Introductory Info

Date introduced: 27 August 2020
House: House of Representatives
Portfolio: Attorney-General
Commencement: Both commence on the day after Royal Assent.

Bills Digest at a glance

Purpose of the Bill

Over the last two decades the provision of services supporting the mental health and wellbeing of serving and ex-serving members of the military has undergone a number of reviews and policy changes. In recent years there has been an ongoing campaign by advocates calling for a Royal Commission to improve this support and investigate suicides by serving and ex-serving members.

The purpose of the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020 (the Bill) is to create an Act establishing the new position of National Commissioner for Defence and Veteran Suicide Prevention (the Commissioner) with the authority to examine suicide deaths of defence members and veterans.

Stakeholder comments

The majority of interest groups welcomed the Government’s February 2020 announcement of the creation of the position of National Commissioner for Defence and Veteran Suicide Prevention and have done so again in submissions to the Senate Foreign Affairs, Defence and Trade Inquiry into the current Bills.

However, this general support is qualified by reservations relating to the independence of the Commissioner. Some submitters made recommendations meant to strengthen the functioning of the Commissioner’s role. The Bills Digest examines those elements of the office of the Commissioner which are indicators of independence.

Importantly, not all veterans groups have expressed support for the establishment of the Commissioner by the Bill. Some organisations and individuals continue to advocate for a Royal Commission believing it to be more independent. There is a perception by many in the veterans community that DVA and the Australian Defence Force cannot be relied on to investigate suicides because they themselves might have played a role in a decision of a veteran to end their own life. This has left many in the veterans community with a deep sense of mistrust which the Commissioner will need to acknowledge as she goes about her duties.

Provisions

This Bills Digest sets out the range of powers which will be vested in the Commissioner. These include the power to summons a person to give evidence at a hearing and to take that evidence under oath or affirmation at either a public or private hearing. The Commissioner may also require a person, by written notice to give the Commissioner information, or a statement referred to in the notice or to produce to the Commissioner the documents or things referred to in the notice.

These powers are underpinned by a range of criminal offences and penalties including imprisonment where a person fails to comply.

These powers are to be tempered by the requirement that the Commissioner take a trauma-informed and restorative approach; and to recognise that families and others who are affected by defence and veteran suicide deaths make a unique contribution and may wish to be consulted.

Purpose of the Bills

This Bills Digest relates to two Bills.

The purpose of the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020 (the Bill) is to create an Act establishing the new position of National Commissioner for Defence and Veteran Suicide Prevention (the Commissioner) with the authority to examine suicide deaths of defence members and veterans.

The National Commissioner for Defence and Veteran Suicide Prevention (Consequential Amendments) Bill 2020 (Consequential Amendments Bill) amends the Freedom of Information Act 1982 and the Inspector-General of Intelligence and Security Act 1986 to include references to the National Commissioner for Defence and Veteran Suicide Prevention and provide the authority for the Commissioner to access certain information.

Inquiries and studies

Over the last two decades the provision of services supporting the mental health and wellbeing of serving and ex-serving members of the military has undergone a number of reviews and policy changes.[1] In recent years there has been an ongoing campaign by advocates calling for a Royal Commission to improve this support and investigate suicides by serving and ex-serving members. This was amplified in 2014 when Senator Jacqui Lambie, in her first speech to Parliament, called for a Royal Commission stating there is an ‘obscenely high suicide rate in our young veterans’.[2] Senator Lambie asserted that a Royal Commission would have the necessary powers and capacity to look into the circumstances surrounding suicides of serving and ex-serving ADF members.[3]

By 1 September 2016 concerns about the number of suicides by serving and ex-serving ADF personnel had been referred to the Senate Foreign Affairs, Defence and Trade References Commission for inquiry (2016 Committee).[4] The 2016 Committee report The Constant Battle: Suicide by Veterans was tabled in August 2017 and noted:[5]

Some argued for the establishment of a Royal Commission. For example, the Royal Commission into DVA Working Group had “no faith in the current senior and middle management of DVA’s capability to rectify over a decade of neglect, we consider the only option to be a Royal Commission that can make binding legal directions to DVA looking into all aspects of the Repatriation System, Defence Transitions and the Wider Veteran Landscape including ESOs [ex-service organisations]”.[6]

While the Committee report noted these arguments, a Royal Commission was not included in the list of 24 recommendations.[7] Rather, the 2016 Committee recommended further inquiry by the Productivity Commission into ‘governance arrangements’, ‘administration processes’ and ‘service delivery’ as well as a performance audit by the Australian National Audit Office (ANAO) into the efficiency of veterans’ services provided by DVA.[8]

The Productivity Commission report A better way to support veterans was delivered to Government on 27 June 2019 and publicly released on 4 July 2019. The inquiry found:

… the suicide rate for veterans is higher than the general population. Suicide has caused more deaths for contemporary Australian Defence Force (ADF) personnel than overseas operational service — between 2001 and 2016, there were 59 deaths of ADF personnel on deployment and 373 suicides in serving, reserve and ex-serving ADF personnel.[9]

The most recent study into incidences of suicide among serving and ex-serving ADF members, including reservists, by the Australian Institute of Health and Welfare (AIHW) found 465 suicides among this cohort between 2001 and 2018.[10] The October 2020 AIHW report noted that 57 per cent (267) of these suicides occurred among the ex-serving ADF community.[11]

Government announcement on defence and veteran suicide prevention

On 5 February 2020 the Government announced the formation of a new independent body led by a permanent National Commissioner for Defence and Veteran Suicide Prevention that has the ‘power, scope and resources to investigate suicides and related issues’ as opposed to conducting a ‘one-off review’.[12] The Prime Minister, Scott Morrison, declared that Commissioner will be:

… empowered with the authorities of royal commissioner-like authorities [stet] to compel evidence to be provided. To sit independently, they'll ultimately sit within the Attorney-General's Department. They'll have the ability to call witnesses, compel evidence and have the remedies available to those who won't cooperate. It'll extend out into the private sphere, whether that be associations, whether it's the Defence Department itself, whoever needs to be asked of a matter in relation to one of our veterans who have taken their own lives, they'll be asked those questions by that independent National Commissioner.[13]

In addition, the Prime Minister stated that the Government opted to create a permanent Commissioner with royal commission-like powers rather than a royal commission because he ‘didn’t think a one off review into the past was enough’ and the challenges are ongoing therefore the response should to be ongoing.[14] The Commissioner was expected to commence an ‘immediate, independent review of historical veteran suicide cases’ and deliver an interim report within 12 months. It was unclear from what point—the passing of the Bill, the appointment of an interim commissioner or date of commencement of the Commissioner—this 12 month period would commence.[15] At the time of the Government’s announcement the Prime Minister said a new commissioner would be announced ‘in due course’.[16]

Interim National Commissioner

A National Commissioner cannot be appointed until the statutory position is created by the enactment of this Bill. During the 4 March 2020 Senate Additional Estimates hearing DVA Secretary, Liz Cosson, noted that an interim commissioner would be appointed prior to the introduction of legislation to allow work to commence on the literature review and review of previous cases. The interim commissioner would not have royal commission-like powers until the relevant legislation is enacted.[17] Cosson also confirmed the interim report would be delivered in 12 months and the final report in 18 months starting from the date of the interim commissioner’s commencement. Both reports would be tabled in Parliament.[18]

On 30 September 2020 the Government announced the appointment of Dr Bernadette Boss CSC as interim National Commissioner for Defence and Veteran Suicide Prevention.[19] The Government media release explains:

Dr Boss holds a PhD from the University of Sydney and has practiced as a barrister in Australia and the United Kingdom, primarily in the areas of family law, criminal law, administrative law and human rights law.

