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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIONAL COMMISSIONER FOR DEFENCE AND VETERAN SUICIDE
PREVENTION BILL 2020
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Honourable Christian Porter MP)
AMENDMENTS TO THE NATIONAL COMMISSIONER FOR DEFENCE AND
VETERAN SUICIDE PREVENTION BILL 2020
(Government)
GENERAL OUTLINE
1. The proposed amendments to the National Commissioner for Defence and Veteran
Suicide Prevention Bill 2020 ('the Bill') implement relevant recommendations of the
Senate Foreign Affairs, Defence and Trade Legislation Committee ('the Senate Committee')
majority report on the Bill and the National Commissioner for Defence and Veteran Suicide
Prevention (Consequential Amendments) Bill 2020 (together, the Bills), released on
30 November 2020.
2. The proposed amendments also address the key issues arising in feedback provided
during the four week period of public and stakeholder consultation on the Bills, held from
27 August 2020 to 24 September 2020.
3. In summary, the amendments will:
affirm the independence of the Commissioner (amendment 9)
clarify the Commissioner's scope to consider attempted suicide and the lived
experience of defence members and veterans (amendments 3, 5 and 12)
incorporate a requirement for a statutory review of the Commissioner function
after three years (amendment 23)
reflect and acknowledge the valuable contribution that families and others affected
by defence and veteran suicide deaths will make to the Commissioner's work
(amendments 6 and 7), and the Commissioner's ability to make recommendations
about engagement with, and support services for, families and others affected by a
member or veteran death by suicide (amendment 1)
confirm the independence of the Commissioner from Coroners, and the
collaborative nature of their relationship (amendments 2, 14 and 16), and
make technical amendments, such as modernising the arrangements for witness
expenses and allowances (amendment 18).
FINANCIAL IMPACT
4. There are no financial impacts associated with these amendments.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
National Commissioner for Defence and Veteran Suicide Prevention Bill 2020
1. The amendments to the Bill are 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. The proposed amendments implement the relevant recommendations of the
Senate Foreign Affairs, Defence and Trade Legislation Committee ('the Senate Committee')
majority report on the Bill and other issues arising in consultation feedback. In summary, the
amendments will:
affirm the independence of the Commissioner (amendment 9)
clarify the Commissioner's scope to consider attempted suicide and the lived
experience of defence members and veterans (amendments 3, 5 and 12)
incorporate a requirement for a statutory review of the Commissioner function
after three years (amendment 23)
reflect and acknowledge the valuable contribution that families and others affected
by defence and veteran suicide deaths will make to the Commissioner's work
(amendments 6 and 7), and the Commissioner's ability to make recommendations
about engagement with, and support services for, families and others affected by a
member or veteran death by suicide (amendment 1)
confirm the independence of the Commissioner from Coroners, and the
collaborative nature of their relationship (amendments 2, 14 and 16), and
make technical amendments, such as modernising the arrangements for witness
expenses and allowances (amendment 18).
Human rights implications
3. The amendments engage the following rights:
Article 12(1) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR) - the right to health
Article 17 of the International Covenant on Civil and Political Rights (ICCPR) -
the right to freedom from interference with privacy and attacks on reputation, and
Article 27 of the ICCPR and article 15 of the ICESCR - the right to enjoy and
benefit from culture
4. The amendments engage and promote the right to health in article 12(1) of the ICESCR
to the extent that they clarify and confirm that the Commissioner may make findings and
recommendations about support services for, and engagement with, defence members and
veterans, and the families, friends and associates of defence members and veterans affected
by a relevant death by suicide. The amendments also clarify and confirm that the
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Commissioner can inquire into the availability and quality of health, wellbeing and
counselling support services for defence members and veterans, in addition to the
effectiveness of such services.
5. The amendments engage and promote the right to privacy in article 17 of the ICCPR
by outlining additional circumstances when the Commissioner may hold a private hearing.
