Commonwealth of Australia Explanatory Memoranda

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VETERANS' AFFAIRS LEGISLATION AMENDMENT (DIGITAL READINESS AND OTHER MEASURES) BILL 2016

                            2016-2017




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




           HOUSE OF REPRESENTATIVES/SENATE




   VETERANS' AFFAIRS LEGISLATION AMENDMENT
(DIGITAL READINESS AND OTHER MEASURES) BILL 2016


   SUPPLEMENTARY EXPLANATORY MEMORANDUM




                           Amendments
            to be Moved on Behalf of the Government




   (Circulated by authority of the Minister for Veterans' Affairs,
                  the Honourable Dan Tehan MP)
        GOVERNMENT AMENDMENTS TO THE VETERANS' AFFAIRS
                   LEGISLATION AMENDMENT
          (DIGITAL READINESS AND OTHER MEASURES) BILL 2016


OUTLINE
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Digest 1 of 2017), in
its consideration of the Veterans' Affairs Legislation Amendment (Digital Readiness and
Other Measures) Bill 2016 considered that there should be a positive duty on the Minister
for Veterans' Affairs to make rules regulating the exercise of the public interest disclosure
(PID) power by the Secretary of the Department of Veterans' Affairs.
The Senate Foreign Affairs, Defence and Trade Committee, in its report of 20 February
2017 into the Veterans' Affairs Legislation Amendment (Digital Readiness and Other
Measures) Bill 2016 (the Bill), recommended that the Bill be amended to include a
mandatory review of the implementation of the legislation and accompanying rules two
years from the commencement date.
These amendments would give effect to the Senate Standing Committee for the Scrutiny
of Bills' comments and the Senate Foreign Affairs, Defence and Trade Committee's
recommendation.


FINANCIAL IMPACT STATEMENT
None.




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                     Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
               VETERANS' AFFAIRS LEGISLATION AMENDMENT
           (DIGITAL READINESS AND OTHER MEASURES) BILL 2016
Human rights implications
The amendments engage the following human right:
Privacy
The right to privacy and reputation is contained in article 17 of the International Covenant
on Civil and Political Rights (ICCPR.)
The Privacy Act 1988 legitimately limits the circumstances surrounding the handling and
disclosure of a person's personal information, as set out in the Australian Privacy
Principles. The proposed public interest disclosure power provisions are designed to put
beyond doubt that the Secretary may, in certain limited circumstances, release information
about a case or class of cases.
Examples of the circumstances in which it might be appropriate for the Secretary to
disclose information about a case or class of cases include where there is a threat to life,
health or welfare, for the enforcement of laws, in relation to proceeds of crime orders,
mistakes of fact, research and statistical analysis, APS code of conduct investigations,
misinformation in the community and provider inappropriate practices.
Several safeguards have been incorporated into the Bill to ensure that the power will be
exercised appropriately:
      the Secretary must act in accordance with the rules that the Minister makes about
       how the power is to be exercised
      the Minister cannot delegate his or her power to make rules about how the power is
       to be exercised to anyone
      the Secretary cannot delegate the public interest disclosure power to anyone
      before disclosing personal information about a person, the Secretary must notify
       the person in writing about his or her intention to disclose the information, give the
       person a reasonable opportunity to make written comments on the proposed
       disclosure of the information and consider any written comments made by the
       person, and
      unless the Secretary complies with the above requirements before disclosing
       personal information, he or she will commit an offence, punishable by a fine of 60
       penalty units (approximately $10,800.)
Significantly, any interference with a person's privacy will not be arbitrary under the
proposed provisions because, if the Secretary proposes to disclose personal information
about a person, he or she must first notify the person in writing about his or her intention
to disclose the information, give the person a reasonable opportunity to make written
comments on the proposed disclosure of the information and consider any written
comments made by the person before disclosing the personal information. Further, the


