James McGrath (Queensland, Liberal National Party, Assistant Minister to the Prime Minister) Share this | Link to this | Hansard source

I table a revised explanatory memorandum relating to the bill and I move:

That this bill be now read a second time.

Introduction

I am pleased to present this bill to the Senate. Before outlining the bill's provisions, I would first like to address the recommendations made by the Senate Foreign Affairs, Defence and Trade Committee in its report of 20 February 2017 into this bill.

The committee made four recommendations, including that the bill be passed. In addition to this, Labor and Nick Xenophon Team senators made additional comments, which the government has incorporated.

The government would like to thank the committee for its bipartisan contribution.

Recommendations of the Senate Foreign Affairs, Defence and Trade Committee, 20 February 2017 report

The committee's first recommendation was that the Department of Veterans' Affairs consult with the Commonwealth Ombudsman and the Office of the Australian Information Commissioner on the content of the minister's rules before they are finalised and introduced in the parliament.

I am pleased to advise the Senate that both the Privacy Commissioner and the Commonwealth Ombudsman have provided feedback on the public interest disclosure rules.

This has been taken into account, with changes made to the public interest disclosure rules.

The constructive suggestions made by the Privacy Commissioner and the Commonwealth Ombudsman have improved the draft public interest disclosure rules and improved the safeguards surrounding disclosure of information.

The committee's second recommendation was that the Department of Veterans' Affairs undertake a privacy impact assessment of the rules and that the completed assessment be made public.

DVA has undertaken the privacy impact assessment and an executive summary of the assessment was made publically available on DVA's website on 28 February 2017.

The Minister for Veterans' Affairs subsequently asked for an independent privacy impact assessment for the Digital Readiness Bill's public interest disclosure rules once they have been finalised.

Both privacy impact assessments will be released to the public along with the public interest disclosure rules.

The committee's third recommendation was that this bill be amended to include a mandatory review of the implementation of the legislation and accompanying rules two years from the commencement date.

As senators would be aware, the minister moved such amendments in the House, and these were passed on 2 March 2017 and incorporated into the bill.

These amendments are important for two reasons. Firstly, by making the creation of the public interest disclosure rules a mandatory rather than optional part of the provision, it will mean that should this bill pass the Senate the public interest disclosure provision will have no effect until the minister creates the rules and the parliament has consented to them.

Secondly, by placing a two-year review on the public interest disclosure provision, the government has accepted that this provision should be reviewed in order to ensure that the veteran community is being served appropriately by this provision.

For the sake of completeness, I also note that the minister moved, and the House agreed to, amendments to address comments made by the Senate Scrutiny of Bills Committee in its Scrutiny Digest No. 1 of 2017.

I turn now to the recommendations made by Labor senators. Senators Gallacher and Moore recommended that mistake of fact and misinformation be removed from the public interest disclosure provisions of the bill and instead preference be placed on parliamentary privilege to correct these issues. These provisions do not appear in the bill. They were two of the circumstances in which it was contemplated that a public interest disclosure might be made, and appeared in the draft public interest disclosure rules.

The government accepts Labor's recommendation in principle and I am informed that in consultation with the shadow opposition minister, mistake of fact has been removed from the draft rules. Further to this, the draft rules have been tightened around misinformation to make it clear that it refers only to misinformation detrimental to the veteran community.

Finally, Senator Kakoschke-Moore of the Nick Xenophon Team recommended that the minister's rules be made publically available prior to senators voting on them. This will happen. As the rules will be a disallowable instrument, they will be tabled in the parliament with a 15-sitting-day disallowance period. During that time, senators as well as members in the other house will be able to review the rules before voting on them. If the instrument is disallowed, the rules will not come in to effect.

Computerised decision-making (Schedule 1)

Turning now to the provisions of the Bill, the amendments made by schedule 1 would enable the secretary of DVA to arrange for computer programmes to:

This last point is very important with respect to reducing time and resources allocated to administrative parts of DVA's business and improving outcomes for clients. For example, where a particular provision requires notice of a decision to be given, this new computerised decision-making provision will enable the computer program to make the decision.

The proposed computerised decision-making provisions are modelled on section 87 of the Australian National Registry of Emissions Units Act 2011.

I would note that in the department's submissions and in the minister's statements, the government has made clear that this provision is not to be applied to any decision which would require human discretion or any fact-finding. This would include medical liability, decisions with regards to claims, and collection of debts.

Information Sharing (Schedule 2)

Schedule 2 contains two types of information sharing provisions:

1. public interest disclosures, and

2. information sharing under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988, subject to it being enacted.

The Department of Veterans' Affairs has a duty of care in providing its services to veterans and clients. However, currently there are inconsistent provisions on providing information that might be necessary in fulfilling that duty of care.

The public interest disclosure provisions will help DVA address problems with an inability to share information that currently pose a threat to life, health or welfare; issues with the enforcement of laws; service provider abuse; misinformation detrimental to the veteran community; and APS Code of Conduct investigations.

Let me be clear, this section strengthens the protections around veterans' privacy.

The public interest disclosure provisions would enable the secretary of DVA to disclose information about a particular case or class of cases where the secretary certifies that it is necessary in the public interest to do so.

The Privacy Act 1988 legitimately limits the circumstances surrounding the handling and disclosure of a person's personal information, as set out in the Australian Privacy Principles. But there are no codified safeguards as to how this should be done. However, while the department would never seek to abuse the limited application of these principles, there are circumstances where the secretary has need to share information but as I mentioned there are currently no codified safeguards on how this is to be done.

This provision significantly strengthens veterans' privacy by putting in place stringent and concrete controls around how and when this is done both in the bill and in the Public Interest Disclosure Rules.

Firstly, in deciding whether to make a public interest disclosure, the secretary of DVA must follow rules set by the Minister for Veterans' Affairs and there are limits about disclosing personal information, which could result in the secretary committing a criminal offence.

Because this is a new power, safeguards have been incorporated to ensure that it is exercised appropriately. They are that:

Further to these safeguards, there are significant controls placed on the secretary by the Public Interest Disclosure Rules being drafted by the minister.

These include:

It is anticipated that the public interest disclosure provisions would only be used sparingly and in exceptional circumstances. However, by putting in place this provision the government is codifying when and how information is shared above and beyond the current arrangements under the Privacy Act. Let me say again, these codified safeguards will strengthen veterans' privacy.

Turning to the second provision, on information sharing with the Department of Defence, I would like to address a misconception appearing on social media that DVA is unable to otherwise share information, because that is inaccurate. The Veterans' Entitlements Act 1986, section 130; the Safety, Rehabilitation and Compensation Act 1988, section 151A; and the Military Rehabilitation and Compensation Act 2004, sections 346(2) and 409 contain express provisions that enable DVA to share clients' information with certain people for certain purposes. For example, the table at section 409(2) of the MRCA states that the Military Rehabilitation and Compensation Commission may provide information to the Chief of the Defence Force in relation to 'reconsideration or review of a determination about liability for a service injury, disease or death'.

The information-sharing provisions under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988, subject to it being enacted, are necessary to overcome an anomaly that currently exists between the Military Rehabilitation and Compensation Act 2004 and the Safety, Rehabilitation and Compensation Act 1988. The anomaly is that the Military Rehabilitation and Compensation Commission is currently limited in its ability to provide the same types of claims information to the Secretary of the Department of Defence or the Chief of the Defence Force under the Safety, Rehabilitation and Compensation Act 1988 about serving members as it is able to under the Military Rehabilitation and Compensation Act 2004.

It is important that the Secretary of the Department of Defence and the Chief of the Defence Force are able to receive information about serving Defence Force members, particularly in the context of monitoring occupational health and safety or for monitoring the cost to the Commonwealth of a service injury or a service disease, irrespective of which act the claim is made under. The amendments would achieve this by aligning information-sharing provisions under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 with those in the Military Rehabilitation and Compensation Act 2004.

The purpose of the statute update 2016 is to update provisions in the acts to take account of changes in drafting precedents and practices. In particular, that act updates references to penalties expressed as a number of dollars, with penalties expressed as a number of penalty units. Such changes enhance readability, facilitate interpretation and promote consistency across the Commonwealth statute book. The two technical amendments replace reference to specific dollar amounts and penalties under the Veterans' Entitlements Act 1986 with references to penalty units, which is the current Commonwealth drafting practice. There are no substantive changes to the law. This is a technical amendment only.

In conclusion, this bill provides an important plank for the foundation of veteran-centric reform in the Department of Veterans' Affairs. Without it, the Department of Veterans' Affairs will not be able to develop commonsense procedures that will allow the use of new technology. This is fundamental to providing the 21st century service that veterans expect from their government. I commend this bill to the House.

Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

I rise to speak on the Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017.