Since 2012, she has served as a Magistrate and Coroner of the Australian Capital Territory Magistrates Court and has also served in various command and staff roles in the ADF where she was awarded a Conspicuous Service Cross.[20]

Dr Boss’ role is expected to be formalised on the passing of these Bills. As the interim National Commissioner, Dr Boss will commence the Independent Review of Past Defence and Veteran Suicides, which, according to the Terms of Reference:

… will predominantly focus on deaths by suicide among ADF members and veterans who have had one day or more of service since 1 January 2001, where the death occurred between 1 January 2001 and 31 December 2018, as this is the period for which the most comprehensive and robust data and information is available. However, the National Commissioner will be able to include other cases as they consider appropriate.[21]

Dr Boss was expected to commence in the role on 16 November 2020, on secondment from the ACT since she cannot be paid directly by the Commonwealth until a statutory position is created.[22] An interim report is scheduled for delivery to the Government within 12 months of commencing the review and a final report with recommendations within 18 months. The Government will table a formal response to the final report and the National Commissioner will monitor the implementation of agreed recommendations.[23]

As the Terms of Reference make clear, the Interim Commissioner will only be able to exercise Royal commission-like powers once the Bill is enacted; until then, the Interim commissioner will not have any effective powers of compulsion.[24]

State and territory consultation

The involvement of state and territory coroners requires an agreement between the coroners and the national commissioner.[25] The Prime Minister took a proposal to the 13 March 2020 Council of Australian Governments (COAG) meeting seeking support for the new national commissioner. The leaders agreed to the proposal and ‘asked the COAG Council of Attorneys-General (CAG) to finalise arrangements, in consultation with chief coroners’.[26]

At the last CAG meeting, held on 27 July 2020, participants agreed to consult with the Council of Chief Coroners to establish a National Coronial Centre for Defence and Veteran Suicides to assist Coroners in their understanding of issues related to defence and veteran suicides and supporting the new commissioner with further inquiries.[27]

Committee consideration

Senate Standing Committee for the Selection of Bills

In its report of 3 September 2020 the Selection of Bills Committee recommended the provisions of the Bills be immediately referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee (the SFADT Committee) for inquiry however agreement on a reporting date was not reached.[28] Senator Lambie originally proposed that the SFADT Committee report on 27 August 2021.[29] On 3 September 2020 Senator Lambie proposed the date be amended to 24 April 2021 and the Government proposed 30 November 2020. Both proposals resulted in a divided Senate and were negatived.[30]

The Selection of Bills Committee proposed referring the Bills to the SFADT Committee to allow consideration of the interim Commissioner’s literature review results. The interim Commissioner had not been appointed at the time. The proposal stated that the review results would better inform the SFADT Committee’s consideration of the design of the new Commissioner’s functions. The proposal suggested a reporting date of 24 April 2021.[31]

Subsequently, the Selection of Bills Committee proposed that the SFADT Committee honour the 12 month reporting timeframe (as announced by the Government in February 2020) to allow the interim Commissioner enough time to produce the interim report.[32] Nevertheless, the timeframes proposed by the Selection of Bills Committee would not provide the SFADT Committee with enough time to consider the results of the interim Commissioner’s initial review.

Senate Foreign Affairs, Defence and Trade Legislation Committee

The Bills have been referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry. The reporting date of 30 November 2020 was decided by the SFADT Committee.[33] At the time of writing this Bills Digest, the SFADT Committee had received 24 submissions.

Senate Standing Committee for the Scrutiny of Bills

In its Scrutiny Digest 12 of 2020, the Scrutiny of Bills Committee stated that it had no comment on the Consequential Amendments Bill. However, the Scrutiny of Bills Committee sought more detailed advice and justification from the Attorney-General on certain provisions of the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020. In particular, the Attorney-General proposed:

• significant criminal penalties under Part 4
• contempt offence in subclause 52(2)
• offence-specific defences in subclauses 45(4) and 49(5) and clause 58 in relation to ‘peculiarly within the knowledge of the defendant’ and the use of ‘reasonable excuse in subclauses 45(3) and 49(3)’
• abrogation of legal professional privilege in subclause 48(5) and
• abrogation of ‘the privilege against self-incrimination without also providing a derivative use immunity’ in subclause 50(1).[34]

The Attorney-General provided a detailed response which was considered by the Scrutiny of Bills Committee in the formation of its Scrutiny Digest 14 of 2020.[35] With regard to the points noted above, the Committee noted the following:

• Significant criminal penalties and contempt offence – The Committee requested the Minister table in Parliament an addendum to the Explanatory Memorandum ‘noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901)’. The Committee made no further comment on these matters.[36]
• Offence-specific defences – As above, the Scrutiny of Bills Committee requested that the Minister table in Parliament an addendum to the Explanatory Memorandum in line with section 15AB of the Acts Interpretation Act 1901. The Committee made no further comment in regard to subclauses 45(4) and 49(5) as well as subclauses 45(3) and 49(3) of the Bill. However, the Committee draws Senators attention to clause 58 ‘and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in this instance’. The Scrutiny of Bills Committee noted that it remains unclear that the information on which the reversal of the evidential burden of proof in clause 58 is based is ‘peculiarly within the knowledge of the defendant’.[37]
• Legal professional privilege – While the Scrutiny of Bills Committed noted the Attorney-General’s advice on this matter, the Committee stated:

  … that legal professional privilege is not merely a rule of substantive law but an important common law right which is fundamental to the administration of justice. The committee considers that abrogating legal professional privilege may unduly trespass on individual rights, as to do so may interfere with legitimate, confidential communications between individuals and their legal representatives. The committee therefore considers that it should only be abrogated or modified in exceptional circumstances.

  From a scrutiny perspective, the committee remains concerned that information that is properly subject to legal professional privilege may be inappropriately disclosed in circumstances where the Commissioner wrongly rejects a claim of legal professional privilege. However, the committee also notes the Attorney-General's advice that the approach taken in the bill is intended to give weight to the public benefit in equipping the Commissioner with appropriate powers of inquiry. While acknowledging this advice, the committee remains of the view that there are insufficient legislative safeguards to ensure that legal professional privilege is only abrogated in appropriate circumstances.[38]

The Committee requested that the Minister table in Parliament an addendum to the Explanatory Memorandum in line with section 15AB of the Acts Interpretation Act and drew Senators attention to clause 58 and left ‘to the Senate as a whole the appropriateness of abrogating legal professional privilege in circumstances where there are limited safeguards on the face of the bill to ensure that any abrogation is appropriate’.[39]

• Privilege against self-incrimination – The Scrutiny of Bills Committee’s view is:

  … any justification for abrogating the privilege will be more likely to be considered appropriate if accompanied by a use and derivative use immunity. The committee notes that the privilege against self-incrimination is a fundamental common law right and, from a scrutiny perspective, the committee does not generally consider that the hindering of law enforcement investigations is a sufficient justification for not providing a derivative use immunity in circumstances where the privilege is abrogated.