This would include where the Commissioner is satisfied that information relating to a
member's or veteran's lived experience with a suicide risk may be disclosed at a hearing.
This amendment recognises that individuals may wish to limit the disclosure of sensitive
personal and private information to a private hearing. The right to privacy is also engaged by
the inclusion of an additional safeguard in clause 56 which requires that the Commissioner
must be satisfied that in disclosing information to non-law enforcement or coronial bodies
under clause 56, that the disclosure will assist the body to perform functions or powers which
are connected with defence and veteran deaths by suicide. This further requirement ensures
that the on-sharing of information under clause 56 is connected to and consistent with the
Commissioner's core work.
6. The right to enjoy and benefit from culture under article 27 of the ICCPR and
article 15 of ICESCR is engaged and promoted through the inclusion of cultural
appropriateness within the general principles that should be taken into account in the
performance or exercise of the Commissioner's functions or powers.
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NOTES ON AMENDMENTS
Amendment 1: Clause 11, page 10 (lines 12 to 14)
1. Amendment 1 would substitute a new subparagraph 11(1)(b)(i) which provides that
the Commissioner may make findings and recommendations following inquiries under
clause 26, addressing matters including:
recommendations about the wellbeing of defence members and veterans
recommendations about support services for, and engagement with, defence
members and veterans, and families, friends and associates affected by
defence and veteran deaths by suicide, and
recommendations in relation to defence and veteran suicide prevention
strategies.
2. This amendment has been included following consultation feedback which
highlighted the important role of support services for, and engagement with, the families,
friends and associates affected by a member or veteran death by suicide or suspected suicide.
Amendment 2: Clause 11, page 11 (line 4)
3. Amendment 2 would specify that it is not a function of the Commissioner to make
findings on the 'manner' in which a death occurred, in addition to the existing exclusion
relating to a 'cause' of death in paragraph 11(2)(b). Manner of death is generally understood
as the determination of how the injury or disease leads to death; cause of death is generally
understood as being the specific injury or disease that leads to death.
4. Making findings on the manner or cause of death are excluded from the
Commissioner's functions in accordance with the role of the Commissioner to complement,
and not duplicate or replace, the role of a Coroner.
Amendment 3: Clause 11, page 11 (after line 14)
5. Amendment 3 would insert a new note after subclause 11(4). The note clarifies that
the Commissioner has a range of powers conferred under Part 3 of the Bill to obtain
information for the purposes of performing their functions. The note provides, as an example,
the Commissioner may obtain information about suicide risks by holding a hearing and
receiving information about defence members' and veterans' lived experience with those
risks. Relevant lived experience may include defence members' or veterans' experiences with
suicidal thoughts or feelings, or surviving a suicide attempt.
Amendment 4: Clause 12, page 11 (lines 20 and 21), subclause (2)
6. Amendment 4 would provide that the Commissioner, in the performance or exercise
of their functions or powers, should take a culturally appropriate approach, in addition to the
existing general principles in subclause 12(2) that the Commissioner should take a
trauma-informed and restorative approach.
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7. This amended general principle requires the Commissioner to approach the exercise
of their functions and powers in a way that is culturally appropriate, which includes being
culturally aware and informed, and respecting the cultural practices of the persons with whom
the Commissioner is engaging.
Amendment 5: Clause 12, page 11 (after line 21), after subclause (2)
8. Amendment 5 would insert a new subclause 12(2A) which provides that, as a further
general principle, the Commissioner should recognise the lived experience of defence
members and veterans.
9. Lived experience includes a broad range of experiences, including experiences with
suicidal thoughts or feelings, or the experience of surviving a suicide attempt. It also extends,
for example, to lived experience with positive factors that have promoted and improved
wellbeing amongst defence members and veterans.
