Bills Digest no. 68, 2016–17
PDF version [644KB]
Claire Petrie
Law and Bills Digest Section
27
February 2017
Contents
Purpose and structure of the Bill
Defence-related Claims Act
Background
Automated decision making
Automated decision-making in
Government
DVA’s commitment to automated
decision making
DVA’s use of automated systems
Proposed ICT reforms
Disclosure of information
Public interest certificates under
social security law
Existing information sharing
provisions
Committee consideration
Senate Standing Committee on Foreign
Affairs, Defence and Trade
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Schedule 1—Computerised
decision-making
Commencement
Schedule 2—Disclosure of information
Public interest disclosures
Information sharing
Commencement
Schedule 3—Technical amendments
Date introduced: 24
November 2016
House: House of
Representatives
Portfolio: Veterans'
Affairs
Commencement: Sections
1 to 3 commence on Royal Assent. Provisions of Schedules 1 to 3 commence at
various times, as set out in the Digest.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at February 2017.
Purpose and structure of the Bill
The purpose of the Veterans’ Affairs Legislation Amendment
(Digital Readiness and Other Measures) Bill 2016 (the Bill) is to amend the Military
Rehabilitation and Compensation Act 2004 (Cth) (MRCA), Veterans’
Entitlements Act 1986 (Cth) (VEA) and the (yet to be enacted) Safety,
Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (DRCA)
(the defence compensation Acts) to:
- enable
the Secretary of the Department of Veterans’ Affairs (Secretary) to authorise
the use of computer programs to make decisions and determinations and exercise
other powers under the relevant Acts (Schedule 1)
- allow
the Secretary to disclose information about a particular case or class of cases
where the Secretary certifies that it is in the public interest to do so (Schedule
2)
- provide
for information sharing between the Military Rehabilitation and Compensation
Commission (MRCC) and the Secretary of the Department of Defence or the Chief
of the Defence Force (Schedule 2) and
- make
minor technical amendments (Schedule 3).
Defence-related
Claims Act
The Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016
(SRC Amendment Bill), introduced into the House of Representatives on 9
November 2016, proposes to create a re-enacted version of the Safety,
Rehabilitation and Compensation Act 1988 (Cth) (SRCA)—which will
be titled the Safety, Rehabilitation and Compensation (Defence-related
Claims) Act 1988 (DRCA). The DRCA will apply only to members
of the Australian Defence Force (ADF) and their dependants.[1]
The SRC Amendment Bill will also amend the SRCA to exclude ADF members
and their dependants from its operation. At the time of writing, it had not yet
been debated.
Provisions of the current Bill
propose to amend the DRCA, when enacted, in line with similar amendments
being made to the MRCA and VEA. The commencement of the DRCA
amendments is therefore dependent on the enactment of the DRCA.
Background
Automated
decision making
Automated
decision-making in Government
The use of automated decision making by government
departments and agencies has occurred in various forms since the 1990s. The
term ‘automated system’ is broadly used to describe a computer system that
automates significant parts, or all, of an administrative decision-making
process.[2]
A 2007 Australian Government ‘Better Practice Guide’ to automated assistance in
administrative decision making provides the following description:
Automated systems range from conventional information
technology systems (which may calculate a rate of payment in accordance with a
formula set out in legislation) through to more specialised systems such as
‘expert’, ‘business rules engines’, ‘rules-based’ or ‘intelligent’ systems, and
‘decision-support’ tools. Business rules engines or rules-based systems (types
of expert systems used in administrative decision-making) are software systems
that help manage and automate business rules.
...
A hallmark of an automated system is its ability to examine a
set of circumstances (data entered by the user) by applying ‘business rules’
(modelled from legislation, agency policy or procedures) to ‘decide’
dynamically what further information is required, or what choices or
information to present to the user, or what conclusion is to be reached.[3]
Such systems can be used to automate elements of the
decision-making process to various degrees, including by:
- providing
the relevant legislation and policy provisions to a decision maker
- collating
and sourcing relevant evidence on a particular applicant
- guiding
a decision maker through each step of the process and providing recommendations
as to particular findings and
- identifying
the various potential outcomes, factors for and against such outcomes, and the
potential consequences of each.[4]
The Government has increasingly sought to provide
legislative sanction for the use of computer programs to make decisions and
exercise other functions.[5]
A 2004 report of the Administrative Review Council (ARC), Automated
Assistance in Administrative Decision Making, considered the
administrative law implications of computerised decision making.[6]
The ARC concluded that expert systems could assist in administrative decision
making, by potentially reducing inaccuracy and human prejudice in the
interpretation and application of complex rules and policy and ‘providing the
opportunity for making more accurate, consistent, efficient and transparent
decisions’.[7]
However, the ARC also noted the potential risks which may arise, acknowledging
that ‘the use of expert systems in administrative decision making process is a
developing area in which a mistake in the design or operation of such a system
has the potential to affect many people’.[8]
The report incorporated 27 best-practice principles to
ensure that decision-making undertaken with the assistance of automated systems
was consistent with administrative law values of lawfulness, fairness,
rationality, openness and efficiency. In particular, it stated that the use of
expert systems to make decisions would generally be suitable only for decisions
involving non-discretionary elements, and expert systems should not automate
the exercise of discretion.[9]
The ARC also recommended that the use of expert systems to make decisions
should be legislatively sanctioned to ensure it is compatible with the legal
principles of authorised decision making.[10]
A 2007 Automated
Assistance in Administrative Decision-Making: Better Practice Guide, produced
by 24 Australian Government agencies and led by the Australian Government Information
Management Office, sought to guide the practical application of the ARC
principles by Government agencies and departments.[11]
More recently, Federal Court of Australia Justice Melissa
Perry has highlighted potential implications of the use of pre-programmed
systems in decision-making, particularly with regards to decision-maker
discretion, noting:
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.
