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

I rise to speak on the Veterans' Entitlements Amendment Bill 2011 and flag that I will be moving an amendment during the Committee of the Whole to omit schedule 2 from the bill. This bill seeks to do three things. Firstly, the bill establishes a prisoner of war recognition supplement—a POWR—of $500 per fortnight, which will be paid to around 900 eligible former prisoners of war. Secondly, the bill seeks to clarify arrangements concerning offsetting provi­sions under the Veterans' Entitlements Act 1986. I will speak in further detail about this schedule shortly. Finally, the third schedule of this bill rationalises the way temporary incapacity payments are made under the bill.

The coalition supports schedules 1 and 3 of the bill. Of course, schedule 1 of the bill builds on a similar initiative of the previous coalition government. The previous coalition government made one-off ex gratia payments of $25,000 to Australian ex-POWs. In 2001 these payments were made to former Japanese POWs, in 2003 to prisoners of the North Koreans and in 2007 to former captives of the Germans and Italians. Honourable senators will know of my close personal connection to the ex-POW com­munity in Australia through my involvement as co-chair of the Australian ex-prisoner of war memorial project in my home city of Ballarat. The coalition supports the supple­ment, which will be available to approxi­mately 900 POWs who are known to the Department of Veterans' Affairs. The first payment will be made on 6 October and the measure will be in place from 20 September this year.

Schedule 3 of this bill rationalises temporary incapacity payments under the Veterans' Entitlements Act 1986—the VEA. The changes abolish the payment of temporary incapacity allowance under the act, with those previously eligible for this payment being transferred to the loss of earnings allowance presently available under the VEA. The rationalisation of these pay­ments reflects the changing nature of Australian society. A stay in hospital and periods of convalescence can be much shorter now than in the past. The temporary incapacity allowance currently paid under the VEA requires an eligible veteran to be hospitalised or unable to work for a mini­mum period of 28 days. After 28 days the veteran is eligible to apply to receive an allowance, which is backdated to the first day of hospitalisation. The changes proposed by the amendment remove the 28-day qualification period and replace it with a pro rata loss of earnings allowance which compensates for an actual loss of earnings. The Parliamentary Library explains that the amount of loss of earnings allowance payable is the lesser of the difference between the T&PI rate of disability pension and the veteran's present rate of disability pension and the amount of salary, wages or earnings actually lost, including loadings or other allowances that would have been payable. This is a sensible amendment which the coalition and the ex-service community support.

Schedule 2 of the bill has been the subject of a Senate inquiry and the coalition is opposed to it. Schedule 2 of the bill seeks to amend provisions in the Veterans' Entitlements Act 1986 to clarify the opera­tion of compensation offsetting provisions. Offsetting occurs when a person is eligible to receive compensation from two or more sep­arate Commonwealth compen­sation schemes for the same incapacity resulting from injury. Offsetting dates back to 1973 when the Whitlam Labor government determined to broaden the application of the former Repatriation Act to cover certain non-warlike service. As a consequence of this action, some eligible ex-defence personnel were able to access compensation under two acts—the Repatriation Act and the Compen­sation (Government Employees) Act 1971. The offsetting changes introduced in 1973 and backdated to 1972 were intended to apply to dual eligibility for compensation paid from Commonwealth compensation schemes. A vital premise of Australia's repatriation system is that the Common­wealth will compensate for incapacity, not for the injury itself. As a result, two people with the same injury may receive different rates of compensation based solely on the degree to which each person is incapacitated. The coalition supports this principle, as does the veteran and ex-service community.

I now turn to the Smith case. The amendments proposed by this schedule arise from a decision of the full Federal Court. In the matter of Commonwealth of Australia v Smith (2009), the court found that compen­sation offsetting should not apply to Mr Smith because of the unique circum­stances of his case. Mr Smith was receiving compen­sation under the VEA and the Safety, Rehabilitation and Compensation Act 1988 for two separate incapacities relating to separate periods of service in the Australian Defence Force. In the first instance, Mr Smith received compensation under the VEA for a duodenal ulcer and PTSD as a result of his service in Vietnam. Secondly, Mr Smith received compensation for anxiety arising from his service aboard HMAS Melbourne at the time it collided with the Voyager. The court held that these two conditions were not related and, on the basis of this fact, determined that offsetting should not apply under the act. I note the Commonwealth did not pursue this matter beyond the Federal Court. The Commonwealth argued that Mr Smith was being twice compensated for the same incapacity—a position the court disputed, holding that the injuries and resultant incapacities were different and separate. The court awarded a confidential settlement to Mr Smith and found in his favour. Consequently, the government is now seeking to clarify the legislation to make clear the Repatriation Commission's understanding of the intention of the legislation—and I use the word 'clarify' advisedly.

At the coalition's request, a Senate inquiry into the bill sought submissions from the veteran and ex-service community. In particular, I thank the RSL, Legacy and the Vietnam Veterans Federation of Australia for their participation and the RSL for attending the public hearing in Canberra on 11 August. Three weeks ago, the report of the Senate Foreign Affairs, Defence and Trade Legislation Committee's inquiry into the bill was tabled in the Senate. My colleagues Senator Alan Eggleston and Senator David Fawcett tabled a dissenting report which calls for schedule 2 of the bill to be omitted. I thank both of my colleagues for their significant input into this inquiry.

During the inquiry, the RSL forcefully put the view that the proposed amendments went above and beyond the intention of the 1973 legislation which the government allegedly seeks to clarify. Further, the RSL put the view that appropriate provisions already exist in the legislation and in accompanying regulations to ensure that offsetting cases similar to Mr Smith's would be treated fairly under the act. The department did not dispute the detail of the RSL's analysis. It was also made clear during the public hearing and in other representations to me on other matters that parliament must maintain the ability to set the policies by which the department, the Repatriation Commission and the Military Rehabilitation and Compensation Com­mission operate. In particular, I note Rear Admiral Doolan's statement:

… the RSL view is that it is much better to have the legislation being the basis for all these matters than to have it by regulation.

The coalition agrees with this and is concerned that these proposed amendments to, as the government claims, clarify the operation of the act will still require guidelines to ensure they are applied properly. Parliament's intention, rather than the department's, must be paramount in this respect. Parliament's original intention was sufficiently clear in this case. I will shortly move an amendment to omit schedule 2 from this bill. I ask honourable senators to consider the best interests of our veteran and ex-service community and support the coalition's amendment.

I understand that there may be some alterations to the explanatory memorandum to the bill. I do not know whether these are clarifications or what they are, but we are advised that there will be some alterations. I certainly have not seen the altered explan­atory memorandum and I do not know whether the minister on duty is able to nod her head to indicate whether or not this will be tabled. Obviously it would be an extraordinary situation were I to be starting my second reading speech in relation to this matter and it was being proposed to alter the explanatory memorandum. In fact it beggars belief that that would actually occur at this eleventh hour. So I am assuming that this will not be the case. I have not been advised by the minister's office or anyone else about it. We will wait and see. The amendments proposed in schedule 2 have not been justified and more work needs to be done before the parliament considers the measures presently opposed. The coalition will support schedules 1 and 3 of this bill but oppose schedule 2.

I will briefly address some other matters. I notice that my colleague Senator Fawcett has now entered the chamber and I will repeat the thanks I gave to him earlier for his significant involvement in the Senate inquiry and his very considerable input into it. The so-called winter recess has been an extraordinarily busy period. I want to thank the hundreds of veterans and ex-service­people, and their families, who I have met during my travels—everywhere from Albany to Geraldton in Western Australia, to Mackay, Townsville and Cairns in North Queensland, and from Sydney to Warrnam­bool, amongst other places. I look forward to spending more time on the road shortly and encourage people with an interest in veterans affairs to participate in the coalition's veterans forums which are being held right across the country.

The biggest issue I am hearing is the ongoing unfair, unjust and inequitable situation facing DFRDB superannuants as a result of the shameful decision by this place to oppose the coalition's fair indexation bill. Honourable senators will be only too aware of the anger in the community at the decision of Labor, the Greens and Senator Xenophon to block the coalition's fair indexation bill from passing on 16 June. Those opposite should hang their heads in shame for this shameful decision to oppose the bill.

