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

17 September 2012

Institute of Medicine study shows that alcohol abuse by American military personnel is a "public health crisis"

A 410 page report was just released today entitled "Substance Use Disorders in the U.S. Armed Forces" by the Institute of Medicine.  The study, which was conducted at the behest of the U.S. Department of Defense ("DoD"), shows there is a "public health crisis" in the use of alcohol among troops and their families. 

The report notes:
  • Troops have increased binge drinking in a decade by 12 percent (going from 35 percent in 1998 to 47 percent in 2008).
  • In 2008 nearly 20 percent of troops reported they had engaged in heavy drinking (five or more drinks per drinking session).
  • DoD programs have not modernized to address contemporary substance abuse issues.
A four page report brief concludes that "grappling with the public health crisis of substance use and misuse within the ranks of the armed forces will require the DoD to consistently implement prevention, screening, diagnosis, and treatment services and take leadership for ensuring that these services expand and improve." 

At the time of the publishing of this post DoD had not issued any press releases regarding the study.

14 September 2012

Administrative Appeals Tribunal issues decision in Green and Repatriation Commission

Today the Australian Administrative Appeals Tribunal issued a decision in Green and Repatriation Commission [2012] AATA 619 (14 September 2012) affirming the original decision.  The issues in the case were whether the condition affecting an Army veteran's eye, including chorioretinal scarring and visual field defects, were defence-caused.

Green for the most part involves section 70 of the Veterans’ Entitlements Act 1986 and specifically the "but for" test outlined in section 70(5)(c) in which an injury may be deemed to be a defence-caused injury or a disease may be deemed to be a defence-caused disease if the member’s incapacity “was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service..., or but for changes in the member’s environment consequent upon his or her having rendered any such service” within the terms of section 70(7).

The Tribunal, Member Simon Webb, found that Green did not present evidence to establish that section 70(5)(c) is satisfied in the case relying on two Federal Court cases of Holthouse v Repatriation Commission [1982] FCA 113; Repatriation Commission v Law (1980) 31 ALR 140 at 151.

Concerning the "arise out of, or attributable to" prong of section 70(5)(a) the Tribunal found it was not satisfied.  The Tribunal rejected reliance upon Langley v Repatriation Commission [1993] FCA 299 and Johnston v Commonwealth [1982] HCA 54 holding that the binding principles set out in those two cases did not assist in the instant case. Further that Green is distinguished from that of Re Repatriation Commission and Wicking [1987] AATA 358, "in which Mr Wicking was required to live on base and slipped and fell in a shower, injuring his left shoulder and arm. In that case the mechanism of injury and the connexion with Mr Wicking’s defence service were very clear, even though Mr Wicking was off-duty. In this case they are not."

12 September 2012

Accelerated citizenship for families of Australian Defence recruits

The Australian Government’s amendments to the Australian Citizenship Act 2007 will now allow for fast-tracking of Australian citizenship for certain family members of overseas lateral recruits to the Australian Defence Force ("ADF"). The amendments come into effect on 1 January 2013.

Family members of current and future lateral recruits to the ADF are now eligible for conferral of Australian citizenship at the same time as the lateral recruit, the Minister for Immigration and Citizenship, Chris Bowen, MP, and the Minister for Defence Science and Personnel, Warren Snowdon, MP, announced today in a press release.

In order to qualify, the overseas lateral recruit must be granted a certain visa after 1 July 2007 and undertake 90 days service in either the permanent or reserve forces of the Navy, Army or Air Force.

Family members of overseas lateral recruits who were granted the same visa on or after 1 July 2007 can take advantage of these amendments when they come into effect. Further information is available online at www.citizenship.gov.au

10 September 2012

September is Suicide Prevention Month

The U.S. Department of Veterans Affairs, in recognition of September as Suicide Prevention Month, is calling on individuals and communities across the country to show their support for veterans in crisis and help raise awareness of the VA mental health services veterans have earned. The theme for the outreach campaign, “Stand by Them,” is part of a joint VA and Department of Defense ("DoD") effort focused on veteran and servicemember support networks, especially their friends and family members, who may be the first to realize a veteran or servicemember is in crisis.

“History shows that the costs of war will continue to grow for a decade or more after the wars have ended,” said Secretary of Veterans Affairs Eric K. Shinseki. “The mental health and well-being of our brave men and women who have served the Nation is the highest priority for the Department of Veterans Affairs.”

Throughout September and beyond, VA is partnering with the DoD and other agencies, while urging community-based organizations, Veterans Service Organizations, health care providers, private companies to stand by Veterans and Servicemembers. These groups can educate their networks—including Veterans’ and Servicemembers’ friends and family members—about recognizing suicide risk and encouraging those at risk to call the Veterans Crisis Line (1-800-273-8255  and Press 1), chat online at VeteransCrisisLine.net or text to 838255.

On 31 August 2012, President Obama issued an historic Executive Order to improve mental health services for veterans, servicemembers and military families. As directed in the Executive Order, VA and DoD launched the joint “Stand by Them” outreach campaign. VA is also increasing the workforce of the crisis line by 50 percent and hiring 1,600 new mental health professionals and 300 support staff.

Federal Court issues decision in Jones v Chief of Navy and rejects argument of trial by jury under s 80 of Constitution in service offences

The Federal Court of Australia has issued its decision in Jones v. Chief of Navy [2012] FCAFC, dismissing the appeal and ordering former Lieutenant Commander John Alan Jones to pay costs.

