Appendix 2
Department of
Defence—answers to written questions
SCHEDULE 2
1. The Defence Welfare Association raised two concerns in its
submission—one was the lack of clarity in some of the terms used when
announcing the defence family health and dental care scheme and the other with
consultation before making regulations.
- Could you respond to both these
concerns as they relate to the legislation?
RESPONSE
The Defence Legislation (Miscellaneous Amendments) Bill 2009
amends section 124 of the Defence Act 1903 to explicitly enable the
making of regulations to cover the provision of medical and dental treatment
including pharmaceuticals to an ADF member or cadet, or a member of the family
of an ADF member.
The Defence Legislation (Miscellaneous Amendments) Bill 2009 is not
part of the implementation of the Commonwealth Government election commitment
to provide free basic medical and dental care to dependants of ADF members, or
its associated arrangements.
The intention of the Defence Legislation (Miscellaneous Amendments)
Bill 2009 is to address concerns that in some jurisdictions, ADF health
professionals, APS health professionals and contracted civilian health
professionals, who are registered in that State or Territory, may potentially
be exposed to liability for breach of professional standards. This may arise
through supervising the medical treatment provided by ADF medics as well as the
provision of pharmaceuticals to members and their dependants in certain
overseas countries where the quality and range of pharmaceuticals may not be to
the standard available in Australia.
Given that the purpose of the amendment is to allow regulations which
clarify the status of ADF health professionals, APS health professionals and
contractors in dealing with such matters as pharmaceuticals in the course of Defence
activities, it is not currently the intention to consult with the Defence Force
Welfare Association (DFWA).
Having said that, in relation to the concerns raised by DFWA:
-
The provision of healthcare to ADF
dependants forms a part of the Government’s retention and recruitment strategy
for Defence.
-
A trial to provide free basic
healthcare to ADF dependants living in eight regional and remote localities
within Australia will commence from May 2009.
-
The initial Government election
commitment to establish 12 Defence Family Clinics was revised in accordance
with a new evidence based policy approach to implement new proposals. In
undertaking an evidenced based approach the Government and Defence can take a
sensible and practical approach to ascertaining the health service needs of
Defence dependants prior to the expansion to Defence dependants living in
regions outside of the initial trial.
-
Joint Health Command (JHC) has,
and will continue to consult with a range of stakeholders including the Defence
Community Organisation and Defence Families Association in the development of
policies associated with the trial to deliver free basic healthcare to ADF
dependants.
-
The trial model will allow ADF
dependants living in the trial regions to choose a participating medical
practitioner or access a dental provider from anywhere within Australia.
-
Basic medical and dental services,
for the purpose of the trial include medical consultations provided in a
general practice setting and GST free dental services. Pharmaceuticals are not
included in the trial.
-
The JHC, in consultation with the
Directorate of Service Conditions, determined that the definition of “family”,
for the purpose of this trial is in accordance with the Pay and Conditions
Manual (PACMAN) definition of a dependant. The manual lists dependants as:
-
Dependants that are eligible to
receive the benefits associated with the trial will register to participate and
will be issued with an eligibility card.
SCHEDULE
3
Application of the Defence (Special Undertakings) Act
1952 to Pine Gap
QUESTION
2. Could the department please explain to the committee what prompted
the proposed changes to the legislation?
- To what extent did the decision by
the Northern Territory Criminal Court of Appeal in 2008, acquitting a group of
four Christian pacifist protesters arrested at the facility in December 2005,
influence the drafting of the legislation?
RESPONSE
The methods used for collecting intelligence at the Joint Defence
Facility Pine Gap are sensitive. This factor makes the facility a special
defence undertaking which requires special security measures. This factor also
means that it is important for the Commonwealth to be able to successfully
prosecute the offences created by the Defence (Special Undertakings) Act
1952, as applicable to the facility.
The amendments to the Defence (Special Undertakings) Act 1952
were proposed as part of a broader review conducted in response to the quashing
of the convictions of the four protestors who broke into the Joint Defence
Facility Pine Gap in December 2005. This trial was the first time there had
been a prosecution which tested this legislation.
The convictions were quashed based on errors by the trial judge in
relation to interlocutory decisions on discovery and a direction to the jury
during the trial. These matters did not go to the validity of the Act. While
the underpinnings for the Act were unsuccessfully challenged, the fact that
such a challenge was made highlighted the need to strengthen the Commonwealth’s ability to successfully
prosecute the existing offences under the Act in relation to the Joint Defence
Facility Pine Gap, by:
-
establishing the Joint Defence
Facility Pine Gap as a special defence undertaking and prohibited area for the
purposes of the Act; and
-
inserting a purposive clause in
the Act which will make it clear that the Parliament’s power to legislate with
respect to the defence of the Commonwealth is not the only constitutional basis
relied upon for the new provisions.