I want to turn now to the Centenary of Anzac. There remains significant concern about the Gillard-Brown Labor government's failure to establish a budget for the Anzac Centenary commemorations, which are getting closer by the day. The coalition welcomes the appointment of Air Chief Marshall Angus Houston as chair of the new Anzac Centenary Advisory Board, but it is fair to say that Air Chief Marshall Houston is flying solo at the moment, with other members of the board yet to be announced or appointed. The elephant in the room, however, is the lack of funding certainty which is jeopardising the planning for commemoration in small towns and big cities right across Australia. The coalition welcomed the $250,000 announced for a scoping study for works in Albany's part of the centenary. Coincidentally, the minister chose to visit Albany the day before I was scheduled to speak at a business breakfast there about the Anzac Centenary itself—imitation is the best form of flattery. I welcome his belated and minor financial commitment to this project and look forward to seeing a real commitment of funds for the Anzac Interpretive Centre very soon Finally, I turn to advocacy funding. I draw the Senate's attention to the anger in the veteran and ex-service community about cuts to veterans' advocacy in the budget. The minister signed, just prior to travelling to France for the 95th anniversary com­memorations of the Battle of Frommelles, letters which dramatically slashed funding under the Building Excellence in Support and Training program, known as the BEST program, as well as the Veteran and Community Grants program. The BEST grant program was established by the previous government. The grants enable ex-service organisations to provide assistance to veterans, veterans' families, members of the Defence Force and their families. The grants assist volunteer veterans working in our community to assist those who have served our nation and are in need of assistance. These volunteers help veterans file claims for compensation. These volunteers touch base with our ageing veterans and war widows to ensure they do not become socially isolated. They provide help and support to those in our community who want to discuss their experiences with someone who understands what they have been through. Cutting this funding could not have come at a worse time. Frankly, this government has no mandate to cut funding to this program but, just as with the carbon tax, it is going to do it anyway. Page 5 of the Review of DVA-fundedESO advocacy and welfare services, which was tabled in February, says:

There is also a strong belief that the current practice within Australia, whereby ex-serving members voluntarily take on a role to assist in claims preparation ... has worked very well—

I repeat, 'has worked very well'—

and should continue to be supported through funding mechanisms such as the BEST program. The very nature of this voluntary work should be valued, not understated.

It went on to say that the government must be mindful that BEST grants funding should be:

... sufficient to meet the needs of the veteran community.

How the government can justify cutting $8 million from veterans' advocacy funding but then spend $12 million advertising their carbon tax broken promise is beyond the comprehension of most in the veteran and wider Australian community. The decision to cut this funding, made without warning and without any consultation, will potentially and dramatically spell the end for ex-service organisations, which simply will not be able to survive.

My office has been inundated with angry veterans pension and welfare officers asking how they are meant to survive on a grant which has, in some cases, been cut more than 50 per cent on last year's funding. This is even more concerning given applications for this funding round were received in March, when no mention of funding cuts had been made by the government.

One of those organisations is the Geelong Veterans Welfare Centre. Recently I spoke in the Senate about commemorations at the Vietnam War memorial in Geelong. The Vietnam veterans centre in Geelong is located at Osborne House, a historic property with long links to the defence of the nation. After the memorial service, members of the local veteran community came up to me deeply concerned about the impact of the BEST cuts on the veterans of Geelong. They have made available to me a letter they sent to Minister Snowdon with their concerns:

The Geelong Veterans' Welfare Centre has the largest client base in Victoria and is the busiest office.

We ... cover areas as far a-field as the south-west coast to Warrnambool/Port Fairy/Portland and up to Hamilton/Horsham and back through Rokewood and Colac.

The letter goes on to say:

The loss of funding, particularly to the salary, will severely limit our capacity to fill the Administration Support Officer position and will most likely force our employee to seek other employment opportunities.

What a disgrace, an utter disgrace! Mr Deputy President, I seek leave to table this letter from the Geelong Veterans Welfare Centre to the Minister for Veterans' Affairs outlining the impact of the cuts on the centre and the services it provides to veterans and their families in the wider Geelong region.

Leave granted.

I am sorry to say that this situation is repeated right across the country. Over the last three months, I have had the honour to speak at RSL state branch congresses across Australia. In his remarks to at least three of these congresses, the minister has said that the number of veterans of the Afghanistan conflict will shortly equal the number of veterans who served in Vietnam. But the justification for these cuts is a 25 per cent decline in the veteran population—that is, a decline in the VEA veteran population, not in veterans making claims under the SRCA or the MRCA.

Younger veterans will still need advocates. These cuts in funding will flow on to reduce access to assistance for them and their families when they return home. The government has absolutely got this one wrong and the coalition and the veteran community demand answers, not more spin from this Gillard-Brown Labor government.

The coalition supports schedules 1 and 3 of this bill. We will move to remove schedule 2 during the Committee of the Whole because doing so is in the best interests of veterans and their families. If the government really sees value in this amendment, it will consult further and then bring this measure back to the parliament with the support of the veteran community.

I have just been given an addendum to the explanatory memorandum. Clearly, I have not had the opportunity to look at this. Can someone tell me why on this matter, which has been on the books for two or three months, I am now getting an addendum to the explanatory memorandum 10 minutes after I have started speaking? What is going on with this government? What a disgrace! These amendments were circulated weeks ago. Everyone knows the urgency of getting these POW payments through. Yet here at the eleventh hour I am getting an addendum to the explanatory memorandum. How can this chamber possibly operate properly when the responsible shadow minister was not given a copy of this addendum to the explanatory memorandum? It is quite disgraceful. This is another example of a government which is in freefall, a govern­ment which is divided, a government which has lost control of the agenda and thinks it is appropriate to bring an addendum to an explanatory memorandum into this chamber when the debate has started. I will now go and have a look at this. I suspect it will not allay the fears of those who have been involved in this process—the RSL, the Vietnam veterans et cetera. (Time expired)

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

I rise to speak on the Veterans' Entitlements Amendment Bill 2011. This bill seeks to amend the Veterans' Entitlements Act 1986. The Veterans' Entitlements Act provides for the payment of pensions and other benefits to veterans and certain other persons and provides for medical and other support. The Australian Greens are of the view that, as a society, we send people off to serve on our behalf in situations which potentially place them at great risk. It is only fair then that we ensure we look after them properly when they return home. As an overriding principle, the Australian Greens support fair and equitable compensation, assistance and support for all veterans and their families.

This bill has three schedules. Schedule 1 seeks to create a prisoner of war recognition supplement. This will provide for certain veterans who have been held as prisoners of war to receive an additional supplement of $500 per fortnight in recognition of the severe hardship and deprivation they suffered during their incarceration. Schedule 2 seeks to clarify and affirm the original intention of the compensation offsetting policy in relation to pensions payable under the Veterans' Entitlements Act. The schedule aims to make clear that where compensation is paid from another source in respect of the same incapacity, though not necessarily the same injury or disease, as a pension which is paid under the act, compensation offsetting provisions will apply. The intention is to prevent double payment of compensation for the same incapacity. Schedule 3 seeks to rationalise the current temporary incapacity allowance and the loss of earnings allowance by abolishing the former, the temporary incapacity allowance, and replacing it with an entitlement to seek access to the loss of earnings allowance instead.

Schedule 1 is welcomed by the veterans communities and appears to be supported by all, and schedule 3 is relatively uncontro­versial. I will address these schedules briefly before focusing on schedule 2, which deals with offsetting and is more controversial and which has raised some concerns for the veterans communities and for the Australian Greens. These concerns were recognised by the Selection of Bills Committee, which, in recommending an inquiry into the provisions of the bill, focused on schedule 2, stating that the purpose for the inquiry would be 'to seek further information about the changes proposed by schedule 2 and to enable feedback from the veteran and ex-service community about the changes'. The bill was referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry, and I was pleased to participate in this inquiry as a committee member.

Under schedule 1, the proposed prisoner of war recognition supplement will be paid to veterans who were held as prisoners of war and to civilians alike who were interned as prisoners during World War II and the Korean War. Previous governments have made one-off ex gratia payments of $25,000 to former prisoners of war. In 2001, they were paid to those who were detained in Japan; in 2003, to those who had been detained in Korea; and in 2007, to those who were detained in Europe during World War II. The prisoner of war recognition supple­ment is proposed to be paid in addition to any existing Commonwealth benefits the eligible person receives. It will be exempt from income tax, exempt from calculations in assessing other veterans entitlements and exempt from social security income tests. The payment will be indexed annually in line with the consumer price index. The supple­ment is not a pension, nor is it compensation based on any test of incapacity or on the person having suffered a war caused injury or disease, and it will not be subject to the offsetting provisions of the act. It is purely in recognition of incarceration.

The Department of Veterans' Affairs estimates that up to 900 former civilian and veteran prisoners of war will be eligible for the supplement. Introduction of the supple­ment is overwhelmingly supported by the veterans community. It is appropriate that we acknowledge the unique and often traumatic circumstances that prisoners of war endured at this nation's behest. Neither one-off payments nor fortnightly supplements can possibly fully compensate for the experience of being held as a prisoner of war. But, as a society, we can make these gestures which may make life a little more comfortable for those who have endured so much and acknowledge the contribution these people have made on our behalf. The Australian Greens support schedule 1, the payment of a prisoner of war recognition supplement.

