This chapter begins by covering the support for the intent of the Bill and the Australian Defence Veterans' Covenant (the Covenant) expressed in submissions and at the public hearing. It then summarises the key issues raised in the evidence, including the definition of 'veteran', the beneficial interpretation of legislation, the inclusion of the 'no disadvantage' principle, eligibility for the Veteran Card, views on the Veteran Lapel Pin, and the interaction with the Australian Defence Force (ADF) Family Covenant. This chapter ends with the Committee's views and recommendation. A few suggestions mentioned in the evidence are not detailed in this chapter because the Committee considers them to be outside of the scope of the Bill.
Support for the intent of the Bill
The majority of submissions commended the intent behind the Bill. The Secretary of the Department of Veterans' Affairs (DVA), Ms Liz Cosson AM CSC, explained:
The purpose of the bill is to enshrine in legislation the social contract that was established at the end of World War I to honour and look after those who are prepared to defend our nation's values and freedoms.
DVA noted that the response to the Bill from consulted ex-service organisations was 'overwhelmingly positive'. Former National President of the Defence Force Welfare Association (DFWA) and former Convener and Spokesman for the Alliance of Defence Service Organisations (ADSO), Colonel David K Jamison AM (Rtd), stated that the symbolism of the Bill 'is an expression of appreciation that will help our veterans, current serving members and their families walk just a little taller'. He argued that the Bill 'is an appropriate way to conclude the 'Centenary of ANZAC' events and leave a lasting legacy from these commemorations'. A retired Army officer and former Reservist agreed 'that the motives behind this Bill are excellent and to be commended'.
Organisations representing families also expressed their appreciation for the recognition of the sacrifices made by families set out in the Bill.
Purpose of the Covenant
Covenants are generally understood to be commitments or promises, often including mutual obligations. The DFWA Deputy President, Brigadier Kerry Mellor (Rtd), explained that:
…our concept of the covenant has always been one of mutual obligation; that is to say, the nation and the people of Australia return to the military person…the obligation that is incurred by the provision of his or her service. The obligation rests on the members of the Defence Force to conduct themselves in such a way that they bring honour to the name and the nation of Australia.
The Explanatory Memorandum (EM) highlighted that the purpose of the Covenant is 'to recognise the unique nature of military service and support veterans and their families'. Some submissions asserted that military service is unique because a person joining the ADF 'must accept the surrender of his/her basic rights' and 'commit to service in the defence of their Nation […recognising] that loss of life is a possibility'. Defence Families Australia added that families also make sacrifices in support of veterans, noting a recent study that found '81 per cent of partners indicated that they had experienced some form of career or employment sacrifice'.
The DVA website indicates that Australians will be encouraged to recite the Covenant at community commemorative events, such as Remembrance Day. The Covenant is 'not intended to replace the Ode [of Remembrance], but is an additional commitment of respect'.
Consultation on the Covenant
During a recent Senate Estimates hearing, the Committee asked a series of questions regarding the consultation undertaken on the Covenant. This issue was also addressed during the Inquiry. The Committee was pleased to hear that the Covenant was developed through broad consultation between DVA and stakeholders from the ex-service community, State and Territory governments, and international colleagues.
Mr Kel Ryan, National President of DFWA and National Spokesman of ADSO, highlighted the role of ex-service organisations in advocating for a covenant, noting that members of the DFWA 'commenced considered conversation on the covenant some 10 years ago'. Mr Ken Foster OAM JP, the National President of the Vietnam Veterans Association of Australia Inc. (VVAA), recalled:
As an association and individually, I've been in discussions for probably the last three or four years, if not more, with various other ex-service organisations in looking at the concept. I've had briefings and discussions with the Department of Veterans' Affairs as they've developed the idea and the principles. There's been very wide and full consultation between the ex-service community and the Department of Veterans' Affairs.
Support for the Covenant
Submissions and witnesses were overwhelmingly supportive of the Covenant. For example, the Air Force Association (AFA) Ltd supports the Covenant 'strongly and without qualification'. The VVAA had no objections to the concept or wording of the Covenant, and Mr Foster reflected that:
The existence of a defence veterans' covenant in the suggested form during the 1960s and 1970s may have had a more positive effect on the attitude of some of the Australian public, politicians and veterans peer groups to Vietnam veterans as they returned to Australia.
Organisations representing the family members of veterans also expressed their support for the Covenant. For example, Defence Families Australia was 'pleased that families are thanked', and the Partners of Veterans Association of Australia 'wholeheartedly support this Covenant'.
Issues with the Bill raised during the Inquiry
As outlined above, the Committee heard overwhelming support for the intent of the Bill and the Covenant. The following sections summarise some issues with the Bill that were raised in the evidence.
Views on the definition of 'veteran'
A number of submissions raised issues relating to the Bill's definition of 'veteran'. In the Bill, 'veteran' refers to a person who is serving, or has served, as a member of the Permanent Forces or the Reserves. This aligns with the decision of the Australian Veterans' Ministers' meeting on 8 November 2017, which reached:
…consensus on a common definition of veteran that is to be recognised by all jurisdictions. It was agreed that a veteran would be defined as ‘a person who is serving or has served in the ADF’. Ministers agreed use of the term veteran should not be limited by the definitions contained in existing legislation.
