Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016

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Purpose	This bill seeks to enable the Secretary of the Department of Veterans' Affairs to authorise the use of computer programmes to: • make decisions and determinations; • exercise powers or comply with obligations; and • do anything else related to making decisions and determinations or exercising powers or complying with obligations
Portfolio	Veterans' Affairs
Introduced	House of Representatives on 24 November 2016
Bill status	Before House of Representatives
Scrutiny principle	Standing Order 24(1)(a)(ii)

2.163 The committee dealt with this bill in Alert Digest No. 10 of 2016. The Minister responded to the committee's comments in a letter dated 12 December 2016. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is at Appendix 2.

Broad discretionary power—disclosure of information^[23]

2.164 Items 1, 7 and 10 of Schedule 2 insert a provision into each of the Military Rehabilitation and Compensation Act 2004, Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 and the Veterans' Entitlement Act 1986, respectively, that would enable the Secretary to certify that it is necessary in the public interest to 'disclose any information obtained by any person in the performance of that person's duties [under the relevant Act] to such persons and for such purposes as the Secretary determines'.

2.165 The explanatory memorandum (at p. 11) provides examples of circumstances in which it might be appropriate for the Secretary to disclose information, such as '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'.

2.166 The statement of compatibility (at p. 4) notes that several safeguards have been incorporated into the bill in relation to the disclosure of information under these provisions. These include that:

2.167 The committee notes these safeguards, however it remains the case that there is no limitation on the face of the bill in relation to the breadth of the Secretary's power to certify that the disclosure of information is in the public interest (other than the notification requirement in relation to personal information described above). While the Secretary must act in accordance with any rules that the Minister makes about how the power is to be exercised there is no requirement for the Minister to actually make rules for this purpose.

I am pleased to provide my advice in relation to the two issues identified by the Standing Committee for the Scrutiny of Bills and thank the Committee for the opportunity to provide this further information.

I would like to advise the Committee that I intend to make rules that will appropriately limit the circumstances in which the Secretary of the Department of Veterans' Affairs (the Secretary) will be able to exercise the proposed public interest disclosure power and that the Secretary will not be able to exercise the proposed public interest disclosure power until those rules are in place.

I would also like to advise the Committee that my Office has been working very closely with the Office of the Hon Amanda Rishworth MP, the Shadow Minister for Veterans' Affairs, to develop the content of these rules.

As noted in the Explanatory Memorandum, items 1, 7 and 10 of Schedule 2 of the Digital Readiness Bill are modelled on paragraph 208(1)(a) of the Social Security Administration Act 1999. That public interest disclosure provision has been in operation for 17 years and has not, as far as I am aware, been the cause of any concern or Parliamentary inquiry, nor has the Privacy Commissioner raised any concern about the operation of the provision.

The Department of Human Services and the Department of Social Service make public interest disclosures without having rules or guidance in the primary legislation.

When the Committee examined the Social Security (Administration) Bill 1999 (as it then was) in its fourteenth report of 1999 and in the Scrutiny of Bills Alert Digest No 9 of 1999, it did not raise similar concerns about why rules or guidance about the exercise of the Secretary's disclosure power cannot be included in the primary legislation and why there is no duty on the Minister to make rules regulating the exercise of the Secretary's power.

At least thirteen versions of the Social Security Public Interest Certificate Guidelines have been made. I understand that more versions have been made but that, earlier (revoked) versions are not available on the Federal Register of Legislation. Most recently, the Guidelines were amended in 2015 (from a 2014 version) to ensure that information can be disclosed to assist Commonwealth, State and Territory law enforcement agencies with the making, or proposed or possible making, of a proceeds of crime order or supporting or enforcing a proceeds of crime order.

It is important that, where new circumstances arise necessitating the disclosure of information (such as in relation to proceeds of crime orders), the Minister for Veterans' Affairs is able to respond quickly and flexibly to deal with changing circumstances.

Were the rules or guidance located in the primary legislation, the Minister for Veterans' Affairs would be less able to quickly respond to evolving circumstances, owing to the length time required for the Parliament to pass legislation and also due to the competing relative priorities of the Parliament.

Equivalent rules made under legislative instrument have been effectively operating in relation to public interest disclosures for the Department of Social Services and the Department of Human Services. The rules would take the form of a disallowable instrument, thus ensuring appropriate Parliamentary scrutiny of the rules.

As I noted above, I intend to make rules that will limit the circumstances in which the Secretary will be able to exercise the proposed public interest disclosure power and the Secretary will not be able to exercise the proposed public interest disclosure power until those rules are in place. Work on developing the content of the rules is well underway in consultation with the Shadow Minister and I thank Ms Rishworth for her continued constructive engagement on veterans' affairs issues.

The Social Security rules are also discretionary, but, as can be seen from the frequent amendment history, Ministers have ensured that appropriate rules are in place to limit the circumstances in which a proposed public interest disclosure may be made.

Thank you again for raising these issues in relation to the Digital Readiness Bill with me. I trust that my advice addresses the Committee's concerns and would be happy to provide any further information the Committee considers useful.

2.170 The committee thanks the Minister for this response. The committee notes the Minister's advice that he intends to make rules appropriately limiting the circumstances in which the Secretary can exercise the proposed public interest disclosure power, and that similar rules have previously been made under similar existing legislation. The committee also notes the Minister's advice that if the rules or guidance were to be located in the primary legislation the Minister would be less able to quickly respond to evolving circumstances.

2.171 The Minister's advised that rules will be made to appropriately limit the circumstances as to when the power can be exercised, and that the Secretary will not be able to exercise the proposed public interest disclosure power until those rules are in place. However, the committee notes that bill provides that Secretary must 'act in accordance with any rules made',^[24] but this only applies if rules are made, and there is no legal requirement that rules be in place before the provisions in the bill become operative.^[25]

2.172 The committee considers that the disclosure of any information obtained in the course of the performance of a Secretary's duties under legislation to any person for any purpose, is a significant matter that should be appropriately defined or limited in primary legislation. While the committee appreciates that this power has existed for a number of years, this does not alleviate the committee's scrutiny concerns in relation to the provisions in this bill.

2.173 The committee considers it would be appropriate for at least high-level guidance about the exercise of the Secretary's disclosure power to be included in the primary legislation or, at a minimum, that there should be a positive duty on the Minister to make rules regulating the exercise of the Secretary's power.

2.174 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of the broad discretionary power of the Secretary to disclose information.

2.175 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

[25] See Schedule 2, item 1, proposed subsection 409A(3) which provides that the Minister 'may' make rules.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 29 (8 February 2017)

Broad discretionary power—disclosure of information [23]

Broad discretionary power—disclosure of information^[23]