Labor, as you know Mr Acting Deputy President, is always supportive of measures that will ease the claims process for veterans when dealing with the Department of Veterans' Affairs. As government agencies move closer to a wholly digital platform, it is appropriate to include measures that allow the Department of Veterans' Affairs to engage this platform. Sending the bill to committee assists the parliament to understand the circumstances for which this bill is necessary. Specifically, Labor sent the bill to the Senate Standing Committee on Foreign Affairs, Defence and Trade Legislation Committee to investigate schedule 2. Schedule 2 looks at what circumstances are necessary to allow the Secretary of the Department of Veterans' Affairs to make publicly available personal information of veterans and ex-service personnel. The concerns over provisions in schedule 2 of this bill were discussed during the Senate Standing Committee on Foreign Affairs Defence and Trade Legislation inquiry. To be clear, Labor will not support legislation which gives the department the power to disclose individual medical information, unless there is a threat to life, health or welfare.

We do not support the department using an individual's medical information to correct misinformation in the community and we have been working with the government on the rules which accompany this legislation. Labor also does not believe that if someone makes a genuine mistake about a claim in relation to the administration of the department that the department should respond in a public way. We believe that, if someone is genuinely mistaken, DVA should seek to resolve this matter with them directly and not in the public arena. When it comes to the release of personal information, Labor supports strict rules and enforceable penalties if these rules are breached.

I would like to talk about the Centrelink debt-automation issue. Significant concerns have been raised in light of the issues with Centrelink and the release of personal information by Minister Tudge. In relation to the debt-automation process, the department has assured us that the automation program will not be used in relation to debts. In terms of Minister Tudge and the rules that DHS have in relation to the release of personal information, Labor believes that Minister Tudge unethically leaked personal information as opposed to following his own department's rules. The public interest disclosure, or the rules which accompany the digital readiness legislation, were originally based on the Social Security Act. They have since been worked on tirelessly by Labor to ensure they are far tighter than the version the government first proposed. Due to Labor's intervention, we have been able to strengthen the rules with regard to medical information and the correcting of misinformation and mistake of fact. Labor has worked to ensure these rules are stronger than they were. Work on the rules is still continuing.

The rules are a disallowable instrument, and Labor has been clear that, if we are unhappy with the accompanying rules, we will move to disallow them. Should the rules be disallowed then the part of schedule 2 which would enable the release of information will not proceed. Schedule 2 includes important safeguards to ensure this power is exercised appropriately, including that the secretary must act in accordance with the rules and that the minister is unable to delegate the public interest disclosure power to anyone. Labor has sought to ensure the secretary must notify the person in writing about his or her intention to disclose the information and give the person a reasonable opportunity to make written comments on that disclosure. Finally, if, as the government has just indicated, these safeguards are not abided by, the secretary risks a fine of 60 penalty units, which equates to approximately $10,800.

Labor recognises that there are some circumstances outlined which we believe are appropriate for sharing personal information, especially in circumstances relating to health and wellbeing and with other federal and state agencies in circumstances relating to crime. It is important to recognise those veterans and ex-service personnel who engage the services of DVA do so knowing their information will be kept confidential.

Labor's shadow minister, Amanda Rishworth—and I have to say at this point what a terrific job she is doing in the role—will continue to negotiate the provisions of the rules to ensure these are in line with the expectations of the veterans and ex-service community.

Labor senators reported from the Senate inquiry that there are still serious concerns around the circumstances of mistakes of fact. They also mentioned misinformation in the community and questioned whether these provisions are necessary. Labor senators provided additional comments to the chair, recommending both misinformation and mistake of fact be removed from the rules.

The chair of the Senate inquiry made four significant recommendations. Recommendation No. 1 was that the Department of Veterans' Affairs consult with the Commonwealth Ombudsman and the Office of the Australian Information Commissioner on the content of the minister's regulations before they are finalised and introduced into the parliament. The second recommendation, which I am sure you would be familiar with, Acting Deputy President, was that the Department of Veterans' Affairs undertake a privacy impact assessment of the regulations and that the completed assessment be made public. The third recommendation was that the bill be amended to include a mandatory review of the implementation of the legislation and accompanying regulations two years from the commencement date. You will find that sort of proposal in a lot of legislation these days. Finally, in recommendation No. 4 the committee recommended that the bill be passed, so of course we are supporting the legislation.

By accepting these recommendations, the government will undertake consultation with the Commonwealth Ombudsman and Australian Information Commissioner on the content of the rules and provide further safeguards in the final instrument. Labor is comfortable with the consultation of the Commonwealth Ombudsman and the Australian Information Commissioner to finalise that instrument. Labor will continue to work with the minister to ensure these recommendations are adhered to.

Labor has been working tirelessly to strengthen the Government's Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017 since it was introduced into the parliament and will continue to do so with the accompanying rules.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I rise to make some contributions on behalf of the Australian Greens today and also thank the minister for taking the slightly unusual step of reading the second reading contribution in so that we can have a bit of clarity about what has been going on behind the scenes.

According to the government, the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017 has the objective of improving services for veterans and speeding up the claims processing pipeline. The DVA is preparing for much-needed upgrades to its IT systems and processes, and this bill aims to set the legal pathway for these changes to take place. Currently, legislation governing veterans' affairs and particularly the Veterans' Entitlements Act is antiquated and needs updating to reflect more modern times. I think bringing it into the 20th century is certainly not a bad idea! Likewise, officers at the DVA are using technology of a bygone era. Maybe it is an exaggeration to say that they are still stuck with punch cards and faxes, but it is probably only just an exaggeration. Our understanding is obviously that it is not just a technical constraint; they are also constrained by legislation in that human interaction is required to make and check off really simple calculations that could easily be performed by modern technology.

Through its IT upgrades DVA wants to reduce the time that it takes to reimburse veterans their expenses and to streamline the claims processes, and I want to put on the record right at the outset that the Australian Greens are very supportive of this objective. The need to bring DVA up to date is obvious. Many veterans have to wait more than 100 days to get their money back for their claims. I am sure that Australians on lower incomes in particular can imagine the frustration and the difficulties posed by having to wait inordinate amounts of time to get really simple out-of-pocket expenses reimbursed, and veterans obviously face this systematically.

That is putting our support on the record, but, like others on the crossbench, we have real concerns about some aspects of the legislation, some of which were addressed by the minister and his shadow on the way through. Firstly, I address the byzantine system that is the current veterans' entitlements system. That it is a mess is something that I think all sides of politics probably agree on. Veterans not only face unreasonably long wait periods to be reimbursed the cost of their claims—this is stuff like taxi receipts that might take six months to be reimbursed—on top of this, rates of entitlement are inconsistent and arbitrary. Application and assessment processes are labyrinthine and circuitous. For many veterans, the bureaucracy at DVA is a barrier to getting what they are entitled to. All parties should be working together with the veterans community to create a better system for those who served this country.

In response to this mess, the Greens have consistently said that we support the undertaking of a root-and-branch review of the veterans' entitlements system. This review would determine whether current entitlements are sufficient, which is obviously important, as a separate question to the streamlining of the process. The review would determine whether the current eligibility criteria are fair, including access to health cards, disability pensions, housing and superannuation arrangements. One example that would probably be familiar to many—because I and others have been making this case for many, many years—is an automatic entitlement of atomic veterans to a gold healthcare card. It would be an automatic, as of right, entitlement for the harms to Australian service personnel by the British bombings in the 1950s and 1960s, given that, if those radiation exposures had occurred at the hands of an enemy power, these veterans would automatically be entitled to this highest degree of health care without having to prove that that particular radiation exposure was the cause of their illness and the illnesses of their children. But, because this exposure happened at the hands of an ally, they have been excluded, and they are dying one by one. I understand that that is one particular cohort of individuals that we have utterly failed, and they were harmed in the service, so they thought, of their country. We are very strongly supportive of an overhaul in this regard.

Complaints about DVA are on the rise, which is an indicator that the system is failing. The review of service delivery should consider assigning each veteran a liaison officer to act as a single point of contact to navigate the system. It is just one example.

I understand the government's motivation for bringing these amendments forward is to allow software to perform some of the mundane or repetitious tasks that would be better performed by automated systems in order to free up the human beings to deal face-to-face with the people that they are there to serve. We are obviously supportive of this objective.

In relation to this legislation, though, we believe amendments are necessary, and we have circulated a couple; I understand some of my crossbench colleagues will be doing the same. We believe that a couple of key aspects of the bill need to be changed before it proceeds into law. One is around computerised decision-making and the thresholds whereby we would delegate certain tasks to software as opposed to a human intervention, and the other is around disclosure of information. The recent Centrelink debacle has thrown into sharp relief the need to be hypervigilant with these powers. I do not think it would have escaped anybody's attention in this chamber, or anybody listening to this debate outside this building, the incredible debacle of the Centrelink robo-debt fiasco, which we are aware has cost at least one person his life. People have killed themselves because of the pressure that has been put on them when they have been told by a massive government bureaucracy that they owe significant amounts of money and that they will be pursued and hounded. As it has turned out—with an extraordinarily high failure rate—many of these debts do not exist. Under closer scrutiny they simply evaporate. Yet, the government, instead of acknowledging that its introduction of this automated debt recovery system has been an absolute debacle, have doubled down and have started effectively doxing people, disclosing people's private information, to journalists in an attempt have their side of the story heard. I would put it to you that this is a worst-case example.

