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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL COMMISSIONER FOR DEFENCE AND VETERAN SUICIDE
PREVENTION BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Honourable Christian Porter MP)
NATIONAL COMMISSIONER FOR DEFENCE AND VETERAN SUICIDE
PREVENTION BILL 2020
GENERAL OUTLINE
1. The Bill establishes the National Commissioner for Defence and Veteran Suicide
Prevention (the Commissioner) as an independent statutory office holder within the
Attorney-General's portfolio. The Bill gives effect to the announcement of the creation of
this new office made by the Prime Minister, the Hon Scott Morrison MP, on
5 February 2020.
2. The Bill is divided into five parts. Part 1 sets out preliminary matters relating to the
commencement, objects and definitions of particular terms in the Bill, and its extraterritorial
operation. The main object of the Bill is to provide for a Commissioner to examine defence
and veteran deaths by suicide through a broad range of functions and powers, in order to
support the prevention of future deaths by suicide.
3. Part 2 of the Bill provides for the establishment and appointment of the
Commissioner, as well as arrangements for staff to assist, or receive a delegation from, the
Commissioner. Part 2 also sets out the functions of the Commissioner, which include:
inquiring into the circumstances of relevant defence and veteran deaths by suicide
making findings and recommendations addressing defence member and veteran
wellbeing and suicide prevention strategies, and any policy, administrative or
structural reforms that may be required
working collaboratively with State and Territory Coroners to understand issues
contributing to defence and veteran deaths by suicide
maintaining a record of relevant deaths by suicide notified to the Commissioner
promoting understanding of suicide risks for defence members and veterans, and
opportunities for improved wellbeing support, and
reviewing action taken in response to any findings or recommendations the
Commissioner has already made.
4. The Commissioner could review a broad range of circumstances relevant to defence
member or veteran deaths by suicide, including the extent to which the circumstances of a
particular suicide death reflect broader or systemic issues. The circumstances the
Commissioner may consider include:
service in the Australian Defence Force (ADF) - including matters connected to
recruitment, training, transitions between different forms of ADF service, and the
quality of support services available
experiences as a veteran - including the circumstances of the person's transition
from ADF service, their interactions with government and other bodies, and the
possible impact of other personal circumstances
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the health, wellbeing and support services available both during and after service
in the ADF, and whether these services were appropriate - including the handling
of any complaints relevant to these services
other matters the Commissioner considers relevant, which could vary in each case.
5. The Commissioner would be able to commence their own inquiries at any time, and to
consider any past defence member or veteran death by suicide.
6. The Bill provides that, as guiding principles, the Commissioner should:
take a trauma-informed and restorative approach in exercising their functions and
powers - this means the principles of choice, safety, confidentiality, consultation
and informed participation, for example, will underpin the way the Commissioner
undertakes their role
recognise that families and other people affected by a defence member or veteran
death by suicide have a unique contribution to make to the Commissioner's
functions, and the Commissioner should recognise that they may wish to be
consulted.
7. Part 3 of the Bill sets out the broad information gathering and inquiry powers
available to the Commissioner. The Commissioner's information gathering powers include
compelling the production of documents and written statements, convening public and
private hearings, and summoning persons to attend a hearing to give evidence under oath or
affirmation. These powers are closely modelled on the equivalent powers of a
Royal Commission under the Royal Commissions Act 1902 (Cth), and are supported by
similar criminal penalties.
8. Part 3 of the Bill includes provisions enabling Commonwealth, State and Territory
bodies (as well as individual officer holders) to provide relevant information to the
Commissioner on their own initiative, to assist the work of the Commissioner. A person
making a voluntary disclosure of information on behalf of a government body is required to
be acting with appropriate authority. Enabling the proactive disclosure of information in this
way will support the efficiency of the Commissioner's inquiries, by facilitating early access
to relevant information at the outset of an inquiry. Part 3 also requires the Commissioner to
take all reasonable steps to make arrangements relevant to obtaining, storing, accessing,
using and disclosing intelligence information, before obtaining intelligence information from
the relevant entity.
9. Part 4 of the Bill sets out offences and potential penalties, as well as relevant defences
and protections for witnesses. The offences in Part 4 relate to matters such as a failure to
comply with a compulsory notice, failure to attend a hearing following a summons, failure to
give written notice ahead of disclosing operationally sensitive and intelligence information,
and contempt of the Commissioner. The capacity for the Commissioner to consider and
compel information that may be subject to legal professional privilege, and information that
might tend to incriminate a person in certain circumstances, is also addressed in Part 4 of the
Bill.
10. The protections for witnesses in Part 4 of the Bill include limiting the admissibility of
evidence given to the Commissioner in a broad range of criminal proceedings, and making it
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an offence for a person to dismiss or prejudice a person in their employment because they
have given evidence to the Commissioner.
11. Part 4 of the Bill includes provisions protecting information provided to, and
otherwise held by, the Commissioner. In particular, it incorporates an offence for
information to be used or disclosed other than for the purposes of performing or exercising
the Commissioner's functions or powers. The Commissioner's power to issue, vary and
revoke a non-publication direction, and an offence for breach of a direction, are included.
12. This Part also provides an authorisation for the Commissioner to disclose information
to a range of agencies or bodies, if, among other things, the Commissioner is satisfied that
the information will assist the performance of their functions or powers. This would enable
the Commissioner to refer information to police or prosecution bodies if a potential criminal
or civil wrongdoing arises during an inquiry, for example. It would also enable the
Commissioner to provide information to other bodies which may have a role connected to
considering the circumstances of a defence member or veteran death by suicide.
13. This Part also clarifies the circumstances where a person is not liable to a penalty
under a Commonwealth secrecy provision because they have provided information to the
Commissioner in response to a compulsory request.
14. Part 5 of the Bill provides for additional matters, such as the Commissioner providing
an annual report, and other reports as required, for tabling in Parliament. The
Commonwealth is required to table its responses to the Commissioner's reports in the
Parliament. The protection of the Commissioner, legal practitioners and witnesses from legal
proceedings being brought against them for the legitimate undertaking of their roles and
functions is also provided for in this Part.
FINANCIAL IMPACT
15. $42.7 million has been provided over five years to support the establishment and
operation of the National Commissioner's function. These costs also include funding for a
one-off review of historical ADF member and veteran deaths by suicide, to be led by the
National Commissioner. They also include funding for a dedicated legal financial assistance
scheme.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Commissioner for Defence and Veteran Suicide Prevention Bill 2020
1. This 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 of the Bill
2. This Bill establishes the National Commissioner for Defence and Veteran Suicide
Prevention (the Commissioner) as an independent statutory officer holder within the
Attorney-General's portfolio. The Commissioner will provide an enduring public
accountability and system improvement function, to support the prevention of
Australian Defence Force (ADF) member (defence member) and veteran deaths by suicide.
The functions and powers of the Commissioner will engage Australia's international human
rights obligations.
3. The Bill provides the Commissioner with a broad suite of functions to ensure it can
comprehensively consider any past or future defence member or veteran death by suicide.
The Commissioner's functions include:
inquiring into the circumstances of relevant deaths by suicide
making findings and recommendations following such inquiries, addressing defence
and veteran suicide prevention strategies, and any policy, administrative or structural
reforms that may be required
working collaboratively with state and territory Coroners to understand issues
contributing to defence and veteran deaths by suicide
reviewing action taken in response to any findings or recommendations the
Commissioner has already made, and
promoting understanding of suicide risks for members and veterans, and factors that
can improve the wellbeing of members and veterans.
4. The Commissioner would have broad discretion when inquiring into the
circumstances of relevant deaths by suicide, including considering:
the person's service in the ADF, including training, the manner or time in which they
were recruited, and, for veterans, the person's transition from the ADF
the availability of health, wellbeing and counselling support services to the deceased
person in their capacity as a member or veteran, and the effectiveness of any such
services
the quality and effectiveness of responses to any complaints made by the person or the
person's family, friends or associates in relation to the person's health and wellbeing,
or access to relevant services
the extent to which the circumstances of a particular suicide death reflect broader or
systemic issues
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any other matter the Commissioner considers relevant and reasonably incidental to
defence and veteran deaths by suicide.
5. The Bill provides that, as a guiding principle, the Commissioner should take a
trauma-informed and restorative approach in exercising their functions, and should recognise
that families and others affected by a suicide death have a unique contribution to make to the
Commissioner's work, and may wish to contribute to the Commissioner's inquiries.
6. The Commissioner will have broad information gathering powers, to ensure it can
oversee full and genuine inquiries into the factors relevant to defence member and veteran
deaths by suicide. The Commissioner's powers include compelling the production of
statements and other information, convening public and private hearings, summoning a
person to attend a hearing, and taking evidence under oath or affirmation. The Bill creates a
number of offences for a failure to comply with a compulsory request made by the
Commissioner, and to protect witnesses from dismissal or prejudice in their employment for
having appeared as a witness or given evidence to the Commissioner.
7. The Commissioner will provide a report on their findings and recommendations to the
Parliament each year, as well as other reports the Commissioner consider necessary. The
Government will be required to report to the Parliament on action taken in response to the
Commissioner's reports.
Human rights implications
8. The Bill engages the following rights:
Article 7 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) - the right to just and favourable conditions of work
Article 9 of the ICESCR - the right to social security
Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) - the
right to life
Article 12(1) of the ICESCR - the right to health
Article 14(1) of the ICCPR - fair trial and fair hearing rights
Article 14(2) of the ICCPR - the presumption of innocence
Article 17 of the ICCPR - the right to freedom from interference with privacy and
attacks on reputation
Article 19(2) of the ICCPR - the right to freedom of expression
Right to just and favourable conditions of work
9. The right to work and rights in work are contained in articles 6(1), 7 and 8(1)(a) of the
ICESCR. Article 6(1) of the ICESCR recognises the right to work, and article 7 requires that
State Parties recognise the right of everyone to enjoy just and favourable conditions of work.
Article 7 encompasses a number of elements including remuneration (which at a minimum
requires fair wages and equal remuneration for work of equal value without distinction of any
kind), safe and health working conditions, equal opportunity to be promoted in employment
to the appropriate higher level, and rest, leisure and reasonable limitation of work hours and
periodic holidays.
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10. The Bill promotes the right to just and favourable conditions of work by
implementing a framework for inquiring into, and in future preventing, defence member and
veterans deaths by suicide, and by establishing the statutory position of the Commissioner,
including the terms and conditions, and arrangements for the remuneration, of the office
holder.
11. The Commissioner's functions extend to making findings and recommendations about
the wellbeing of defence members and veterans, and defence and veteran suicide prevention
strategies. The Commission's functions also include promoting understanding of suicide risks
for defence members and veterans, and factors that can improve the wellbeing of defence
members and veterans into the future.
12. The Commissioner's role to inquire into past defence member and veteran deaths by
suicide, including matters such as the deceased person's service in the ADF, and the health,
wellbeing and counselling support services available to the person in their capacity as a
defence member or veteran, will promote understanding, awareness and future suicide
prevention efforts to support defence members during their service, and veterans following
their transition from service. In this way the Bill promotes safe and healthy working
conditions for defence members.
13. The Bill also protects the rights and interests of witnesses who engage with the
Commissioner to not be unjustly deprived of work. It is an offence for an employer to dismiss
or prejudice a witness in their employment on account of appearing before the Commissioner,
or giving evidence or information to the Commissioner in a range of circumstances. This
offence safeguards people engaging with the Commissioner against unfair dismissal or
retribution in the course of their employment. The Bill also provides that a person appearing
as a witness at a hearing, or giving or producing certain information, has the same protection
as a witness in proceedings in the High Court of Australia, which applies additional
protections for a person in any subsequent civil or criminal proceedings which may affect
their employment.
Right to social security
14. The right to social security is contained in article 9 of the ICESCR. The United
Nations Committee has stated that a country must, within its maximum available resources,
ensure access to a social security scheme that provides a minimum essential level of benefits
to all individuals and families that will enable them to acquire at least essential health care,
basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of
education.
15. The right to social security may be engaged by the Bill, subject to the way the
Commissioner exercises their powers and functions. The Commissioner, in exercising their
function to make recommendations in relation to the wellbeing of defence members and
veterans and in relation to any policy, legislative, administrative or structural reforms, may
recommend future changes be made to certain services, support or benefits, including medical
or health benefits, for defence members and veterans.
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Right to life
16. The right to life is contained in article 6(1) of the ICCPR, and article 1 of the Second
Optional Protocol to ICCPR. The right to life includes a duty on governments to take
appropriate steps to protect the right to life of those within its jurisdiction.
17. The Bill promotes this right by empowering the Commissioner to inquire into the
circumstances of past, or any future, death or suspected death by suicide of defence members
and veterans, in order to support the prevention of future such deaths. The Commissioner's
role and powers to inquire into, and to support the future prevention, of suicide deaths
promotes the preservation of life.
Right to health
18. The right to health is contained in a number of covenants, including article 12(1) of
the ICESCR which states that all people have the right to the 'highest attainable standard of
physical and mental health' and that State Parties should take measures necessary for the
'improvement of all aspects of environmental and industrial hygiene'.
19. The United Nations Committee on Economic, Social and Cultural Rights
(UNCECSR) has stated that the right to health extends to 'a wide range of socio-economic
factors that promote conditions in which people can lead a healthy life, extends to the
underlying determinants of health, such as food and nutrition, housing, access to safe and
potable water and adequate sanitation, safe and healthy working conditions, and a healthy
environment'1.
20. The UNCECSR also states in General Comment No 14 that the 'highest attainable
standard of health' takes into account the country's available resources, and that this right
may be understood as a right of access to a variety of public health and health care facilities,
goods, services, programs, and conditions necessary for the realisation of the highest
attainable standard of health.
21. The establishment of the Commissioner recognises the need for concerted action to
address the unacceptably high rates of suicide among the defence member and veteran
communities across Australia.
22. The Bill promotes the right to health through the Commissioner's functions to make
findings and recommendations about the wellbeing of defence members and veterans, and
defence and veteran suicide prevention strategies. The right to health is also promoted by the
Commission's function to promote understanding of suicide risks for defence members and
veterans, and factors that can improve the wellbeing of defence members and veterans into
the future.
Fair trial and fair hearing rights
23. Article 14(1) of the ICCPR protects the right to a fair and public criminal trial, or a
fair and public hearing in civil proceedings. Fair trial and fair hearing rights include the right
that all persons are equal before courts and tribunals, and the right to a fair and public hearing
before a competent, independent and impartial court or tribunal established by law.
1
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No 14: The Right to the
Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4
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24. The Commissioner is not a court or tribunal, and cannot determine criminal charges
or civil liability. In performing their functions, the Commissioner must have regard to the
need to avoid prejudicing current or future criminal or civil proceedings, or other
contemporaneous inquiries (clause 11 refers). The Commissioner does have powers to
conduct inquiry processes similar to civil proceedings - for example, it can compel evidence,
summon witnesses, convene hearings and administer an oath or affirmation. The
Commissioner is also empowered to make findings and recommendations following an
inquiry.
