04 April 2014

Western Australia may provide special cells for jailed veterans

The Western Australian is reporting here that WA jails could have special cells for veteran inmates similar to concepts of veteran-only dormitories in the United States.  It is estimated that there are at least 50 veterans in jails in WA. The Returned & Services League of Australia (to which I am a member) had indicated it would work with the WA Government in the proposal to house veterans separately in jails. 

03 April 2014

Submission on Review of Australian DVA Advocacy & Welfare Training

Below is the submission I made today to the Australian Department of Veterans' Affairs on the Review of Advocacy and Welfare Training:  

The views expressed herein are offered strictly in my personal capacity.[1]  I do not speak for, and these views should not be attributed to, any other organisation or entity.    

Veterans’ organisations, or Ex-Service Organisations (ESO), have traditionally provided welfare, entitlement advice and advocacy to active and reserve Australian Defence Force members, veterans who have previously served and their families.  This has, for the most part, been achieved through volunteers who themselves have served in uniform. These volunteers have attended the Department of Veterans Affairs (“DVA”) National Training & Information Program (“TIP”) which has assisted in the development of their welfare and advocacy skills.[2] 

In January 2009 Professor David Dunt of the University of Melbourne noted, in his Review of Mental Health Care in the ADF and Transition through Discharge, that “[t]he future role for advocates has been however the basis for comment both in the Doogan Inquiry and the companion study to this report Independent study of Suicide in the Ex-Service Community – see Section 5 of that report. Both argue for the need for further training and accreditation of advocates to ensure that they are able to provide professional advice across all three veterans (sic) compensation acts including M[ilitary] R[ehabilitation] C[ompensation] A[ct] with its focus on rehabilitation as well as compensation.”  (Dunt Review at p. 127.)

28 April 2013

Rep Susan Davis re-introduces Equal Justice for Our Military Act

Earlier this month, U.S. Representative Susan Davis (D-Calif.) re-introduced the Equal Justice for Our Military Act of 2013, H.R. 1435.  If passed, the bill would amend Title 28 of the United States Code section 1259 permit cases to be reviewed by the Supreme Court of the United States where the Court of Appeals for the Armed Forces has not granted review or relief in extraordinary cases.  Currently the high court has no jurisdiction to review such cases. 

Senator Diane Feinstein (D-Calif) is expected to re-introduce a similar bill in the U.S. Senate within the next few months.

17 October 2012

Boarding Houses Bill 2012 introduced in the lower house of NSW Parliament

Yesterday in the lower house of the New South Wales Parliament, the Boarding Houses Bill 2012 was introduced. 

Previously I discussed serious issues I had that could potentially affect veterans living in boarding houses in the Exposure Draft bill here and here.  Since my original blog posts I had meetings with state lawmakers and senior government lawyers, to include the bill's proponent, Minister Andrew Constance, MP who is the NSW Minister for Disability Services.

The introduced bill, I am happy to report, has addressed my earlier concerns on unintended consequences to disabled veterans and privacy issues.  This introduced bill is a good bill.

I would like to take this opportunity to thank Minister Constance and his chief of staff for looking at the issues I raised and addressing them in the introduced bill.

16 October 2012

U.S. Court of Appeals (DC) reverses Military Commissions' conviction of Hamdan; similar charge against Aussie David Hicks was illegally retrospectively applied

Today the United States Court of Appeals for the District of Columbia Circuit has reversed the Military Commissions' conviction of Salim Hamdan.  The opinion can be found here.

The reversal of Hamdan's conviction could now affect Australian David Hicks' conviction as invalid.

