Last year this blog noted the damning Productivity Commission report on veterans administration.
Concerns identified in that report are not especially allayed in the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020 (Cth) introduced last week, contrary to the claim that it will embody 'an enduring public accountability and system improvement function'.
The proposed legislation is intended to establish a National Commissioner for Defence and Veteran Suicide Prevention as an independent statutory office holder within the Attorney-General’s portfolio.
The Bill has five parts. The main object of the Bill is to provide for a Commissioner to examine defence and veteran deaths by suicide 'through a broad range of functions and powers, in order to support the prevention of future deaths by suicide'. Part 2 provides for the establishment and appointment of the Commissioner, as well as arrangements for staff to assist, or receive a delegation from, the Commissioner.
The Commissioner's functions include:
- inquiring into the circumstances of relevant defence and veteran deaths by suicide
- making findings and recommendations addressing defence member and veteran wellbeing and suicide prevention strategies, and any policy, administrative or structural reforms that may be required
- working collaboratively with State and Territory Coroners to understand issues contributing to defence and veteran deaths by suicide
- maintaining a record of relevant deaths by suicide notified to the Commissioner
- promoting understanding of suicide risks for defence members and veterans, and opportunities for improved wellbeing support, and
- reviewing action taken in response to any findings or recommendations the Commissioner has already made.
The Explanatory Memo states that
The Commissioner could review a broad range of circumstances relevant to defence member or veteran deaths by suicide, including the extent to which the circumstances of a particular suicide death reflect broader or systemic issues. The circumstances the Commissioner may consider include:
- service in the Australian Defence Force (ADF) – including matters connected to recruitment, training, transitions between different forms of ADF service, and the quality of support services available
- experiences as a veteran – including the circumstances of the person’s transition from ADF service, their interactions with government and other bodies, and the possible impact of other personal circumstances
- the health, wellbeing and support services available both during and after service in the ADF, and whether these services were appropriate – including the handling of any complaints relevant to these services
- other matters the Commissioner considers relevant, which could vary in each case.
The Commissioner would be able to commence their own inquiries at any time, and to consider any past defence member or veteran death by suicide.
As guiding principles, the Commissioner should:
- take a trauma-informed and restorative approach in exercising their functions and powers – this means the principles of choice, safety, confidentiality, consultation and informed participation, for example, will underpin the way the Commissioner undertakes their role
- recognise that families and other people affected by a defence member or veteran death by suicide have a unique contribution to make to the Commissioner’s functions, and the Commissioner should recognise that they may wish to be consulted.
From a privacy, confidentiality and other information perspective the Commissioner has broad information gathering and inquiry powers, modelled on a Royal Commission under the Royal Commissions Act 1902 (Cth) and are supported by similar criminal penalties. The powers include compelling the production of documents and written statements, convening public and private hearings, and summoning persons to attend a hearing to give evidence under oath or affirmation. Part 3 of the Bill includes provisions enabling Commonwealth, State and Territory bodies (as well as individual officer holders) to provide relevant information to the Commissioner on their own initiative, to assist the work of the Commissioner. A person making a voluntary disclosure of information on behalf of a government body is required to be acting with appropriate authority. The Commissioner is required to take all reasonable steps to make arrangements relevant to obtaining, storing, accessing, using and disclosing intelligence information, before obtaining intelligence information from the relevant entity.
The capacity for the Commissioner to consider and compel information that may be subject to legal professional privilege, and information that might tend to incriminate a person in certain circumstances, is addressed in Part 4 of the Bill. Witness protections include limiting the admissibility of evidence given to the Commissioner in a broad range of criminal proceedings, and making it an offence for a person to dismiss or prejudice a person in their employment because they have given evidence to the Commissioner.
Part 4 of the Bill includes provisions protecting information provided to, and otherwise held by, the Commissioner, in particular, making it an offence for information to be used or disclosed other than for the purposes of performing or exercising the Commissioner’s functions or powers. The Commissioner has power to issue, vary and revoke a non-publication direction alongside authorising disclosure of information to a range of agencies or bodies (including referral of information to police or prosecution bodies if a potential criminal or civil wrongdoing arises during an inquiry).
