2.1
This chapter explores the extent of support for the Bill and examines specific issues raised by participants during the inquiry, including:
general views on the objectives of the legislation, the value of the proposed National Commissioner for Defence and Veteran Suicide Prevention (referred to in this chapter as the National Commissioner or Commissioner), and how this compares to a Royal Commission;
comments on a number of specific aspects of the legislation, including suggestions from stakeholders to strengthen the Bills; and
suggestions relating to the direction the of work to be pursued by the Commissioner.
General views on the Bills
2.2
The committee heard strong support for the Bills from a range of stakeholders, as well as taking evidence from some submitters and witnesses who did not support the Bill in its current form.
Support for the objectives of the Bill and establishment of the Commissioner
2.3
There was broad support from a range of submitters for the intent of the Bill to establish a National Commissioner for Defence and Veteran Suicide Prevention.
2.4
Suicide Prevention Australia and Mental Health Australia stated in a joint submission:
If passed, this legislation will set in place a unique structure that will drive accountability, transparency and systemic change to prevent suicide and suicidal behaviour among our serving [ADF] members and veterans.
2.5
The Royal Australian & New Zealand College of Psychiatrists (RANZCP) offered their support for the 'comprehensive' proposed functions of the National Commissioner, and in particular the general principles outlined in clause 12 of the Bill that the Commissioner should take a restorative and trauma-informed approach with families at the centre of its work. RANZCP stated that this approach 'is recognised by psychiatrists as an effective measure particularly when assessing and treating victims of bullying in the Australian Defence Force'.
2.6
The Vietnam Veterans' Federation of Australia submitted that it 'applauds the Government's introduction of the Bill to establish the National Commissioner', and stated:
This at least shows that the Government is now very mindful of the emotional and psychological problems and the lack of recognition and early treatment of this problem that has, for whatever reasons, befallen many of those who had, or are currently serving in the Defence Force and may have led to, or are contemplating, the taking of their own lives. It is hoped that any recommendations from the National Commissioner's Office will be considered expediently and implemented swiftly.
2.7
RSL Australia submitted:
Although strong voices have called for a Royal Commission into Defence and veteran suicides, RSL supports the establishment of the National Commissioner for Defence and Veteran Suicide Prevention (National Commissioner), whose key role is to identify and understand the factors and systemic issues that may contribute to suicide among serving and former ADF members. We also support the position’s statutory independence in conducting investigations and making recommendations to Government about actions and strategies to prevent future deaths by suicide. RSL acknowledges the Government’s stated intention for the Commissioner to have the powers of a Royal Commission to investigate the cases of veterans who have taken their own lives, including prior to commencement of the legislation. RSL also notes that the Commissioner will report to Parliament each year and monitor the effectiveness of any initiatives undertaken by the Department of Defence (Defence) and Department of Veterans’ Affairs (DVA) in response to the findings.
2.8
Soldier On expressed support for the establishment of a National Commissioner, while providing several suggestions in relation to the Commissioner's proposed work.
2.9
The Law Council of Australia expressed support for the broad objectives in the Bill and the proposed functions of the Commissioner, while identifying a number of issues with the view to improving the Bill.
2.10
The Defence Force Welfare Association (DFWA) expressed broad support for the aims and functions of the legislation as set out in clauses 3, 11 and 12 of the Bill. Mr Kel Ryan, National President of the DFWA, told the committee:
The DFWA welcomes the appointment of the National Commissioner for Defence and Veteran Suicide Prevention. This position has not been achieved without much angst and continuing debate within the association—indeed, the debate continues to rage across the broad defence community. Suicide is a national issue. It is a both fraught and emotional issue that the nation must address. This is the simple fact upon which DFWA has based its considered support for the position of the commissioner.
Objection to the Bill in the absence of a Royal Commission
2.11
Some submitters and witnesses opposed the Bill on the basis that they were still not satisfied it would provide the same independence and outcomes as a Royal Commission into defence and veteran's suicides. For example, KCI Lawyers submitted:
As a starting point, a Royal Commissioner is needed to look at the systemic failures and what has been addressed repeatedly, not a National Commissioner to delve back into individual cases. A Royal Commissioner should be considering why recommendations and reforms have not been addressed or implemented given what has been documented as a growing incident of not only Veterans’ suicide but, the attempted suicide of Veterans and the devastation those acts have had upon the Veteran who survives and their families who suffer from the aftermath.
2.12
Hawthorn RSL Sub-Branch strongly called 'not for an open-ended National Commissioner, but for a complete and independent Royal Commission in to Veteran Suicide Prevention, with a specific time-frame'.
2.13
Ms Julie-Ann Finney, whose veteran son died by suicide in 2019, told the committee that in her view, a key distinction is that a Royal Commission would be 'judicial rather than coronial', and that judicial findings are needed to drive accountability:
We can't have more coroners' courts finding the cause of death. We need judicial findings. We need to acknowledge what our veterans have done for us and what they have been through. We need judicial findings into who, in some cases, was complicit in, or completely responsible for the deaths of our serving and ex-serving members.
2.14
Some submitters and witnesses stated that they were potentially supportive of the National Commissioner concept, but only as a mechanism to be put in place after a Royal Commission. For example, Mrs Nikki Jamieson, a suicidologist, social worker and PhD researcher whose son died from suicide while serving in the ADF, expressed her view as follows:
I absolutely believe and I've been very public about my thought that a royal commission should have been first and foremost, and I absolutely believe that a national commissioner role would have been a recommendation from that—but, again, I feel like the government has come in over the top of veterans, has not listened to them and has put the horse before the cart and gone straight to a national commissioner. We need a royal commission, no ifs, buts or maybes, particularly at the moment. The integrity of Defence and DVA is at stake. We're in the middle of a war crimes investigation. This is a perfect opportunity to bring all these issues to the surface and to let us start working through them. Let's start resolving them. A royal commission can do that.
2.15
Several family members of veterans who had died from suicide gave evidence to the committee that the National Commissioner model is not an adequate substitute for a Royal Commission, and that they would prefer no change rather than the establishment of the National Commissioner position.