In November 2011 Jones was arraigned before a General Court-Martial ("GCM") on nine counts of committing an indecent act without consent in violation of the section 61(3) of the Defence Force Discipline Act 1982. Jones pleaded not guilty, but the GCM found him guilty in December 2011 on seven of the nine counts.

One of the nine grounds for appeal was:
Whether the [Defence Force Disciplinary Appeal] Tribunal erred in failing to find that the service offences upon which the appellant was convicted are offences against the law of the Commonwealth being indictable offences, based on the provisions applicable to and the form of the charges signed by the Director of Military Prosecutions, to which the appellant was entitled to trial by jury under s 80 of the Constitution, regardless of whether the trial was an exercise of the judicial power of the Commonwealth, such that there was a material irregularity occasioning a substantial miscarriage of justice (cf s 23(1)(c) of the DFDA Act; Ground 12 of the Further Amended Notice of Appeal to the DFDAT).
The Federal Court rejected this ground noting that section 80 of the Constitution does not operate to require a trial by jury of the offences to which Jones was charged and citing Re Tracey at 545 and 570; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460 at 480; Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18 (Re Tyler) at 28-29. 

Further the Federal Court noted that "the framers of the Constitution discussed [section 80] would be defeated if a statute which creates an offence but does not say that the offence is to be prosecuted on indictment were to be interpreted as if it did and thereby attract the operation of section 80 of the Constitution."

08 September 2012

Back to blogging after the National Tribunal Advocacy Course at University of Canberra . . .

I have been absent in blogging for a few weeks because I had been selected to attend the Australian Department of Veterans' Affairs National Tribunal Advocacy Course ("TAC") at the ANZSOG Institute for Governance at the University of Canberra.  Upon my selection, I was loaded-up on pre-course study.  I completed pre-course study and then the seven (full on) day (and nightly homework) course on Friday, 7 September 2012.

The TAC was excellent.  It took me out of my comfort zone.  I was chosen along with my team mate, Squizzy, to represent the Repatriation Commission in the fictitious case of Mr Harkirk, a Vietnam Veteran, who was appealing review of a Veterans Review Board decision to deny him certain claims. We had a mock hearing before Administrative Appeals Tribunal Senior Member Katherine Bean of Adelaide. 

Squizzy and I learned a lot - we shall always remember the "alone test" outlined in section 24(1)(c) of the Veterans Entitlement Act  ("VEA") 1986. Our quite capable opponents, Adrian and Phil, did a great job at representing the fictitious Mr Harkirk.  Squizz so eloquently told the TAC Director that till the day they put nails in his box he will always remember the "alone test."  I must concur with my new friend and colleague Squizz.

The majority of my pro bono advocacy for the Returned & Services League of Australia is in Military Rehabilitation & Compensation Act 2004 ("MRCA") cases for serving members of the Australian Defence Force and veterans; so I am not used to cases under the VEA 1986.  In MRCA there is no "alone test" in the determination as it later falls into the benefits portion.  Thus I found the "alone test" in a determination to be complicated and I'm still trying to get my head fully around it.  During the exercise we were boot-strapped from conducting outside research and could only rely upon Flentjar v Repatriation Commission.  I was later told that even barristers and Federal judges have a difficult time understanding the "alone test" in the context of determinations. 

Some of our classmates indicated to us that the "Squizzy and Norbert Show" was entertaining.  I could only hope that one day Squizzy and I can team up again to work on a case together.  At the end of the course Squizz assured the TAC Director that this would be the only time in his life that he would ever be representing the Government. [Squizz does advocacy for veterans out of Townsville, QLD.]  I agree Squizz, and that is precisely why it took both of us out of our comfort zones in representing the Government and not the veteran. I like you mate, are more suited to represent the veteran.

Professor Hugh Selby's teachings will have a lifelong lasting affect on my advocacy abilities - especially the art of cross-examination and the formation of short closed questions.  (Squizz remember:  Day after day, week after week, month after month, year after year.)  Also the art of subtle sarcasm after successfully impeaching a witness in cross.  I have been assured by Professor Selby that "even with that [American] accent it will be OK." 

The art of narrowing ones electronic searches, taught by Assistant Professor Arthur Hoyle, will also always be remembered.  Applying his teachings when doing research will be most helpful in getting relevant information quickly.

TAC Class of 2012 had 16 classmates, from all over the country, with various backgrounds - senior advocates, barristers, solicitors, and law school graduates.  Eight were from the Australian Government, Department of Veterans Affairs, and the other eight were from Ex-Service Organisations.

This was an excellent course and I highly recommend and encourage advocates who wish to practice in veterans matters before the AAT to apply to attend the course in 2013.  Be assured this course will take you out of your comfort zone, ensure performance in a teamwork setting, places pressure upon you and your teammate that exposes your weaknesses (in order to make you better) and enhances your strengths, and requires a lot of homework at night (with some sleepless nights).  It was much more than I ever expected and I believe it will make me a better advocate because I completed the course. And it was great to network with fellow colleagues. 

I want to also note that this course is very friendly for those who suffer disabilities - at least two of us had back problems.  The freedom to stand-up, sit-down or lay-down during instruction was most helpful to those of us who suffer back problems given the long day.  So if you are an advocate, who does have a disability, please do not let that hinder you from applying to attend this course.  The instructors were truly amazing - despite putting the pressure on us to perform.

Atlas I'm glad to be back home in Sydney and blogging.

[John Printz, the National Chairman of DVA-TIP, is most certainly congratulated for this superb course as is Course Director Ted Harrison who is the Director of Litigation for DVA. I would also like to acknowledge the entire DVA-TIP training team. And say thank you!]