Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

17): The question is that schedule 2 stand as printed.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

In the four hours since we last spoke about this matter, I have had some interesting information to hand. Clearly the matter that the parliamentary secretary raised in relation to the RSL and their lack of support for schedule 2 was correct. I also have a letter. Honourable senators will remember that basically it is the RSL, Legacy, the Vietnam Veterans Federation and the Defence Force Welfare Association who have expressed concerns about schedule 2. I will read to the chamber the following letter from Tim McCombe, the President of the Vietnam Veterans Federation:

I confirm that the VVFA has not seen the complete explanatory memorandum—

I received this at 2.42 today—

Our main concern with schedule 2 is that the amendment wording would give the Repatriation Commission almost complete discretion in offsetting matters. The wording would allow it to determine almost without restriction what constitutes the elements of its decision making. It goes much further than confirming a previous practice. Whilst the wording in the explanatory memorandum may inhibit the abuse of the amendment by the Repatriation Commission, it cannot guarantee that such an abuse will not occur even now or particularly in the future. In the case of such abuse, explanatory memoranda are not consulted in tribunal and court hearings unless there is ambiguity in the wording. There is certainly no ambiguity in the wording of these amendments. Offsetting is a basic feature of our compensation system. It is far too important a process to be largely left to regulation and the goodwill of bureaucracy. We remain strongly opposed to schedule 2 of the bill in its present form.

I was then advised that at 5.01 this evening—and I remind honourable senators that we commenced debate on this matter at 10 am this morning—the Vietnam Veterans Federation received for the first time the full explanatory memorandum. What a remarkable abuse of what should be good process. This is an organisation that the parliamentary secretary knows curries no favour for anyone in politics. They play their politics hard and they play fairly. If you are doing something that they do not agree with, they will let you know. They do so without fear or favour, as the minister knows and as I know. This is not some partisan group that has entered this debate. This is a group that historically, as I said, have only acted in the best interests of their members. They are not a party-political organisation. I think they pride themselves on the fact that both sides of politics keep on accusing them of supporting the other side, which is a pretty fair indication that they are doing something right. They were not given—and I hope the Greens are listening to this—the full EM until 5.01 this evening. I said to the parliamentary secretary that he cannot possibly tell this chamber that that is appropriate. I invite him to do so when I finish.

I told the parliamentary secretary this morning that if Legacy, the Vietnam Veterans Federation and the RSL were supportive of the schedule on the back of the amended explanatory memorandum then we would support schedule 2. Well, none of those organisations support this new EM having now had the opportunity to look at it. On that basis, we will not be supporting it. I now invite the Greens and their spokes­person—who apparently ticked off on this amended wording on the basis that she thought it was going to resolve some of the issues—having been told that these organisations do not support this new EM, or that it does not allay their fears, to vote against it. For the Greens to do otherwise indicates that this has been a political decision and not a policy decision. How else can it be interpreted? Their spokesperson herself said this morning that she supported this new EM on the basis that it would allay the fears of the ESOs. Well, it does not. So on that basis they cannot possibly support it. Therefore, I invite them again to support us in relation to the schedule. None of these groups support this amended explanatory memorandum. They still have the same concerns. The Defence Force Welfare Association does not support schedule 2, even with the amended EM. The RSL does not support schedule 2, even with the amended EM. The Vietnam Veterans Federation does not support schedule 2, even with the amended explanatory memorandum. Surely this chamber is not going to proceed with approval of schedule 2 while those organisations are still concerned about it.

I will give you some of the evidence that came through in the inquiry by the Senate Foreign Affairs, Defence and Trade Legislation Committee into the Veterans Entitlements Amendment Bill 2011. In his evidence at the public hearing on Thursday, 11 August, Rear Admiral Ken Doolan said:

I think the current arrangements give the answer. The current arrangements are the ones with which the Returned and Services League is comfortable. We have lived with those and explained them to our members. That is why we do not see the need for schedule 2.

Senator Fawcett then asked:

With the increasing number of people deployed in operational service at the moment, obviously there is potential for an increasing number of people to require compensation. Is it your opinion that these changes to the legislation could disadvantage any currently serving members in years ahead?

To which Rear Admiral Doolan answered:

That is what we have said.

I say to the Parliamentary Secretary for Defence and to the Greens spokesperson: if you vote against my amendment to remove schedule 2 you are effectively telling this chamber that you know more about this matter and have better judgement than have the RSL, the Defence Force Welfare Association and the Vietnam Veterans Federation. That is effectively what you are saying. You are saying that they do not know what they are talking about and that you are going to override their wishes on this matter.

It is worse for the Greens, the government's partners in crime. They have signed up to an amended explanatory memorandum which they say was going to resolve the issues of the ex-service organisations. Guess what? It does not. So how can you possibly provide the government with succour in relation to the schedule 2 vote? It would be an act of gross hypocrisy, were the Greens to support the government in relation to the schedule. As others have said, the government indicates on page 327 of Budget Paper No. 2:

The Government will clarify offsetting rules for veteran compensation under the Veterans' Entitlements Act 1986 (VEA), at a cost of $2.7 million over four years.

…   …   …

The Department of Veterans' Affairs will also improve the administration of offsetting cases through case manager training and enhanced systems support.

During the public hearing, Senator Fawcett asked the department to explain their statement versus their claim and the minister's claim that the amendments affect no-one and will have no cost. It is either one of the other. If, indeed the RSL, the Vietnam Veterans Federation and the Defence Force Welfare Association are right, and there will be potential impact, you cannot proceed with schedule 2.