Amendment 6: Clause 12, page 11 (lines 23 to 25)
10. Amendment 6 would substitute a new paragraph 12(3)(a) which provides that the
Commissioner should value the unique contribution families and others affected by defence
and veteran deaths by suicide may make to the Commissioner's functions.
11. The amended general principle in paragraph 12(3)(a) recognises the unique and
valuable 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, as well as providing valuable insight and assistance to the
Commissioner's suicide prevention and suicide prevention related work.
Amendment 7: Clause 12, page 11 (line 27), at the end of paragraph (3)(b)
12. Amendment 7 would clarify that the Commissioner should recognise that families and
other persons affected by defence and veteran deaths by suicide may wish to be consulted by
the Commissioner and, if they do wish to be consulted, provide that the Commissioner should
take appropriate steps to seek their views.
13. The new paragraph 12(3)(b) would strengthen the existing acknowledgement and
recognition of families and other persons who will contribute to the Commissioner's work in
in the general principles in clause 12, while also respecting that some families and other
persons may not wish to engage with the Commissioner.
Amendment 8: Clause 12, page 11 (line 27), at the end of the clause
14. Amendment 8 would insert a new subclause 12(3) which provides that the
Commissioner may issue written guidance about the approach they will take to the
performance or exercise of their functions or powers, that takes account of the general
principles in clause 12.
15. This amendment confirms the Commissioner will have discretion to issue guidance to
the public, and parties appearing, about the approach the Commissioner will take to particular
matters. For example, the Commissioner may wish to issue guidance about how they will
approach matters in a way that is trauma-informed, restorative and culturally appropriate.
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Amendment 9: Page 11 (before line 28), after clause 12
16. Amendment 9 would insert a new clause 12A which reflects and acknowledges the
independence of the Commissioner.
17. Subclause 12A provides that, subject to this Act and other laws of the
Commonwealth, the Commissioner is not subject to direction by or on behalf of any person,
including the Commonwealth, in relation to the performance or exercise of their functions or
powers.
18. The subclause would particularise, as examples, that the Commissioner is not subject
to direction in relation to whether or not an inquiry is to be conducted, whether or not any
finding or recommendation are to be made following an inquiry, the content of any findings
or recommendations, or the priority to be given to any matter (paragraphs 12A(a) - (c)).
19. The proposed subclause 12A, including reference to it operating subject to the rest of
the Act and other Commonwealth laws, is modelled on other provisions of its kind relating to
independent office holders, such as subsection 8(4) of the Auditor-General Act 1997 (Cth).
Amendment 10: Clause 26, page 17 (line 28)
20. Amendment 10 would confirm that the Commissioner may, as part of their inquiries,
consider the quality and availability of health, wellbeing and counselling support services for
defence members and veterans, as well as the effectiveness of such services.
21. 'Quality' is proposed to be expressly included in paragraph 26(1)(c) in response to
consultation feedback about this being an important consideration for the Commissioner.
Amendment 11: Clause 27, page 18 (after line 27), after subclause (2)
22. Amendment 11 would insert two new subclauses to clause 27, which relate to the
Commissioner holding a hearing.
23. The new subclause 27(2A) would provide that the Commissioner may issue written
guidelines relating to the procedure for hearings. This confirms the Commissioner may issue
guidance to assist the public, and parties appearing, about the approach the Commissioner
may take to the conduct of hearings.
24. The new subclause 27(2B) clarifies that any written guidelines issued under
subclause 27(2A) are not a legislative instruments. Subclause 27(2B) is intended to assist the
reader to understand that subclause 27(2A) is administrative in nature and is not a legislative
instrument within the meaning of subsection 8(1) of the Legislation Act 2003 (Cth).
Amendment 12: Clause 28, page 19 (lines 5 to 7)
25. Amendment 12 would insert a new paragraph 28(1)(a) which provides that the
Commissioner may hold a hearing, or part of a hearing, in private, if they are satisfied that
information relating to a deceased person, or the family, friends or associates of a deceased
person, or a defence member or veteran's lived experience with a suicide risk, may be
disclosed, and that information is personal and private (as provided in paragraph 28(1)(b)).
