that the very first implementation of some sort of operational payments occurred in the context of Somalia, when the 1st Battalion, Royal Australian Regiment, was deployed to the area of the Bay province. I was very pleased to institute a tactical field payment system that relied upon the act of grace payments framework at that time. But it is interesting to refer to that experience to understand why this mechanism is so important.

My colleague the member for Fadden referred to those difficult operational environments akin to either counterinsurgency or stabilisation operations, also very similar to many peace operations contexts, where we have a situation where a host nation authority is nonexistent or is completely broken down, where the threat elements that you have to deal with may not be readily distinguishable from the civilian population and where the day-to-day operations of the troops may cause some incidental damage and disruption to civilian life. In Somalia that was the situation that applied. Quite often when we are dealing with the deployment of our troops to foreign environments in normal context, we will have perhaps a status of forces agreement framework within which compensation arrangements can be managed. Of course that is not the case when the mechanisms of the state have completely broken down.

It is very important for deployed forces to show respect for the host nation culture that we operate in. It is very important that we take their complaints seriously, that we deal with them as human beings. It is very important to do that to maintain the relationship between the deployed forces and the community. It also helps to build the support of that community in relation to the threat elements that we are dealing with. So there is a very real and practical purpose in an operational sense in instituting these measures, as well as the moral imperative of dealing with the compensation required for any damage that the force might cause. In Somalia we introduced a system whereby we had a complaints day, if you like, where any person who had a complaint or had suffered some damage as a consequence of the activities of the ADF could come forward to me and register their complaint. We issued the soldiers with field cards. They could hand these out to members of the civilian population who were aggrieved. The civilians could complete those cards and bring them forward to the complaints day. The soldiers would retain one stub of that so that the complaint could be investigated fully, appropriate compensation settled on and then the compensation paid.

It is interesting, though, that cultural circumstances do vary from time to time and some flexibility is required. In almost every operational environment that I have been deployed in there was some form of traditional dispute mechanism. In Somalia this was known as the ‘dia’. The death of an individual within a tribe would be compensated with camels. If a male died it would be 100 camels that you had to compensate the tribe with; if a female died it was 50 camels. Unfortunately, there is a degree of inbuilt gender bias there but that was the cultural system. We did not have camels to deal with the community. There was some thought—as a joke—to maybe ship them over in Tobruk, but what we did was work out the dollar value of a camel. On the basis of about US$100 per camel we worked out that compensation for any accidental death caused would be about US$10,000. We did have a situation where that did arise.

In general terms we would always deal with situations where damage to property occurred; for example, where APCs accidentally knocked over walls et cetera. These payments had to be administered through a fairly cumbersome process relating back through financial processes to Australia, which led to significant delays. In this sort of environment the quicker you can operate the less angst and grief you will cause.

Somalia was not alone in having this sort of cultural dispute resolution mechanism. In Timor there is the ‘adat’ system. You will see similar versions of this in Iraq, for example, where they have the ‘urf’ system and in Rwanda the ‘gacaca’ system. There are many versions of these tribal systems of compensation that you will encounter in many different environments so it is a very welcome additional tool to the golf bag that the commander will bring to bear in these very complex environments to help smooth the way of our forces.

Our experience has shown that the administrative requirements involved in making these payments as act of grace claims makes that system unsuitable for use in operational environments. The new system will allow for small, expeditious capped payments to be made in operations overseas and that will operate independently of the act of grace system. It will be managed and operated by Defence. The payments will be capped at levels set by government, taking into account a number of factors including, as I have mentioned, the prevailing culture and society within the area. Recognition of such customs is vital in building our relationships with local communities. The small delays in making payments can have a negative impact on those relations and this has had a great deal of bearing on the shaping of this legislation.