Comments on specific aspects of the Bills
2.16
A number of issues were raised by participants during the inquiry relating to specific aspects of the legislation and the proposed activities of the National Commissioner, including:
the appointment and independence of the National Commissioner under the terms of the bill;
the scope of the Commissioner’s proposed functions;
participation in the Commissioner's inquiries by affected families and individuals;
the Commissioner’s proposed information gathering and sharing powers;
the proposed exclusion of the Commissioner’s work from the operation of freedom of information and privacy laws; and
issues relating to the Commissioner’s workload and reporting requirements.
Independence and impartiality of the National Commissioner and office
2.17
Submitters and witnesses raised several issues relating to the independence and impartiality of the National Commissioner role and its office.
Appointment process and requirements
2.18
Under clause 16 of the Bill, an appointment to the role of National Commissioner is made by the Governor-General and the appointee must be, in the Governor-General’s opinion, suitable for appointment because of their ‘qualifications, training or experience’.
2.19
Ms Deborah Morris, a researcher in military and human geography at Griffith University, advocated for the inclusion of an explicit requirement for independence and impartiality among the attributes required for the Commissioner position:
That is, the ability for the Commissioner (or acting Commissioner) to pass the ‘the fair minded observer test’; a test to ensure that the Commissioner does not have any actual or apprehended bias. Impartiality, whilst not the only desirable quality for a potential Commissioner is certainly a necessary one. In other words, an appointee must have no personal interest in the subject matter of the inquiry. Consequentially, it could result in the Commissioner being challenged under the spectre of allegations of bias.
2.20
The Law Council noted that the Bill 'does not provide any concrete statutory conditions for the eligibility (including disqualification) of prospective appointees' and submitted:
To a large extent, the public credibility, and consequently the effectiveness, of the role of the Commissioner will depend on each appointee’s perceived independence from the Government and the entities whose actions are likely to be the direct or indirect subject of inquiry, as well as their substantive independence.
2.21
The Law Council recommended that clause 16 of the Bill should be amended to provide that persons who hold, or have held within the past 10 years, certain specified positions, are not eligible for appointment as Commissioner. This limitation should cover scenarios including 'where a person’s previous employment involved performing functions or exercising powers that are directly or indirectly relevant to matters that may be the subject of review by the Commissioner'.
2.22
The Law Council also noted that 'neither the Bill nor the Government’s public statements about the role of the Commissioner have identified a transparent, participatory, and merit-based process for selecting a preferred appointee', who would then be nominated to the Governor-General for formal appointment. It argued that such a process to inform the appointment of the Commissioner should be included in the Bill.
2.23
AGD noted that the appointment arrangements for the National Commissioner are similar to those that apply to Royal Commissions.
Relationship of the Commissioner to the defence establishment
2.24
Several submitters and witnesses argued that, to ensure trust in the process by the veterans' community, the Commissioner should not have current or previous ties to the defence and military establishment.
2.25
The Royal Australian Regiment Corporation (RARC) stated that the appointed Commissioner should not be ex-military, expressing concern that 'military loyalty runs deep'. The RARC submitted preference for the appointment to be:
Ideally 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.
2.26
Similarly, the Royal Australian & New Zealand College of Psychiatrists (RANZCP) and Dr Andrew Khoo and Dr Katelyn Kerr emphasized that the Commissioner should be independent from the ADF and DVA. RANZCP stated that this approach:
…will make a positive difference in how the National Commissioner operates and reports. It will also enhance the confidence of veterans and their family members in the capacity of the National Commissioner to support the prevention of ADF member and veteran deaths by suicide.
2.27
A number of witnesses shared these concerns about a lack of perceived impartiality if the Commissioner has direct experience in the ADF or Department of Defence. Mr Michael von Berg, National President of the RARC, told the committee:
The optics of independence in this instance are just so important. In the sad cases I have been involved in, in many instances the issues started upstream; they started whilst in service. Although suicide itself is a very complex matter to try and get your head around—we all ask the reasons why, all of us, and we've all been touched by suicide. For the ones that I've been involved in, in particular with some individuals whose attempts have thankfully not been fatal, when you get in and chat to them about the real reasons, you find that a lot of the reasons started upstream in terms of what happened whilst in service. We believe that a person who is more independent will be less influenced, perhaps, by connections within the military.
2.28
Mrs Nikki Jamieson echoed these concerns:
The lack of independence is a significant issue for me and it's a significant issue for the veterans that I speak to daily. The Attorney-General's Department is within the existing Commonwealth government structure, and therefore I don't really see them as independent either. The national commissioner role is as far from independent as it could possibly be. An ex-military member is continuing the trauma of Defence investigating Defence. It's not appropriate, it's not effective, and it's a huge conflict of interest. It is the culture of the ADF that's the problem. Why on earth would you have military or ex-military investigating the cultural problem of their own organisation? It doesn't make sense to me.
2.29
In relation to the appointment of the Commissioner, RSL Australia suggested that the Commonwealth Department of Health 'should have input into who is an appropriate person, given that suicide is a mental health issue'. It submitted that this 'will remove the possible perception that there is a conflict of interest if former or current Defence staff are being considered for the role'.
2.30
Some submitters noted that understanding the workings of Defence would be helpful to the Commissioner's work. Soldier On submitted that 'staff working for the Commissioner must have Defence backgrounds or be Defence informed so that they may work with empathy and understanding'. RARC noted that guidance and assistance would be required 'as to the workings and culture of the ADF, DVA and ESO [Ex-Service Organisations] and families', and suggested that the Commissioner liaise with and utilise assistance from the Defence Engagement Commissioner, Repatriation Commissioner and Veteran Family Advocate.
2.31
Suicide Prevention Australia and Mental Health Australia described the creation of a National Commissioner for Defence and Veteran Suicide Prevention as 'a welcome shift to a more whole-of-government approach' to this issue, but cautioned that how the Commissioner will interact with other agencies requires clarity:
[I]n order to achieve the potential significant gains in this area of a whole-of-government approach there needs to be additional clarity on how the Commissioner will work with the relevant government departments and non-government organisations. The legislation is largely silent on how [the] Commissioner will collaborate with Department of Veterans’ Affairs and ADF. It is important that the Commissioner performs its functions of undertaking inquiries and developing recommendations independently. However the Commissioner’s success in addressing risk factors will be dependent on the ADF’s and Department of Veterans’ Affairs’ level of co-operation, willingness to engage and be active in building systems and practices that address issues and risk factors. There is a need for strong guidance framing the relationship and mutual accountability between the Commissioner and these agencies.
