Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-17
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
VETERANS' AFFAIRS LEGISLATION AMENDMENT (DIGITAL READINESS AND
OTHER MEASURES) BILL 2017
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Veterans' Affairs,
The Honourable Dan Tehan MP)
This Memorandum takes account of amendments
made by the House of Representatives to the Bill as introduced
VETERANS' AFFAIRS LEGISLATION AMENDMENT (DIGITAL
READINESS AND OTHER MEASURES) BILL 2017
OUTLINE
The Department of Veterans' Affairs (DVA) is undertaking veteran centric reform to
significantly improve services for veterans and their families by re-engineering DVA
business processes.
In anticipation of planned business and ICT reforms that will reduce claims
processing times and automate and streamline existing processes, legislative
amendment is required to make the Department of Veterans' Affairs digitally ready in
a legal sense, in line with the Government's broad digital transformation agenda.
The Bill inserts a provision in each of the VEA, MRCA and DRCA that would enable
the Secretary to authorise the use of computer programmes to make decisions and
determinations, exercise powers or comply with obligations and do anything else
related to making decisions and determinations or exercising powers or complying
with obligations under those Acts, and legislative instruments made under those Acts.
The Bill also inserts a provision in each of the VEA, MRCA and DRCA that would
enable the Secretary to disclose information about a particular 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.
This power is accompanied by appropriate safeguards including that the power cannot
be delegated by the Secretary to anyone, the Secretary must act in accordance with
rules that the Minister must make, the Minister cannot delegate his or her rule making
power, there are limits on disclosing personal information, unless the Secretary
complies with certain requirements before disclosing personal information, he or she
commits an offence, punishable by 60 penalty units and the public interest disclosure
provisions and accompanying rules will be subject to a mandatory review of their
implementation two years from the commencement date, with a report to be tabled in
each House of the Parliament..
The additional safeguards of making it mandatory, rather than discretionary, for the
Minister to make rules associated with the public interest disclosure provisions, and
the review of the public interest disclosure provisions two years after their
commencement, give effect to the Senate Standing Committee for the Scrutiny of
Bills' comments and the Senate Foreign Affairs, Defence and Trade Committee's
recommendations, respectively.
The Bill also inserts three information sharing provisions in the DRCA between the
Military Rehabilitation and Compensation Commission and the Secretary of the
Department of Defence or the Chief of the Defence Force (CDF). The ability of DVA
to provide claims information to the Department of Defence in relation to serving
members under the DRCA will be more restrictive than under the MRCA. These
amendments will create consistency between the two Acts.
1
Finally, the Bill makes very two minor technical amendments to the VEA that were
intended to be made as part of the Statute Update Act 2016, but which were
overlooked, as well as a minor and technical amendment to the short title of the
DRCA.
FINANCIAL IMPACT STATEMENT
None.
2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
VETERANS' AFFAIRS LEGISLATION AMENDMENT
(DIGITAL READINESS AND OTHER MEASURES) BILL 2017
Schedule 1 - Computerised decision-making
Schedule 1 of the Bill is compatible with the human rights and freedoms recognised
or declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview
The amendments in Schedule 1 insert a provision into each of the VEA, MRCA and
DRCA, which would enable the Secretary of the Department of Veterans' Affairs to
authorise the use of computer programmes to make decisions and determinations,
exercise powers or comply with obligations and do anything else related to making
decisions and determinations or exercising powers or complying with obligations
under those Acts, and legislative instruments made under those Acts.
Human rights implications
Schedule 1 does not engage any human rights issues as it simply enables a computer
programme to be authorised by the Secretary to make decisions that would otherwise
be able to be made by either the Repatriation Commission or Military Rehabilitation
and Compensation Commission (MRCC.) It makes no change to the substance of the
law.
Conclusion
Schedule 1 is compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, as it does not engage any of the applicable rights
or freedoms or alter any human rights safeguards currently in place.