Now we are proposing to, potentially, extend the reach of this kind of malpractice to veterans—to people whose health, in many cases, is fragile and whose mental health, in some cases, is fragile. The last thing they are going to need is this kind of treatment from the minister, sitting in the Ministerial Wing of Parliament House. Again, this is not implying bad faith on the part of the minister or his staff, but we are in here to assess what could happen under this government or a future government if good faith were not to be implied. I would assert very strongly that, in the case of the Centrelink example, there is no good faith at play. This is a government that is trying to do political damage control, and it is doing that at the expense of some pretty vulnerable people. The last thing we want to see is for veterans to be subjected to this kind of behaviour. We want to make sure that no government minister is being empowered with that kind of incredible asymmetry of access to a megaphone and that no-one else is put through that kind of horror.

Schedule 1 of the bill deals with computerised decision-making. As I have said already, we have no problem at all with the idea that some of the tasks that are presently, by the sounds of it, being done on punch cards and in paper filing cabinets should be automated to allow the DVA to step into the digital age. If it is the law preventing it, rather than any kind of technical question, then we should amend the law. We look forward to seeing this happening. It makes really good sense, we believe, for computers to determine low-value, high-volume claims like receipts for travel to medical appointments—taxi receipts, for example—and other claims that do not really require high-level human judgement calls. But we want to make sure that the government and the DVA get it right.

That is why we will be supporting an amendment that I understand Senator Lambie is moving to ensure that, at least initially, computer programs cannot be used to determine liability for injury. I want to quote briefly Federal Court of Australia Justice Melissa Perry, who highlighted the potential implications of the use of these pre-programmed systems in decision-making, where you need some nuance and, dare I say, humane judgement calls to be made. This is what she said in a speech that she gave not so long ago:

It is not difficult to envisage that the efficiencies which automated systems can achieve and the increasing demand for such efficiencies may overwhelm an appreciation of the value of achieving substantive justice for the individual. In turn this may have the consequence that rules-based laws and regulations are too readily substituted for discretions in order to facilitate the making of automated decisions in place of decisions by humans. The same risks exist with respect to decisions which ought properly to turn upon evaluative judgments.

I believe the amendment that Senator Lambie will no doubt speak to when she is given the chance to make a contribution is quite an effective way of making the distinction between a piece of software saying, 'Yes, you took that taxi on that day to that appointment; that should be reimbursed'—and it should not take six months to see the money—and the more nuanced decisions where you want human judgements to be brought to bear.

Schedule 2 of the bill is where we also have some real difficulty. That is a schedule that enables the secretary of the DVA to disclose information about a veteran's case or class of cases 'to such persons and for such purposes as the secretary determines, if he or she certifies that it is necessary in the public interest to do so'. That, by definition, is very, very broad in scope.

To pick this apart: at face value, it gives significant power to the secretary to disclose private information. 'Public interest' is an extremely amorphous term. We have tried to find legal definitions of what is considered to be the public interest, and often the public interest is interpreted to mean whatever the minister says on any given day. To add to our concerns, while the secretary must notify the person in writing about any intention to disclose that information, the secretary can still go ahead and disclose it even if the veteran has objected. So you tip off this person in writing that you are going to go them in some public way, and, if the veteran believes that that is unjust and writes back and says, 'Please, can you not?' the secretary can go ahead and do so anyway.

The DVA intends to disclose private information to correct the public record. That sounds familiar to me. I would have thought that the government would be a little bit more judicious, after the disaster that has unfolded with Centrelink, in choosing by way of defending itself to use the disclosure of veterans' private information to add to its talking points. If you believe that the government's decisions have been made correctly and that the government position is defensible, you should be able to make that case without disclosing people's personal information. We are not saying that the government should not have its say. You have access to the press gallery upstairs, but you should not be taking the low road, as Minister Tudge has done, and sacrificing people's privacy in order to make that public case. We do not think that is appropriate at all.

The DVA said in its submission to the Senate inquiry into the bill:

The Department is aware of instances where misinformation or claims that are not factual have damaged the integrity of programmes or prevented veterans from taking up assistance from the Department, often leading to wider spread distress among veterans.

I do have some sympathy with that point of view, and I understand why the government is proceeding this way. Make your case without breaching people's privacy. Surely it is no more complicated than that. During the Senate inquiry, the Office of the Australian Information Commissioner stated:

… I think any agency needs to be extraordinarily cautious when it is going to release information … particularly when it is sensitive information.

…   …   …

When you get to areas such as correcting factual information, it can get into an area where there is potential for an individual's extremely sensitive personal information to be made more widely known.

These are not abstract cases. These are men and women that this country has sent into harm's way, potentially damaged them, sometimes horrifically, in the line of serving their country, and then it brings them home and potentially has them subjected to the government using their personal trauma or background in order to win a public policy argument. It is completely out of line. The Office of the Australian Information Commissioner said:

… when you look at it overall, the initial disclosure process does seem—

too—

broad.

We will no doubt be hearing about the government's development of stringent rules—the minister addressed that issue briefly in his opening comments—and yet the Senate is being asked to pass this bill without any adequate consultation on those rules, so I am not sure that anybody outside this building has even seen them. If they are to be stringent, if they do have that kind of integrity, put them on the table, put out an exposure draft, so that we can analyse them. The minister and no doubt his colleagues will jump up and say, 'But they'll be disallowable.' The point is that, if you have confidence in them, the rules are the engine of this piece of law. They will describe how it is circumscribed and how it is going to operate. We think it is really inappropriate—just speaking on behalf of the Australian Greens, anyway—that we are being asked to effectively pass this bill with those rules sight unseen.

For these reasons, we will be supporting amendments to dramatically limit the disclosure provisions of the bill. We will speak more of that when we get to the committee stage, because there are a couple of different propositions afoot for how we can protect the privacy of veterans while still upholding the obligations of the government and its intentions to streamline the way that these claims are processed, about which I do not think you will find any disagreement with anyone in here. We are supportive of the steps that the government is trying to take to make life easier for veterans in their interactions with the DVA and to help those men and women within the bureaucracy who are trying to do a job and who are constrained at the moment by an extremely archaic act. But we do not support untested computerised decision-making power where human judgement should stay as a central part of the process, and we do not support excessive powers to publicly disclose information in order to win a political fight, which we have seen happen in the most degrading way here in the last couple of months. Without those adequate constraints on public disclosure in particular, we will not be in a position to support this bill.

We look forward to the debate unfolding. I look forward to the contributions of my crossbench colleagues. We hope that the government will see the light of reason and see that the amendments that are being circulated are being circulated in good faith by people who have longstanding history and direct personal experience of these issues. We hope that you will give the Senate the opportunity to do its job and improve this piece of law.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

I rise to support the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017. I intend addressing firstly the question of the general thrust of the minister and the Department of Veterans' Affairs with regard to this IT upgrade. Secondly, I intend to comment on the objectives of the bill. Thirdly, I intend to address the very fair comments made by my colleague Senator Ludlam with regard to privacy. I want to use a couple of personal examples in relation to the need for digitisation as it is expressed in this bill. I want to briefly cover the amendments to the explanatory memorandum that have come about as a result of the Foreign Affairs, Defence and Trade Legislation Committee's deliberations. I also, of course, wish to speak to the recommendations of the chair's report on this particular legislation, since I was the chair.

I want particularly to commend all members of the committee and in general the chamber for the highly responsible and concerned way in which all of us are addressing issues associated with veterans, associated with the capacity of the department to do its job and associated with the willingness of the minister and indeed all sides of the chamber. We come at some of these questions from different perspectives. I accept that; that is the value of what we do in our Senate and in our democratic process. But I also want to say that it is critically important that we have and put veterans front and centre in terms of the objectives we have and the legislation that we are moving. It is very much in that direction that this bill has been presented to the parliament.

As Senator Ludlam has quite rightly said, manual cards are used in some circumstances within DVA to keep records of the applications of veterans in various areas for compensation. We know the secretary of the department, Mr Lewis, when questioned in Senate estimates about the IT capacity of his department at the moment said it was the equivalent of a Commodore 64 computer—which, if my memory serves me correctly, were being used in the 1980s. We have silos all over Australia. We have files that move physically between states for decision makers to make their contribution to this. This is unsatisfactory. It is unsatisfactory from everybody's point of view. I will be urging that the government continues the process of funding the very necessary upgrade to the IT systems so that we can break down those silos, so that we can achieve outcomes for veterans, so that we can make the task of those who have to deliberate upon their applications much easier and so that we can end up with an honour to the veteran community. As I say, on the committee and in this chamber there are many of us whose lives are touched by military veterans. Nobody has got a mortgage on that situation.

I go to comments made by the minister—I think they have been repeated by Minister McGrath—that the bill will make the Department of Veterans' Affairs digitally ready in line with the government's broad digital transformation agenda. I want to make this point very strongly: DVA is undertaking veteran-centric reform to significantly improve services for veterans and their families by re-engineering the DVA business processes. The role of the Committee on Foreign Affairs, Defence and Trade—be it the references committee chaired by Senator Gallacher or the legislation committee which I have the privilege to chair—and the activity of the members of that committee have got to be directed towards veteran centricity and that of their families.

The bill, if passed, will institute reforms that will reduce claims times for the processing of claims. We have a circumstance now in which we see figures of 150 days on average being mentioned. They are unsatisfactory. They do not deal with business days and they do not deal with times when an applicant may request a cessation or an interruption in that process. By anybody's standards, 150 days is unacceptable. Anything that this chamber or this parliament can do to reduce those times must surely be to everybody's benefit.

