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Monday, 20 March 2017
Page: 1338


Senator LUDLAM (Western AustraliaCo-Deputy Leader of the Australian Greens) (12:26): I rise to make some contributions on behalf of the Australian Greens today and also thank the minister for taking the slightly unusual step of reading the second reading contribution in so that we can have a bit of clarity about what has been going on behind the scenes. According to the government, the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017 has the objective of improving services for veterans and speeding up the claims processing pipeline. The DVA is preparing for much-needed upgrades to its IT systems and processes, and this bill aims to set the legal pathway for these changes to take place. Currently, legislation governing veterans' affairs and particularly the Veterans' Entitlements Act is antiquated and needs updating to reflect more modern times. I think bringing it into the 20th century is certainly not a bad idea! Likewise, officers at the DVA are using technology of a bygone era. Maybe it is an exaggeration to say that they are still stuck with punch cards and faxes, but it is probably only just an exaggeration. Our understanding is obviously that it is not just a technical constraint; they are also constrained by legislation in that human interaction is required to make and check off really simple calculations that could easily be performed by modern technology.

Through its IT upgrades DVA wants to reduce the time that it takes to reimburse veterans their expenses and to streamline the claims processes, and I want to put on the record right at the outset that the Australian Greens are very supportive of this objective. The need to bring DVA up to date is obvious. Many veterans have to wait more than 100 days to get their money back for their claims. I am sure that Australians on lower incomes in particular can imagine the frustration and the difficulties posed by having to wait inordinate amounts of time to get really simple out-of-pocket expenses reimbursed, and veterans obviously face this systematically.

That is putting our support on the record, but, like others on the crossbench, we have real concerns about some aspects of the legislation, some of which were addressed by the minister and his shadow on the way through. Firstly, I address the byzantine system that is the current veterans' entitlements system. That it is a mess is something that I think all sides of politics probably agree on. Veterans not only face unreasonably long wait periods to be reimbursed the cost of their claims—this is stuff like taxi receipts that might take six months to be reimbursed—on top of this, rates of entitlement are inconsistent and arbitrary. Application and assessment processes are labyrinthine and circuitous. For many veterans, the bureaucracy at DVA is a barrier to getting what they are entitled to. All parties should be working together with the veterans community to create a better system for those who served this country.

In response to this mess, the Greens have consistently said that we support the undertaking of a root-and-branch review of the veterans' entitlements system. This review would determine whether current entitlements are sufficient, which is obviously important, as a separate question to the streamlining of the process. The review would determine whether the current eligibility criteria are fair, including access to health cards, disability pensions, housing and superannuation arrangements. One example that would probably be familiar to many—because I and others have been making this case for many, many years—is an automatic entitlement of atomic veterans to a gold healthcare card. It would be an automatic, as of right, entitlement for the harms to Australian service personnel by the British bombings in the 1950s and 1960s, given that, if those radiation exposures had occurred at the hands of an enemy power, these veterans would automatically be entitled to this highest degree of health care without having to prove that that particular radiation exposure was the cause of their illness and the illnesses of their children. But, because this exposure happened at the hands of an ally, they have been excluded, and they are dying one by one. I understand that that is one particular cohort of individuals that we have utterly failed, and they were harmed in the service, so they thought, of their country. We are very strongly supportive of an overhaul in this regard.

Complaints about DVA are on the rise, which is an indicator that the system is failing. The review of service delivery should consider assigning each veteran a liaison officer to act as a single point of contact to navigate the system. It is just one example.

I understand the government's motivation for bringing these amendments forward is to allow software to perform some of the mundane or repetitious tasks that would be better performed by automated systems in order to free up the human beings to deal face-to-face with the people that they are there to serve. We are obviously supportive of this objective.