The TPS will operate independently of the act of grace payment provisions. Currently payments of this nature can only be made by the government under the act of grace provisions in the Financial Management and Accountability Act 1997. Defence may, of course, continue to have recourse to act of grace provisions, particularly where these amounts are large in nature. The TPS scheme will not necessarily preclude any further legal action that an individual might take in relation to actions of the ADF. One caveat will be that the TPS payments cannot be made more than 12 months after the relevant incident. So there will be a time limitation factor involved there.

The Defence Home Ownership Assistance Scheme that is also before us today is a scheme that I wholeheartedly welcome as well. This is a measure that was specifically designed and directed to deal with our recruitment and retention situation. As we know, the Defence Force has faced a significant challenge in recent times in relation to a very tight labour market, particularly in the area of our skilled Defence Force personnel, many of whom were drawn away to the mining industry. Something definitely had to be done in that respect. Now, of course, with the release of the white paper and the ambitious targets that have been set in relation to recruitment and the size of the Defence Force we require out to 2030, it will be important to implement measures along these lines.

I know from my contact with Defence personnel that this is a measure that was eagerly awaited, and lots of decisions about future career and separation from the Defence Force were put on hold pending the outcomes of the introduction of this legislation. Not only members of the regular forces but also those who render regular and committed service in the reserves will be supported and encouraged by this legislation. Introduced on 1 July 2008 as an initiative designed to improve that situation, the legislation provides for the payment of a subsidy on home loan interest for members and former members of the Defence Force. It encourages retention, as the scheme offers an incentive to members by rewarding them with increased assistance as a member passes specified career points. So there are aspects of this which relate to the amount of time that a member serves in a particular service, perhaps in active service or warlike operations overseas.

The legislation recognises that due to the nature of their careers defence families and members may find it difficult to purchase a home. This is a very significant point. We often have the situation these days that for a person to purchase a home it is essential that both partners work. But it is a regular requirement for our Defence Force personnel that they be moved around the country. In my own case that meant the sacrifice for my wife of her career, and you quite often become dependent on the single wage of the defence spouse. This is a significantly limiting factor in the ability of a Defence Force member to purchase a home. So this is only an equitable measure that we are taking for Defence Force personnel in distinction to the general community.

Since being introduced, the scheme’s administrator, the Department of Veterans’ Affairs, has issued 11,255 subsidy certificates to eligible ADF members and 5,197 have commenced receipt of the subsidy assistance. So it shows a very significant take-up of the scheme. The changes to the scheme will also remove the unintended windfall gain in the eligibility and entitlement of members who rejoined the ADF after a break in service prior to 1 July 2008 and will ensure members who rejoined the ADF prior to 1 July 2008 are provided with the same eligibility and entitlement as those who rejoined after that date. ADF service performed before a break in service of greater than five years is not considered to be effective service for the purpose of calculation of a member’s eligibility or entitlement. A break in service of not more than two years for members rejoining the reserves and not more than five years for members rejoining the permanent forces does not affect the member’s eligibility or service credit. The bill also ensures that only those members who are buying a home for the first time while a member of the ADF have access to the subsidy lump sum payment option.

This legislation represents the continuing concern that this government has for the welfare of our Australian Defence Force personnel. There is no higher priority for us. There is no issue that is higher on our agenda. This government is introducing a raft of measures to ensure the welfare of our Defence Force personnel, bearing in mind the old homily we use in the Defence Force that you recruit the soldier, sailor and airman but you retain the family. It is when a member achieves that position in his or her career, where there has been quite an investment of training and a lot of dollars spent to create a skilled and professional member, that the issue starts to arise about their continued service in the ADF once they have acquired a spouse and family. We have to make sure we target that decision-making period in a defence member’s life to ensure that we can hang on to that wonderful experience and professionalism. We have to be more flexible in their career design so that they can move in and out of reserve or permanent force service and bring back to us the civilian experience they have and perhaps find other creative ways to share their experience with industry but also make sure that when they render service, particularly in remote locations, we can provide them with the support they need in other areas such as in health et cetera.