The bill also introduces amendments to information-sharing provisions and a couple of minor amendments. I am very pleased to be able to report to the Senate that the deliberations undertaken by the committee, as a result of submissions made and personal appearances by witnesses, have indeed led to amendments already being placed before this chamber with regard to this legislation. That speaks, in my view, very strongly of two things: first of all, the capacity of Senate committees to influence outcomes; and secondly, the willingness of the minister to listen, to act and to introduce those amendments as outlined in the amended explanatory memorandum.

So we see, as others have said before me, what the objectives in the whole process of computerising the decision making are. I will listen very carefully to the amendment which I understand my colleague Senator Lambie may move in relation to further restricting any situation in which a computer replaces a human being on important decisions associated with liability. I will listen very carefully to that type of amendment.

What we see associated with the computerised decision making, of course, are issues associated with public interest disclosures and information sharing under the Safety, Rehabilitation and Compensation Legislation Amendment Bill, should it be enacted. I want to make the point again, if I may, that the thrust of this legislation is veteran centric. My colleague Senator Ludlam made some comments about the need for privacy. I want the chamber and those listening to understand carefully and clearly just how this legislation strengthens the privacy factors for veterans. Under present guidelines which are in the Privacy Act 1989 there are certain precepts which I intend to contrast with the digital readiness legislation. We will see how this legislation strengthens, not weakens, the rights of the veteran.

First of all, under existing legislation the department does not need to contact an individual prior to releasing information. However, under digital readiness, when disclosing this information the secretary must contact the individual. That is the first point.

Under current existing legislation the department does not need to provide an opportunity for the individual to respond prior to release. By contrast, under the proposed digital readiness legislation, the secretary must give the person a reasonable opportunity to respond, including their circumstances relating to their age, health, disability, culture or family, and any circumstances which are physical or psychological, to do with national security or anything relevant. Remember: currently, the secretary does not have to alert the individual nor seek the individual's response.

Also, currently the department can release all—I repeat 'all'—of an individual's record. However, under the proposed legislation, an individual's entire record can never be released. Currently, the department can release details of an individual's medical condition. However, under the proposed legislation, no individual's specific medical information can be used to correct misinformation. Should this legislation be passed, the secretary has to consider the individual's circumstances—be that age, health or psychologically related or a national interest matter. Should this legislation be passed, the secretary can only release information proportionate to the objective in the outcome. They have to consider whether anonymous or general information would achieve the same outcome. None of this exists in the current act—the Privacy Act 1988. Only misinformation that is detrimental or harmful to the broader veteran community can be addressed. When addressing misinformation, the secretary has to use anonymous information in the first instance. Each of these points upgrades the privacy factors for military veterans. Only the amount of information required can be used. No individual's medical information can be used to correct misinformation. No individual's national security or service records will be compromised under these safeguards. Private information can never be released in order to argue medical liability. The secretary must take into account comments by the individual, which, if you recall, do not even have to be sought under the current legislation. I make this point: any failure to comply with the above will result in the secretary being subject to criminal penalty. The point is made with numbers of penalty units. Penalty units do not make much common sense to those who do not understand them, but we all understand criminal conviction. It would be a fairly career-limiting move for the secretary of a department of the Commonwealth to be found guilty of a criminal conviction. The penalty will apply to any number of failures. I ask people to reflect on each of those points.

There are five rules pertaining to this legislation for which I do not think I have seen equivalents under other legislation in other portfolios. Firstly, the Minister for Veterans' Affairs sets the rules for how the secretary will exercise his or her powers. Secondly, only the minister can set those rules. So accountability comes back to this place very directly. Thirdly, the secretary cannot delegate those powers given to he or she by the minister of the day. Fourthly, the secretary is personally accountable. The secretary is accountable to the minister and, ultimately, to the parliament. I say again: before disclosing any information, the secretary must notify the person in writing and give them an opportunity to make written comments on the proposed disclosure, and then they must consider those comments. The fifth of the five rules is that, if the secretary fails to comply with the requirements before disclosing personal information, they will commit the offence about which I have spoken.

There would not be anyone in the chamber or, I suspect, among most people listening to this debate who would not now be using the advantages of the digital world. We know when we are banking, for example, that we can use that IT 24 hours a day, seven days a week, from anywhere in the world. We know that we can pay our utility bills in advance, remotely, using electronic technology. We know that we all now have access to, for example, databases of information. What we do not often have is access to how accurate the information might be in a databank. We know that, from anywhere in the world, we can electronically use modern IT techniques. We can book airline tickets online. We can make automated payments. We can transfer money internationally from our device. We can pay our toll road fees electronically, if we happen to go to Sydney. Those of us who are not from the eastern states but are from WA do not experience toll roads, as my good friend Senator Dodson knows. Nevertheless, if you happen to go to Sydney, you can pay your toll electronically. This technology is there in abundance. We even submit our tax returns electronically, and we are told by our computer the amount of our refund or the amount that we have to pay.

I turn now to the strengthening of the protections that are in place in the legislation. There has been consultation on this issue with veterans communities, there has been the Senate process, there has been input by the Senate Scrutiny of Bills Committee, as well as our own Foreign Affairs, Defence and Trade Legislation Committee, and there have been amendments made as a result of those consultations. The amended explanatory memorandum speaks of the need for a positive duty on the minister to make rules regulating the exercise of the public interest disclosure power by the Secretary of the Department of Veterans' Affairs. We all take some credit for the introduction of that amendment. As a result of a recommendation, there will be an amendment to include a mandatory review of this legislation and its accompanying rules two years after the date of its commencement or proclamation.

In conclusion, I will speak to the recommendations of the committee. The committee agreed with the Privacy Commissioner's suggestion that DVA consult with the Ombudsman and the Office of the Australian Information Commissioner in relation to the drafting of the minister's regulations. That is the first recommendation of the committee—that the department consult with the Ombudsman and the commissioner so that the minister can be sure the regulations, before they are put before the parliament, have been observed and commented upon by those two.

Leading to the second recommendation is the Privacy Commissioner's suggestion that DVA undertake a privacy impact assessment to identify and manage privacy risks associated with the bill, and that the completed assessment be published, so that the public can view potential impacts arising from the proposal. That led to our second recommendation: we recommend the Department of Veterans' Affairs undertake that privacy impact assessment and that it be made public.

The third recommendation of the committee is that the bill be amended to include a mandatory review of the implementation of the legislation, and accompanying regulations, within two years. The fourth recommendation of the committee is that the bill be passed.

I wish to conclude my comments by reflecting on the enthusiasm of the minister, the Hon. Dan Tehan, for the way in which he is leading, and the department is responding to, the need to continue to put veterans first. But we must give them the tools. There is no point operating with the equivalent of a Commodore 64. There is no point trying to work with manual cards, sending them all around Australia. There is no value in that. There is no value for the veteran, there is no value for the staff, there is no value for the minister or the department and there is certainly no value for this chamber to see those constraints. I commend the bill to the Senate.

Skye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | Link to this | Hansard source

I rise to speak on the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016. At the outset, I would like to express my sincere thanks to Minister Tehan's office, especially for the sincere, good-faith consultation he has conducted with me and my team. However, the Nick Xenophon Team does remain concerned about a number of aspects of this bill, in particular the public interest disclosure rules. I will turn to those concerns shortly.

The bill encompasses three schedules. The first inserts a provision into each of the Veterans' Entitlements Act, the Military Rehabilitation and Compensation Act and the Safety Rehabilitation and Compensation (Defence-related Claims) Act that seeks to make the Department of Veterans' Affairs digitally ready as part of the broader digital transformation agenda occurring across the government. The proposed changes will enable the secretary to authorise the use of computer programs to make decisions and determinations. They will also enable the secretary to exercise powers or comply with obligations, and do anything else, related to making decisions and determinations under those acts and legislative instruments made under those acts.

The second schedule of the bill inserts a provision into each of the VEA, the MRCA and the DRCA—once it is eventually called that. These provisions will enable the secretary to disclose information about a particular case, or class of cases, to persons for the purposes that the secretary determines, if the secretary certifies that it is necessary and in the public interest to do so.

The second schedule also inserts information-sharing provisions into the DRCA, subject to it being enacted, to correct an anomaly that currently exists between the MRCA and the Safety Rehabilitation and Compensation Act. Currently, the Military Rehabilitation and Compensation Commission is unable to provide information to the Secretary of the Department of Defence and the Chief of the Defence Force under the SRCA but is able to under the MRCA. The amendments will do this by aligning information-sharing provisions under the DRCA with the MRCA. The rationale is that the Secretary of the Department of Defence and the Chief of Defence are able to receive the same information about all serving members, particularly in the context of monitoring occupational health and safety, or for monitoring the cost to the Commonwealth of a service injury or service disease.

The proposed legislative changes in schedule 1 of the bill are designed to make the relevant Defence and veterans' agencies digitally ready in a legal sense and to support much-needed planned business and ICT reforms which we have been told will reduce processing times and automate and streamline existing processes. Inefficiencies within DVA processing claims are well documented in past Senate inquiries and the current Senate inquiry into suicide by veterans and ex-service personnel.