Schedule 3, the proposed rationalisation of the temporary incapacity allowance and the loss of earnings allowance, is a logical streamlining measure which will remove the overlap and confusion associated with two similar payments. This proposal elicited no major concerns from the veterans community or others during the committee's inquiry. The Australian Greens support schedule 3.

This brings me to schedule 2 of the bill. According to information from the Depart­ment of Veterans' Affairs, schedule 2 seeks to clarify compensation offsetting provisions. These provisions apply where a veteran receives compensation for two or more different injuries or illnesses which would result in the same incapacity. The provisions have been used since the early 1970s and schedule 2 seeks to clarify their application rather than to alter them or change when they are applied. Compensation offsetting rests on the principle that compensation is payable for a state of incapacity rather than for a specific injury. This amendment seeks to affirm and give clarity to the original intention of the existing legislation and to ensure the equitable outcome that a person cannot receive duplicate compensation for the same incapacity under different pieces of legislation.

Under the Veterans' Entitlements Act, pensions are payable for war or defence caused injury or disease. Pensions under part 2 of the act are payable to veterans, while pensions under part 4 are payable to current or former Defence Force members with certain peacetime service. The amendment in the bill seeks to ensure that a person cannot receive duplicate compensation for the same incapacity by providing that, if a person is receiving a pension under part 2 or part 4 of the Veterans' Entitlements Act and the person receives additional compensation from another source in respect of the incapacity or death for which the pension is being paid, the amount of Veterans' Entitlements Act pension is reduced—that is, offset on a dollar for dollar basis by the amount of additional compensation. Most cases involving compensation offsetting arise from duplicate entitlements under the Veterans' Entitlements Act and the Safety, Rehabilitation and Compensation Act and their predecessors, though compensation from other sources, including third party insurance and common law cases, may also be subject to compensation offsetting under the Veterans' Entitlements Act.

The stated reason for the introduction of the bill was to clarify the law after a 2009 Federal Court case, the Commonwealth of Australia v Smith (2009) FCAFC 175, after that case cast doubt on the way in which the department had previously interpreted the Veterans' Entitlements Act. The policy objective of the amendments was said to be to provide some certainty that the offsetting provisions in the Veterans' Entitlements Act could continue to be administered as they had been for nearly 40 years so as to prevent duplicate compensation being paid to veterans for the same incapacity. I was pleased to be a member of the Senate Foreign Affairs, Defence and Trade Legislation Committee for the purposes of inquiring into this bill. During this inquiry, concerns were raised by some members of the veterans community about this schedule, and the Australian Greens had some similar concerns. These can be summarised as: concerns that the schedule would extend the potential scope of offsetting, to the detriment of veterans; concerns about the consideration of legal costs in determining the value of compensation received; and concerns about the apparent discretionary nature in which offsetting provisions could be applied in the future.

I turn to the issue of legal costs first. During the inquiry, I was concerned to learn that, when considering what amount of compensation was received in order to determine what offsetting should occur, the Repatriation Commission allows for one type of legal cost to be subtracted from the lump sum but not another. So the costs which are described as party-party costs are able to be subtracted from a settlement figure and the net figure then used to offset. However, other costs commonly paid by a client to a legal adviser—called solicitor-client costs—are not subtracted. These solicitor-client costs reduce the amount of money actually recei­ved by the claimant for their own use. This was raised as a matter of concern by the Vietnam Veterans Federation of Australia and the Returned and Services League of Australia.

The Australian Greens are of the view that solicitor-client costs can often be quite significant and should not be ignored when the settlement figure for offsetting is being calculated. As Rear Admiral Doolan of the RSL said to the inquiry, the figure used for offsetting should be the amount actually paid into a person's bank account. This is only fair. The idea behind offsetting is that a person should not be compensated twice for the same incapacity. However, a person has not actually received that part of the compensation for their own use which has been paid to their lawyer as a legitimate cost of taking the legal action. So, it stands to reason that that part of the settlement should not be taken into account for the purposes of offsetting. The Australian Greens believe that solicitor-client costs should be subtracted from any settlement for the purposes of offsetting calculations.

The committee report notes that this is an area worthy of consideration by government, although it is beyond the scope of the current bill. I understand that there has been a recent extensive review of military compensation, that the government is yet to respond to the review and that further legislative changes are likely in due course as a response to this review. The Australian Greens wish to see the issue of solicitor-client costs addressed in the next amendment bill.

Of more immediate concern is the possibility, raised by the RSL and the VVFA—the Vietnam Veterans Federation of Australia—that the bill would lead to a situation where the Commonwealth could double dip into veterans' disability pensions and would change the system that has operated satisfactorily up to now. I took these concerns seriously, discussing them in more detail with the RSL and the VVFA after the inquiry was completed. While committed to the principle that offsetting was a sound practice in order to prevent a person being compensated more than once for the same incapacity, I was concerned that veterans should not be worse off, given the assurances that the government had offered that this legislation was not intended to do any more than affirm and clarify the situation as it is applied prior to the Smith case.

After discussions with a representative of the minister and senior members of the Department of Veterans' Affairs, I was pleased that the government had agreed to amend the explanatory memorandum attached to the bill to include a clear statement to the effect that the proposed amendments will not change the current operation of the compensation offsetting provisions, including the interaction between the provisions and chapter 19 of the Guide to the Assessment of Rates of Veterans' Pensions, fifth edition—also known as GARP V.

This revised explanatory memorandum reads:

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 expansion to the explanatory memorandum clearly sets out the current practice in the use of GARP where there is an 'accepted' condition and a 'non-accepted' condition and the situation where GARP does not apply. In both cases the memor­andum explicitly states that the current practice will not change under the proposed amendments.

There remained a concern, raised by the RSL and the Vietnam Veterans Federation of Australia in the inquiry and subsequently, about the discretionary nature of offsetting practice as it may be applied by the Repatriation Commission or decision makers into the future, notwithstanding what has happened in the past. Again, the Australian Greens took these concerns seriously and I am pleased that, after further discussions with the minister's representative and the department, the government has agreed to add a further paragraph to the explanatory memorandum as follows:

The Repatriation Commission will be issuing appropriate policy guidance to the Department of Veterans' Affairs staff to ensure offsetting occurs in line with the legislation and longstanding practice as outlined above. Ex-Service Organisations will be consulted during the development of this material.

These statements, which will be on the public record, affirm the government's position that schedule 2 clarifies but does not change current offsetting arrangements. As such, the concerns of the Australian Greens about schedule 2 have been substantially addressed. In light of the revised explanatory memorandum, the Australian Greens now support schedule 2, meaning the Australian Greens support the Veterans' Entitlements Amendment Bill 2011, as proposed by the government, with one addition.

On behalf of the Australian Greens, I will be co-sponsoring a second reading amendment to the bill with Senator Nick Xenophon requesting that the government undertake an examination of the cost of expanding the class of persons eligible for the repatriation health card for all conditions—known as a gold card—to include a person who is a nuclear test participant as defined in the Australian Participants in British Nuclear Tests (Treatment) Act 2006, and that such examination of the costing be completed within three months. Consideration of extending the gold card to British nuclear test participants is a matter of principle for the Australian Greens and has been previously proposed by my colleague Senator Scott Ludlam. Australian veterans were exposed to nuclear testing and radiation between 1952 and 1963 at Maralinga, Emu Field and the Montebello Islands. The Greens believe that, given these people were exposed to ionising radiation and the severe health impacts arising from this, they should be entitled to full comprehensive health care, in particular at gold card standard. Currently, British nuclear test participants do not have an automatic right to these entitlements. It seems to the Australian Greens that, given the recognition of the experiences and service of prisoners of war in schedule 1 of this bill, this is also an opportune time to request the government to investigate the costs of implementing this reform for British nuclear test veterans, who were also acting in service of their country. It would be a just and long overdue reform. I understand that, given the relatively small number of veterans involved, the costs would not be unduly prohibitive but I am happy to have this examined. Thus, the Australian Greens are happy to co-sponsor a second reading amendment.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Veterans' Entitlements Amendment Bill 2011 and note the contribution of Senator Ronaldson and our opposition to schedule 2. The bill gives effect to the following budget measures: a prisoner of war recognition supplement, some proposed compensation offsetting changes, and rationalisation of the temporary incapacity allowance and loss of earnings allowance.

I will touch briefly on schedules 1 and 3 and then come back to schedule 2. On schedule 2, I have a number of issues with both process and principle that I would like to address. With regard to schedule 1, since 2001 lump sum payments of $25,000 have been made to former prisoners of war, particularly prisoners of the Japanese during World War II. That was a well-justified initiative of the Howard government to recognise the conditions and privations that were put upon these people who served their country. In 2003, these were extended to former POWs of the North Koreans during the Korean War and were extended again in 2007 to former POWs interned in Europe during World War II.