3
Schedule 2 - Disclosure of information
Schedule 2 is compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview
The amendments in Schedule 2 insert a provision in each of the VEA, MRCA and
DRCA that would enable the Secretary of the Department of Veterans' Affairs to
disclose information about a particular 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. Several safeguards have been incorporated into the Bill to
ensure that the power will be exercised appropriately.
Schedule 2 also inserts two information sharing provisions into the DRCA. The
information sharing provisions are based on equivalent provisions under the MRCA
and are designed to align information sharing between the MRCC and the Secretary
of the Department of Defence and the Chief of the Defence Force across both Acts.
Human rights implications
Schedule 2 engages the following human right:
Privacy
The right to privacy and reputation is contained in article 17 of the International
Covenant on Civil and Political Rights (ICCPR.)
Public interest disclosure
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. The amendments are designed to put beyond doubt that the Secretary
may, in certain limited circumstances, release information about a case or class of
cases.
Examples of the circumstances in which it might be appropriate for the Secretary to
disclose information about a case or class of cases include where there is a threat to
life, health or welfare, for the enforcement of laws, in relation to proceeds of crime
orders, mistakes of fact, research and statistical analysis, APS code of conduct
investigations, misinformation in the community and provider inappropriate practices.
The amendments would achieve this because they would enable the Secretary to
disclose information about a particular 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.
4
Importantly, several safeguards have been incorporated into the Bill to ensure that the
power will be exercised appropriately:
the Secretary must act in accordance with rules that the Minister must make
about how the power is to be exercised
the Minister cannot delegate his or her power to make rules about how the
power is to be exercised to anyone
the Secretary cannot delegate the public interest disclosure power to anyone
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 the person a reasonable opportunity to make written
comments on the proposed disclosure of the information and consider any
written comments made by the person
unless the Secretary complies with the above requirements before disclosing
personal information, he or she will commit an offence, punishable by a fine
of 60 penalty units (approximately $10,800), and
the Minister must arrange for a review of the public interest disclosure
provisions, including the rules made under those provisions, to be undertaken
two years after they commence. A report of the review must be prepared and
tabled in each House of the Parliament within 15 sitting days of that House
after the report is completed.
Significantly, any interference with a person's privacy will not be arbitrary under the
proposed provisions because, if the Secretary proposes to disclose personal
information about a person, he or she must first notify the person in writing about his
or her intention to disclose the information, give the person a reasonable opportunity
to make written comments on the proposed disclosure of the information and consider
any written comments made by the person before disclosing the personal information.
Further, the rules to be made by the Minister (which the Secretary must follow) would
set out the matters to which the Secretary must have regard in giving a public interest
certificate and the circumstances in which a public interest certificate may be given.
Information sharing provisions
The amendments are designed to overcome an anomaly that currently exists between
the MRCA and the SRCA. The anomaly is that the MRCC is unable to provide the
same sort of information to the Secretary of the Department of Defence or the Chief
of the Defence Force under the SRCA about current serving members as it is able to
under the MRCA.
This reflects the historical development and context of the two Acts. However, with
the re-enactment of the SRCA as the DRC, it is important that the Secretary of the
Department of Defence and the Chief of the Defence Force are able to receive the
same sort of 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 a service disease.
5
The amendments would achieve this by aligning information sharing provisions under
the DRCA with those in the MRCA.
Importantly, in each of the proposed information sharing provisions, the sort of
information, the purposes for which and the persons to whom it could be disclosed are
appropriately prescribed and limited, consistent with the equivalent provisions in the
MRCA.
Conclusion
Schedule 2 is compatible with human rights as, to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate.
6
Schedule 3 - Technical amendments
Schedule 3 is compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview
The amendments in Schedule 3 update provisions to take account of changes to
drafting precedents and practices. In particular, references to penalties expressed as a
number of dollars will be updated with penalties expressed as a number of penalty
units.
These amendments will ensure that older provisions on the Commonwealth statute
book continue to be expressed in ways that are consistent with the overall legal
context in which they operate and reflect changes to the law. The amendments also
enhance readability, facilitate interpretation and administration, and promote
consistency across the Commonwealth statute book.
There is also one minor and technical change to amend the short title of the DRCA.
