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Monday, 20 March 2017
Page: 1331


Senator McGRATH (QueenslandAssistant Minister to the Prime Minister) (12:03): I table a revised explanatory memorandum relating to the bill and I move:

That this bill be now read a second time.

Introduction

I am pleased to present this bill to the Senate. Before outlining the bill's provisions, I would first like to address the recommendations made by the Senate Foreign Affairs, Defence and Trade Committee in its report of 20 February 2017 into this bill.

The committee made four recommendations, including that the bill be passed. In addition to this, Labor and Nick Xenophon Team senators made additional comments, which the government has incorporated.

The government would like to thank the committee for its bipartisan contribution.

Recommendations of the Senate Foreign Affairs, Defence and Trade Committee, 20 February 2017 report

The committee's first recommendation was that the Department of Veterans' Affairs consult with the Commonwealth Ombudsman and the Office of the Australian Information Commissioner on the content of the minister's rules before they are finalised and introduced in the parliament.

I am pleased to advise the Senate that both the Privacy Commissioner and the Commonwealth Ombudsman have provided feedback on the public interest disclosure rules.

This has been taken into account, with changes made to the public interest disclosure rules.

The constructive suggestions made by the Privacy Commissioner and the Commonwealth Ombudsman have improved the draft public interest disclosure rules and improved the safeguards surrounding disclosure of information.

The committee's second recommendation was that the Department of Veterans' Affairs undertake a privacy impact assessment of the rules and that the completed assessment be made public.

DVA has undertaken the privacy impact assessment and an executive summary of the assessment was made publically available on DVA's website on 28 February 2017.

The Minister for Veterans' Affairs subsequently asked for an independent privacy impact assessment for the digital readiness bill's public interest disclosure rules once they have been finalised.

Both privacy impact assessments will be released to the public along with the public interest disclosure rules.

The committee's third recommendation was that this bill be amended to include a mandatory review of the implementation of the legislation and accompanying rules two years from the commencement date.

As senators would be aware, the minister moved such amendments in the House, and these were passed on 2 March 2017 and incorporated into the bill.

These amendments are important for two reasons. Firstly, by making the creation of the public interest disclosure rules a mandatory rather than optional part of the provision, it will mean that should this bill pass the Senate the public interest disclosure provision will have no effect until the minister creates the rules and the parliament has consented to them.

Secondly, by placing a two-year review on the public interest disclosure provision, the government has accepted that this provision should be reviewed in order to ensure that the veteran community is being served appropriately by this provision.

For the sake of completeness, I also note that the minister moved, and the House agreed to, amendments to address comments made by the Senate Scrutiny of Bills Committee in its Scrutiny Digest No. 1 of 2017.

I turn now to the recommendations made by Labor senators. Senators Gallacher and Moore recommended that mistake of fact and misinformation be removed from the public interest disclosure provisions of the bill and instead preference be placed on parliamentary privilege to correct these issues. These provisions do not appear in the bill. They were two of the circumstances in which it was contemplated that a public interest disclosure might be made, and appeared in the draft public interest disclosure rules.

The government accepts Labor's recommendation in principle and I am informed that in consultation with the shadow opposition minister, mistake of fact has been removed from the draft rules. Further to this, the draft rules have been tightened around misinformation to make it clear that it refers only to misinformation detrimental to the veteran community.

Finally, Senator Kakoschke-Moore of the Nick Xenophon Team recommended that the minister's rules be made publically available prior to senators voting on them. This will happen. As the rules will be a disallowable instrument, they will be tabled in the parliament with a 15-sitting-day disallowance period. During that time, senators as well as members in the other house will be able to review the rules before voting on them. If the instrument is disallowed, the rules will not come in to effect.

Computerised decision-making (s chedule 1)

Turning now to the provisions of the Bill, the amendments made by schedule 1 would enable the secretary of DVA to arrange for computer programmes to:

make decisions and determinations,

exercise powers or comply with obligations, or

do anything else related to making decisions and determinations, or exercising powers or complying with obligations.

This last point is very important with respect to reducing time and resources allocated to administrative parts of DVA's business and improving outcomes for clients. For example, where a particular provision requires notice of a decision to be given, this new computerised decision-making provision will enable the computer program to make the decision.

The proposed computerised decision-making provisions are modelled on section 87 of the Australian National Registry of Emissions Units Act 2011.

I would note that in the department's submissions and in the minister's statements, the government has made clear that this provision is not to be applied to any decision which would require human discretion or any fact-finding. This would include medical liability, decisions with regards to claims, and collection of debts.

I nformation sharing (s chedule 2)

Schedule 2 contains two types of information sharing provisions:

1. public interest disclosures, and

2. information sharing under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988, subject to it being enacted.

The Department of Veterans' Affairs has a duty of care in providing its services to veterans and clients. However, currently there are inconsistent provisions on providing information that might be necessary in fulfilling that duty of care.

The public interest disclosure provisions will help DVA address problems with an inability to share information that currently pose a threat to life, health or welfare; issues with the enforcement of laws; service provider abuse; misinformation detrimental to the veteran community; and APS Code of Conduct investigations.

Let me be clear, this section strengthens the protections around veterans' privacy.