The D.C. Circuit held, in Hamdan:
Because we read the Military Commissions Act not to sanction retroactive punishment for new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the decision of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.
Australia's former top military lawyer retired Air Vice Marshal Alastair Nicholson AO RFD QC in 2006, had briefed the Australian Government and had given a legal opinion that the charge against David Hicks could not be applied retrospectively.  However, that opinion was ignored by the then-Howard Government. Further, the Law Council of Australia had issued this report noting:
From the outset, the position of the Australian Government was that David Hicks’ alleged conduct did not amount to an offence in Australia at the time it was committed and that it was not appropriate to introduce laws to retrospectively criminalize his actions. Nonetheless the position of the Australian Government was also that, if the allegations against David Hicks were true, he should be subject to punishment. Thus the inability to prosecute David Hicks in Australia was consistently cited as a reason for refusing to seek his repatriation. The public comments of senior government Ministers reflected the view that, if David Hicks were returned to Australia without facing trial, he would be free, not by virtue of the fact that he had committed no crime in Australia but because of a technicality or loophole which meant only that his conduct was not a crime at the relevant time.
The Law Council report then went onto note:
On 8 March 2007 a written advice was provided by nine eminent lawyers [Peter Vickery QC; Professor Tim McCormack; The Hon. Alastair Nicholson AO RFD QC; Professor Hilary Charlesworth; Gavan Griffith AO QC; Professor Andrew Byrnes; Mr. Gideon Boas; Professor Stuart Kaye and Professor Don Rothwell] some with expertise in international law. In essence, that advice concluded that the offence charged against Hicks of providing material support for terrorism under section 950v(25) of the MCA was not a charge constituting a war crime contrary to Law of War. They also opined that the charge was clearly retrospective in its application to Hicks and was a “recently invented and new war crime”. The authors note that retrospective criminal laws are prohibited under Article 1 of the US Constitution. To the extent that it was claimed by the Australian Government that the MCA was some kind of “codification” of existing law, the authors also noted that there are offences under the domestic law of the US and contained in the US Criminal Code and which carry a similar description. However as they point out there are some fundamental differences including the substantial difference in the maximum penalties, the simplification of the elements of the offence, and the fact that the domestic offences were not, at all relevant times, applicable to a foreign national operating outside the territory of the United States as Hicks was.
Mr Hicks waived his right to appeal his conviction pursuant to a plea agreement. However, this may be overcome by the filing of an extraordinary writ petition in the American courts.

01 October 2012

U.S. Army releases August suicide data

Late last week the U.S. Army released suicide data for the month of August 2012. During August, among active-duty soldiers, there were 16 potential suicides: three have been confirmed as suicides and 13 remain under investigation. For July, the Army reported 26 potential suicides among active-duty soldiers: 13 have been confirmed as suicides and 13 remain under investigation. For 2012, there have been 131 potential active-duty suicides: 80 have been confirmed as suicides and 51 remain under investigation. Active-duty suicide number for 2011: 165 confirmed as suicides and no cases under investigation.

During August, among reserve component soldiers who were not on active duty, there were nine potential suicides (five Army National Guard and four Army Reserve): none have been confirmed as suicide and nine remain under investigation. For July, among that same group, the Army reported 12 potential suicides (nine Army National Guard and three Army Reserve); four have been confirmed as suicides and eight remain under investigation. For 2012, there have been 80 potential not on active-duty suicides (49 Army National Guard and 31 Army Reserve): 59 have been confirmed as suicides and 21 remain under investigation. Not on active-duty suicide numbers for 2011: 118 (82 Army National Guard and 36 Army Reserve) confirmed as suicides and no cases under investigation.

"The loss of any life is a tragedy, and this loss is preventable," said Sergeant Major of the Army Ray Chandler. "As an organization, we've taken huge strides in providing our Soldiers, Department of Army Civilians and Family members the needed resources to aid in suicide prevention, but our work isn't done. Army leaders will continue to do everything we can to reverse these trends.”

28 September 2012

Exercise Talisman Sabre 2013 Public Environment Report released for public comment

The Exercise Talisman Sabre 2013 Public Environment Report has been released for public comment. Exercise Talisman Sabre is held every two years and is the largest combined air, land and sea military training exercise regularly undertaken by the Australian Defence Force in conjunction with forces from the United States. Exercise Talisman Sabre 2013 will be conducted from 15 July to 6 August next year. Its primary aim is to improve training and interoperability between the Australian Defence Force and United States Armed Forces.