The Commissioner will be required to provide an annual report to the A-G for tabling in Parliament, with the Commonwealth tabling its responses to those reports (not a guarantee of action). Funding will provide for a one-off review of historical ADF member and veteran deaths by suicide and 'for a dedicated legal financial assistance scheme'.
The Commissioner’s functions include:
- inquiring into the circumstances of relevant deaths by suicide
- making findings and recommendations following such inquiries,
- addressing defence and veteran suicide prevention strategies, and any policy, administrative or structural reforms that may be required
- working collaboratively with state and territory Coroners to understand issues contributing to defence and veteran deaths by suicide
- reviewing action taken in response to any findings or recommendations the Commissioner has already made, and
- promoting understanding of suicide risks for members and veterans, and factors that can improve the wellbeing of members and veterans.
The Commissioner will have broad discretion when inquiring into the circumstances of relevant deaths by suicide, including considering:
- the person’s service in the ADF, including training, the manner or time in which they were recruited, and, for veterans, the person’s transition from the ADF
- the availability of health, wellbeing and counselling support services to the deceased person in their capacity as a member or veteran, and the effectiveness of any such services
- the quality and effectiveness of responses to any complaints made by the person or the person’s family, friends or associates in relation to the person’s health and wellbeing, or access to relevant services
- the extent to which the circumstances of a particular suicide death reflect broader or systemic issues
- any other matter the Commissioner considers relevant and reasonably incidental to defence and veteran deaths by suicide.
The Commissioner will not be a court or tribunal (and cannot determine criminal charges or civil liability) and in performing its functions must have regard to the need to avoid prejudicing current or future criminal or civil proceedings, or other contemporaneous inquiries. It will have powers to conduct inquiry processes similar to civil proceedings – for example, it can compel evidence, summon witnesses, convene hearings and administer an oath or affirmation.
The Explanatory Statement indicates that
The Bill engages the right to privacy by establishing a framework under which the Commissioner may collect, use, disclose and deal with information, including personal information. The Bill includes specific provisions which authorise the collection of personal information which is necessary for the performance of the Commissioner’s functions or exercise of their powers, such the issuing of a summons to give evidence or produce documents or things, or in response to a notice to give information or a statement.
Any limitation there may be to the right to privacy is lawful and non-arbitrary, in view of the safeguards for protecting personal information in the Bill. These safeguards include:
- The requirement for the Commissioner to take a trauma-informed and restorative approach to their functions and powers. This means the preferences of witness and other persons providing information to the Commissioner about how their personal information will be used or further disseminated by the Commissioner will be given particular weight in the Commissioner’s handling of the information, across the full spectrum of their functions.
- It is an offence for the Commissioner, or a staff member assisting the Commissioner, to engage in unauthorised use or disclosure of protected information, including personal information – this offence carries a penalty of imprisonment of 2 years.
- The Commissioner may hold a hearing or part of a hearing in private, if the Commissioner is satisfied that information which may be disclosed will be personal and private, including about a deceased individual. This is accompanied by processes directing how the evidence at a private hearing can be used and disclosed. If a witness gives evidence at a private hearing, the Commissioner must, before using or disclosing that evidence, consider consulting the witness or any other person whose interests are affected. The Commissioner must also consider any risk of prejudice to a person if they are not consulted prior to the use or disclosure, and the preferences of the witness.
Data collection will presumably be assisted by the inclusion in the coming census of questions about the health of ADF members and veterans, something that in a submission to the Treasury Department consultation I characterised as an indication of ongoing incapacity on the part of large Veterans Affairs Department bureaucracy that - as noted by the Productivity Commission - hasn't done a great job in looking after Australian service people.
The accompanying Consequential Amendments Bill has the effect of excluding the Commissioner's operations from the Privacy Act 1988 (Cth), something that is disquieting and not necessary.