Legislative amendments directed towards facilitating greater
automation by requiring the application of strict criteria in place of the
exercise of a discretion or value-based judgment, should therefore be the
subject of careful scrutiny ...[12]
DVA’s
commitment to automated decision making
The Bill establishes a legislative basis for the use of
computer systems to make decisions and determinations, and perform other
functions under the relevant defence compensation Acts. These amendments are in
line with digital reforms envisioned in the Department of Veterans’ Affairs
(DVA) ‘Towards 2020’ Strategic Plan, which includes the goal of providing
simpler and faster access for clients. The Plan states:
Digital services will provide for faster provision
of payments and will connect clients with services from Government
and providers. Simplified access will reduce the need for third party
representation. DVA will review and seek to amend legislation to better align
and support change to enable automated determinations.[13]
In his second reading speech, the Minister for Veterans’
Affairs, Dan Tehan, stated that the Bill will:
... make the Department of Veterans' Affairs (DVA) digitally
ready in a legal sense, in line with the government's broad digital
transformation agenda.
DVA is undertaking veteran-centric reform to significantly
improve services for veterans and their families by re‑engineering DVA
business processes.
In anticipation of planned business and ICT reforms that will
reduce claims processing times and automate and streamline existing processes,
amendment is required to provide a sound legislative basis for computerised
decision-making.[14]
The Department has stated that sorts of decisions which
could be suitable for computerised decision-making include: where the
decision-making can be converted into an algorithm; automated granting of
benefits in certain circumstances; and where the decision can be generated
based on information that is not subject to interpretation or discretion.[15]
No further details have been provided about the types of
decisions and other processes which are likely to be automated, with the
Department suggesting that it will ‘incorporate this capability as it rebuilds
its information and communications technology into the future’.[16]
DVA’s use
of automated systems
DVA has been using automated systems to support its claims
processing functions for more than twenty years. In 1994, it implemented an
automated Compensation Claims Processing System (CCPS) to guide decision makers
through the process of investigating and determining veterans’ compensation
claims.[17]
DVA has stated that the system was the first Australian Government application
to use expert technology for large-scale processing.[18]
In 2004, the Deputy Secretary of DVA, Ian Campbell, described the CCPS as
combining:
... a natural language claims processing checklist with a
sophisticated, object-oriented case management system and uses a massive
medical knowledge rule base to direct the investigation and determination of
compensation eligibility and assessment.
The knowledge rule base of CCPS contains all the logic of the
policy and the questions that have to be answered to apply the policy, as well
as commentary on interpretation of the policy. It also has a Research Library
that includes military history, repatriation history, legislation and
departmental instructions.[19]
The CCPS was subsequently expanded through the development
of the Military Compensation Expert (MCE) automated system, which used a web
service format to guide users—both departmental decision-makers and
veterans—through an interactive investigation process.[20]
Under existing systems, claimants also can test their own eligibility to
various entitlements via the DVA website.[21]
However, while these appear to use automated systems to guide decision-makers,
they do not automate the decision-making process itself.
