2019-2020

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

National Commissioner for Defence and Veteran Suicide Prevention (CONSEQUENTIAL AMENDMENTS) Bill 2020

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

 

National commissioner for defence and veteran suicide prevention (CONSEQUENTIAL AMENDMENTS) BILL 2020

General Outline

1.                 The National Commissioner for Defence and Veteran Suicide Prevention (Consequential Amendments) Bill 2020 (the Bill) operates in conjunction with the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020.

2.                 The Bill amends the Freedom of Information Act 1982 to exclude the National Commissioner for Defence and Veteran Suicide (the Commissioner), and the Attorney-General’s Department to the extent they hold documents related to the performance and exercise of functions or powers of the Commissioner, from the application of that Act.

3.                 The Bill also amends the Inspector-General of Intelligence and Security Act 1986 to allow the Commissioner to be prescribed under the regulations to the Inspector-General of Intelligence and Security Act. If so prescribed, the Inspector-General of Intelligence and Security (IGIS), or a person having previously held this office, may voluntarily disclose information to the Commissioner to assist their inquiries, in accordance with section 34A of the Inspector-General of Intelligence and Security Act.

FINANCIAL IMPACT

4.                 $42.7 million has been provided over five years to support the establishment and operation of the National Commissioner’s function.  These costs also include funding for a one-off review of historical Australian Defence Force (ADF) member and veteran deaths by suicide, to be led by the National Commissioner.  They also include funding for a dedicated legal financial assistance scheme.

 

 

 

 

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Commissioner for Defence and Veteran Suicide Prevention (Consequential Amendments) Bill 2020

 

1.                 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

2.                 This Bill is intended to operate in conjunction with the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020, which establishes the National Commissioner for Defence and Veteran Suicide Prevention (the Commissioner) as an independent statutory officer holder. The Bill amends relevant Commonwealth legislation to give effect to, or as a consequence of, the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020.

3.                 The relevant Commonwealth legislation to be amended by the Bill is the Freedom of Information Act 1982 (Freedom of Information Act) and the Inspector-General of Intelligence and Security Act 1986 (Inspector-General of Intelligence and Security Act) .

4.                 In summary, the amendments exempt the Commissioner, and the Attorney-General’s Department to the extent they hold documents related to the performance and exercise of functions or powers of the Commissioner, from the application of the Freedom of Information Act . The amendments also support the operation of clause 43 of the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020, by enabling the Commissioner to be prescribed under regulations made pursuant to section 34A of the Inspector-General of Intelligence and Security Act.

Human rights implications

5.                 The Bill engages article 17 of the International Covenant on Civil and Political Rights (ICCPR) - the right to freedom from interference with privacy and attacks on reputation.

The right to freedom from interference with privacy and attacks on reputation

6.                        Article 17 of the ICCPR prohibits arbitrary or unlawful interference with a person’s privacy, family, home or correspondence. The right to privacy includes respect for informational privacy, including in respect of storing, using and sharing private information and the right to control the dissemination of personal and private information. To be permissible as a matter of international human rights law, interferences with privacy must be according to law and not arbitrary. In order not to be arbitrary, they must be reasonable and necessary in the particular circumstances, as well as proportional to the objectives they seek to achieve.

7.                        The Bill engages the right to privacy by amending the Freedom of Information Act to exclude the statutory office of the Commissioner from the application of that Act, and the Attorney-General’s Department in respect of documents related to the performance or exercise of functions or powers of the Commissioner.

8.                    The proposed amendments to the Freedom of Information Act reflect the importance of effectively protecting documents which relate to the internal operations of the Commissioner, including documents which have been obtained as evidence by the Commissioner via the use of a compulsory power. The amendment is necessary to provide certainty to persons providing information (including personal information) to the Commissioner, that such information will not be disclosed through a freedom of information request.

9.                    Due to the operation of section 7 of the Privacy Act 1988 (Privacy Act), the proposed amendments to the Freedom of Information Act would also exempt the Commissioner and the Attorney-General’s Department to the extent described, from the operation of the Privacy Act. To the extent that this amendment may affect the right to freedom from interference with privacy and attacks on reputation, it is lawful and non-arbitrary.

10.                The amendment is required to achieve the legitimate objective of ensuring the Commissioner can obtain information relevant to, and properly undertake, their inquiries. Any limitation there may be to the right to privacy is lawful and non-arbitrary, in view of the safeguards for protecting personal information contained in the National Commissioner for Defence and Suicide Prevention Bill 2020. These safeguards include:

·          The requirement for the Commissioner to take a trauma-informed and restorative approach to their functions and powers (clause 12 refers). This means the preferences of witness and other persons providing information to the Commissioner about how their personal information will be used or further disseminated by the Commissioner will be given particular weight in the Commissioner’s handling of the information, across the full spectrum of their functions.