  The committee leaves to the Senate as a whole the appropriateness of abrogating the privilege against self-incrimination in circumstances where a derivative use immunity is not provided.[40]

Policy position of non-government parties/independents

Independents and Australian Greens

Senator Lambie’s concerns about the form of the proposed Commission are on record. She has stated that she would prefer a Royal Commission.

Let's not forget that we have a Minister for Veterans’ Affairs who thinks a royal commission would be a waste of money; he supports a national commissioner. The Department of Veterans’ Affairs was flatly opposed to a royal commission; it supports a national commissioner. The RSL has criticised the idea of a royal commission as being costly and unwarranted; it supports a national commissioner. You have to ask yourself: if there's nothing different between a royal commission and a national commissioner, why do DVA, the RSL and its president and the minister all like the national commissioner but not the royal commission?[41]

Senator Lambie also co-sponsored a motion in the Senate which called on the Government to establish a Royal Commission. The motion was cosponsored by Senator Hanson, Senator Siewert, Senator Steele-John, Senator Patrick and Senator Marielle Smith.

Federal Member for Kennedy Bob Katter has demanded that the proposed Commission be composed of former serving soldiers rather than high ranking officers or public servants.[42]

Independent Member Andrew Wilkie would also like to see a Royal Commission.

I am an advocate for a royal commission. I think these bills are a missed opportunity for a detailed and comprehensive review of Defence and veteran suicide. For a start, the powers of the commissioner as laid out in the legislation simply do not go far enough, nor is the commissioner independent enough. Indeed, by its statutory nature the commissioner will be restricted by the legislation and simply not have the inherent flexibility that an ad hoc inquiry like a royal commission would have.[43]

Australian Labor Party (ALP)

The ALP supported the Government’s announcement that a position of National Commissioner would be created but stated its desire that the Commissioner would have all the powers of a Royal Commission.

As always, the devil will be in the detail and Labor awaits the release of draft enabling legislation to ensure it delivers what the Government has promised. It is crucial that the Commissioner has all the powers of a Royal Commission, including the ability to launch own motion investigations, compel evidence and summon witnesses, and conduct public and private hearings.[44]

The ALP, in the past, has called for a Royal Commission into veteran’s suicide on a number of occasions.[45]

According to Shayne Neumann, ‘Labor will not be opposing these bills in the House. But we reserve our position until we see the outcome of the Senate inquiry into these bills’.[46]

Position of major interest groups

The majority of major interest groups welcomed the Government’s February announcement of the creation of the position of National Commissioner and have done so again in submissions to the SFADT Committee Inquiry into the current Bills. Some have reservations relating to the independence of the Commissioner and others have made a number of recommendations meant to strengthen the functioning of the National Commissioner.

The most common issues raised in submissions to the SFADT Committee Inquiry and to the public consultation process about the Bills which was run by the Attorney-General’s Department were:

• the need to ensure the independence of the person appointed as Commissioner and the staff who support that person
• a number of submissions noted the need for strict timeframes within which Defence and DVA must respond to recommendations made by the National Commissioner
• a requirement for sensitivity to the needs of people who give evidence to the Commissioner
• many submissions argue for the inclusion of input from people who have attempted to end their lives
• a number of submissions argued that a role of National Commission should be created only after a Royal Commission had taken place
• some submissions expressed misgiving about the ability of the National Commissioner to conduct the promised retrospective assessment of deaths by suicide within the time available and given the resources available to the Commissioner.

Specifically, the Returned and Services League (RSL) welcomed the Government’s announcement of the creation of the National Commissioners position.[47] The New South Wales Branch of the RSL also supported the move. In a submission to the public consultation process run by the Attorney‑General’s Department the Traralgon Branch of the RSL disagreed stating that the position should not be created prior to the holding of a Royal Commission.[48]

The Defence Force Welfare Association welcomed the Prime Minister’s February 2020 announcement of the intention to create the role of Commissioner.[49] They reiterated this welcome in their submission to the Senate Foreign Affairs, Defence and Trade Inquiry into the Bill. In doing so, the DFWA noted the need for urgency in establishing the position and ‘commencing the task towards a more considered transition process’.[50] While agreeing that the powers granted to the Commissioner are appropriate the DFWA:

• noted the importance of protecting the Commissioner from political interference
• in similar vein, the DFWA feels that it is important that ‘employment powers’ are not used to influence the staff of the Attorney-General’s department who are seconded to the Commission.

The Royal Australian and New Zealand College of Psychiatrists also welcomed role of National Commissioner but also emphasised the need for the person holding the role to be independent of the Department of Defence and the Department of Veterans Affairs.[51] Further, the College stated that a formal panel of mental health experts should be formed in order to provide advice to the National Commissioner.

The submission to the SFADT Committee inquiry into the Bills by the Royal Australian Regiment Corporation appears to be supportive of the role of the Commissioner but also expressed some misgivings about potential problem with the independence of the person appointed:

We are of the firm view that the Commissioner should not be ex-military … military loyalty runs deep and if a sensitive issue the Commissioner if an ex one or two-star, should not be put in that position.[52]

The Vietnam Veterans Federation of Australia also stated their satisfaction with the Bill noting that they were ‘reasonably satisfied’ with the framework set out in the Bill.[53] The Association also advocated for adequate support to be provided to people dealing with the National Commissioner in the aftermath of a suicide and that Defence and Veterans Affairs should be compelled to adhere to strict time deadlines when implementing recommendations made by the National Commissioner.[54]

Youth mental health organisation Orygen welcomed the Australian Government’s announcement that the position of National Commissioner would be created stating that it would be a first step to creating a better process for the support that young veterans need in order to successfully transition to post-service life.[55]

However, not all veterans groups have supported the Government’s announcement. Some organisations and individuals continue to advocate for a Royal Commission believing it to be more independent. In its submission to the FADT Inquiry the Hawthorne RSL calls for a Royal Commission that is independent and with a defined reporting date.[56] The Hawthorne RSL also calls for the inclusion of veterans who have attempted to end their lives in order to allow their experiences to be taken into account by the National Commissioner.

Financial implications

According to the Explanatory Memorandum to the Bill:

$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 ADF member and veteran deaths by suicide, to be led by the National Commissioner.[57]

They also include funding for a dedicated legal financial assistance scheme which is discussed further below.

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 Bills are compatible.[58]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considered the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020 on 24 September 2020.[59] In order to form a conclusive view on the Bill’s human rights compatibility, the Committee sought clarification from the Attorney-General on the following points:

(a) whether the Commissioner must have regard to the principles in clause 12 (of taking a trauma-informed and restorative approach) prior to exercising any of their powers, including the power to summon a person to give evidence, or to provide a document or thing;

(b) if the performance of any of the Commissioner's functions or powers would be subject to review, in particular, whether a person could seek merits review of a decision to issue a summons (and if not, how this is compatible with the right to an effective remedy);

(c) why the bill does not set out additional criteria as to what the Commissioner must consider in determining whether, pursuant to clause 56, to disclose information provided to them to other entities (such as, for example, the public interest in disclosing such information and the right to privacy of any affected person);

(d) according to what criteria the Commissioner may determine whether legal professional privilege attaches to a communication in relation to which the privilege has been claimed;

(e) whether a lawyer who had been summoned or notified to provide advice to the Commissioner would be exposed to risk of a penalty under Part 4 of the bill, where their client has claimed legal professional privilege with respect to the relevant communications (noting that only a client may waive legal professional privilege); and