Defence will conduct the Exercise in accordance with the Environmental Protection and Biodiversity Conservation Act 1999.

The draft Public Environment Report has been prepared to inform Defence, the Australian public and relevant stakeholders of potential environmental and heritage issues relating to the conduct of Talisman Sabre 13 and mitigation strategies.

All interested community members are encouraged to view the draft Public Environment Report and provide feedback by 26 October 2012. Copies of the draft report as well as supporting fact sheets will be available at local libraries in regions hosting major exercise activity and online here.

A 24 hour a day, seven days a week exercise information line has also been established to provide a direct line of communication to Defence during the public comment period.

24 September 2012

Defence Inquiry into the combat death of Sapper Rowan Robinson finalised

The Australian Department of Defence, via this media release, announced it has finalised the inquiry into the death of Sapper Rowan Robinson in Afghanistan on 6 June 2011.

Sapper Robinson was a Combat Engineer, from the Sydney-based Incident Response Regiment (now called the Special Operations Engineer Regiment), serving with the Special Operations Task Group. He was shot and killed during a small arms engagement with insurgents in southern Afghanistan following the discovery of one of the largest insurgent caches found by Australian Special Forces last year.

He received immediate first aid and was evacuated by helicopter to a nearby International Security Assistance Force medical facility. Despite efforts by combat first aiders and a medical trauma team to save him, Sapper Robinson succumbed to his wounds.

An Inquiry Officer was appointed to examine the circumstances surrounding Sapper Robinson’s death.

The Inquiry Officer made three recommendations in his report.

One of the recommendations was that the appointment of a Commission of Inquiry into Sapper Robinson’s combat death was not warranted. That recommendation has been accepted by the Minister for Defence and the Chief of the Defence Force (CDF).

Defence has accepted the other two recommendations and is taking action to implement them. Details of recommendations that may compromise operational security or affect privacy cannot be publicly released.

Defence has briefed Sapper Robinson’s family on the findings of the Inquiry Officer’s Report into the circumstances surrounding his death.

Minister for Defence Stephen Smith, MP, has weighed the wishes of the family and the public interest in the release of the Report and decided not to release the Inquiry Officer Report into Sapper Robinson’s death.

Sapper Robinson’s loss is still deeply felt by his family. They do not wish to conduct any media interviews and have requested that the media continue to respect their privacy.

[Note:  Rowan, who was fondly known as "Robbo" was awarded posthumous membership at North Bondi RSL Sub-Branch where I serve as its Honorary Secretary.  While I did not personally know Rowan, those who did and who have spoken with me have conveyed that he was quite a special and remarkable young man.  We added Robbo's name to our Honour Roll within our RSL Sub-Branch and Club on the 1st anniversary of his death.  Robbo's memory will live-on at North Bondi RSL through its members and his sacrifice will always be remembered.]

23 September 2012

Retired Major General John Cantwell and PTSD; Aussie Government not prepared to adequately address issues

Last night Channel 7's Sunday Night Show "An Officer and a Gentleman" is worth seeing as Australian Army retired Major General John Cantwell, AO, DSC, discusses his battle with Post Traumatic Stress Disorder or PTSD.

It is my belief that PTSD is a huge issue which is not adequately being addressed by the Australian Government. One of the biggest problems is that the Australian Government routinely permits our soldiers to do so many deployments to war zones.  Young men are doing four to seven tours.  That is taking a real toll on the mental well-being of our forces.  I hope that with MGEN Cantwell's openness on this issue that both lawmakers and the Australian Defence Force leadership in Canberra wake-up to the real effects of PTSD.

