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Monday, 12 September 2011
Page: 5660


Senator XENOPHON (South Australia) (10:55): 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.