The Nick Xenophon Team is committed to improving outcomes for the veterans community and their families. We support the increased use of automated decision-making only when it achieves better outcomes for veterans, especially if it reduces claim-processing times. We do so, however, on the proviso that such technology significantly improves the quality, efficiency and accountability of public administration.

I note that my colleague Senator Lambie has amendments in relation to when and where automated decision-making processes can be used. I look forward to hearing more about those amendments during the committee stage of this bill.

The digital transformation project proposed by the minister, which this legislation will facilitate, would not normally be controversial, but the census failure and the Centrelink robo-debt disaster highlight the need to tread carefully.

The Commonwealth Ombudsman's submission to the inquiry into the bill highlighted a number of concerns in relation to the provisions of schedule 1. The Commonwealth Ombudsman, in his capacity as Defence Force Ombudsman—a function conferred on the Ombudsman since 1983—reported that, from 1 July 2016 to 31 December 2016, the DFO received 263 approaches about matters of administration in Defence agencies. Seventy-two of these were related to DVA specifically. Twenty-five per cent of approaches were investigated.

The Commonwealth Ombudsman has investigated a range of issues with computer automation, and highlighted that programming errors in automated systems can result in a range of unintended outcomes. These include multiple mail-outs of singular or conflicting correspondence, inaccurate calculations of financial data and the granting of entitlements where the criteria for the granting of entitlements were not met. System errors can and do occur. It is therefore necessary to have a robust quality assurance framework essential to any decision-making processing and to ensure that any automated system follows basic legal values of lawfulness, fairness, transparency and efficiency.

The Department of Veterans' Affairs in its submission to the Senate Foreign Affairs, Defence and Trade Legislation Committee's inquiry into the bill provided a number of examples of the sorts of decisions where computerised decision making would be suitable. These examples focused on where the decision making could be converted into an algorithm and on automatic granting of benefits in certain circumstances where the decision was based on information that was not subject to interpretation or discretion. The department provided an example of a travel reimbursement decision, which is currently calculated by a delegate based on the mode of transport and the number of kilometres travelled at a particular rate of reimbursement.

The department envisages that, under the proposed provisions, a computer program could make the calculation and decision and issue the reimbursement and advice accordingly. This would potentially provide the department capacity to allow clients to submit such claims online and have reimbursements transferred outside of business hours, with the ability for clients to digitally track their requests. This example would certainly alleviate the burden for veterans in the cumbersome paper-based and manual-centric processes that prevent DVA from being agile, client focused and efficient.

The department in its submission assured the committee that computerised decision making would not be used where fact finding and weighing of evidence was required, such as in the interpretation and evaluation of medical evidence. Matters that are subject to interpretation and discretion must remain matters for a human decision maker to determine based on all the evidence provided. During the committee stage, I will be very interested to hear how the government responds to the amendment that has been circulated by Senator Lambie in relation to the use of computerised decision making.

Schedule 1 of the bill makes provision for the MRCC to substitute a decision or determination made by a computer program if the MRCC is satisfied that the decision or determination is incorrect. The provision would enable a delegate of the MRCC to intervene and substitute a decision or determination where a computer program produced an incorrect outcome. Whilst the MRCC can do this on its own motion, without the need for a person to request a review of an incorrect decision made by a computer, it is unclear exactly how the MRCC would be alerted to an incorrect decision and when such a situation could arise. The same provision applies to the VEA, enabling the Repatriation Commission to substitute a decision made by a computer if the commission determined the decision was incorrect. I will be asking questions in the committee stage of this bill as to how DVA's own-motion review of claims subject to automated decision making will work in practice. Given the serious concerns that have been raised around Centrelink's debt recovery system, it is critical that the automated decision making proposal by DVA is subject to robust review.

Additionally, while DVA is gearing up to cater for clients that are tech savvy in a changing digital environment, it must also remain focused on ongoing service provision for vulnerable and elderly clients that do not have access to computers or do not have advanced computer skills. This would ensure that DVA can remain responsive to the needs of all veterans whilst also repositioning its services for changing client demographics in a digital age. On this point, the department in its submission assured the committee:

The ability to automate some aspects of DVA’s business does not mean that veterans would be left dealing with a machine rather than a person. Similarly, it will not mean that veterans would have to have a computer in order to be able to access DVA services. Where veterans would prefer, they will always be able to speak to a DVA staff member.

The department assured the committee that it does not intend to use computerised decision making provisions for automated debt collection. During the committee stage, I would like to seek an assurance from the senator representing the minister as to whether or not the government is committed to not using automated decision making to pursue debts. The department also advised that debt management and collection will remain a matter where the specific circumstances of the individual and the value of the debt are considered in what action is taken and how it is communicated. We cannot risk another Centrelink robo-debt disaster, which would only have catastrophic consequences for a very vulnerable cohort of Australians.

It is the proposed public interest disclosure provisions in schedule 2 of the bill, which would enable the Secretary of the DVA to disclose information about a particular case or class of cases, which have elicited the most concern and angst amongst the veteran community. Whilst the Privacy Act 1988 limits the circumstances surrounding the handling of a person's personal information, the proposed public disclosure provisions in the bill put beyond doubt that the secretary may in limited circumstances release information about a case or class of cases where the secretary certifies that it is necessary and in the public interest to do so. Whilst a number of safeguards have been put in place to protect the release of personal information, the Nick Xenophon Team remains very concerned about an eventual release of a person's personal information and the harm that can flow from that.

The safeguards that the government insists are included, include that 'the secretary must act in accordance with rules that the minister must make about how the power is to be exercised'; only the minister can set the rules, which power cannot be delegated; only the secretary can exercise the public interest disclosure power, which power cannot be delegated; and, before any disclosure, the secretary must notify the person in writing, give that person a reasonable opportunity to make written comments on the proposed disclosure and the secretary must consider those comments. Failure by the secretary to comply with the requirements prior to the disclosure will result in an offence that is punishable by a fine of 60 penalty units—that is about $10,800. The Secretary of DVA will be required to follow a set of rules set by the Minister for Veterans' Affairs, and there are limits about disclosing personal information which could result in the secretary committing an offence.

Further, the government has amended the legislation in the lower house, following a recommendation of the Scrutiny of Bills Committee, to place an obligation on the minister to make rules, where previously no obligation existed in the legislation. The rules in relation to the exercise of the secretary's power to give public interest disclosure certificates are due to be tabled by way of legislative instrument soon. The minister explained to the Scrutiny of Bills Committee that the rules have not been included in the primary legislation, so that should they need amending that can be done by way of disallowable instrument without the delays caused by the introduction of further legislation. The ministerial rules have been modelled on the rules currently in place for the Department of Human Services with many changes, following consultation with the shadow minister, ESORT, myself and others.

It was clear during the Senate Foreign Affairs, Defence and Trade Committee's inquiry into the bill that the Office of the Australian Information Commissioner and the Commonwealth Ombudsman had not been consulted, prior to the hearing, about the rules in order to provide even some broad guidance to DVA and the Department of Defence about what should be in the rules. Both offices stated that they would appreciate the opportunity to review the rules prior to them being tabled in parliament. I thank the minister's office for facilitating such consultation following the hearing.

Whilst I also thank the minister's office for consulting with me, the Nick Xenophon Team remains concerned that the government has not taken into consideration wider stakeholder engagement of rank and file members of the veteran community, many of whom have contacted my and my colleagues' offices to express their concerns with the public interest disclosure provisions. We have been frustrated by not being able to discuss the rules in any detail with veterans, as they were provided in confidence and have not been provided for public scrutiny.

The Andie Fox matter has highlighted the need for the government to be extremely careful when releasing personal information about a person, in that case to a journalist. Whilst no public interest disclosure certificate was issued in that particular case, the matter has backfired on the government and raised concerns in the community and amongst veterans about how a person's personal information could be disseminated by the government. The release of the information in that case has only served to further undermine public confidence, despite the Department of Human Services insisting it was proportionate and legal. It is important to note that the public interest disclosure provisions will have no effect until the rules are tabled in parliament by way of legislative instrument, which, in turn, could be the subject of a disallowance motion.

The rules provide examples of where it might be appropriate for the Secretary of the Department of Veterans' Affairs to disclose information about a case or class of cases, including: where there is a threat to life, health or welfare; for the enforcement of laws in relation to proceeds-of-crime orders; where there is misinformation detrimental to the veteran community; ministerial briefings; research and statistical analysis; APS Code of Conduct investigations; and provider appropriate practices.

The Nick Xenophon Team remains concerned about the secretary's broad power to certify that the disclosure of information is in the public interest and the secretary's ability to provide the information to a person who 'has a genuine and legitimate interest in the information', which could include a healthcare professional or, indeed, a journalist. The Nick Xenophon Team shares the concerns of the Commonwealth Ombudsman in relation to the public interest disclosure provisions that any measures that impact the trust and confidence of the veteran community will exacerbate the level of distrust and have the potential to jeopardise the uptake of services designed to help them.