·          It is an offence for the Commissioner, or a staff member assisting the Commissioner, to engage in unauthorised use or disclosure of protected information, including personal information - this offence carries a penalty of imprisonment of 2 years (clause 55 refers).  

·          The Commissioner may hold a hearing or part of a hearing in private, if the Commissioner is satisfied that information which may be disclosed will be personal and private, including about a deceased individual (clause 28 refers). This is accompanied by processes directing how the evidence at a private hearing can be used and disclosed. If a witness gives evidence at a private hearing, the Commissioner must, before using or disclosing that evidence, consider consulting the witness or any other person whose interests are affected (subclause 29(2) refers). The Commissioner must also consider any risk of prejudice to a person if they are not consulted prior to the use or disclosure, and the preferences of the witness (subclause 29(2) refers).

·          The Commissioner may issue a non-publication direction over a range of information disclosed to them, enabling it to direct, conditionally or otherwise, that such material must not be published, produced or further disclosed (clause 53 refers). Such a direction could apply to protect information which may identify a person who has given information or evidence to the Commissioner, for example. Publication in contravention of such a direction is an offence punishable with a term of imprisonment (clause 54 refers). 

 

·          The Commissioner’s power to further disclosure information to other entities requires that such a disclosure will assist the agency or body to perform its functions or exercise their powers (clauses 56 and 57 refer). Only the Commissioner can disclose such information, meaning this power is not delegable to staff assisting the Commissioner. The disclosure provisions are intended to allow the Commissioner to disclose specific information to assist other entities, as part of working collaboratively on solutions to prevent future deaths by suicide, or in some instances, to enable the investigation of a possible criminal offence or civil penalty. The Commissioner’s powers under clauses 56 and 57 could be exercised in a broad range of ways which did not involve disclosing personal information, or could include seeking consent to do so (for example, the Commissioner could disclose de-identified information only, or apply procedures to consult a person whose information may be disclosed).

11.                    To the extent the Commissioner’s powers to seek, use and further disclosure information, including personal information, in the National Commissioner for Defence and Suicide Prevention Bill, operating in conjunction with this Bill, affect the right to privacy, they are lawful, non-arbitrary and are accompanied by effective safeguards.

Conclusion

12.                The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . This Bill promotes the protection of human rights and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate.

 

 

 

 

 

 

 

 

 

 

 

NOTES ON CLAUSES

List of abbreviations

Freedom of Information Act	Freedom of Information Act 1982
National Commissioner for Defence and Veteran Suicide Prevention Act	National Commissioner for Defence and Veteran Suicide Prevention Act 2020
Privacy Act	Privacy Act 1988
Inspector-General of Intelligence and Security Act	Inspector-General of Intelligence and Security Act 1986

 

 

Clause 1          Short title

1.                     Clause 1 provides for the short title of the Act to be the National Commissioner for Defence and Veteran Suicide Prevention (Consequential Amendments) Act 2020 .

 

Clause 2          Commencement

2.                    Clause 2 provides for the commencement of each provision of the Act, as set out in the table at subclause 2(1). The table provides that the whole of this Act commences at the same time as the National Commissioner for Defence and Veteran Suicide Prevention Act.

3.                    Subclause 2(2) specifies that information in column 3 of the table at subclause 2(1) is not a part of the Act, and information may be inserted in this column, or information in it may be edited, in any published version of this Act.

 

Clause 3          Schedules

4.                    Clause 3 provides that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule. This Act has only one Schedule (Schedule 1), which amends the Freedom of Information Act and the Inspector-General of Intelligence and Security Act.

 

Schedule 1 — Amendments

Freedom of Information Act 1982

Item 1

5.                    Item 1 exempts the National Commissioner for Defence and Veteran Suicide Prevention (the Commissioner) from the application of the Freedom of Information Act.

6.                    Item 1 implements this exemption by adding the Commissioner to the list of agencies and office holders in Division 1 of Part I of Schedule 2 to the Freedom of Information Act.

7.                    Subsection 7(1) of the Freedom of Information Act provides that the bodies listed in Division 1 of Part I of Schedule 2, and a person holding and performing the duties of that office, are deemed to not be prescribed authorities, and are therefore exempt from the operation of the Freedom of Information Act. 