2.32
In response to questions about the independence of the National Commissioner role from the defence establishment, AGD stated:
The National Commissioner will be an independent statutory office holder within the Attorney-General’s portfolio. This reflects that the National Commissioner and their Office will have clear independence from the Departments of Defence and Veterans’ Affairs.
The Bill requires the National Commissioner to disclose personal interests to the Attorney-General (clause 23), and the National Commissioner will be required to manage any potential conflicts, like Commissioners of a Royal Commission. If the National Commissioner ‘fails, without reasonable excuse’ to comply with the disclosure requirement in clause 23, the Governor-General ‘must terminate the appointment of the Commissioner’ (clause 22). The Bill reflects similar provisions to those that are in place for other independent statutory office holders, such as non-judicial tribunal members under the Administrative Appeals Tribunal Act 1975.
Establishment of the Commissioner role as a statutory officer
2.33
The committee heard some concerns relating to a perceived lack of independence in the staffing and resourcing arrangements to be afforded to the Commissioner.
2.34
The Law Council noted that under the Bill, the Commissioner and their staff are not established as an agency with a separate legal identity to the Commonwealth, as is the case with other integrity bodies, such as the Commonwealth Ombudsman. Rather, the Commissioner’s staff and operating budget will come from the general budget of the AGD, and the Commissioner will be treated as an official of AGD for the purpose of public sector financial management and governance laws (under clauses 13–14 of the Bill).
2.35
The Law Council submitted that the committee 'may wish to consider whether the Office of the Commissioner should be established as an independent statutory agency', or at least as a ‘listed entity’ under the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) 'which would provide for its financial independence from Departments of State and other public sector entities'. It argued:
Designating the Office of the Commissioner as a ‘listed entity’ under the PGPA Act would mean that the Commissioner would be the head of a Commonwealth agency, with direct responsibility and accountability for its governance and management, including employment and staff management. The agency would exercise powers and perform functions in its own name. Its annual operating budget would be appropriated to it directly, rather than being allocated administratively from the ordinary annual budget appropriated to the Attorney-General’s Department.
These features are important to both the substantive and perceived independence of the Commissioner from the Executive Government of the day. This includes the Commissioner’s independence from policy departments, which serve and take their directions from Ministers—both directly from the relevant portfolio Minister, and more broadly in implementing the collective decisions of Cabinet.
2.36
The Law Council suggested that if this change is not implemented, another option to provide a greater level of transparency around funding arrangements for the Commissioner's office would be to require pro-active, periodic disclosure of the Commissioner’s operating budget. This could occur, for example, through including this costing breakdown Attorney-General’s Portfolio Budget Statements, and in the financial statements provided in the Attorney-General’s Department annual reports.
2.37
In discussing the proposed administrative arrangements for the Commissioner's office, AGD stated that 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 (clause 14). Staff assisting the National Commissioner will be administratively separate from other departmental functions. 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.
2.38
AGD stated that there 'is no inherent conflict' between the National Commissioner being an official of the department for the purposes of the PGPA Act and the National Commissioner being independent in the exercise of their functions and powers. AGD emphasised that arrangements around the National Commissioner such as staffing and financial administration 'are the same arrangements that apply to Royal Commissions':
[The] arrangement aligns with the way Royal Commissions are supported by the department, and how staff are engaged by the department to support Royal Commission inquiries. While the Law Council has suggested that the Office of the National Commissioner could be established as a ‘listed entity’ under the PGPA Act, it should be noted that Royal Commissions are not listed entities, neither is the Independent National Security Legislation Monitor (a statutory officer supported by the Attorney-General’s Department), and neither was the Defence Abuse Response Taskforce (which was established as part of the Attorney-General’s Department but operated independently).
Scope of the Commissioner's functions
2.39
Submitters commented on the scope of the proposed National Commissioner's remit under the Bill.
Ability to consider attempted suicides and the lived experience of veterans
2.40
Some questioned whether the scope of the Commissioner's legislative functions are broad enough to provide an ability to examine systemic and underlying issues relating to defence and veteran suicides.
2.41
The Defence Force Welfare Association Queensland Branch (DFWAQ) submitted that focusing the objects of the Bill and the functions of the Commissioner on incidents of veteran suicide may prevent the Commissioner from taking evidence relating to attempted suicides and suicidal ideation from veterans with first-hand experience of these issues:
The objects are focused on Veteran suicide instances and their circumstances. Many of the circumstances that led to suicide would apply to a lessor or possibly even to greater extent to some of those other Veterans who did not commit suicide but who made suicide attempts, had suicidal thoughts but made no attempt and to those who just managed to cope with similar circumstances and teeter on the edge of suicide for years.
…
Flexibility is specifically given to the Commission to inquire into suspected suicides or other deaths.
However, there is no specific requirement for the Commissioner to also inquire, seek information about, and from Veterans, their families, and others about attempted suicide or the risk was mitigated by improvements to wellbeing or by other happenstance events. There is no requirement for the Commissioner to inquire to identify what was different for those who did not suicide, or what worked in avoiding or preventing it. The inquiry is focused on “successful” suicides or suspected suicides, where the prime “witness” regarding causes is, tragically, but put bluntly, not available.
2.42
DFWAQ advocated for amendments to the objects of the Bill in clause 3, as well as the inquiry function of the Commissioner in clause 26, to explicitly include circumstances of attempted suicide or reported suicide ideation within the Commissioner's remit.
2.43
Ms Deborah Morris submitted that the Commissioner's proposed remit is too narrow, and that 'a broad terms of reference as well as a multi-disciplinary research agenda will be required if the Commission has any chance of meeting its objectives':
[I]f the government is committed to an inquiry that can report on systemic issues, and themes that contribute to suicidality, the terms of reference must include investigation into the underlying social, cultural, legal, and institutional issues behind military suicidality.
