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Disability Services and Inclusion Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 222 (15 November 2023)

Disability Services and Inclusion Bill 2023^[5]

Significant matters in delegated legislation
Privacy
Reversal of the evidential burden of proof^[6]

2.2 Clause 29 of the bill seeks to provide for authorised uses and disclosures of relevant information. Clause 8 of the bill defines 'relevant information' to mean information obtained or generated by an entrusted person in performing, or assisting another person to perform, functions or duties, or exercising powers, under this Act. Clause 8 defines an 'entrusted person' to mean either the secretary, an APS employee, or any other person employed or engaged by the Commonwealth to provide services to the Commonwealth.

2.3 The authorised purposes for which relevant information may be used and disclosed include: the administration of the bill;^[7] Commonwealth purposes;^[8] disclosure to a court or tribunal;^[9] preventing threat to life, health or safety of a person with disability;^[10] statistical purposes;^[11] with the consent of the person to whom the information relates;^[12] disclosure to a person to whom the information relates;^[13] and information that is already public.^[14]

2.4 Additionally, subclause 29(2) seeks to provide that an entrusted person may use or disclose relevant information if the use or disclosure is for a purpose specified in a determination made by the secretary under  subsection 29(3).  Subclause 29(6) also provides that an entrusted person may disclose relevant information to the head of a department of state or territory, or of an authority of a state or territory, if the disclosure is for a purpose specified in a determination made under  subsection 29(7)  by the secretary.

2.5 Further, it is an offence under subclause 28(1) if a person is, or has been, an entrusted person, the person has obtained or generated relevant information in the person's capacity as an entrusted person, and the person uses or discloses protected information. This offence has a penalty of two years imprisonment or 120 penalty units, or both. Subclause 28(2) provides that subsection 28(1) does not apply if the use or disclosure is required or authorised by this Act or another law of the Commonwealth, or a law of a state or territory prescribed by the rules for the purposes of this paragraph. A note to subclause 28(2) states that the defendant bears the evidential burden in relation to the matter.

2.6 In Scrutiny Digest 12 of 2023, the committee requested the Minister for Social Services' advice as to:

• why it is necessary for the secretary to have the power to specify further purposes in determinations under subclauses 29(3) and 29(7), given the purposes that relevant information can already be used or disclosed for under clause 29 of the bill; and

• why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in subclause 28(2).^[15]

Minister for Social Services' response^[16]

2.7 The Minister for Social Services (the minister) advised that the bill provides a number of specific grounds upon which relevant information can be used and disclosed but does not cover all circumstances in which information may need to be disclosed. The bill therefore provides for information to be disclosed in clear and transparent circumstances by requiring the secretary to make a legislative instrument that will prescribe, ahead of time, specific purposes for which information may be disclosed. An example of such a circumstance under proposed subclause 29(3) would be to brief the minister to respond to an incident or complaint where consent from the person to disclose the information may not be practicable due to the impact on an investigation.

2.8 The minister also advised that under subclause 29(7) the secretary may prescribe 'State and Territory' purposes such as the enforcement of state and territory laws, which is important where there is no other basis under the bill to allow for such use or disclosure.

2.9 The minister confirmed that any determinations made under proposed subclause 29(3) and subclause 29(7) would be legislative instruments and subject to parliamentary scrutiny.

2.10 In relation to the reversed evidential burden of proof for the defence in subclause 28(2), the minister advised that an entrusted person 'should easily be able to point to records indicating why it was appropriate for them to use and/or disclose that information'. The minister also suggested that the large scope of the exclusion, being justified by any Commonwealth or prescribed state or territory law, would undermine the prosecution's ability to prosecute if they had to prove a disclosure was authorised beyond reasonable doubt. This is because the prosecution would have to go to 'significant lengths' to identify the reasons for the disclosure and identify whether any law authorised the disclosure. The minister also advised this would involve the 'review of personal and sensitive information about people with disabilities by additional parties'.

Committee comment

2.11 The committee thanks the minister for this response.

2.12 The committee notes the minister's advice in relation to secretary determinations which may specify additional purposes in which relevant information may be disclosed. The committee notes these will be legislative instruments subject to further parliamentary scrutiny at the time they are tabled.

2.13 The committee notes the minister's advice in relation to the reversal of the evidential burden of proof with reference to the Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. Nevertheless, it is not apparent that the matters in proposed subclause 28(2) are matters peculiarly within the defendant's knowledge, or that it would be significantly more difficult or costly for the prosecution to establish the matters than for the defendant to establish them. For example, whether or not conduct is authorised by the Act, or a Commonwealth, state or territory law is not, in the committee's view, a matter that is peculiarly within the defendant's knowledge.

2.14 While it may be more difficult and costly for the prosecution to establish these matters, the relevant test is whether it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

2.15 It is not clear to the committee that the prosecution needing to determine relevant laws applicable in the sharing of information is significantly more difficult in this case. It is also not clear to the committee that the prosecution would need to establish the reasons why information was used or disclosed, rather the prosecution would need to establish whether the information was used or disclosed in accordance with a relevant law.