The veteran community remains distrustful of the DVA, the government and Commonwealth agencies. The veteran community is shown to be a group at high risk of PTSD and other mental health concerns. DVA has already been found, via Senate inquiries, to use the FOI process against veterans in obtaining access to their own records. There is a fear in the veteran community that these measures will only serve to silence them from speaking out.

Given the disquiet about the public interest disclosure provisions in the bill, the minister recently announced an independent privacy impact assessment for the public interest disclosure rules, once they have been finalised, to be conducted by the Australian Government Solicitor in addition to the privacy impact assessment conducted by the DVA. The minister has also undertaken to publicly release both assessments prior to the rules being tabled. The Nick Xenophon Team does look forward to receiving the independent privacy impact assessment soon. However, we remain concerned by the lack of transparency in this process. Why can these draft rules not be made publicly available prior to us, as a Senate, being asked to vote on this bill? It is incumbent upon on us as parliamentarians to ensure that we are working in the bests interests of our veterans, and not simply acting to uphold the reputation of DVA.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

I rise to speak to the Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017. In doing so, I will go back to a paragraph—I will just take a few parts out—from my first speech in this place. Having served in Defence for over two decades, I believe it is important that we recognise that:

Inextricably linked to defence is our ongoing responsibility to those who have served this nation.

… … …

I am conscious, however, that with sustained operational commitments the number of people requiring support is increasing, and this parliament has a duty to ensure that the funding for support services increases at a rate that is at least commensurate with the need.

… … …

We expected the loyalty of service men and women when they enlisted and if they deployed; they have a right to expect ours now they have returned and retired.

And so it has been a focus of mine, both when I was in the other place and since election to the Senate, to work on committees which deal with issues that support our veterans and ex-service members. There have been a number of reports. There have probably been about five reports that I have been involved with during my time here. There are a number of themes that are very consistent. One of them is focus. The legislation, the process and the people who are working within the Department of Veterans' Affairs should be focused on veterans. It should seek to understand the veterans and their families and be empathetic to the things that have created the situation they find themselves in and to beneficially apply legislation to them.

There has been a consistent understanding—albeit there are some individual witnesses who have argued that individuals within DVA are not particularly empathetic. But there are many who have said, 'Look, we recognise that the staff are applying the legislation that they have been given.' In fact, in one recent inquiry last month, a witness said, 'The staff are handcuffed to the rules that they have been given.' So, there has been a call over many years now for us to look at ways where we can refine and improve the rule set to make it more focused on the veterans and more flexible so that it actually meets the needs of the veteran community, recognising that the unique nature of military service does not sit comfortably along some of the rule sets and procedures that we have put in place for looking after other Commonwealth public servants. Along with that also comes a long identified need to improve the tools that are available to the Department of Veterans' Affairs, and, most importantly, amongst those tools is the issue of information technology.

In the day where even one of my uncles in his 90s does his banking and orders his groceries and things on his iPad, and certainly where my generation and my children's generation live on their smartphones and tablets and other devices—we do banking, we register cars and we do all manner of things via mobile devices—it would shock many people to realise that the system that supports our veterans, ranging from the elderly and vulnerable widow of a veteran through to younger men and women who have families and who are seeking to re-engage in our community, is archaic. Much of it is paper based.

In fact, we have heard time and again in inquiries about the problems with the deep separation of functions within DVA. The fact that a paper file that is held on a veteran passes from state office to state office, depending on where a particular piece of work is done, means that not only is there a time delay from this particular file being passed around but there is also a danger of loss, something being misplaced or information that is submitted to one area not catching up with the file. There are a raft of reasons why the current secretary and minister are heavily committed to reinvesting in the Department of Veterans' Affairs in the space of information technology and to bring it, to drag it, into the current age in terms of the tools that are available to the staff within the Department of Veterans' Affairs to use. However, as the witness said earlier this month, if we are to free them from the handcuffs, if we are to give them these new tools, then we also need to give them the legislative basis, the permissions and the legal framework that they can use these tools within. So much of this discussion on this bill is around digital readiness, and I will address some of the concerns that have been raised, some of the issues that have come out of this bill.

The other part that I will touch on briefly is the issue of perception. Because of the flaws in the system, because of the numerous pieces of legislation, because of the people in some cases—I would not say all cases; in fact, I think the majority of staff within the Department of Veterans' Affairs work diligently to seek the best outcome for veterans—because of all of these things there have been times where veterans have been disadvantaged, where veterans have been disadvantaged to the point that we see veteran suicide as a significant issue. That is something that the Senate Foreign Affairs, Defence and Trade References Committee is dealing with as we speak.

Again in the inquiry we had just last week, one of the witnesses identified the fact that perception is incredibly important. He identified that many people do not have the time to locate and read through the details of legislation or new rule sets or even the correct details of cases that have occurred, and so the perception of what has occurred influences the approach and the attitude and, in some cases, the mental wellbeing of veterans who do not feel supported. One of the things this bill looks to do is to provide an opportunity for the minister to go into the public space and to correct the record where there is a perception that is not accurate and that perhaps is being fed by an email that has started doing the rounds of the various networks. We had one example last week of how these things can start. In some evidence that was given there was a reference made to a decrease, or a perceived decrease, in the level of hearing aid available to veterans. This actually occurred some time ago, but as presented in the inquiry the casual observer, listener or reader could very easily assume that it was applicable to this bill. We actually talked about it during the inquiry. We clarified exactly where that evidence had come from and what it applied to, but it is an example of how very quickly people can get a perception that there is a particular outcome that is going to result.

The minister needs the opportunity to correct the record for the sake of the people who are going to be affected by that, for the sake of those who are going to feel less supported or who are going to feel more under pressure or who are going to feel fearful that support may be taken away from them. When those facts are not true, for their sakes and for their health, let alone for the government and reputations and all those other things—for the sake of those in the veterans' community who are affected, it is important that the government has the legal framework and the opportunity to go out and correct that public record. There are a number of concerns that have been raised around that in terms of privacy, and so I will come to some of those points.

The bill itself, the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017, is very much driven by DVA's direction. The government have been very clear that we are seeking for them to reform their direction to one that is veterans' centric, that improves the services for veterans and their families by not only re-equipping DVA in terms of the tools but also their processes and, in this case, the legislation that empowers and allows that to occur. Some of those business tools are things like the ICT reforms that will reduce claims processing times and automate and streamline existing processes. So the bill inserts provision in each of the VEA, MRCA and the new DRCA that would enable the secretary to authorise the use of computer programs to make decisions and determinations to exercise powers, or comply with obligations to do anything else relating to making decisions and determinations or exercising powers or complying with obligations under those acts and legislative instruments made under those acts.

Some concerns have been raised around that, and I will go to the positives first. We have heard Senator Kakoschke-Moore rightly identify that there are many benefits to that. I think Senator Ludlam also recognised there were many benefits to automating decision-making. The case that the DVA and the minister's office have used in their briefings is one that is very straightforward: rather than having to do paperwork and wait weeks when processing transport claims, a claim can be submitted instead via a smartphone app and overnight the transaction is through and it is in the veteran's bank account. That frees up resources within the department; it gets a better outcome for the veteran.

In items 1 and 3 of this particular amendment you might notice that it talks about amending the bill so:

… the Secretary will be enabled to arrange for computer programmes to be used to:

It is important to remember that this is not just about a computer that says 'yes' or 'no'. It is also about using IT to assemble the information that is required for a decision-maker. It is also about using IT to share information, for example between the Department of Defence and the Department of Veterans' Affairs. It is also about automating the process of advising people when a decision is imminent, or has been made, so that that occurs quickly and without delay.

In terms of the concerns that have been raised—I am aware Senator Lambie has some amendments that she is looking to put through—to my mind there is a very simple procedural check that would provide a good balance here. If we do eventually go down the path of having computers use algorithms to look at data and make decisions, to my mind the very simple premise would be that if that decision is beneficial to the veteran then you let it run. But any time there is a decision that is not beneficial to the veteran then that automatically flags it for human intervention so that the opportunity is there to consider the facts that have been provided, to look at the context and to do all the normal things that should be done for the benefit of the veteran. That would also allow people to review why the algorithm did not get that right and how you perhaps need to shape information. Whether it is the MRCC or others that are looking to actually make the final determination, this bill gives them that right.

I think that very simple step would mean that where it is to the benefit of the veteran, and where the algorithm has said yes, the veteran gets the benefit immediately. But if it is to the detriment of the veteran, or if the algorithm says no, then it automatically flags a human intervention. That means we have the same protections in whatever percentage of cases that currently exist and hopefully, with these bills and others that are looking at the creation of DRCA and other things, it will actually get better. It will certainly advantage those who get a quick decision and it would not disadvantage those who got a decision that said no from the computer. My view is that it is a very simple way to optimise the use of the technology and continue to evolve the decision-making algorithms; but the safety net would always be that if the answer was no, in terms of the benefit to the veteran, then it would automatically go for human intervention and review.

The other concern people have raised is around the privacy. This comes back to the issue of perception: if people perceive that benefits are being taken away or that there is something about to happen that will impact on them and their families, it causes stress and—as we have seen in evidence given to us during the current veteran suicide inquiry—the last thing this population needs is more stress, particularly if that stress is unfounded. If they are being fed information which is not true, that is something that we need to work on, as a parliament and as a broader community, with the individual to make to sure that veterans have accurate information so that they are given every support and not placed in positions where their situation is made even worse.