Added to the measures that we have debated here today, we will now be moving forward to the health test which is being rolled out in remote regions such as in Karratha and Tindal and across the north and, moving into phase 2, we will see that expanded to Townsville and Puckapunyal and other locations such as Darwin. Thousands of Defence personnel will benefit from those health support measures which will make sure that families of defence members will have access to free medical health.

There are a raft of issues that we are aware of. We are implementing policies to make sure that we do retain our professional and experienced personnel. We owe them that much. Those in the Defence Force have arduous careers. A lot of people focus on the hazards and the casualties that occur in operations overseas, but extreme endurance is required just to get to the point where you are able to be deployed. Acquiring those skills and surviving the training is quite a hazardous experience. It is well and truly above what a normal member of the community may be expected to experience or endure during their careers.

These are measures that I believe we owe to our defence members. They are measures that we need to implement to make sure that a career in the Defence Force is the career of choice for Australian citizens.

Dennis Jensen (Tangney, Liberal Party) Share this | Link to this | Hansard source

The Defence Legislation Amendment Bill (No. 1) 2009 is welcome recognition—although it is very belated—of the changing nature of warfare. In the first half of the century since Federation we were involved in four major conflicts. There was the Anglo-Boer War, also known as the second Boer war, in addition to World War I, World War II and Korea. Those conflicts were essentially conventional in nature. They involved nation state against nation state and there were clearly codified rules of conduct with the warfare. In addition, peace treaties drawn up after the war were very conventional in form.

Subsequent to Korea, we have been involved in Vietnam, Iran, Afghanistan and a whole host of other what you could call brush fire wars. They certainly have not been conventional in nature. Indeed, the understanding of the conflict by the combatants is not the same as has been conventionally understood. Therefore, it is very necessary that there be some flexibility built into the system to ensure that—to use the terminology—we win the hearts and minds of the people we are at war with in addition to actually physically winning the military conflict. In these sorts of conflicts it is always the so-called peace that comes afterwards that is highly problematic.

In these situations we have to recognise the fact that things have changed. We are operating in different areas where there are different cultural niceties and sensitivities to observe. This is something we have not conventionally done. We have been very codified in the way that we do things. It is time for some flexibility to be built in. This is precisely what this legislation seeks to address. It allows payments to be made to families of people who have been killed, or otherwise reparations for damages or injury to be made, by an officer at lieutenant colonel rank or above or APS6 or higher. This is extremely welcome, but we believe there needs to be an accountability step included in this legislation. In our view, there needs to be reporting to a parliamentary committee or an oversight committee. Obviously, many of these payments will be sensitive in nature and you would not want those to be made public, but there should be that accountability step where parliament assesses not the legality but the ethics and morality associated with payments.

The other aspect of this bill that has been covered very ably by the parliamentary secretary concerned is defence homeownership. As he correctly stated, there are huge problems with defence personnel having to be shifted from different locations around the country. It is very appropriate that some assistance is provided for this. However, this bill removes the unintended windfall gain of members of the ADF who left the service prior to 1 July 2008 and have subsequently rejoined, effectively stopping the second bite of the cherry. It also ensures that only serving members purchasing a home for the first time have access to a lump sum payment. In summary, I and the opposition support the bill, both the tactical payment scheme and the defence homeownership provisions. However, with the tactical payment scheme it is our view that a further amendment needs to be put in, looking at aspects of parliamentary oversight.

Greg Combet (Charlton, Australian Labor Party, Minister Assisting the Minister for Climate Change) Share this | Link to this | Hansard source

The Defence Legislation Amendment Bill (No. 1) 2009 makes amendments for two separate measures. I will refer to them in summing up the debate. The first measure introduces a new part into the Defence Act 1903 to allow for a tactical payment scheme which will provide an efficient and effective means for making expeditious, no liability payments to persons who suffer damage, injury or loss due to ADF activities abroad. This is a very important amendment which is a direct response to Australian Defence Force operational experience, particularly, in recent years, in Iraq and Afghanistan.