The supplement is a $500 per fortnight payment, which I welcome on behalf of the veterans who have been prisoners of war and note that it is tax free and not offset. I believe that is the kind of precedent that we should be setting for all of our support for veterans, whereby we recognise the fact that they have provided a unique service to this country and therefore we should be prepared to provide unique support back to them, even if it is different to the way some other community payments are treated.

Schedule 3 of the bill is a rationalisation of the temporary incapacity allowance and loss of earnings allowance. I notice there will be some veterans who are affected by the wind back of TIA, but all of the veterans organisations that we consulted supported that rationalisation as providing better clarity around those provisions.

I wish to discuss schedule 2 in a little more detail. I particularly wish to thank members of the RSL who came to the inquiry of the Senate Foreign Affairs, Defence and Trade Legislation Committee, as well as Legacy and VVF, who provided submissions to help the committee looking at this provision understand how these proposed amendments could affect veterans and their concerns about them. One of the concerns that we raised in particular was about process. The Minister for Veterans Affairs made statements about the extensive consultation that had preceded these amendments and yet in our discussions, particularly with the RSL, it became abun­dantly clear that the consultation process in fact was not particularly broad. When it was boiled down, the specific consultation process with peak bodies such as the Returned and Services League consisted of a budget-eve briefing.

The common definition of consultation, as I understand it and as I think a reasonable person in the community would understand it, is a process whereby you engage with concerned parties, put forward a case, seek their feedback and, as appropriate, amend your position based on their feedback. To have a one-way flow of information on the eve of an announcement such that people have no chance, no opportunity, to influence or put forward their case or identify where the amendments may affect them and call it consultation is a real stretch. I believe that in light of the proposed amendments that the Australian Greens are talking about, where the government is promising to consult with the veterans community, we need to look at what it has done preceding this amendment bill and make sure that it is held to account to have meaningful consultation, which means consultation well ahead of the tabling of any changes that gives a real opportunity for people to consider the amendments and to make appropriate and studied responses to the amendments.

I move to the issue of principle. The RSL raised the point that it is very happy with the way the current offsetting provisions work. It accepts the need for offsetting but it also maintains essentially that if it is not broken then don't try to fix it. DVA promises that these amendments will make no change and will have no impact on veterans, which raises the question—particularly given that the Federal Court indicated that the Smith case was unique and DVA is not able to identify anyone else who falls within the same category—as to why the changes are needed. The RSL in particular highlighted that it believes that the Guide to the Assessment of Rates of Veterans' Pensions, fifth edition, the GARP V, is adequate and addresses the situations where there needs to be some offsetting or pro rata allocation for a combination of injuries that have led to an incapacity.

Coming to the principle of offsetting: as I said, none of the veterans organisations disputed the need for offsetting. If you go back to 1973, when the principle first started to appear in legislation, there was an overlap between the Repatriation Act, the predecessor to VEA, and the Commonwealth Compensation Act 1971, which gave rise to a situation where some people had dual eligibility. It was very clear that there were two Commonwealth schemes under which people could possibly have a dual eligibility. So the concept was that nobody should be compensated twice by the Commonwealth for an injury that was received during their service. I do not think anyone has concerns with that. What has changed, though, is that the understanding that the offsetting should be between two Commonwealth sources of compensation has been extended so that any source of compensation is included We see this in both the explanatory memorandum and the DVA submission. In fact, DVA highlighted that some 20 per cent of the offsetting cases they are dealing with are not from Commonwealth sources but from sources such as civil claims and other sources of compensation. There is a flawed principle in the application of this amend­ment and the way the department has administered offsetting since it was intro­duced in 1973. If the principle was to make sure that the Commonwealth was not liable twice for one injury, that would be fine. But when you extend that to other sources of income then you start abrogating the duty of care that the Commonwealth has to people who have served this nation. It is important to remember that loyalty flows two ways.

If we expect people to enlist in the armed forces and to be prepared to put their lives, their welfare and their health on the line in the interests of this nation then we should be prepared to return that loyalty to them when they return. If they have been injured, including in the course of their duties during non-war related activities, we have an obligation to care for them. The fact that they may have another injury which was caused during a civilian accident and which happens to affect the same incapacity does not remove the obligation of the Commonwealth to care for those people who have rendered that service to their nation.

This concept of the duty of care is longstanding. Going back to the 1500s, Elizabeth I instructed parishes in England that they needed to care for returned servicemen. During the Napoleonic wars the British government came up with the concept of the 'deserving poor', recognising that people who returned and who were incapacitated as a result of their service to their country deserved the care of the people of that country. In contemporary Britain—and I use the example of Britain because of the links to the Westminster system—as recently as the last decade there has been the concept of a covenant between the British people, their government and the military.

This covenant has two facets. One is that if the government is going to deploy service men and women then they have a duty to make sure that those men and women are adequately equipped, trained and supported in the theatre of war. Likewise, there is that obligation post service to provide adequate care. I do not believe that the Australian public expects or would support the principle that the Commonwealth should be able to shift that duty of care to a third party just because a veteran has had civilian compen­sation payable for an injury. If a veteran has signed up to the service and the service has promised to provide for them then that obligation continues. If the veteran has a civilian injury, that is a separate issue. Speaking to people in the service and even to people working within the Repatriation Commission, I have noted their surprise in hearing that offsetting would be allowed for things other than dual Commonwealth entitlement. I believe that is something we need to address as a parliament.

The second facet of this covenant relates to the costs that are considered as part of the offsetting arrangement. Currently if somebody seeks compensation because of an injury then not only does the government take into account the civilian costs—and I dispute that principle—but it does it in a way that I believe is quite unfair. Whilst DVA recognises the party-to-party costs it does not recognise or discount the solicitor-client costs. That means that if a veteran receives, for example, $30,000 but $10,000 of that is taken up with costs to their solicitor then, rather than recognising that they received only $20,000, DVA treats the whole $30,000 as being compensation received by the veteran and offset appropriately or accord­ingly. Again, I do not believe a reasonable member of the public would expect that our government should be short changing veterans who had to incur that cost in order to win that compensation in the first place.

To my mind, the government is not only going against the principle of two-way loyalty—of having a duty of care to veterans—by including that civil payment. It is doing it in a manner that is unjustifiable. When questioned on this during the inquiry, DVA's position was that the offsetting or discounting of the solicitor-client costs was in line with community norms. Again, I come back to the principle that we are expecting people who sign up to serve in the Australian Defence Force to do things that are not expected of the broader community. If we expect that loyalty from them, we should show that loyalty back to them. We should show them that when things like this come up we are prepared to deviate from the community or civilian norm so that we do not disadvantage the veterans in our community.

The RSL also expressed during this inquiry its concern about the long-term changes of the offsetting provisions. The military, in a very welcome move, has in­creased the amount of rehabilitation available to servicemen. Rather than dis­charging them on a medical basis, there is an increased focus on rehabilitation. The question was raised—and was not particularly satisfactorily answered by the department—as to the long-term conse­quences of the costs of rehabilitation and how they may be offset in future years. I note particularly that the concept of offsetting between Commonwealth funds has now crept, without any legislative guidance, to include any source of compensation. The RSL raised the concern that, over time, the way people apply legislation can change and will often change to the detriment of the veteran.

So a number of new factors are starting to come into this whole space, where we see an increase in money spent by the Com­monwealth on rehabilitation—and very appropriately. The question remained open, at the end of the inquiry, as to whether there was any guarantee that there would not be a detriment in years to come to veterans who had received payment from the Common­wealth for rehabilitation services to enable them to continue their service. So, all in all, we have an amendment here that the depart­ment itself says will have no effect. It cannot identify other people who fall into the case of Mr Smith, whose court case led to this amendment. It is proposing to spend some $2.7 million implementing an amendment it has said will have no practical effect. The ex-service community oppose the amendment and I believe there is no cause for us to support this amendment.

Whilst I commend Senator Wright for her active role and for engaging with the government, it seems to be indicative of the coalition that has now been formed between the government and the Greens in that they were fully informed about the changes to the explanatory memorandum and yet it was only delivered to the opposition shadow spokesperson for this important portfolio when he was 10 minutes into his second reading debate speech. I believe it is a particularly poor effort on behalf of the government to treat their coalition partner differently to the way they would treat the opposition in this important area. It is not the first time they have worked together and, like Senator Ronaldson, I note and want to record my deep disappointment that the Greens, the ALP and Senator Xenophon joined together to defeat the bill that would have addressed the indexation of the DFRDB.