Proposed
ICT reforms
The process of reforming DVA’s business systems is in the
early stages, and follows on from a 2013 Department of Finance report which
identified that DVA’s rehabilitation and compensations ICT systems were ageing
and at risk of failure.[22]
The 2016–17 Budget included two key measures to support the reform of these
systems. The first is $24.8 million to develop a business case to simplify and
streamline the Department’s business processes and replace legacy ICT systems.[23]
DVA has indicated that the funding will be shared with the Department of Human
Services (DHS), which will design the ICT system that underpins the business
case and integrates with the new whole of government payment system.[24]
Secondly, the Government is providing $23.9 million to
improve the operation of DVA’s existing compensation and rehabilitation
processing systems while the business case is being developed.[25]
DVA has stated that this will involve the gradual replacement of 19 systems
used for rehabilitation and compensation processing with a single system.[26]
The Department has claimed that key outcomes of the reforms will include:
... the successful transition of ADF members to civilian life;
provision of accurate, tailored and coordinated support for veterans, based on
circumstances and need; partnering where appropriate for efficiencies and
consistency; circumstance-driven services that are efficient and fiscally
sustainable and reflect the changing circumstances of veterans; and simpler,
faster access to DVA services.[27]
Disclosure
of information
Public
interest certificates under social security law
The amendments in Schedule 2 of the Bill enable the
Secretary of DVA to disclose information about a case, or class of cases, where
the Secretary certifies that it is in the public interest to do so. The
capacity to make public interest disclosures which may otherwise be restricted
by the Privacy
Act 1988 (Cth) already exists under a number of federal social security
laws.[28]
An example is under sections 208 and 209 of the Social Security (Administration)
Act 1999 (Cth), on which the provisions in this Bill are modelled.
These require the Secretary, in issuing a public interest certificate or
disclosing information, to comply with any guidelines issued by the Minister.
The Social Security
(Public Interest Certificate Guidelines) (DSS) Determination 2015 (Cth) currently
governs the exercise of the Secretary’s power to give public interest
certificates. The guidelines prescribe circumstances in which such a
certificate may be given, and matters to which the Secretary must have regard.
They provide that a certificate may be given when the information cannot
reasonably be obtained other than from the Department of Social Services or
DHS, the person to whom the information will be disclosed has sufficient
interest in the information, and the disclosure is for a purpose specified in
the Guidelines, such as:
- to
prevent, or lessen, a threat to the life, health or welfare of a person
- for
the enforcement of certain criminal laws, or the making or enforcing of a
proceeds of crime order
- to
brief a Minister so that the Minister can consider complaints or issues raised
by or on behalf of a person with the Minister
- to
assist a court, coronial inquiry, Royal Commission, department or any other
authority of a state or territory in relation to the whereabouts of a missing
person, or to help a person locate a relative or beneficiary of a deceased
person
- to
ensure a child’s school enrolment and attendance
- to
facilitate rent calculation, rent deduction or administration of an income
confirmation service in relation to public housing or other state or territory
managed housing or
- for
research and statistical analysis purposes.[29]
The Explanatory Memorandum to the present Bill notes that
the nature and content of rules made by the Minister for Veterans’ Affairs in
regards to public interest certificates are likely to be similar to those
contained in this Determination.[30]
Existing
information sharing provisions
There is no present provision in the defence compensation
Acts permitting disclosure of information by the Secretary. Information sharing
provisions under the MRCA and SRCA do enable the MRCC, or a staff
member assisting the MRCC, to disclose information in certain circumstances.
However, the two Acts are not consistent. The MRCA and associated
regulations currently enable the MRCC to disclose information to Defence agencies
in relation to litigation of claims, and for monitoring occupational health and
safety performance and the cost of injuries, as well as to DHS for the purposes
of administering the social security law.[31]
The MRCC also has the power to request in writing that any person provide
information or documents as required by the Commission, or answer questions
before a specified staff member.[32]
In contrast, the SRCA’s information sharing
provision is more limited, permitting disclosures only to Centrelink, Medicare
and the Secretary of the Department/s administering the National Health Act
1953; Aged Care Act 1997 and Human Services (Centrelink) Act 1997.[33]
Additionally, the MRCC may only request documents and information ‘that are
relevant to a defence-related claim’ from the Secretary of the Defence
Department, Secretary of DVA and the Chief of the ADF.[34]
The Bill proposes inserting into the DRCA provisions
in line with the existing information sharing provisions under the MRCA.