I would like to thank all of those who have contributed to the debate. I also thank the honourable member for Lyne because he put forward a number of questions relating to the current act of grace scheme and why that scheme does not meet the needs of operational matters for defence. It highlighted recent experiences in Iraq and Afghanistan which have shown that the current administrative requirements involved in making act of grace payments do not enable timely and responsive payments to deserving individuals. While Defence and the Department of Finance and Deregulation have developed, over a period of time, a close working arrangement to enable timely payments, the turnaround time is still at least three to five days. As locals have an expectation of immediate financial recompense for damage or for injury, any delay runs the risk of causing ill feeling. This in turn may affect the ability of the ADF to win the hearts and minds of the local communities in which they are deployed. Respect for, and recognition of, local customs is vital for building relationships with these communities. In turn, it enhances the safety and security of our deployed ADF personnel to make such timely payments.

As the members for Paterson and Herbert also made clear, it is critically important to empower our people on the ground to be able to take immediate action. The tactical payment scheme allows our deployed personnel to address such instances in very rapid time. The tactical payment scheme has been developed in close consultation with the Department of Finance and Deregulation as well to ensure that it meets the needs of Defence and the relevant financial transparency and accountability requirements. To allay concerns raised in the debate over the reporting requirements and accountability of the tactical payment scheme, I can inform the chamber that the tactical payment scheme will be bound by strict and transparent parameters. Although the bill does not explicitly outline reporting, this does not mean that there are no provisions for accountability and reporting.

While there is no specific mention in the bill, the effect of the Financial Management and Accountability Act 1997 is that there is an obligation to report in the Defence annual report. This is similar to other equivalent schemes, such as act of grace payments and special circumstances payments made under section 73 of the Public Service Act 1999. To put this issue beyond any doubt, my predecessor in the portfolio, Minister Snowdon, wrote to Minister Tanner, the Minister for Finance and Deregulation, who has agreed to amend the finance minister’s order to explicitly recognise Defence’s obligation to report on the tactical payments scheme in the Defence annual report. The report will identify by operation the total amount paid for casualties and for other damage. The tactical payments scheme may also be subject to audit by the Australian National Audit Office.

All payments made in theatre will be recorded at the time of payment, in accordance with guidance provided by Headquarters Joint Operations Command. Specific details of payments under the tactical payments scheme will not be made public for reasons of privacy and operational security because of two reasons: firstly, disclosure may be dangerous to the safety of the recipients and compromise their privacy and, secondly, Defence is obliged to avoid disclosure of operationally sensitive information, particularly where that could endanger the security of deployed personnel.

I would also like to confirm that there will be no additional financial impact for this legislation because the tactical payments scheme will cover the payments that in the past have been made by other means, particularly through the act of grace mechanism, which are Defence portfolio funded. In sum, the tactical payments scheme we believe is an overdue initiative to allow small expeditious payments to be made to locals adversely affected during ADF operations overseas. The scheme will be bound by strict transparency, accountability and reporting procedures. Equally as important, it will allow Defence to remain respectful of individuals’ right to privacy and the need to protect them from being targeted by enemy forces.

There have also been some contributions made by many speakers on the second amendment, which relates to the Defence Home Ownership Assistance Scheme Act 2008, which provides the legislative basis for the operation of the Defence Home Ownership Assistance Scheme itself. The Defence Home Ownership Assistance Scheme commenced on 1 July 2008, but a number of unintended outcomes, inconsistent with the initial policy intent, subsequently became apparent. I think a number of the speakers, including the member for Tangney, made reference to this. The bill addresses these issues, ensuring the scheme is consistent with the initial policy intent. Finally, I thank all the contributors to the debate on this amendment bill and commend the bill to the House.

Question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.

Ordered that this bill be reported to the House without amendment.