(f) why the bill does not provide an individual with a derivative use immunity with respect to information which they are compelled to disclose to the Commissioner, including having regard to the proposed functions of the Commissioner.[60]

The Attorney-General provided a detailed response to the Committee on 13 October 2020.[61] The Committee reported its concluding comments on 13 November 2020, broadly accepting the Attorney-General’s response.[62] However, the Committee remains concerned about whether the Bill provides sufficient safeguards to protect the right to privacy, particularly in relation to the coercive information-gathering and disclosure powers contained in the Bill. The Committee recommended the Bill be ‘amended to provide that the Commissioner must:’

• have regard to guidelines as to the exercise of the Commissioner's compulsory information-gathering powers under clauses 30 to 32, which should provide that in considering whether to exercise these powers the Commissioner must have regard to whether the information may be obtained non-compulsorily, and after having considered an individual's right to privacy and the public interest; and
• when considering whether to disclose protected information under clauses 56 and 57, consider how much the privacy of any person or persons would be likely to be interfered with by the disclosure of this information, as balanced with the public interest in such disclosure.[63]

Key issues and provisions

Establishing the position of Commissioner

Clause 10 in Part 2 of the Bill establishes the position of the National Commissioner for Defence and Veteran Suicide Prevention (the Commissioner). The Commissioner will be ‘an independent statutory officer holder within the Attorney-General’s portfolio’.[64] APS employees in the Attorney‑General’s Department and/or persons engaged as contractors will assist the Commissioner.[65]

Submission to the Senate Committee from the Attorney-General’s Department sets out how these provisions will operate in practical terms:

The National Commissioner will be administratively housed within the department, while remaining independent in the exercise of their statutory functions. Staff will be made available to the National Commissioner by the Secretary of the Department … The department will provide support to the National Commissioner in areas such as human resources, property, facilities, information technology and security.

The Office of the National Commissioner will be led by an Official Secretary and is currently being established. The Office will comprise staff with multi-disciplinary skillsets as required, including expertise in areas of legal inquiries, counsel assisting, policy, mental health and suicide prevention, counselling, community engagement, facilitation, communications, logistics and administration.[66]

The Office of the National Commissioner now has an official website, however, at the time of writing it did not state whether an Official Secretary had yet been appointed.

Stakeholder comments

The Royal Australian Regiment Corporation (RARC) stated that it is of ‘the firm view that the Commissioner appointed should not be ex-military’.[67] Instead RARC expressed its preference for:

… an eminent person from the legal profession who understands the complexities across State and Territorial boundaries and Coronial Inquiries, and most importantly can reach into the ADF Courts of Inquiry when an individual has committed suicide on ADF property.[68]

On 30 September 2020, Dr Bernadette Boss was appointed as interim Commissioner. According to Minister for Veterans’ Affairs, Darren Chester:

… Dr Boss started her career as a nurse, completing a Bachelor of Science in London and later studying law. She had a distinguished military career and has held inquests and hearings into complex deaths, including suicides. As a current Magistrate and Coroner in the Australian Capital Territory, Dr Boss has the skills and expertise to examine these tragic instances of ADF and veteran suicides to understand practical actions to reduce suicide risk.[69]

Terms and conditions of appointment

Clause 16 in Part 2 of the Bill provides that the Commissioner is appointed by the Governor-General by written instrument. The person who is appointed as Commissioner must be suitable for appointment, in the Governor-General’s opinion, based on the person’s qualifications, training or experience.

Under the instrument of appointment the Commissioner holds office on a full-time basis for a period not exceeding five years—although additional periods of appointment are permitted.[70]

The Commissioner may resign the appointment by giving the Governor-General a written resignation.[71] Alternatively the Governor-General may terminate the appointment of the Commissioner on the grounds of misbehaviour or because the Commissioner is unable to perform his, or her, duties.[72]

The Governor-General must terminate the appointment if:

• the Commissioner commits an act of bankruptcy
• the Commissioner is absent for 14 consecutive days or for 28 days in any 12 months (other than a leave of absence)
• the Commissioner engages in paid work outside of the duties of his, or her, office (other than with the Minister’s approval[73]) or
• the Commissioner fails, without reasonable excuse, to comply with the duty to disclose interests which is required under section 29 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).[74]

The Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal in accordance with the Remuneration Tribunal Act 1973.[75]

Independence of the Commissioner

It appears that the most contentious issue for stakeholders is whether the Commissioner will be ‘independent’.

There a number elements of the Bill which are indicative of independence. First, the Commissioner is a statutory office holder who is an official for the purposes of the PGPA Act.[76] Sections 25–29 of the PGPA Act impose on officials the following duties:

• the duty of care and due diligence
• the duty to act honestly, in good faith and for a proper purpose
• the duty in relation to use of position and
• the duty to disclose interests.

These duties hold the Commissioner to a high standard.

Second, the Commissioner cannot be terminated unless certain conditions, specified in the Bill, are satisfied. This means that the Commissioner is unlikely to be terminated for undertaking those parts of his, or her, functions that may seem to be politically uncomfortable—for instance where the Commissioner reviews action (or inaction) taken in response to any of his, or her, findings or recommendations.

Third, the Commissioner’s remuneration is set by the Remuneration Tribunal so that it is not dependent on a member of the executive government.

Fourth, the position of Commissioner sits within the Attorney-General’s Department thereby distancing the position from any potential interference by persons in either the Department of Defence or the Department of Veterans’ Affairs.

Functions of the Commissioner

Subclause 11(1) of Part 2 of the Bill provides that the Commissioner has the following functions:

• to inquire into the circumstances of defence and veteran deaths by suicide (called the inquiry function)[77]
• to make findings and recommendations following such inquiries, including recommendations about the wellbeing of defence members and veterans and defence and veteran suicide prevention strategies; and about any policy, legislative, administrative or structural reforms
• to review action taken in response to any findings or recommendations made by the Commissioner
• to work collaboratively with State or Territory Coroners to understand issues contributing to defence and veteran deaths by suicide
• to maintain a record of defence and veteran deaths by suicide notified to the Commissioner
• to promote understanding of suicide risks for defence members and veterans and factors that can improve the wellbeing of defence members and veterans
• to consider any matter related to the above functions referred to the National Commissioner by the Prime Minister or the Minister and
• to do anything incidental or conducive to the performance of any of the above functions.

Stakeholder comments

Many of the submitters to the Senate Committee felt that the requirement to inquire into the circumstances of defence and veteran deaths by suicide does not go far enough and that the Commissioner should also inquire into circumstances where there has been an unsuccessful suicide attempt.[78]

However, it is conceivable that the Commissioner’s function ‘to promote understanding of suicide risks for defence members and veterans and factors that can improve the wellbeing of defence members and veterans’ may encompass matters relating to this concern.

General principles

Clause 12 in Part 2 of the Bill sets out the general principles to be followed by the Commissioner in undertaking those functions. First, the Commissioner is to take a trauma-informed and restorative approach. Second, the Commissioner is to recognise that families and others who are affected by defence and veteran suicide deaths have a unique contribution to make and may wish to be consulted.