Human rights implications
Schedule 3 does not engage any human rights issues as it makes minor technical
corrections and technical improvements. It makes either no change, or only minor
changes, to the substance of the law.
Conclusion
Schedule 3 is compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, as it does not engage any of the applicable rights
or freedoms or alter any human rights safeguards currently in place.
7
VETERANS' AFFAIRS LEGISLATION AMENDMENT (DIGITAL
READINESS AND OTHER MEASURES) BILL 2017
Short Title Clause 1 provides for the short title of the Act to be the
Veterans' Affairs Legislation Amendment (Digital Readiness
and Other Measures) Act 2017.
Commencement Clause 2 sets out the commencement date of the provisions of
the Act.
Schedules Clause 3 provides that legislation that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable
items in the Schedule concerned, and any other item in a
Schedule to this Act has effect according to its terms.
This explanatory memorandum uses the following abbreviations:
"DRCA" means the Safety, Rehabilitation and Compensation (Defence-related
Claims) Act 1988;
"MRCA" means the Military Rehabilitation and Compensation Act 2004;
"MRCC" means the Military Rehabilitation and Compensation Commission;
"SRCA" means the Safety, Rehabilitation and Compensation Act 1988;
"the Department" means the Department of Veterans' Affairs;
"the Secretary" means the Secretary of the Department of Veterans' Affairs; and
"VEA" means the Veterans' Entitlements Act 1986.
8
Schedule 1 - Computerised decision-making
Overview
Items 1, 3 and 5 of Schedule 1 insert a provision into each of the MRCA, DRCA and
the VEA, respectively, that would enable the Secretary to authorise the use of
computer programmes to make decisions and determinations, exercise powers or
comply with obligations and do anything else related to making decisions and
determinations or exercising powers or complying with obligations under those Acts,
and legislative instruments made under those Acts.
Background
The Department is undertaking veteran centric reform to significantly improve
services for veterans and their families by re-engineering the Department's business
processes.
In anticipation of planned business and ICT reforms that will reduce claims
processing times and automate and streamline existing processes, legislative
amendment is required to make the Department digitally ready in a legal sense, in line
with the Government's broad digital transformation agenda.
Explanation of the Items
In relation to items 1 and 3, which will amend the MRCA and the DRCA, the
Secretary will be enabled to arrange for computer programmes to be used to:
make decisions or determinations
exercise powers or comply with obligations, or
do anything else related to the above two dot points
which the MRCC can do under those Acts or legislative instruments made under those
Acts.
In the context of this reform, these provisions would enable the Secretary to arrange
for a computer programme to do anything else related to making a decision or
determination or exercising a power or complying with an obligation. For example,
where a particular provision requires notice of a decision to be given, the computer
programme may both make the decision and send the notice, thus automating parts of
the Department's business and improving outcomes for clients.
Subitem (2) of items 1 and 3 provides that actions undertaken by the operation of a
computer programme under subitem (1) are taken to be actions of the MRCC.
Subitem (3) of items 1 and 3 would enable the MRCC to substitute a decision or
determination made by a computer programme (which by virtue of subitem (2) it is
taken to have made) if the MRCC is satisfied that the decision or determination is
incorrect.
9
This provision would enable a delegate of the MRCC to intervene and substitute a
decision or determination where a computer programme has produced an incorrect
outcome. The MRCC will be able to exercise this power on "own motion," without
the need for a person to request review of an incorrect decision or determination made
by a computer programme.
Subitem (4) of items 1 and 3 makes it clear that this substituted
decision/determination power does not affect or limit Chapter 8 with respect to item 1
(reconsideration and review of determinations under the MRCA) or Part VI with
respect to item 3 (reconsideration and review of determinations under the DRCA.)
The substituted decision/determination power is intended to give the MRCC the
ability to undertake own motion review for any incorrect decisions or determinations
made by the operation of a computer programme, particularly in relation to decisions
and determinations made under legislative instruments under the MRCA and the
DRCA.