25. Article 14(1) of the ICCPR allows a hearing, or part of a hearing, to be held in
private 'for reasons of morals, public order (ordre public) or national security in a democratic
society, or when the interest of the private lives of the parties so requires'. The Bill sets out
limited circumstances where a hearing may be held in private (clauses 27, 28, 42 refer).
26. While the Commissioner will generally conduct hearings that are open to the public,
the Bill allows part or all of a hearing to be held in private where:
personal and private information about a deceased person, or their family, friends or
associates, may arise, or
the evidence a person may give may relate to operationally sensitive or intelligence
information.
27. The approach to private hearings in the Bill balances the importance of the
Commissioner's processes being transparent and open, with flexibility for the Commissioner
to account for the sensitivity of certain information being disclosed in an open hearing,
whether that sensitivity arises because the information is personal and private, or due to
operationally sensitive or national security considerations.
28. The framework in the Bill informing the Commissioner's decision to convene a
public or private hearing enables the wishes and interests of the witnesses involved, and the
people or agencies who may be affected by the evidence, to be considered by the
Commissioner when deciding the most appropriate approach to a hearing in each case. The
framework is reasonable, necessary and proportionate to achieving the objectives of both
transparency, and appropriate confidentiality.
29. Article 14(3) of the ICCPR establishes that, in the determination of any criminal
charge, everyone shall be entitled to certain minimum guarantees, including not to be
compelled to testify against themselves or to confess guilt.
30. The Bill partially abrogates the privilege against self-incrimination by providing that
a person is not excused from giving information, evidence or a statement, or producing a
document or thing to the Commissioner, on the basis it might tend to incriminate the person
in certain circumstances (clause 50 refers). This partial abrogation is necessary to ensure the
Commissioner can conduct full and genuine inquiries, with access to all relevant information.
The approach gives weight to the public benefit in equipping the Commissioner with
appropriate powers of inquiry.
31. The privilege against self-incrimination is preserved in circumstances where the
production of information or evidence might tend to incriminate the person in relation to an
offence that a person has been charged with, and the charge has not been finally dealt with by
a court or otherwise disposed of.
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32. The partial abrogation of the privilege against self-incrimination operates alongside
subclause 50(3), which limits the use of potentially self-incriminating information in certain
criminal proceedings.
33. Potentially self-incriminating evidence produced to the Commissioner could not be
used against a natural person in criminal proceedings in any court, except in relation to
specific offences against, or that relate to, the Bill including in sections 137.1 and 137.2 of
the Criminal Code and Part III of the Crimes Act 1914. These exemptions enable particular
information to be admissible in a limited range of proceedings relevant to false or misleading
information being provided to the Commissioner, or to an offence against this Act. Permitting
such information being admissible in evidence in these proceedings is necessary to safeguard
the integrity of information being provided to the Commissioner, and the enforcement of
offences under this Bill.
34. The partial abrogation of the privilege against self-incrimination also operates
alongside the protection that a natural person appearing as a witness, or giving or producing
evidence or a statement in response to a notice, has the same protection as a witness in the
High Court (clause 64 refers). This will enable relevant persons to claim the defence of
absolute privilege in respect of information disclosed when appearing as a witness or in
response to a compulsory notice, for example, in separate criminal or civil proceedings. The
Commissioner also has powers under clause 53 to issue a non-publication order to limit the
further disclosure or publication of evidence which may be self-incriminating. The inclusion
of these provisions is consistent with the Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers which provides that 'if the privilege against
self-incrimination is overridden; the use of incriminating evidence should be constrained'.
35. If the Commissioner considers it appropriate to do so, they may disclose information
or evidence relating to a contravention of a law to certain entities, including the Australian
Federal Police and the Director of Public Prosecutions, if the Commissioner is satisfied such
information will assist the entity to perform its functions or exercise its powers. In this case,
the evidence or information is not being used against a person in a proceeding, but may be
used as part of a separate investigation by the relevant entity.
36. The partial abrogation of the privilege against self-incrimination is reasonable,
necessary and proportionate to the Commissioner's function to inquire into and report on
matters of public importance relevant to the death by suicide of defence members and
veterans.
37. The inclusion of a penalty for failing to comply with a notice or summons (including
relevant defences) achieves the legitimate objective of ensuring the Commissioner can fully
inquire into and report on the circumstances relevant to defence member and veteran deaths
by suicide. The potential penalty, which is balanced by the inclusion of relevant defences, is
reasonable, necessary and proportionate to the objective of equipping the Commissioner with
appropriate inquiry and information gathering powers.
38. The Bill provides that a claim of legal professional privilege is not a reasonable
excuse for a failure to attend a hearing, or to give information or produce a document or
thing, unless a court has found the information, statement, document or thing to be subject to
legal professional privilege (subclause 49(4) refers). Providing discretion for the
Commissioner to make a determination whether to accept or reject such a claim in other
circumstances is necessary to ensure the Commissioner can conduct full and genuine
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inquiries, with access to all relevant information. The approach gives weight to the public
benefit in equipping the Commissioner with appropriate powers of inquiry.
39. To the extent the process for claiming legal professional privilege may be viewed as
a limitation to fair hearing rights, this limitation is balanced and proportionate. The process is
modelled on the equivalent process that a court would undertake in determining a claim of
legal professional privilege. A person claiming legal professional privilege is afforded an
equivalent ability to press for application of the claim before the Commissioner as they would
before a court. The process for claiming legal professional is reasonable, necessary and
proportionate as it is not so onerous that it would prevent a person accessing legal advice or
assistance. In circumstances where the Commissioner rejects a claim of legal professional
privilege, it is not disproportionately burdensome on a person to challenge the determination
in a court.
40. Whilst the Commissioner is not a judicial body and is not able to hold trials, the
Commissioner has powers and functions to hold inquiries which will uphold fair hearing
rights and, to the extent that it may also limit some fair hearing rights, those limitations are
reasonable, necessary and proportionate to the legitimate objective of facilitating full and
genuine inquiries.
Right to the presumption of innocence
41. The presumption of innocence is contained in article 14(2) of the ICCPR.
Article 14(2) provides that 'everyone charged with a criminal offence shall have the right to
be presumed innocent until proved guilty according to law'. It imposes on the prosecution the
burden of proving a criminal charge and guarantees that no guilt can be presumed until the
charge has been proved beyond reasonable doubt. Offences that contain 'reverse burden'
provisions may amount to a limitation on the presumption of innocence. This includes where
an 'evidential' or 'legal burden' defence is created by expressing a matter to be a defence or
an exception to the offence.
42. The Bill engages this right by applying the evidential burden set out in
subsection 13.3(3) of the Criminal Code to a defendant in certain circumstances (clauses 45,
49, 51 and 58 refer). Placing the evidential burden on the defendant would require the
defendant to adduce or point to evidence that suggests a reasonable possibility that the
matters comprising the defence exist or do not exist (subsection 13.3(6) of the Criminal
Code). If the defendant discharges the evidential burden, the prosecution then has the legal
burden of disproving that matter (subsection 13.1(2) of the Criminal Code).
43. In line with the Guide to Framing Commonwealth Offences, Infringement Notices
and Enforcement Powers, the offence-specific defences within the Bill are, in each case,
appropriate, and recognise that the relevant matters are peculiarly within the knowledge of
the defendant, and that it would be significantly more difficult and costly for the prosecution
to disprove than for the defendant to establish the matter.
Right to freedom from interference with privacy and attacks on reputation
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44. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an
individual's privacy, family, home or correspondence. The right to privacy includes respect
for informational privacy, including in relation to storing, using and sharing private
information, as well as the right to control the dissemination of personal and private
information. To be permissible as a matter of international human rights law, interferences
with privacy must be according to law and not arbitrary. In order not to be arbitrary, they
must be reasonable and necessary in the particular circumstances, as well as proportional to
the objectives they seek to achieve.
45. The Bill engages the right to privacy by establishing a framework under which the
Commissioner may collect, use, disclose and deal with information, including personal
information. The Bill includes specific provisions which authorise the collection of personal
information which is necessary for the performance of the Commissioner's functions or
exercise of their powers, such the issuing of a summons to give evidence or produce
documents or things (clause 30 refers), or in response to a notice to give information or a
statement (clause 32 refers).
46. Any limitation there may be to the right to privacy is lawful and non-arbitrary, in view
of the safeguards for protecting personal information in the Bill. These safeguards include:
The requirement for the Commissioner to take a trauma-informed and restorative
approach to their functions and powers (clause 12 refers). This means the preferences
of witness and other persons providing information to the Commissioner about how
their personal information will be used or further disseminated by the Commissioner
will be given particular weight in the Commissioner's handling of the information,
across the full spectrum of their functions.
It is an offence for the Commissioner, or a staff member assisting the Commissioner,
to engage in unauthorised use or disclosure of protected information, including
personal information - this offence carries a penalty of imprisonment of 2 years
(clause 55 refers).
The Commissioner may hold a hearing or part of a hearing in private, if the
Commissioner is satisfied that information which may be disclosed will be personal
and private, including about a deceased individual (clause 28 refers). This is
accompanied by processes directing how the evidence at a private hearing can be used
and disclosed. If a witness gives evidence at a private hearing, the Commissioner
must, before using or disclosing that evidence, consider consulting the witness or any
other person whose interests are affected (subclause 29(2) refers). The Commissioner
must also consider any risk of prejudice to a person if they are not consulted prior to
the use or disclosure, and the preferences of the witness (clause 29(2) refers).
The Commissioner may issue a non-publication direction over a range of information
disclosed to them, enabling them to direct, conditionally or otherwise, that such
material must not be published, produced or further disclosed (clause 53 refers). Such
a direction could apply to protect information which may identify a person who has
given information or evidence to the Commissioner, for example. Publication in
contravention of such a direction is an offence punishable with a term of
imprisonment (clause 54 refers).
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The Commissioner's power to further disclosure information to other entities requires
that such a disclosure will assist the agency or body to perform its functions or
exercise their powers (clauses 56 and 57 refer). Only the Commissioner can disclose
such information, meaning this power is not delegable to staff assisting the
Commissioner. The disclosure provisions are intended to allow the Commissioner to
disclose specific information to assist other entities, as part of working collaboratively
on solutions to prevent future deaths by suicide, or in some instances, to enable the
investigation of a possible criminal offence or civil penalty. The Commissioner's
powers under clauses 56 and 57 could be exercised in a broad range of ways which
did not involve disclosing personal information, or could include seeking consent to
do so (for example, the Commissioner could disclose de-identified information only,
or apply procedures to consult a person whose information may be disclosed).
47. To the extent the Commissioner's powers to seek, use and further disclosure
information, including personal information, in the Bill affect the right to privacy, they are
lawful, non-arbitrary and are accompanied by effective safeguards within the Bill.
Right to freedom of expression
48. Article 19(2) of the ICCPR provides that all people 'shall have the right to freedom
of expression'. This right includes the freedom to impart information and ideas of all kinds,
either orally, in writing or in print or through any other media. Article 19(3) provides that the
right to freedom of expression may be subject to certain restrictions, where such restrictions
are necessary for the respect of the rights of others or for the protection of national security,
public order, or of public health or morals. Any such restrictions must be prescribed by law
and be reasonable, necessary and proportionate to achieving a legitimate objective.
49. Division 4 of the Bill includes provisions regulating the unauthorised publication,
use or disclosure of information connected to the Commissioner's function. Specifically, it
provides for the Commissioner to issue a non-publication direction, with an accompanying
offence for breach of a direction (clauses 53 and 54 refer), and an offence for the disclosure
of protected information (clause 55 refers). The Bill also provides circumstances when civil
or criminal liability will not arise under secrecy provisions (clause 58 refers).
50. These provisions achieve the legitimate objective of protecting the rights of others
(being persons who have provided information to the Commissioner, in some cases under
compulsion), and in some case may have application to protecting national security related
information which may be acquired by the Commissioner in the course of their work. Noting
the sensitive and personal nature of inquiring into defence member and veteran deaths by
suicide, there are strong arguments that the restrictions within the Bill are for a legitimate
objective.
51. To the extent that the issuing of a non-publication direction, and the prohibition on
the unauthorised disclosure of protected information, limit the right to freedom of expression,
these measures are also reasonable, necessary and proportionate to their objective. In
particular:
only the Commissioner may make a non-publication direction and any direction may
subsequently be revoked or varied (clause 53 refers), which provides flexibility
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a prohibition on the unauthorised disclosure of protected information, and variously
disclosing information subject to a non-publication direction, is necessary to protect
the rights of individuals who appear or provide evidence to the Commissioner, and
the penalties for the offences of unauthorised use and disclosure, and publication in
contravention of a non-publication direction, are generally aligned with similar
offences for unauthorised disclosure in other Acts, such as the Inspector-General of
Intelligence and Security Act 1996, balanced against the need for such penalties to
account for the sensitivity of the subject matter the Commissioner will be
considering.
Conclusion
52. The National Commissioner for Defence and Suicide Prevention Bill 2020 is
compatible with the human rights and freedoms recognised or declared in the international
instruments listed in the definition of human rights in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011. This Bill promotes the protection of human rights and to
the extent that it may also limit human rights, those limitations are reasonable, necessary and
proportionate.
14
NOTES ON CLAUSES
LIST OF ABBREVIATIONS
Acts Interpretation Act Acts Interpretation Act 1901
Public Governance, Performance and Public Governance, Performance and Accountability
Accountability Act
Act 2013
Defence Act Defence Act 1903
Independent National Security Independent National Security Legislation Monitor
Legislation Monitor Act Act 2010
Inspector-General of Intelligence and Inspector-General of Intelligence and Security Act
Security Act 1986
Remuneration Tribunal Act Remuneration Tribunal Act 1973
Royal Commissions Act Royal Commissions Act 1902
National Security Information National Security Information (Criminal and Civil
(Criminal and Civil Proceedings) Act Proceedings) Act 2004
Crimes Act Crimes Act 1994
Privacy Act Privacy Act 1988
Evidence Act Evidence Act 1995
Legislation Act Legislation Act 2003
Criminal Code Schedule to the Criminal Code Act 1995
15
PART 1--PRELIMINARY
Clause 1 Short title
1. Clause 1 provides for the short title of this Act to be the National Commissioner for
Defence and Veteran Suicide Prevention Act 2020.
Clause 2 Commencement
2. Clause 2 provides for the commencement of each provision of this Act, as set out in
the table at subclause 2(1). The table provides that the whole of this Act commences the day
after Royal Assent.
3. Subclause 2(2) specifies that information in column 3 of the table at subclause 2(1) is
not part of the Act, and information may be inserted into column 3, or information in it may
be edited, in any published version of this Act.
Clause 3 Objects of this Act
4. Clause 3 sets out the objects of this Act. This clause is intended to provide a clear
statement of the principles and objectives underpinning the Act.