I also note, again coming back to the lack of consultation, that this government has, without consultation, reduced funding for things like veteran advocacy funding, an important part that enables volunteers within our service organisations to work with people who need advocates. The funding provides them with the training and support that enables them to do an important role. If there is one thing I have seen from my involvement in public life it is that government policy is one thing, but it is the people on the ground, those who have the relationships and the connections to encourage and walk with people through the process to connect them to the benefits that are available from policy, who actually make a difference. Policy by itself does very little. No matter how dedicated public servants in the departments are, they do not have the relationships with people in the community. So it is often these voluntary roles that are really the effective connecting and coordinating bodies, and to cut their funding arbitrarily and without consultation is, I believe, a particularly poor step on the part of this government. It shows a great disrespect for our veterans community and the work they do.

We will not be supporting schedule 2 of this amendment.

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

I indicate that I will be supporting the second reading of the Veterans’ Entitlements Amendment Bill 2011, but I reserve my position in relation to schedule 2 of this amendment. I agree with Senator Ronaldson that it is quite unsatisfactory that an amended explanatory memorandum was provided some 10 minutes into Senator Ronaldson's speech on the second reading in relation to this. I am not ascribing blame. I understand from my brief discussion with Senator Wright from the Australian Greens that there were discussions and negotiations with the government last week. That is why there has been a late development in this, in the sense that an amended explanatory memorandum, in relation to schedule 2 of this bill, has been provided. It is important that that explanatory memorandum be thoroughly scrutinised in the committee stage to ensure that the matters raised by the coalition have been dealt with adequately. I will speak about that shortly in relation to that particular schedule and the potential impact it can have on veterans' entitlements.

It would be appropriate for me to raise at the outset, however, the comments made by both Senators Fawcett and Ronaldson on my position with respect to the indexation of veterans' superannuation entitlements. It was a controversial bill and it is a controversial issue. On that particular coalition private senator's bill, which I voted with the Australian Greens and the government to defeat, I voted with a great deal of caution and reluctance, but I made it very clear at that stage that I thought it was important that there be a re-think of this once the review being undertaken by the defence minister, and by a Senate committee, on the Defence Materiel Organisation hands down its findings. Clearly, the potential fiscal implications of that bill were quite significant—in the hundreds of millions if not billions of dollars. That in itself is not a reason not to proceed with legislation, but given the disparity between what the coalition said it would cost and what the government said it would cost and given that this has huge long-term implications in terms of superannuation entitlements, I thought it was appropriate that we find savings from the Defence Materiel Organisation and from Defence generally in order to ensure that there is a long-term sustainable method of superannuation indexation for those who have served.

I also made it clear when I spoke at the time that I thought there would always be an issue with those who have been injured while serving their country and for the family members who have lost a loved one in the service of their country, and that ought to be a priority. I do not think there is any dispute about that in terms of a limited pool of resources for that. That is something I will allude to in the context of this contribution. I want to make that clear to the veterans community, for whom I have enormous respect. I pay tribute to Barry Heffernan, with whom I have worked closely—he works with the Vietnam Veterans Associa­tion in South Australia—for the work we have done together. That just reminded me that this morning I need to return Mr Heffernan's call from the weekend.

But it is important that we put this into perspective. The matter of superannuation entitlements is not over. It should be pointed out, not as a criticism but as a matter of historical record, that the coalition in their time in office did not deal with the issue of indexation. They opposed it. And it is fair to say that there are some in the coalition who were concerned about the budgetary implications of that and did not oppose it in the party room. But the party room has prevailed and is saying that this is the path they are going. I note that it will be coalition policy to take this to the people at the next election, as they are well entitled to do. So the door has not closed in relation to that and I am hoping that in the next few months we will get satisfactory answers in relation to savings from defence materiel and the long-term implications of such a move as proposed by the coalition so that we can have a good outcome for our veterans, not forgetting those who have served our nation, those who have been injured or maimed, who deserve every possible support—and improved support.

That brings me to the bill and a second reading amendment that I will move shortly. This bill contains three specific aspects. Schedule 1 creates the prisoner of war recognition supplement. That is entirely appropriate and I strongly support those measures. I note that Senator Wright, in her contribution, referred to the enormous sacrifice that our prisoners of war have made, the privations they endured. I note that Australian governments of the past have given an additional payment of $2,500 to prisoners of war under Japanese occupation during World War II. That is entirely appropriate. This goes further, in that it provides ongoing benefits to our prisoner of war veterans, and I strongly support that. I cannot imagine what all prisoners of war went through; some in particular went through horrors that cannot be described. I commend the government for going down this path and the coalition for supporting it.

I will talk about schedule 2 in a minute, because it is not a contentious one. It rationalises the temporary incapacity allowance and loss of earnings allowance through the abolition of the temporary incapacity allowance with effect from 20 September 2011. Thereafter, veterans will be entitled to seek access to the loss of earnings allowance. That, too, seems not to be contentious. It is something that the coalition and the government support and it seems to be a necessary technical change to ensure a fairer outcome in relation to the temporary incapacity allowance.

However, it is schedule 3 that is troublesome. It is intended to prevent, the government says, double payments of compensation for the same incapacity. It is an amendment that has come about as a result of a court decision in the matter of Mr Smith. That was a significant decision. It was a decision handed down at the end of 2009. The Commonwealth and David Ronald Smith was a case which looked at the interpretation of section 30C of the VEA in respect of incapacity from an injury. I think Senator Ronaldson well set out the details of that case involving Mr Smith's circumstances and the decision, and I do not propose to restate that.

The question is whether the government has overreacted in moving these amendments in response to the Smith case. The question is whether these amendments will have a number of unintended consequences, whether they will give too much discretion to the department, whether there can be circumstances in which veterans will miss out on just compensation and on their just entitlements as a result of these amendments, whether we are in fact giving too much power to the department and whether we are creating more legal uncertainty. Even though I am a lawyer by training, I would not want these amendments to lead to a lawyers picnic. I think that is something we need to be very mindful of. The committee stage of this bill will be critical in determining whether the addendum to the explanatory memorandum—a result of negotiations between the government and Senator Wright from the Australian Greens, and I commend her for her diligence in relation to this—will do what it is intended to do and whether it will fix the problem that the RSL have quite rightly pointed out is a significant issue for them.

My question to Senator Ronaldson in the course of the committee stage will be, given that he was handed the explanatory memorandum 10 minutes into his speech, which is less than satisfactory, whether he has heard from the RSL at such short notice as to what their attitude is and whether their position is in any way different as a result of this addendum to the explanatory memor­andum. That is a key issue. It may well be that the RSL have not had an opportunity to properly digest this, and you cannot blame them for that given what has occurred. I think it is important that we do not rush this, that we do not ram this bill through. It is important that we hear from key veterans organisations and from the Returned and Services League in particular, given their input into the bill process.

There is another issue, though, that needs to be dealt with. It is appropriate, I believe, in the context of this bill, in the context of veterans' entitlements, to deal with the issue of Maralinga, to deal with the issue of nuclear test veterans in this country and the shameful way they have been treated over many years. In the 2010-11 budget I was pleased with the government's recognition of British veterans' services as non-warlike but hazardous, which meant that those who served between 1952 and 1967 at the British atomic weapons detonation test sites of Emu Field and Maralinga in South Australia and the Montebello Islands off the west coast of Western Australia would have greater access to health services. Over 17,000 Australian soldiers and civilians were directly involved in the tests and assessment of the fallout from the nuclear tests across these sites.

These tests were conducted to enable the United Kingdom to develop nuclear fission bombs and, later, nuclear fusion or hydrogen bombs, and were carried out with the full cooperation of the Australian government of the time. Sadly, many of these Australians have gone on to suffer a range of illnesses as a result of dangerous and continued exposure to high levels of radiation, from cancers to genetic diseases inherited by their children. Many of them have died as a direct result of this exposure to radiation. There are only around 2,000 survivors left and they are whittling away on a weekly basis.

In the 2010-11 budget, the government set aside $24.2 million over five years so that participants would have their claims to veterans' entitlements, such as the disability pension and healthcare cards, assessed under the more generous 'reasonable hypothesis' standard of proof under the new expansion to the class of persons eligible. However, my understanding is that very little of these funds have been accessed because the standard of proof remains too high for those suffering illnesses as a result of nuclear test service. In May 2007, Professor Al Rowland from Massey University in New Zealand published a scientific paper on chromosome damage that provided hard evidence of the relationship between exposure to the ionising radiation from atomic blasts and certain cancers and birth defects.

I have been contacted about this issue by many who have been affected for some time. I have spoken with many veterans, including Peter Patterson, a retired canon of the Anglican Church, who contacted me after his applications for a gold card and disability pension were denied. Mr Patterson 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 has told me that he has suffered from prostate and skin cancer during his life as well as from psoriatic arthropathy, a debilitating chronic arthritis condition which causes the inflammation of all joints. It is incredibly painful and debilitating. However, Mr Patterson's claim for a disability pension was rejected on the grounds that the delegate of the Repatriation Commission was not satisfied beyond a reasonable doubt that the psoriatic arthropathy was related to service.