Item 5 is the same as items 1 and 3, except that it amends the VEA and will enable
the Secretary to arrange for computer programmes to be used to:
make decisions or determinations
exercise powers or comply with obligations, or
do anything else related to the above two dot points
which the Repatriation Commission can do under the VEA or legislative instruments
made under the VEA.
As with subitem (2) of items 1 and 3, subitem (2) of item 5 provides that actions
undertaken by the operation of a computer programme under subitem (1) are taken to
be actions of the Repatriation Commission.
As with subitem (3) of items 1 and 3, subitem (3) of item 5 would enable the
Repatriation Commission to substitute a decision made by a computer programme
(which by virtue of subitem (2) it is taken to have made) if the Repatriation
Commission is satisfied that the decision is incorrect.
Subitem (4) of item 5 makes it clear that this substituted decision power does not
limit any other provision in the VEA that provides for review or reconsideration of a
decision. The substituted decision power is intended to give the Repatriation
Commission an ability to undertake own motion review for any incorrect decisions
made by the operation of a computer programme, particularly in relation to decisions
and determinations made under legislative instruments under the VEA.
Items 2 and 4 insert a definition of "Secretary" into the MRCA and the DRCA
respectively. "Secretary" will mean the Secretary of the Department of Veterans'
Affairs. This is necessary because the new computer programme provisions refer to
"the Secretary" arranging for the use of computer programmes and there is currently
no definition of "Secretary" in either the MRCA or the DRCA.
Item 6 will prevent the Secretary from delegating his power under subitem (1) of
item 5 (arranging for the use of computer programmes to make decisions under the
10
VEA or legislative instruments made under the VEA.) This is appropriate because it
will ensure that the decision about whether to authorise the use of a computer
programme to make decisions is taken at the highest organisational level within the
Department.
This is not necessary with respect to items 1 and 3 because, under the MRCA and the
DRCA, the Secretary is unable to delegate any of his or her powers. That is, there is
no provision that allows the Secretary to delegate his or her powers under those Acts,
as there is under the VEA. Any delegated powers under the MRCA and the DRCA,
are powers of the MRCC.
Any amendments to the DRCA are contingent on the enactment of the Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016.
11
Schedule 2 - Disclosure of information
Overview
Items 1, 7 and 10 insert a provision into each of the MRCA, DRCA and the VEA,
respectively, that would enable the Secretary of the Department to release certain
information in certain circumstances where the Secretary certifies that it is necessary
in the public interest to do so.
Items 3 - 6 insert two information sharing provisions, and two small consequential
amendments, into the DRCA.
Background
In certain limited circumstances it may be appropriate for the Secretary of the
Department of Veterans' Affairs to disclose information about a person that was
obtained by a delegate performing their duties under the MRCA, DRCA and the
VEA.
Examples of the circumstances in which it might be appropriate for the Secretary to
disclose information about a case or class of cases include where there is a threat to
life, health or welfare, for the enforcement of laws, in relation to proceeds of crime
orders, mistakes of fact, research and statistical analysis, APS code of conduct
investigations, misinformation in the community and provider inappropriate practices.
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. The purpose of the public interest disclosure provisions is to put beyond
doubt that the Secretary may, in accordance with items 1, 7 and 10, release
information about a case or class of cases.
The information sharing provisions, and related consequential amendments, are
necessary because, with the creation of a stand-alone version of the SRCA with
application to Defence Force members, the ability of the MRCC to share claims
information about current serving members with either the Secretary of the
Department of Defence or the Chief of the Defence Force is more limited than it is
under the MRCA. These amendments will align information sharing under the
DRCA with arrangements under the MRCA.
Explanation of the items
Public interest disclosures
The public interest disclosure provisions are modelled on paragraph 208(1)(a) of the
Social Security Administration Act 1999 and would enable the Secretary 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. In deciding whether to make a public
interest disclosure, the Secretary must follow rules set by the Minister and there are
limits about disclosing personal information, which could result in the Secretary
committing an offence.