5. Subclause 3(1) states that the main object of this Act is to provide for a Commissioner
to examine the circumstances of defence and veteran deaths by suicide, in order to support
the prevention of such future deaths.
6. Subclause 3(2) provides further objects of this Act as being to establish the
Commissioner (paragraph 3(2)(a)) and to empower the Commissioner to:
inquire into the circumstances of defence and veteran deaths by suicide (subparagraph
3(2)(b)(i))
make findings and recommendations on a range of systemic issues, trends or risk
factors (subparagraph 3(2)(b)(ii))
hear about the impact of defence and veteran deaths by suicide on families and other
people affected by such deaths (subparagraph 3(2)(b)(iii)), and
promote understanding of suicide risks for defence members and veterans, and
opportunities for improved wellbeing support (subparagraph 3(2)(b)(iv)).
7. As section 15AA of the Acts Interpretation Act provides that statutes should be
interpreted in accordance with their objects, all the other provisions of this Act are to be read,
as far as is possible, as being designed to carry out these objects.
Clause 4 Simplified outline of this Act
8. Clause 4 provides a simplified outline of this Act to assist the reader. This outline is
not intended to be comprehensive and readers should rely on the substantive provisions.
Clause 5 Definitions
9. Clause 5 defines terms that are used elsewhere in this Act:
16
'Accountable authority' has the same meaning as set out in subsection 12(2) of the Public
Governance, Performance and Accountability Act.
'Australian Defence Force' or 'ADF' has the same meaning as in section 17 of the Defence
Act, which provides that the ADF consists of the Royal Australian Navy, Australian Army
and the Royal Australian Air Force.
'Australian intelligence entity' is defined to mean the six intelligence agencies listed within
the definition: the Australian Secret Intelligence Service, the Australian Security Intelligence
Organisation, the Australian Geospatial-Intelligence Organisation, the Defence Intelligence
Organisation, the Australian Signals Directorate and the Office of the National Intelligence.
'Authorised member' is a member of the Australian Federal Police, or of the police force of a
State or Territory, authorised by the Commissioner in accordance with subclause 36(2) to
apply for a search warrant.
'Commissioner' means the National Commissioner for Defence and Veteran Suicide
Prevention, as appointed under clause 16.
'Commonwealth body' is defined to mean a Commonwealth entity or a Commonwealth
company within the meaning of the Public Governance, Performance and Accountability Act.
'Commonwealth entity' and 'Commonwealth company' are defined in subsections 10(1) and
89(1) respectively of the Public Governance, Performance and Accountability Act.
Commonwealth entity is defined to have the same meaning as set out in subsection 10(1) of
the Public Governance, Performance and Accountability Act.
'Defence and veteran death by suicide' means the death of a defence member or veteran by
suicide, or suspected suicide. By way of example, a death may be a suspected suicide where
the circumstances of the death indicate as such but a formal assessment or finding that it is a
death by suicide has not yet been made by the police or a Coroner.
'Defence Department' is defined to mean the Department administered by the
Defence Minister.
'Defence member' is defined to mean a member of the Defence Force within the meaning of
the Defence Act. A 'member' is defined in section 4 of the Defence Act to include any
officer, sailor, soldier and airman. This includes members of both Permanent and Reserve
forces.
'Defence Minister' is defined to mean the Minister administering the Defence Force
Discipline Act 1982.
'Document' is defined in a non-exhaustive way to include any book, register or other record
of information, however compiled, recorded or stored.
'Eligible judge' is a judge who has formally consented, and been declared, in accordance
with subclauses 63(2) and (3). An eligible judge may issue a search warrant following
application by the Commissioner or an authorised member, in accordance with clauses 36 and
37.
'Engage in conduct' is defined to mean the doing of an act, or omitting to perform an act.
17
'Entrusted person' is defined to mean the Commissioner, or a member of staff assisting the
Commissioner (clause 14 refers).
'Head' is defined to mean the principal office holder of the relevant Australian intelligence
entities listed within the definition. This definition is applied, amongst other provisions, in the
provisions relating to the arrangements for obtaining and protecting intelligence information
(clause 42 refers) and the authorisation for the Commissioner to disclosure intelligence
information (clause 57 refers).
'Home Affairs Department' is defined to mean the Department administered by the Minister
administering the Australian Border Force Act 2015.
'IGIS official' is defined to mean the Inspector-General of Intelligence and Security or any
other person listed in subsection 32(1) of the Inspector-General of Intelligence and Security
Act.
'Inquiry function' is defined to mean the function set out in paragraph 11(1)(a) of this Act.
The inquiry function is further detailed in clause 26.
'Intelligence information' is defined to mean information:
acquired or prepared by or on behalf of an Australian intelligence entity in connection
with its functions (for example, intelligence information may include information
provided by a foreign government or foreign agency to an Australian intelligence
entity)
related to the performance by an Australian intelligence entity of its functions, or
which identifies a current or former staff member or agent of the Australian Secret
Intelligence Service or Australian Security Intelligence Organisation.
'Judge' is defined to mean a person who is a Judge of a court created by the Parliament, as
provided in subclause 63(1). The relevant Parliament is the Parliament of the Commonwealth
of Australia.
'Law enforcement or security agency' is defined to mean the agencies listed within the
definition, as well as any other agency prescribed by the rules for the purposes of this
definition. The Australian Defence Force is a law enforcement or security agency, as well as
a range of other Commonwealth, State and Territory bodies, security agencies and police
authorities. The definition of 'law enforcement or security agency' is applied in the
provisions relating to a private hearing, in particular (clauses 28 and 29 refer).
'Legal practitioner' is defined as a barrister, solicitor, barrister and solicitor, or legal
practitioner, of the High Court or a Supreme Court of a State or Territory.
'Official' is defined to mean a person who is in, or forms part of, the Commonwealth entity.
It has the same meaning as set out in subsection 13(2) of the Public Governance, Performance
and Accountability Act.
'Operationally sensitive information' is defined to mean information about certain activities
or methods of a law enforcement or security agency (which is a defined term, as outlined
above), as well as information provided by a foreign government, or an agency of such a
government, where it does not consent to the public disclosure of the information.
'Operationally sensitive information' could capture information such as that dealing with
18
ADF operational activities, or technologies, for example. The definition of 'operationally
sensitive information' is applied in the provisions relating to a private hearing and notice of a
likely disclosure, in particular (clauses 28, 29 and 33 refer).
'Paid work' is defined to mean work for financial gain or reward. The definition of 'paid
work' is applied in the provisions relating to the Commissioner undertaking paid work
outside the duties of the Commissioner's office, in particular (clauses 20 and 22 refer).
'Personal information' is defined to have the same meaning as in section 6 of the
Privacy Act. It means information or an opinion about an identified individual, or an
individual who is reasonably identifiable; whether the information or opinion is true or not
and whether the information or opinion is recorded in a material form or not. Personal
information includes information kept under Part 5-1A of the Telecommunications
(Interception and Access) Act 1979.
'Protected information' is defined to mean information (including personal information)
made or obtained by an entrusted person for the purposes of this Act. This will include
information received by the Commissioner or staff assisting the Commissioner, whether it
has been provided under a compulsory notice or otherwise, as well as any new information
developed by the Commissioner or staff assisting the Commissioner. Protected information is
a term applied in clause 55.
'Reasonable excuse' is defined by reference to whether the excuse is one which would excuse
a person before a court. The definition applies this test to the appropriateness or quality of an
excuse in the case of a witness before the Commissioner, a person summoned as a witness,
and a person given a notice to produce information, a document or thing. 'Reasonable
excuse' is defined consistently with the Royal Commissions Act, recognising that the
Commissioner's powers are closely aligned to those of a Royal Commission.
The defence of reasonable excuse ensures a person is not penalised where they may be unable
legitimately to produce a document or attend a hearing due to circumstances beyond their
control, or where there is some other good and acceptable reason. It also allows for claims
such as public interest immunity to be made in defence of material not being produced, for
example, and for the quality of that claim to be examined on a case by case basis.
'Secrecy provision' is defined to mean a provision of Commonwealth law that prohibits or
purports to prohibit the communication, disclosure or publication of information in various
forms. The definition extends to anything done under a provision of a law of the
Commonwealth to prohibit the communication, disclosure or publication of such information.
Secrecy provision is a term applied in clause 58, which provides that a person does not
commit an offence under such a provision when complying with certain compulsory requests
made by the Commissioner.
'State body' is defined to mean a department or authority of a State.
'Territory body' is defined to mean a department or authority of a Territory.
'Use' is defined to include making a record of information.
'Veteran' is defined to mean a person who has served, or is serving, as a member of the
Permanent Forces (within the meaning of the Defence Act) or as a member of the Reserves
(within the meaning of the Defence Act). 'Permanent Forces' is defined in section 4 of the
Defence Act to mean the Permanent Navy, the Regular Army and the Permanent Air Force.
19
'Reserves' is defined in section 4 of the Defence Act to mean the Naval Reserve, the Army
Reserve and the Air Force Reserve.
Defining 'veteran' to capture a person who has or is so serving in these roles ensures that it is
appropriately broad, and aligns with the definition of 'veteran' in the Australian Veterans'
Recognition (Putting Veterans and Their Families First) Act 2019.
Clause 6 Act binds the Crown
10. Clause 6 provides that this Act binds the Crown in each of its capacities, but does not
make the Crown liable to be prosecuted for an offence.
11. Accordingly, this Act binds the executive governments of the Commonwealth, of
each of the States, and of the Australian Capital Territory and of the Northern Territory.
Clause 7 Extension to external Territories
12. Clause 7 extends the operation of this Act to the external Territories. This clause
ensures that this Act applies to all States, all internal Territories and all external Territories of
Australia.
Clause 8 Extraterritorial operation
13. Clause 8 extends the operation of this Act outside Australia and the external
Territories.
14. In practice, the situations where it will be necessary for the Commissioner to exercise
their functions or powers overseas are expected to be limited. However, enabling
extraterritorial operation of the Commissioner's functions and powers may assist the
Commissioner to take evidence if they were considering, for example, the circumstances of a
defence member's death by suicide that occurred overseas.
15. The Commissioner will be expected to exercise their powers and functions in a
foreign jurisdiction in accordance with Australia's obligations under international law, and to
liaise with the relevant jurisdiction ahead of any intended exercise of functions or powers
within its territory.
PART 2 -- NATIONAL COMMISSIONER FOR DEFENCE AND VETERAN
SUICIDE PREVENTION
Division 1 -- Introduction
Clause 9 Simplified outline of this Act
16. Clause 9 provides a simplified outline of Part 2 of this Act to assist the reader. This
outline is not intended to be comprehensive and readers should rely on the substantive
provisions.
20
Division 2 -- Establishment, functions and powers
Clause 10 National Commissioner for Defence and Veteran Suicide Prevention
17. Clause 10 provides that there is to be a National Commissioner for Defence and
Veteran Suicide Prevention. Provisions relating to the appointment of the Commissioner are
contained in Part 2, Division 3 of this Act.
Clause 11 Functions
18. Clause 11 sets out the Commissioner's functions. Subclause 11(1) outlines that these
functions are:
inquiring into the circumstances of defence and veteran deaths by suicide (paragraph
11(1)(a)) - the inquiry function is further elaborated in clause 26
making findings and recommendations following such inquiries, addressing matters
such as the wellbeing of defence members and veterans, defence and veteran suicide
prevention strategies, and any policy, legislative, administrative or structural reforms
that may be required (paragraph 11(1)(b))
reviewing action taken in response to any findings or recommendations the
Commissioner has made (paragraph 11(1)(c))
working collaboratively with State or Territory Coroners to understand issues
contributing to defence and veterans deaths by suicide (paragraph 10(1)(d))
maintaining a record of defence and veteran deaths by suicide notified to the
Commissioner (paragraph 10(1)(e))
promoting understanding of suicide risks for defence members and veterans, and
factors that can improve defence members and veterans wellbeing (paragraph
11(1)(f))
considering any related matter referred to the Commissioner by the Prime Minister or
Minister (paragraph 11(1)(g)), and
anything incidental or conducive to the performance of the above functions
(paragraph 11(1)(h)), which will ensure the Commissioner could undertake functions
closely related to those expressly listed within subclause 11(1).
19. Subclause 11(2) confirms matters which are not functions of the Commissioner.
These matters are making findings of civil or criminal wrongdoing, or making findings on the
cause of death in relation to a defence or veteran death by suicide (paragraphs 11(2)(a)
and (b)). Excluding these matters from the Commissioner's functions is intended to clarify
that the Commissioner will not be undertaking the role of a court (which may make a finding
of civil or criminal wrongdoing) or a Coroner (which, among other things, may make a
finding on a cause of death).
20. Subclause 11(3) provides that the Commissioner must have regard to the need to
avoid prejudicing current or future criminal or civil proceedings, or other contemporaneous
inquiries, in performing their functions. The requirement for the Commissioner to have
regard to these matters will assist to ensure that their work is complementary to the work
other bodies may undertake examining circumstances related to a defence or veteran death by
suicide. The note to subclause 11(3) provides an example of a contemporaneous inquiry as
21
one conducted by the Inspector-General of the Australian Defence Force (IGADF) under
section 110C of the Defence Act.
21. Subclause 11(4) clarifies that the Commissioner has power to do all things necessary
or convenient to be done for or in connection with the performance of their functions. This
subclause clarifies the Commissioner has the necessary powers to undertake their functions,
as provided in subclause 11(1).
Clause 12 General principles for the performance of the Commissioner's functions
22. Clause 12 provides the general principles that should guide the work of the
Commissioner.
23. Subclause 12(1) confirms that the Commissioner is to take into account certain
general principles in exercising their functions or powers.
24. Subclause 12(2) requires that the Commissioner take a trauma-informed and
restorative approach. Subclause 12(3) provides that the Commissioner should:
recognise that families and others affected by defence and veteran deaths by suicide
have a unique contribution to make to the Commissioner's functions (paragraph
12(3)(a)), and
recognise such families and other affected persons may wish to be consulted
(paragraph 12(3)(b)).
25. The guiding principles in subclauses 12(2) and (3) recognise the fundamental role that
families and others affected by a defence or veteran death by suicide will have to assist the
Commissioner to understand the full circumstances, and tragic consequences, of each death.
They also recognise and respect that some people may not wish to share their experiences
with the Commissioner, and should have choice about whether or not to contribute.
26. Taking a restorative and trauma-informed approach means that the principles of
safety, confidentiality, consultation and informed participation will underpin the way the
Commissioner exercises their functions and powers.
Clause 13 Application of finance law
27. Clause 13 provides that the finance law (which is a defined term within the Public
Governance, Performance and Accountability Act) applies to the Commissioner as if they
were an official of the Attorney-General's Department. The clause does not affect the
standing of the Commissioner as an independent statutory office holder.