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26. The Bill provides that hearings will be held in public (subclause 27(2)). This can be
displaced in some circumstances, set out in clause 28 and subsection 42(6). The proposed
addition that the Commissioner may hold a hearing, or part of a hearing, in private where the
Commissioner is satisfied that a defence member's or veteran's lived experience with a
suicide risk may be disclosed recognises that it may be confronting for a person to give
evidence in a public hearing about such a topic.
Amendment 13: Clause 29, page 20 (line 8)
27. Amendment 13 is a technical amendment which clarifies that consultation following a
private hearing held on the basis of operationally sensitive information is for the purpose of
informing any future use or disclosure of that information.
Amendment 14: Clause 30, page 21 (after line 17), after subclause (5)
28. Amendment 14 would insert subclause 30(5A) which provides that, prior to issuing a
notice under subclause 30(1) to a person in their capacity as someone who is or has been a
Coroner or an officer or employee of a Coroners court, the Commissioner is to consider
requesting disclosure of the information in accordance with clause 41.
29. This amendment reflects the collaborative relationship the Commissioner will
maintain with Coroners, as provided in the Commissioner's functions (paragraph 11(1)(d)).
Amendment 15: Clause 30, page 21 (after line 25), at the end of the clause
30. Amendment 15 would insert subclause 30(7) which provides that if the Commissioner
gives a notice under subclause 30(1) to an officer or employee of a state or territory body, the
Commissioner must also give a copy of the notice to the head of the relevant body.
31. This is consistent with the requirement for a copy of a notice to be given to the head
of an Australian intelligence entity or the accountable authority of a Commonwealth entity in
subclause 30(6).
Amendment 16: Clause 32, page 23 (after line 4), after subclause (5)
32. Amendment 16 would insert a subclause 32(5A) which provides that, prior to issuing
a notice under subclause 32(1) to a person in their capacity as a current or former Coroner or
an officer or employee of a Coroners court, the Commissioner must first consider requesting
disclosure of the information in accordance with clause 41.
33. This amendment reflects the collaborative relationship the Commissioner will
maintain with Coroners, as provided in the Commissioner's functions (paragraph 11(1)(d)).
Amendment 17: Clause 32, page 23 (after line 12), at the end of the clause
34. Amendment 17 would insert subclause 32(7) which provides that if the Commissioner
issues a notice under subclause 32(1) to an officer or employee of a state or territory body,
the Commissioner must also give a copy of the notice to the head of the relevant body.
35. This is consistent with the requirement for a copy of a notice to be given to the head
of an Australian intelligence entity or the accountable authority of a Commonwealth entity in
subclause 32(6).
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Amendment 18: Clause 39, page 28 (lines 10 to 17)
36. Amendment 18 would insert a new clause 39 relating to witness expenses and
allowances.
37. Subclause 39(1) provides that a witness giving evidence at a hearing may be paid the
following in respect of giving evidence as a witness at a hearing and in accordance with a
scale prescribed by the rules:
a reasonable amount for their expenses of attending at a place to give evidence
an allowance for their travelling expenses and maintenance whilst absent from their
usual place of residence.
38. Subclause 39(2) provides that, in the absence of a prescribed scale, the amount or
allowance the person may be paid is the amount or allowance the Commissioner considers
reasonable.
39. The amended provision will align the witness expense arrangements with those
applicable in Royal Commissions (under sections 6G and 8 of the Royal Commissions Act),
while also modernising the terminology of the provision to ensure witness expenses and
allowances could be available to a person appearing at a hearing remotely via videolink, for
example.