12
Examples of the circumstances in which it might be appropriate for the Secretary to
disclose information about a case or class of cases include where there is a threat to
life, health or welfare, for the enforcement of laws, in relation to proceeds of crime
orders, mistakes of fact, research and statistical analysis, APS code of conduct
investigations, misinformation in the community and provider inappropriate practices.
It is expected that the "class of cases" disclosure would be particularly relevant for
research and statistical analysis purposes.
Because this is a new power, six safeguards have been incorporated to ensure that it is
exercised appropriately. They are described in further detail below but, briefly, they
are:
the Secretary must act in accordance with rules that the Minister must make
about how the power is to be exercised (subitem (2) of items 1, 7 and 10)
the Minister cannot delegate his or her power to make rules about how the
power is to be exercised (item 11)
the Secretary cannot delegate the public interest disclosure power (item 12)
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 the person a reasonable opportunity to make written
comments on the proposed disclosure of the information and consider any
written comments made by the person (subitem (6) of items 1, 7 and 10)
unless the Secretary complies with the above requirements before disclosing
personal information, he or she will commit an offence, punishable by a fine
of 60 penalty units (approximately $10,800) (subitem (7) of items 1, 7
and 10), and
the Minister must arrange for a review of the public interest disclosure
provisions, including the rules made under those provisions, to be undertaken
two years after they commence. A report of the review must be prepared and
tabled in each House of the Parliament within 15 sitting days of that House
after the report is completed (item 14).
In addition to the above safeguards, the Department (on behalf of the MRCC and the
Repatriation Commission) manages clients' personal information in compliance with
the Privacy Act 1988, and the Department can be required to pay compensation for
breaches of the Privacy Act 1988. In addition, departmental staff may face sanctions
under the Australian Public Service Code of Conduct if they handle a client's personal
information in an unauthorised manner.
Subitem (1) of items 1, 7 and 10 would enable the Secretary of the Department of
Veterans' Affairs to disclose information about a particular 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.
Subitem (2) of items 1, 7 and 10, would oblige the Secretary, when giving a
certificate under subitem (1) of items 1, 7 and 10, to act in accordance with the rules
that the Minister makes under subitem (3) of items 1, 7 and 10.
13
It is intended that, should this Bill be enacted, the Minister for Veterans' Affairs
would make rules setting out the circumstances in which the Secretary may make a
public interest disclosure under subitem (1) of items 1, 7 and 10.. The nature and
content of those rules is likely to be similar to the Social Security (Public Interest
Certificate Guidelines) (DSS) Determination 2015, and will set out the matters to
which the Secretary must have regard in giving a public interest certificate and the
circumstances in which a public interest certificate may be given.
Examples of the sorts of circumstances in which it is envisaged that the Secretary
might consider it necessary to make a public interest disclosure under subitem (1) of
items 1, 7 and 10, include where there is a threat to life, health or welfare, for the
enforcement of laws, in relation to proceeds of crime orders, mistakes of fact, research
and statistical analysis, APS code of conduct investigations, misinformation in the
community and provider inappropriate practices.
Subitem (3) of items 1, 7 and 10, would create a mandatory instrument-making
power so that the Minister must prescribe the rules governing the exercise of the
Secretary's power to give certificates under subitem (1) of items 1, 7 and 10. These
rules would be subject to disallowance by the Parliament.
This would mean that, if the Minister does not make rules under subsection
409A(3) of the MRCA, 151B(3) of the DRCA and 131A(3) of the VEA, the Secretary
cannot exercise the power under the public interest disclosure provisions. The
mandatory nature of the Minister's rule-making power responds to comments made
by the Senate Scrutiny of Bills Committee in its Scrutiny Digest 1/17.
Subitem (4) of items 1, 7 and 10, is included to assist readers and provides that a
certificate given under subitem (1) of items 1, 7 and 10 in relation to a particular case
is not a legislative instrument within the meaning of section 8 of the Legislation Act
2003.
Subitem (5) of items 1, 7 and 10, is included to assist readers and provides that a
certificate given under subitem (1) of items 1, 7 and 10 in relation to a class of cases
is a legislative instrument within the meaning of section 8 of the Legislation Act 2003.