28. Clause 13 has the effect that the Public Governance, Performance and Accountability
Act, the rules or any instrument made under that Act, and an Appropriation Act (together
making up the 'finance law' referred to in clause 13) apply to the Commissioner in the same
way as if they were an official of the Attorney-General's Department.
29. Applying the requirements of the finance law to the Commissioner is appropriate to
ensure the proper use of any Commonwealth resources entrusted to the Commissioner.
Complying with the requirements of the finance law will not be expected to affect the
exercise of any of the Commissioner's functions or powers, and will provide certainty about
the relevant requirements for the Commissioner's use of any Commonwealth resources.
22
30. An example of a Commonwealth resource that may be entrusted to the Commissioner
and attract the requirements of the finance law is the use of a departmental credit card. The
Commissioner will be required to comply with the accountable authority instructions made
by the Secretary of the Attorney-General's Department under section 20A of the Public
Governance, Performance and Accountability Act, for example, in relation to the appropriate
use of such a credit card.
Clause 14 Arrangements relating to staff of the Department
31. Clause 14 sets out the arrangements for staff assisting the Commissioner.
32. Clause 14 provides that the staff assisting the Commissioner are to be APS employees
in the Attorney-General's Department (paragraph 14(a)), or persons engaged as contractors
by, or on behalf of, the Commonwealth (paragraph 14(b)). These staff are to be made
available to the Commissioner by the Secretary of the Attorney-General's Department, for
the purpose of performing any of the Commissioner's functions.
33. The staff assisting the Commissioner within the Attorney-General's Department,
including any contractor staff, will be administratively separate to confirm their independence
from other departmental functions.
34. The staff assisting the Commissioner (including contractors) are 'entrusted persons',
which is a defined term in clause 5.
Clause 15 Delegation by Commissioner
35. Clause 15 provides for the delegation of certain functions or powers by the
Commissioner.
36. Subclause 15(1) provides that the Commissioner may delegate all or any of the
functions or powers under clauses 32 or 53 to a person who is an SES employee of the
Attorney-General's Department and made available to assist the Commissioner (see clause 14
above). A delegation under subclause 15(1) must be in writing.
37. The functions or powers the Commissioner could delegate relate to:
requiring a person to give information or produce a document or thing (clause 32),
and
issuing a non-publication direction in relation to the publication, production or
disclosure of evidence or certain other information (clause 53).
38. Enabling an SES official assisting the Commissioner to exercise these functions under
a delegation arrangement will assist the Commissioner to manage their workload and to
facilitate a number of concurrent inquiries. It will also provide practical assistance if a
relevant function needed to be exercised under urgent circumstances and the Commissioner
was not personally available.
39. Subclause 15(2) requires that the delegate comply with any written directions of the
Commissioner in exercising the delegation.
23
Division 3 -- Terms and conditions etc.
Clause 16 Appointment
40. Clause 16 provides for the appointment of the Commissioner.
41. Subclause 16(1) provides that the Commissioner is to be appointed by the
Governor-General by written instrument. The note to this subclause clarifies that the
Commissioner is eligible for reappointment, in accordance with section 33AA of the Acts
Interpretation Act.
42. Subclause 16(2) requires that a person must not be appointed as the Commissioner
unless the Governor-General is of the opinion the person is suitable for appointment because
of their qualifications, training or experience. This will enable a broad range of potential
candidates, with diverse backgrounds and experience, to be considered for appointment.
Clause 17 General terms and conditions of appointment
43. Clause 17 sets out the general terms and conditions of the Commissioner's
appointment and service.
44. Subclause 17(1) provides that the Commissioner holds office in accordance with the
period specified in the instrument of appointment, and that this period must not exceed five
years.
45. Subclause 17(2) confirms that the Commissioner will hold office on a full-time basis.
46. Subclause 17(3) clarifies that, to the extent the terms and conditions of the
Commissioner are not covered by this Act, the Commissioner holds office on the terms and
conditions determined by the Governor-General.
Clause 18 Remuneration
47. Clause 18 provides the remuneration arrangements for the Commissioner.
48. Subclause 18(1) provides that the Commissioner is to be paid the remuneration
determined by the Remuneration Tribunal. In the absence of such a determination, the
Commissioner is to be paid the remuneration prescribed by rules made under the Act.
49. Subclause 18(2) provides that the Commissioner is to be paid the allowances
prescribed by the rules.
50. Subclause 18(3) confirms that this clause has effect subject to the Remuneration
Tribunal Act.
Clause 19 Leave of absence
51. Clause 19 sets out the basis for the Commissioner taking a leave of absence.
52. Subclause 19(1) provides that the Commissioner has the recreation leave entitlements
determined by the Remuneration Tribunal.
24
53. Subclause 19(2) specifies that the Minister may grant the Commissioner other leave
of absence. Such additional leave of absence is on the terms and conditions as determined by
the Minister, including as to remuneration.
Clause 20 Other paid work
54. Clause 20 sets out the obligations of the Commissioner in respect of paid work
outside the duties of the Commissioner's office.
55. Clause 20 specifies that the Commissioner must not engage in paid work outside the
duties of their office without the approval of the Minister. 'Paid work' is defined in clause 5
to mean any work for financial gain or reward.
56. If the Commissioner does engage in outside paid work in contravention of clause 20,
paragraph 22(2)(c) provides that the Governor-General must terminate the Commissioner's
appointment.
Clause 21 Resignation
57. Clause 21 provides that the Commissioner may resign their appointment.
58. Subclause 21(1) specifies that the Commissioner may resign their appointment by
tendering a written resignation to the Governor-General.
59. Subclause 21(2) specifies that such resignation takes effect on the day it is received by
the Governor-General or, if specified, a later day.
Clause 22 Termination of appointment
60. Clause 22 provides circumstances in which the Governor-General may terminate the
Commissioner's appointment, and circumstances in which the Governor-General must
terminate the appointment.
61. Subclause 22(1) provides that the Governor-General may terminate the
Commissioner's appointment for misbehaviour (paragraph 22(1)(a)) or if the Commissioner
is unable to perform the duties of the office due to physical or mental incapacity
(paragraph 22(1)(b)).
62. Subclause 22(2) provides mandatory grounds for termination. Accordingly, the
Governor-General must terminate the Commissioner's appointment if the Commissioner:
becomes bankrupt or takes certain steps in relation to insolvency or bankruptcy
(paragraph 22(2)(a))
is absent from duty for specified periods of time, except on leave of absence
(paragraph 22(2)(b))
engages in paid outside work without the approval of the Minister, as specified in
clause 20 (paragraph 22(2)(c)), or
fails, without reasonable excuse, to disclose relevant interests as specified in clause 23
(paragraph 22(2)(d)).
25
Clause 23 Disclosure of interests
63. Clause 23 provides for the disclosure of interests by the Commissioner. Failure to
comply with this clause, without reasonable excuse, is a ground for the Governor-General to
terminate the appointment of the Commissioner under paragraph 22(2)(d).
64. Subclause 23(1) requires the Commissioner to make a disclosure to the Minister under
section 29 of the Public Governance, Performance and Accountability Act.
65. Section 29 of the Public Governance, Performance and Accountability Act requires an
official who has a material personal interest that relates to the affairs of the entity, to disclose
the details of the interest.
66. Subclause 23(2) clarifies that subclause 29(1) applies in addition to any rules made
under this Act for the purposes of subclause 29(1).
67. Subclause 23(3) clarifies that the Commissioner is taken to not have complied with
section 29 of the Public Governance, Performance and Accountability Act if the
Commissioner does not comply with subclause 23(1).
Clause 24 Acting appointments
68. Clause 24 provides for the appointment of an acting Commissioner.
69. Clause 24 provides that the Minister may appoint a person to act as Commissioner
during a vacancy in the office, or periods where the ordinary office holder is absent from duty
or from Australia, or for any reason is unable to perform the duties of the office. Such an
appointment must be by written instrument.
PART 3 -- INFORMATION GATHERING
Clause 25 Simplified outline of this Part
70. Clause 25 provides a simplified outline of Part 3 of the Act to assist the reader. This
outline is not intended to be comprehensive and readers should rely on the substantive
provisions.
Clause 26 Inquiries
71. Clause 26 sets out the circumstances the Commissioner may inquire into when
exercising their inquiry function, as provided for in paragraph 11(1)(a).
72. Subclause 26(1) lists matters the Commissioner may inquire into as part of their
inquiry function, without limiting or exhaustively identifying the matters the Commissioner
may consider. The matters listed are:
the person's service in the ADF (including training), and for a person who had ceased
serving in the ADF at the time of their death, their transition from the ADF (paragraph
26(1)(a))
issues, including relevant personal circumstances, connected to the person's
recruitment to the ADF, and their transition from the ADF (paragraph 26(1)(b)) -
26
relevant personal circumstances could include a range of the person's life
circumstances, for example, their age, health, or family context
the health, wellbeing and counselling support services available to the person during
their ADF service, or as a veteran, and whether these services were effective
(paragraph 26(1)(c))
any complaints made by the person, or their family, friends or associates, about the
wellbeing and support services available to person, and the quality and effectiveness
of responses to any such complaints (paragraph 26(1)(d))
the extent to which the circumstances of a particular death by suicide reflect broader
or systemic issues contributing to rates of defence and veteran deaths by suicide
(paragraph 26(1)(e)), and
any other matters the Commissioner considers relevant and reasonably incidental to
defence and veteran deaths by suicide (paragraph 26(1)(f)).
73. The capacity for the Commissioner to consider matters in addition to those expressly
listed in subclause 26(1), and matters the Commissioner considers relevant and reasonably
incidental to defence and veteran deaths by suicide (paragraph 26(1)(f)), is intended to
provide the necessary flexibility of scope for inquiries in each case.
74. Other circumstances that may be relevant for the Commissioner to consider could
include the social and family context of the person, or their economic or employment
circumstances, for example.
75. Subclause 26(2) clarifies that the Commissioner may exercise their inquiry function
on their own initiative. The capacity for the Commissioner to self-initiate an inquiry reflects
their independence.
76. Subclause 26(3) confirms the Commissioner may inquire into defence and veteran
deaths by suicide that occurred prior to the commencement of this Act. It is intended that in
doing so, the Commissioner will have close regard to any Coronial or other inquiries that
have been undertaken, or which may be continuing (subclause 11(3) refers), so the
Commissioner is building upon, and not duplicating, other processes or findings.
Clause 27 Hearings
77. Clause 27 relates to the Commissioner holding a hearing as part of performing their
functions.
78. Subclause 27(1) provides that the Commissioner may hold a hearing for the purposes
of performing their functions.
79. Subclause 27(2) requires that a hearing be held in public. The note to subclause 27(2)
clarifies that there are circumstances where hearings may be held in private which are
addressed at subclauses 28(1), 28(2) and 42(6). Subclause 27(2) also enables the
Commissioner to determine the procedure for a hearing.
80. Subclause 27(3) confirms that the Commissioner is not bound by the rules of
evidence. This effect of this provision is to provide procedural flexibility to the
27
Commissioner in how it can undertake inquiries and draw conclusions from the evidence and
other material presented to it.
81. Subclause 27(4) requires the Commissioner to make a record of each hearing. A
record of this kind could include, but is not limited to, a transcript or an audio recording.
Clause 28 Private hearings
82. Clause 28 confers discretion on the Commissioner to hold a private hearing in certain
circumstances.
83. Subclause 28(1) provides the Commissioner may hold a hearing, or part of a hearing,
in private, despite subclause 27(2), if they are satisfied information relating to a deceased
person, or the family, friends or associates of a deceased person, may be disclosed and that
information is personal and private. 'Personal and private' information is not a defined term
in the Act. It is intended that, in practice, the wishes and interests of the witnesses involved,
and the people or agencies who may be affected by the evidence, will be carefully considered
by the Commissioner when deciding how a hearing should most appropriately occur in each
case.
84. Subclause 28(2) provides that a hearing or part of a hearing may be held in private,
despite subclause 27(2), if the Commissioner is satisfied that a person giving evidence at a
hearing may give evidence that discloses operationally sensitive information. 'Operationally
sensitive information' is a defined term in clause 5 of this Act.
85. The note to subclause 28(2) alerts the reader to the requirement in clause 33 that a
person must give written notice of a likely disclosure of operationally sensitive information to
the Commissioner.
86. Subclause 28(3) provides considerations the Commissioner must have regard to when
considering whether to hold a hearing, or part of a hearing, in private. These matters are:
the potential risk of prejudice to national security (within the meaning of the National
Security Information (Criminal and Civil Proceedings) Act) or to the operations of a
law enforcement or security agency (paragraph 28(3)(a))
whether holding a hearing in private would have a substantial negative effect on the
exercise or performance of the Commissioners functions or powers (paragraph
28(3)(b))
any submissions received in response to an invitation for submissions under subclause
33(3) (see further below) (paragraph 28(3)(c))
the safety and security of any person (paragraph 28(3)(d))
any privileges, immunities or other restrictions that may apply to the disclosure of
relevant information (paragraph 28(3)(e)), and
any other matters the Commissioner considers relevant (paragraph 28(3)(f).
87. The National Security Information (Criminal and Civil Proceeding) Act defines
'national security' broadly to mean 'Australia's defence, security, international relations or
law enforcement interests'.
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Clause 29 Consultation in relation to certain private hearing evidence
88. Clause 29 sets out consultation requirements for the Commissioner following a
private hearing held on the basis of operationally sensitive information. The consultation
process will support procedural fairness for a person or body whose interests may be affected
by the future use and disclosure of evidence connected to a private hearing, and ensure that
relevant agencies are consulted about the future use of any operationally sensitive
information.
89. Subclause 29(1) requires that, following a private hearing held on the basis of
operationally sensitive information, the Commissioner must:
consult with any law enforcement or security agency to which the evidence relates
and consider any information received from such agencies following that consultation
(paragraph 29(1)(a))
consider any potential risk of prejudice to national security (as defined in the National
Security Information (Criminal and Civil Proceeding) Act) (paragraph 29(1)(b)), and
consider the safety and security of any person (paragraph 29(1)(c)).
90. The Commissioner is to do these things before using or disclosing any evidence given
at, or in relation to, the private hearing (see subclause 29(2)).
91. Subclause 29(2) provides that, before using or disclosing the evidence given in any
private hearing, the Commissioner must:
consider consulting the witness, and any other person whose interests are affected by
the evidence (paragraph 29(2)(a))
consider any potential prejudice to a person not consulted before the Commissioner
uses or discloses information given at, or in relation to, a private hearing (paragraph
29(2)(b)), and
consider any preferences that a witness to a private hearing has expressed about
consultation (paragraph 29(2)(c)).
Clause 30 Summons
92. Clause 30 provides for the Commissioner to summon a person to attend a hearing to
give evidence or produce documents or things.
93. Subclause 30(1) provides that the Commissioner may summon a person to attend a
hearing to give evidence or produce documents or things, at a time and place specified in a
written notice.