Committee
consideration
Senate
Standing Committee on Foreign Affairs, Defence and Trade
The Bill was referred to the Senate Foreign Affairs,
Defence and Trade Legislation Committee for inquiry and report. Details of the
inquiry are available here.[35]
The Committee published its report on 20 February 2017, and recommended that
the Bill be passed with minor amendment.[36]
Although the Committee acknowledged concerns regarding the computerisation of
decision making, it noted assurances provided by the Department that the
computerised system would not be used for debt recovery-related purposes. It
further observed that computerising some decisions would improve efficiency and
free up resources, therefore improving services to veterans.[37]
The Committee supported the intent of the proposed public
interest disclosure provision, but made the following recommendations for
additional safeguards:
- DVA
consult with the Commonwealth Ombudsman and Office of the Australian
Information Commissioner on the content of the Minister’s regulations
controlling the exercise of the Secretary’s public interest disclosures, before
the regulations are finalised and introduced in the Parliament
- DVA
undertake a privacy impact assessment of the regulations, and this completed
assessment be made public and
- the
Bill be amended to include a mandatory review of the implementation of the
legislation and accompanying regulations two years from the commencement date.[38]
Labor Senators on the Committee issued additional comments
about the public interest disclosure provisions of the Bill, in which they
expressed concerns about the broad scope of disclosures provided for in the
Bill.[39]
The Nick Xenophon Team also issued additional comments and recommended that the
Minister’s rules on the exercise of the Secretary’s public interest disclosure
power be made publically available—and therefore subject to feedback from
interested persons—before they are tabled in Parliament as a legislative
instrument.[40]
Senate
Standing Committee for the Scrutiny of Bills
The Scrutiny of Bills Committee considered the Bill in its
Alert Digest No. 10 of 2016.[41]
The Committee raised concerns with the broad scope of the Secretary’s power,
under Schedule 2 of the Bill, to certify that disclosure of information is in
the public interest. In particular, the Committee has sought the Minister’s
advice as to:
- why
rules or guidance about the exercise of the Secretary’s disclosure power cannot
be included in the primary legislation and
- why
there is no duty on the Minister to make rules regulating the exercise of the
Secretary’s power, but instead a discretionary power to do so.[42]
The Minister’s response was included in the Committee’s Scrutiny
Digest No. 1 of 2017.[43]
The Minister advised that his Office had been working with the Office of the
Shadow Minister for Veterans’ Affairs, Amanda Rishworth, to develop rules that
would:
... appropriately limit the circumstances in which the
Secretary ... will be able to exercise the proposed public interest disclosure
power and ... the Secretary will not be able to exercise the proposed public
interest disclosure power until those rules are in place.[44]
The Minister noted that setting out rules in delegated
legislation would allow him to respond quickly and flexibly to changing
circumstances necessitating the disclosure of information, whereas this would
be more limited if such rules or guidance were located in the primary
legislation.
In response, the Committee noted that:
... the disclosure of any information obtained in the
course of the performance of a Secretary’s duties under legislation to any person
for any purpose, is a significant matter that should be appropriately
defined or limited in primary legislation.[45]
It reiterated its view that high level guidance, at least,
about the exercise of the Secretary’s disclosure power should be included in
the primary legislation, or that there should be a positive duty on the
Minister to make rules for the exercise of the Secretary’s power.[46]
Policy
position of non-government parties/independents
As noted above, the Senate Foreign Affairs, Defence and
Trade Legislation Committee recommended that the Bill be passed, with the Labor
Senators and Nick Xenophon Team making additional comments but not opposing the
passage of the Bill. Other non-government parties and independent members of
Parliament had not commented on the Bill at the time of writing.
Position of
major interest groups
In submissions to the Senate inquiry, the War Widows’
Guild of Australia (WWGA) and Vietnam Veterans Association of Australia (VVAA)
expressed support for the broad objectives of the Bill. The VVAA noted that it
had been consulted by DVA on the development of the Bill, and expressed support
for:
... the introduction of a modern computer system that will be
of benefit to the veteran community, to potentially reduce time taken to act
and respond to changes by the department, at the same time maintain ... the
ability of the ex-service community to keep a watching brief on the operation
of new electronic procedures as they are introduced.[47]
The WWGA also supported the upgrading of the DVA IT
systems and streamlining of its claims processing, as well as the Public
Interest Disclosure provisions of the Bill.[48]
The Commonwealth Ombudsman raised concerns with the
information disclosure provisions under Schedule 2. These concerns are
discussed in further detail under the Key Issues and Provisions section below.
Financial
implications
The Explanatory Memorandum states that the Bill will have
no financial impact.[49]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[50]
Parliamentary
Joint Committee on Human Rights
In its first report of 2017, the Parliamentary Joint
Committee on Human Rights deferred consideration of the Bill.[51]
Key issues and provisions
Schedule
1—Computerised decision-making
Schedule 1 provides the Secretary of DVA with the
power to authorise the use of computerised decision-making for a broad range of
purposes. Items 1, 3 and 5 insert a computerised decision-making power
into the MCRA, DCRA and VEA respectively. This provides
that the Secretary of DVA[52]
may arrange for the use, under the Secretary’s control, of computer programs
for any purposes for which the MRCC (or, in the case of the VEA, the
Repatriation Commission) may or must:
- make
a decision or determination
- exercise
any power or comply with any obligation or
- do
anything else related to making a decision or exercising a power or complying
with an obligation.[53]
The Secretary therefore possesses a broad discretion to
authorise the use of computer programs to perform any of the relevant
Commission’s functions. Though the relevant provisions state that the computer
programs must be used ‘under the Secretary’s control’, there is no further
detail in the Bill or explanatory materials of what this phrase may require.