In accordance with the principles of the rule of law that the law is applied equally and
fairly and that it is capable of being known to everyone, it is more appropriate, with
respect to a class of cases, for the certificate to be in the form of a legislative
instrument.
Subitem (6) of items 1, 7 and 10 limits disclosure of a person's personal information
under subitem (1) of items 1, 7 and 10 unless the Secretary has first notified the
person in writing about his or her intention to disclose the information, given the
person a reasonable opportunity to make written comments on the proposed
disclosure of the information and considered any written comments made by the
person.
This is an important safeguard and affords a person about whom a public interest
disclosure may be made natural justice because they will have an opportunity to
14
comment on any proposed disclosure, which the Secretary must consider before
proceeding to make the disclosure.
Requiring the intended disclosure, and any comments by the affected person about the
disclosure, to be in writing will ensure that the decision making process is clearly
documented and evidenced. What constitutes a 'reasonable opportunity" for
comment in relation to paragraph (b) of subitem (6) of items 1, 7 and 10 will depend
on the factual circumstances of each case.
Subitem (7) of items 1, 7 and 10 would establish an offence, if the Secretary
disclosed personal information about a person under subitem (1) of items 1, 7 and 10
without first having complied with subitem (6) of items 1, 7 and 10 (the Secretary
must notify a person in writing about his or her intention to disclose the information,
give the person a reasonable opportunity to make written comments on the proposed
disclosure of the information and consider any written comments made by the
person.)
The proposed penalty level is 60 penalty units which is currently $10,800 (see section
4AA of the Crimes Act 1914.) This provision is another important safeguard in
ensuring the proposed power under subitem (1) of items 1, 7 and 10 is exercised
appropriately.
Subitem (8) of items 1, 7 and 10 provides that, to avoid doubt, information disclosed
in accordance with items 1, 7 and 10 is taken, for the purposes of the Australian
Privacy Principles, to be authorised by the MRCA, DRCA and the VEA, respectively.
This provision puts it beyond doubt that personal information can be disclosed when
undertaken in accordance with items 1, 7 and 10.
Subitem (9) of items 1, 7 and 10 inserts a definition of "personal information" into
the MRCA, DRCA and the VEA, respectively. "Personal information" will have the
same meaning as in the Privacy Act 1988. This amendment is necessary because
items 1, 7 and 10 refer to "personal information" and there is currently no definition
of "personal information" in the MRCA, DRCA or the VEA.
Items 2 and 13 and subitem 8(2) are application provisions for items 1, 10 and 7
respectively. Items 2 and 13 and subitem 8(2) provide that disclosure of information
under items 1, 10 and 7 may only occur after those provisions commence (which is a
date to be fixed by proclamation), but that the information able to be disclosed under
items 1, 10 and 7 may have been obtained before, on or after commencement of those
items.
Finally, in relation to the public interest disclosure provisions, while merits review
will not be available for decisions made by the Secretary about whether to issue a
public interest certificate or release information, judicial review will be available.
Merits review is not considered appropriate in relation to these decisions because,
once information is released, remedies available under merits review are unlikely to
be of benefit to the person concerned. Further, in situations where the Secretary
provides information for law enforcement purposes or in relation to proceeds of
crime, these sorts of decisions are not amenable to merits review, as noted by the
15
Administrative Review Council in its publication, "What decisions should be subject
to merits review?"
Item 9 inserts new subsection 130(3) into the VEA to make it clear that, information
disclosed in accordance with subsection 130(2), is taken, for the purposes of the
Australian Privacy Principles, to be authorised by the VEA.
Item 11 amends paragraph 212(1)(a) of the VEA to prevent the Minister from being
able to delegate his or her power to make rules under new subsection 131A(3) of the
VEA. This will ensure that the person making the rules and exercising the power
cannot be the same person, which is an important safeguard.
It is not necessary to prohibit delegation with respect to subitems 1(3) and 7(3)
because, under the MRCA and the DRCA, the Minister cannot delegate any of his or
her powers.