8.                    This approach aligns with the exclusion of other statutory office holders with similar information gathering and inquiry powers to the Commissioner from the Freedom of Information Act in Division 1 of Part I of Schedule 2, and in other parts of the Freedom of Information Act. For example, it is consistent with the exclusion of Royal Commissions from being a ‘prescribed authority’ under section 4 of the Freedom of Information Act.

Item 2

9.                    Item 2 exempts certain documents held by the Attorney-General’s Department in relation to the Commissioner from the application of the Freedom of Information Act.

10.                Item 2 implements this exemption by adding a further reference to the Attorney-General’s Department in Division 1 of Part II of Schedule 2 to the Freedom of Information Act.

11.                Subsection 7(2) of the Freedom of Information Act provides that the persons, bodies and Departments listed in Division 1 of Part II of Schedule 2 are exempt from the operation of the Freedom of Information Act in relation to the documents referred to in that Schedule.

12.                This item excludes documents in respect of the following functions or powers of the Commissioner that are held by the Attorney-General’s Department:

 

·          section 26 (inquiries)

 

·          section 28 (private hearing)

 

·          sections 30 (summons) and 32 (Commissioner may require information)

 

·          sections 40 and 41 (disclosure of information to the Commissioner)

 

·          section 42 (arrangements for obtaining and protecting intelligence information), and

 

·          sections 56 (authorisation to disclose information (other than intelligence information)) and 57 (authorisation to disclose intelligence information).

13.                The proposed exemption is targeted to specific functions or powers of the Commissioner under the National Commissioner for Defence and Veteran Suicide Prevention Act, as outlined below.

14.                The proposed exemptions in item 2 reflect the importance of effectively protecting documents which are internal to the operation of the Commissioner’s role, including documents which have been obtained as evidence by the Commissioner via the use of a compulsory power. The proposed approach is necessary to provide certainty to persons providing information to the Commissioner, including about sensitive personal matters, about how that information will be handled and protected.

15.                Excluding the Attorney-General’s Department from the application of the Freedom of Information Act in this way is a necessary extension to the exclusion of the Commissioner under item 1, as the Attorney-General’s Department is the entity providing administrative support to the Commissioner (including record keeping), and will engage the staff assisting the Commissioner.

16.                Section 26 of the National Commissioner for Defence and Veteran Suicide Prevention Act sets out, in a non-exhaustive way, the circumstances the Commissioner may consider when exercising their inquiry function. Excluding documents connected to the Commissioner’s inquiry function will ensure that documents in respect of a hearing or other deliberative process undertaken by the Commissioner, for example, are appropriately protected. 

17.                Section 28 of the National Commissioner for Defence and Veteran Suicide Prevention Act confers discretion on the Commissioner to hold a private hearing (as does subsection 42(6), which is captured under Item 2, paragraph (v)). The potential disclosure of private hearing related information under the Freedom of Information Act would undermine the necessary confidentiality of records related to a private hearing.

18.                Sections 30 and 32 of the National Commissioner for Defence and Veteran Suicide Prevention Act relate to the Commissioner’s powers to require information or the production of documents through a summons or written notice. Excluding documents obtained under these sections ensures that a freedom of information request cannot circumvent the Commissioner’s role to direct the future use or disclosure of formal evidence of this kind, as relevant to their functions and powers.

19.                Sections 40 and 41 of the National Commissioner for Defence and Veteran Suicide Prevention Act authorise Commonwealth, State and Territory bodies and office holders to disclose information to the Commissioner, to assist their functions and powers. The information disclosed to the Commissioner under these sections will be official information, having being provided by another government entity, and is expected to provide critical assistance the Commissioner’s work. Excluding documents obtained under these sections ensures that a freedom of information request cannot circumvent the Commissioner’s role to direct the future use or disclosure of information of this kind, as relevant to their functions and powers.

20.                Section 42 of the National Commissioner for Defence and Veteran Suicide Prevention Act requires the Commissioner to take all reasonable steps to enter into an arrangement with an Australian intelligence entity for obtaining and protecting information relating to an Australian intelligence entity. ‘Australian intelligence entity’ is a defined term in section 5 of the National Commissioner for Defence and Veteran Suicide Prevention Act. The approach to exclude such documents is consistent with the broader exclusion in subsection 7(2A) of the Freedom of Information Act, which exempts an agency in relation to documents that originate with, or have been received from an intelligence agency, among other things.