I have also spent time with Geoffrey Gates, who was 23 years old when he served at Maralinga with the Air Force. He arrived in the middle of 1961, just after the two major bombs had been tested. During his 12 months at the base, tests on smaller nuclear weapons were continuing as well as assessment of the fallout from the bombs. Geoff has survived a brain tumour and both his son and grandson suffer bipolar disease.

Some veterans have told me about how they did nothing more than turn their backs for mere moments before turning around to watch the aftermath of the explosion. That was the modus operandi back then. That was how it was done. There was a complete lack of duty of care to our nuclear test veterans. Despite this, despite the fact that we know that service men had no protective clothing, despite the fact that they were literally rained on with nuclear fallout, I am aware of applicants who have been knocked back for a gold card because the department has determined they were not exposed to harmful amounts of radiation.

I welcomed last year's budget announce­ment that the participation of British nuclear test participants would be considered as non-warlike hazardous. This was welcomed by the veteran community. But it seems it means almost nothing because what they really need is access to health services and, under the current rules, sadly, virtually nothing has changed.

I have this morning circulated an amendment that will be dealt with by the committee to expand the class of persons eligible to receive the gold card to include British nuclear test participants. The simple fact is that the standard of proof required is too high given nuclear radiation is unable to be so directly proven after the time that has elapsed. But what can be proven is that these veterans were exposed to nuclear radiation in circumstances where there was a lack of care and respect shown for those veterans who were there being exposed to nuclear radiation. How is it that we sent young men and women to participate in nuclear testing, to observe the mushroom cloud and to clean up the fallout and to this day do not recognise the very serious impacts it has had on their health and the health of their children and grandchildren? This amendment will ensure that those British nuclear test participants will automatically receive the gold card. It should be that simple.

However, I am aware that the government and the opposition may not support that and that they are concerned about the potential cost implications. I see the cost implications here as being quite distinct from the cost implications in relation to the issue of superannuation. I indicated just a few moments ago and at other times since that vote in June on the superannuation issue that I am open for there to be reform. I am open for there to be an improvement in the superannuation benefits. But here is a case where people need access to health care. It ought to be a right for those British nuclear test veterans.

I, and also on behalf of Senator Wright move:

At the end of the motion, add "but that the Government undertake an examination of the cost of expanding the class of persons eligible for the Repatriation Heath Card—For All Conditions (Gold Card) to include a person who is a nuclear test participant (within the meaning of the Australian Participants in British Nuclear Tests (Treatment) Act 2006), and that such examination be completed within 3 months".

This is a second reading amendment to ensure that the government will conduct a cost review within the next three months on expanding the eligibility of the gold card to nuclear test participants. I am hopeful that both the government and the coalition will support that. I am hopeful that that will at least be a way forward for those who are reluctant to support my amendment. At least there will be an acknowledgement and some mechanism to deal with the costing of this so that those remaining British nuclear test veterans can have access to the health care that they deserve.

The contentious part of this bill will be schedule 2. Let us wait and see whether the addendum to the explanatory memorandum deals with those concerns. I have yet to be convinced. I think, again, that the protests of Senator Ronaldson that he received it halfway through his speech in the second reading debate are completely justified. I hope that the government will give time to allow key veterans organisations—in particular, the RSL—to provide commentary about the addendum to the explanatory memorandum, because at this stage I am not convinced that schedule 2 ought to be passed. I am not convinced that the govern­ment's reaction to the Smith decision is a justified one. But I also urge my colleagues to, at the very least, consider opening the way forward for nuclear test veterans in this country to receive the medical care that they so desperately deserve.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | Link to this | Hansard source

I am very pleased to take part in this debate on the Veterans’ Entitlements Amendment Bill 2011 and to support any bill that supports our veterans. I am pleased to note that the coalition will be supporting, as I will be, the bill insofar as schedules 1 and 3 are concerned. I am very interested to be following Senator Xenophon in this debate and will be interested to have a look at the amendment he has proposed. I wonder if he has some costings for that amendment. I have to say to Senator Xenophon that it is perhaps too little too late. We really needed your support a few months ago during the indexation debate.

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

It was a different issue, though.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | Link to this | Hansard source

It is an issue of support for our veterans community. We desperately needed your support then, Senator Xenophon. You had your own reasons for not supporting us, which was a bit disappointing, but I am pleased to see that you are supporting those parts of this bill which will improve the benefits we give to our veterans.

I will come back the provisions of the bill, but I would just indicate how much our nation owes the veterans—those people who have defended our country in times gone by. What our veterans have done is fresh in my mind from a ceremony I attended yesterday morning in Townsville marking the 60th anniversary of national service. The dawn service yesterday, on the shores of Rowes Bay in Townsville, was a very moving service. It and the parade later in the day were the culmination of a week of activities, during which national serviceman got together in Townsville for this magnificent 60th anniversary celebration, celebrating those who were called up for national service from 1951 onwards and served in the Korean conflict and of course in Vietnam. It was tremendous to see the veterans together, renewing acquaintances, telling lots of stories and remembering friends and colleagues who paid the ultimate sacrifice.

The dawn service in Townsville, which is of course as senators would know classed, or we class it ourselves, as a garrison city. It is the home of Lavarack army barracks, one of the biggest army barracks in Australia, and of course RAAF Base Townsville, formerly Garbutt, which is a very significant RAAF base. A lot of veterans who have served in those services have retired to Townsville, so it is a community, a city, that very much values the work of our servicemen, including our national servicemen. Yesterday's ceremony was really a very moving service. The master of ceremonies was Mr Ben Hobson and the services were led by padre John Emerson. I particularly mention Brigadier Neil Weekes, retired, who has been a tower of strength to veterans over the years since he retired from active service in the army. Brigadier Weekes was a national serviceman himself—he was called up for the Vietnam War—so , many years ago. He later joined the regular army and rose through the ranks to become a brigadier by the time of his retirement. Brigadier Weekes gave a very moving tribute at the dawn service yesterday.

The dawn service was followed by a parade down the new Flinders Street. The veterans who participated were still sprightly—most of them were still in step. It was determined, probably not by them, that some veterans from the Korean conflict should travel in old Willys jeeps and other veteran army vehicles at the head of the parade. Of course, the Townsville regular army band provided the music for the march. The salute was taken by the Deputy Mayor of Townsville, Councillor David Crisafulli, and by Brigadier Stuart Smith, the current CO of Lavarack Barracks. It was a magnificent affair. It brought to mind, as Brigadier Weekes mentioned in his speech, some of the difficulties that some of the veterans of the Vietnam War lived through. The Whitlam government's treatment of veterans on their return from Vietnam is to its eternal shame. As I always say, and as many acknowledge, the decision to go to war in Vietnam was a political decision that a good 40 per cent plus of Australians did not agree with. That was no excuse for taking it out on the veterans when they returned. It was a quite despicable period in Australian history when those troops returning from Vietnam, after fighting for their country at the government's direction, were spat at and condemned and were shunned, even by family.

Brigadier Weekes gave a telling story yesterday. He mentioned that, in the walk of remembrance at Enoggera barracks, where all of those who were killed in Vietnam had a tree planted and a plaque placed, one soldier from Brigadier Weekes' platoon was not named and was not recognised. That is because his family was so totally opposed to the Vietnam War that they refused to put up the money to provide for the plaque and also refused to have their son's body returned to Australia. That is how hard the feelings were and how divided the nation was. I accept that there was a political division, but it does seem very sad and very unfortunate that the death of this soldier—who, as Brigadier Weekes mentioned, was over 21 and made his own decision to go to war in Vietnam to fight for his country—was not recognised through the placement of a plaque. We also heard of a similar incidence in which a family who did not agree with the Vietnam War do not want their son's name recorded on a plaque at the Australian War Memorial. There is space left for his name, but family members still refuse to have his service in Vietnam recognised. Perhaps they have their reasons. It just seems sad that Australians at the time could not distinguish the political element of that war from the magnificent service of veterans, in this case veterans who were national servicemen.

Notwithstanding that, it was a magnificent week in Townsville, with a lot of activity. The dawn service was certainly very moving. I congratulate the Townsville City Council on the naming of the park on the shores of Rowes Bay, where the national service memorial was constructed a few years ago. Yesterday, following the dawn service, the park was dedicated as National Service Park. The unveiling was conducted by Councillor Deanne Bell on behalf of the Townsville City Council, Mr Warren Hegarty on behalf of the National Servicemen's Association and Brigadier Smith, the current CO of Lavarack Barracks, as I have mentioned.