In relation to this legislation, though, we believe amendments are necessary, and we have circulated a couple; I understand some of my crossbench colleagues will be doing the same. We believe that a couple of key aspects of the bill need to be changed before it proceeds into law. One is around computerised decision-making and the thresholds whereby we would delegate certain tasks to software as opposed to a human intervention, and the other is around disclosure of information. The recent Centrelink debacle has thrown into sharp relief the need to be hypervigilant with these powers. I do not think it would have escaped anybody's attention in this chamber, or anybody listening to this debate outside this building, the incredible debacle of the Centrelink robo-debt fiasco, which we are aware has cost at least one person his life. People have killed themselves because of the pressure that has been put on them when they have been told by a massive government bureaucracy that they owe significant amounts of money and that they will be pursued and hounded. As it has turned out—with an extraordinarily high failure rate—many of these debts do not exist. Under closer scrutiny they simply evaporate. Yet, the government, instead of acknowledging that its introduction of this automated debt recovery system has been an absolute debacle, have doubled down and have started effectively doxing people, disclosing people's private information, to journalists in an attempt have their side of the story heard. I would put it to you that this is a worst-case example.

Now we are proposing to, potentially, extend the reach of this kind of malpractice to veterans—to people whose health, in many cases, is fragile and whose mental health, in some cases, is fragile. The last thing they are going to need is this kind of treatment from the minister, sitting in the Ministerial Wing of Parliament House. Again, this is not implying bad faith on the part of the minister or his staff, but we are in here to assess what could happen under this government or a future government if good faith were not to be implied. I would assert very strongly that, in the case of the Centrelink example, there is no good faith at play. This is a government that is trying to do political damage control, and it is doing that at the expense of some pretty vulnerable people. The last thing we want to see is for veterans to be subjected to this kind of behaviour. We want to make sure that no government minister is being empowered with that kind of incredible asymmetry of access to a megaphone and that no-one else is put through that kind of horror.

Schedule 1 of the bill deals with computerised decision-making. As I have said already, we have no problem at all with the idea that some of the tasks that are presently, by the sounds of it, being done on punch cards and in paper filing cabinets should be automated to allow the DVA to step into the digital age. If it is the law preventing it, rather than any kind of technical question, then we should amend the law. We look forward to seeing this happening. It makes really good sense, we believe, for computers to determine low-value, high-volume claims like receipts for travel to medical appointments—taxi receipts, for example—and other claims that do not really require high-level human judgement calls. But we want to make sure that the government and the DVA get it right.

That is why we will be supporting an amendment that I understand Senator Lambie is moving to ensure that, at least initially, computer programs cannot be used to determine liability for injury. I want to quote briefly Federal Court of Australia Justice Melissa Perry, who highlighted the potential implications of the use of these pre-programmed systems in decision-making, where you need some nuance and, dare I say, humane judgement calls to be made. This is what she said in a speech that she gave not so long ago:

It is not difficult to envisage that the efficiencies which automated systems can achieve and the increasing demand for such efficiencies may overwhelm an appreciation of the value of achieving substantive justice for the individual. In turn this may have the consequence that rules-based laws and regulations are too readily substituted for discretions in order to facilitate the making of automated decisions in place of decisions by humans. The same risks exist with respect to decisions which ought properly to turn upon evaluative judgments.

I believe the amendment that Senator Lambie will no doubt speak to when she is given the chance to make a contribution is quite an effective way of making the distinction between a piece of software saying, 'Yes, you took that taxi on that day to that appointment; that should be reimbursed'—and it should not take six months to see the money—and the more nuanced decisions where you want human judgements to be brought to bear.

Schedule 2 of the bill is where we also have some real difficulty. That is a schedule that enables the secretary of the DVA to disclose information about a veteran's case or class of cases 'to such persons and for such purposes as the secretary determines, if he or she certifies that it is necessary in the public interest to do so'. That, by definition, is very, very broad in scope.