Amendment 19: Clause 56, page 43 (after line 24), after paragraph (1)(b)
40. Amendment 19 would insert a new paragraph 56(1)(ba) which provides that, in
addition to the existing requirements in subclause 56(1), the Commissioner may disclose
information (including personal information) to the non-law enforcement or coronial entities
listed in paragraphs 56(2)(k) to (m), where the Commissioner is satisfied that the function or
power being exercised by the receiving entity (referred to in paragraph 56(1)(b)) is connected
with defence and veteran deaths by suicide.
41. Exercising functions or powers which are connected with defence and veteran deaths
by suicide, would include, for example, work in support of member and veteran suicide
prevention.
Amendment 20: Clause 56, page 43 (line 25)
42. Amendment 20 would confirm the existing position that the Commissioner may only
disclose information under clause 56 that is not intelligence information (as defined in
clause 5).
Amendment 21: Clause 56, page 44 (after line 17), after subclause (2)
43. Amendment 21 would insert two further subclauses in clause 56, which set out
circumstances where the Commissioner must consider undertaking consultation with a
Coroner, the head of a coronial jurisdiction, or the head of the police force of a state or
territory, prior to disclosing information under clause 56.
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44. Subclause 56(2A) would provide that, if the Commissioner believes disclosing
information in accordance with subclause 56(1) to the entities listed at subclauses 56(2)(k) to
(m) may prejudice a current or future coronial inquiry, the Commissioner must, before
disclosing the information, consider consulting:
for a current inquiry - the Coroner conducting the inquiry, or
for a future coronial inquiry - the head of the relevant coronial jurisdiction.
45. The requirement for consultation to be considered under subclause 56(2A) aligns with
the position in subclause 11(3) that, in performing the Commissioner's functions, the
Commissioner must have regard to the need to avoid prejudicing other contemporaneous
inquiries, including coronial inquiries.
46. Subclause 56(2B) would provide that if the Commissioner believes disclosing
information in accordance with subclause 56(1) to the entities listed at subclause 56(2)(k) to
(m) may prejudice current or future investigations by a state or territory police force, the
Commissioner must consider consulting the head of the relevant police force prior to making
a disclosure.
47. The requirement for consultation to be considered under subclause 56(2B) will
account for a situation where there may be an ongoing state or territory police investigation
into a death or related matter, and is consistent with the position in subclause 11(3) that, in
performing the Commissioner's functions, the Commissioner must have regard to the need to
avoid prejudicing current or future criminal proceedings.
Amendment 22: Clause 58, page 47 (after line 19), at the end of subclause (2)
48. Amendment 22 would insert a drafting note to subclause 58(2) which clarifies the
position that a defendant bears an evidential burden in relation to the matter in
subclause 58(2).
49. 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 they disclosed information on behalf of a Commonwealth, state
or territory body to the Commissioner in accordance with clauses 40 or 41.
50. The factual circumstances to support that a person had appropriate authority to
provide information on behalf of a Commonwealth, state or territory body to the
Commissioner, and that the information was for the purpose of assisting the Commissioner,
will be known to the defendant. The defendant could readily bring to the attention of the
prosecution evidence of their authority to act on behalf of the particular body. It would be
significantly more difficult and costly for the prosecution to disprove that the person
disclosing information to the Commissioner was acting beyond the individual's authority in
relation to the body.
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Amendment 23: Clause 50, (after line 26), after clause 64
51. Amendment 23 would insert a new clause 64A which provides for a review of the
operation of this Act.
52. Subclause 64A(1) provides that the Minister must cause a review of the operation of
the Act to be undertaken as soon as practicable after the end of three years after the
commencement of the Act. Conducting such a review after three years will ensure there are
sufficient metrics and other meaningful information about the operation of the National
Commissioner function for the review to consider.
53. Subclause 64A(2) requires the person who undertakes the review to give the Minister
a written report of the review within six months of the review commencing.
54. Subclause 64A(3) provides that the Minister must cause a copy of the review report to
be tabled in each House of Parliament within 15 sitting days of that House after the Minister
receives the report.
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