As the parliamentary secretary knows, the amended explanatory memorandum does not have the force of the act. The act will be interpreted on the back of the plain language in the act. The EM will not in any way supersede that. The parliamentary secretary knows that as well as I do. That is the concern of the Vietnam Veterans Federation and the RSL. They know that full well, the parliamentary secretary knows that and the Greens spokesperson should know that. Get your systems in place. We support your systems, but do not, please, treat the ESOs with such contempt, when they have quite clearly indicated to you that, despite this amended EM, they are still extremely uncomfortable with this schedule. The parliamentary secretary and minister know that we do not need this schedule at this time. By the department's own words, there is not a current issue. If there is not a current issue, is this not about getting the processes right rather than changing the law, potentially to the detriment of serving men and women and ex-service men and women? When you have been alerted to the issues that the ESOs have got and you know full well that there is no urgency at all in relation to this matter, when you know full well that you are in the process of having further discussions with the department, which I presume will include the $2.7 million IT expenditure to 'improve the administration of offsetting cases through case manager training and enhanced systems support,' do that. And if you need to come back to this place for some legislative imprimatur in relation to what you find, let us talk about it then. Let us have a talk at that stage. Let us have the ESOs in a position to make some judgments about what you may or may not have found through the system and what the legislative requirements are, because no-one believes that this is required at this time. They say there will be an impact. You say there will not be. If your case is that there will not be, we do not need this schedule at this time. Get your systems in place, come back here and we will see whether this requires legislative change. As all these ESOs have said, they are not prepared to compromise a piece of legislation which they say is working at the moment for regulation which they say will not. (Time expired)

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Further to Senator Ronaldson's comments in relation to these amendments, I just want to deconstruct what the government is trying to do here. I am genuinely trying to understand what the effect will be in practical terms. Senator Feeney on behalf of the government has said that these amendments result in no change, that they will clarify and affirm the current position but not change it, or words to that effect. Of course, I will stand corrected if I have misrepresented the government's position in any way. The addendum to the explanatory memorandum states:

The proposed amendments will not change the current operation of the compensation offsetting provisions. The changes are intended to clarify the operation of the legislation following the Smith decision and ensure that the established compensation offsetting practices can continue.

The decision of Commonwealth v David Ronald Smith was an interpretation of section 30C of the VEA in respect of incapacity from injury. I think Senator Ronaldson and others have fairly set out the circumstances of the Smith decision. We know that the court found in favour of the respondent, Mr Smith. The Senate committee report on this, which I thought was a very fair summary, states that the court:

… formed the view that the Commonwealth’s submissions failed ‘to give sufficient weight to the complete operation of section 30C, in particular the reference to ‘incapacity from that injury' as found in section 30C(1)(c)' … The court decided that in Mr Smith's case, it had not been appropriate to offset 'because the condition for which he was granted disability pension was a different condition from that compensated at common law'.

The report further states:

The government was of the view that this decision of the Full Federal Court underlined the need to clarify this aspect of the legislation. In its Portfolio Budget Statements for 2011–12, the government indicated that … it intended to amend the offsetting provisions in the VEA. In its submission, the department explained further:

It is considered that the decision of the Full Federal Court that offsetting should not have occurred applies only to the unique circumstances of Mr Smith's case. These included that, with the agreement of the Commonwealth, the common law claim for compensation was expressly changed to remove the two conditions that were being compensated under the VEA.

Nevertheless, the Government decided to amend the offsetting provisions of the VEA to ensure that the legislation is clear in its intent.

It stated further that if passed the amendments 'should avoid the likelihood that, on the basis of the Smith case, those seeking future compen­sation payments could circumvent the offsetting provisions by exclusion of specific injuries or diseases from the terms of the compensation settlements'.

So there are a few aspects of that in relation to this very first paragraph of the addendum to the explanatory memorandum. Firstly, is it anticipated that there will be changes, if not to the current operation of the compensation offsetting provisions in a direct and strictly technical sense then in the way that compensation settlements are drawn up, given what the government is seeking to do with the amendment to schedule 2 of the act? In other words, it has been anticipated, has it not, to directly quote from the department, that, 'those seeking future compensation payments could circumvent the offsetting provisions by exclusion of specific injuries or diseases from the terms of the compensation settlements'? Is that what the amendment will do in the context of how schedule 2 will operate? Given what the department has said, won't that in some way change the current operation of the compensation offsetting provisions, if not in a strictly technical sense then in a practical sense?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I understand that it will not change the way compensation settlements are drawn up.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I thank Senator Feeney. If it will not change the way the compensation settlements are drawn up, why is it that, in its submission, the department stated that if these amendments are passed it 'should avoid the likelihood that, on the basis of the Smith case, those seeking future compensation payments could circumvent the offsetting provisions by exclusion of specific injuries or diseases from the terms of the compensation settlements'? Does that not mean that, by virtue of these amendments, it will have an impact on the way the compensation settlements are being drawn up, because it is making it clear that certain forms of compensation settlements will no longer be acceptable by virtue of the passage of schedule 2? That is a direct question. The purpose of my questioning is not to criticise the government in terms of the policy intent or what the department has said, but it does seem to be somewhat at odds to the government's addendum to the explanatory memorandum and what the department itself has said in relation to this particular issue.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I am advised that the longstanding practice is that compensation is offset for the same incapacity. What gives rise to the same incapacity is a medical question. The Smith decision, although unique, casts some doubt on this operation, and if different injuries give rise to the same incapacity—that is, the same effect of that condition—the basis on which the veteran is compensated may not be offset. As a result it was felt that the legislation needed clarifying.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

The addendum to the explanatory memorandum states:

The changes are intended to clarify the operation of the legislation following the Smith decision and ensure that the established compensation offsetting practices can continue.

They are the established offsetting practices, but earlier on the addendum to the explanatory memorandum says:

The proposed amendments will not change the current operation of the compensation offsetting provisions.

The department in its own submission has said that it should avoid the likelihood that those seeking future compensation payments could circumvent the offsetting provisions by exclusion of specific injuries or diseases from the terms of the compensation settlements. Does that not mean, therefore, that what the addendum to the explanatory memorandum is saying is at odds with what the department is saying? These are two unequivocal statements—we have the first paragraph of the addendum to the explana­tory memorandum and we have the statement of the department in its submission, submission 2, at page 6.