94. Subclause 30(2) provides that the notice of a summons must be in writing, signed by
the Commissioner and served on the person required to attend a hearing.
95. Subclause 30(3) provides the Commissioner must give a person at least 14 days after
the day on which the notice is given to comply with the notice. This is consistent with the
Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
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96. Subclause 30(4) provides that the 14 day timeframe requirement in subclause 30(3)
does not apply if the Commissioner reasonably believes the circumstances relating to the
summons are urgent or serious. Urgent or serious are not defined terms in the Act. It is at the
Commissioner's discretion to determine if circumstances are urgent or serious enough to
warrant a shorter time for a person to comply with a summons.
97. Subclause 30(5) provides that the power of the Commissioner to require a person to
give information or produce a document or thing includes the power to require these things
even if they are subject to legal professional privilege.
98. Subclause 30(6) provides that if the Commissioner issues a notice under
subclause 30(1) to an official of a Commonwealth entity, the Commissioner must also give a
copy of the notice to the head of the Australian intelligence entity (if the official performs
duties in, or services for, an Australian intelligence entity), or otherwise to the accountable
authority of the Commonwealth entity, or to both.
Clause 31 Evidence on oath or by affirmation
99. Clause 31 confers powers on the Commissioner to require a witness to take an oath or
affirmation at a hearing.
100. Subclause 31(1) provides the Commissioner may require a witness at a hearing to take
an oath or affirmation, and may administer an oath or affirmation to the witness.
101. Note 1 to subclause 31(1) alerts the reader that it is an offence under clause 46 to not
take an oath or make an affirmation.
102. Note 2 clarifies that a consequence of the power of the Commissioner under
subclause 31(1) to compel a witness to take an oath or affirmation, is that hearings overseen
by the Commissioner are considered 'judicial proceedings' under Part III of the Crimes Act.
This means that the offences attaching to 'judicial proceedings', as set out in Part III of the
Crimes Act, are applicable. The offences in Part III of the Crimes Act are, for example,
giving false testimony, fabricating evidence, intimidation of witnesses, corruption of
witnesses, deceiving witnesses and destroying evidence.
103. The fact that hearings convened by the Commissioner are considered 'judicial
proceedings' under Part III of the Crimes Act does not mean that the Commissioner is
purporting to exercise judicial power, or operating as a court of law, in any of their functions
or powers.
104. Subclause 31(2) clarifies that an oath or affirmation administered by the
Commissioner is an oath or affirmation that a witness will give true evidence.
105. Subclause 31(3) provides the Commissioner the discretion to allow a person attending
a hearing who has taken an oath or affirmation to give evidence by submitting a witness
statement, and to verify its truth by oath or affirmation.
Clause 32 Commissioner may require information etc.
106. Clause 32 confers power on the Commissioner to require a person to give information
or produce a document or thing.
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107. Subclause 32(1) provides that the Commissioner may require, by notice in writing, a
person to give the information or a statement in writing, or produce documents or things,
which are specified in the written notice. The note to subclause 32(1) alerts the reader that it
is an offence under clause 45 to not comply with a notice issued under subclause 32(1).
108. Subclause 32(2) requires that a notice be in writing, and stipulate the timeframe in
which the person is to comply with the notice.
109. Subclause 32(3) provides the Commissioner must give a person at least 14 days after
the day after the notice is given to comply with the notice. This is consistent with the Guide
to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
110. Subclause 32(4) provides that the 14 day timeframe requirement in subclause 32(3)
does not apply if the Commissioner reasonably believes the circumstances relating to the
notice are urgent or serious. Urgent or serious are not defined terms in the Act. It is at the
Commissioner's discretion to determine if circumstances are urgent or serious enough to
warrant a shorter time for a person to comply with a notice.
111. Subclause 32(5) provides that the power of the Commissioner to require a person to
give information or produce a document or thing includes the power to require these things
even if they are subject to legal professional privilege.
112. Subclause 32(6) provides that if the Commissioner issues a notice under
subclause 36(1) to an official of a Commonwealth entity, the Commissioner must also give a
copy of the notice to the head of the Australian intelligence entity (if the official performs
duties in, or services for, an Australian intelligence entity), or otherwise to the accountable
authority of the Commonwealth entity, or to both.
Clause 33 Notice of likely disclosure of operationally sensitive information
113. Clause 33 requires a person to give written notice to the Commissioner in a range of
circumstances where they may disclose operationally sensitive information.
114. Subclause 33(1) creates an obligation on a person to give written notice to the
Commissioner if information, a statement, document or thing they may give to the
Commissioner may involve the disclosure of operationally sensitive information. The written
notice must be provided before the evidence or document is disclosed to the Commissioner.
115. The note to subclause 33(1) alerts the reader that it is an offence under subclause
47(1) for a person who holds or has held an Australian Government security clearance to fail
to give notice.
116. Subclause 33(2) provides the written notice must describe the evidence, information,
statement, document or thing the person considers may be operationally sensitive
information. In practice, the notice will describe the evidence in general terms to assist the
Commissioner in their assessment as to whether a hearing or part of a hearing may be held in
private (clause 28 refers), or to otherwise alert the Commissioner to the need for considered
handling of the information.
117. Subclause 33(3) provides discretion for the Commissioner to invite submissions from
relevant persons or bodies where the Commissioner believes that operationally sensitive
information may be disclosed at a hearing. Relevant persons or bodies include law
31
enforcement or security agencies, as defined in clause 5 of this Act. The Commissioner must
consider any submissions received in determining whether to hold a private hearing under
paragraph 28(3)(c). A submission provided in response could be made orally, or in writing.
118. Subclause 33(4) clarifies that if the Commissioner invites submissions under
subclause 33(3), the Commissioner must ensure that information that may be operationally
sensitive is not inappropriately disclosed in the course of inviting submissions.
Clause 34 Notice of likely disclosure of intelligence information
119. Clause 34 requires a person to give written notice to the Commissioner in a range of
circumstances where they may disclose intelligence information.
120. Clause 34 creates an obligation on a person to give written notice to the
Commissioner if information, a statement, document or thing they may give to the
Commissioner may involve the disclosure of intelligence information. 'Intelligence
information' is a defined term in clause 5 of this Act. The written notice must be provided
before the evidence or document is disclosed to the Commissioner.
121. The notice requirement in clause 34 will alert the Commissioner to the sensitivity of
the incoming information, and the need to handle it in accordance with an arrangement under
clause 42.
122. The note to clause 34 alerts the reader that it is an offence under subclause 47(2) for a
person who holds or has held an Australian Government security clearance to fail to give
notice.
Clause 35 Powers of Commissioner in relation to documents or other thing
123. Clause 35 relates to the powers of the Commissioner to inspect, retain and copy
documents or other things produced or given to it, including pursuant to a requirement under
clause 30 or clause 32.
124. Clause 35 provides the Commissioner may:
inspect any document or thing (paragraph 35(a))
retain the document or thing for as long as is reasonably necessary to enable the
Commissioner to perform their function (paragraph 35(b)), and
make copies of documents produced or given to the Commissioner that contain
material relevant to the Commissioner's functions or powers (paragraph 35(c)).
Clause 36 Search warrants
125. Clause 36 provides for the Commissioner, or an authorised member, to apply to an
eligible judge for a search warrant to be issued in particular circumstances. In practice, it is
expected that a search warrant would only be sought in exceptional circumstances connected
with a potentially imminent concealment, loss or destruction of relevant material, rather than
forming part of the Commissioner's usual information and evidence gathering processes.
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126. Subclause 36(1) provides that the Commissioner, or an authorised member, may make
an application for a search warrant under subclause 36(4) in relation to a matter that is
relevant to the Commissioner's functions.
127. Subclause 36(2) clarifies that an 'authorised member' is a person, or each person in a
class of persons, that the Commissioner may authorise for the purposes of this clause. The
person or class of persons are to be a member of the Australian Federal Police (AFP) or a
State or Territory police force.
128. Subclause 36(3) provides that the Commissioner, or authorised member, may apply to
an eligible Judge for a search warrant to be issued under subclause 36(3) if the
Commissioner, or authorised member, has reasonable grounds:
for suspecting that there may be, at a time within the next 24 hours, on any land,
premises, vessel, aircraft or vehicle, things of a particular kind that are connected with
a matter into which the Commissioner is inquiring (paragraph 36(3)(a)), and
that, if a summons were issued for the production of the thing or things, the thing or
things may be concealed, lost, mutilated or destroyed (paragraph 36(3)(b)).
129. Subclause 36(4) enables an eligible Judge to issue a search warrant following an
application by the Commissioner or an authorised member. The search warrant may authorise
a member of the AFP, the police force of a State or Territory, or any other person authorised
in the warrant, with such assistance as the authorised person may require, to execute the
warrant. An 'eligible Judge' is a defined term in clause 5.
130. Subclause 36(4) provides that, in executing a search warrant, relevant police or
authorised persons may, with reasonable force if necessary, enter onto land or premises of
certain kinds, search it for things of the relevant kind, and seize any things of a relevant kind
found. The seized things are to be delivered to the Commissioner.
131. Subclause 36(5) specifies certain information that must be contained in a search
warrant that is issued:
a statement of the purpose for which the warrant was issued, its connection to the
matter into which the Commissioner is inquiring, and with which things of the
relevant kind are connected (paragraph 36(5)(a))
whether entry is limited to specific periods of time or if it is authorised to be made at
any time of day (paragraph 36(5)(b))
a description of the kind of things to be seized (paragraph 36(5)(c))
a date on which the warrant expires - this date is to be no later than one month after
the date of issue of the warrant (paragraph 36(5)(d)).
132. Subclause 36(6) provides that a person executing a search warrant is taken to be
authorised to seize a thing that is not included in the description of the things to be seized in
the search warrant if the person reasonably believes:
the other thing(s) are connected with the matter into which the Commissioner is
inquiring (paragraph 36(6)(a)), or
the other thing(s) are connected with another matter into which the Commissioner is
inquiring (paragraph 36(6)(b)).
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133. The person must also believe on reasonable grounds that it is necessary for the other
thing(s) to be seized to prevent its concealment, loss, mutilation or destruction.
Clause 37 Application by telephone for search warrants
134. Clause 37 sets out the process for a search warrant application to be made by
telephone.
135. Subclause 37(1) provides that an application for a search warrant under
subclause 36(1) may be made by telephone, if the applicant considers it necessary to do so
due to urgent circumstances.
136. Subclause 37(2) sets out that if an eligible Judge issues a search warrant on an
application made by telephone, the eligible Judge must complete and sign the warrant, inform
the applicant of the terms of the warrant and date and time at which it was signed, and
provide a copy to the applicant.
137. Subclause 37(3) provides that if a warrant made by telephone application is issued,
the Commissioner, a member of the AFP or a State or Territory police force may complete a
form of warrant in the terms set by the eligible Judge at subclause 37(2).
138. Subclause 37(4) confirms that a warrant completed in accordance with
subclause 37(3) is considered to be a warrant issued under clause 36.
Clause 38 Witnesses subject to questioning
139. Clause 38 clarifies who may question a witness on matters relevant to a hearing.
140. Subclause 38(1) provides that the Commissioner may allow a legal practitioner
assisting the Commissioner, a legal practitioner who represents any person and is granted
leave to appear, or any person authorised by the Commissioner to appear, to examine or
cross-examine a witness on a matter relevant to a hearing. 'Legal practitioner' is a defined
term in clause 5.
141. Subclause 38(2) provides that, subject to this Act, a witness who is examined or cross-
examined has the same protections and is subject to the same liabilities as if they were
questioned by the Commissioner. This provision clarifies that the fact of a person being
examined or cross-examined by another person does not affect the application of the witness
protections or obligations elsewhere within the Act to the witness. The note to subclause
38(2) alerts the reader that other witness protections are addressed at clause 64.
Clause 39 Witnesses etc. to be paid expenses
142. Clause 39 relates to witness expenses for appearance at a hearing.
143. Subclause 39(1) provides that a witness appearing at a hearing may be paid a
reasonable amount for their expenses connected with appearing. It also provides that rules
made under this Act may prescribe a scale for determining witness expenses.
144. Subclause 39(2) provides that if there is no prescribed scale for witness expenses in
rules made under the Act, the Commissioner may authorise payment of an amount the
Commissioner considers reasonable.
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Clause 40 Disclosure of information to the Commissioner - Commonwealth
145. Clause 40 authorises Commonwealth bodies (including appointed office holders) to
disclose information to the Commissioner, including on their own initiative, to assist the
work of the Commissioner. The intention is that this clause will facilitate information being
proactively disclosed to the Commissioner, and clarify the capacity for relevant bodies to so
disclose despite other laws or obligations.
146. Subclause 40(1) provides that a Commonwealth body or office holder may disclose
information (including personal information, which is a defined term in clause 5), to assist the
performance of the Commissioner's functions or powers. A disclosure of information may be
at the initiative of the body or office holder, or at the request of the Commissioner. A request
of the Commissioner in this context is intended to be less formal than the issuing of a
compulsory notice under clause 32, for example.
147. Subclause 40(2) confirms that a disclosure of information is not taken to have been
made by the relevant Commonwealth body or office holder under subclause 40(1) if the
individual making the disclosure is acting outside of their authority in relation to the body. A
person could be acting outside of their authority if they were not permitted to have access to
the information they purported to disclose to the Commissioner, for example.
148. Subclause 40(3) authorises the Commissioner to use information disclosed to it under
subclause 40(1) for the purpose of performing their functions or exercising their powers.
149. Subclause 40(4) provides that the authorisation in subclause 40(1) has effect despite
any law of a State or Territory, or the general law, that restricts or prohibits the disclosure of
information. The intended effect of this provision is that State or Territory legislation, or
common law obligations, which may otherwise affect the capacity for a Commonwealth body
or office holder to disclose information to the Commissioner are displaced. A
Commonwealth body or office holder disclosing information could continue to apply
necessary due diligence and approval processes within that body, to ensure information is
being provided following necessary consultation, or with certain requests as to its future use,
for example. It is intended that this provision remove the potential for a Commonwealth body
or office holder to be liable for a penalty, or face potential liability for an action at common
law, for example, because of disclosing information to the Commissioner.
150. Subclause 58(2) confirms that a person who discloses information under clause 40
does not commit an offence, and is not liable to a penalty, under a secrecy provision (which is
a defined term in clause 5).
Clause 41 Disclosure of information to the Commissioner - States and Territories
151. Clause 41 authorises State and Territory bodies, appointed office holders, a Coroner
or a Coroner's Court (relevant bodies), to disclose information to the Commissioner,
including on their own initiative, to assist the work of the Commissioner. The intention is that
this clause will facilitate information being proactively disclosed to the Commissioner, and
clarify the capacity for relevant bodies to so disclose despite other laws or obligations.