2.44
Ms Morris argued further:
The current Bill does not include an invitation for submissions from the broader military/veteran community and their lived experiences of military suicidality. This is a significant oversight. Whilst it is acknowledged that families have a very important role in understating suicide, individuals who have lived the experience of military suicidality also have an extremely important role to play in ensuring that government and policymakers understand the complex web of practices and perceptions that contribute to military personnel and veterans choosing to take their own lives.
2.45
Mr Heston Russell, a veteran who shared openly with the committee about his experience of suicidality, submitted:
Any Bills or further planning must include engagement with veterans who have suffered mental health decline including suicidal ideations within their scope. They must also be informed by the recommendations of those key bodies of work that have already been completed to readily identify high risk profiles and engage in proactive processes as opposed to the current reactive [approach]. I must also emphasise the overwhelming need to engage with exactly these ‘high-risk’ veteran demographics in order to be informed from first hand accounts. This gaping omission must be addressed; as so many young veterans have written and expressed their opinion on such processes as this Committee’s hearing ‘stop talking about us and start talking to us’.
2.46
Soldier On submitted that the Commissioner 'must gain as much relevant information as they can from vital sources such as veterans and, particularly, veterans who have planned or survived a suicide attempt'.
2.47
RSL Australia suggested that consideration should be given to 'including an express right of inquiry in the Bill where a person has survived a suicide attempt and the person, or their family, expressly requests an inquiry by the Commissioner'. It stated that inquiry in these circumstances 'would help to inform the Commissioner’s assessment of broader systemic issues'.
2.48
When asked whether attempted suicide is within the proposed scope of the Commissioner's functions under the legislation, Mr Iain Anderson, Deputy Secretary, Legal Services and Families Group, AGD, responded in the affirmative:
Yes, attempted suicide is something that the national commissioner can look at if the legislation is passed. Specifically, in the functions of the national commissioner, section 11(1)(f) of the draft Bill says that the national commissioner has a function:
(f) to promote understanding of suicide risks for defence members and veterans and factors that can improve the wellbeing of defence members and veterans.
So that certainly gives scope for the national commissioner to inquire into matters beyond actual suicide or suspected suicides that have resulted in death.
2.49
Mr Anderson stated further that the Commissioner's proposed inquiry function under clause 26 of the Bill 'talks about the circumstances the commissioner may inquire into but it says it is not limited to and it sets out a range of different things', including at 26(1)(f): any other matter the Commissioner considers relevant and reasonably incidental to defence and veteran deaths by suicide:
We believe a combination of that and the mention of section 11(1)(f) 'to promote understanding of suicide risks' gives the national commissioner the scope to inquire into attempted suicides as well. But ultimately it would be a matter for the national commissioner if this legislation is passed as to how they direct their energy.
2.50
Mr Anderson noted that there is 'no reason why the government couldn't take that path of clarifying the Bill if it's not sufficiently clear' in respect of the coverage of attempted suicides.
Maintaining a record of relevant deaths and working with coroners
2.51
In a joint submission, Suicide Prevention Australia and Mental Health Australia welcomed the inclusion among the Commissioner's functions under clause 11 of the Bill the roles of: working collaboratively with state and territory Coroners to understand issues contributing to defence and veteran deaths by suicide; and maintaining a record of defence and veteran deaths by suicide notified to the Commissioner.
2.52
The joint submission noted, however, that there are significant deficiencies in existing data systems and with the identification of veteran suicide deaths across Australian jurisdictions that may create challenges for the Commissioner’s ability to meet their responsibilities. The submission argued that the Bill may be strengthened by making the Commissioner responsible for:
working with the Australian Institute of Health and Welfare, National Mental Health Commission, Mental Health Principal Committee, Coroners and State and Territory emergency services to develop consistent methodology for reporting, recording and sharing information on veteran suicide and suspected suicide deaths;
informing relevant Commonwealth agencies, State and Territory Governments on best practice for identifying the service status of people who have died by suicide;
exploring opportunities to expand data collection and reporting on suicidal behaviour among veterans and service-people, in collaboration with the National Suicide and Self- Harm Monitoring System being developed by the AIHW and Mental Health Commission; and
monitoring the use of data and insights from the lived experience of veterans to inform continuous improvement of services.
2.53
AGD noted that in July 2020 the Council of Attorneys-General agreed to work together, in consultation with the Council of Chief Coroners, to establish a new National Coronial Centre for Defence and Veteran Suicides to assist Coroners to develop a common understanding of the issues for consideration in individual ADF member and veteran deaths by suicide, and to support the National Commissioner in identifying broader systemic issues for inquiry. AGD stated that 'this work has commenced, with the intention of agreeing arrangements as soon as practicable'.
2.54
When asked about the proposed interaction between the Commissioner and state and territory coroners, Mr Iain Anderson of AGD told the committee:
We've been engaged with the Council of Chief Coroners about the interaction between state and territory coroners and the national commissioner. It is absolutely envisaged by the legislation that there will not be a displacement of state and territory coroners. The national commissioner cannot inquire into cause of death, which is a matter for state and territory coroners, and the national commissioner also has to ensure that they don't prejudice other inquiries—that includes coronial inquiries. We've been having discussions both with state and territory attorneys-general and the Council of Chief Coroners about how state and territory coroners will continue to exercise their existing functions and how they can receive some support through the creation of a national coronial centre that would provide a greater level of information available to them about defence matters—something that they have welcomed as a concept. But we are still working through the detail and, in particular, how information can flow from coroners and from the national coronial information system back to the national commissioner so that the national commissioner can perform a systemic function looking at a range of different factors, or a range of different depths, and see whether there are systemic issues that can be identified and recommendations that can be made about those.
Participation in Commissioner's inquiries by affected families and individuals
2.55
The committee heard strong support for the general principles to inform the Commissioner's work set out in clause 12 of the Bill, which relate to: the Commissioner taking a 'trauma-informed and restorative approach'; and recognising that families and others affected by defence and veterans suicides may wish to be consulted on the Commissioner's work.
