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Thursday, 24 March 1994
Page: 2295


Senator MacGIBBON (9.13 p.m.) —The committee has before it what is in effect a recision motion relating to an amendment that we made only 48 hours ago in this chamber and the substitution in its place of an amendment which reads, `a member nominated by an organisation or organisations representing veterans'. That is just a motherhood statement; it means all things to all people. At the end of the day, when it comes to be applied by the minister, it means absolutely nothing because it gives him absolute latitude to do, without any hindrance at all, what he wants to do. It allows him to override the interests of the veterans' community.

  The basic flaw in the Military Compensation Bill, as presented by the government, is that a group which is the ultimate group affected by this legislation, namely, the veterans' community, the present serving members of the Australian Defence Force in the years ahead, will be exclusively covered by this bill. It is the only compensation that the great majority of them will get because they are on peacetime service.

  Under the proposition that is before the committee tonight, it will not be possible for the veterans to be represented on the commission overseeing the Safety Rehabilitation and Compensation Act. Make no mistake about it: despite all the flim-flam and the deception of the title of the bill—the military compensation scheme bill—it is nothing but the Safety Rehabilitation and Compensation Act, and that is an act designed and enacted for the benefit of civilian employees alone.

  When we look at what is going on in regard to the Safety Rehabilitation and Compensation Act—and with the greatest respect to my colleagues the Democrats, I doubt whether any of them have bothered to take the act off the shelf and look at it—we find that the administration of the act is covered in division 3. I propose to read part of division 3 tonight:

Division 3—The Commission

Establishment

  89A. This section establishes a commission called the Safety, Rehabilitation and Compensation Commission.

Functions

  89B. The Commission has the following functions, in addition to its other functions under this Act:

  (a)to ensure that, as far as practicable, there is no inconsistency in administrative practices and procedures used by Comcare, a licensed authority and a licensed corporation in the performance of their respective functions;

  (b)to advise the Minister about anything relating to the operation of this Act or to the Commission's functions and powers;

  (c)such other functions as are conferred on the Commission by any other Act.

Powers

  89C. The Commission has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

Directions by Minister

  89D. (1) The Minister may, by notice in writing given to the Chairperson, give a direction to the Commission with respect to the performance of its functions or the exercise of its powers under this Act.

  (2) The Commission must comply with a direction given under subsection (1).

Constitution—

and this is a very relevant point—

  89E. (1) The Commission comprises the following:

  (a)a Chairperson;

  (b)the Chief Executive Officer;

  (c)2 members nominated by the Australian Council of Trade Unions;

  (d)a member who, in the Minister's opinion, represents the licensed authorities;

  (e)a member who, in the Minister's opinion, represents the Commonwealth, and Commonwealth authorities other than licensed authorities;

  (f)the Chief Executive Officer of the National Occupational Health and Safety Commission or, if he or she notifies the Minister in writing that he or she does not want to be a member, a prescribed staff member nominated by that Chief Executive Officer;

  (g)2 members with qualifications or experience relevant to the Commission's functions, or the exercise of its powers.

  (2) The performance of the Commission's functions, or the exercise of its powers, is not affected merely because of a vacancy in its membership.

The importance of that constitution of the commission which governs SRCA lies in the fact that all the groups covered by SRCA have representation on the commission. What the Minister for Veterans' Affairs (Senator Faulkner) is proposing to do tonight is incorporate the group who are principally the targets of the Military Compensation Bill and deny them their representation. It cannot get representation by granting an amendment which provides for an additional member in the shape of a serving member of the Australian Defence Force.

  It was a little presumptuous of Senator Woodley to assume that our objection to this was that a member of the ADF cannot adequately represent the interests of the veteran; rather, the inverted argument is the point. I would argue that a serving member of the ADF cannot represent the interests of the ADF, let alone the interests of a veteran. On many occasions and in many circumstances, a veteran who is an experienced former member of the ADF is much better able to represent the interests of both parties before this commission than a serving member. No serving member of the ADF enjoys independence before the commission. That is a simple fact of life. That was why the Senate in its wisdom—Senator Harradine, the Greens, the Democrats, the National Party and the Liberal Party—voted for the amendment on Tuesday night, not 48 hours ago, to give representation to the group which is affected by this bill.