Where a computer program does one of the actions set out
above, the relevant Commission will be taken to have performed this action for
the purposes of the applicable Act or legislative instrument.[54]
This means that the provisions under each Act providing for reconsideration and
review of MRCC or Repatriation Commission determinations will still apply to
decisions which are ‘made’ by computer programs. Additionally, the relevant Commission
is given the power to substitute a decision or determination where it is
satisfied that the computer program’s decision or determination is incorrect.[55]
The Explanatory Memorandum notes that this provision, as inserted into the MRCA
and DRCA:
... would enable a delegate of the MRCC to intervene and
substitute a decision or determination where a computer programme has produced
an incorrect outcome. The MRCC will be able to exercise this power on “own
motion”, without the need for a person to request review of an incorrect
decision or determination made by a computer programme.[56]
The relevant provisions expressly state that the capacity
of the MRCC and Repatriation Commission to make own-motion corrections of
errors does not limit a claimant’s right to review of a decision or
determination.[57]
Item 6 amends subsection 214(1) of the VEA
to provide that the Secretary’s powers under proposed section 4B are
non-delegable. A similar provision does not need to be inserted into either the
MRCA or DRCA as neither Act provides for any powers of delegation
by the Secretary.
Commencement
Items 1, 2, 5 and 6 commence on the day
after Royal Assent.[58]
Items 3 and 4 amend the DRCA, and commence on the later of either
the day after Royal Assent or immediately after the commencement of Part 2 of
Schedule 1 of the SRC Amendment Bill (when enacted).[59]
Schedule
2—Disclosure of information
Public
interest disclosures
Items 1, 7 and 10 insert into the MRCA, DRCA
and VEA respectively, provisions in equivalent terms enabling the
Secretary to make public interest disclosures. Under these proposed provisions,
where the Secretary certifies that it is in the public interest to do so in
relation to a particular case or class of cases, the Secretary may disclose any
information obtained by any person under the relevant Act, to such persons and
for such persons as the Secretary determines.[60]
‘Public interest’ is not defined in the Bill or any of the relevant Acts. The
Explanatory Memorandum states:
Examples of the circumstances in which it might be
appropriate for the Secretary to disclose information about a case or class of
cases include where there is a threat to life, health or welfare, for the
enforcement of laws, in relation to proceeds of crime orders, mistakes of fact,
research and statistical analysis, APS code of conduct investigations,
misinformation in the community and provider inappropriate practices.[61]
The proposed provisions are broader in scope than existing
information disclosure provisions under the MRCA and SRCA
(discussed above). The Secretary is granted considerable discretion regarding
the purposes for which, and persons to whom, information can be provided. The
provisions do place some constraints on this discretion. Firstly, the Minister
may, by legislative instrument, make rules for and in relation to the exercise
of the Secretary’s power to give certificates, and the Secretary must act in
accordance with any such rules.[62]
Item 11 amends section 212 of the VEA to provide that the
Minister’s power to make such rules is non-delegable. Similar amendments are
not required for the MRCA or DRCA as the Minister does not
have powers of delegation under these Acts.
Secondly, the Secretary must adhere to specified notice
requirements before disclosing personal information about a person.[63]
The Secretary must advise the person in writing about his or her intention to
disclose the information, give the person a reasonable opportunity to make
written comments on the proposed disclosure, and consider any written comments
which the person makes. The Secretary commits an offence by disclosing personal
information without complying with these requirements, with an applicable maximum
penalty of 60 penalty units, being equivalent to $10,800.[64]
Thirdly, a public interest disclosure certificate issued
by the Secretary that applies to a class of cases is a legislative instrument,
and is subject to the Parliamentary disallowance process.[65]
However, a certificate issued for a particular case is not a legislative
instrument, and is therefore not disallowable. Item 12 amends section 214
of the VEA to provide that the Secretary’s power to issue a public
interest disclosure certificate is non-delegable.[66]
Disclosures of information which comply with the proposed
provisions are expressly stated to be authorised by the relevant Act for the
purposes of the Australian Privacy Principles.[67]
The Commonwealth Ombudsman has raised concerns with the
scope of these proposed amendments, noting that they:
... would allow the Secretary to release sensitive personal
information to the public at large where he or she is of the view that it is in
the public interest to do so. The Ombudsman is concerned that the release of an
individual’s personal information has the potential to adversely affect
veterans and ex-service personnel, particularly those who are already
vulnerable.[68]
The Ombudsman has suggested that a preferable approach may
be to mirror the existing MRCA disclosure provision under section 409,
rather than introducing new expanded provisions to all three Acts.[69]
Information sharing
Item 3 modifies the operation of section 61 of the DRCA
to require the MRCC to give to the Chief of the Defence Force a copy of the
notice of a determination relating to liability for an injury, disease, death
or the permanent impairment of a person who was a member of the ADF at the time
of the determination. The Explanatory Memorandum states that this change is
necessary because the obligation to provide claims information about serving
members to the Chief of the Defence Force under the DRCA is more limited
than the equivalent provision at subsection 346(2) of the MRCA.[70]
Item 5 inserts proposed subsection 151A(1A) into
the DRCA. This expands the information sharing powers of the MRCC, in
line with those contained in the MRCA. The proposed subsection provides
that the MRCC, or a staff member assisting the MRCC, may provide information to
the Secretary of the Defence Department for any purposes relating to:
- litigation
involving an injury, disease or death of an employee in relation to which a
claim has been made under the DRCA
- monitoring
or reporting on the performance of the ADF in relation to occupational health
and safety or
- monitoring
the cost to the Commonwealth of injuries, diseases or deaths of employees, in
relation to which claims have been made under the DRCA.