152. Subclause 41(1) provides that relevant bodies may disclose information (including
personal information, which is a defined term in clause 5), to assist the performance of the
Commissioner's functions or powers. A disclosure of information may be at the initiative of
35
the relevant bodies, or at the request of the Commissioner. A request of the Commissioner in
this context is intended to be less formal than the issuing of a compulsory notice under clause
32, for example.
153. Subclause 41(2) confirms that a disclosure of information is not taken to have been
made by relevant bodies under subclause 41(1) if the individual making the disclosure is
acting outside of their authority in relation to the body. A person could be acting outside of
their authority if they were not permitted to have access to the information they purported to
disclose to the Commissioner, for example.
154. Subclause 41(3) authorises the Commissioner to use information disclosed to it under
subclause 41(1) for the purpose of performing their functions or exercising their powers.
155. Subclause 41(4) provides that the authorisation in subclause 41(1) has effect despite
any law of a State or Territory, or the general law, that restricts or prohibits the disclosure of
information. The intended effect of this provision is that State or Territory legislation, or
common law obligations that may otherwise affect the capacity for relevant persons and
bodies to disclose information to the Commissioner are displaced. Relevant bodies disclosing
information could continue to apply necessary due diligence and approval processes within
that body, to ensure information is being provided following necessary consultation, or with
certain requests as to its future use, for example. It is intended that this provision remove the
potential for relevant bodies to be liable for a penalty, or face potential liability for an action
at common law, for example, because of disclosing information to the Commissioner.
156. Subclause 58(2) confirms that a person who discloses information under clause 41
does not commit an offence, and is not liable to a penalty, under a secrecy provision (which is
a defined term in clause 5).
Clause 42 Arrangements for obtaining and protecting intelligence information
157. Clause 42 requires the Commissioner to take all reasonable steps to enter into an
arrangement with the head of an Australian intelligence entity relating to the obtaining,
protection and disclosure of intelligence information.
158. The protections proposed for intelligence information under this clause reflect the
particular importance of information of this kind not being inadvertently disclosed in a
hearing, public report or other work released by the Commissioner, nor deliberately disclosed
in a manner which is inappropriate in all the circumstances. Arrangements entered into under
clause 42 will support the Office of the National Commissioner in its consideration of how to
receive, store, use and disclose intelligence information.
159. Subclause 42(1) requires that the Commissioner must take all reasonable steps to
ensure that entrusted persons obtain, store, access, use and disclose intelligence information
relating to an Australian intelligence entity in accordance with an arrangement between the
Commissioner and the head of the entity. All reasonable steps would include engagement in
good faith as required.
160. Entrusted person is a defined term in clause 5 and includes both the Commissioner
and staff assisting the Commissioner (clause 14 refers). This arrangement will deal with:
the manner in which entrusted persons obtain intelligence information (paragraph
42(1)(a))
36
the protection of intelligence information whilst in the possession of an entrusted
persons (paragraph 42(1)(b)), and
the disclosure of intelligence information by entrusted persons (paragraph 42(1)(c)).
161. Subclause 42(2) requires the Commissioner to take all reasonable steps to ensure that
an arrangement under subclause 42(1) is in place with the head of an Australian intelligence
entity before obtaining intelligence information relating to that intelligence entity.
162. Subclause 42(3) specifies that subclauses 42(1) and (2) apply despite any other
provision of this Act.
163. Subclause 42(4) provides, without limiting subclause 42(1), that an arrangement may
limit the circumstances in which intelligence information may be disclosed in a report under
subclause 60 or 62, Subclause 42(4) also provides that an arrangement may set out matters
the Commissioner must regard in considering a disclosure of intelligence information in
accordance with subclause 57.
164. Subclause 42(5) clarifies that, except to the extent outlined in subclause 42(4), an
arrangement cannot prevent the Commissioner from exercising their powers or performing
their functions under any provision of this Act, including clause 57.
165. Paragraph 42(6)(a) provides that despite subclause 27(2), if the Commissioner is
satisfied that a person appearing at a hearing may disclose intelligence information, the
Commissioner may conduct a hearing in public or private. Subclause 42(6) also provides that
the conduct of the hearing must be consistent with the arrangement the Commissioner entered
into with the head of the relevant Australian intelligence entity (paragraph 42(6)(b)).
166. Subclause 42(7) clarifies that any arrangement entered into in writing for the purposes
of subclause 42(1) is not a legislative instrument. Subclause 42(7) is intended to assist the
reader to understand that clause 42 is administrative in nature and is not a legislative
instrument within the meaning of subsection 8(1) of the Legislation Act.
Clause 43 Application of this Act in relation to current and former IGIS officials
167. Clause 43 clarifies that sections 34 and 34A of the Inspector-General of Intelligence
and Security Act applies to this Act.
168. Clause 43 provides:
an entrusted person may obtain information from another person who acquired the
information as an IGIS official (paragraph 43(a)), and
a person who acquired information as an IGIS official may disclose information to an
entrusted person (paragraph 43(b)).
169. The obtaining and disclosing of information under clause 43 may only occur in
accordance with sections 34 and 34A of the Inspector-General of Intelligence and Security
Act. Clause 43 operates despite any other provision in this Act. 'IGIS official' and 'entrusted
person' are defined terms in clause 5.
170. The Inspector-General of Intelligence and Security (Inspector-General) holds a unique
role within the Australian intelligence community as an independent office holder with
37
powers to review the activities of intelligence entities. As such, IGIS officials are subject to
strict secrecy offences under section 34 of the Inspector-General of Intelligence and Security
Act which prevent IGIS officials from disclosing 'any information' obtained in the course of
their duties to any person, including to a court.
171. Consistent with section 34A of the Inspector-General of Intelligence and Security Act,
which allows for voluntary disclosure to prescribed Royal Commissions, an IGIS official
may volunteer information to the Commissioner if regulations declare section 34A applies in
relation to the Commissioner. This preserves the secrecy provisions of the Inspector-General
of Intelligence and Security Act by ensuring that an IGIS official cannot be compelled to give
information or produce documents, whilst preserving a pathway for the Commissioner to
receive information. This recognises that that the Commissioner's powers are closely aligned
to those of a Royal Commission.
172. The National Commissioner for Defence and Veteran Suicide Prevention
(Consequential Amendments) Bill 2020 amends section 34A of the Inspector-General of
Intelligence and Security Act to allow the Commissioner to be prescribed under the
regulations to permit the Inspector-General to give information or documents to the
Commissioner to assist the Commissioner's inquiries.
PART 4 -- INFORMATION SHARING
Clause 44 Simplified outline of this Part
173. Clause 44 provides a simplified outline of Part 4 of the Act to assist the reader. This
outline is not intended to be comprehensive and readers should rely on the substantive
provisions.
Clause 45 Failure to attend hearing, give information or produce documents etc.
174. Clause 45 provides offences, and relevant defences, where a person fails to comply
with a summons or notice issued by the Commissioner.
175. Subclause 45(1) provides it is an offence for a person to fail to attend at a hearing if
required to do so under a notice served under clause 30. This offence is punishable by a
maximum penalty of imprisonment for 2 years. Under subsection 4B(2) of the Crimes Act,
the term of imprisonment can be converted into penalty units.
176. Subclause 45(2) provides it is an offence for a person to fail to give information or
produce a document or thing if required to do so under a notice served under clause 30 or 32.
This offence is punishable by imprisonment for 2 years. Under section 4B of the Crimes Act,
the term of imprisonment can be converted into penalty units.
177. Subclause 45(3) provides that a person required to attend a hearing or to give
information or produce a document or thing under subclauses 45(1) and (2), does not commit
an offence if the person has a reasonable excuse. The note to subclause 45(3) specifies that
the defendant bears an evidential burden of proof in relation to this defence. This adopts
existing policy in subsection 13.3(3) of the Criminal Code. Placing the evidential burden on
the defendant would require the defendant to adduce or point to evidence that suggests a
reasonable possibility that the matters comprising the defence exist or do not exist
(subsection 13.3(6) of the Criminal Code). If the defendant discharges the evidential burden,
38
the prosecution then has the legal burden of disproving that matter (subsection 13.1(2) of the
Criminal Code). In line with the Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers this offence-specific defence is appropriate, as the
defendant would be best placed to raise evidence demonstrating a reasonable excuse in the
circumstances, and it would be significantly more difficult and costly for the prosecution to
disprove this than for the defendant to establish the matter.
178. 'Reasonable excuse' is defined broadly in clause 5 of this Act. The defence of
reasonable excuse ensures a person is not penalised where they may be unable legitimately to
produce a document or attend a hearing due to circumstances beyond their control or where
there is some other good and acceptable reason. The definition of 'reasonable excuse' in
clause 5 requires the excuse to be one which would excuse a witness before a court. The
defence of reasonable excuse would not extend to a person acting intentionally to defeat the
purpose of the notice, such as destroying a document and stating they are no longer in
possession of it, for example.
179. Subclause 45(4) provides a defence of relevance. It provides that the offence for
failure to give information or produce a document or thing under subclause 45(2) does not
apply if the information, statement, document or thing required to be provided is not relevant
to the matters into which the Commissioner was inquiring. This defence ensures that a person
does not commit an offence if they fail to provide information which is not within the scope
of the notice issued to them, for example. The note to subclause 45(4) specifies that the
defendant bears an evidential burden of proof in relation to this defence. This adopts existing
policy in subsection 13.3(3) of the Criminal Code.
180. Placing the evidential burden on the defendant would require the defendant to adduce
or point to evidence that suggests a reasonable possibility that the matters comprising the
defence exist or do not exist (subsection 13.3(6) of the Criminal Code). If the defendant
discharges the evidential burden, the prosecution then has the legal burden of disproving that
matter (subsection 13.1(2) of the Criminal Code). In line with the Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers this offence-
specific defence is appropriate, because the defendant would be best placed to adduce
evidence as to why the information, statement, document or thing is not relevant to the
matters into which the Commissioner was inquiring. It would be significantly more difficult
and costly for the prosecution to disprove this than for the defendant to establish the matter.
181. Subclause 45(5) clarifies that the offences in subclause 45(1) and (2) are applicable
despite any State or Territory law, or the general law. This ensures that a person cannot rely
on a State or Territory law, or the general law, to justify a failure to comply with a notice
under clause 30 or 32, except to the extent that such laws might give rise to a reasonable
excuse (as defined in clause 5) for the purposes of subclause 45(3).
182. The general defences under Part 2.3 of the Criminal Code, such as mistake of fact,
duress, lawful authority, and sudden or extraordinary emergency, would be available, in
addition to the reasonable excuse and relevance defences expressly provided for in this Act.
Clause 46 Refusal to swear an oath, make an affirmation or answer a question
183. Clause 46 provides offences for refusal to swear an oath, make an affirmation or
answer a question.
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184. Subclause 46(1) makes it an offence for a person served with a notice under clause 30
requiring them to attend a hearing, to refuse to swear an oath or make an affirmation at that
hearing, or to refuse to answer a question that the Commissioner requires them to answer at
the hearing (subparagraphs 46(1)(b)(i) and (ii)).
185. This offence is punishable by a maximum penalty of imprisonment for 2 years. Under
subsection 4B(2) of the Crimes Act, the term of imprisonment can be converted into penalty
units.
186. The offence of refusing to answer a question has a narrow application. In practice, it
would be expected to apply in circumstances where a person refuses to provide an answer to
a question. This would be distinguishable from a situation where a person provides an answer
to the extent of their knowledge or experience and in good faith, even if it is of limited
assistance to an inquiry.
187. The general defences under Part 2.3 of the Criminal Code, such as mistake of fact,
duress and sudden or extraordinary emergency, would be available. The general defences
would give appropriate coverage to the range of circumstances which may, in practice, justify
a refusal to swear an oath or make an affirmation at a hearing, or to refuse to answer a
question. On this basis, the defences of reasonable excuse and relevance are not available in
respect of the offences in this clause.
Clause 47 Failure to give written notice to the Commissioner
188. Clause 47 provides for an offence for certain persons to fail to give written notice of
disclosure of operationally sensitive information or intelligence information to the
Commissioner. 'Operationally sensitive information' and 'intelligence information' are
defined terms in clause 5.
189. Subclause 47(1) provides it is an offence for a person who holds or has held an
Australian Government security clearance that allows or had allowed, access to operationally
sensitive information, to fail to give written notice in accordance with clause 33 where
required to do so.
190. This offence is punishable by a maximum penalty of imprisonment for 3 years. Under
subsection 4B(2) of the Crimes Act, the term of imprisonment can be converted into penalty
units.
191. Subclause 47(2) provides it is an offence for a person who holds or has held an
Australian Government security clearance that allows or had allowed access to intelligence
information, to fail to give written notice in accordance with clause 34 where required to do
so.
192. 'Australian Government security clearance' is defined in the Dictionary of the
Criminal Code as a security clearance given by the Australian Government Security Vetting
Agency or by another Commonwealth, State or Territory agency that is authorised or
approved by the Commonwealth to issue security clearances. The same definition is to be
applied to clause 47.
193. Structured in this way, the offence would avoid applying to a person that may not
realise they are providing operationally sensitive or intelligence information, and instead is
40
directed at persons that have had official access to such information. This offence is
punishable by a maximum penalty of imprisonment for 3 years. Under subsection 4B(2) of
the Crimes Act, the term of imprisonment can be converted into penalty units. As section 5.6
of the Criminal Code applies to this clause, intention is the fault element relevant to this
offence.
194. The general defences under Part 2.3 of the Criminal Code, such as mistake of fact,
duress and sudden or extraordinary emergency, would be available. The general defences
would give appropriate coverage to the range of circumstances which may, in practice, justify
failure to provide notice. On this basis, the defences of reasonable excuse and relevance are
not available in respect of the offence in this clause.
Clause 48 Legal professional privilege
195. Clause 48 sets out the process for a person claiming legal professional privilege and
the consideration of such a claim.
196. Subclause 48(1) provides that a claim of legal professional privilege is not a
reasonable excuse for a failure to attend a hearing, or to give information or produce a
document or thing under subclauses 45(1) and (2). This is subject to particular exceptions, set
out in paragraphs 48(1)(a) and (b).
197. Legal professional privilege may be a reasonable excuse for the purposes of subclause
45(3), where:
a court has found the information, statement or document or thing (or relevant part of
it) is subject to legal professional privilege (paragraph 48(1)(a)), or
a claim of legal professional privilege has been made to the Commissioner within the
timeframe allowed for the giving of the information, or the production of the
document or thing, or within a further time permitted by the Commissioner
(paragraph 48(1)(b)).
198. Subclause 48(2) provides that the Commissioner may then decide whether to accept
or reject a claim of legal professional privilege.
199. Subclause 48(3) confirms that the Commissioner may, by written notice, require a
person claiming legal professional privilege to produce the information, statement, document
or thing over which the claim is made, for the Commissioner to inspect, to determine whether
to accept or reject the claim.
