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Foreign Affairs, Defence and Trade Legislation Committee
16/02/2017
Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016

CAIRNS, Ms Louise Amy, Legislation Liaison Officer, Department of Veterans' Affairs

FOREMAN, Ms Lisa, First Assistant Secretary, Rehabilitation and Support, Department of Veterans' Affairs

GEARY, Mr John, Deputy Commissioner, Victoria, Department of Veterans' Affairs

SPIERS, Ms Carolyn, Principal Legal Adviser, Department of Veterans' Affairs

[17:29]

CHAIR: Welcome. Do any of you have anything to say about the capacity in which you appear today?

Mr Geary : I am also the senior responsible officer for compensation claims processing and the senior responsible officer for improving processing systems, ICT.

CHAIR: Thank you. Would one of you like to make a brief opening statement?

Ms Foreman : Thank you for providing the Department of Veterans 'Affairs with the opportunity to appear before the committee at this hearing and to answer your questions about the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, also known as the digital readiness bill. The digital readiness bill contains three groups of measures. The first would enable computerised decision-making under the veterans' affairs legislation in limited circumstances. The second would enable the Secretary of the Department of Veterans' Affairs, in limited circumstances and subject to several safeguards, to make a public interest disclosure. And the third would provide limited information sharing between the Department of Veterans' Affairs and Defence.

I understand that the committee's main interest in the digital readiness bill relates to the public interest disclosure provisions, and I would like to make a few remarks in relation to that aspect of the bill. The public interest disclosure power is modelled on paragraph 208(1)(a) of the Social Security (Administration) Act 1999, which has been in operation for 17 years and has functioned successfully with the approval of parliament. When the Minister for Social Services revoked and remade the guidelines under this act in 2015, the Parliamentary Joint Committee on Human Rights conducted an inquiry and concluded that the public interest certificate determinations are likely to be compatible with the right to privacy.

The Privacy Act 1988, and in particular the Australian Privacy Principles, limit the circumstances in which an individual's personal information may be used or disclosed. There are certain limited circumstances where it would be appropriate for the Secretary of DVA to disclose information about a person. The purpose of the public interest disclosure provisions is to put beyond doubt that the Secretary of DVA has the ability to release information about a particular case or a class of cases where it is appropriate to do so.

I would finally like to update the committee about two recent developments in relation to this bill. The first is that the minister has advised the Secretary of the Senate Scrutiny of Bills Committee that he intends to move government amendments to the bill that take account of comments made by that committee, and I believe that this committee should have a copy of that letter. In short, the amendments would require the Minister for Veterans' Affairs to make rules regulating the exercise of the secretary's public interest disclosure power. The revised provisions would state that the minister 'must' make rules, rather than the current 'may' make rules.

The second is that the minister has been working closely with the shadow minister, the honourable Ms Rishworth MP, to develop the rules that would limit the circumstances in which the secretary could exercise the public interest disclosure power. With the committee's agreement, I am happy to provide these draft rules in camera to this committee later in the proceedings so that the committee can better understand the limits that will be placed on the public interest disclosure power.

CHAIR: Thank you. Senator Gallacher.

Senator GALLACHER: Ms Foreman, you said that the committee is mainly interested in the public interest disclosure provisions of this bill. I want to put on the record that I am extremely interested in automated decision-making which makes claims efficiency better for your clients. We are not just here to look at the public interest disclosure part of it; we are here to look at the whole bill. We want something that works efficiently. I just wanted to correct that. You have current public interest disclosure mechanisms. Why are they deficient?

Ms Spiers : To answer your question—and I have not had the benefit of listening to the Ombudsman's submission and that of the Office of the Australian Information Commissioner—I think there is a slight confusion about how the draft bill is operating, so if I can answer your question by—

Senator GALLACHER: If the draft bill did not exist, you are telling me you would not be able to do things. Is that correct?

Ms Spiers : Correct.

Senator GALLACHER: What couldn't you do?

Ms Spiers : For instance, under the Australian privacy principle No. 6, which is the one Mr Pilgrim referred to, there is limited ability to disclose private information about an individual to correct a mistake of fact or misinformation. The reason for that is that the APP 6, as it is known, requires that the department can only do that release of information if an individual may reasonably—and these are important words—expect an entity, DVA, to disclose their personal information if they make adverse comments.

The key issue here for DVA is: we have been very clear and responsive to coverting people's private information and not making public comments about their information. So the 'reasonable' test here we would fail, because a client would be of the view that we do not reasonably disclose against that information. In fact, I think the Senate estimates committees have been well aware, over time, that, when individual cases are raised, we are very reticent to actually comment on the individual case, and we tend to talk in generalities.

Having said that, even if we were an agency that regularly did publish to the veteran community that we were going to disclose information of that nature, the key to this is it would still mean that veterans, if we did such an approach, could still complain to the Privacy Commissioner because it is alleged that they were not aware of that, and therefore we would immediately be in a privacy breach in that circumstance.

Senator GALLACHER: Perhaps you can give us an example of how many times over the last two or three years you have needed to use this. Has it been a dozen occasions where you have been thwarted or felt that you should have been in the public domain and you were not?