In terms of the privacy safeguards, this is an area where there has been a deal of concern and questions have been raised. There has been quite a bit of interaction between the minister, DVA and the Senate to look at what the public interest disclosure provisions in this bill actually mean. The intent is that it will help the department address problems that they currently have with their inability to share information where there is a threat to life, health or welfare so that they can actually inform people appropriately. The bill passed the House with bipartisan support after some months of public exposure, the scrutiny of two Senate committees, a public hearing and submissions, as well as consultation across parties and with the ex-service community.

There has also been a detailed privacy impact assessment. The assessment concluded that the public interest disclosure provisions contain detailed and stringent controls over the exercise of the disclosure power that reflect the importance of taking necessary and proportional considerations into account before relying on the provisions to make a disclosure. The bill consequently has several safeguards. The safeguards in this legislation include that the minister must make the rules about how the power is to be exercised. These rules, importantly, will be a disallowable instrument, which means that not only does the minister bear in mind his focus on saying that we should be veteran-centric, working for the benefit of veterans, and that he must make the rules but the parliament—importantly from a perspective of both transparency and accountability, because the rules are a disallowable instrument—still gets to the view those, scrutinise them and either approve or disallow them.

The secretary of the department must act in accordance with the rules. It is important to recognise that the legislation actually makes provision that if the secretary of the Department of Veterans' Affairs does not comply with the natural justice requirements before disclosing personal information then he or she will commit a criminal offence, punishable by a fine of 60 penalty units, which is currently over $10,000. Certainly, for a senior public servant to be convicted of a criminal offence is a significant power and disincentive for people to do the things that often they are accused of, such as working in an underhand manner. I do not believe they do, but that is often a perception. This is a very powerful legislative principle to stop that occurring.

The minister cannot delegate his or her power to make rules about how the power is to be exercised by the secretary of the department. The secretary cannot delegate the public interest disclosure power to anyone else. Before disclosing personal information about a person, the secretary must notify the person in writing about his or her intention to disclose the information, give that person a reasonable opportunity to make written comments on the proposed disclosure of the information and consider any written comments made by the person. Finally, after the public interest disclosure provisions and rules have been in operation for two years, there will be a review of the operation of those provisions with a report to be tabled in both houses of parliament. There are a number of significant checks and balances placed in the system. This is not something that can be used arbitrarily to the detriment of any particular veteran or person, but something where there is natural justice incorporated, there is transparency about what the rules are and there are legislative provisions to make sure that people apply them.

So, I do support the bill. I support it because after a number of inquiries in this place I have seen the consistent call for improving the legislative basis that constrains how people within the Department of Veterans' Affairs work. I have seen the consistent calls for them to have improved IT services, and we need to provide them the legislative permission to use those services. As I said, I think the simple catch-all to protect the veteran is that where a decision is made—if we actually do end up using computers to make decisions—if it is to the benefit of the veteran it goes ahead, and if a decision is not to the benefit of the veteran it is automatically is flagged for a human intervention. I commend the bill to the house.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

I rise to speak on the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017. I have to say that when I first got into parliament in 2014 I went to see Senator Ronaldson. Finally, three years later, the government has its act together.

If it has taken them three years to work this out and they still cannot connect the rules, or show the rules at the same time, then maybe they need to know about poll numbers today. But I am not talking about their poll numbers—the ones in their own parties. I am talking about 21 veterans who have taken their lives this year. I want to thank Ray Martin for those statistics this morning. That is where we are.

This bill would allow the Department of Veterans' Affairs to undertake business reforms and to implement new information and communications technology, otherwise known as ICT, to reduce time spent on claims and processing, and to improve services to veterans. The bill gives DVA's secretary the authority to use computer programs to make decisions in any claims over three separate acts, which include the Veterans Entitlement Act 1986, or the VEA; the Military Rehabilitation Compensation Act 2004, formerly known as MRCA; and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988—the DRCA. The bill also significantly alters veterans' privacy in three pieces of veterans' legislation—the VEA, the MRCA and the SRCA, which may become known as the DRCA if it is enacted by this parliament.

Firstly, the bill would commit the Department of Defence and DVA to share personal and medical records—sending alarm bells already, I can assure you. Secondly, it permits the DVA secretary to disclose information about a particular case or class of cases if the secretary believes it is necessary and in the public interest to do so. And if that is not an alarm bell in itself for Simon Lewis, gee, shoot me down today! The bill's overall intent is good, particularly in making necessary reforms and introducing ICT, which will likely benefit veterans if their claims are processed more quickly and efficiently—they are the key words—and improve veterans' services by DVA overall.

However, schedule 2 of the bill, which deals with the privacy of veterans, has not undergone a robust and thorough independent privacy impact statement or assessment. This means that schedule 2 fails to comply with the PIA guidelines provided by the Office of the Australian Information Commissioner. In fact, just a few days after this bill was passed by the House the South Lake Macquarie sub-Branch of the Returned Services League of Australia in New South Wales started a change.org petition to urge this Senate to stop the bill, based upon serious privacy concerns by the veterans' community. In fewer than two weeks, the petition received over 10,000 electronic signatures.

The change.org petition received thousands of comments supporting the petition, including from the RSL New South Wales chief executive officer, Glenn Kolomeitz. He noted:

Veterans' entitlements and rights have been slowly eroded via the passage, over the last 30+ years, of a complex and inequitable legislative regime. It is time for the RSL to get its mongrel back and fight legislation of this nature lest it devolves into irrelevance.

The DVA and the Minister for Veterans' Affairs have stated in media releases, as well as on social media, that DVA had consulted the veterans' community on this bill and that it was developed in consultation with the veteran's community, including the RSL. That is absolute rubbish! Absolute rubbish! Basically, the Department of Veterans' Affairs stood in front of them and told them that this was what was going to happen—that it was all hunky-dunky and all good to go. They know what I do with these ESOs. They do not have barristers and lawyers to look after them because the government does not pay them enough! The government does not pay for that service for them.

Just last week it was revealed in a hearing into the different veterans' legislation and the DRCA bill by the Senate Foreign Affairs and Defence Legislation Committee that the committee is concerned with DVA's current consultation and engagement practices. In a report issued just today, it recommended a review of DVA's consultation and engagement practices. The change.org petition contained more than 10,000 signatures, and showed that the Senate committee's concern about DVA's inadequate consultation practices is more than valid. That the petition to stop the bill, based on veterans' privacy concerns, gained these signatures in fewer than two weeks suggested that the Minister for Veterans' Affairs' statements about consultation with the RSL are either lies or that the consultation did not go far enough. I can say to them: they might well have gone up by about 50,000 signatures if I had plugged it on my social media account.

The Senate Scrutiny of Bills Committee raised questions about why rules or guidance about the exercise of the secretary's disclosure power cannot be included in the primary legislation and asked why there is no duty on the minister to make rules regulating the exercise of the secretary's power, noting that this bill will provide the secretary with significant power. I would have thought that the secretary, Simon Lewis, has more than enough already that he cannot control.

In response to the Scrutiny of Bills Committee, on 12 December 2016 the Minister for Veterans' Affairs indicated that with respect to a veteran's privacy the proposed public interest provision was modelled on the Social Security (Administration) Act 1999, which had been in operation for 17 years and had never been a cause for concern. And what do you know? Here it comes! Two months later this statement by the Minister for Veterans' Affairs came back to haunt him, when in February 2017 Centrelink leaked personal information to a journalist after a Centrelink client had publicly claimed she was wrongly targeted by Centrelink over an unfair debt.

Basing veterans' privacy on social security law, given the Centrelink release of personal information, should give serious pause for thought to my fellow colleagues here in the Senate. Veterans deserve no less than robust protection of their privacy for their personal and medical files. Schedule 2 of this bill fails in providing strong privacy protection and, as such, I will introduce an amendment that will scrap schedule 2 from the veterans' digital readiness bill, for which I do believe I have support from the crossbenchers. However, Labor is still going to play the game, so while they are making up their rules—I think it was nine lots they have already done and they are now on their 10th or 11th—and mucking around with that, it will be interesting to see how many more veterans suicide over the next month while we are waiting for them to clear up this little matter. It is an embarrassment to the government that something so simple has been made into mincemeat and that more veterans' lives are being put on the line.

Once the Minister for Veterans' Affairs and the DVA undertake an independent PIA—privacy impact assessment—on veterans' privacy and then consult with all stakeholders, including the veterans' community, the minister is free to come back to parliament to introduce an amendment to the veterans' digital readiness bill that provides adequate privacy protections in dealing with veterans' records. Until this is done, this Senate should not authorise schedule 2 of this bill because it would be bad law and could have negative consequences for vulnerable veterans. I can assure you that, after 13 years of being in the Middle East on rotation after rotation after rotation, there are a lot of vulnerable veterans out there. We have only to see the vulnerability of our Vietnam veterans where most did one year in a war zone. These veterans have done nine, 10, 11 and 12 tours. Simply put, veterans' privacy should not be framed from social security law. Veterans make an enormous sacrifice to serve and protect our great nation and, as such, the very least we can do, as lawmakers, is to afford them a robust and independent privacy impact assessment and consultation process before we vote on something so important.