200. Legal professional privilege is not a defined term in the Act. Legal professional
privilege is derived from the meaning of client legal privilege in Part 3.10 of the Evidence
Act. The following elements must be satisfied for legal professional privilege to apply:
the existence of a client and lawyer relationship
the confidential nature of the communication or document, and
the communication or document was brought into existence for the dominant purpose
of either enabling the client to obtain, or the lawyer to give legal advice or provide
legal services, or for use in actual or anticipated litigation.
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201. Subclause 48(4) sets out that in circumstances where the Commissioner decides to
accept a claim for legal professional privilege, the information, statement, document or thing,
if it has been provided to the Commissioner, must be:
returned to the person (paragraph 48(4)(a)), and
disregarded, to the extent the claim of legal professional privilege is accepted, for the
purposes of any report, recommendation or finding the Commissioner makes
(paragraph 48(4)(b)).
202. Subclause 48(5) clarifies that if the claim for legal professional privilege is rejected
by the Commissioner and the information, statement, document or thing has been produced,
the Commissioner may use the information, statement, document or thing for the purposes of
performing their functions.
203. Legal professional privilege has been overridden in the qualified way outlined above,
to ensure the Commissioner can conduct full and genuine inquiries, with access to all relevant
information. The approach gives weight to the public benefit in equipping the Commissioner
with appropriate powers of inquiry and is modelled on the approach to this privilege in the
Royal Commissions Act (section 6AA of that Act refers).
Clause 49 Offences relating to claims for legal professional privilege
204. Clause 49 creates offences related to claims for legal professional privilege.
205. Subclause 49(1) provides it is an offence if:
a person fails to give information or a statement, or produce a document or thing as
required in a notice under clause 30 or 32 (paragraph 49(1)(a)); and
the Commissioner has rejected a claim for legal professional privilege (or part
thereof) (paragraph 49(1)(b)); and
the person fails to give the information or statement, or produce the document or thing
as the Commissioner requires after that decision has been made (paragraph 49(1)(c)).
206. This offence is punishable by a maximum penalty of imprisonment for 2 years. Under
subsection 4B(2) of the Crimes Act, the term of imprisonment can be converted into penalty
units.
207. Clause 49(2) provides it is an offence if a person fails to comply with a notice issued
by the Commissioner to give information or a statement, or produce a document or thing for
inspection under subclause 48(3).
208. Subclause 49(3) provides that a person does not commit an offence under subclauses
49(1) and (2) if the person has a reasonable excuse. Reasonable excuse is a defined term in
clause 5.
209. Subclause 49(4) clarifies that legal professional privilege is not a reasonable excuse
for the purposes of the defence in subsection 49(3) unless a court has found the information,
statement, document or thing to be subject to legal professional privilege. The note to
subclause 49(4) specifies that the defendant bears an evidential burden in relation to the
matters in subclause 49(4). This adopts existing policy in subsection 13.3(3) of the Criminal
Code.
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210. Placing the evidential burden on the defendant would require the defendant to adduce
or point to evidence that suggests a reasonable possibility that the matters comprising the
defence exist or do not exist (subsection 13.3(6) of the Criminal Code). If the defendant
discharges the evidential burden, the prosecution then has the legal burden of disproving that
matter (subsection 13.1(2) of the Criminal Code). In line with the Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers it is appropriate to
place an evidential burden on the defendant with respect to the matters in subclause 49(4)
because the defendant would be best placed to raise evidence demonstrating whether a court
has made a finding about the relevant information being subject to legal professional
privilege. It would be significantly more difficult and costly for the prosecution to disprove
this than for the defendant to establish the matter.
211. Subclause 49(5) provides a defence of relevance. A person will not commit an offence
if the information, statement, document or thing is not relevant to the matters into which the
Commissioner was inquiring. The note to subclause 49(5) specifies that the defendant bears
an evidential burden in relation to this defence. This adopts existing policy in subsection
13.3(3) of the Criminal Code.
212. Placing the evidential burden on the defendant would require the defendant to adduce
or point to evidence that suggests a reasonable possibility that the matters comprising the
defence exist or do not exist (subsection 13.3(6) of the Criminal Code). If the defendant
discharges the evidential burden, the prosecution then has the legal burden of disproving that
matter (subsection 13.1(2) of the Criminal Code). In line with the Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers this offence-
specific defence is appropriate as the defendant would be best placed to raise evidence that
the information, statement, document or thing required is not relevant to the matters into
which the Commissioner was inquiring. It would be significantly more difficult and costly for
the prosecution to disprove this than for the defendant to establish the matter.
Clause 50 Self-incrimination
213. Clause 50 relates to an individual providing information to the Commissioner which
may tend to incriminate or expose that individual to a penalty.
214. Subclause 50(1) provides that an individual is not excused from giving information,
evidence or a statement, or producing a document or thing, under clause 30 or 32 on the basis
that giving that information might tend to incriminate the individual in relation to an offence.
The note to subclause 50(1) clarifies that a body corporate cannot claim the privilege against
self-incrimination.
215. Subclause 50(2) provides that subclause 50(1) does not apply if:
giving the information, evidence or statement, or producing the document or thing,
might self-incriminate the individual (paragraph 50(2)(a)), and
the individual has been charged with that offence (paragraph 50(2)(b)), and
the charge has not been finalised by a court or otherwise been disposed of (paragraph
50(2)(c)).
216. The privilege against self-incrimination has been overridden in the qualified way
outlined above to support the Commissioner's function to inquire into, and report on, matters
43
of public importance. The approach gives weight to the public benefit in equipping the
Commissioner with appropriate inquiry powers.
217. The abrogation of the privilege against self-incrimination operates alongside
subclause 50(3), which would limit the use of potentially self-incriminating information in
certain criminal proceedings. It also operates alongside the protection that a natural person
appearing as a witness or giving or producing evidence or a statement in response to a notice
has the same protection as a witness in the High Court (clause 64 refers). This will enable
relevant persons to claim the defence of absolute privilege in respect of information disclosed
when appearing as a witness or in response to a compulsory notice, for example, in separate
criminal or civil proceedings. The Commissioner also has powers under clause 53 to issue a
non-publication order to limit the disclosure and use of evidence which may be self-
incriminating. The inclusion of these provisions is consistent with the Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers, which provides
that 'if the privilege against self-incrimination is overridden; the use of incriminating
evidence should be constrained'.
218. Subclause 50(3) provides that information, evidence or a statement given, or a
document or thing produced to the Commissioner (including the act of giving) are not
admissible in evidence in any criminal proceedings, subject to the exemptions specified. The
exemptions specified are proceedings:
for an offence of giving false or misleading information, evidence or documents under
section 137.1 or 137.2 of the Criminal Code that relates to this Act (paragraph
50(3)(c))
for an offence against Part III of the Crimes Act that relates to this Act (paragraph
50(3)(d)), or
for an offence against this Act (paragraph 50(3)(e)).
219. These exemptions are intended to enable information or a statement given, or a
document or thing produced to the Commissioner to be admissible in a limited range of
proceedings that relate to false or misleading information being provided to the
Commissioner, or that relate to an offence under this Act. Permitting such information being
admissible in evidence in these proceedings is necessary to safeguard the integrity of
information being provided to the Commissioner, and the enforcement of offences under this
Act.
220. Subclause 50(4) provides an individual is not excused from giving information,
evidence or a statement, or producing a document or thing under clause 30 or 32 on the basis
that at general law, a person would otherwise be able to claim the privilege against self-
exposure to a penalty (other than a penalty for an offence), The note to subclause 50(4)
clarifies that a body corporate cannot claim the privilege against self-exposure to a penalty.
221. Penalty privilege is the privilege against self-exposure to a civil or administrative
penalty. It is a common law privilege that applies in the context of judicial proceedings and
may be claimed by an individual to resist compulsion in the course of such proceedings.
Subclause 50(4) clarifies that an individual is not excused from giving information or
documents in response to a summons under clause 30 or a notice issued under clause 32, on
the basis that compliance may expose them to a civil or administrative penalty. This reflects
44
the non-judicial character of the Commissioner's information-gathering powers, and ensures
that compliance with clauses 30 and 32 is mandatory.
222. The privilege of self-exposure has been overridden to ensure the Commissioner may
access all relevant information to fully inform their inquiries. This clause operates alongside
subclause 64(4) which provides that a witness at a hearing, or a person giving or producing
information, evidence, statement or a document under clause 30 or 32 will have the same
protection as a witness in proceedings in the High Court.
Clause 51 Dismissal etc. of witness
223. Clause 51 provides an offence for a person dismissing or prejudicing a witness in their
employment.
224. Subclause 51(1) provides that a person commits an offence if they dismiss or
prejudice an employee, or dismiss or discipline a member of the Defence Force, on the basis
that the person or member has
appeared as a witness before the Commissioner (paragraph 51(1)(c))
given evidence before the Commissioner (paragraph 51(1)(d)), or
given information or a statement, or produced a document or thing, under clause 30
and 32 (paragraph 51(1)(e)).
225. This offence is punishable by a maximum penalty of imprisonment for 1 year or 10
penalty units.
226. Subclause 51(2) clarifies that the offence in subclause 51(1) does not apply if the
employee or defence member is dismissed, prejudiced or disciplined for some reason other
than the reasons mentioned in subclause 51(1).
227. The note to subclause 51(2) specifies that the defendant bears an evidential burden in
relation to the matters in subclause 51(2). This adopts existing policy in subsection 13.3(3) of
the Criminal Code.
228. Placing the evidential burden on the defendant would require the defendant to adduce
or point to evidence that suggests a reasonable possibility that the matters comprising the
defence exist or do not exist (subsection 13.3(6) of the Criminal Code). If the defendant
discharges the evidential burden, the prosecution then has the legal burden of disproving that
matter (subsection 13.1(2) of the Criminal Code). In line with the Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers this offence-
specific defence is appropriate as the defendant (for example, the employee's employer)
would be best placed to raise evidence demonstrating the basis on which relevant action
against an employee or defence member was taken. It would be significantly more difficult
and costly for the prosecution to disprove this than for the defendant to establish the matter.
Clause 52 Contempt of Commissioner
229. Clause 52 creates the offence of contempt of the Commissioner.
230. Subclause 52(1) makes it an offence for a person to engage in conduct that obstructs
or hinders the Commissioner in the performance or exercise of their functions or powers.
45
This offence is punishable by a maximum penalty of imprisonment for 3 months or two
penalty units.
231. Subclause 52(2) makes it an offence for a person to engage in conduct that would, if
the Commissioner were a court of record, constitute contempt of that court. This offence is
punishable by a maximum penalty of imprisonment for 3 months or 2 penalty units.
232. This offence is intended to protect the integrity of the Commissioner's processes and
inquiries, and is modelled on section 63 of the Administrative Appeals Tribunal Act 1975.
Division 4--Unauthorised publication, use or disclosure of information etc.
Clause 53 Non-publication direction
233. Clause 53 relates to the issuing of a non-publication direction.
234. Subclause 53(1) provides that the Commissioner may direct that certain material must
not be published, produced or disclosed, or only done so in the manner specified by the
Commissioner. The material over which the Commissioner may issue a non-publication
direction is:
evidence given before the Commissioner (paragraph 53(1)(a))
the contents of a document, or a description of a thing, produced or given to the
Commissioner (paragraph 53(1)(b))
information that might enable a person who has given evidence before the
Commissioner to be identified (paragraph 53(1)(c)).
235. Contravention of a non-publication direction is an offence under clause 54 of this Act.
236. Subclause 53(2) provides that the Commissioner may, in writing, vary or revoke a
non-publication direction.
237. Subclause 53(3) confirms that the Commissioner may direct that the material must not
be published, produced or disclosed to a court or a tribunal, authority or person with the
power to require the production of documents or the answering of questions
(paragraphs 53(3)(a) and (b)).
238. This clause is intended to provide certainty about the potential future interaction of
information subject to a non-publication direction issued by the Commissioner, and
information which may be the subject to a production order or request for information issued
by a court, tribunal or another authority.
239. The Commissioner may delegate the power to issue a non-publication direction to an
SES employee who is a member of staff assisting the Commissioner (clause 15 refers).
Clause 54 Publication in contravention of non-public direction
240. Clause 54 provides that it is an offence for a person to publish information in
contravention of a non-publication direction issued under subclause 53(1).
241. The maximum penalty for this offence is imprisonment for 3 years.
46
242. The general defences under Part 2.3 of the Criminal Code, such as mistake of fact,
duress and sudden or extraordinary emergency, would be available.
Clause 55 Unauthorised use or disclosure of protected information
243. Clause 55 provides an offence for the unauthorised use or disclosure of information
made, or obtained by, the Commissioner or a member of staff assisting the Commissioner.
244. Clause 55 provides that a person commits an offence if the person is or has been an
'entrusted person', and the person uses or discloses 'protected information' where the use or
disclosure is for the purposes of performing or exercising the Commissioner's functions or
powers, or the information is disclosed by the Commissioner in accordance with clause 56 or
57.
245. 'Entrusted person' is a defined term in clause 5 and includes the Commissioner and
staff assisting the Commissioner (clause 14 refers). 'Protected information' is also a defined
term in clause 5 of this Act.
246. The note to subclause 55(1) clarifies that offences relating to secrecy of information
under Part 5.6 of the Criminal Code may also apply to relevant staff assisting the
Commissioner.
247. The maximum penalty for this offence is imprisonment for 2 years.
248. The general defences under Part 2.3 of the Criminal Code, such as mistake of fact,
duress and sudden or extraordinary emergency, would be available.
Clause 56 Authorisation to disclose information (other than intelligence
information)
249. Clause 56 authorises the Commissioner to disclose information (other than
intelligence information) to a range of entities. This authorisation is limited to the
Commissioner and may not be delegated to staff assisting the Commissioner.
250. Subclause 56(1) provides that the Commissioner may disclose information (including
personal information) to the entities outlined in subclause 56(2) where:
the information was given to the Commissioner in accordance with a notice under
clauses 30 or 32, or in accordance with clause 40 and 41 (paragraph 56(1)(a)),
the Commissioner is satisfied that the information will assist the entity to perform any
of its functions or exercise any of its powers (paragraph 56(1)(b)), and
the information is not intelligence information (paragraph 56(1)(c)).
251. These requirements ensure that the Commissioner is only authorised to disclose
information in accordance with this clause where it has been obtained, in accordance with a
summons or notice, or in accordance with the authorisations for Commonwealth, State and
Territory bodies and office holders in clause 40 and 41. The requirement that the
Commissioner be satisfied that a disclosure would assist the prospective receiving body in its
functions or powers, provides an additional safeguard. The disclosure of intelligence
information is separately addressed at clause 57.