21.                Section 56 of the National Commissioner for Defence and Veteran Suicide Prevention Act authorises the Commissioner to disclose information, including personal information, to other bodies and office holders, if the Commissioner is satisfied that the information will assist the agency or body to perform any of its functions or powers. This section does not apply to intelligence information. This authorisation is limited to the Commissioner and could include information related to law enforcement. Section 57 authorises the Commissioner to disclose intelligence information, including personal information, to a limited number of bodies and office holders, following prescribed steps. This authorisation is also limited to the Commissioner personally. It would not be appropriate for documents about the Commissioner’s exercise of a power to disclose, or the disclosed documents themselves, to be accessed through a freedom of information request. A decision to disclose such information is appropriately a matter for the Commissioner to determine, as part of the exercise of their functions and powers.

22.                 Documents in respect of the Commissioner’s functions or powers which are held by the Attorney-General’s Department in relation to functions or powers of the Commissioner which are not listed in item 2 will be subject to the application of the Freedom of Information Act. This could include, for example, documents about administrative aspects of the Commissioner’s role.

23.                Due to the operation of section 7 of the Privacy Act, the amendments to Schedule 1 of the Freedom of Information Act would also exempt the Commissioner and the Attorney-General’s Department to the same extent as specified in item 2, from the operation of the Privacy Act. Royal Commissions are also exempt from the Privacy Act.

24.                The National Commissioner for Defence and Veteran Suicide Prevention Act provides for the protection of information, including personal information, given to or developed to assist the Commissioner, through section 55. Section 55 makes it an offence for the Commissioner, or a current or former member of staff assisting the Commissioner, to use or disclose protected information for a purpose other than relevant to performing or exercising the Commissioner’s functions or powers. It is also provided by the Commissioner’s power to issue, vary and revoke a non-publication direction over information, including personal information, and an offence for breach of a direction, in sections 53 and 54.

25.                If a person wished to access or correct their own personal information held by the Commissioner or the Attorney-General’s Department, for example, this could be facilitated administratively, notwithstanding the Privacy Act exemption.

Inspector-General of Intelligence and Security Act 1986

26.                Items 3 - 6 amend section 34A of the Inspector-General of Intelligence and Security Act to allow the Commissioner to be prescribed by the regulations to that Act, and subsequently provide for the provision of information to the Commissioner in certain circumstances.

27.                The IGIS holds a unique role within the Australian intelligence community, being an independent officer holder with powers to review the activities of intelligence entities. Rather than making the IGIS compellable by the Commissioner, the approach reflected in this Bill and the accompanying National Commissioner for Defence and Veteran Suicide Prevention Act will achieve equivalence with a Royal Commission and enable information to be provided to the Commissioner only in accordance with section 34 and 34A of the Inspector-General of Intelligence and Security Act.

28.                Section 34A of the Inspector-General of Intelligence and Security Act provides that the Inspector-General, or a former Inspector-General, may give information or documents to a prescribed Royal Commission to assist its inquiry. The Inspector-General may also authorise a staff member or former staff member to give information or documents to a Royal Commission.

29.                Items 3 and 4 amend section 34A to allow for the giving of information to the Commissioner. Item 3 amends the title in section 34A, and item 4 amends subsections 34A(1)-(6) to insert references to the ‘National Commissioner’.

30.                Item 5 inserts a new subsection 34A(6) enabling the Commissioner to be prescribed under the regulations made pursuant to the Inspector-General of Intelligence and Security Act .

31.                Section 43 of the National Commissioner for Defence and Veteran Suicide Prevention Act provides that, in accordance with sections 34 and 34A of the Inspector-General of Intelligence and Security Act :

·          an entrusted person may obtain information from another person that the other person acquired as an IGIS official (paragraph 43(a)); and

·          a person that acquired information as an IGIS official may disclose information to an entrusted person (paragraph 43(a)).

32.                An ‘entrusted person’ is defined in section 5 of the National Commissioner for Defence and Veteran Suicide Prevention Act as the Commissioner or members of staff assisting the Commissioner. ‘IGIS official’ is also a defined term in section 5. The amendments to section 34A of the Inspector-General of Intelligence and Security Act operate in conjunction with section 43 of the National Commissioner for Defence and Veteran Suicide Prevention Act.

33.                Item 6 defines ‘National Commissioner’ as the statutory office holder of the National Commissioner for Defence and Veteran Suicide Prevention, or a member of staff assisting the Commissioner, as provided in section 14 of the National Commissioner for Defence and Veteran Suicide Prevention Act.