Stakeholders have expressed mixed views regarding the definition used in the Bill. Some called for the Bill's definition to be broadened to include non-ADF personnel such as peacekeepers. Noting these calls, DVA cautioned that:
Any such consideration fundamentally alters the object and purpose of the Bill and would require Government consideration, and consultation far beyond the traditional stakeholders and clients known to DVA.
Other submitters argued the term 'veteran' should apply to fewer people and depend on the length or nature of their service. However, Ms Cosson said:
As the committee would be well aware, with the number of inquiries that we've had into suicide and mental health, the measure to implement non-liability health care recognised that we want to provide all veterans with the opportunity to access mental health treatment without having to prove that it is service related. I think we came a long way with being more inclusive in the broadest possible definition of veterans…I would not be proposing any amendments at this time.
It appears that the Bill may be the first time the definition has appeared in legislation. Existing legislation typically defines veterans by the nature of their service, or notes the service types that may qualify people for support under the legislation, rather than specifically defining the term. The Committee is satisfied that the definition in the Bill does not alter eligibility for support under other legislation.
Clarifying the purpose of the Bill
Beneficial interpretation of legislation
Clause 10 does not permit the clauses on general recognition and the beneficial interpretation of legislation in Part 2 to be legally enforced, which was viewed by some submitters as an issue. For example, Ms Pat McCabe OAM, National President, Australian Federation of Totally and Permanently Incapacitated Ex-Service Men and Women, said: 'We are confused by the inclusion of part 4. It seems to overrule the positive and beneficial nature of part 2…' AFA Ltd noted that while it:
…understands the legal rationale for the provision at sub-clause 10(1), we must advise here our profound concern that this provision nullifies the commitments that the Commonwealth intends entering into [especially in relation to Clause 5 which relates to general recognition].
However, Clause 10 does not contradict the purpose of the Bill, which is to 'provide symbolic recognition for all veterans' rather than to 'change current entitlements'. The Bill does not create 'statutory rights for veterans', but instead 'sets the tone for decision makers in determining eligibility and entitlements'. The existing legislation identified in the Bill already includes elements that encourage interpretations that are beneficial to veterans. For example, a recent Productivity Commission draft report stated:
…the eligibility rules have numerous traits that are ‘beneficial’ for claimants…Appellate courts have also confirmed on numerous occasions that…justices have generally interpreted the veteran compensation laws favourably for veterans.
Ms Cosson indicated that reaffirming the principle of beneficial interpretation in the Bill:
…help[s] with that education and that cultural change. It really reinforces it…We've been doing a lot of work with that over the last three years, and this is just bringing it all together to say: 'This is the nature of our legislation. It is to be beneficial.' It's not replacing any existing legislation.
Inclusion of the 'no disadvantage' principle
The United Kingdom Armed Forces Covenant (UK Covenant) includes the principle of 'no disadvantage', stating:
Those who serve in the Armed Forces, whether regular or Reserve, those who have served in the past, and their families, should face no disadvantage compared to other citizens in the provision of public and commercial services.
A few submissions suggested that a no disadvantage clause should also be included in the Bill. However, as with the Bill, the UK Armed Forces Act 2011 'does not create legally enforceable rights for Service personnel'. Ms Cosson told the Committee that:
We did have a look at 'no disadvantage' in the crafting of the bill. One of the things we were very conscious of was that the bill isn't intended to give any benefits; it's actually all about recognition. To have no disadvantage—we looked at all our other legislation which is about what benefits and compensation a veteran may receive, so we didn't want to go that far with this particular bill, because it may lose the sense of what the bill is all about, which is that recognition and then linking more broadly into the benefits and compensation as part of our other pieces of legislation.
The Veteran Card
Evidence indicated that the veteran community is supportive of the Veteran Card. Ms Cosson explained that during discussions regarding the Covenant, DVA also consulted with stakeholders 'about the pin and the card as a form of recognition and respect'. Following the Government's announcement in October 2018, the idea of associating discounts with the Veteran Card has also been discussed 'very widely' with the Ex-Service Organisations Round Table (ESORT), and at other workshops and fora such as the Female Veterans Policy Forum.
Some issues were raised regarding which cohorts will be entitled to a Veteran Card. People who already hold Gold, White or Orange cards will be automatically provided with a new Veteran Card and Veteran Lapel Pin. Other veterans, eligible reservists and currently serving members will be able to request a Veteran Card.
Similar cards in the United States of America and Canada are only provided to people who received an honourable or general discharge (under honourable conditions). The Committee heard a range of views about whether the Bill should apply to former ADF members who were not honourably discharged. For example, Brigadier Mellor (Rtd), DFWA, argued that 'anyone who is dishonourably discharged, who commits a war crime, who dishonours the name and the nation of Australia, places themselves outside the provisions of the covenant'.
Others suggested that each case should be considered individually. Mr Carl Schiller OAM CSC, National President of AFA Ltd, said:
My immediate response would be that I would not like to think that somebody under those circumstances would not have the opportunity to be supported…I think that it would have to be on a case-by-case basis, because there might be all sorts of reasons why someone's behaviour would be as you described. I'm fairly opposed to any blanket application of rules without looking at individual cases.
