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Monday, 20 March 2017
Page: 1346


Senator KAKOSCHKE-MOORE (South Australia) (13:02): I rise to speak on the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017. At the outset, I would like to express my sincere thanks to Minister Tehan's office, especially for the sincere, good-faith consultation he has conducted with me and my team. However, the Nick Xenophon Team does remain concerned about a number of aspects of this bill, in particular the public interest disclosure rules. I will turn to those concerns shortly.

The bill encompasses three schedules. The first inserts a provision into each of the Veterans' Entitlements Act, the Military Rehabilitation and Compensation Act and the Safety Rehabilitation and Compensation (Defence-related Claims) Act that seeks to make the Department of Veterans' Affairs digitally ready as part of the broader digital transformation agenda occurring across the government. The proposed changes will enable the secretary to authorise the use of computer programs to make decisions and determinations. They will also enable the secretary to exercise powers or comply with obligations, and do anything else, related to making decisions and determinations under those acts and legislative instruments made under those acts.

The second schedule of the bill inserts a provision into each of the VEA, the MRCA and the DRCA—once it is eventually called that. These provisions will enable the secretary to disclose information about a particular case, or class of cases, to persons for the purposes that the secretary determines, if the secretary certifies that it is necessary and in the public interest to do so.

The second schedule also inserts information-sharing provisions into the DRCA, subject to it being enacted, to correct an anomaly that currently exists between the MRCA and the Safety Rehabilitation and Compensation Act. Currently, the Military Rehabilitation and Compensation Commission is unable to provide information to the Secretary of the Department of Defence and the Chief of the Defence Force under the SRCA but is able to under the MRCA. The amendments will do this by aligning information-sharing provisions under the DRCA with the MRCA. The rationale is that the Secretary of the Department of Defence and the Chief of Defence are able to receive the same information about all serving members, particularly in the context of monitoring occupational health and safety, or for monitoring the cost to the Commonwealth of a service injury or service disease.

The proposed legislative changes in schedule 1 of the bill are designed to make the relevant Defence and veterans' agencies digitally ready in a legal sense and to support much-needed planned business and ICT reforms which we have been told will reduce processing times and automate and streamline existing processes. Inefficiencies within DVA processing claims are well documented in past Senate inquiries and the current Senate inquiry into suicide by veterans and ex-service personnel.

The Nick Xenophon Team is committed to improving outcomes for the veterans community and their families. We support the increased use of automated decision-making only when it achieves better outcomes for veterans, especially if it reduces claim-processing times. We do so, however, on the proviso that such technology significantly improves the quality, efficiency and accountability of public administration.

I note that my colleague Senator Lambie has amendments in relation to when and where automated decision-making processes can be used. I look forward to hearing more about those amendments during the committee stage of this bill.

The digital transformation project proposed by the minister, which this legislation will facilitate, would not normally be controversial, but the census failure and the Centrelink robo-debt disaster highlight the need to tread carefully.

The Commonwealth Ombudsman's submission to the inquiry into the bill highlighted a number of concerns in relation to the provisions of schedule 1. The Commonwealth Ombudsman, in his capacity as Defence Force Ombudsman—a function conferred on the Ombudsman since 1983—reported that, from 1 July 2016 to 31 December 2016, the DFO received 263 approaches about matters of administration in Defence agencies. Seventy-two of these were related to DVA specifically. Twenty-five per cent of approaches were investigated.

The Commonwealth Ombudsman has investigated a range of issues with computer automation, and highlighted that programming errors in automated systems can result in a range of unintended outcomes. These include multiple mail-outs of singular or conflicting correspondence, inaccurate calculations of financial data and the granting of entitlements where the criteria for the granting of entitlements were not met. System errors can and do occur. It is therefore necessary to have a robust quality assurance framework essential to any decision-making processing and to ensure that any automated system follows basic legal values of lawfulness, fairness, transparency and efficiency.