Automated decision-making will be useful to speed up claims processes; however, the DVA computer system and software have yet to be designed and built—that is the other issue. There is a lot of concern with regard to initial decisions related to a service injury or disease or reassessment of such. There is absolutely no computer program—if anyone can show me one or present different evidence, please do—that I am aware of, that is able to take into account High Court and Federal Court precedents in the decision of a claim for liability of an injury or disease—we just do not have the algorithms to do that.

Noting the recent serious concerns about the Centrelink debt-recovery data-matching system and the errors that have been reported about that system, it would be wise to only allow the legislation to make decisions on matters that do not involve initial decisions on liability of injuries or disease. To protect vulnerable veterans, I will be introducing an amendment to this bill which would limit decisions to those that do not involve claims for liability on an injury or disease which is service connected. This amendment will include reassessments of such claims. I do not see an issue with a computer program being able to make decisions on travel claims, reimbursement or expense-related claims and claims of a similar nature. For those who not know, this is actually already being done. I can submit a claim through the computer to DVA. The only thing that is holding them up is that it has to be signed off by a delegate, so I do not know why this has taken so long. I do not understand why it needs to be signed off by a delegate if you are already entering it into the computer system yourself.

Until DVA has a proven track record in the building and development of ICT, this Senate should not risk subjecting any veterans who defend our great country to a system where the computer says no to a legitimate compensation claim involving the initial liability determination or reassessment of injuries or diseases related to their Defence service. This parliament owes our veterans a duty of care in ensuring there are little to no errors in allowing DVA to make computer program decisions, especially with respect to first getting a veteran's foot into the door at DVA. After the Department of Veterans' Affairs has built and designed the computer system and the software and has developed a track record of success with decisions such as travel expenses, then it may come back to parliament to seek an amendment to broaden its computer program decision-making abilities.

Given the high number of veteran suicides—as I mentioned—and the present Senate inquiry into this most serious issue, we should not risk giving DVA free rein to make any and all decisions by computer program. If this Senate passes this bill as is, that is exactly what we will be doing: giving complete freedom to the executive branch of government, through the Minister for Veterans' Affairs and the Department of Veterans' Affairs, to make any and all decisions by computer program, before it is even designed, built and tested, with very little input and oversight by the legislative branch of government.

In a few years' time we do not want to find ourselves holding another Senate inquiry into veterans' suicides due to computers saying no to an initial liability claim for injury or disease that effectively seals off the door to DVA, absent an appeal. We, as lawmakers, need to get this right as there is far too much at risk to give the executive branch free rein to allow a computer program to make decisions, given the program has not even been designed, implemented or tested as yet. I think we are jumping the gun—you may want to start with the design. I understand this is based on money and that the government wants it to go through the budget. I think it is about $30 million. It is the same $30 million that former Senator Ronaldson spoke to me about—I am assuming it is in that same area. Until the computer program is out there and we can all see that it is working, why—in my own words—do we need to do this backwards? Because it is backwards. You are doing it the wrong way in an about face. I hope my Senate colleagues will support my amendments to this bill which will help to protect veterans' privacy and will prevent computer systems getting in error in DVA.

Before I sit down, I have some really serious concerns about giving so much more power to the Secretary of the Department of Veterans' Affairs. I do not know if people out there know that there have been recent cases where DVA delegates at level 4—they are not little delegates; they are advocates at level 4; they are about as high as they can go—have been told. They are out there putting their messages on social media and voicing their opinions. They are allowed to. It is a democracy. It is a free country. Simon Lewis does not like that. Simon Lewis does not like it when the truth is in his face. These level-4 advocates are now paying the price. One has 45 cases sitting on his desk and he has been told, in no uncertain terms, that he has to follow the rules; the rules that have been set by Simon Lewis. One of those rules is that he is allowed one email per week. How can he do that when he has 40 or 45 files on his desk, and I think there are about a dozen going through the AAT?

How does a secretary get so much power that he can shut down a level-4 advocate? He has put nothing in place to take over the veterans that this level-4 advocate has on his books. He has done nothing. He has left veterans out there sitting on the sidelines, wondering who the hell they go to next. This is the power already shown by Simon Lewis, and you want to give him more? Come on. He is already dictating to level-4 advocates how they are going to interact with DVA, because goodness forbid we put things on social media which are pretty much true. I will say they are true, and I have no problem putting it up there either when it comes to Simon Lewis and his lack of action or his inability to do his job. He does not like it? I say this to you, Lewis: here's a box of Kleenex. Suck it up. If you started doing the job properly, we would not be 'slandering' you all over social media with the facts coming back to bite you. That is how it operates.

As for checks, balances and all this sort of stuff: no, there are no checks and balances in DVA. That is why you have already had this many suicides this year. As a matter of fact, while we have been screaming for two years to have a royal commission into Veterans' Affairs, I think that, after the 500 or 600 submissions that have come through in the most recent inquiry and the one that was held into mental health in February-March last year, we have no other choice but to do the right thing as politicians and at least call for an independent forensic audit into the management and administration of Veterans' Affairs. We do not have a choice. There is something really wrong going on in that department. It stinks to high heaven and it is taking out veterans.

Before you vote for this bill—especially Labor—have a good think about what you are doing. I would hope that people are going to support my amendments.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I want to begin by recognising Senator Lambie's evident passion and longstanding interest in this issue. She is a very sincere and genuine advocate for the interests of veterans, and I recognise her for that. But I also think that all of us in this place value our veterans. All of us should value our veterans. All of us want to take the absolute best care of them in recognition of the wonderful service that they have given throughout their careers representing our interests and our values overseas. I include in that the minister responsible for this legislation, Minister Dan Tehan. I do not think you will meet a more conscientious, caring, thoughtful or compassionate minister. He is very passionate about delivering the absolute best outcomes for our veterans. In this place we may disagree about the best means to deliver that, and that is well and good. We should have that debate. But I do not doubt for a second the genuine commitment that the minister has shown on this issue and any other issue in his portfolio when it comes to the interests of veterans.

I would like to focus for a moment on one of the positive aspects of this bill that perhaps has not had sufficient airing in this debate so far, and that is the potential for these reforms—the modernisation of these processes—to deliver much faster resolution of claims by our veterans with the department. There are veterans who wait up to 120 days to get an outcome for their applications to the department, and that is not good enough. Technology can and does allow us to really significantly improve that, and that is something that we should all welcome. Computerisation is not something to be afraid of; with the appropriate checks and balances, modern systems can ensure that we do deliver much better, more efficient service to veterans. I know one of the issues that they commonly raise is the length of time it takes to resolve their claims. They are right to be concerned about that, and this bill and the measures associated with it absolutely seek to address those concerns.

Obviously, Senator Lambie and others have raised concerns about the privacy safeguards in this bill, and they are right to be concerned about the privacy of our veterans. We are all concerned about that. But the truth is that this bill significantly improves in a number of key areas the protection of the privacy of our veterans. I will summarise a few of the key ones here for the benefit of the Senate and anyone watching, particularly veterans who may have concerns about their privacy.

Currently, the law which dictates how veterans' privacy should be dealt with is the Privacy Act 1988, and there are a number of inadequacies under it. Under this new policy, they will be addressed, and that will be improved. One example is that, under the Privacy Act, the department is not required to contact an individual prior to releasing their information. This bill, if passed, will require them to do that. It will require the secretary of the department to contact the individuals. Another weakness of the current law is that the department does not need to provide an opportunity for the individual to respond prior to the release of their information. Under this bill, if passed, the secretary must provide a person a reasonable opportunity to respond, including age, health, disability, social, cultural, family circumstances and any physical, psychological, national security or relevant circumstances. This is a much more extensive requirement than exists under the current act.

Currently under the law, the department can release all of an individual's record. Under the change that will be brought about if this bill passes, an individual's entire record can never be released. Under the current law, the department can release details on an individual's medical conditions. Under the proposed bill, no individual's specific medical information can be used even to correct misinformation. Under the current law, the department can provide information to anyone it believes should have it whether or not they have a need for it. Under this bill, only people who have a genuine and legitimate interest can be provided with that information.

Those are just some of the key safeguards that are being introduced by this bill and which are an improvement on the status quo. I recognise that they may not be sufficient to accommodate Senator Lambie's concerns, but I think they are a significant improvement on the status quo. The secretary also has to consider an individual's circumstances, as I mentioned before. They have to consider the physical, psychological, national security or relevant circumstances about the individual. The release of the information has to be proportionate to the objective of the outcome, which is not something that is required under the current law. The secretary has to consider whether anonymous or general information could achieve the same outcome.

Only misinformation that is detrimental or harmful to the broader veterans community can be addressed. When information is used to address misinformation, the secretary has to use anonymous information in the first instance. No individual's specific medical information can be used to correct misinformation. No individual's national security or service records will be compromised. An individual's private information can never be released in order to—

Stephen Parry (President) Share this | Link to this | Hansard source

Order! It being 2 pm, we now move to questions without notice.