To pick this apart: at face value, it gives significant power to the secretary to disclose private information. 'Public interest' is an extremely amorphous term. We have tried to find legal definitions of what is considered to be the public interest, and often the public interest is interpreted to mean whatever the minister says on any given day. To add to our concerns, while the secretary must notify the person in writing about any intention to disclose that information, the secretary can still go ahead and disclose it even if the veteran has objected. So you tip off this person in writing that you are going to go them in some public way, and, if the veteran believes that that is unjust and writes back and says, 'Please, can you not?' the secretary can go ahead and do so anyway.

The DVA intends to disclose private information to correct the public record. That sounds familiar to me. I would have thought that the government would be a little bit more judicious, after the disaster that has unfolded with Centrelink, in choosing by way of defending itself to use the disclosure of veterans' private information to add to its talking points. If you believe that the government's decisions have been made correctly and that the government position is defensible, you should be able to make that case without disclosing people's personal information. We are not saying that the government should not have its say. You have access to the press gallery upstairs, but you should not be taking the low road, as Minister Tudge has done, and sacrificing people's privacy in order to make that public case. We do not think that is appropriate at all.

The DVA said in its submission to the Senate inquiry into the bill:

The Department is aware of instances where misinformation or claims that are not factual have damaged the integrity of programmes or prevented veterans from taking up assistance from the Department, often leading to wider spread distress among veterans.

I do have some sympathy with that point of view, and I understand why the government is proceeding this way. Make your case without breaching people's privacy. Surely it is no more complicated than that. During the Senate inquiry, the Office of the Australian Information Commissioner stated:

… I think any agency needs to be extraordinarily cautious when it is going to release information … particularly when it is sensitive information.

…   …   …

When you get to areas such as correcting factual information, it can get into an area where there is potential for an individual's extremely sensitive personal information to be made more widely known.

These are not abstract cases. These are men and women that this country has sent into harm's way, potentially damaged them, sometimes horrifically, in the line of serving their country, and then it brings them home and potentially has them subjected to the government using their personal trauma or background in order to win a public policy argument. It is completely out of line. The Office of the Australian Information Commissioner said:

… when you look at it overall, the initial disclosure process does seem—

too—

broad.

We will no doubt be hearing about the government's development of stringent rules—the minister addressed that issue briefly in his opening comments—and yet the Senate is being asked to pass this bill without any adequate consultation on those rules, so I am not sure that anybody outside this building has even seen them. If they are to be stringent, if they do have that kind of integrity, put them on the table, put out an exposure draft, so that we can analyse them. The minister and no doubt his colleagues will jump up and say, 'But they'll be disallowable.' The point is that, if you have confidence in them, the rules are the engine of this piece of law. They will describe how it is circumscribed and how it is going to operate. We think it is really inappropriate—just speaking on behalf of the Australian Greens, anyway—that we are being asked to effectively pass this bill with those rules sight unseen.

For these reasons, we will be supporting amendments to dramatically limit the disclosure provisions of the bill. We will speak more of that when we get to the committee stage, because there are a couple of different propositions afoot for how we can protect the privacy of veterans while still upholding the obligations of the government and its intentions to streamline the way that these claims are processed, about which I do not think you will find any disagreement with anyone in here. We are supportive of the steps that the government is trying to take to make life easier for veterans in their interactions with the DVA and to help those men and women within the bureaucracy who are trying to do a job and who are constrained at the moment by an extremely archaic act. But we do not support untested computerised decision-making power where human judgement should stay as a central part of the process, and we do not support excessive powers to publicly disclose information in order to win a political fight, which we have seen happen in the most degrading way here in the last couple of months. Without those adequate constraints on public disclosure in particular, we will not be in a position to support this bill.

We look forward to the debate unfolding. I look forward to the contributions of my crossbench colleagues. We hope that the government will see the light of reason and see that the amendments that are being circulated are being circulated in good faith by people who have longstanding history and direct personal experience of these issues. We hope that you will give the Senate the opportunity to do its job and improve this piece of law.