Item 12 amends subsection 214(1) of the VEA to prevent the Secretary from
delegating his power under subitem (1) of item 10 (giving a certificate that it is in the
public interest to disclose information.) This is another safeguard to ensure that this
proposed new power will be exercised appropriately.
This is not necessary with respect to items 1 and 3 because, under the MRCA and the
DRCA, the Secretary is unable to delegate any of his or her powers. That is, there is
no provision that allows the Secretary to delegate his or her powers under those Acts,
as there is under the VEA. Any delegated powers under the MRCA and the DRCA,
are powers of the MRCC.
Item 14 provides for review of the public interest disclosure provisions, and their
accompanying rules. Item 14 would implement recommendation 3 made by the
Senate Foreign Affairs, Defence and Trade Committee in its 20 February 2017 report
into the Veterans' Affairs Legislation Amendment (Digital Readiness and Other
Measures) Bill 2016.
Subitem 14(1) states that, two years after the commencement of item 14 the Minister
must cause a review of the public interest disclosure provisions, including the rules
made under those provisions, to be conducted. Subitem 14(2) requires the Minister
to have a report of the review prepared and subitem 14(3) requires the Minister to
table a copy of the report in each House of the Parliament within 15 sitting days of
that House after the report is completed.
The two year anniversary referred to in subitem 14(1) would be two years after the
public interest disclosure provisions under the MRCA commence. Those provisions
will commence on a single day to be fixed by Proclamation or, if they do not
commence within 6 months of Royal Assent, the day after that 6 month period
expires.
The two year anniversary has been linked to the commencement of the public interest
disclosure provisions under the MRCA, because that is the date on which the public
interest disclosure provisions under the VEA would also commence. The public
interest disclosure provisions under the DRCA are contingent on the Safety,
16
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016
being enacted.
Information sharing
Item 3 inserts new table item 2A in the table in subsection 147(2) of the DRCA. The
table lists the provisions of the DRCA which are to be modified for the purposes of a
defence-related claim.
Table item 2A modifies section 61 of the DRCA so that, where a determination
relates to liability for an injury, disease, death or the permanent impairment of a
person who was a member of the Defence Force at the time of the determination, the
MRCC must give a copy of the notice to the Chief of the Defence Force.
This amendment is necessary because the obligation to provide claims information
about serving members to the Chief of the Defence Force under the DRCA (which is
a re-enacted version of the SRCA, modified to apply only to members of the Defence
Force and their dependants) is more limited than the equivalent provision under the
MRCA: subsection 346(2).
This amendment would align the information sharing provisions of the DRCA, to
those in the MRCA. Importantly, it would enable the MRCC to advise the Chief of
the Defence Force of determinations relating to liability and Permanent Impairment
determinations.
Subitem 8(1) is an application provision and provides that item 3 above only applies
in relation to notices given on or after commencement of that item. Item 3 will
commence on the later of either a date fixed by proclamation or 28 days after Part 2 of
Schedule 1 to the Safety, Rehabilitation and Compensation Legislation Amendment
(Defence Force) Act 2017 commences. As noted below, any amendments to the
DRCA are contingent on the enactment of the Safety, Rehabilitation and
Compensation Legislation Amendment (Defence Force) Bill 2016.
Item 4 amends subsection 151(1) of the DRCA by omitting the words "relevant to a
defence-related claim" and substituting the words "required for the purposes of this
Act." This amendment is designed to align information sharing under the DRCA with
section 406 of the MRCA.
Under the SRCA, the words "relevant to a defence-related claim" were required to
ensure that section 151 of that Act only applied to defence-related claims. As the
DRCA will only apply to Defence Force Members and their dependants, these words
can be removed and the words, "required for the purposes of this Act," substituted
instead.
Item 5 inserts new subsection 151A(1A) into the DRCA. The new subsection will
authorise the MRCC, or a staff member assisting the MRCC, to provide certain
information obtained in performing their duties under the DRCA to the Secretary of
the Department of Defence. This information sharing power is modelled on
section 409 of the MRCA.