Clearly the department is anticipating that it will not allow people to circumvent the offsetting provisions by exclusion of specific injuries or diseases from the terms of the compensation settlements. Therefore, is it not the case that it is not accurate for the addendum to the explanatory memorandum to state that the proposed amendments will not change the current operation of the compensation offsetting provisions? The terms of compensation settlement agree­ments must be part of the current operation of the compensation offsetting provisions. If I am missing something or the parliamentary secretary thinks I am being a dodo on this he should tell me—I will not take offence. It seems to me there are two contradictory statements. I do not know whether the shadow minister has a particular view on this, but I would have thought that there seems to be a contradiction between what the department is saying and what the addendum to the explanatory memorandum is saying.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I am advised that there may be some confusion on Senator Xenophon's part over incapacity questions and compensation questions. The government maintains that the two statements he has identified are not incompatible. The first asserts that longstanding custom and practice in this area is being preserved and clarified by the amendments in this bill, and it is because offsetting has always been based on the same incapacity that we are trying to ensure the interpretation of provisions does not change over time.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

It seems I have been confused all along. It is already in my disclosure of interests, but I have been a lawyer for a few years and I did virtually nothing but injury law. I am not saying I am familiar with this area of law, but the government has said that there is some confusion on my part because I have confused the issue of incapacity and the issue of compensation. Guess what? If you have a bigger incapacity, you get more compensation. That is how it generally goes. So it might not be the case that incapacity and compensation are distinct issues. Usually the level of incapacity, depending on how it is assessed, is tied to the level of compensation. Does the government concede that there is a nexus between the level of incapacity and the level of compensation the recipient could receive?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Yes, it does. As I said a moment ago, albeit not particularly eloquently, the government maintains that the two comments identified are complementary to one another. The Smith case pointed to a possible way to circumvent these provisions, and we are preventing that. In that way these amendments are preserving custom and practice.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I just want to get a concession from the government that there is a distinction between what the department has said and what the addendum to the explanatory memorandum says. The parliamentary secretary, always eloquent, has stated that the government wants clarity as a result of the Smith case, even though it refers to that case as being 'a unique set of circumstances'. The practical effect of the so-called clarity that the government is seeking as a result of the Smith case is to deal with those who would circumvent, according to the depart­ment, the offsetting provisions by exclusion of specific injuries or diseases from the terms of compensation settlements. The addendum to the explanatory memorandum, though, says:

The proposed amendments will not change the current operation of the compensation offsetting provisions.

Surely, if you have a situation where the department is saying, 'We need to get some clarity on this,' as the parliamentary secretary has rightly pointed out, as a result of the Smith decision, that will have practical consequences. There will be circumstances where, as a result of that so-called clarity, settlement negotiations or settlements that have been reached will be affected, because they now will be excluded as a result of schedule 2.

That seems to me to be inconsistent with the statement by the government that the amendments 'will not change the current operation of the compensation offsetting provisions'. They will do so. To say that they will not is inconsistent with what the department has said about this. The government could call it 'complementary', but does it concede that there are circum­stances where settlement arrangements that may be allowed now under the current legislative scheme will not be allowed pursuant to what is proposed in schedule 2, because there will not be an opportunity to circumvent the offsetting provisions by exclusion of specific injuries or diseases from the terms of compensation settlement? I just want to get a concession that that is the case. It is consistent with what the department says but it seems to be inconsistent with the addendum to the explanatory memorandum.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I am advised that I cannot give you the concession that you are seeking, Senator. The level of incapacity does go, obviously, to the level of compensation. The nature of the incapacity is, therefore, a basis of compensation. But the Smith decision talked about 'injury' not 'incapacity', thus giving rise to the potential to circumvent the settlement. So the government does not concede the point.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

The parliamentary secretary has acknowledged what the department has said—that there is an issue about circumvention of the offsetting provisions by excluding specific injuries. The parliamentary secretary has drawn a distinction between incapacity and injuries, but I think that we know that, generally, the more incapacitated you are, for whatever reason or from whatever injuries, the more compensation you get. The department made this statement in their submission to the Senate inquiry:

… the amendments should avoid the likelihood that, on the basis of the Smith case, those seeking future compensation payments could circumvent the offsetting provisions by exclusion of specific injuries or diseases from the terms of the compensation settlements.

In an operational sense—in a practical sense—does the parliamentary secretary agree with that statement? If he does agree with that statement—and this may give him some comfort—I think most people would say that, on a plain English interpretation, that is inconsistent with the addendum to the explanatory memorandum, even if the parliamentary secretary does not say it. So I would be happy now for the parliamentary secretary to acknowledge that what the department has said is an accurate reflection of the government's position.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Tragically, Senator, this is not about what I think. I am obviously here representing a government position. I am advised that the department does stand by its submission to the committee. On that basis, the document from which you are reading is something that the government maintains is a contemporary document.

With respect to the rest of your question, I am advised that the provisions are about ensuring people get the same amount of compensation whether compensated under more than one scheme or only one scheme—so there is no advantage to being compensated under more than one scheme.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am pleased that the parliamentary secretary has acknowledged that what the department has said in its submission to the Senate inquiry, referred to in paragraph 5.14 of the committee's report on this bill, is something the government stands by. I think that there is a logical conclusion, on a plain English interpretation, that there is some tension, if I can put it diplomatically, and inconsistency between what the department has said and the first paragraph of the addendum to the explanatory memorandum.

Having said that, I do have some other questions. In terms of the interaction between the compensation offsetting provisions and chapter 19 of the Guide to the Assessment of Rates of Veterans Pensions, fifth edition, which will not change under the proposed amendments, can the government confirm that that interaction, in a practical sense, will not be affected by schedule 2?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I am advised that we can give you that undertaking—that it will not be affected.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Does that mean that there will be some circumstances, however, by virtue of schedule 2, for those who seek to circumvent the offsetting provisions by the exclusion of specific injuries or diseases, where there will be some interaction between what the department has said in its submission and the practical effect or application of chapter 19 of the Guide to the Assessment of Rates of Veterans Pensions, fifth edition?

Sitting suspended from 18:30 to 19:30

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I think this debate was left with a question I had taken from Senator Xenophon as to the synergy between—

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I did not say 'synergy' though.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

No, that is certainly my word, Senator; I concede that—between the department's work and the wording of the EM. To address myself to that point: the government maintains that the department's position to the committee is not at odds with the EM. In fact, we continue to maintain that they are complementary. The amendments to the legislation to maintain current arrangements are to ensure that the Smith decision—that is, the decision of the full bench of the Federal Court—is not used to circumvent the current provisions by excluding some injuries or diseases where the incapacity is the same under more than one compensation source.

What the department says regarding circumventing the offsetting provisions and whether that contradicts chapter 19 of the Guide to the Assessment of the Rate of Veterans' Pensions, mentioned in the EM, we say that the offsetting provisions are completely separate from chapter 19 of the guide. Chapter 19 is the guide that determines the rate of pension for a veteran. The government included reference to chapter 19 in the explanatory memorandum to alleviate the RSL's concerns that there may be an overlap and to ensure that these will remain separate processes in line with current practice.