2.16 The committee draws to the attention of senators and leaves to the Senate as a whole the appropriateness of the reversal of the evidential burden of proof in proposed subclause 28(2).

2.17 In light of the information provided in relation to the secretary’s power to specify further purposes in which information can be shared, the committee makes no further comment.

Availability of independent merits review^[17]

2.18 There are a range of clauses in the bill which provide for discretionary decisions that may affect individual rights and liberties and to which neither internal nor external merits review apply.

2.19 In Scrutiny Digest 12 of 2023, the committee requested the Minister for Social Services' advice as to:

• whether the exclusion of merits review from decisions made under clause 9 of the bill is in line with Administrative Review Council's guidance document, What decisions should be subject to merits review?; and

• in relation to clause 13:

• whether consideration could be given to methods of ensuring compliance with the Commonwealth Rules and Procurement Guidelines; and

• whether consideration has been given to providing redress for individuals who are denied grants due to an allocation process that has not been based on merit (similar to the process in relation to government procurement under the Government Procurement (Judicial Review) Act 2018); and

• in relation to paragraph 14(6)(g):

• whether the grants and funding agreements made under this Act would enable a person to sue on the basis of the agreement, and whether a person who is affected but not party to an agreement would have grounds to sue; and

• why the exclusion of merits review is appropriate in relation to the established grounds set out in the Administrative Review Council's guidance document, What decisions should be subject to merits review?; and

• in relation to clause 21:

• whether the exclusion of merits review from decisions made under clause 21 of the bill is in line with Administrative Review Council's guidance document, What decisions should be subject to merits review?; and

• whether an aggrieved party would be provided with reasons for a refusal or internal merits review by the relevant certification body; and

• in relation to clause 26:

• whether an aggrieved party would be provided with reasons for a refusal or internal merits review by the relevant accrediting authority; and

• whether and on what basis the decisions made under clause 26 would be subject to judicial review.^[18]

Minister for Social Services' response^[19]

2.20 The minister provided a detailed response to each question about the availability of review. The minister acknowledged that in some of the cases, exclusion of merits review did not neatly fit into categories of exclusion in the Administrative Review Council's guidance document, What decisions should be subject to merits review? but nevertheless provided a thorough justification as to why these particular decisions should not be subject to merits review.

2.21 In relation to clause 26, the minister advised that certification bodies who are refused accreditation by the accrediting authority will be provided with reasons for the refusal by the accrediting authority and would have recourse through the accrediting authority's internal complaints process. The minister further advised that paragraph 25(1)(b) requires the secretary to be satisfied that an accredited authority will perform its functions in an independent and impartial way, and that part of this decision making process will be ensuring that an accrediting authority has appropriate internal controls and complaints processes.

2.22 The minister further advised that decisions made by an accrediting authority under clause 26 of the bill are administrative in nature and subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977.

Committee comment

2.23 The committee thanks the minister for this response.

2.24 The committee considers that, given the capacity for these decisions to affect rights, liberties or obligations, the justifications for the exclusion of merits review in the various provisions should be included in the explanatory materials to the bill.

2.25 In relation to clause 26, the committee notes the minister's advice that the accrediting authority should have appropriate internal controls and complaints processes and that this informs the secretary's approval of a body to be an accrediting authority under paragraph 25(1)(b). The committee considers that it would be preferable for there to be an explicit requirement on the face of the bill that the accrediting authority have appropriate internal controls and complaints processes.

2.26 The committee requests that the bill be amended to explicitly include a requirement that an accrediting authority have appropriate internal controls and complaints processes under subclause 25(1).

2.27 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister in relation to the availability of independent merits review be tabled in the Parliament as soon as practicable. The committee notes the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

^[5] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Disability Services and Inclusion Bill 2023, Scrutiny Digest 14 of 2023; [2023] AUSStaCSBSD 222.

^[6] Clause 28 and subclauses 29(3) and 29(7). The committee draws senators' attention to these provisions pursuant to Senate standing order 24(1)(a)(i) and (iv).

^[7] Subclause 29(1).

^[8] Subclause 29(5).

^[9] Subclauses 29(9) and (10).

^[10] Subclause 29(11).

^[11] Subclause 29(12).

^[12] Subclause 29(13).

^[13] Subclause 29(14).

^[14] Subclause 29(15).

^[15] Senate Scrutiny of Bills Committee, Scrutiny Digest 12 of 2023 (18 October 2023) pp. 15-18.

^[16] The minister responded to the committee's comments in a letter dated 2 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 14 of 2023).

^[17] Subclause 9(2) and (4); subclause 13(1); subclause 21(1),(5) and (8); subclause 26(1) and (4).The committee draws senators' attention to these provisions pursuant to Senate standing order 24(1)(a)(iii).

^[18] Senate Scrutiny of Bills Committee, Scrutiny Digest 12 of 2023 (18 October 2023) pp. 18-22.

^[19] The minister responded to the committee's comments in a letter dated 2 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 14 of 2023).