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2016-17
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
VETERANS' AFFAIRS LEGISLATION AMENDMENT (DIGITAL READINESS AND
OTHER MEASURES) BILL 2017
FURTHER SUPPLEMENTARY 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 Veterans' Entitlements Act 1986, the
Military Rehabilitation and Compensation Act 2004 and the Safety, Rehabilitation
and Compensation (Defence-related Claims) Act 1988 (if enacted) 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 creates one exception with respect to automated decision-making, which is
adverse liability decisions. Where a decision on whether an injury, disease,
aggravation or death is related to service would be adverse to a client, that decision
cannot be made by a computer program. Instead, it must be referred to a human
delegate for determination.
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 would be more restrictive than under the MRCA. These
amendments will create consistency between the two Acts.
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.
1
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.
2
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 three 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.)
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 DRCA, 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.
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.
3
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.
4
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.
5
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. However, a computer program
cannot make a liability decision that would be adverse to a client.
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.
Proposed subsections 4A(1A) of the MRCA and 3A(1A) of the DRCA would impose
an exception to the general computerised decision-making enabling power. In respect
of the MRCA, the Secretary would be prohibited from authorising the use of a
computer program that would determine that a person's death, injury or disease is not
service related. That is, a computer program cannot be authorised to reject a claim for
liability. Only a human delegate of the MRCC could consider and make a
determination rejecting liability.
Under the DRCA the Secretary would be prohibited from authorising the use of a
computer program that would determine that a person's:
disease was not contributed to, to a significant degree, by the person's employment,
injury (other than a disease) did not arise out of, or in the course of, his or her
employment, or
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aggravation of an injury (other than a disease) is not an aggravation that arose out of,
or in the course of, his or her employment.
That is, a computer program cannot be authorised to reject a claim for liability. Only
a human delegate of the MRCC could consider and make a determination rejecting
liability. For completeness, an injury under the DRCA includes an injury that results
in death.
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.
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.
7
As with proposed subsections 4A(1A) of the MRCA and 3A(1A) of the DRCA,
proposed subsection 4B(1A) of the VEA would impose an exception to the general
computerised decision-making enabling power. In respect of the VEA, the Secretary
would be prohibited from authorising the use of a computer program that would
determine that a veteran's death, injury or disease was not war-caused, or that the
death, injury or disease of a member of the Forces or a member of the Peacekeeping
Force was not defence-caused. That is, a computer program cannot be authorised to
reject a claim on the basis that liability for the condition or death cannot be accepted.
Only a human delegate of the Repatriation Commission could consider and make a
determination rejecting liability.
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
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.
8
Schedule 2 - Disclosure of information
Overview
Items 3 - 6 insert three information sharing provisions, and two small consequential
amendments, into the DRCA.
Background
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
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.
9
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.
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.
Subitem 8(2) is an application provision and provides that item 5 only applies in
relation to notices given on or after commencement of that item, but that the
10
information able to be disclosed may have been obtained before, on or after the
commencement of item 5. Item 5 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. Any
amendments to the DRCA are contingent on the enactment of the Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016.
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.
11
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.
12
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.
13
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