These functions and general principles are consistent with the objects of the National Commissioner for Defence and Veteran Suicide Prevention Act (when enacted).[79]

Trauma-informed approaches emerged partly in response to research demonstrating that trauma is widespread across society, that it is highly correlated with mental health and that this is a costly public health issue. The fundamental shift in providing support using a trauma-informed approach is to move from thinking ‘What is wrong with you?’ to considering ‘What happened to you?’.[80] [emphasis added]

The joint submission from Mental Health Australia and Suicide Prevention Australia states that ‘the role and activities of the Commissioner will, in and of themselves, support recovery: the act of sharing stories of lived experience can destigmatise suicide and support the journey of recovery’.[81] Similarly, the Royal Australian and New Zealand College of Psychiatrists (RANZCP) expressed its support for the Commissioner taking ‘a restorative and trauma-informed approach with families’ stating that ‘this approach is recognised by psychiatrists as an effective measure’.[82]

Matters outside the Commissioner’s functions

Importantly, the Bill makes clear that the Commissioner’s functions do not include making findings of civil or criminal wrongdoing. Nor is it one of the Commissioner’s functions to make findings about the cause of death in relation to a death by suicide.[83]

Further, in the performance of his or her functions, the Commissioner must avoid prejudicing current or future civil or criminal proceedings or other contemporaneous inquiries.[84]

Undertaking the inquiry function

The Commissioner may undertake the inquiry function on his or her own initiative.[85] That is, it is not necessary for a particular matter to be referred to the Commissioner. In undertaking that function in relation to a defence member or veteran who has, or is suspected to have, died by suicide the Commissioner may inquire into a broad range of matters. These include but are not limited to:

• the person’s service in the ADF (including training, and, for a person who has ceased serving in the ADF, the person’s transition from the ADF)
• issues (including relevant personal circumstances) connected to the manner or time in which the person was recruited to the ADF. For a person who has ceased serving in the ADF—the manner or time in which the person transitioned from the ADF
• the availability of health, wellbeing and counselling support services to the person in the person’s capacity as a defence member or veteran and the effectiveness of any such services
• the quality and effectiveness of responses to any complaints made by the person or the person’s family, friends or associates in relation to the health and wellbeing of the person or the person’s access to support services
• the extent to which the circumstances of the death reflect broader or systemic issues contributing to defence and veteran death by suicide rates, having regard to the circumstances of other defence and veteran deaths by suicide and
• any other matter the Commissioner considers relevant and reasonably incidental to defence and veteran deaths by suicide.[86]

Information gathering powers

Part 3 of the Bill provides a range of avenues by which the Commissioner may gather information.

The extent and efficacy of the Commissioner’s information gathering powers has been a matter of significant concern to submitters to the Senate Committee. Nikki Jamieson, mother of Private Daniel Steven Garforth who died by suicide in 2014 whilst serving in the Australian Army expressed those concerns and posed relevant questions as follows:

Engagement from key agencies such as ADF and DVA is critical when investigating veteran suicide. Historically these two agencies are limited in their information sharing willingness and capacity. The split in responsibility between DoD, ADF and DVA for the lifetime wellbeing of veterans also needs to be addressed as these departments are major stakeholders in veteran mental health and wellbeing and do not often align or share information relevant to the veterans as noted in the recent Productivity Commission. Therefore, an area of concern is a) how will responsible agencies be forced to provide relevant and true accounts of information and b) when they do not comply, how will enforceable action be managed, monitored, and reported? The Bill does not provide enough information on how it conducts accurate and transparent information collection from these two key agencies, nor is enough information provided on how agencies will be penalised/prosecuted for misleading and or withholding information relevant to previous and or future veteran suicide.[87] [emphasis added]

According to the Explanatory Memorandum to the Bill:

The Commissioner’s information gathering powers include compelling the production of documents and written statements, convening public and private hearings, and summoning persons to attend a hearing to give evidence under oath or affirmation. These powers are closely modelled on the equivalent powers of a Royal Commission under the Royal Commissions Act 1902 (Cth), and are supported by similar criminal penalties.[88]

Annexure A to this Bills Digests sets out in table form, a comparison of the powers of the Commissioner under this Bill with the powers of a Royal Commissioner under the Royal Commissions Act 1902.

Conduct of hearings

Public hearings

Clause 27 in Part 3 of the Bill provides that the Commissioner may hold a public hearing for the purposes of performing his, or her, functions. In that case, the Commissioner is not bound by the rules of evidence. In addition, the procedure to be followed is the procedure that the Commissioner thinks fit—although a record of the hearing must be made.

The ability to seek information without being bound by the rules of evidence is important to the effective operation of the inquiry function by the Commissioner. It will allow the relatives and family of the deceased to provide hearsay evidence and is consistent with the general principles that require the Commissioner to take a ‘restorative approach’.[91] However, it is balanced by the offences arising under the Crimes Act 1914 for giving false testimony and of fabricating evidence which are discussed below.

Private hearings

Clause 28 in Part 3 of the Bill sets out two exceptions to the general rule that a hearing is to be held in public. The exception provides that a hearing, or part of a hearing, may be held in private.

The first circumstance is where the Commissioner is satisfied that personal and private information about a deceased person or their family, friends or associates may be disclosed at the hearing.[92] The second circumstance is where the Commissioner is satisfied that a person appearing at the hearing may give evidence that discloses operationally sensitive information.

Private hearings—operationally sensitive information

The Bill contains definitions for the purpose of the second circumstance. The term operationally sensitive information means:

• information about information sources or operational activities or methods available to a law enforcement or security agency
• information about particular operations that have been, are being or are proposed to be undertaken by a law enforcement or security agency, or about proceedings relating to those operations or
• information provided by a foreign government, or by an agency of a foreign government, where that government does not consent to the public disclosure of the information.[93]

The term law enforcement or security agency means any of the following agencies:

• the Australian Defence Force
• the Australian Federal Police
• the Australian Crime Commission
• the Home Affairs Department
• the police force of a State or Territory
• any other agency prescribed by the rules for the purposes of this definition.[94]

Deciding whether to hold a private hearing

In either circumstance, the Bill prescribes those matters to which the Commissioner must have regard in deciding whether to hold a private hearing. Those matters are:

• the potential risk of prejudice to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004), or to the operations of a law enforcement or security agency[95]
• whether holding the hearing in private would have a substantial adverse effect on the exercise or performance of the Commissioner’s functions or powers
• if the Commissioner invites submissions—any submissions received in response
• the safety and security of any person
• whether legal professional privilege, or any other immunity, privilege or restriction may apply to the disclosure of the information and
• any other matters the Commissioner considers relevant.[96]

Requirement for consultation

Where a person provides information in a private hearing, the Commissioner must afford natural justice to those persons or agencies whose conduct may have been called into question in the evidence that has been given. That being the case, clause 29 in Part 3 of the Bill requires the Commissioner to consider the following:

• whether to consult the witness, and any other person whose interests are affected by the evidence that has been given
• whether there is a potential risk of prejudice to a person who has not been consulted before using or disclosing information given at a private hearing and
• whether the witness has communicated a particular preference to the Commissioner.