Commencement
Items 1, 2 and 9 to 13 commence on a day to be
fixed by Proclamation, or if they do not commence within six months of Royal
Assent, on the day after the end of that period. Items 3 to 8, which
amend the DCRA, commence on the later of either the day of commencement
of the other provisions within Schedule 2, or the 28th day after the
commencement of Part 2 of Schedule 1 to the SRC Amendment Bill (when enacted).[71]
Schedule
3—Technical amendments
Item 1 amends the short title of the DRCA.
The Explanatory Memorandum states that while the SRC Amendment Bill amends the
long title of the DRCA, it does not amend the short title.[72]
The amendment will ensure the short and long titles of the DRCA are
consistent. Item 1 commences the later of the day after Royal Assent and
immediately after the commencement of Part 2 of Schedule 1 of the SRC Amendment
Bill (when enacted).[73]
Items 2 and 3 make technical amendments to penalty
provisions of the VEA. The changes bring the provisions into line with the
current Commonwealth drafting practice of expressing penalties for criminal
offences in penalty units rather than as a monetary figure. Item 2
amends a reference to a penalty of ‘$1,000 or imprisonment for 6 months’ to
read ‘imprisonment for 6 months or 10 penalty units’; item 3 replaces a
reference to ‘$500’ with ‘5 penalty units’. As noted in the Explanatory
Memorandum, section 4AB of the Crimes Act 1914 (Cth) provides that a
provision referring to a penalty in dollars is to be converted into a reference
to a penalty of a certain number of penalty units.[74]
The amendments therefore do not have substantive effect, but improve the
clarity and accessibility of the relevant provisions. Items 2 and 3
commence the day after Royal Assent.
[1]. Parliament
of Australia, ‘Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016
homepage’, Australian Parliament website; P Pyburne, Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016,
Bills digest, 2016–17, Parliamentary Library, Canberra, 2017.
[2]. Australian
Government, Automated
assistance in administrative decision-making: better practice guide,
Australian Government, Canberra, February 2007, p. 4.
[3]. Ibid.
[4]. J
Pinder and S Lloyd, ‘Computer
says no: automated decision making and administrative law’, LSJ: Law
Society of NSW Journal, 16, October 2015, pp. 70–71.
[5]. For
example: Australian
Citizenship Act 2007 (Cth), section 48; Social Security
(Administration) Act 1999 (Cth), section 6A; Customs Act 1901
(Cth), section 126H; Migration
Act 1958 (Cth), section 495A; A New Tax System
(Family Assistance) (Administration) Act 1999 (Cth), section 223; National Consumer
Credit Protection Act 2009 (Cth), s. 242. In addition, the National
Health Amendment (Pharmaceutical Benefits) Bill 2016, which is currently
before Parliament, proposes to amend the National Health Act 1953 to allow
computer programs to be used for certain administrative decisions and actions
relating to the Pharmaceutical Benefits Scheme.
[6]. Administrative
Review Council (ARC), Automated assistance
in administrative decision making, Report to the Attorney-General, 46, ARC, Canberra,
November 2004.
[7]. Ibid.,
pp. 9, 34–36.
[8]. Ibid.,
p. 48.
[9]. Ibid.,
p. viii (principles 1 and 2).
[10]. Ibid.,
p. viii (principle 5).
[11]. Australian
Government, Automated assistance in administrative decision-making: better
practice guide, op. cit.
[12]. M
Perry (Justice of the Federal Court of Australia) and A Smith, iDecide:
the legal implications of automated decision-making, speech, delivered
at the Cambridge Centre for Public Law Conference 2014: process and substance
in public law, 15–17 September 2014.
[13]. Department
of Veterans’ Affairs (DVA), ‘Towards
2020—future state plan’, DVA Corporate Plan 2016–2020, DVA website,
2016.
[14]. D
Tehan (Minister for Veterans’ Affairs), ‘Second
reading speech: Veterans' Affairs Legislation Amendment (Digital Readiness and
Other Measures) Bill 2016’, House of Representatives, Debates, 24
November 2016, p. 4316.