At some point, the ADF should, stop sending a soldier back to the same war after four or five deployments.  That soldier, if he wishes to stay in the Army, could then teach new recruits or specialised training.  It would also give the soldier down-time to deal with any potential PTSD.  Sending a soldier back to the same war more than five times is ridiculous.

There will be tsunami of  Military Rehabilitation and Compensation Act ("MRCA") claims filed related to PTSD after we leave Afghanistan. The Australian Government is not prepared for this and is somewhat in denial.  The citizens of our great nation aren't really aware of the magnitude of the problem because for the most part the Australian media's head has been in the sand.  Channel 7 should be applauded for this piece of great journalism.

Ex-Service Organisations are working hard and also struggling to put the mechanisms in place to help contemporary veterans of today and prepare for the PTSD tsunami in rehabilitation and compensation claims.  Part of the struggle ESO's have been facing is a shocking lack of interest (or say denial) by the Australian Government in this area with properly funding educational programs. 

Recently the Returned and Services League of Australia ("League") made comments on the Report of the Review of Military Compensation.  The League noted in relation to training pensions officer and advocates, under the Training and Information Program ("TIP") that "the current TIP funding is insufficient to meet this need. TIP resources are already utilised to the maximum for V[eterans] E[ntitlement] A[ct] training and the minimal MRCA training that is now provided. It is not a matter of redirecting TIP training within the current budget, as that would diminish the existing training programs that are still essential for VEA work. It is necessary that further funds be allocated specifically for enhanced MRCA training for those pension officers who would service current and former members who have MRCA eligibility."

The Gillard Government has cut Department of Veterans Affairs-TIP funding.  The way the funding is dispensed is also skewed so that emerging ESO sub-branches who look after serving members and contemporary veterans do not receive any funding.

There are also serious inequities between the MRCA and VEA legislation.  The League argues that it "does not to support the compensation differential for warlike and non-warlike service, as opposed to peacetime service. The differential arose from a misconceived merger of VEA and SRCA impairment compensation payment rates. The warlike/non-warlike rates were based upon the VEA disability pension rates, whereas the peacetime rates were based upon SRCA payment rates. The effect of using the SRCA rate was to lower the level of payment for those members who would have qualified for ‘defence service’ under the VEA. The VEA made no distinction between the rate of disability pension for those who had rendered operational service and those who had rendered peacetime defence service. The RSL considers that there should be the same rate applying under the MRCA as would have applied if the VEA had continued."

Go here to view the League's comments from June 2011.

[Disclaimer:  I am an officeholder with the Returned & Services League of Australia and a Senior Advocate.]





Four published decisions issues from AAT on military and veterans' compensation claims

There have been several recently published decisions issued from the Administrative Appeals Tribunal on military/veterans compensation claims.  They are:   

Cross and Repatriation Commission
[2012] AATA 632; 20/09/2012; Senior Member A. K. Britton, Dr H Haikal-Mukhtar, Member
War widow’s pension – whether death of veteran was war-caused – whether veteran’s smoking habit was war-caused – requires more than a temporal connection – not satisfied to requisite standard – decision under review affirmed


Walker and Repatriation Commission 
[2012] AATA 630; 20/09/2012; Senior Member G. D. Friedman
Veterans' entitlements - lumbar spondylosis and lumbar spondylolisthesis - entering and exiting aircraft - whether war-caused - decision under review affirmed
 
Trinder and Repatriation Commission 
[2012] AATA 624; 18/09/2012; Professor R. M. Creyke, Senior Member
Veterans' entitlements - application for Gold Card - qualifying service - operational service - allotment - instrument of allotment - unofficial involvement - evidence of allotment - decision under review is affirmed
 
Smith and Military Rehabilitation and Compensation Commission
[2012] AATA 618; 14/09/2012; Professor RM Creyke, Senior Member
Military Rehabilitation and Compensation - accepted injury in course of duty - definition of difficulty - assessment under table 9.5 - assessment under table 9.5 - correct method of calculation - normal healthy person - impairment - pain