In addition, where a private hearing is being held because evidence may disclose operationally sensitive information, the Commissioner must consult any law enforcement or security agency to which the evidence relates. That done, the Commissioner must consider the following:

• any information received from the agency following the consultation
• whether there is a potential risk of prejudice to national security and
• the safety and security of any person.[100]

Requirement to attend a hearing

Clause 30 in Part 3 of the Bill empowers the Commissioner to summon a person, by way of written notice, signed by the Commissioner and served on the person, to attend a hearing at a specified time and place. The specified time must be at least 14 days after the day on which the notice is given.[101] Subclause 45(1) provides that a person commits a criminal offence if the person has been given a notice under clause 30 to attend a hearing and the person fails to comply with the notice. It is a defence for the person to prove they had a reasonable excuse.[102]

The summons may require a person to give evidence or to produce documents or things which are specified in the notice. The 14 day time-limit may be abridged if the Commissioner reasonably believes that the circumstances to which the notice relates are urgent or serious.[103]

Where the Commissioner gives the notice of summons to an official of a Commonwealth entity, the Commissioner must give a copy of the notice to the accountable authority of the Commonwealth entity.[104] However, if the official performs duties in, or services for, an Australian intelligence entity a copy of the notice is to be given to the head of the Australian intelligence entity. For the purposes of the Bill, the head of the Australian intelligence entity is:

• in relation to the Australian Security Intelligence Organisation—the Director‑General of Security
• in relation to the Australian Secret Intelligence Service—the Director‑General of the Australian Secret Intelligence Service
• in relation to the Australian Signals Directorate—the Director‑General of the Australian Signals Directorate
• in relation to the part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation—the Director of that part of the Department
• in relation to the part of the Defence Department known as the Defence Intelligence Organisation—the Director of that part of the Department or
• in relation to the Office of National Intelligence—the Director‑General of National Intelligence.[105]

Taking evidence at a hearing

Clause 31 in Part 3 of the Bill operates so that, at a hearing, the Commissioner may require a witness to either take an oath or make an affirmation that the evidence the person gives will be true. Once the oath or affirmation has been administered, the Commissioner may allow the person to give their evidence by tendering a written statement and verifying it by oath or affirmation.[106] This is consistent with the general principle set out in clause 12 that the Commissioner should take a ‘trauma-informed and restorative’ approach in the performance of his, or her, functions.

Clause 46 in Part 4 of the Bill provides that a person commits an offence if the person has been given a notice to attend a hearing and either the person refuses to be sworn or to make an affirmation or the person refuses to answer a question at the hearing that the Commissioner requires the person to answer.

Additional offences

The effect of clause 31 is that a hearing by the Commissioner is a judicial proceeding for the purposes of Part III of the Crimes Act.[107] This operates to give rise to two offences:

• the first is an offence of giving false testimony touching a matter in a judicial proceeding (which is a federal judicial proceeding) and the matter is material in the judicial proceeding. Whether the false evidence is material is a matter of strict liability, so the person only has to be aware the testimony was false. In that case the maximum penalty is imprisonment for five years[108]
• the second is an offence of fabricating evidence or making use of fabricated evidence with the intention of misleading a court or judicial tribunal in a judicial proceeding (which is a federal judicial proceeding). The maximum penalty is imprisonment for five years.

For both offences, the person does not have to be aware that a hearing by the Commissioner is a federal judicial proceeding. That particular element of the offence is one of absolute liability.[109]

Notice to give information

In addition to the Commissioner’s ability to summons a person to give evidence at a hearing, clause 32 in Part 3 of the Bill empowers the Commissioner to require a person, by written notice to give the Commissioner information, or a statement referred to in the notice or to produce to the Commissioner the documents or things referred to in the notice.

The notice must comply with certain manner and form requirements in the Bill.[110] In addition the notice must give the person at least 14 days after the day on which the notice is given in which to comply. The exception to this general rule is where the Commissioner reasonably believes that the relevant circumstances are urgent or serious.[111] Once the relevant document or information is provided, the Commissioner may inspect them, make copies of them or retain them for as long as is reasonably necessary in order to perform his, or her, functions.[112]

Subclause 45(2) provides that a person commits a criminal offence if the person has been given a notice under clause 32 to give information or a statement, or produce a document or thing and the person fails to comply with the notice. It is a defence for the person to prove they had a reasonable excuse.[113]

Legal professional privilege and self-incrimination

Clause 48 in Part 4 of the Bill provides that legal professional privilege is not a reasonable excuse for the purposes of subclause 45(3) for a person to fail to give information or a statement, or produce a document or thing. The exceptions to this general rule are where:

• a court has found the information, statement, document or thing is subject to legal professional privilege[114] or
• a claim that the information, statement, document or thing is subject to legal professional privilege has been made to the Commissioner within the time that the Commissioner has required the information or statement to be given, or the document or thing to be produced—or within such further time as the Commissioner has allowed.[115]

If such a claim is made, the Commissioner may decide whether to accept or reject the claim.[116] If the claim is accepted, the Commissioner must return the relevant material and disregard it for the purposes of his, or her, report.[117] Otherwise the Commissioner may use the information, statement, documents or thing in carrying out his, or her, functions.[118]

A person commits an offence if the person has failed to give information or a statement, or produce a document or thing as required by the Commissioner if the Commissioner has decided to reject a claim that the relevant material is subject to legal professional privilege. The maximum penalty is imprisonment for two years.[119]

Similarly a person is not excused from giving information, evidence of a statement, or producing a document of thing on the ground that doing so would incriminate the person in relation to an offence,[120] unless the person has already been charged with a relevant offence and that charge has not been finalised.[121]

Notice of likely disclosure

Where a person is to give evidence or produce information, a statement, a document or thing to the Commissioner and the person considers that doing so may involve the disclosure of operationally sensitive information, then the person must give written notice to the Commissioner to that effect before disclosing any operationally sensitive information.[122]

Once such a notice has been given to the Commissioner, he or she may invite submissions from those persons or bodies whose interests may be affected by disclosure of the information.[123]

Similarly clause 34 in Part 3 of the Bill requires a person to notify the Commissioner if the person considers that giving evidence, or giving or producing the information or statement, document or thing, may involve the person disclosing intelligence information. In that case, written notice to the Commission must be given before the relevant information is provided.

Clause 47 provides that a person commits an offence if the person was required to provide a written notice as above, the person holds or has held an Australian Government security clearance that allows access to operationally sensitive information or intelligence information (as the case may be) and the person fails to give the required notice. The maximum penalty is imprisonment for 3 years.

Search warrants

Clause 36 of Part 3 of the Bill permits the Commissioner or an authorised member to apply for a search warrant in relation to a matter that is relevant to the Commissioner’s functions.

Who may apply

Clause 36 of Part 3 of the Bill establishes the position of authorised member. A person is an authorised member if the person is a member of the Australian Federal Police or of the police force of a State of Territory and the person (or each person in a class of persons) has been authorised by the Commissioner in writing to undertake that role.[124]

Basis for application

The basis for the application for a search warrant to an eligible judge[125] is twofold:

• first, the Commissioner or the authorised member must have reasonable grounds for suspecting that there may be, at that time or within the next following 24 hours a thing (or things) of a particular kind connected with a matter into which the Commissioner is inquiring (called things of the relevant kind), on any land or on or in any premises, vessel, aircraft or vehicle
• second, the Commissioner or the authorised member must believe on reasonable grounds that, if a summons were issued for the production of the thing (or things) they might be concealed, lost, mutilated or destroyed.[126]

The High Court considered the meaning of the terms ‘suspicion’ and ‘belief’ in the case of George v Rockett.[127] In that case, the High Court was satisfied that the requirement that the person has a ‘belief’ that the information which is sought will provide evidence of a breach of the relevant legislation is a higher test than merely having a ‘suspicion’.