[15]. DVA,
Submission
to Senate Foreign Affairs, Defence and Trade Legislation Committee, ‘Veterans'
Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016
[provisions]’, 25 January 2017, p. 2.
[16]. R
Pearce, ‘Department
of Veterans’ Affairs prepares for computerised decision-making’, Computer
World website, 25 November 2016.
[17]. I
Campbell, ‘The
Department of Veterans’ Affairs Compensation Claims Processing System’, Admin
Review, 56, June 2004, pp. 31–47; Australian Government, Automated
assistance in administrative decision-making: better practice guide, op.
cit. pp. 68–70.
[18]. Campbell,
‘The Department of Veterans’ Affairs Compensation Claims Processing System’,
op. cit., p. 34.
[19]. Ibid.,
p. 34.
[20]. Australian
Government, Automated assistance in administrative decision-making: better
practice guide, op. cit., p. 70.
[21]. DVA,
‘Terms and conditions
of entitlement self assessment’, DVA website, 6 February 2012.
[22]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Official
committee Hansard, 19 October 2016, p. 165.
[23]. Australian
Government, ‘Part
2: expense measures—veterans’ affairs’, Budget measures: budget paper
no. 2: 2016–17; DVA, ‘Key
2016–17 budget initiatives’, DVA website, May 2016.
[24]. DVA,
‘Key 2016–17 budget initiatives’, op. cit.
[25]. Ibid.;
Australian Government, ‘Part 2: expense measures—veterans’ affairs’, op. cit.
[26]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Official
committee Hansard, 19 October 2016, pp. 165–167.
[27]. Ibid.,
p. 146.
[28]. Social Security (Administration)
Act 1999 (Cth), subsection 208, 209; A New Tax System
(Family Assistance) (Administration) Act 1999 (Cth), ss. 168, 169; Paid Parental Leave
Act 2010 (Cth), section 128; Student Assistance Act 1973 (Cth), section 355 and 356.
[29]. Social Security
(Public Interest Certificate Guidelines) (DSS) Determination 2015 (Cth).
[30]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and
Other Measures) Bill 2016, pp. 12–13.
[31]. Military
Rehabilitation and Compensation Act 2004 (Cth), section 409; Military Rehabilitation
and Compensation Regulations 2004 (Cth), regulation 21.
[32]. MRCA,
section 406.
[33]. Safety,
Rehabilitation and Compensation Act 1988 (Cth), section 151A(1).
[34]. Ibid.,
section 151.
[35]. Inquiry
homepage, Senate Foreign Affairs, Defence and Trade Legislation Committee,
‘Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures)
Bill 2016 [provisions]’.
[36]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Veterans'
Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016
[provisions], The Senate, Canberra, 2017.
[37]. Ibid.,
p. 18.
[38]. Ibid.,
p. 19. Automated decision-making systems are currently the focus
of significant public and political interest, due to concerns with Centrelink’s
automated debt recovery system. See, for example: T McIlroy, ‘Centrelink
debt system faces growing chorus of criticism’, The Age, 3 January 2017,
p. 9 and C Knaus, ‘Centrelink
debt notices based on 'idiotic' faith in big data, IT expert says’, Guardian
Australia (online), 30 December 2016, The Commonwealth Ombudsman has
launched an own
motion investigation into the system and the Senate Community
Affairs References Committee is conducting an inquiry.
[39]. Labor
Senators, Additional
comments, Senate Foreign Affairs, Defence and Trade Legislation Committee, Veterans'
Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016
[provisions], The Senate, Canberra, 2017, pp. 21–22.
[40]. Nick
Xenophon Team, Additional
comments, Senate Foreign Affairs, Defence and Trade Legislation Committee, Veterans'
Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016
[provisions], The Senate, Canberra, 2017, pp. 23–24.
[41]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 10, 2016, The Senate, 30 November 2016.
[42]. Ibid.,
pp. 29–30.
[43]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 1, 2017, The Senate, 8 February 2017.
[44]. Ibid.,
pp. 95–96.
[45]. Ibid.,
p. 97.
[46]. Ibid.,
p. 98.
[47]. Vietnam
Veterans Association of Australia (VVAA), Submission
to Senate Foreign Affairs, Defence and Trade Legislation Committee, Inquiry
into the Veterans' Affairs Legislation Amendment (Digital Readiness and Other
Measures) Bill 2016 [provisions], 27 January 2017, p. 2.
[48]. War
Widows’ Guild of Australia Inc. (WWGA), Submission
to Senate Foreign Affairs, Defence and Trade Legislation Committee, Inquiry
into the Veterans' Affairs Legislation Amendment (Digital Readiness and Other
Measures) Bill 2016 [provisions], 27 January 2017.
[49]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and
Other Measures) Bill 2016, op. cit., p. 1.
