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

I move:

That this bill be now read a second time.

The purpose of the bill is to address five separate measures:

The first measure amends the Defence Act 1903 to establish the Defence Honours and Awards Appeals Tribunal by legislation.

In 2007 the Australian government, in accordance with an election commitment, undertook to establish an independent tribunal to consider longstanding defence honours and awards issues and identified a number of priority issues to be considered by the tribunal.

In July 2008 the Defence Honours and Awards Tribunal—the current tribunal—was established administratively so that inquiries identified by government could commence. As an administrative body the current tribunal can inquire into and make recommendations relating to issues referred to it by government. The government has undertaken to be bound by the current tribunal’s decisions. The current tribunal has no authority to make separate decisions or to independently review defence decisions concerning eligibility for defence honours and awards.

Prior to the establishment of the current tribunal in July 2008, there was no avenue of appeal open to Australian Defence Force members, ex-serving members, next of kin or others who had applied for medals and had their application declined. There was also no permanent body that could independently consider broader recognition issues relating to defence service.

The establishment of the new tribunal as a statutory body under the Defence Act 1903 will strengthen the tribunal’s independence, make the defence honours and awards decision making process more transparent and formalise the government’s 2007 election undertaking.

In this context, this measure inserts a new part VIIIC in the Defence Act 1903 to establish the Defence Honours and Awards Appeals Tribunal and provides for the:

• functions of the new tribunal:
• what decisions are reviewable by the new tribunal;
• who may apply for review;
• referral of general defence honours and awards issues for inquiry and advice;
• general provisions relating to the operation of the new tribunal;
• constitution of the new tribunal and appointment of members; and
• transitional provisions for the continuation of business of the current tribunal and the automatic appointment of current members to the new tribunal.

In particular the tribunal will have the power to review defence decisions concerning the eligibility of individuals for defence honours and awards. The tribunal will be able to hear appeals against a defence decision in relation to eligibility for a medal and replace it with a new decision or confirm the defence decision.

Individuals will be able to appeal directly to the tribunal, which will be known as the Defence Honours and Awards Appeals Tribunal, about their eligibility for defence honours and awards.

The government will also be able to continue to refer defence honours and awards issues to the tribunal for inquiry and recommendation.

The tribunal will not be reviewing eligibility to recommend a person for a defence honour or award that was made before 3 September 1939 or for service rendered before 3 September 1939.

The tribunal’s recommendations back to the decision maker will be the final step in the review process. However, a person will be able to apply for review of tribunal decisions under the Administrative Decisions (Judicial Review) Act 1977, and under section 39B of the Judiciary Act 1903.

The establishment of the Defence Honours and Awards Appeals Tribunal in legislation formalises the government’s 2007 election commitment to establish an independent tribunal to consider longstanding defence honours and awards issues. It will give applicants an opportunity to appeal defence decisions concerning eligibility for medals and will make the decision making process more transparent and accountable.

The second measure amends the Defence Act 1903 to ensure that there is procedural fairness in the termination and discharge process where a defence member has tested positive for a prohibited substance.

Part 8A of the Defence Act 1903 provides for the testing of a person to determine whether they have used any prohibited substances. The act also sets out who can perform those tests and the requirements for issuing a notice to show cause and the termination process.

The current provision does not provide for a step process between the issuing of the notice to show cause and the termination process—in other words, procedural fairness.

In its report into Military justice in the Australian Defence Force in 1999, the Joint Standing Committee on Foreign Affairs, Defence and Trade recommended that the Australian Defence Force review its current procedural arrangements to ensure organisational separation between the initiating officer and the decision maker for all administrative action involving the termination or discharge of a member’s service with the ADF. This would ensure procedural fairness in the termination and discharge processes.

The government accepted this recommendation and agreed to amend the act, as well as relevant defence regulations and defence instructions dealing with the termination of appointment of ADF members. The Defence Personnel Regulations and Defence instructions have been amended to take account of procedural fairness in the termination and discharge processes.

This amendment completes the Senate committee’s recommendation in relation to procedural fairness in the termination and discharge process where a defence member has tested positive for a prohibited substance. The amendment will also address the delegation provisions in relation to the issuing of a notice and the termination process.

The third measure amends the Defence Act 1903 to make it absolutely clear that section 58B determinations made under the act are subject to tabling and disallowance.

Prior to the commencement of Legislative Instrument Act 2003 (LIA), determinations made under sections 58B of the Defence Act 1903 were subject to tabling and disallowance. With the introduction of the LIA determinations made under section 58B of the Defence Act were expressly exempted by the LIA from being subject to the new legislative instruments regime. However, that exemption did not make it clear that section 58B determinations were still required to be tabled and subject to disallowance.