Ms Spiers : We do not keep a list or a register, but, very much noting the question that we were given on notice, we went back through our records and we found about 12 cases over four years. So, if you have the number, about three or four a year would be about where we would be looking at it. They were cases where the misinformation or misstatement of fact was so significant—not just on the face of it to cause an issue for the individual but it is the ripple effect for how the veteran community are reacting to it. I appreciate the comments that have been made here that it is not about dealing with the individual; it is the impact of the individual's either misinformation or the reported misinformation and the effect that has more broadly on the veteran community or parts of the veteran community.

Senator GALLACHER: But surely there is a mechanism in your current regulations or legislative framework where, if there is a crime, you can report it to the police?

Ms Spiers : Crime is an interesting thing, because, if someone alleges a crime, we have processes where, if they are extreme criminal allegations—let's say war crimes—we would obviously report that to the police, and we have some mandatory reporting requirements for some of our staff to do with potential child abuse, but there is not a standard requirement in terms of reporting on crimes. I think the issue that you might be trying to get at is not the reporting of crimes but it is more the issue of, if someone asserted that they were going to harm someone else. So it is more the potential of a crime, not an actual crime, in that sense. Once again, we go back to the privacy guidelines. The room there is is slightly weighted against the department. If the law enforcement agency comes to DVA and seeks information, then the way APP 6 operates is that we have got the protection of releasing the information in that way. If we did an own-motion decision to release information, the privacy guidelines are less clear on that issue as to whether we have breached someone's privacy. So it comes back to what is reasonable in the circumstances, taking account of all the facts.

Senator GALLACHER: This is a very dry subject. We have got some legislation. We are trying to look at the implications of that—why you need it, what is absent in your current framework—and you are answering. The Ombudsman and the Information Commissioner have made some very constructive observations. Why don't you just talk to each other? They are going to end up with the problems if they are inadvertently created by this legislation.

Ms Spiers : I suppose in this case the draft legislation, as we said, has been modelled on other agencies doing similar sorts of disclosures. The issue about how this is worked out in an operational sense is not necessarily with the legislation; it is how, in a procedural sense, it works on the ground. So I think we are not quite in a position where some of the things suggested—

Senator GALLACHER: I know other senators have questions, so my last question will be: you have not got a usable computer system; that has become abundantly clear through many estimates hearings—

Ms Spiers : Correct.

Senator GALLACHER: You are not going to get one in quick time, so what is the critical importance of this legislation, given the absence of the ability to make automated decisions?

Ms Spiers : The importance of it is that it is the authority to allow us, when we have individual systems—and the ones you are particularly referring to, I think, are more on the rehabilitation and compensation side, and Mr Geary has far more detail on that, but we also have computer-making-decision issues on issues like travel for treatment purposes.

Senator GALLACHER: So there is an efficiency there—people get paid by electronic lodgement?

Ms Spiers : Correct.

Senator GALLACHER: That is what we want to hear.

Ms Spiers : Exactly.

Senator GALLACHER: So people will get paid efficiently and more quickly?

Ms Spiers : Correct. That is the purpose. An example of using the computer-making-decision power: currently, while we might have some efficiencies in how we pay travel for treatment, we still, in every case, need a human to make the decision, because that is what the legislation specifies. What we would like to do in those circumstances, where it is algorithmic, or where it is clearly non-discretionary, non-fact-finding, is to have a situation where there would be a system that would seamlessly take an application, determine the application—because it is an algorithmic one—and produce a result, provide the individual with notice of the result and, in a luxury where the computer system is all lined up, actually make the payment directly. At the moment, we do not have that capacity.

CHAIR: We are going to go in camera in a couple of minutes, Senator Lambie, but do you have a question?

Senator LAMBIE: I do, just quickly. It has come out that your SOPs are notorious and they are rigid. And you now want a computer system to decide whether or not you fit the medical criteria? Where is your modelling on that? Have you done any modelling on exactly how that is going to work in a statement of principles? If that computer system knocks them back, that is going to delay them. You are then going to put it into the 'delay and deny' bucket. How is that going to help a veteran?

Ms Spiers : Senator, I actually disagree with you on that point. Statements of principle—each of them have various factors, and, as I mentioned just before, we are not looking to make automatic decision-making where there are issues of findings of fact or discretion. The statement of principle has all those different factors. To make a determination of a claim, a person only has to satisfy one of those factors. A computer is not going to make that decision. A human is going to go, 'Yes, that's the factor.' What we might do with that sort of process, though, is: once the human has made the decision to say, 'Yes, that factor X has been met in this particular SOP,' then it loads the information up to actually automate as much as possible the end part of that decision process. So it is not that we are trying to replace statements of principle and we are not trying to say that we would automate decision-making with statements of principle, just by virtue of the fact that they require fact-finding and decision-making.

Senator LAMBIE: You said other agencies are doing similar things, Ms Spiers. How many agencies have the involvement that Veterans' Affairs does—with all the medical conditions, all the site conditions? I am just trying to work out what you do.

CHAIR: I am sorry, but we have to go to a division in the chamber.

Committee adjourned at 1 8:12