Veterans' Affairs Legislation Amendment (Omnibus) Bill 2018 - Commentary on Ministerial Responses [2018] AUSStaCSBSD 260 (28 November 2018)

• Veterans' Affairs Legislation Amendment (Omnibus) Bill 2018
• Coercive powers
• Strict liability
• Reversal of evidential burden of proof 100

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Veterans' Affairs Legislation Amendment (Omnibus) Bill 2018

Purpose	This bill seeks to amend various Acts relating to veterans' affairs and military rehabilitation to: • enable the Chief of the Defence Force to make a claim for liability for current serving Australian Defence Force members where they have given consent; • enable the Military Rehabilitation and Compensation Commission to obtain information from Commonwealth, State or Territory departments and authorities, and other third parties when determining a claim; and • ensure that exempt lump sum determinations will apply as exempt lump sums from income tests that applies to Department of Veterans' Affairs income support clients
Portfolio	Veterans' Affairs
Introduced	House of Representatives on 20 September 2018
Bill status	Received Royal Assent on 25 October 2018

Coercive powers
Strict liability
Reversal of evidential burden of proof ^[100]

2.193 In Scrutiny Digest 12 of 2018^[101] the committee requested the minister's advice as to why it is considered necessary and appropriate to:

• confer on the Military Rehabilitation and Compensation Commission broad powers to require information and documents from 'any person', and to require 'any person' to appear before the Commission to give evidence;

• apply strict liability to the offence in proposed subsection 151(9); and

• include an offence-specific defence (which reverses the evidential burden of proof) in proposed subsection 151(11).

2.194 The committee noted that its consideration of these matters would be assisted if the minister's response expressly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[102]

Minister's response^[103]

2.195 The minister advised:

Subsection 151(1) provides that the MRCC may give written notice to any person requiring the person, for the purposes of this Act, (a) to provide the MRCC (or a specified staff member assisting the MRCC) such information as the MRCC requires, or (b) produce to the MRCC any documents in the custody or under the control of a person, or (c) to appear before a specified staff member assisting the MRCC to answer questions.
Subsection 151(9) imposes an offence of strict liability where the person fails to comply with a notice under subsection (1), punishable by a penalty of 10 penalty units. Subsection 151(10) provides that an offence against subsection (9) is an offence of strict liability.
Subsection 151(11) provides that subsection (9) does not apply to the extent that the person is not capable of complying with the notice.
Coercive powers - subsection 151(1), to require information/documents from 'any person'
The decision to use the phrase 'any person' was taken during the drafting process to ensure the provision does not inadvertently limit the persons to whom the MRCC may issue a written notice to provide information and/or documents or require their appearance to answer questions.
'Any person' may be inclusive of executive officers of the Commonwealth and third parties in positions of responsibility, such as financial institutions, previous employers, accountants and medical professionals. The use of 'any person' is inclusive of all classes of people who may have custody, or be in the care or control of, the required information or document critical to a person's claim that is before the MRCC for determination. This broad inclusionary provision is required to encompass all persons whom the MRCC and claimant reasonably believe may have custody or be in the care or control of the required information and/or document.
The information and/or document required by the MRCC is critical to the determination of a claim made in relation to a defence related injury or death (liability and/or financial compensation), including determinations necessary to effect payments to veterans and their families. This provision assists in the administration of the Department of Veterans' Affairs legislation and assists the MRCC in providing fair outcomes in relation to a claim for a defence related injury or death.
Strict liability and reversal of evidential burden of proof- subsections 151(9) and (11)
The information and/or document required by the MRCC under subsection 151(1) of the DRCA may include employment records, records made and maintained by medical providers and bank account records held by financial institutions. In many cases, the person has a legal obligation to maintain records for a specific period or the information is retained in perpetuity. However, the information/document may be inaccessible or access may incur significant costs to the claimant, which is avoided by the MRCC going directly to the holder of the records (as is the case for historical statements held by financial intuitions who charge a fee to provide statements). In the case where the claimant is vulnerable or another person is legally entitled to make a claim (a spouse or partner of a deceased Australian Defence Force member), they may experience significant barriers to providing information and/or documents to support the claim to the MRCC such as financial cost of access. There is little that can be done by the Department to otherwise incentivise these third parties to provide this information.
The Committee has requested advice as to why Schedule 2 of the Bill imposes an offence-specific defence in subsection 151(11). The Committee is concerned that this provision reverses the evidential burden of proof and asks for a response that explicitly address the relevant principles of the Guide to Framing Commonwealth Offences (the Guide).
The offence-specific defence allows the person issued with the notice to raise evidence that they are not capable of complying with the request in the notice. This could include that they are not the person with custody of the required information/document nor are they the person in the care and control of it. The existence of a reason not to provide the information and/or document would be a matter peculiarly within the knowledge of the person issued the notice and it would be significantly more difficult and costly for the MRCC to disprove this than the person issued the notice to establish. These factors satisfy the principles in the Guide applicable to offence-specific defences.^[104]
The imposition of an offence-specific defence would not lead to an unjust outcome. This is because it is reasonable in the circumstances that the person issued the notice under subsection 151(11) is believed to be the last known person with custody or has the care and control of the document/information required by the MRCC. This is a reason why this has been cast as a defence. Generally, the person issued the notice would have access to the information/document and their compliance with the notice would not incur any cost, or the cost would not be significant.
The appropriate burden of proof applies to offence-specific defence in subsection 151(11). The principle in the Guide is that an evidential burden should generally apply to offence-specific defences.^[105]