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rules which must be made by the Minister and (which the Secretary must follow) would
set out the matters to which the Secretary must have regard in giving a public interest
certificate and the circumstances in which a public interest certificate may be given.
These amendments would further strengthen the existing safeguards in the Veterans'
Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 because
they would place a positive duty on the Minister to make rules regulating the exercise of
the Secretary's power to make a public interest disclosure. That is, instead of providing
that the Minister may make rules in relation to how the Secretary makes a public interest
disclosure, the Minister now must make such rules.
The amendments would also require the Minister to arrange a review of the public interest
disclosure provisions, including the rules made under those provisions, to be undertaken
two years after they commence. A report of the review must be prepared and tabled in
each House of the Parliament within 15 sitting days of that House after the report is
completed. These amendments would enable the Parliament a further opportunity to
examine the operation of the public interest disclosure provisions once they have been
functioning for a reasonable period of time.
These amendments are compatible with human rights because they promote relevant rights
and do not impermissibly derogate from human rights.
NOTES ON CLAUSES
Items 3, 5 and 7 replace the word "may" with must" in proposed subsections 409A(3) of
the Military Rehabilitation and Compensation Act 2004, 151B(3) of the Safety,
Rehabilitation and Compensation (Defence-related Claims) Act 1988 and 131A(3) of the
Veterans' Entitlements Act 1986.
These items would implement comments made by the Senate Standing Committee for the
Scrutiny of Bills in its Scrutiny Digest 1 of 2017, in which it considered that there should
be a positive duty on the Minister for Veterans' Affairs to make rules regulating the
exercise of the Secretary's (a reference to Secretary means the Secretary of the
Department of Veterans' Affairs) public interest disclosure (PID) power.
These items would require that the Minister must make rules prescribing the exercise of
the Secretary's power to give certificates under proposed subsections 409A(1) of the
Military Rehabilitation and Compensation Act 2004, 151B(1) of the Safety, Rehabilitation
and Compensation (Defence-related Claims) Act 1988 and 131A(1) of the Veterans'
Entitlements Act 1986.
These rules would be subject to disallowance by the Parliament and must be in place
before the Secretary may exercise the PID power.


Items 2, 4 and 6 are necessary amendments in light of items 3, 5 and 7. Items 2, 4 and 6
replace the word "any" with "the" in proposed subsections 409A(2) of the Military
Rehabilitation and Compensation Act 2004, 151B(2) of the Safety, Rehabilitation and
Compensation (Defence-related Claims) Act 1988 and 131A(2) of the Veterans'
Entitlements Act 1986.
As the Minister must make rules, it is no longer necessary to refer to the Secretary acting
in accordance with "any" rules made by the Minister. Instead, subsections 409A(2) of the
Military Rehabilitation and Compensation Act 2004, 151B(2) of the Safety, Rehabilitation
and Compensation (Defence-related Claims) Act 1988 and 131A(2) of the Veterans'
Entitlements Act 1986 will state that, when giving a public interest certificate, the
Secretary must act in accordance with the rules made by the Minister.
Item 8 would implement recommendation 3 made by the Senate Foreign Affairs, Defence
and Trade Committee in its 20 February 2017 report into the Veterans' Affairs Legislation
Amendment (Digital Readiness and Other Measures) Bill 2016. That recommendation
was that the Bill be amended to include a mandatory review of the implementation of the
legislation and accompanying rules two years from the commencement date.
Subitem 8(1) states that, two years after the commencement of item 8 (see item 1), the
Minister must cause a review of the public interest disclosure provisions, including the
rules made under those provisions, to be conducted. Subitem 8(2) requires the Minister to
have a report of the review prepared and subitem 8(3) requires the Minister to table a
copy of the report in each House of the Parliament within 15 sitting days of that House
after the report is completed.
The two year anniversary referred to in subitem 8(1) would be two years after the public
interest disclosure provisions under the Military Rehabilitation and Compensation Act
2004 (MRCA) commence. Those provisions will commence on a single day to be fixed

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by Proclamation or, if they do not commence within 6 months of Royal Assent, the day
after that 6 month period expires.
The two year anniversary has been linked to the commencement of the public interest
disclosure provisions under the MRCA, because that is the date on which the public
interest disclosure provisions under the Veterans' Entitlements Act 1986 (VEA) would
also commence. The public interest disclosure provisions under the Safety, Rehabilitation
and Compensation (Defence-related Claims) Act 1988 are contingent on the Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016
being enacted.
Item 1 amends the commencement provision in section 2 of the Bill so that item 8 (review
of public interest disclosure provisions) would commence at the same time as the public
interest disclosure provisions under the MRCA and VEA commence.