17
The information to be provided must relate to the following purposes:
litigation involving an injury, disease or death of an employee, in relation to
which a claim has been made under the DRCA; or
monitoring, or reporting on, the performance of the Defence Force in relation
to occupational health and safety; or
monitoring the cost to the Commonwealth of injuries, diseases or deaths of
employees, in relation to which claims have been made under the DRCA.
Under section 151A of the SRCA, the Department can provide any information
obtained in performing duties under that Act to certain specified agencies as the case
requires. Currently, this is limited to agencies that administer legislation relating to
Health, Aged care, Centrelink or Medicare. This has prevented the Department from
providing claims information to the Department of Defence, outside of what is
currently prescribed by the SRCA.
This amendment would align information sharing under the DRCA with subsection
409(2) of the MRCA. Subsection 409(2) of the MRCA states that "the Commission
(or a staff member assisting the Commission) may provide any information obtained
in the performance of his or her duties under this Act to a person or agency" for
certain specified purposes.
For Defence purposes, regulation 21 of the Military Rehabilitation and Compensation
Regulations 2004 states that information released under subsection 409(2) may be
used (among other reasons) in monitoring or reporting on the Defence Force's
occupational health and safety performance or for monitoring the cost to the
Commonwealth of a service injury or a service disease. The SRCA currently does not
have a similar provision to allow information to be disclosed that would enable the
Department of Defence to monitor occupational health and safety risk (and cost) to
the Commonwealth.
Item 6 makes a technical amendment to paragraphs 151A(2)(a) and (b) of the DRCA
as a consequence inserting new subsection 151A(1A) (by item 5.)
Any amendments to the DRCA are contingent on the enactment of the Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016.
18
Schedule 3 - Technical amendments
Summary
Items 2 and 3 of Schedule 3 are technical amendments that were intended to be made
as part of the Statute Update Act 2016, but which were overlooked. The purpose of
that Act is to update provisions in Acts to take account of changes to 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.
Item 1 is also a technical amendment to amend the short title of the Safety,
Rehabilitation and Compensation (Defence-related Claims) Act 1988, once it is
enacted.
Background
Current Commonwealth drafting practice is to express penalties for criminal offences
as a number of penalty units. The current value of a penalty unit is $180 (see section
4AA of the Crimes Act 1914). However, many older Commonwealth Acts contain
references to penalties that are expressed as an amount in dollars. Section 4AB of the
Crimes Act 1914 has the effect that if a provision refers to a penalty in dollars, this is
converted into a reference to a penalty of a certain number of penalty units (by
dividing the number of dollars by 100, and rounding up to the next whole number if
necessary), which leads to a higher penalty than is stated in the provision.
Converting references to dollar penalties under section 4AB of the Crimes Act 1914 is
time consuming for the community and the appearance of dollar amounts on the face
of the statute book that are less than the actual legal penalty can be misleading.
Consistent with the intent of the Statute Update Act 2016, the items in this Schedule
convert existing references in the VEA to penalties expressed as a number of dollars
into references to penalties expressed as a number of penalty units to remove the need
to convert the amounts and reduce the potential for confusion.
Explanation of the items
Item 2 amends the penalty for the offence under subsection 127(4) of the VEA
(failure to comply with a notice served by the Secretary) from "$1,000 or
imprisonment for 6 months" to "Imprisonment for 6 months or 10 penalty units."
This means that, consistent with section 4AB of the Crimes Act 1914, the monetary
fine for this offence is currently $1,800 instead of $1,000.
19
Item 3 amends section 216 of the VEA so that, instead of the maximum penalty level
for contraventions of the regulations being $500, it will be 5 penalty units (ie,
currently $900.)
Item 1 would amend the short title of the Safety, Rehabilitation and Compensation
(Defence-related Claims) Act 1988 (DRCA), once it is enacted. When the Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016
was introduced into the Parliament, it amended the long title of the DRCA, but not the
short title. This amendment rectifies that situation and ensures that the short title of
the DRCA is consistent with the long title.
20
Index]
[Search]
[Download]
[Bill]
[Help]