Issue of search warrant

An eligible Judge must be satisfied that there are reasonable grounds for issuing a warrant. In that case, a search warrant may be issued authorising a member of the Australian Federal Police or of the police force of a State or Territory, or any other person named in the warrant (the authorised person), with such assistance as that person thinks necessary, and if necessary by reasonable force to do all of the following:

• enter onto the land or on or into the premises, vessel, aircraft or vehicle
• search the land, premises, vessel, aircraft or vehicle for things of the relevant kind and
• seize any things of the relevant kind found on the land or in the premises, vessel, aircraft or vehicle and deliver things so seized to the Commissioner.[128]

The relevant warrant must include information that is specified in the Bill, including a statement of the purpose for which the warrant is issued. The warrant ceases to have effect one month after the date on which it was issued.[129]

Right to seize things

If, while searching for things authorised by a search warrant, a person finds any thing of another kind that the person believes on reasonable grounds to be connected with that matter or another matter into which the Commissioner is inquiring and the person believes on reasonable grounds that it is necessary to seize that thing in order to prevent its concealment, loss, mutilation or destruction, the warrant is taken to authorise the person to seize that thing.[130]

Application by telephone

Clause 37 in Part 3 of the Bill provides than an application for a search warrant may be made by telephone if it is necessary to do so because of circumstances of urgency.

In that case, the eligible Judge must complete and sign that warrant and inform the applicant of the terms of the warrant and the date on which and the time at which it was signed. A copy of the warrant is then forwarded to the applicant.[131] The Commissioner or a member of the Australian Federal Police or of the police force of a State or Territory may complete a form of warrant in the terms indicated by the eligible Judge which will be deemed be a validly issued warrant.[132]

Witnesses

Clause 38 in Part 3 of the Bill provides for a witness to be examined or cross‑examined on a relevant matter by a legal practitioner assisting the Commissioner, a legal practitioner who is representing a person and by a person authorised by the Commissioner to appear.

A witness appearing before the Commissioner at a hearing may be paid a reasonable amount for the expenses of the witness’s attendance in accordance with the scale prescribed in the rules—or if the scale has not been prescribed, the Commissioner may authorise the payment of an amount the Commissioner considers is reasonable.[133]

Legal representatives

The Attorney-General's Department administers a range of non-statutory and statutory legal financial assistance schemes. Each scheme has a different purpose, but all schemes are generally targeted towards helping people who could not otherwise afford to pay for their legal costs. Depending on the scheme, funding can be provided for legal representation costs and disbursements.[134] According to the Explanatory Memorandum to the Bill, the amount which has been allocated to support the establishment and operation of the Commissioner’s function includes ‘funding for a dedicated legal financial assistance scheme’.[135]

Disclosure of information to the Commissioner

Clauses 40 and 41 in Part 3 of the Bill ensure that a Commonwealth body; or a State or Territory body (including a Coroner’s Court) respectively may, on their own initiative, disclose information to the Commissioner despite any provision in the law of the Commonwealth or a state or territory that restricts or prohibits disclosure of that information. The immunity is subject to the proviso that the disclosure is made by an individual who is acting within their authority.

The clauses allow those bodies, or an individual who holds an office or appointment under a law of the Commonwealth, a State or a Territory to disclose to the Commissioner information for the purpose of assisting in the performance or exercise of the Commissioner’s functions or powers.

According to the Explanatory Memorandum to the Bill, the intention is that these clauses ‘will facilitate information being proactively disclosed to the Commissioner, and clarify the capacity for relevant bodies to so disclose despite other laws or obligations’.[136]

Use of information

The Commissioner is authorised to use information disclosed under these clause for the purposes of performing or exercising any of the Commissioner’s functions or powers.[137] Subclause 58(2) in Part 4 of the Bill confirms that a person who discloses information under clauses 40 and 41 does not commit an offence under a secrecy provision.[138]

Stakeholder comments

These powers create something of a conundrum. On the one hand submitters to the Senate Committee make clear that data collection and reporting on suicidal behaviour among veteran and service-people is essential. ‘The availability of robust data will be critical to tackling suicide risk and developing a support system that supports veteran wellbeing’.[139] Only with sufficient data will the Commissioner be ‘able to identify common trends and systemic issues in both Defence Force and veteran deaths’.[140]

The utility of the proposed record of veteran suicide deaths and the Commissioner’s capacity to address the unique risk factors associated with suicide involving veterans and service-people will depend on the quality of the information available. There are, however, significant deficiencies in existing data systems and with the identification of veteran suicide deaths. These challenges may be obscuring the full scale of veteran suicide deaths, as suggested by the significant discrepancies between the data reported by Government bodies and the information reported by advocacy groups.[141]

On the other hand issues of consent loom large amongst other submitters—in particular because the Consequential Amendments Bill will exclude the operation of the Privacy Act 2008. (See the discussion under the heading ‘Consequential Amendments Bill’ below.)

There is no requirement for service people, veterans and their families to consent to the Commissioner over-riding confidentiality. There is indeed no requirement in the Bills that individuals be alerted by the Commissioner or by another entity that over-riding is intended in a specific instance, is underway or has taken place. [142]

Obtaining and protecting intelligence information

Clause 42 in Part 3 of the Bill requires the Commissioner to take all reasonable steps to ensure that entrusted persons obtain, store, access, use and disclose intelligence information relating to an Australian intelligence entity only in accordance with a comprehensive arrangement, between the Commissioner and the head of the entity.

In particular, the Bill requires the Commissioner to take all reasonable steps to ensure that such an arrangement is in force with the head of an Australian intelligence entity before obtaining intelligence information relating to the entity.[143]

Offences

Part 4 of the Bill establishes a number of criminal offences.

The Bill provides for a range of offences in relation to the following:

• failing to attend a hearing, give information or a statement, or produce documents or things—the maximum penalty being imprisonment for two years[145]
• refusing to swear an oath, make an affirmation or answer a question—the maximum penalty being imprisonment for two years [146]
• reprisals against witnesses—the maximum penalty being 10 penalty units[147] or imprisonment for one year[148]
• contempt of the Commissioner—the maximum penalty being two penalty units[149] or imprisonment for three months[150] and
• unauthorised publication,[151] use or disclosure of information[152]—with maximum penalties of imprisonment for three years and two years respectively.

Reporting

Clauses 60–62 in Part 5 of the Bill set out various reporting requirements:

• the Commissioner must give a report to the Prime Minister and the Minister as soon as practicable after the end of each financial year, setting out matters relating to, or arising in connection with, the exercise of his or her powers, or the performance of the functions of the Commissioner during the financial year[153]
• the Commissioner may from time to time give the Prime Minister and the Minister additional reports[154]
• the Minister must lay the report before each House of the Parliament within 15 sitting days of that House after receipt[155]
• the Commonwealth must respond to the reports in writing and those responses are also to be tabled as soon as reasonably practicable in each House of the Parliament[156]
• if, in the opinion of the Commissioner, action that is adequate and appropriate in the circumstances is not taken in relation to a Commissioner’s report, the Commissioner may give a further report to Prime Minister and the Minister in that regard[157]
• any such report must be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.[158]

Consequential Amendments Bill

Item 1 of the Consequential Amendments Bill amends Division 1 of Part I in Schedule 2 to the Freedom of Information Act 1982 (FOI Act) so that the National Commissioner for Defence and Veteran Suicide Prevention is listed as an exempt agency for the purposes of that Act.