This has no relationship to the terms of a common law settlement that might be used. This is used where possible to separately identify the relative contribution of each condition to an incapacity and then assess the appropriate rate of compensation. This is based on medical advice. However, it is not always possible for medical practitioners to assess the relative contributions of different conditions, particularly where the symptoms of the conditions substantially overlap. Where it is not possible to apportion the impairment from a non-accepted condition from the incapacity assessment, the offsetting provisions are used. Chapter 19 is never used together with offsetting; it is one or the other.

An example of how the Smith decision might impact current arrangements is this. As you have noted, Senator, the decision was concerned with different injuries or diseases even where the incapacity is the same. These amendments ensure that no matter how the injury or disease is described, if the incapacity is the same, compensation offsetting will continue to apply to ensure that a person cannot be compensated twice. These amendments clarify the longstanding current position. They ensure that someone who simply labels two conditions differently is not compensated twice when the incapacity is clearly the same—for example, a back sprain and lumbar spondylosis.

Offsetting is about fairness. It ensures that individuals get the same amount of compensation whether or not they get compensation from only one source or from more than one source. I hope that assists the senator.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I thank the minister for his comprehensive answer but I want to pick up on something the parliamentary secretary said about the double-dipping aspects of it. What did you say there was?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Synergy.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Synergy; that is right. If someone has a back sprain and/or a spondylosis can the parliamentary secretary explain whether there will be doubling up, because I see them as quite distinct conditions? One is a pre-existing condition but it means that you are more vulnerable to the effects of an injury in the event that you have a back strain than someone who does not have that pre-existing condition. The way that workers compensation, or indeed common law, has worked for many years across a range of jurisdictions is that effectively you take your victims as you find them. If somebody, as a result of having a pre-existing condition, is more vulnerable to a greater level of incapacity than someone who did not have that pre-existing condition in similar circumstances of trauma then that clearly would be relevant. I would appreciate it if the parliamentary secretary could indicate what he meant by the reference to spondylosis and back strain.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Really the point I was seeking to make is that a person cannot be compensated twice for the same incapacity. An individual will get the same amount of compensation for an injury regardless of whether they get that compensation from only one source or from more than one source. In that sense, these amendments clarify what has been a longstanding practice.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

But there is a difference, though, because from a compensation point of view, if someone has a back sprain without having a pre-existing condition, that is quite different from someone who has a back sprain with a pre-existing condition of spondylosis because a person who has a back strain with spondylosis would have a more significant incapacity by virtue of that pre-existing condition. There could be circum­stances where a person who sustains a back strain in the absence of a pre-existing condition such as spondylosis is able to continue to work, might have a bit of pain and is suffering a bit of discomfort but has no incapacity; whereas, if that person has a pre-existing condition such as spondylosis, the potential for incapacity, the potential for that person not to be able to work, the potential for that person to have a long-term ongoing disability that would otherwise have been quiescent but for the strain by virtue of that person's spondylosis is quite different. So I am not sure how that would work in the context of the practical application of schedule 2. I am not sure if Senator Ronaldson, representing the coalition as the shadow minister on this legislation, would have similar concerns. I do not know whether spondylosis and back strain is the most elegant example or the most useful example, but maybe I am wrong.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Perhaps it is not an elegant example for someone so familiar with back pain. The point I am making here, Senator, is that a person should not and will not be rewarded for labelling the same injury differently. To borrow your phraseology in terms of double dipping, it depends on medical advice as to whether the incapacity is the same. It is something that will be determined by the compensation regime and it will be determined by that regime in the longstanding way that it has always been so determined.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

Parliamentary Secretary, I presume you would acknowledge that the department has viewed the differing interpretations of the Smith decision with some concern. Are you aware that the department noted the significance of the findings in the 2009-10 annual report by observing that there remain different views on the extent and application of the Smith decision? Is this legislation relating to the nature and extent of the application of the Smith decision, or is it a lack of clarity that you are effectively talking about in this schedule?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I am advised that it is effectively both.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

If that is right and you have taken the definitions of the nature and extent of the application and effectively outsourced those to the department by giving them the opportunity or the wherewithal to issue appropriate policy guidance, doesn't that go a long way to explaining the concerns of the ESOs in relation to this matter, if indeed clarity and the nature and extent of the application of the decision is actually being taken out of the legislation and being put into the hands of the department to determine?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

We believe that this legislation has as its objective that it would achieve greater clarity and that that greater clarity would be supported by a clear policy direction from the department.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

The secretary of the department does not view this as relating both to the nature and extent of the application of the decision and to clarity. In fact, the secretary says it is clarity only; it is not about the nature and extent of the application of the decision. I will read from the Senate Hansard on 31 May of this year. This is a my question to Mr Campbell:

When you say work continues on clarifying the operation of the law, what do you actually mean by that? Is that in relation to the nature and extent of the application of the decision, or is it lack of clarity that you are talking about?

Mr Campbell : It is the issue of the clarity of the intent of the legislative provision.

You are now telling the chamber, on behalf of the department, that it is in relation both to the nature and extent of the application of the decision and to clarity, but in Senate estimates the secretary himself said that it was not a nature and extent issue; it was a clarity only issue.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

It is the government's position that the Smith decision gave rise to the need for there to be further clarity in the legislation and that this bill takes on that task.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I have just been reminded that the department—and I stand to be corrected on this—actually said that the Smith decision was a one-off decision. I presume that then makes sense, because if it were only a one-off decision then that would lead the department to say that there will be no impact following on from this legislation. I do not want to spend all night on this—that is not entirely true. I would be happy to do so because it is a matter of great seriousness. I am very anxious to see schedules 1 and 3 go through but I do not want to continue this debate longer than need be. The concern of the ESOs, the ex-service organisations, and their refusal to support schedule 2, even on the back of this, is that they see this as a transfer from the parliament to the department. Parliamentary Secretary, do you at least acknowledge that is the nature of the concern of the ESOs, that that is what is driving it?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I am advised that we do not. We do not believe that the legislation or the EM set out the transfer of powers from the parliament to the department and we do not believe that it will represent a dramatic change in custom and practice, as you are suggesting.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I acknowledge that you do not say that is right, but do you at least acknowledge that that is the continuing concern of the ESOs? Surely the answer to that must be yes.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I guess we debated this point a little earlier in the day. I cannot attest as to the motivations and opinions of the ESOs. I have not been in the consultations, as you have acknowledged, Senator Ronaldson. In order for me to remain consistent on this point, I am not about to stand here and tell the Senate what the complaints of the ESOs are. It is not knowledge that I possess.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

You join a very long queue of people who are not involved in negotiations with the ESOs—the minister, the department, staff and everyone else—because they were not consulted. As we discussed some hours ago, they were not advised of this addendum to the explanatory memorandum. In fact, one of them got it at five o'clock tonight.