Committee comment

2.196 The committee thanks the minister for this response. The committee notes the minister's advice that the phrase 'any person' was deliberately included in proposed subsection 151(1) to ensure the provision does not inadvertently limit the persons to whom the Military Rehabilitation and Compensation Commission (MRCC) may issue a notice to produce information or documents, or answer questions.

2.197 The committee also notes the minister's advice that this broad inclusionary provision is required to encompass all persons whom the MRCC and the relevant claimant reasonably believe may have custody, care or control of required information or documents. In this respect, the committee notes the advice that information and documents required by the MRCC are critical to determining claims relating to defence-related injuries or death, and the advice that the power to issue notices assists the MRCC in providing fair outcomes in relation to such claims.

2.198 In relation to the imposition of strict liability (proposed subsection 151(10)), the committee notes the minister's advice that information and documents required by the MRCC may be held by third parties such as medical providers and financial institutions, and may be very difficult to access without incurring significant financial costs. The committee notes the advice that, other than making it an offence of strict liability to fail to comply with a notice under proposed subsection 151(1), there is little that can be done to incentivise these third parties to supply information and documents required by the MRCC to properly asses a claim. The committee also notes that strict liability attaches to an offence which is subject to a relatively low penalty of 10 penalty units.

2.199 Finally, in relation to the offence-specific defence (proposed subsection 151(11)), the committee notes the minister's advice that the existence of a reason not to comply with a notice would be peculiarly within the knowledge of the person to whom the notice is issued, and would be significantly more difficult for the MRCC to disprove than for that person to establish. The committee notes the advice that these reasons may include that the person issued with the notice is not the person with custody or control of relevant information or documents.

2.200 In light of the information provided by the minister and the fact that the bill has already passed both Houses of Parliament, the committee makes no further comment on this matter.

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[100] Schedule 2, item 1, proposed section 151. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[101] Senate Scrutiny of Bills Committee, Scrutiny Digest 12 of 2018, at pp. 59-61.

[102] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 22-25 (strict liability), pp. 50-52 (reverse burdens) and Chapters 7-10 (coercive powers).

[103] The minister responded to the committee's comments in a letter received 21 November 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 14 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest

[104] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

[105] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 51.