2.56
In relation to the input of families and other affected individuals to the Commissioner's work, several submitters argued that the legislation should expressly give affected families the option to choose not to engage with any inquiries the Commissioner undertakes. For example, Ms Deborah Morris submitted:
[F]amilies of the deceased should not be forced to participate in any forum or inquiry—both formal or informal. This needs to be explicitly stated in the Bill. Further, the families of the deceased should have the right to decide if they want any form of inquiry to occur in connection to their loved one. Forced participation and mandatory investigation not only sits at odds with trauma informed care but also exerts significantly more compelling powers than a Royal Commission which invites free participation and has full respect for a person’s privacy and confidentiality.
2.57
RSL Australia submitted similarly that it would 'like to see express recognition in the Bill that families and other affected persons may not wish to be consulted and may elect not to be involved', and advocated for clause 12 of the Bill to 'expressly recognise the possibility that families and other affected persons may not wish to be consulted'.
2.58
The Law Council noted that the interim Commissioner's website includes a statement of commitment to ‘recognise and respect’ that families and others affected by defence or veteran deaths by suicide ‘may not wish to share their experiences’ and ‘should have the choice about whether or not to participate’. It argued that this principle 'would be a worthwhile addition to clause 12' of the Bill:
It could provide a direct assurance to persons who have been affected by defence and veteran deaths by suicide, particularly families, that they should not feel compelled to participate in inquiries, and are not the intended targets of the coercive information-gathering powers in the Bill, including warrant based powers of search and seizure.
Support to families and individuals participating in the Commissioner's work
2.59
The Bill creates a framework for participation where families and other persons appearing at a hearing of the Commissioner can:
be represented by a lawyer, who may appear on their behalf at hearings;
be represented by a ‘next friend’ (a support person who is not a lawyer) or assisted by a support person who is present at a hearing; and
have their reasonable witness expenses paid by the Commonwealth.
2.60
Witness expenses can be paid through a legal financial assistance scheme that will be available to individuals, including families, and organisations, 'to assist in meeting the costs of legal representation and disbursements associated with engaging with the National Commissioner’s formal evidentiary processes'.
2.61
AGD confirmed that this scheme will operate similarly to assistance schemes set up for Royal Commissions, and that eligibility guidelines for the scheme are now available through the AGD website. Individuals will be able to access the scheme without any assessment of their financial means, but, for organisations who might wish to access legal financial assistance, there will be an assessment made of whether they can meet the cost of their legal representation without incurring serious financial difficulty.
2.62
The Law Council submitted that while the measures in the Bill 'will go some way towards supporting affected individuals to engage with the Commissioner’s inquiries', consideration should be given to strengthening these measures to ensure that participating individuals are able to access legal representation and financial assistance by right, rather than at the discretion of the Commissioner.
2.63
Suicide Prevention Australia and Mental Health Australia advocated for the Commissioner to develop referral pathways for support services for affected families interacting with the Commissioner's work:
We applaud the intention for the Commissioner to hear from and have a focus on families and others bereaved by a veteran or ADF member suicide death. The trauma-informed approach outlined in the…legislation mirrors best practice, and will ensure the Commissioner’s decisions are informed by lived experience.
Access to formal postvention support is a critical aspect of trauma-informed support for those bereaved by suicide, and the Commissioner should establish mechanisms to refer people bereaved by suicide to postvention support. Postvention interventions are specific activities designed to facilitate recovery from suicide bereavement.
Information gathering and sharing powers
2.64
The Bill confers broad information gathering powers on the Commissioner, including powers to summons persons to attend hearings (under clause 30) and powers to compel written evidence and the production of documents from individuals and organisations (under clause 32).
2.65
Some submitters raised concerns that legal professional privilege and privilege against self-incrimination are not accepted reasons for withholding evidence from the Commissioner, except in some limited circumstances.
2.66
For example, KCI lawyers submitted that families affected by a veteran suicide may be forced to provide information to the Commissioner that would otherwise be protected by legal professional privilege in any other coronial process or court procedure:
This can produce absurd outcomes whereby, for example, correspondence or information [can] be directed to be converted into a statement as to, whether a Veteran’s spouse may have been in the process of legally separating from the Veteran, issues relating to [minors], issues relating to alleged criminal activities and so forth. [These] could all be the subject of a Notice for the family’s legal representative to produce “information, a statement or a document” that would otherwise be subject to legal professional privilege that is usually absolutely protected law.
2.67
The Explanatory Memorandum (EM) notes that this approach to overriding legal professional privilege in a qualified way 'is modelled on the approach to this privilege in the Royal Commissions Act'.
2.68
The Law Council submitted that these measures 'are not objectionable in principle', given their broad equivalence to existing powers of royal commissions and integrity agencies and their importance in ensuring that the Commissioner has access to critical evidence. The Law Council questioned, however, whether the Bill as drafted would be effective in enabling the Commissioner to compel another Commonwealth department or a Minister to produce documents containing legal advice.
2.69
The Law Council submitted that clarification is required whether it is intended 'for the Commonwealth (via departments, agencies and officials) to be able to claim legal professional privilege to resist disclosing legal advice or other information to the Commissioner', and argued that amendments may be necessary to clarify this issue.
Search and seizure provisions
2.70
The Law Council raised a number of concerns in relation to the potential operation of clauses 36 and 37 of the Bill, which outline the National Commissioner's power to apply for and execute search warrants to gather information in limited circumstances. These concerns included:
a perceived lack of justification for the inclusion of warrant-based search and seizure powers, noting that other Commonwealth oversight bodies with existing responsibilities relevant to defence and veteran suicide do not hold these powers;
the lack of information about the intended targets of search and seizure powers (i.e. they would only be used against officials or agencies, such as the ADF, Department of Defence or DVA, or should they also be capable of being exercised against the families of deceased ADF members and veterans);
the absence in the Bill of any independent audit or reporting requirements on the Commissioner’s use and execution of search warrants, including the use of force;
the absence of any requirements for occupants of premises to be notified of the execution of the search warrant, or to be given receipts for items seized, and the lack of any provisions in the Bill governing the return of seized items;
the absence of use immunity or penalty privilege in relation to seized items;
the potentially broad range of persons authorised to exercise powers of search and seizure (including force) under the Bill; and
the scope of the proposed power to use force under search warrants.