I want to take up your point on the clarity issue—having been told that it was actually the nature, the extent and the clarity; but you acknowledge that Mr Campbell said it was only a clarity issue. Parliamentary Secretary, are you aware of this comment from Rear Admiral Doolan: 'What we are saying is that we seek clarity, and we see schedule 2 as bringing a degree of lack of clarity. As I said in my opening remarks, we see the current status as allowing for offsetting and being reasonable and we have no difficulty with the current arrangements'?

I think the matters that Senator Xenophon raised today indicate that either this is a sledgehammer to crack a nut or this is not required at all, or this is a deliberate attempt to transfer responsibility for policy and decision making in relation to this matter away from the parliament to the department. In relation to that, Parliamentary Secretary, I need go no further than the addendum to the explanatory memorandum, which makes it clear that the Repatriation Commission will be issuing appropriate policy guidance to staff of the Department of Veterans' Affairs. Indeed, that is the issue the ESOs have—that you have transferred the policy decision-making process from this place to the department. There is established offsetting legislation and practice, and effectively what you are doing is transferring that out of here to the department. Senator Xenophon, this is probably coming to a close and there will be a division shortly.

The Vietnam Veterans Federation have said that even if guidelines are drawn up by the Repatriation Commission they should be spelt out in the legislation and that the Repatriation Commission guidelines are simply too ephemeral. Do you agree with those comments or not?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Firstly, Senator Ronaldson, you will recall that some hours ago I read to the Senate a communication from the RSL, which essentially said—and we now rely on my recollection—that they opposed schedule 2, but if it passed the Senate they were not opposed to the EM. With respect to the concerns of the RSL, and indeed the Vietnam Veterans Federation and others, we continue to maintain that their fears are unfounded and that in fact these improvements to the legislation will work to the benefit of all stakeholders, including ESOs.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Can I assure Senator Ronaldson that I was not about to leave the chamber; I was just going to my temporary office at the back of the chamber to speak to my adviser, Mr Wenn.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

A highly talented gentleman.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Yes, he is, as are all the people I work with. I am just lucky, I guess. Concerns have been expressed and it is fair to say that the ESOs have concerns about this—and I want to put this in language that is as neutral as possible—and that they are resigned to this going through, as I understand it. I want to put on the record Senator Wright's role in this. It is fair to say that her role has been quite useful in providing some clarity to the situation. Senator Wright undertook a conciliatory role in this to try and get a better outcome—and this is not a criticism of Senator Wright; on the contrary, it is an expression of gratitude for the work that she has done on this. If Senator Wright's role had been allowed to continue to bring in the RSL, Legacy and the Vietnam Veterans Federation, I wonder whether we could have avoided several hours of agonising debate about this particular issue. In fact, if that process had continued it might have brought some real benefit. Schedule 2 has some work to do. I think that is clear from the language of the department in its submission to the Senate inquiry, and I have referred to that repeatedly. My question to the parliamentary secretary, which I hope—and I think the parliamentary secretary hopes—will be my last question to him, unless he wants more, is this : will there be any monitoring of the practical effects of schedule 2 in terms of claims that are being dealt with differently, claims that are being rejected, fewer payments made, and what I think are shorthand ways of the government's concerns about so-called double dipping, although, depending on the circumstances, there may be a dispute as to whether in fact there is double dipping? What reassurance can the parliamentary secretary give that the implementation of schedule 2 is being monitored and reported, apart from, say, the estimates process, where of course we have the opportunity three times a year to scrutinise this? Is there any other mechanism or assurance that the government can provide, other than questions on notice, the estimates process and questions without notice, about how it works?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Yes, as well as all of those accountability processes that you have cited in your question. Let me see if some other initiatives can give you comfort. Firstly, as you will be aware, and as has been reiterated in this debate today, this is part of the motivation for upgrading and enhancing the IT systems and information systems that are available in the department. Above and beyond that, there is a continued consultation with ESOs to allow for their input and, notwithstanding claims to the contrary, the department obviously focuses very heavily on its consultation processes and structures with ESOs. Lastly, there are ongoing regular monitoring and consultative forum arrangements so that the department and its leadership are completely permeable to concerns that might exist in the veterans community or elsewhere about the operation of this legislation and departmental systems that support it.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am grateful to the parliamentary secretary for his answer and I am sorry that that was not the last question. I was tempted by his response—not by the inadequacy of it; it begs another question. If the ex-service organisations—the RSL, Legacy, the Vietnam Veterans Federation and other organisations who represent those who have served our nation—express concerns to the government about the practical implementation of schedule 2, will the government agree to some form of formal or semiformal process of convening a meeting of those organisations to thrash out any particular concerns they have in relation to this?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I guess the short answer is yes. But your question in some ways is 'How long is a piece of string?' The point and, I guess, the reality is that the department and I understand—and I am about to make commitments on behalf of my colleagues and I am sure they will take an interest in what I am signing them up for—that in this particular policy space the relationship, in my view, between the department, the minister and the ESOs is an organic and continuing one. The simple fact of it is that if schedule 2 does create anything like the concerns you are describing then, yes, the minister and the department would respond. I do not know whether that would require a new consultative structure. I wonder if those that exist might be up to the task of managing such a conversation, but certainly the government would continue to have a responsive approach to its stakeholders.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

Parliamentary Secretary, on that basis why would you not wait until policy guidance work had been done by Repat and then the department and why wouldn't you wait until you had had the consultation with the ex-service organisations during the development of the material and then have the schedule? Is that not the logical step? You are going to put the cart before the horse by having the schedule and then trying to address it later on. You have acknowledged that there is no urgency for this and that the process is going to be addressed by the $2.7 million. I ask this question: would you give the ex-service organisations an undertaking that if, as it says here, 'ex-service organisations will be consulted during the development of this material'—that is the appropriate policy guidance—and they are opposed to that material it will not become policy under this addendum to the explanatory memorandum?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Yes, if the concerns are substantive. If they are real then, yes, they would get a due and proper hearing.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

A due and proper hearing, or would you give an undertaking not to proceed with the policy guidance that forms part of those materials?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I note the legislation and the policy guidance are closely interrelated but your question is in the main a hypothetical one. I cannot answer hypothetical questions.