I congratulate Warren Hegarty and his team on a fabulous week recognising the national service given by so many Australians over so many years. I know Mr Hegarty and his team have been working very hard for years now to ensure that the of 60th anniversary celebration would go off without a hitch, and they certainly succeeded in that. It was a great credit to them and a great recognition of the service of so many young Australian national servicemen to their country over the past 60 years.

I want to comment on the matters that Senator Xenophon raised about Maralinga. I have only recently seen his amendments, and Senator Ronaldson will no doubt deal with those in the Committee of the Whole. If Senator Xenophon is embarking upon this process, perhaps some investigation should be made into disabilities suffered by children of veterans who worked at Maralinga at the time of the atomic and nuclear test research. A constituent in of mine in Townsville has certain deformities which medical advice has suggested to her are the result of radiation that her father would have received during his service at Maralinga, prior to her conception. Clearly the department and governments should look at causal effects and costs and ensure that appropriate consideration is given in this area. I think this area should be looked at a little further. I have raised it at estimates hearings and have written to the minister about it. Perhaps it is something that Senator Xenophon might have considered. I hasten to add that, having only just seen his amendments and having only briefly heard him speak, I have not thought the matter through completely. I am sure that Senator Ronaldson, on behalf of the coalition, will have looked at this a bit more closely and will be able to indicate the areas in which the coalition perhaps does not agree. Clearly there is a need to look at this matter to see whether any harm may have been caused to Australian servicemen and perhaps their offspring as a result of service performed at Maralinga.

I am pleased that the coalition will be supporting schedules 1 and 3 of the bill before us. I will not go into those schedules in any great detail as I am conscious that Senator Ronaldson and other coalition speakers have done so. Suffice to say that, in relation to schedule 2, I am persuaded by the evidence given by Rear Admiral Doolan, head of the RSL, during the Senate inquiry into this bill, where he said:

… the RSL view is that it is much better to have the legislation being the basis for all these matters than to have it by regulation.

I agree with that sentiment. I am concerned that, under the amendments proposed to schedule 2 to clarify the operation of the act, there will still be a requirement for guidelines by regulation or by departmental decree to ensure that they are properly applied. I thought I heard the Greens say in their contribution to this debate that they were now satisfied, because of an explana­tory memorandum, that all would be well. Under the Acts Interpretation Act, explana­tory memorandums can have some influence on the way legislation and regulation are administered. It would seem to me that if the parliament's intention can be written into an explanatory memorandum it can just as easily be included in the legislation. So, I am concerned about schedule 2. Senator Ronaldson has indicated that he will be moving an amendment to omit schedule 2, and the coalition is doing that in the best interests of our veteran and ex-service community. I certainly urge the Senate to support that amendment.

In conclusion, I congratulate our veterans for all the work they have done over their lifetime. We are certainly as a nation indebted to them. I am particularly grateful that the 60th anniversary celebrations of national service held in Townsville yesterday yet again highlighted for the Australian community the work done by all of those who have served in the defence of our nation.

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

I am pleased to speak to the Veterans' Entitlements Amendment Bill 2011. At the outset I must declare an interest as a member, however peripherally, of the defence family. Our youngest son was an active service officer with the Royal Australian Armoured Corps, in both Iraq as a lieutenant and in Afghanistan as a captain. So, I have both a personal and a professional interest in this issue. I join my colleagues in supporting these POW supplementary support measures. My only regret is that this was not put into place earlier by either side of the parliament. I fully support it and I am sure the wider Australian community do. I also support schedule 3, relating to the loss of earnings allowance. This is logical and it is what we expect the veteran community would want to see, and I have no doubt it is what the wider Australian community would want us to pass.

In contrast, I join in the opposition to schedule 2 of the bill. It proposes that the power of the parliament to determine the manner in which compensation payments are offset against each other should be removed. In other words, as it has been explained to me, in the event that an ex-serviceman has been wounded and is being treated for some matter relating to their defence service and is then the subject, regrettably, of a further injury—for example a motor vehicle accident which occurred well after their defence experience—then there would be an offsetting of the compensation to that person one against the other, the non-defence related activity against the defence related activity. I find this to be unacceptable; I find it to be parsimonious. I cannot understand why we are even debating it. We are merely the representatives of the wider Australia community. We are elected by the com­munity to be here to represent the people. The first question I would put to my colleagues on the other side is simply this: do the people want the parliament's power to deal with this issue of offset to be gagged; do they expect this to be devolved to some group of people other than the parliament, duly elected? My second question is: do the people of Australia want there to be a further limiting of veterans entitlements in this type of incident? If a person has been wounded in their service to the nation then my expec­tation is that the wider community would say let the community meet the costs associated with rehabilitating that person so that they can come back to a normal life and contri­bute to their family, to the community and to their own wellbeing without there being, hanging over their heads, some concern that if subsequently they are injured in some other unrelated circumstance there is going to be some form of offsetting to limit their entitlements. I find this to be unacceptable and I would bet a pound to a penny that if we were to poll the wider Australian community they would too.

In the legislation proposed by my colleague Senator Ronaldson only in recent weeks we anticipated the indexation of veterans entitlements. Again, if we were to poll the wider Australia community, people would not only have wanted that to happen but also would have shaken their heads and asked why it was ever the case that there was this disparity. It is not to the credit of this chamber that the ALP, the Greens and Senator Xenophon failed to support Senator Ronaldson in that instance. For those who do not understand the implications of that indexation, it is my understanding that the matter went back to 1997 when the age pension and the defence pension were similar, except that from that moment going forward the indexation for the age pension was a combination or a factor of both the CPI and the movement in wages. I see that as being entirely reasonable. Regrettably, defence pensions have not undergone the same level of indexation, having only been linked—and they remain only linked—to CPI. Wage movements over time in this country—certainly since 1997, given the economic growth we have enjoyed in that time—have caused the age pension to move upwards at a greater rate than the defence pension, so there is now a disparity between the two. Senator Ronaldson's bill aimed to redress that imbalance so that our defence veterans would enjoy the same level of benefit—nothing better; no improvement; nothing beyond—as our age pensioners. Surely that is reasonable given the service and sacrifice that they offered.

Veterans and ex-servicepeople have asked me—and rhetorically I ask it here on their behalf—the question, 'What have our service personnel done to incur the wrath of those on the other side and their failure to support that legislation?' They say to me: 'Where did we go wrong? Were we not diligent enough in the service we gave? Were we not competent enough in the service we delivered? Why are we being so harshly dealt with?' I cannot answer those questions.

Senator Xenophon interjecting—

Senator Xenophon is correct—why did we not address it when we were in government? Our failure to do so, however, is not an excuse to have failed to address that question in 2011. When we speak to everybody in the Australian community—younger people, older people, people across the board—what do they tell us they expect? When we tell them that our veterans are second-class citizens when it comes to the financial support they get from this nation, most people say to me, 'Go and fix it up.' And we have failed to do so.

My third question, before I move on to the issue of younger veterans, relates to why the coalition did not receive the addendum to the explanatory memorandum until Senator Ronaldson was well into his speech. I think it should be explained why and how the Greens did have that access—and I compliment Senator Wright on her contribution. It is disappointing, if we are going to maturely debate an issue of such importance to the veteran community and of such interest to the wider community, that everybody has not had equal access to the documentation. I will return to this—I have had the opportunity presented to me by chamber staff to actually briefly review the addendum and I wish to return to it.

I was interested to hear the comments of Senator Macdonald with regard to the activities yesterday in Townsville. On Tuesday of last week, I was in the small town of Bruce Rock in the wheat belt of WA. It was absolutely amazing. There are, I think, a thousand people in the shire, with probably 200 to 300 living in the town. Right there in the main street was the most wonderful memorial to the fuzzy wuzzies. That memorial was dedicated last year—one of the original fuzzy wuzzies actually came down, with his son, to Australia and to Bruce Rock for the purpose.

Two Vietnam veterans decided, 11 years ago, that there should be some activity recognising the contribution of the Vietnam vets and the role they played, because we all know that the manner in which they were treated when they returned from Vietnam will, regrettably, forever be a stain on the history of this country. From that humble beginning 11 years ago, there will, when they meet on the first weekend of November this year, be 3,000 to 4,000 Vietnam veterans who will, with their families, descend on Bruce Rock. Last year there were 3,000 and this year they are expecting more. Some 400 are coming from Far North Queensland. It has become an annual event for them all. The shire president explained to me, with a high degree of pride, the activity that goes on, the contribution it makes to that small com­munity and the absolute overwhelming sense of goodwill that exists within those people.

Regrettably, should this legislation go through with the schedule that we are opposing, I am sure one of the questions discussed on that occasion will be the unfairness visited upon that group by the parliament through our inability to deal with this offsetting question. The event is an expression of the enormous interest in, the goodwill towards and the need for that community of military veterans to be able to come together to share values, to share stories and to encourage each other for the future. The last of the Korean War veterans also join them and it is my hope that, over time, should this activity continue in Bruce Rock, it will become a focal point.