The Department of Veterans' Affairs in its submission to the Senate Foreign Affairs, Defence and Trade Legislation Committee's inquiry into the bill provided a number of examples of the sorts of decisions where computerised decision making would be suitable. These examples focused on where the decision making could be converted into an algorithm and on automatic granting of benefits in certain circumstances where the decision was based on information that was not subject to interpretation or discretion. The department provided an example of a travel reimbursement decision, which is currently calculated by a delegate based on the mode of transport and the number of kilometres travelled at a particular rate of reimbursement.

The department envisages that, under the proposed provisions, a computer program could make the calculation and decision and issue the reimbursement and advice accordingly. This would potentially provide the department capacity to allow clients to submit such claims online and have reimbursements transferred outside of business hours, with the ability for clients to digitally track their requests. This example would certainly alleviate the burden for veterans in the cumbersome paper-based and manual-centric processes that prevent DVA from being agile, client focused and efficient.

The department in its submission assured the committee that computerised decision making would not be used where fact finding and weighing of evidence was required, such as in the interpretation and evaluation of medical evidence. Matters that are subject to interpretation and discretion must remain matters for a human decision maker to determine based on all the evidence provided. During the committee stage, I will be very interested to hear how the government responds to the amendment that has been circulated by Senator Lambie in relation to the use of computerised decision making.

Schedule 1 of the bill makes provision for the MRCC to substitute a decision or determination made by a computer program if the MRCC is satisfied that the decision or determination is incorrect. The provision would enable a delegate of the MRCC to intervene and substitute a decision or determination where a computer program produced an incorrect outcome. Whilst the MRCC can do this on its own motion, without the need for a person to request a review of an incorrect decision made by a computer, it is unclear exactly how the MRCC would be alerted to an incorrect decision and when such a situation could arise. The same provision applies to the VEA, enabling the Repatriation Commission to substitute a decision made by a computer if the commission determined the decision was incorrect. I will be asking questions in the committee stage of this bill as to how DVA's own-motion review of claims subject to automated decision making will work in practice. Given the serious concerns that have been raised around Centrelink's debt recovery system, it is critical that the automated decision making proposal by DVA is subject to robust review.

Additionally, while DVA is gearing up to cater for clients that are tech savvy in a changing digital environment, it must also remain focused on ongoing service provision for vulnerable and elderly clients that do not have access to computers or do not have advanced computer skills. This would ensure that DVA can remain responsive to the needs of all veterans whilst also repositioning its services for changing client demographics in a digital age. On this point, the department in its submission assured the committee:

The ability to automate some aspects of DVA’s business does not mean that veterans would be left dealing with a machine rather than a person. Similarly, it will not mean that veterans would have to have a computer in order to be able to access DVA services. Where veterans would prefer, they will always be able to speak to a DVA staff member.

The department assured the committee that it does not intend to use computerised decision making provisions for automated debt collection. During the committee stage, I would like to seek an assurance from the senator representing the minister as to whether or not the government is committed to not using automated decision making to pursue debts. The department also advised that debt management and collection will remain a matter where the specific circumstances of the individual and the value of the debt are considered in what action is taken and how it is communicated. We cannot risk another Centrelink robo-debt disaster, which would only have catastrophic consequences for a very vulnerable cohort of Australians.

It is the proposed public interest disclosure provisions in schedule 2 of the bill, which would enable the Secretary of the DVA to disclose information about a particular case or class of cases, which have elicited the most concern and angst amongst the veteran community. Whilst the Privacy Act 1988 limits the circumstances surrounding the handling of a person's personal information, the proposed public disclosure provisions in the bill put beyond doubt that the secretary may in limited circumstances release information about a case or class of cases where the secretary certifies that it is necessary and in the public interest to do so. Whilst a number of safeguards have been put in place to protect the release of personal information, the Nick Xenophon Team remains very concerned about an eventual release of a person's personal information and the harm that can flow from that.

The safeguards that the government insists are included, include that 'the secretary must act in accordance with rules that the minister must make about how the power is to be exercised'; only the minister can set the rules, which power cannot be delegated; only the secretary can exercise the public interest disclosure power, which power cannot be delegated; and, before any disclosure, the secretary must notify the person in writing, give that person a reasonable opportunity to make written comments on the proposed disclosure and the secretary must consider those comments. Failure by the secretary to comply with the requirements prior to the disclosure will result in an offence that is punishable by a fine of 60 penalty units—that is about $10,800. The Secretary of DVA will be required to follow a set of rules set by the Minister for Veterans' Affairs, and there are limits about disclosing personal information which could result in the secretary committing an offence.