  Conflict of interest is inherent and inevitable in the proposal that the minister is putting before us. It is impossible for a serving member of the ADF to operate as an independent agent when he sits on that commission. The minister only has to think about it, even with the limited perceptions and horizons that he has, to realise that I am right in this.

  The situation could well arise where we had a member of the ADF with a compensation claim under the military compensation scheme acts administered by the Department of Defence that the department had refused to satisfy. The minister wants a commission member who is part of the ADF to set aside his interest, the directions that he would receive from the Department of Defence, to support the decision made within that department and stand as an impartial judge on the merits of the case. One only has to state the case to see how impossible it is. That is why it was the responsible and the correct decision of this house of review to take the decision it did 48 hours ago to give representation to the veterans' community.

  I would not mind if the permanent ADF member was deleted from the commission so long as the person who represented the veterans' organisation had been a senior or long-serving member of the ADF in his professional career. We would then get the impartial advice on the commission of SRCA that must be had in this case, and that must be had in fairness to the veterans' community.

  So far in the debates in this chamber no reason has been given as to why the government must have its way on this. Those of us who sit on this side of the chamber know very well that the government has this irrational belief that it must get its own way at all times on all occasions. The business of sitting down and reasoning together and coming to a conclusion that involves a little bit of compromise but satisfies the best interests of the nation is never undertaken by this government.

  If there are 10 members of a commission, how can the minister argue that putting an 11th member on the commission will somehow or other open the floodgates to waves and waves of superannuants, retired public servants and members of odd unions that are not affiliated with the ACTU? It is absolutely ludicrous to suggest that. It is just as ludicrous to suggest that a serving member of the ADF can operate as an independent entity on the commission. The Liberal Party and the National Party will oppose this amendment, and we do so for the reasons that I have stated.

  Turning to the next part of the Safety Rehabilitation and Compensation Act that the minister may or may not have read, it deals with deputies for members—and we would like the Democrats to listen to this because I am sure they do not know this exists—and in section 89H it says:

(1)  A member (other than the Chairperson) may, with the Minister's approval, appoint a person to be the member's deputy.

(2)  A person must not be appointed to be the deputy of the member referred to in paragraph 89E(1)(f) unless the person is a prescribed staff member within the meaning of section 89E.

(3)  A member may revoke the appointment of his or her deputy, but the revocation is not effective until the member has given written notice of the revocation to the Minister.

(4)  If a member who has appointed a deputy is absent from a meeting of the Commission, the deputy is entitled to attend that meeting and, when so attending, is taken to be a member;

(5)  A deputy may resign by delivering to the member who appointed him or her a signed notice of resignation.

(6)  Anything done by or in relation to a deputy purporting to act under this section is not invalid merely because:

  (a)  there is a defect or irregularity in connection with the   appointment; or

  (b)  the appointment has ceased to have effect; or

  (c)  the occasion for the deputy to act had not arisen or had   ceased.

My reading of that section of the act is that the minister has the authority to appoint a deputy to be a member of the commission. Furthermore, if we go back to section 89D which I read earlier, we find that:

(1)   The Minister may, by notice in writing given to the Chairperson, give a direction to the Commission with respect to the performance of its functions or the exercise of its powers under this Act.

(2)  The Commission must comply with a direction given under subsection (1).

So I do not think it possible to challenge the power that the minister has. I put it to the minister that under section 89H he obviously has the power to appoint a deputy. I would ask the minister as a matter of principle whether he is prepared to give this Senate an undertaking that, where a matter of conflict or a matter of controversy involving a serving member of the ADF comes before the commission for debate, the minister will take the honest and ethical step of exercising the powers vested in him under section 89H and appoint a member of the veterans' community to the commission as a substitute while that case is heard.