Question put:

That schedule 2 stand as printed.

The Committee divided. [20:05]

(The Chairman—Senator Parry)

Senator Wong did not vote, to compensate for the vacancy caused by the resignation of Senator Coonan.

Question agreed to.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question now is that the bill stand as printed.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I move request (2) on sheet 7131:

Page 18 (after line 27), at the end of the bill, add:

Schedule 4—Nuclear test participants

Veterans' Entitlements Act 1986

1 After subsection 85(10)

Insert:

(10A) A person is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the person, whether before or after the commencement of this Act, if:

  (a) the person is a nuclear test participant (within the meaning of the Australian Participants in British Nuclear Tests (Treatment) Act 2006); and

  (b) either:

     (i) the Department has notified the person in writing that he or she is or will be eligible for such treatment; or

     (ii) the person has, by written document lodged at an office of the Department in Australia in accordance with section 5T, notified the Department that he or she seeks eligibility for such treatment.

The statement of reasons accompanying the request read as follows—

Statement pursuant to the order of the Senate of 26 June 2000

These amendments are framed as requests because they increase expenditure under a standing appropriation. The effect of amendment (2) would be to expand the class of persons – to include a person who is a nuclear test participant (within the meaning of the Australian Participants in British Nuclear Tests (Treatment) Act 2006) – who would be eligible for the Repatriation Health Card—For All Conditions (Gold Card) under the Veterans' Entitlements Act 1986. Amendment (1) is consequential upon amendment (2) and should therefore also be treated as a request.

Statement by the Clerk of the Senate pursuant to the order of the Senate of 26 June 2000

The Senate has long followed the practice that it should treat as requests amendments which would result in increased expenditure under a standing appropriation. On the basis that amendment (2) would result in increased expenditure under the standing appropriation in section 199 of the Veterans' Entitlements Act 1986, and on the basis that amendment (1) is consequential on amendment (2), it is in accordance with the precedents of the Senate that these amendments be moved as requests.

I have previously spoken in relation to this. This addition to the bill would give veterans of British nuclear tests the ability to claim for a gold card for health costs. Earlier today I referred to the need to do so, and I do not propose to unnecessarily restate that. I referred to Canon Peter Patterson, who contacted me after his application for the gold card and disability pension were denied. He was commissioned by the Australian military forces to serve at Maralinga, South Australia, for a period of 87 weeks between 1956 and 1963 as an Anglican chaplain. Mr Patterson's claims have been fraught with difficulty, because the current rules are unfair. A delegate of the Repatriation Commission was not satisfied beyond reasonable doubt that the cirrhotic arthropathy was related to his service. We know from the medical evidence that those who have been exposed to British nuclear tests have suffered greatly. The rates of death and disability have been significant.

I am particularly grateful to Senator Macdonald's contribution on this. He quite rightly pointed out what is being done for the children of the veterans of British nuclear tests who have been born with disabilities and significant health issues. I commend Senator Macdonald for raising that, because it is an issue that cannot be ignored. I do not believe it has been dealt with adequately by Australian governments, both past and present.

This amendment is one that deals with the gold card being given to the veterans of British nuclear tests. These men and women went to Maralinga, to Emu Fields and to Montebello and were subjected to nuclear testing without anyone telling them what the health implications would be. They have suffered, much like any veteran who has been injured in war and they should be able to access all the health services they need to treat their cancers, their skin conditions and their depression. I believe this is the right thing to do.

The second reading amendment Senator Wright and I moved was lost. I do acknowledge the work that Senator Ludlam has done on this previously and the concerns that have been expressed in relation to this. But we have really dropped the ball when it comes to our veterans of British nuclear tests. There are fewer than 2,000 alive right now. They are dying off at too rapid a rate. We know that successive Australian governments have done very little to help them. We know from a media release from the law firm Stacks/Goudkamp on 29 July 2011 that Australian veterans of British nuclear tests hopes for compensation have been boosted by a UK court decision. The hopes of hundreds of Australian military veterans of British nuclear tests seeking compensation from the UK Ministry of Defence got a boost after a significant victory in the Sydney courts, because the UK Supreme Court ruled that it would allow the veterans to argue their case that they were not out of time in bringing their action. Even if veterans are successful Stacks/Goudkamp made the point that if the Supreme Court allows them to go ahead they will still have to argue their negligence case against a determined UK Ministry of Defence. Why do they have to do that? Why do they have to go down the path of seeking redress in the British court system? Why can't we do what other nations have done and provide a statutory system of compensation? The Americans, Russians and Chinese have done it for their nuclear test veterans, but here in Australia it seems we have to go cap in hand to the UK courts for an uncertain outcome and expensive, time-consuming and uncertain system of seeking justice.

Senator Macdonald has quite usefully asked me whether a costing has been done on this. We know this, and I think it is a very reasonable question. The coalition, as did the government, unfortunately opposed even a second reading amendment that would say 'let's do some costings on this.' I urge the coalition and the government to reconsider that. It is important that there be appropriate costing of that. But I still move this amendment, because I believe the principle is fundamentally right, because here we have a limited pool of people—fewer than 2,000—and what we are seeking to give them is not a pension as such but access to the gold card for health benefits, so that they do not have to go through a burden of proof in showing that they are eligible.

This is what some of the veterans have said:

This is an absolute disgrace. All the other illnesses that's brought on by exposure to radiation, we don't get treated for and that in itself is justice denied. So the real thing is the recognition, full recognition, under the Veteran Entitlements Act, but they won't recognise Maralinga as being a dangerous zone that we served in.

Another veteran said:

The only thing I can assume is that stalling for time is waiting for us all to die and they won't have to give anybody anything. Well, it is not just us, it's our children and our grandchildren that has suffered from this, that we've passed on our damaged genes, the DNA that was damaged due to radiation exposure.

Another veteran said:

Your skull seemed to light up. The whole world was going up in a fireball. It made you feel like an ant under a boot.

Another veteran said:

I had no idea when I went out to this site, nor did the chaps that I was working with know that there had been a bomb exploded there. And we set up these experiments and starting building these heavy steel firing platforms just 200 metres from ground zero.