Further, the government has amended the legislation in the lower house, following a recommendation of the Scrutiny of Bills Committee, to place an obligation on the minister to make rules, where previously no obligation existed in the legislation. The rules in relation to the exercise of the secretary's power to give public interest disclosure certificates are due to be tabled by way of legislative instrument soon. The minister explained to the Scrutiny of Bills Committee that the rules have not been included in the primary legislation, so that should they need amending that can be done by way of disallowable instrument without the delays caused by the introduction of further legislation. The ministerial rules have been modelled on the rules currently in place for the Department of Human Services with many changes, following consultation with the shadow minister, ESORT, myself and others.

It was clear during the Senate Foreign Affairs, Defence and Trade Committee's inquiry into the bill that the Office of the Australian Information Commissioner and the Commonwealth Ombudsman had not been consulted, prior to the hearing, about the rules in order to provide even some broad guidance to DVA and the Department of Defence about what should be in the rules. Both offices stated that they would appreciate the opportunity to review the rules prior to them being tabled in parliament. I thank the minister's office for facilitating such consultation following the hearing.

Whilst I also thank the minister's office for consulting with me, the Nick Xenophon Team remains concerned that the government has not taken into consideration wider stakeholder engagement of rank and file members of the veteran community, many of whom have contacted my and my colleagues' offices to express their concerns with the public interest disclosure provisions. We have been frustrated by not being able to discuss the rules in any detail with veterans, as they were provided in confidence and have not been provided for public scrutiny.

The Andie Fox matter has highlighted the need for the government to be extremely careful when releasing personal information about a person, in that case to a journalist. Whilst no public interest disclosure certificate was issued in that particular case, the matter has backfired on the government and raised concerns in the community and amongst veterans about how a person's personal information could be disseminated by the government. The release of the information in that case has only served to further undermine public confidence, despite the Department of Human Services insisting it was proportionate and legal. It is important to note that the public interest disclosure provisions will have no effect until the rules are tabled in parliament by way of legislative instrument, which, in turn, could be the subject of a disallowance motion.

The rules provide examples of where it might be appropriate for the Secretary of the Department of Veterans' Affairs to disclose information about a case or class of cases, including: where there is a threat to life, health or welfare; for the enforcement of laws in relation to proceeds-of-crime orders; where there is misinformation detrimental to the veteran community; ministerial briefings; research and statistical analysis; APS Code of Conduct investigations; and provider appropriate practices.

The Nick Xenophon Team remains concerned about the secretary's broad power to certify that the disclosure of information is in the public interest and the secretary's ability to provide the information to a person who 'has a genuine and legitimate interest in the information', which could include a healthcare professional or, indeed, a journalist. The Nick Xenophon Team shares the concerns of the Commonwealth Ombudsman in relation to the public interest disclosure provisions that any measures that impact the trust and confidence of the veteran community will exacerbate the level of distrust and have the potential to jeopardise the uptake of services designed to help them.

The veteran community remains distrustful of the DVA, the government and Commonwealth agencies. The veteran community is shown to be a group at high risk of PTSD and other mental health concerns. DVA has already been found, via Senate inquiries, to use the FOI process against veterans in obtaining access to their own records. There is a fear in the veteran community that these measures will only serve to silence them from speaking out.

Given the disquiet about the public interest disclosure provisions in the bill, the minister recently announced an independent privacy impact assessment for the public interest disclosure rules, once they have been finalised, to be conducted by the Australian Government Solicitor in addition to the privacy impact assessment conducted by the DVA. The minister has also undertaken to publicly release both assessments prior to the rules being tabled. The Nick Xenophon Team does look forward to receiving the independent privacy impact assessment soon. However, we remain concerned by the lack of transparency in this process. Why can these draft rules not be made publicly available prior to us, as a Senate, being asked to vote on this bill? It is incumbent upon on us as parliamentarians to ensure that we are working in the bests interests of our veterans, and not simply acting to uphold the reputation of DVA.