Ms Cosson explained to the Committee that currently:
Anybody who has served in the Australian Defence Force can be covered by our legislation—the three different acts. At this point, we don't discriminate against anybody who may be discharged for disciplinary reasons.
Development of policy and processes
The Committee is aware that DVA is continuing to develop policies and processes relating to the operation of the Veteran Card. The Government 'is working with Australian businesses and community organisations to discuss tangible recognition and services for Veteran Card holders'. The DVA team has grown to five staff members supported by a media and communications team, and is:
…establishing a portal that will actually show you all the organisations that have signed up and are happy to recognise the card. It's also a mechanism to get feedback.
Ms Cosson told the Committee at the public hearing that DVA has 'had 66 businesses express interest and a few large- and small-business organisations say they would like to recognise the card'. She added:
We've got a few businesses that may be just about across the line and ready to go live with those—we're just finalising those details—but also a lot of small businesses that registered with another provider down in Adelaide. This lady had an organisation where she enrolled about 10,000 businesses so they'd recognise the card that she provided. We're bringing her on board with us to help bring that all together. I think there will be some great benefits and opportunities for veterans and families to use their card for that recognition.
The Committee is pleased that a number of veterans are taking up the opportunity to access a Veteran Card. DVA reported that approximately 42,000 veterans had signed up online through MyService and requested a digital card between 21 January 2019 and the public hearing on 18 March 2019. Ms Cosson noted that over 'the longer term, we may look at what the card looks like and particularly if it has a photo identification picture on it'. The Committee also heard that the Veteran Card could be updated to become a smart card with a chip in the future.
Veteran Lapel Pin
The Committee heard that some stakeholders perceive the Veteran Lapel Pin to be a relatively trivial form of recognition, or unnecessary because there are already Returned from Active Service badges and widows' pins. However, Ms Cosson commented:
I know there has been a little bit of criticism from some veterans, who have made the observation that they can wear their Returned from Active Service Badge. But there was a long period of peace for our Australian Defence Force. A lot of our veterans don't have a Returned from Active Service Badge, so they were very comfortable with this. As I said to the veteran community, if someone wants to wear it, don't be critical; let them wear it. It's to help veterans recognise each other when they're in their new communities.
Mr Schiller recounted his personal experiences:
It's nice to think that you might notice somebody. If I catch the train or other forms of public transport or walk through the streets and I see a Returned from Active Service Badge on somebody, I might not go up and talk to them, but I have an affinity with that person straight off, seeing them, and I know where they've been and who they are.
Interaction with the Australian Defence Force Family Covenant
In May 2009 the ADF launched the ADF Family Covenant. This 'represents a commitment from Defence to work with Defence families, to consult with them, to listen to the concerns they raise, and to help them balance the demands of Service life with the needs of the family'. Mrs Maree Sirois, National Convenor of Defence Families Australia, explained that in her view the two covenants are:
…quite different things. The family covenant is really Defence. It's like an internal one between Defence and families. And this one is really our nation, our country, for veterans and their families…they're two very distinct things.
Ms Cosson echoed this interpretation, commenting:
This bill and covenant are intended for those who have served and their families after service; the Defence Families of Australia and [ADF] covenant is for families whilst personnel are in service.
The Committee supports the intent of the Bill to recognise and acknowledge the unique nature of military service and the sacrifices made by veterans and their families. The Bill would enshrine in law an Australian Defence Veteran Covenant. The idea of a covenant was initiated by the ex-service community and the Committee heard it was developed through extensive consultation.
The Committee received a few suggestions for wording changes to the Bill that would also change the Covenant, but the Committee accepts the advice from DVA that the existing words are a result of a thorough consultation process and that it forms a good foundation on which to move forward.
While the Bill does not create any new statutory rights or entitlements for veterans the Committee is pleased to see the inclusion of the statement regarding the beneficial purpose of veteran legislation which sets the tone for decision makers when determining eligibility and entitlements.
The Committee also supports the Veteran Card and Lapel Pin as optional means of recognition and support of veterans by the community. The Committee notes that the significant uptake of registrations since the initial launch in January 2019 through the MyService website would appear to indicate these initiatives are welcome. The Committee recognises that work is still underway to finalise policies and processes with businesses regarding the Veteran Card, but the reported increase in interest from small and large businesses is encouraging. The Committee supports the development of a portal listing the organisations which will recognise the Veteran Card.
The Bill contributes to the broad programme of veteran centric reform and cultural change being implemented by DVA. The Committee was pleased to hear the positive reports offered during the hearing from ex-service and other organisations of these reforms. The Committee has completed a number of inquiries in recent years involving veterans and has followed up progress on Committee recommendations through the Senate Estimates process. It is gratifying that the work underway in DVA is being positively reported to the Committee. Of course, there is work still to be done, but the signs are encouraging and the Committee will continue to monitor DVA's progress through the Estimates process.
The Committee recommends that the Bill be passed without amendment.
Senator the Hon Eric Abetz