The measure will ensure that there is a clear and express intent for
the provisions of the Defence (Special Undertakings) Act 1952 to cover a
joint work or undertaking between Australia and any friendly nation in a collaborative effort to
the maintenance of global peace. This would make it clear that the provisions
of the Act are not only covered by Parliament’s power to legislate with respect
to the defence of the Commonwealth, but may also fall within some other head of
power in section 51 of the Australian Constitution, such as the Parliament's
power to legislate with respect to external affairs. The measure will
therefore reduce the likelihood and legitimacy of any argument about the scope
of Parliament’s power to legislate with respect to the defence of the
Commonwealth, which might be made in a challenge to the validity of the
provisions of the Act by persons accused of the offences under the Act in
relation to the facility.
QUESTION
3. A submission to the inquiry raised concerns about the
appropriateness of the ongoing application of the Defence (Special
Undertakings) Act 1952 to Pine Gap:
Separate policy concerns
might be raised concerning the appropriateness of the ongoing application of
the 1952 Act to Pine Gap, when the Act was originally enacted to secure a
British atomic weapons test site at the Monte Bello Islands off Western
Australia. Draconian penalties flow from a breach of that Act—and which were
used by prosecutors against pacifist protesters in the recent Northern
Territory case, not against genuine threats to national security—compared with
the ordinary penalties applicable for trespass upon other Commonwealth property
by demonstrators in a democratic society (Dr Ben Saul, University of Sydney, Submission
4, p. 2).
-
Could the department please
respond to the suggestion that the legislation may not be appropriate for the
protection of works, undertakings and areas of the Joint Defence Facility Pine
Gap?
-
Could the department please advise
whether penalties under the legislation differentiate persons who may represent
a genuine and serious threat to national security from demonstrators or
'mischief makers' opposed to the presence and operation of the facility:
-
are the penalties for each type of
potential offender—those who represent a genuine threat to national security
and demonstrators or mischief makers—appropriate; and
-
would it be more appropriate for
demonstrators or mischief makers to be charged with unauthorised access to a
Commonwealth facility under another Commonwealth law?
RESPONSE
Pine Gap is a core element of Australia’s
national security and carries out a number of activities related to the defence
of Australia and the US. The facility is responsible for the collection of
intelligence by technical means and the provision of ballistic missile early
warning information. The information collected provides priority requirements
of the Australian and US Governments for intelligence on terrorism, the
proliferation of weapons of mass destruction and military weapons development.
The facility also assists with the monitoring of
compliance with arms control and disarmament agreements. Pine Gap supports the US ballistic missile
early warning program, contributing significantly to global security. This
program gives reassurance against the possibility of accidental or surprise
ballistic missile attack and early warnings about shorter ranged tactile
missiles. This capability also provides information regarding nuclear
explosions. The facility plays a critical role in the defence of Australia
against those countries aggressively pursuing ballistic missile programs and
weapons of mass destruction. Pine Gap can therefore be considered a special
defence undertaking as it is conducting work for or in relation to the defence
of Australia, as well as in part for the defence of Australia and
in part for the defence of the US, which is associated with Australia
resisting or preparing to resist international aggression.
All decisions in relation to the
application of penalties under the Defence (Special Undertakings) Act 1952 would
be made by the court. Defence has no role to play in deciding the penalty for
any action which contravenes the Defence (Special Undertakings) Act 1952. The
penalties for an offence against federal legislation are decided upon by the
court in accordance with general sentencing principles in the Crimes Act
1914. Under these principles the court is required to consider the nature
and circumstances of the offence in determining the appropriate sentence.
In addition, the penalties stipulated in the Defence
(Special Undertakings) Act 1952 are maximum penalties. The maximum penalty
could be imposed in only the most serious case. Prior to being quashed, the
perpetrators were found guilty of offences against the Defence (Special
Undertakings) Act 1952 but no sentences of imprisonment were imposed.
Instead, the court imposed individual fines and made reparation orders for the
damage they caused to the facility. Defence considers that the penalties in the Defence (Special Undertakings) Act 1952 are appropriate, particularly in
view of the court’s discretion in relation to sentencing.
Defence considers that any
incursion into Pine Gap could represent a serious threat to national security.
The physical security surrounding Pine Gap includes a series of barriers to
prevent unauthorised access to classified material and other official resources
and assets. Entering such a prohibited area would be a signal of intent to do
damage to, or disable, Pine Gap’s infrastructure. In the view of Defence it is
appropriate for a significant penalty to be applied to any activity which
threatens the security of Pine Gap to punish and to deter these kinds of
activities.
The offences in the Defence
(Special Undertakings) Act 1952 apply to persons generally. If a person
intentionally and knowingly commits an offence against the Defence (Special
Undertakings) Act 1952, it is appropriate for that person to be charged
accordingly. One safeguard against the misuse of the penalties in the Defence
(Special Undertakings) Act 1952 is that the Attorney-General’s consent is
required in order to institute a prosecution under the Defence (Special
Undertakings) Act 1952. The protestors in 2005 were also charged with
separate offences against the Crimes Act 1914 (damage to Commonwealth
property) and the guilty findings and penalties under that Act still stand.
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