47
252. Subclause 56(2) provides the list of entities to which the Commissioner may disclose
information (including personal information) under subclause 56(1). The entities include the
Attorneys-General of the Commonwealth, of a State or Territory (paragraph 56(2)(a)), the
AFP (paragraph 56(2)(b)) or the police force of a State or Territory (paragraph 56(2)(c)), a
Coroner or a Coroner's court (paragraph 56(2)(j)), and any other Commonwealth, State or
Territory body (paragraphs 56(2)(k) and (l)).
253. The entities listed in subclause 56(2) include a range of police and law enforcement
related bodies. As the Commissioner will not be permitted to make findings of civil or
criminal wrongdoing, it is appropriate that the Commissioner be able to refer material raising
potential civil or criminal wrongdoing, which might arise in the course of an inquiry, to such
authorities. This models the approach in section 6P of the Royal Commissions Act.
254. Subclause 56(2) extends to any other Commonwealth, State and Territory body, as
well as a Coroner or a Coroner's Court. This will enable the Commissioner to share
information with a broad range of bodies which may have a role connected to considering the
circumstances of a defence or veteran death by suicide, such as the Inspector-General of the
Australian Defence Force, the Commonwealth Ombudsman and Comcare, as well as bodies
with a research and analysis focus, such as the Australian Institute of Health and Welfare.
255. Subclause 56(3) confirms that an entity to which information is disclosed under
subclause 56(1) may use and disclose the information for the purposes for which the
information was disclosed.
256. Subclause 56(4) defines 'contravention of a law' as referenced in paragraph 56(2)(g).
A contravention of a law is a contravention for which a person may be liable to a criminal
penalty or a civil or administrative penalty.
Clause 57 Authorisation to disclose intelligence information
257. Clause 57 authorises the Commissioner to disclose intelligence information to
specified entities in particular circumstances. This authorisation is limited to the
Commissioner and may not be delegated to staff assisting the Commissioner.
258. Subclause 57(1) provides that the Commissioner may disclose intelligence
information (including personal information) to the entities specified in subclause 57(2)
where:
the information was given to the Commissioner in accordance with a notice under
clauses 30 or 32, or in accordance with clause 40 and 41 (paragraph 57(1)(a))
the Commissioner is satisfied the information relates to or may relate to the
commission or evidence of the commission of an offence against the law of the
Commonwealth or a State or Territory - except where the disclosure is to the
Inspector-General (paragraph 57(1)(b)), and
the Commissioner is satisfied that the information will assist the entity to perform any
of its functions or exercise any of its powers (paragraph 57(1)(c)).
259. The note to subclause 57(1) clarifies that this authorisation is limited to the
Commissioner and may not be delegated to staff assisting the Commissioner.
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260. Subclause 57(2) provides lists the entities or office holders to which the
Commissioner may disclose intelligence information under subclause 57(1). The entities
include the AFP (paragraph 57(2)(a)) or the police force of a State or Territory (paragraph
57(2)(c)), the Inspector-General (paragraph 57(2)(e)) or an agency or body or holder of an
office prescribed under the rules (paragraph 57(2)(f)).
261. Subclause 57(3) requires the Commissioner, before disclosing intelligence
information, to consult the relevant person of the entity listed in subclause 57(4) receiving the
information, and the head of a relevant Australian intelligence entity to which the information
relates. This is required for all disclosures under subclause 57(1) unless the disclosure is to
the Inspector-General, where prior consultation would not be appropriate, given the
independent oversight role of the Inspector-General in reviewing the activities of intelligence
entities.
262. Subclause 57(4) lists the persons for the entities which the Commissioner must
consult for the purposes of paragraph 57(3)(a).
263. Subclause 57(5) specifies that a consultation with the person for the relevant entity
under paragraph 57(3)(a) must cover the protection of the intelligence information while it
remains in the entity's possession. This may include consideration of the capacity of that
entity to appropriately protect intelligence information of the type and security classification
which may be disclosed by the Commissioner.
264. An arrangement under clause 42 cannot prevent the exercise of the Commissioner's
power under clause 57 (subclause 42(5) refers), but can set out matters to which the
Commissioner must have regard to in deciding whether or not to disclose intelligence
information under clause 57 (paragraph 57(6)(a) refers). The Commissioner may also have
regard to any other matter it considers relevant (paragraph 57(6)(b)).
Clause 58 No criminal or civil liability under secrecy provisions
265. Clause 58 relates to criminal or civil liability under secrecy provisions. 'Secrecy
provision' is a defined term in clause 5.
266. Subclause 58(1) provides circumstances where a person who is served with a notice
under clause 30 or clause 32 does not commit an offence, and is not liable to a penalty, under
a secrecy provision. These circumstances are where the person:
answers a question at a hearing that the Commissioner requires the person to answer
(paragraph 58(1)(a))
gives information or a statement that the person is required to give in accordance with
the notice (paragraph 58(1)(b), or
produces a document or thing that the person is required to produce in accordance
with the notice (paragraph 58(1)(c)).
267. Providing that a person acting in compliance with a compulsory request made by the
Commissioner does not commit an offence under a secrecy provision supports the operation
of the Commissioner's processes, and enables a person giving evidence to do so with
certainty that they will not face a penalty for breach of a secrecy provision. This provision is
modelled on an equivalent facilitation provision in section 26 of the Independent National
Security Legislation Monitor Act.
49
268. The note to subclause 58(1) states the defendant bears the evidential burden in
relation to the matter in subclause 58(1). This adopts existing policy in subsection 13.3(3) of
the Criminal Code.
269. Placing the evidential burden on the defendant would require the defendant to adduce
or point to evidence that suggests a reasonable possibility that the matters comprising the
defence exist or do not exist (subsection 13.3(6) of the Criminal Code). If the defendant
discharges the evidential burden, the prosecution then has the legal burden of disproving that
matter (subsection 13.1(2) of the Criminal Code). In line with the Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers, it is appropriate to
place this evidential burden on the defendant because the defendant would be best placed to
raise or point to evidence that their conduct was in accordance with a requirement imposed
by the Commissioner (or the Commissioner's authorised delegate) under subclause 58(1). It
would be significantly more difficult and costly for the prosecution to disprove this than for
the defendant to establish the matter.
270. Subclause 58(2) provides that a person who discloses information under clause 40 or
41 does not commit an offence under a secrecy provision because the person disclosed
information in accordance with clause 40 or 41. This provision operates in conjunction with
subclauses 40(4) and 41(4), which relate to State and Territory laws and the general law.
PART 5 -- MISCELLANEOUS
Clause 59 Simplified outline of this Part
271. Clause 59 provides a simplified outline of Part 5 of this Act to assist the reader. This
outline is not intended to be comprehensive and readers should rely on the substantive
provisions.
Clause 60 Commissioner's reports
272. Clause 60 outlines the arrangements for the Commissioner to provide reports for
tabling in the Parliament.
273. Subclause 60(1) provides that the Commissioner is to give an annual report to the
Prime Minister and the Minister on any matter relating to, or arising in connection with, the
exercise of powers, or performance of the Commissioner's functions. The reporting period is
the financial year. The Commissioner must report as soon as practicable after 30 June each
year.
274. Subclause 60(2) allows the Commissioner to give additional reports from time to time
to the Prime Minister and the Minister. An additional report may be in relation to any matter
relating to, or arising in connection with, the exercise of the powers, or the performance of
the functions, of the Commissioner.
275. Subclause 60(3) provides the tabling requirements for the annual report and any
additional reports given to the Prime Minister and the Minister under subclauses 60(1) and
60(2). The Minister must table the report before each House of Parliament within 15 sitting
days of the relevant House.
50
Clause 61 Response to report by the Commonwealth
276. Clause 61 requires the Commonwealth to respond in writing to any report provided by
the Commissioner under subclauses 60(1) and (2).
277. The Commonwealth response must be tabled in each House of Parliament as soon as
is reasonably practicable after the Commissioner's report is tabled in accordance with
subclause 60(3).
278. In practice, it is intended that the Defence and Veterans' Affairs portfolios will lead
work preparing the Commonwealth's response to the Commissioner's reports, with input
from relevant portfolios, consistent with their policy responsibility for defence and veterans'
affairs matters.
Clause 62 Reports if appropriate action not taken on Commissioner's report
279. Clause 62 provides the Commissioner may provide additional reports to the
Prime Minister and Minister if the Commissioner is of the opinion that appropriate action is
not taken by the Commonwealth on a Commissioner's report.
280. Subclause 62(1) provides the Commissioner may provide an additional report to the
Prime Minister and Minister if the Commissioner is of the opinion that action taken in
response to a report under subclause 60(1) or (2) is not adequate and appropriate in the
circumstances.
281. Subclauses 62(2) and (3) provide that the Commissioner may give a report relating to
the action or response given by the Commonwealth under clause 61, to the Prime Minister
and the Minister. In preparing this report, the Commissioner must consider any response
already provided by the Commonwealth under clause 61.
282. The Minister must table the report before each House of Parliament within 15 sitting
days of the relevant House.
283. This clause reflects the importance of the Commissioner's ongoing role to monitor the
implementation of their recommendations (paragraph 11(1)(c) refers).
Clause 63 Judges
284. Clause 63 defines the terms 'Judge' and 'eligible Judge', and sets out the process for a
Judge to consent to being declared an as eligible judge.
285. Subclause 63(1) provides that 'Judge' is defined to mean a person who is a Judge of a
court created by the Parliament. The relevant Parliament is the Parliament of the
Commonwealth of Australia. It also provides that 'eligible Judge' is defined to mean a judge
who has formally consented, and been declared, in accordance with subclauses 63(2) and (3).
286. Subclause 63(2) provides that a Judge may, by writing, consent to be nominated as an
eligible judge by the Attorney-General under subclause 63(3).
287. Subclause 63(3) provides that the Attorney-General may, by writing, declare Judges
in relation to whom consents are in force under subclause 63(2) to be eligible Judges.
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288. An eligible judge may issue a search warrant following application by the
Commissioner or an authorised member, in accordance clauses 36 and 37.
289. Conferring the power to issue a warrant on eligible Judges recognises that these
individuals are well-placed to conduct independent assessments of evidence, and to balance
the rights and liberties of individuals with the interests of the Commissioner. This approach is
consistent with other Commonwealth legislation, under which Judges can be authorised to
exercise functions in their personal capacity (persona designata), as a means of ensuring
accountability in the course of a sensitive investigation. When an eligible Judge performs
certain persona designata functions, as would be the case when issuing a search warrant
under clause 36, they are not exercising the formal judicial powers of the court of which they
are a member, but acting as an independent decision-maker.
Clause 64 Protection of Commissioner, legal practitioners, eligible Judges and
witnesses
290. Clause 64 provides certain protections and immunities to the Commissioner and other
persons.
291. This clause ensures the Commissioner and others persons assisting or appearing
before the Commissioner can effectively perform their function or role without concern about
potential proceedings being brought against them for the legitimate undertaking of their roles
and functions.
292. Subclause 64(1) provides the Commissioner with the same protection and immunity
as a Justice of the High Court when the Commissioner is performing or exercising functions
or powers under this Act. This clause protects the Commissioner from legal action being
brought against them in relation to anything they have done or omitted to do in the
performance of their functions, or the exercise of their powers. This does not prevent legal
action from being brought against the Commissioner if the Commissioner is acting outside
their functions or powers.
293. Subclause 64(2) provides a legal practitioner assisting the Commissioner or appearing
on behalf of a person at a hearing with the same protection and immunity as a barrister
appearing before the High Court. Legal practitioner is defined in clause 5 of this Act as a
barrister, solicitor, barrister and solicitor or legal practitioner of the High Court or a Supreme
Court of a State or Territory.
294. Subclause 64(3) provides an eligible Judge with the same protection and immunity as
a Justice of the High Court in relation to proceedings in the High Court, when performing or
exercising functions or powers conferred on an eligible Judge under this Act. Eligible Judge
is defined in subclause 63(1).
295. Subclause 64(4) provides that, subject to this Act, a person appearing as a witness at a
hearing, or giving or producing information, evidence, a statement or document under clauses
30 or 32, has the same protection as a witness in proceedings in the High Court. This aligns
with the protection of witnesses before a Royal Commission as provided in section 7 of the
Royal Commissions Act, and will enable relevant persons to claim the defence of absolute
privilege in respect of information disclosed when appearing as a witness or in response to a
compulsory notice, for example, in separate criminal or civil proceedings.
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Clause 65 Rules
296. Clause 65 enables the Minister to make rules under this Act.
297. Subclause 65(1) provides that the Minister may, by legislative instrument, make rules
that prescribe matters which are required or permitted, or are necessary or convenient to
carrying out or giving effect to this Act.
298. The Act expressly provides for rules to be made for certain matters, such as to list
additional agencies within the definition of 'law enforcement or security agency' in clause 5,
and to prescribe a scale of witness expenses in clause 39.
299. Subclause 65(2) clarifies matters that rules made under this Act may not address, such
as creating an offence or civil penalty (paragraph 65 (2)(a)), provide powers of arrest or
detention (paragraph 65(2)(b)(i)), impose a tax (paragraph 65(2)(c)), and directly amend the
text of this Act (paragraph 65(2)(e)).
300. This instrument making power provides flexibility and acts as a safeguard in the event
that the Act does not fully anticipate procedures or practices required by the Commissioner to
perform their functions or exercise their powers.
301. Dealing with these matters in rules rather than regulations accords with the Office of
Parliamentary Counsel's (OPC) Drafting Direction No. 3.8 - Subordinate legislation
(Drafting Direction). The Drafting Direction states that OPC's starting point is that
subordinate instruments should be made in the form of legislative instruments (as distinct
from regulations) unless there is a good reason not to do so.
302. Consistent with the Drafting Direction, the approach of dealing with these matters in
rules has a number of advantages including:
it facilitates the use of a single type of legislative instrument (or a reduced number of
types of instruments) being needed for the Act
it enables the number and content of the legislative instruments under the Act to be
rationalised
it simplifies the language and structure of the provisions in the Act that provide the
authority for the legislative instruments, and
it shortens the Act.
303. Due to these advantages, the Drafting Direction states that drafters should adopt this
approach where appropriate with new Acts.
304. The Drafting Direction states that matters such as compliance and enforcement, the
imposition of taxes, setting amounts to be appropriated, and amendments to the text of an
Act, should be included in regulations unless there is a strong justification otherwise. The Bill
does not enable the rules to provide for any of these matters. This is clarified by subclause
65(2), which specifically prevents the rules from including these types of matters.
305. This clause also clarifies that the rules made under clause 65 are a legislative
instrument for the purposes of the Legislation Act. Under the Legislation Act, legislative
instruments and their explanatory statements must be tabled in both Houses of the Parliament
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within 6 sitting days of the date of registration of the instrument on the Federal Register of
Legislation. Once tabled, the rules will be subject to the same level of parliamentary scrutiny
as regulations (including consideration by the Senate Standing Committee for the Scrutiny of
Delegated Legislation), and a motion to disallow the rules may be moved in either House of
the Parliament within 15 sitting days of the date the rules are tabled.
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