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Tuesday, 25 May 2010
Page: 4046


Mr BALDWIN (4:40 PM) —I rise today to speak on the Defence Legislation Amendment Bill (No. 1) 2010. Broadly speaking, this bill contains five separate measures. It will seek, firstly, to establish the Defence Honours and Awards Appeals Tribunal as a statutory body; secondly, to ensure that there is fairness in the termination and discharge of an ADF member who has tested positive for a prohibited substance; thirdly, to make a purely administrative change that clarifies arrangements surrounding 58B determinations; fourthly, to amend the provisions contained in the Defence Home Ownership Assistance Scheme Act 2008 so that all members of the ADF Reserves, regardless of how they became a reserve member, can access the support afforded by this program; and, lastly, to make changes to the Defence Force Discipline Act 1982 to enable the appointment of chief petty officers and flight sergeants as discipline officers.

I will now speak on each of these amendments in more detail. The first measure contained within this bill seeks to amend the Defence Act 1903 and establishes the honours and awards tribunal as a statutory body. The tribunal was established in 2008 to inquire into and make recommendations on Defence honours and awards matters relating to issues referred to it by the government. However, the tribunal was only established as an administrative body and, even though the government has undertaken to be bound by the tribunal’s recommendations, the tribunal lacked the authority to make separate decisions or to independently review defence decisions, particularly those concerning eligibility for Defence honours and awards. Importantly, the proposed changes will provide past and present Australian Defence Force members, next of kin and other individuals with the right to appeal directly to the honours and awards tribunal regarding eligibility for Defence honours and awards. However, it should be noted that the tribunal will not review the eligibility for honours or awards that were made before 3 September 1939. As such, any application made regarding service rendered before this date will also not be considered by the tribunal.

I welcome this measure but remain highly sceptical of Parliamentary Secretary Kelly’s statements that these measures will provide a more transparent and accountable process. It must be remembered that this is a government that provided only 1½ pages of costings in the 2009 defence white paper. This is a government that completely blacked out pages upon pages of text within the Pappas review regarding Defence base closures. This is a government that, most recently, failed to make the public aware of the grounding of the entire MRH90 helicopter fleet, which suffered a catastrophic engine failure, for one whole month. So, in light of the above, you will excuse my cynicism regarding this government’s intentions to create a more transparent and accountable defence department.

Additionally, I find it astonishing that, given Parliamentary Secretary Kelly’s supposed enthusiasm with regard to Defence honours and awards, he has remained altogether silent on the issue of James Montgomery. For those unaware of James Montgomery’s infamy, he is an alleged military fraudster who, according to recent media reports, was exposed some weeks ago as having created false military identity cards and a false military service history, which included making himself a former member of the SAS and the recipient of the Victoria Cross. Dr Kelly’s spokesperson confirmed in media reports almost four weeks ago that Dr Kelly would review this case, which would be entirely appropriate seeing he is directly responsible for Defence honours and awards. However, he has failed to take any action on this matter. I therefore take this opportunity to remind the Parliamentary Secretary that it is his responsibility to investigate such matters and that he should do so immediately, not only because he said he would but because fraudsters like James Montgomery denigrate those who have earned their medals and who have earned the right to wear those medals.

The next measure in the bill seeks to amend the Defence Act 1903 in order to ensure there is procedural fairness when a member is discharged following the return of a positive test for a prohibited substance. This amendment has been put forward as a result of recommendations made by the Standing Committee on Foreign Affairs, Defence and Trade, which recommended the organisational separation between the initiating officer and the decision maker for all cases that involve the termination and discharge process. The current provisions, under part VIIIA of the Defence Act 1903, do not provide for this level of separation or procedural fairness. This amendment simply seeks to rectify this section of the Defence Act.

The next measure is purely administrative and seeks to ensure that 58B determinations relating to remuneration and allowances are subject to tabling and disallowance. This amendment will ensure that 58B determinations are in accordance with the Acts Interpretation Act 1901.

The next measure in the bill seeks to amend the Defence Home Ownership Assistance Scheme Act 2008 to ensure that all eligible members of the reserves, regardless of how they became a reservist, receive assistance under this scheme. This is a minor amendment that will ensure that, in particular, those permanent members of the ADF who have transferred to the reserves are eligible to receive the assistance provided under this scheme. However, I am at a loss to understand why Parliamentary Secretary Kelly would introduce the aforementioned amendment without considering another long-time bugbear of the reservist community when it comes to accessing the Defence Home Ownership Assistance Scheme. Currently reservists who wish to claim DHOAS assistance need to have completed at least eight years of effective service—that is, they need to have completed at least 20 days of reserve service each financial year over eight years. However, reservists may also be able to fast track their qualifying period if they undertake more than six months continuous full time service in one financial year. Under regulation 8(4), a reservist who completes a period of continuous full time service of six months or greater within a service year—a financial year—is considered to have rendered two years effective service when applying for benefits under the Defence Home Ownership Assistance Scheme.

Unfortunately, reservists who undertake a deployment that falls across two financial years miss out on this benefit, as their time served is effectively halved across the two financial years. The result is that some reservists receive Defence Home Ownership Assistance Scheme benefits while others miss out simply because their service straddled two financial years. For example, in 2008-09 reserve members who deployed as part of Rotation 15 of Operation Anode and who were still working towards their eight years of effective service missed out as their rotation was deployed from March 2008 to September 2008. Conversely, members of Rotation 16 of Operation Anode received a full credit for their continuous full-time service, as their deployment was from July 2008 to January 2009.

The current policy is unfair and is obviously an unintended consequence of the legislation. The question then is why Dr Kelly has chosen to ignore this issue. I know Dr Kelly is aware of this issue, as he has received the same letters from the reservists as I have. In fact, the letters have even noted that Dr Kelly was a recipient. This bill provided Dr Kelly with an opportunity to correct the unintended consequences of the existing legislation, but he has deliberately chosen not to. He has chosen not to because the proposed changes do not affect him directly as a current reservist. Parliamentary Secretary Kelly has simply lost touch with defence personnel, yet he has come into this parliament as a distinguished serving officer.

The last measure contained in this bill will enable the appointment of chief petty officers and flight sergeants as discipline officers. This measure will amend the Defence Force Discipline Act 1982 to clarify the jurisdiction of discipline officers and align the meaning of discipline officers and available punishments across the three services. This amendment also seeks to clarify the definition of ‘junior officer’ as it pertains to the Defence Force Discipline Act. The current legislation expressly excludes midshipmen in the Navy, but not an officer cadet in the Army or Air Force, as midshipmen are classified as officers even though they are still officers under training. This amendment will align the definition across the services, changing the terminology from ‘junior officer’ to ‘other than a person who holds the rank of officer cadet’. These changes will ensure that the officer cadets of all these three services will be subject to the jurisdiction of a discipline officer and the appropriate punishments as listed under section 169F of the Defence Force Discipline Act.

I support the measures contained in this bill. They are non-controversial and simply seek to amend some administrative and legislative inconsistencies within current defence legislation. However, as I have noted, throughout this bill the parliamentary secretary could have done more and should have done more particularly with regard to rectifying those unintended consequences of the Defence Home Ownership Assistance Scheme legislation that affect reservists.