2.71
In responding to these concerns, AGD explained that the search warrant provisions in clauses 36 and 37 of the Bill align with those found in the Royal Commissions Act, and 'are considered a necessary and appropriate part of ensuring the National Commissioner has inquiry powers aligned with a Royal Commission'. AGD pointed to the safeguards present in the Bill, namely that:
a search warrant can only be applied for in a very limited set of circumstances, where there are reasonable grounds that relevant evidence may be concealed or destroyed within 24 hours upon the issuing of a summons for that evidence; and
the decision to issue a warrant is determined by an independent judicial officer.
2.72
AGD stated that the search warrant provisions in the Bill 'should also be understood within the context of the ways in which the Bill promotes the National Commissioner obtaining information in a non-adversarial way':
[This includes] providing opportunities for information to be shared outside of responses to formal notices and hearings. It is a guiding principle for the National Commissioner’s functions that they take a restorative and trauma-informed approach (clause 12).
[The] Bill also includes mechanisms enabling Commonwealth, state and territory officials to volunteer information to the National Commissioner (clauses 40 and 41), which will reduce the need for recourse to compulsory powers.
Information sharing provisions
2.73
Clauses 56 and 57 of the Bill enable the Commissioner to disclose information to a range of other bodies in specified circumstances, including law enforcement agencies, Coroners, and any other relevant Commonwealth, State or Territory bodies.
2.74
The Law Council noted that clear information sharing powers are necessary under the proposed 'concurrent jurisdiction' model envisaged by the Bill, whereby the Commissioner may work cooperatively with other bodies such as the IGADF or the Commonwealth Ombudsman. It argued however, that the drafting of clauses 56 and 57 limits the types of information that can be shared unnecessarily, on the basis of the process by which the information was received by the Commissioner:
The Law Council is concerned that clauses 56 and 57, as presently drafted, risk placing arbitrary limitations on the Commissioner’s ability to share relevant information, on the basis of the specific means by which that information was acquired. Instead, these provisions should be re-drafted to cover all ‘protected information’ within the meaning of clause 5 (being information obtained the Commissioner has obtained in performing their functions).
2.75
The Law Council also recommended changes to the Consequential Amendments Bill to make it more straightforward for the Inspector-General of Intelligence and Security to share information with the Commissioner in limited circumstances.
Non-publication directions
2.76
Clause 53 of the Bill would enable the Commissioner to direct that particular material received by the Commissioner 'must not be published, produced or disclosed' at all, or except in a manner determined by the Commissioner. This power covers all types of evidence and material given to the Commissioner, and enables the Commissioner to suppress the identity of individuals who have given evidence. Subclause 53(1) specifies that such directions may be made to prevent material from being provided to a court or tribunal. Clause 54 creates an offence for the publication of information in contravention of a direction made by the Commissioner under clause 53.
2.77
Several submitters raised concerns with the potential ways in which these provisions could operate. The Law Council stated that the proposed direction power is 'extraordinary':
The conferral of a discretionary power on a statutory officer to prevent the substance of evidence given to that officer from being produced to a court, an administrative tribunal or another executive inquiry (including a royal commission) is extraordinary… The extrinsic materials to the Bill do not appear to acknowledge the exceptional nature of such a power. In particular, there is little explanation of the perceived need for the Commissioner’s directions to override the powers of courts, tribunals and public inquiries to compel production, and not merely to restrict voluntary disclosures or publications.
2.78
The Law Council submitted that this power, as currently drafted, could: compromise the independence of courts and administrative tribunals to control the proceedings before them; limit the rights of individuals to seek legal remedies for violations of their rights; and frustrate the ability of other inquiries to obtain relevant, and potentially crucial, evidence to their inquiries (for example, inquiries of the IGADF, IGIS, Ombudsman and royal commissions). It suggested several amendments:
To avoid the significant, adverse consequences outlined above, consideration should be given to limiting the Commissioner’s direction-making power under clause 53 to restricting voluntary disclosures of information including publication. That is, the Commissioner’s directions should not be capable of overriding the powers of courts to order disclosure or discovery. Nor should they override the information-gathering powers of other, independent oversight agencies.
Further, it is desirable for there to be statutory criteria governing decisions to issue directions, as well as time limits and caps on the number of consecutive directions. The Law Council also considered that there should also be a process in place for the internal review, and external merits review, of decisions to issue directions.
2.79
The Law Council also suggested amendments limiting the offence provision in clause 54 of the Bill to circumstances where particular harms are realised or likely to be realised.
2.80
Ms Deborah Morris expressed concern that a non-publication direction could be utilised 'as a gag order for families of the deceased—effectively stopping them from speaking in a public forum':
The passing of a non-publication direction, as it currently stands, speaks to the potential of military suicide being swept under the carpet, yet again, and silenced. As such, the current wording of the nondisclosure clause seems more about protecting the reputation of public institutions at the expense of the rights of grieving families and traumatised individuals.
2.81
AGD stated that clause 53 of the Bill is modelled on section 6D of the Royal Commissions Act and 'provides a flexible mechanism for the National Commissioner to guard against the risk of sensitive information being inappropriately published or disclosed in certain other ways'. It commented further:
A non-publication direction is used to protect against the public disclosure of sensitive information, including information subject to legal professional privilege or information that may identify a witness, where the witness is giving highly personally sensitive evidence. For example, non-publication orders were made by the Royal Commission into Institutional Responses to Child Sexual Abuse with respect to case studies that were the subject of pending criminal proceedings, in order not to prejudice those criminal proceedings, and at the same time that Royal Commission made other orders to permit the publication of those case studies after the criminal proceedings were concluded.
Non-publication directions are only made where necessary, given the general public interest in transparent proceedings. Non-publication orders protect the interests of people providing information to the National Commissioner, especially where the information has been sought on a compulsory basis. This is a well-established power for bodies with the power to compel the provision of information and it operates as a safeguard, not as a gag.
2.82
AGD stated that the ability for the Commissioner to vary or revoke a direction (under subclause 53(2)) provides flexibility to account for any change of circumstances that may arise following a direction being issued.