[50]. The
Statement of Compatibility with Human Rights can be found at pages 2 to 5 of
the Explanatory
Memorandum to the Bill.
[51]. Parliamentary
Joint Committee on Human Rights, Report,
1, 2017, The Senate, Canberra, 16 February 2017, p. 54. See also: Parliamentary
Joint Committee on Human Rights, Report,
10, 2016, 30 November 2016, p. 17.
[52]. Items
2 and 4 insert into the MRCA and DRCA respectively, a
definition of Secretary as Secretary of the Department. In
accordance with section 19A of the Acts Interpretation
Act 1901 (Cth), the ‘Department’ is the Department ‘that is
administered by the Minister or Ministers administering that provision in
relation to the relevant matter, and that deals with that matter’—in this case,
DVA. There is currently no definition of Secretary in either the MRCA
or DRCA.
[53]. Item
1, proposed subsection 4A(1) of the MRCA; item 3, proposed
subsection 3A(1) of the DRCA; item 5, proposed subsection 4B(1)
of the VEA.
[54]. Item
1, proposed subsection 4A(2) of the MRCA; item 3, proposed
subsection 3A(2) of the DRCA; item 5, proposed subsection
4B(2) of the VEA.
[55]. Item
1, proposed subsection 4A(3) of the MRCA; item 3, proposed
subsection 3A(3) of the DRCA; item 5, proposed subsection 4B(3)
of the VEA.
[56]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and
Other Measures) Bill 2016, op. cit., p. 9.
[57]. Item
1, proposed subsection 4A(4) of the MRCA; item 3, proposed
subsection 3A(4) of the DRCA; item 5, proposed subsection 4B(4)
of the VEA.
[58]. Subclause
2(1), items 2 and 4 in column 1 of table.
[59]. Subclause
2(1), item 3 in column 1 of table. If Part 2 of Schedule 1 of the SRC Amendment
Bill does not commence, these provisions do not commence at all.
[60]. Item
1, proposed subsection 409A(1) of the MRCA; item 7, proposed
subsection 151B(1) of the DRCA; item 10, proposed subsection
131A(1) of the VEA.
[61]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and
Other Measures) Bill 2016, op. cit., p. 11.
[62]. Item
1, proposed subsections 409A(2) and (3) of the MRCA; item 7,
proposed subsections 151B(2) and (3) of the DRCA; item 10,
proposed subsections 131A(2) and (3) of the VEA.
[63]. Item
1, proposed subsection 409A(6) of the MRCA; item 7, proposed
subsection 151B(6) of the DRCA; item 10, proposed subsection
131A(6) of the VEA. Subsection 9 of each of these provisions further
provides that personal information has the same meaning as in the
Privacy Act 1988
(Cth), where it is defined under section 6 as ‘information or an opinion about
an identified individual, or an individual who is reasonably identifiable:
(a) whether the
information or opinion is true or not and
(b) whether the
information or opinion is recorded in a material form or not.
[64]. Item
1, proposed subsection 409A(7) of the MRCA; item 7, proposed
subsection 151B(7) of the DRCA; item 10, proposed subsection
131A(7) of the VEA.
[65]. Under
section 38 of the Legislation
Act 2003, legislative instruments must be tabled in each House within six
sitting days following registration on the Federal Register of Legislation. A
legislative instrument can be subject to disallowance if either a Senator or
Member of the House of Representatives moves a motion of disallowance within 15
sitting days of the day that the legislative instrument is tabled. The motion
to disallow must be resolved or withdrawn within a further 15 sitting days of
the day that the notice of motion is given.
[66]. Similar
amendments are not required for the MRCA or DRCA as the
Secretary does not have powers of delegation under these Acts.
[67]. Item
1, proposed subsection 409A(8) of the MRCA; item 7, proposed
subsection 151B(8) of the DRCA; item 10, proposed subsection
131A(8) of the VEA.
[68]. Commonwealth
Ombudsman, Supplementary
submission to Senate Foreign Affairs, Defence and Trade Legislation
Committee, Inquiry into the Veterans' Affairs Legislation Amendment (Digital
Readiness and Other Measures) Bill 2016 [provisions], 3 February 2017.
[69]. Ibid.
[70]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and
Other Measures) Bill 2016, op. cit., p. 15.
[71]. Clause
2, items 5 to 7 in table. If Part 2 of Schedule 1 of SRC Amendment Bill does
not come into effect, items 3 to 8 will not commence at all.
[72]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and
Other Measures) Bill 2016, op. cit., p. 18.
[73]. Clause
2, item 8 in the Table. Item 1 will not commence at all if Part 2 of
Schedule 1 of the SRC Amendment Bill does not come into effect.
[74]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and
Other Measures) Bill 2016, op. cit., p. 17.
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