Another victim said:

Successive governments have ordered another inquiry or another committee to be set up. Sometimes they take three to five years. That's another three to five years. In that time another 10 percent of the veterans are dead. Well, given another five years, there won't be any of us left, quite frankly.

That is why we need to at least acknowledge this, to give these veterans access to Gold Card entitlements.

This is not a radical move. This is not an expensive move. We are looking at a very small and diminishing class of people, yet we have treated them with contempt. Subsequent Australian governments have treated these people with contempt. They have served their nation. They served it in a very dangerous zone where nuclear tests were carried out, and that is why this requested amendment seeks to redress that, in part by giving them access to the gold card. It is extraordinary that the government and the opposition do not support the costing of this. They were worried about setting some precedent or about what other implications it would have. But these people deserve justice. Giving them access to the Gold Card will go some way to remedying the gross injustice that Mr Patterson and many, many others have been subjected to over the years. That is why I commend this amendment.

I acknowledge the amendment of Senator Wright, which I do not have difficulty with. I think it is a sensible amendment to say there ought to be some costing but that in any event there ought to be a cut-off for when this particular measure is implemented. It cannot be put off to the never-never. This government and the opposition stand condemned for the way they have treated our veterans of British nuclear test. This issue will not go away. Even when the last nuclear test veteran in Australia has died, you will still have to deal with their children, you will still have to deal with their memories and you will still have to deal with the fact that they have been treated very shabbily by successive Australian governments.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I move the Greens amendment to Senator Xenophon's proposed request for amendment on sheet 7144 revised:

Item 1, after subsection 85(10A), insert:

(10B)   Subsection (10A) is of no effect unless a regulation has been made:

  (a)   specifying the cost of the measure proposed by that subsection; and

  (b)   authorising the commencement of the measure.

(10C)   If a regulation of the kind mentioned in subsection (10B) has not been made within 6 months after the commencement of that subsection, subsection (10A) does not operate at all.

I do this because, while the Australian Greens have clearly and consistently over time supported the principle of extending the Gold Card to veterans of British nuclear testing, as a matter of right, it would not be responsible to agree to a measure that at this stage would have open-ended cost implications that have not been budgeted for. Since receiving Senator Xenophon's requested amendment, I have not had the opportunity to determine the costs involved if it were to be implemented. Today I received verbal advice from the minister's representative that the costs could be as great as $100 million. That does seem exorbitant to me, given the relatively small number of veterans involved, but it serves to highlight the need for better information about the costs before legislating for this change.

That is why I was happy to co-sponsor the second reading amendment that Senator Xenophon has referred to, to have the government examine the cost of expanding eligibility for the Gold Card to nuclear veterans within a certain time period. Unfortunately, that amendment was not agreed to. However, this amendment that I have now moved is an opportunity to determine the costs involved, to have scrutiny and then to determine whether or not it would be possible to implement this longstanding issue of justice for the veterans of the nuclear testing carried out by Britain.

This amendment would mean that Senator Xenophon's amendment could take effect if the measure has been costed and is enshrined in regulation that has not been disallowed by either house. That would ensure that the costings have been carried out, that there is an opportunity for scrutiny by the other place and the Senate and that there is a means of paying for the implementation of the reform. In my view, that is what is required to be fiscally responsible and I urge the Senate to support this amendment and then consider Senator Xenophon's requested amendment in the light of this amendment.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

As Senator Xenophon has noted, we did debate this matter a little earlier, but I will repeat some of the points that I made at around 12 noon. Firstly, the government rejects the notion that we have been blind to the sufferings of the people concerned.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I never said that. Don't misquote me. I didn't say 'blind'.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

You certainly used some strong language there.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Indifferent, perhaps.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Okay. At the risk of using more courteous language than you used, I will proceed. I note that the government, in the 2010-11 budget, provided a $24 million package of compensation to British nuclear test participants under the Veterans' Entitlements Act 1986. This package ensured that Australian Defence Force participants were provided appropriate compensation and health coverage for any condition related to their service in the testing program. BNT participants are also eligible to receive non-liability health care for all cancers. BNT participants are able to access a Gold Card. It is provided where the veteran is at or above 100 per cent of the general rate of disability pension. The automatic grant of a Gold Card is only provided to veterans with qualifying service—that is, warlike service—over the age of 70, in recognition of the hazards of being in war and incurring danger from the hostile forces of the enemy. The automatic grant of the Gold Card to BNT participants would place them in a more beneficial position than other veterans. For that and other reasons, the government opposes the amendment.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

What an extraordinary response from the government. These veterans are not eligible for a gold card because their service does not qualify as warlike; it was not in a hostile environment. The fact is that they were subject to radiation from nuclear weapons. They were subject without a duty of care being given by the Australian government at the time. They were subject to levels of radiation that have led to many of them developing cancers and dying, levels of radiation that have left many of them with very serious health problems and levels of radiation that have left their children and grandchildren with genetic abnormalities, with deformities, with serious health problems. So to make some artificial distinction that these individuals were not subject to warlike service does not make sense to me. If being subject radiation, to fallout from a nuclear bomb going off, is not warlike in the hazards it exposes our veterans to then what else would be? It just seems extraordinary that this is an exemption. I would urge the backbenchers of the coalition and the government to raise this issue in their party rooms to ensure that this matter is dealt with in a way that gives justice to these veterans.

I acknowledge the long-term advocacy of the Australian Greens, Senator Wright's contribution to this debate and Senator Ludlam's long-time advocacy of this along with Senator Bob Brown. But it seems to me that the issue here is that the government is making excuses as to why it cannot act, and Senator Wright quite rightly expressed surprise at a figure of $100 million. As that is the figure that was given by the minister's office, can the government provide a breakdown of that $100 million? On that calculation, if there are 2,000 individuals who are still alive from the British nuclear tests and all of them put in a claim for medical expenses—I am sure Senator Feeney will correct me if my arithmetic is wrong—you are looking at a figure in the region of $50,000 each. Is that right, Senator Feeney? I am not sure. Tell me. Your arithmetic is probably better than mine.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

That is not a boast I would make, Senator Xenophon! I have not used the figure of $100 million. To be frank, I heard it for the first time in the remarks earlier. That is a question that the minister's office will take on notice and we will provide you with whatever information is available. It is not something I am in a position to comment on at the moment.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

That is just not good enough because they have made a representation to Senator Wright. Senator Wright took that representation in good faith but she has questioned it. She received advice from the minister's office that the cost of this amendment would be $100 million. If that is the representation they are giving to the Australian Greens, represented by Senator Wright on this issue, to say why this cannot proceed now, surely there is an obligation on the government, given that they have put it out there, to give us a breakdown of where the $100 million comes from? I think it is a perfectly reasonable question in order to deal with this particular amendment.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Can I just clarify, please. What I did say—and I said it in a considered way—was that it could be as much as $100 million. It was not given as a firm figure but it was said that it could be as much as $100 million.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

You verballed her.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

You've been snookered, Nick!