This amendment will provide that a determination under section 58B is to be subject to tabling and disallowance in accordance with section 46B of the Acts Interpretation Act 1901. The amendment will provide that a 58B determination will be gazetted and also made available to the public on the Defence website.

The amendment will also provide that paragraph 46AA(1)(a) of the Acts Interpretation Act 1901 applies to make clear that determinations under section 58B can incorporate, by reference, material from other 58B determinations, 58H determinations and determinations made under section 24 of the Public Service Act 1999, as in force from time to time or as in force at a particular time.

The fourth measure amends the Defence Home Ownership Assistance Scheme Act 2008 to ensure that it appropriately covers all Reserve members, regardless of the way they became a Reserve member.

The Defence Home Ownership Assistance Scheme was introduced on 1 July 2008. The scheme encourages retention by providing home loan subsidy assistance that increases as a member passes specified career points.

As at 31 January 2010, 18,363 subsidy certificates had been given to eligible ADF members. Of these, 10,273 members were in receipt of the subsidy assistance on a mortgage with a member of the home loan provider panel.

ADF member feedback indicates that the Defence Home Ownership Assistance Scheme is having a positive influence on retention.

The minor amendment to the Defence Home Ownership Assistance Scheme Act 2008 makes clear that members of the reserves who had transferred from the permanent forces are subject to the same treatment regarding their reserve service as members who were appointed or enlisted in the reserves from the beginning of their service.

The amendment will not affect any person’s entitlements that have been recognised before the amendment takes effect.

The final measure in the Defence Legislation Amendment Bill (No. 1) amends the Defence Force Discipline Act 1982 to enable the appointment of chief petty officers and flight sergeants as discipline officers, to clarify the jurisdiction of discipline officers and to align the punishments available to be imposed in respect of certain ranks.

The current discipline officer scheme allows certain Australian Defence Force unit personnel to enforce discipline for minor disciplinary infractions without having to resort to summary authority jurisdiction.

This is a quick and effective method by which junior officers, non-commissioned officers and members below non-commissioned officers who have pleaded guilty are afforded the opportunity to learn from relatively minor disciplinary indiscretions.

The discipline officers scheme was amended in 2008 to give effect to a previous military justice review to expand the scope of the discipline officers scheme to include ‘junior officers’, namely, lieutenant in the Navy, captain in the Army and flight lieutenant in the Air Force. It was also extended to allow warrant officers to be appointed as discipline officers.

On 23 January 2009, the final report into the Health of the Reformed Military Justice System recommended that the discipline officers scheme be extended to allow the Navy and Air Force equivalents of warrant officer class 2 ranks to be discipline officers.

This amendment will give effect to that recommendation to allow the appointment of warrant officers, chief petty officers and flight sergeants as discipline officers. The amendment will also clarify the jurisdiction of discipline officers and align the punishments available to be imposed in respect of certain ranks.

The five amendments addressed in Defence Legislation Amendment Bill (No. 1) will enhance the accountability and transparency of certain programs and schemes and entitlements for all ADF members.

I also want to place on the record the fact that one provision of this legislation directly affects me. The purpose of section 5 of the Defence Home Ownership Assistance Scheme Act is to ensure that a reservist can only obtain the benefits under the act where they provide sufficient effective service in a service year as provided in the act and associated regulations. The amendment to section 5 of the DHOAS Act closes off an unintended anomaly which made reservists transferring into the reserves under the Defence Parliamentary Candidates Act eligible for a housing subsidy even if they had not rendered the required 20 days effective service within two years of leaving the permanent force.

As someone who transferred into the reserves under the Defence Parliamentary Candidates Act, in my case from the regular army, I happened to fall within the anomaly which this legislation seeks to address. As a former member of the military, because of the anomaly, I am entitled to Defence housing assistance on the basis of my 20 years of military service and three warlike service deployments to Somalia, Timor Leste and Iraq. My deployment to Bosnia was not warlike service and is so not relevant for the purposes of this scheme. I have not to date received any benefit under the scheme. Although this legislation is not retrospective, following advice to me that the matter it seeks to clarify is an unintended anomaly, I want to make it absolutely clear that I will not be seeking to rely on the anomaly which is being removed in these amendments. I will also not be seeking a waiver of the effective service requirement to qualify for the scheme. Any entitlements I may have had in relation to the scheme will therefore expire. I commend the bill and the explanatory memorandum.

Debate (on motion by Mr Billson) adjourned.