Exclusion of the Commissioner's operations from privacy and freedom of information laws
2.83
Several submitters and witnesses expressed concern about the proposed exclusion of the National Commissioner from the operation of the Freedom of Information Act 1982 (FOI Act) and the Privacy Act 1998 (Privacy Act) under Schedule 1 of the Consequential Amendments Bill.
2.84
Dr Bruce Arnold, Assistant Professor, Canberra Law School, summarised his concerns as follows:
[T]he two Bills seek to establish a new agency with extraordinary powers but inadequate accountability and engagement with rank & file servicepeople, veterans and their families. There is no rationale for exclusion of protection under the Privacy Act 1988 (Cth) 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. The expectation of very wide collection and sharing of sensitive personal information without consent and inadequate oversight is contrary to respect for current/ex servicepeople and their families. It is contrary to the reasonable expectation that human rights and confidentiality will be respected rather than disregarded on the basis of bureaucratic convenience.
2.85
Ms Deborah Morris, submitted that there is 'absolutely no rationale' for exempting the provisions of the Privacy Act, and argued:
[This exclusion] imposes the same limitations that ADF personnel are subjected to whilst serving in the ADF which limits their individual agency and human rights. In fact, the exclusion of the Act is counter intuitive to trauma informed care—especially within a population of people who are already protective of their privacy given that both DVA and the ADF routinely trespass on their privacy with no consequence. As a result, excluding the Privacy Act will serve to increase distress and potentially create further trauma.
2.86
Ms Morris submitted that the exclusion of the Privacy Act 'removes the protections for the individuals at the expense of the institutions, giving individuals no avenue to ensure that their private and confidential information is protected'.
2.87
The Law Council opposed both proposed exemptions, and recommended that they be omitted from the Consequential Amendments Bill:
[The exemptions] are contrary to fundamental public interests in transparency, and represent a concerning approach to this essential matter by the portfolio with responsibility for FOI and Commonwealth integrity policy. The proposed exemptions are inconsistent with the treatment of other oversight and integrity agencies.
2.88
AGD noted that the proposed exemptions align with the exemption of active Royal Commissions from the operation of the FOI Act, and stated that if a person wished to access or correct their own personal information held by the National Commissioner or the department 'this could be facilitated administratively, despite the Privacy Act process for this to occur not strictly applying'. AGD stated further:
The proposed exemption is targeted to the National Commissioner’s core inquiry powers, and leaves scope for the FOI Act to continue to apply to the department with respect to requests on administrative or corporate related matters.
The FOI Act exclusion reflects the importance of effectively protecting documents which are internal to the operation of the National Commissioner’s role, including documents which have been obtained as evidence by the National Commissioner via the use of a compulsory power.
...
The Bill provides a framework for privacy which is tailored to the National Commissioner’s functions, and the types of information the National Commissioner will hold. For example, the Bill goes further than the Privacy Act by including an offence for unauthorised use or disclosure of information (clause 55). The inclusion of this offence reflects the importance of personal and other information being properly used and handled. In contrast, the general position is that an interference with privacy under the Privacy Act may result in civil penalties for entities.
Workload and reporting requirements
2.89
Some submitters questioned whether the interim Commissioner will be able to adequately complete the initial independent review of past defence and veteran suicides within the timeframes required (with an interim report to be delivered within 12 months and a final review within 18 months of the review commencing). The RARC commented:
The terms of investigating some four hundred suicides and those findings delivered to the Parliament in 18 months seems a task too far. Some five completed investigations in a week is not possible in this sensitive space, where [next of kin] and loved ones, would still be grieving.
Reporting provisions in the Bill
2.90
The Law Council suggested several amendments in relation to the reporting provisions in clauses 60–62 of the Bill, namely:
shortening the timeframe requirements for a report of the Commissioner to be tabled in the Parliament, from the proposed timeframe in clause 60 of the Bill of 15 sitting days after the report is received by the Minister, to a maximum of six sitting days; and
requiring the Government to issue a public response to the Commissioner’s recommendations in a fixed timeframe (indicatively, three-to-six months of the Commissioner delivering a report) not the open-ended period of ‘as soon as is reasonably practicable’ as is currently proposed in clause 61 of the Bill.
2.91
The Vietnam Veterans’ Federation of Australia submitted that departments responsible for implementing the Commissioner’s recommendations, particularly Defence and DVA, ‘should [be] required to meet strict timelines when considering and implementing’ those recommendations, and ‘there should be a requirement to respond within six months with a clear implementation plan for those recommendations or clear reasons for not doing so’.
2.92
RSL Australia submitted:
The timeframe for a response by the Government to the Commissioner’s annual reports is ‘as soon as reasonably practicable’.
A fixed timeframe should be specified for publication of an interim response (which would itself confirm the timing of a final response) to give all relevant parties some certainty regarding response times.
2.93
AGD noted that an express function of the National Commissioner in the Bill is to ‘review action taken in response to any findings or recommendations made by the Commissioner’ (paragraph 11(1)(c), and stated:
The National Commissioner could do this in a variety of ways, including compelling information from relevant entities about steps taken to act on past findings or to implement recommendations. The National Commissioner may provide a further report, which is to be tabled in Parliament, if the Commissioner considers that adequate and appropriate action has not been taken on the matters addressed in the Commissioner’s reports (subclause 62(1)).
It would be a matter for the Government to determine whether it is necessary and appropriate to provide a specific timeframe for Commonwealth responses in the Bill.
2.94
In relation to 'further reports' available to the Commissioner under clause 62, RSL Australia submitted:
There is no requirement for the Government to respond or take other action in relation to any further report from the Commissioner. Clarification is required as to why there is no obligation on the Government to formally respond. Is it intended that the Commissioner would be able to comment further on any action or inaction in that regard in their next annual report?
There should be an express requirement for the Commissioner’s annual reports to track the status of actions taken in response to each recommendation made by the Commissioner until such time as the Commissioner is satisfied that relevant action has been finalised.
2.95
DFWA suggested that in addition to the proposed reporting framework, consideration could be given to ‘having a separate review together with stakeholder involvement and consultation after 12 months to assess the way in which the Commissioner has progressed in the task, he/she has been given’.
