Labor is concerned that many stakeholders have expressed serious reservations with the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020 and National Commissioner for Defence and Veteran Suicide Prevention (Consequential Amendments) Bill 2020 (the Bills), however the Senate Foreign Affairs, Defence and Trade Legislation Committee Chair’s report glosses over much of this.
Firstly, the Senate Foreign Affairs, Defence and Trade Legislation Committee (the Committee) heard that while there is some support for the Bills, there was significant evidence from submitters and witnesses who did not support the Bill in its current form.
A number of submitters expressed support for the broad intent and objectives of the Bills to establish a National Commissioner for Defence and Veteran Suicide Prevention (the Commissioner), however many of these identified issues with a view to improving them.
For example, Soldier On expressed support for the establishment of a Commissioner, while providing several suggestions in relation to the Commissioner’s proposed work. The Law Council of Australia also expressed support for the broad aims of the Bill and the proposed functions of the Commissioner, while highlighting a number of problems with the Bills.
Some submitters 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. Several also commented on its ability to consider attempted suicides and the lived experience of veterans.
For example, the Defence Force Welfare Association Queensland Branch 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. Ms Deborah Morris submitted that the Commissioner’s proposed remit is too narrow, and that “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”.
Some stakeholders suggested that the scope of the Bills was too narrow and needed to be clarified, for example, so that a proposed review of historic suicides included attempted suicides and suicides from 2001 to the present, and not just to 2018, as this would exclude Mr David Finney, who died in February 2019 and whose mother, Ms Julie-Ann Finney, has been a strong advocate for a Royal Commission into veteran suicide.
Secondly, multiple 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 suicides.
Some raised concerns relating to a perceived lack of independence in the staffing and resourcing arrangements to be afforded to the Commissioner.
For instance, 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).
More significantly, other stakeholders, such as KCI Lawyers, 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. Similarly, Hawthorn RSL Sub-Branch strongly called “not for an open-ended National Commissioner, but for a complete and independent Royal Commission into Veteran Suicide Prevention, with a specific time-frame”.
A number of 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. Military lawyer, veteran and former NSW RSL CEO Mr Glenn Kolomeitz told the committee the National Commissioner would actually make things worse, not better, and he was not comfortable with the Government’s approach.
Some submitters questioned whether the interim Commissioner was adequately resourced and 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).
Barrister Mr Mark Plunkett, who was involved in the Royal Commissions into Aboriginal deaths in custody, the home insulation program and institutional child sexual abuse. He raised concerns that the Commissioner was being set up to fail, pointing out the Royal Commission into Aboriginal Deaths in Custody had six commissioners who took four years to look into 99 deaths, whereas the Commissioner’s review of past suicides will take 18 months to cover 500 deaths.
This reflects Labor’s concerns that without proper resourcing, the Commissioner could end being little more than a glorified Federal coroner and a post box, undertaking an in-house desktop review of past suicides and without the capacity to delve deeply into individual cases. Further, it appears the Commissioner intends to hold hearings in secret and thus keep the issues behind closed doors and out of the public domain, when in fact many families wish to participate in public hearings so they have a platform to tell their stories, as would be the case with a Royal Commission.
In addition, Ms Julie-Ann Finney 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. Indeed, 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.
Ultimately, it was these families who have called specifically for a Royal Commission that the Government sought to placate with its announcement of a Commissioner. And yet, it is these very families, who are the intended beneficiaries of the Bills, who now feel this was an act of bad faith on the part of the Government, and who are now so vigorously opposed to the proposed approach. This is an important litmus test and a damning indictment on the Bills, and it highlights precisely why they should not be passed.
Recommendation
Labor recommends that the Senate not pass the Bills in their current form.
Senator Kimberley Kitching
Senator Tim Ayres
Deputy Chair
Committee Member