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

In fact, it was said that the figure could be as much as $110 million, so I was being accurate. It was a large amount of money that was indicated, but it was indicated to be a preliminary figure.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Can I just respond? I know it is disorderly, Temporary Chairman, and I know how down you are on interjections—

Doug Cameron (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I am, Senator Xenophon.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

but I have been provoked by Senators Bishop and Sterle, two fine senators from Western Australia, very capably representing their constituents in Western Australia, who are well aware of the impact of the British nuclear tests on their home state with the Montebello Islands. The fact is that it does not change my position at all. There is no snookering. There are no whatever other analogies Senator Sterle can assist me with. There is no snookering here. Up to $110 million—not $100 million—

Senator Mark Bishop interjecting—

If you were listening to Senator Wright, Senator Bishop, that is what she said. She said 'up to $110 million'. If they are going to make an assertion that it is up to $110 million, for goodness sake the government ought to provide the details of that. Where does this figure of up to $110 million come from in order to try to squash this particular amendment or to be dismissive of it? I can tell you those veterans of the British nuclear tests deserve better than some glib figure seemingly plucked out of the air in order to get a fair deal and a fair go with respect to their health care.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Let me repeat: I have not used this number in the debate and you have heard Senator Wright describe the terms in which the number was given to her. I have just been advised that the number is based on the notion that $15,600 per person per year over four years for a total of 2,000 persons would add up to a cost of $100 million.

Setting that to one side and considering for a moment existing entitlements, the government seeks that the Senate note that all participants are eligible for free cancer treatment now. They can get the gold card if their illness results in the disability pension of 100 per cent or more. Widows of course receive a pension and a gold card where the participant's death is related to service. Noting those existing entitlements, I hope that provides a little bit of illumination about where that $100 million number might have come from.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

That is not illumination. That is just casting a shroud over things, honestly. As for the notion of $15,600 a year for four years for 2,000 participants, there is no such notion here. Guess what? These people are dying off. In four years time there will not be 2,000 veterans who survived the British nuclear tests here in Australia. Who knows what the number will be, but we know that the rate of death, the rate of these people not being with us on this earth anymore, is increasing. This is simply to say that, in the same way that others who have served in warlike service get a gold card, this is warlike service and this is something they should be entitled to. This issue will not go away. I will pursue it in estimates. I will pursue it with the government. I urge my colleagues in the coalition and the government, particularly my backbench colleagues—including Senators Sterle and Bishop, for whom I have high regard—to take this matter up.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

And the Greens!

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

The Greens are already onside, Senator Sterle. And I am looking forward to Senator Boswell's not being part of this dismissive approach to our veterans of the British nuclear tests. I have moved the amendment standing in my name. I look forward to this.

I have just been handed some material that relates to the atomic bombs dropped on Japan. It is interesting to note that radiation is classified into two types: initial radiation, which is released by the atomic bomb within one minute of detonation, and residual radiation, which is released after the initial radiation. Those who were exposed to radiation suffered long after the war was over. It took people a long time to recognise the invisible effects of the A-bomb, of the diseases caused by the A-bomb. A group of symptoms which appeared during the first four or five months after the explosion were called acute sickness or injuries, and symptoms that appeared after a certain incubation period were called after-effects of radiation. That is what we are dealing with. That is why this matter needs to be dealt with with some urgency. I urge my backbench colleagues, of both the government and the opposition, to reconsider their position in relation to the gold card. This will not be the end of it if this amendment is defeated, as it appears that it will be. We need to deal with this. These vague rubbery figures of up to $110 million—the government really stands condemned for the way it has sidelined these concerns.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I will add a couple of very quick remarks before we put Senator Wright's and then Senator Xenophon's amendments. I am unsure whether the Parliamentary Secretary for Defence is aware that I do not necessarily support those figures for precisely the reason that Senator Xenophon has put on the record. Do you feel comfortable, Parliamentary Secretary, acknowledging $100 million in unmet need for a particular class of veterans who we appear to be simply sidelining on a technicality? As you said in your statement, from the information you have been given by your advisers, cancer treatment is covered, but you would be well aware that ionising radiation of the kind that was inflicted on these soldiers and the many Aboriginal people who were still on those lands can create a large number of conditions that are not cancer related at all. That is precisely where this huge level of unmet need resides. I strongly support Senator Xenophon for moving this amendment. If you do not trust the figures that you have given us, Senator Wright has given you a perfect opportunity to look at how much it will cost. I cannot believe that we would simply sideline on a technicality this cohort of people who, in the service of our country, were irradiated by British nuclear weapons. I strongly urge a rethink on, if nothing else, Senator Wright's perfectly sensible amendment that says: let us establish how much it will cost. Please, let us not just erase these people from history after what we put them through.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Further to Senator Ludlam's very useful and pertinent contribution, there is another way of putting this that I think further diminishes the government's argument—and the coalition's argument for that matter. It is the same as a soldier who loses a limb. They are given a gold card because you can see their injury. It is no different for veterans who were injured by the nuclear tests; you just cannot see their injury, it is not so apparent. The effects are dormant, but they are there nonetheless. Given that these people have been exposed to the fallout from a nuclear test, from the British nuclear tests, and that they have this enormous risk of injury because of their exposure, this seems the only just way of doing it. Having said that, I am prepared for the vote. I am prepared for the outcome tonight, but I am not prepared to let this matter rest. Question put:

That the amendment (Senator Wright's) be agreed to.

The committee divided. [20:38]

(The Chairman—Senator Parry)

Question negatived.

Question put:

That the request (Senator Xenophon's) be agreed to.

The committee divided. [20:42]

(The Chairman—Senator Parry)

Question negatived.

Bill agreed to.

Bill reported without amendment; report adopted.