The public interest disclosure provisions would enable the secretary of DVA to disclose information about a particular case or class of cases where the secretary certifies that it is necessary in the public interest to do so.

The Privacy Act 1988 legitimately limits the circumstances surrounding the handling and disclosure of a person's personal information, as set out in the Australian Privacy Principles. But there are no codified safeguards as to how this should be done. However, while the department would never seek to abuse the limited application of these principles, there are circumstances where the secretary has need to share information but as I mentioned there are currently no codified safeguards on how this is to be done.

This provision significantly strengthens veterans' privacy by putting in place stringent and concrete controls around how and when this is done both in the bill and in the Public Interest Disclosure Rules.

Firstly, in deciding whether to make a public interest disclosure, the secretary of DVA must follow rules set by the Minister for Veterans' Affairs and there are limits about disclosing personal information, which could result in the secretary committing a criminal offence.

Because this is a new power, safeguards have been incorporated to ensure that it is exercised appropriately. They are that:

the secretary must act in accordance with the rules that the Minister for Veterans' Affairs makes about how the power is to be exercised

the Minister for Veterans' Affairs cannot delegate his or her power to make rules about how the power is to be exercised to anyone

the secretary cannot delegate the public interest disclosure power to anyone

before disclosing personal information about a person, the secretary of DVA must notify the person in writing about his or her intention to disclose the information,

the secretary must give the person a reasonable opportunity to make written comments on the proposed disclosure of the information and consider any written comments made by the person

unless the secretary of DVA complies with the requirements I have just outlined before disclosing personal information, he or she will commit an offence, punishable by a fine of 60 penalty units—approximately $10,800 currently—and

the minister must arrange for a review of the public interest disclosure provisions, including the rules made under those provisions, to be undertaken two years after they commence. A report of the review must be prepared and tabled in each house of the parliament within 15 sitting days of that house after the report is completed.

Further to these safeguards, there are significant controls placed on the secretary by the Public Interest Disclosure Rules being drafted by the minister.

These include:

That an individual's entire record can never be released

The Secretary of the Department of Veterans' Affairs has to consider an individual's circumstances including age, health, disability, and social, cultural or family circumstances

The secretary has to consider any physical, psychological, national security or relevant circumstances about the individual

The secretary has to consider if anonymous or general information would achieve the same outcome

No individual's specific medical information can be used to correct misinformation

The secretary cannot compromise any individual's national security or service records

No individual's specific medical information can be used to correct misinformation

Only people who have a genuine and legitimate interest can be provided the information

The release of information has to be proportionate to the objective and to the outcome.

It is anticipated that the public interest disclosure provisions would only be used sparingly and in exceptional circumstances. However, by putting in place this provision the government is codifying when and how information is shared above and beyond the current arrangements under the Privacy Act. Let me say again, these codified safeguards will strengthen veterans' privacy.

Turning to the second provision, on information sharing with the Department of Defence, I would like to address a misconception appearing on social media that DVA is unable to otherwise share information, because that is inaccurate. The Veterans' Entitlements Act 1986, section 130; the Safety, Rehabilitation and Compensation Act 1988, section 151A; and the Military Rehabilitation and Compensation Act 2004, sections 346(2) and 409 contain express provisions that enable DVA to share clients' information with certain people for certain purposes. For example, the table at section 409(2) of the MRCA states that the Military Rehabilitation and Compensation Commission may provide information to the Chief of the Defence Force in relation to 'reconsideration or review of a determination about liability for a service injury, disease or death'.

The information-sharing provisions under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988, subject to it being enacted, are necessary to overcome an anomaly that currently exists between the Military Rehabilitation and Compensation Act 2004 and the Safety, Rehabilitation and Compensation Act 1988. The anomaly is that the Military Rehabilitation and Compensation Commission is currently limited in its ability to provide the same types of claims information to the Secretary of the Department of Defence or the Chief of the Defence Force under the Safety, Rehabilitation and Compensation Act 1988 about serving members as it is able to under the Military Rehabilitation and Compensation Act 2004.

It is important that the Secretary of the Department of Defence and the Chief of the Defence Force are able to receive information about serving Defence Force members, particularly in the context of monitoring occupational health and safety or for monitoring the cost to the Commonwealth of a service injury or a service disease, irrespective of which act the claim is made under. The amendments would achieve this by aligning information-sharing provisions under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 with those in the Military Rehabilitation and Compensation Act 2004.

The purpose of the statute update 2016 is to update provisions in the acts to take account of changes in drafting precedents and practices. In particular, that act updates references to penalties expressed as a number of dollars, with penalties expressed as a number of penalty units. Such changes enhance readability, facilitate interpretation and promote consistency across the Commonwealth statute book. The two technical amendments replace reference to specific dollar amounts and penalties under the Veterans' Entitlements Act 1986 with references to penalty units, which is the current Commonwealth drafting practice. There are no substantive changes to the law. This is a technical amendment only.

In conclusion, this bill provides an important plank for the foundation of veteran-centric reform in the Department of Veterans' Affairs. Without it, the Department of Veterans' Affairs will not be able to develop commonsense procedures that will allow the use of new technology. This is fundamental to providing the 21st century service that veterans expect from their government. I commend this bill to the Senate.