Item 2 of the Consequential Amendments Bill amends Division 1 of Part II in Schedule 2 to the FOI Act which exempts certain documents held by the Attorney-General’s Department from the FOI Act. Documents in respect of the performance or exercise of the functions or powers of the National Commissioner for Defence and Veteran Suicide Prevention are added to the existing list of documents.

The amendments operate to 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 FOI Act.[159] ‘Due to the operation of the FOI Act, this amendment will also exempt the Commissioner, and the department, from the Privacy Act 1988 to the same extent’ as the exemption under the FOI Act.[160]

According to Dr Bruce Arnold of the School of Law at the University of Canberra:

… there is no rationale for exclusion of protection under the Privacy Act and presumably other legislation. In the absence of effective scrutiny the disregard of privacy law is disquieting and has the potential to exacerbate rather than reduce harms.[161]

And further:

A salient feature of the Privacy Act 1988 (Cth) is the scope for individuals to access information about themselves and in doing so identify errors in that information and consequently make corrections. That correction is significant for the individuals and is also a basis for a self-aware organisation to identify and correct any systemic problems in data management that caused those errors. It is axiomatic that government agencies on occasion both do make errors in data management and deny the existence of those errors.[162]

Submitter Deborah Morris, critical military researcher from Griffith University, echoes these sentiments:

Transparency and accountability are essential in this process—particularly as the organisations under scrutiny are public departments and are funded by taxpayer money. As such, the people of Australia expect that the leaders of Australia meet their appointed obligations with transparency, accountability, and impartial scrutiny – even when the outcomes may be uncomfortable. This is how the people of Australia can thank Veterans for their service.[163]

However, the submission by the Attorney-General’s Department to the Senate Committee argues:

This is appropriate, on the basis that Royal Commissions are similarly exempt from the Privacy Act, and the Bill protects against any use or disclosure of information if it is not related to the National Commissioner’s functions or powers (clause 55). If a person wished to access or correct their own personal information held by the National Commissioner or the department, for example, this could be facilitated administratively, despite the Privacy Act process for this to occur not strictly applying.[164]

Items 3–6 of the Consequential Amendments Bill amend section 34A of the Inspector-General of Intelligence and Security Act 1986 to allow the Commissioner to be prescribed by the Regulations to that Act and so provide for the provision of information to the Commissioner in certain circumstances. These amendments are consistent with clause 43 of the Bill.

Concluding comments

The Bill establishes the position of the National Commissioner for Defence and Veteran Suicide Prevention. The Commissioner is empowered to undertake inquiries to inquire into the circumstances of defence and veteran deaths by suicide. The Commissioner is able to make findings and recommendations following such inquiries, including recommendations about the wellbeing of defence members and veterans and defence and veteran suicide prevention strategies; and about any policy, legislative, administrative or structural reforms. In order to carry out these functions the position of Commissioner has been vested with a range of coercive powers. A failure to respond to the requirements for information by the Commissioner gives rise to a range of criminal offences.

Since the Government’s announcement of this position, some members of the veterans community continue to call for an independent Royal Commission into defence and veterans deaths by suicide. The Government’s rationale for appointing a permanent national commissioner as opposed to conducting an independent Royal Commission was explained this way:

What we looked at with a royal commission is that it is a point in time—it has a start and end. … What we were considering there is how we have an enduring royal commission, essentially with the national commissioner having the powers of a royal commission, and to be able to work with coroners in the states and territories to inform that future state. A royal commission is a point in time and they would look back at past suicides. I personally believe this is an outcome that not only will look at those past suicides but, importantly, will be there going forward for any future suicides.[165]

The activities of the Commissioner will no doubt be heavily scrutinised by stakeholders to determine whether the role created by the Bill achieves its ultimate purpose: the prevention of suicide by defence and ex-serving ADF members.

Annexure A—Comparison of the powers of the Commissioner with those of a Royal Commissioner

The table below contains a comparison of the provisions in the Bill with those in the Royal Commissions Act 1902.

	The Bill	Royal Commissions Act
Scope of inquiry	The functions of the Commission and the scope of matters he, or she, can inquire into are set out in clauses 11 and 26	Any matter specified in the Letters Patent: section 1A
Make findings	Yes—the Commissioner can make findings and recommendations following inquiries: paragraph 11(1)(b)	Yes: but not specified in the Royal Commissions Act
Make recommendations	Yes: paragraph 11(1)(b)	Yes
Communication information to law enforcement entities relating to potential contravention of a law	Yes—the Commissioner may disclose information to law enforcement and integrity entities: clause 56	Yes: section 6P
Commissioner, legal practitioners and witnesses have immunity from legal action	Yes: clause 64	Yes: section 7
Compel production of documents or things, compel a witness statement	Yes: clause 32	Yes: section 2
Summon witnesses to give evidence	Yes: clause 30	Yes: sections 2 and 6FA
Take evidence on oath or affirmation	Yes: clause 31	Yes: section 2
Arrest witness for failing to appear	There is no direct power of arrest, but failure to appear is an offence: clause 45	Yes: section 6B
Prevent publication of evidence	Yes: clause 53	Yes: section 6D
Hold private sessions enabling individuals to share personal stories	Yes: clause 28	Yes: Part 4
Inspect, retain and copy documents or things	Yes: clause 35	Yes: section 6F
Search warrants	Yes: clause 36	Yes: sections 4 and 5
Take evidence and make inquiries overseas	Yes: clause 8	Yes: sections 7A and 7B
Abrogate client legal privilege	Yes: clauses 48 and 49	Yes: subsection 2(5) and section 6AA
Abrogate privilege against self-incrimination	Yes—except if charge is current: clause 50	Yes—except if charge is current: section 6A
Use immunity applies	Yes in relation to criminal proceedings: clause 50	Yes: section 6DD
Be authorised to receive intercepted information under the Telecommunications (Interception and Access) Act 1979	No—the National Commissioner is not intended to inquire into matters that may involve the commission of an offence	If the relevant Minister is satisfied that the Royal Commission is likely to involve the commission of a prescribed offence
Requirements for the handling of security sensitive information	Yes	No—the Royal Commissions Act does not address the process to manage the risk of security sensitive information being disclosed in a hearing, report or otherwise.
The Inspector-General of Intelligence and Security may volunteer information	Yes, if the National Commissioner is prescribed under Regulations to the Inspector-General of Intelligence and Security Act 1986: clause 43	Yes, if the Royal Commission is prescribed under Regulations to the Inspector-General of Intelligence and Security Act 1986: section 34A of that Act
Offences for false and misleading evidence	Yes: under application of sections 35 and 36 of the Crimes Act 1914	Yes: section 6H
Offences for bribery, corruption, fraud, deceiving in relation to witnesses	Yes: under application of sections 37 and 38 of the Crimes Act 1914	Yes: sections 6I and 6J
Offence for preventing a witness from attending	Yes: under application of section 40 of the Crimes Act	Yes: section 6L
Offence for failure to attend hearing, produce documents or give information	Yes: clause 45	Yes: section 3
Offence for refusal to swear an oath, make an affirmation or answer a question	Yes: clause 46	Yes: section 6
Offence for dismissal of witness by employers	Yes: clause 51	Yes: section 6N
Offence of contempt of Commissioner	Yes: clause 52	Yes: section 6O