There is a group called the Mad Galahs—military veterans, usually non-commissioned officers and lower ranks. They are fairly strident in their views—they express them, as their name suggests, without fear or favour—and they have that long-held healthy Australian disrespect, at least overtly, for senior officers. I can assure you again that they voiced to me very loudly their disappointment about the recent defeat of Senator Ronaldson's bill.

Over the last four to five years I have had the experience of meeting with and becoming friendly with many of our younger returned soldiers who have left military service. I have to say to you that they are, in my view, the best of the best. I have met young Army, Navy and Air Force officers. I speak to them about what they are doing now, what they were doing in military service and I say, 'Did you really want to leave the service?' In so many instances—and I dare say in my own son's—deep down, they did not want to leave the service.

I have said to them, 'Is it because of the numbers of tours of duty you were required to undertake in places like Iraq, Afghanistan and elsewhere?' They are emphatic when they say, 'No, it's not that.' And so I have said to them, 'Is it because of inferior or inadequate standards of management in your fields of combat?' and the answer has been no. I have said to them, 'Is it because we haven't supplied you with adequate equipment?' and they have said no in the main, even though in some instances they have had to buy their own, which I find to be reprehensible. Nevertheless, on the whole they feel they have been well handled on their tours of duty in the field. So I have said to them, 'Is it because of the attitudes of the wider Australian community towards you?' As I said earlier, if there is one thing that has happened as a result of the history beyond Vietnam, it is that the Australian community now well understands the differential between our military personnel and the role they play and those who send them there—as should have been the case with Vietnam. We should have always thanked and glorified the Vietnam veterans and, if there were blame or criticism to be apportioned, it should have been sheeted home to the political leaders who sent them. The same occurs today.

I am delighted to record and report—and observe, as you all are—the fact that our returned servicepeople are well and truly adulated by the Australian community. So it is not that which has caused so much wastage of the best of our best of the young military personnel. I will tell you what it is. Almost without exception, it is what they perceive to be the indifference within the Defence bureaucracy and the approach of government to their welfare. These are questions I asked the previous Chief of the Defence Force. We engaged on this quite often. I remain far from satisfied as to the management, the treatment, the welfare and the concern of our personnel as they return. I could give you examples relating to many people. These young people are highly employable in the civilian world, at salaries vastly beyond what they were getting in service—and that was not a reason for them to want to leave—but it is the perceived indifference and the perceived attitude of the Defence bureaucracy which simply causes them to say, 'Things have to be better outside.' As I said, my own son was very concerned about the bureaucracy and the inefficiency. As I said to him, 'The only way you are going to find that it is no different outside the military world is to get yourself into the corporate world,' and he has certainly found that to be the case.

I conclude my comments by going back to this addendum, which was received some minutes after this debate commenced. As Senator Ian Macdonald has indicated, it now suggests a move from legislation to regulation and departmental decree, but it goes exactly to the point I was just making about the Defence bureaucracy. The document says:

... will not change current operations of the compensation offsetting provisions. The changes are intended to clarify the operation of the legislation following the Smith decision—

the Smith decision is not explained. It goes on to say that where:

... interaction between the compensation offsetting provisions and Chapter 19 ... and the ... Rates of Veterans’ Pensions, 5th Edition (GARP V), ... will not change under the proposed amendments.

And it says:

Under current practice, if medical opinion is able to determine the relative contribution of an accepted condition and a non-accepted condition to the impairment—

then chapter 19 applies and on it goes. Then it says:

If medical opinion is not able to apportion the relative contribution of an accepted condition and a non-accepted condition—

then the chapter cannot apply. This is exactly the gobbledegook translated down to those in the ranks where they turn around and say, 'This is the bureaucracy we don't need.' I would think that if a person who is likely to be the subject of this legislation were to get hold of this document and say to themselves, 'What does it mean, what does it mean for me and what are the implications for me and ultimately for my family?' they would see that this document stands alone as an illustration of the points I make.

In conclusion, I certainly concur with the support of POW prisoner supplementary payments. I support the schedule 3 loss of earnings allowance and ask the government to reconsider schedule 2 because as it stands it would not receive the support of the Australian community.

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

by leave—I table an addendum to the explanatory memorandum relating to the Veterans' Entitlements Amendment Bill 2011. The Veterans' Entitlements Amend­ment Bill gives effect to a number of 2011 budget measures. The first measure creates a new prisoner of war recognition supplement payable at $500 per fortnight to former prisoners of war. The new supplement will be tax free and will not be treated as income for the purposes of the income test. The supplement is payable in recognition of the hardships these men and women endured during captivity. It is expected that approximately 900 former prisoners of war will benefit from the new supplement, which will be payable from 20 September 2011.

The second measure clarifies and affirms the original intention of the compensation offsetting policy which applies to disability pensions and has been in place since 1973. Compensation offsetting is applied to disability pensions to ensure that a person does not receive compensation under the Veterans' Entitlement Act and compensation from another source for the same incapacity. The amendments to the compensation offsetting provisions are being made in response to a decision of the full Federal Court, which highlighted the need to clarify and affirm this aspect of the legislation. I might, as an aside, note that that decision of the full Federal Court is referred to in the addendum as 'the Smith decision'.

The amendments make it clear that compensation offsetting is to apply where a disability pension and compensation from another source are payable in respect of the same incapacity and do not require that the incapacity result from the same injury or disease. As the amendments are clarifying and affirming the legislation, they will not result in any change to the compensation offsetting practices currently being applied. No current disability pensioner's rate of disability pension will change because of the amendments in schedule 2 of the bill.

The final measure will rationalise payments for veterans and members who are undergoing treatment for war or defence caused injuries or diseases. The bill will remove the current overlap in the allowances paid to veterans and members who are unable to work due to episodes of medical treatment and recuperation for war or defence caused injuries or diseases, and it allows the government to better target assistance to those in need. Under this measure the payment of the temporary incapacity allowance will cease from 20 September 2011, with future payments being better targeted through the payment of the loss of earnings allowance. The cessation of the temporary incapacity allowance will have no impact on a veteran's or member's rate of disability pension. From 20 September 2011, all eligible veterans and members receiving treatment or recuperating from war or defence caused injuries or diseases will be assessed consistently against the criteria for loss of earnings allowance.

These measures continue the government's commitment to targeting and enhancing services and support to our veterans and members and their families. I commend the legislation to the Senate.

Ursula Stephens (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendment in the names of Senator Xenophon and Senator Wright be agreed to. All of that opinion say aye, against no. I declare it lost.

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

The ayes have it.

Ursula Stephens (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Xenophon, are you seeking a division?

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

Yes, I am.

Ursula Stephens (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Xenophon, under the standing orders a division may not be held before 12.30 pm today, so the matter before the chair must be postponed until that time. This means the bill itself cannot move until that time, and we will have to move to the next bill.

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

I seek leave to make a short statement which may assist.

Leave granted.

Subject to what the co-mover of this second reading amendment, Senator Wright, says on this, of course procedurally we cannot have a division before 12.30. If it is on the record that both the government and the opposition oppose this amendment then that would obviate the need for a division in these circumstances—if that would assist the chamber to proceed with the bill. As long as it is clear who has voted for what, I think that would be a fair outcome. I invite the government and the opposition to set out their reasons for opposing the amendment. That is not strictly necessary, but that way we can move on with this piece of legislation.

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

I am happy to pursue that approach and set out the reasons that the government is opposed to the amendment. If that is the will of the chamber, I am happy to proceed on that basis. On that basis I seek leave to make a short statement.

Leave granted.

I thank the Senate. In setting out the reasons for the government's opposition to Senator Xenophon's proposed amendment, first let me point out that in the 2010-11 budget the government provided a $24 million com­pensation package 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. British nuclear test participants are also eligible to receive non-liability health care for all cancers. British nuclear test 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 gold card is only automatically granted to veterans with qualifying service, and that of course means warlike service, and over the age of 70 in recognition of the hazards of being in war and incurring danger from hostile forces of the enemy. The automatic granting of a gold card to the group proposed by Senator Xenophon would thus place British nuclear test participants in a more beneficial position than other veterans. Any automatic extension of the gold card to this group would result in significant additional costs that have not been considered by the government. That is the basis upon which the amendment is opposed and that is the basis upon which the government makes the contention that it has ensured that British nuclear test participants receive adequate and proper compensation and assistance.

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

I seek leave to make a very short statement.

Leave granted.

The opposition generally supports the commentary of Senator Feeney on behalf of the government. I note that, again, I was only advised of this matter just shortly before the debate on this bill. I have nothing further to add at this stage.

Question negatived.

Original question agreed to.

Bill read a second time.