Comments on how the proposed National Commissioner should operate
2.96
The committee heard suggestions from stakeholders on how the National Commissioner can partner with other relevant organisations in performing its legislative functions.
2.97
The Royal Australian & New Zealand College of Psychiatrists (RANZCP) highlighted the importance of a collaborative approach by the Commissioner in order to ensure a greater understanding of 'the individual, environmental and systemic factors involved in suicide' and suggested collaboration with the National Suicide Prevention Adviser.
2.98
RANZCP recommended that in order to ensure the 'Commissioner acts as a system improvement function', a formal arrangement for a panel of mental health advisers should be established. RANZCP were of the view that this would 'ensure the role of medical expertise in understanding the issues that contribute to defence and veteran deaths by suicide'.
2.99
Suicide Prevention Australia and Mental Health Australia commented on the need for guidance on how the Commissioner will collaborate with relevant non-government organisations:
[T]the Commissioner will need to collaborate with relevant Veteran’s Support Organisations including Soldier On, Mates for Mates, RSL and Legacy to ensure comprehensive analysis of and co-ordinated response to issues...The legislation would be strengthened by a clear acknowledgement of the importance for the Commissioner of working with these organisations.
2.100
Soldier On submitted that in refining the Bill, the government ‘must ensure that it acknowledges the role of organisations such as Soldier On and works in tandem with them to produce the best outcomes for Australian service and ex-service members’:
Soldier On can work very efficiently on the issue, without the delays typically associated with government. Independently, these organisations have had profound impacts on hundreds of lives; with increased government cooperation and backing, the potential for the ongoing support of veterans and their families is vast.
2.101
RSL Australia stated that the Bill ‘currently includes few mechanisms to directly link the Commissioner to those in the veteran community who may have a broad understanding of issues related to veteran mental health and wellbeing’. It submitted further:
RSL requests a mechanism for it to brief the Commissioner on an annual basis regarding its knowledge of veteran vulnerabilities, both from its own extensive interaction with veterans and its research findings.
RSL notes that Clause 11(f) requires 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. An established mechanism to inform key ESOs would meet the requirements of this clause.
Committee view
2.102
The prevalence of suicide and suicidality among our defence and veteran community is an ongoing national tragedy for Australia. Delivering measures that improve veterans’ mental health outcomes and reduce the rate of death by suicide among this cohort must be a key priority of the government and the parliament.
2.103
The intent of the legislation under consideration by the committee is to create an ongoing, permanent National Commissioner for Defence and Veteran Suicide Prevention, with a broad inquiry function underpinned by Royal Commission-like powers and the ability to monitor and ensure accountability for the implementation of its recommendations.
2.104
The committee notes that there are a range of views within the defence and veterans’ community in Australia about the proposed National Commissioner role. The committee acknowledges that some within the veteran community remain committed to advocating for a Royal Commission into veterans’ suicide, and are not supportive of the Bills in the absence of a Royal Commission. The committee respects the right of these individuals and groups to continue to advocate on behalf of their family members.
2.105
At the same time, the committee also heard significant support for the Bills from a number of Ex-Service Organisations and groups working to support veterans’ mental health. The proposed National Commissioner model has a number of advantages, in particular the broad range of functions it can undertake, underpinned by a trauma-informed and restorative approach, with real ability to monitor follow through and uptake of its recommendations.
2.106
In the committee’s view, the National Commissioner model is worth pursuing as it has the potential to deliver real outcomes for veterans if resourced well and its recommendations are responded to appropriately. The committee acknowledges that concrete actions and outcomes are required, particularly given the number of reviews and inquiries that have been conducted in this area in recent years.
Specific issues in the Bills
2.107
The committee received a significant deal of feedback on specific provisions in the Bills. Two particular issues were raised that the committee considers are worth highlighting.
2.108
Firstly, the committee emphasises the importance of the National Commissioner, once appointed, being able to conduct its work independently and impartially with the full confidence of the Australian community. A number of submitters expressed concern about the potential for the National Commissioner to be too closely aligned to the Defence establishment, and the risk that this could create the perception of bias in the Commissioner’s work. The committee considers that the government should consider this issue carefully in the ultimate appointment process for the National Commissioner.
2.109
Secondly, there was some confusion among stakeholders during the inquiry about whether the Commissioner would be able to investigate attempted suicides among defence personnel and veterans. While AGD informed the committee that this issue can already be covered through the existing functions of the Commissioner expressed in the Bill, AGD officials also noted that there is no reason why the government couldn't take the path of clarifying the Bill ‘if it's not sufficiently clear' in respect of the coverage of attempted suicide. The committee considers that it is of critical importance that the National Commissioner hear directly from the lived experience of veterans who have experienced suicidality. The government should consider whether any additional clarification is required to make this intention clear.
2.110
Beyond these two issues, the committee notes that stakeholders raised a number of other issues about the proposed operation of specific provisions in the Bills. In particular, the Law Council of Australia, while supportive of the objects of the legislation, raised a number of technical issues relating to the drafting of the Bills. The government should consider the issues raised by the Law Council in the development of any technical amendments to the Bills during the passage of the legislation through the parliament.
2.111
The government could also consider including a statutory trigger for a review of the efficacy of the Commissioner’s role within a certain timeframe following the passage of the legislation, to ensure that it is meeting community expectations.
2.112
Noting that significant work is already underway on the establishment of the office of the Commissioner and the initial review of past defence and veteran suicides, the committee's view is that proceeding with the Bills is the most effective way of creating meaningful progress on these issues at this time. The creation of the National Commissioner role will drive accountability, transparency and systemic change over time in order to prevent suicide and suicidal behaviour among serving defence force members and veterans.
2.113
The committee recommends that the Senate pass the Bills, while inviting the government to consider:
whether it is necessary to further clarify the Bills in relation to the coverage of attempted suicide;
whether to include a statutory trigger for a review in a certain timeframe on the efficacy of the Commissioner’s role; and
the importance of independence in the ultimate appointment process for the National Commissioner for Defence and Veteran Suicide Prevention.
Senator the Hon Eric Abetz
Chair