BILLS DIGEST NO. 68, 2016–17              27 February 2017

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

Claire Petrie
Law and Bills Digest Section 

Date introduced:  24 November 2016

House:  House of Representatives

Portfolio:  Veterans' Affairs

Commencement: Sections 1 to 3 commence on Royal Assent. Provisions of Schedules 1 to 3 commence at various times, as set out in the Digest.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at February 2017.

Purpose and structure of the Bill

The purpose of the Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 (the Bill) is to amend the Military Rehabilitation and Compensation Act 2004 (Cth) (MRCA), Veterans’ Entitlements Act 1986 (Cth) (VEA) and the (yet to be enacted) Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (DRCA) (the defence compensation Acts) to:

•       enable the Secretary of the Department of Veterans’ Affairs (Secretary) to authorise the use of computer programs to make decisions and determinations and exercise other powers under the relevant Acts (Schedule 1)

•       allow the Secretary to disclose information about a particular case or class of cases where the Secretary certifies that it is in the public interest to do so (Schedule 2)

•       provide for information sharing between the Military Rehabilitation and Compensation Commission (MRCC) and the Secretary of the Department of Defence or the Chief of the Defence Force (Schedule 2) and

•       make minor technical amendments (Schedule 3).

Defence-related Claims Act

The Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016 (SRC Amendment Bill), introduced into the House of Representatives on 9 November 2016, proposes to create a re-enacted version of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRCA)—which will be titled the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA). The DRCA will apply only to members of the Australian Defence Force (ADF) and their dependants.[1] The SRC Amendment Bill will also amend the SRCA to exclude ADF members and their dependants from its operation. At the time of writing, it had not yet been debated.

Provisions of the current Bill propose to amend the DRCA, when enacted, in line with similar amendments being made to the MRCA and VEA. The commencement of the DRCA amendments is therefore dependent on the enactment of the DRCA.

Background

Automated decision making

Automated decision-making in Government

The use of automated decision making by government departments and agencies has occurred in various forms since the 1990s. The term ‘automated system’ is broadly used to describe a computer system that automates significant parts, or all, of an administrative decision-making process.[2] A 2007 Australian Government ‘Better Practice Guide’ to automated assistance in administrative decision making provides the following description:

Automated systems range from conventional information technology systems (which may calculate a rate of payment in accordance with a formula set out in legislation) through to more specialised systems such as ‘expert’, ‘business rules engines’, ‘rules-based’ or ‘intelligent’ systems, and ‘decision-support’ tools. Business rules engines or rules-based systems (types of expert systems used in administrative decision-making) are software systems that help manage and automate business rules.

…

A hallmark of an automated system is its ability to examine a set of circumstances (data entered by the user) by applying ‘business rules’ (modelled from legislation, agency policy or procedures) to ‘decide’ dynamically what further information is required, or what choices or information to present to the user, or what conclusion is to be reached.[3]

Such systems can be used to automate elements of the decision-making process to various degrees, including by:

•       providing the relevant legislation and policy provisions to a decision maker

•       collating and sourcing relevant evidence on a particular applicant

•       guiding a decision maker through each step of the process and providing recommendations as to particular findings and

•       identifying the various potential outcomes, factors for and against such outcomes, and the potential consequences of each.[4]

The Government has increasingly sought to provide legislative sanction for the use of computer programs to make decisions and exercise other functions.[5]

A 2004 report of the Administrative Review Council (ARC), Automated Assistance in Administrative Decision Making, considered the administrative law implications of computerised decision making.[6] The ARC concluded that expert systems could assist in administrative decision making, by potentially reducing inaccuracy and human prejudice in the interpretation and application of complex rules and policy and ‘providing the opportunity for making more accurate, consistent, efficient and transparent decisions’.[7] However, the ARC also noted the potential risks which may arise, acknowledging that ‘the use of expert systems in administrative decision making process is a developing area in which a mistake in the design or operation of such a system has the potential to affect many people’.[8]

The report incorporated 27 best-practice principles to ensure that decision-making undertaken with the assistance of automated systems was consistent with administrative law values of lawfulness, fairness, rationality, openness and efficiency. In particular, it stated that the use of expert systems to make decisions would generally be suitable only for decisions involving non-discretionary elements, and expert systems should not automate the exercise of discretion.[9] The ARC also recommended that the use of expert systems to make decisions should be legislatively sanctioned to ensure it is compatible with the legal principles of authorised decision making.[10] A 2007 Automated Assistance in Administrative Decision-Making: Better Practice Guide, produced by 24 Australian Government agencies and led by the Australian Government Information Management Office, sought to guide the practical application of the ARC principles by Government agencies and departments.[11]

More recently, Federal Court of Australia Justice Melissa Perry has highlighted potential implications of the use of pre-programmed systems in decision-making, particularly with regards to decision-maker discretion, noting:

It is not difficult to envisage that the efficiencies which automated systems can achieve and the increasing demand for such efficiencies may overwhelm an appreciation of the value of achieving substantive justice for the individual. In turn this may have the consequence that rules-based laws and regulations are too readily substituted for discretions in order to facilitate the making of automated decisions in place of decisions by humans. The same risks exist with respect to decisions which ought properly to turn upon evaluative judgments.

Legislative amendments directed towards facilitating greater automation by requiring the application of strict criteria in place of the exercise of a discretion or value-based judgment, should therefore be the subject of careful scrutiny …[12]

DVA’s commitment to automated decision making

The Bill establishes a legislative basis for the use of computer systems to make decisions and determinations, and perform other functions under the relevant defence compensation Acts. These amendments are in line with digital reforms envisioned in the Department of Veterans’ Affairs (DVA) ‘Towards 2020’ Strategic Plan, which includes the goal of providing simpler and faster access for clients. The Plan states:

Digital services will provide for faster provision of payments and will connect clients with services from Government and providers. Simplified access will reduce the need for third party representation. DVA will review and seek to amend legislation to better align and support change to enable automated determinations.[13]

In his second reading speech, the Minister for Veterans’ Affairs, Dan Tehan, stated that the Bill will:

… make the Department of Veterans' Affairs (DVA) digitally ready in a legal sense, in line with the government's broad digital transformation agenda.

DVA is undertaking veteran-centric reform to significantly improve services for veterans and their families by re-engineering DVA business processes.

In anticipation of planned business and ICT reforms that will reduce claims processing times and automate and streamline existing processes, amendment is required to provide a sound legislative basis for computerised decision-making.[14]

The Department has stated that sorts of decisions which could be suitable for computerised decision-making include: where the decision-making can be converted into an algorithm; automated granting of benefits in certain circumstances; and where the decision can be generated based on information that is not subject to interpretation or discretion.[15]

No further details have been provided about the types of decisions and other processes which are likely to be automated, with the Department suggesting that it will ‘incorporate this capability as it rebuilds its information and communications technology into the future’.[16]

DVA’s use of automated systems

DVA has been using automated systems to support its claims processing functions for more than twenty years. In 1994, it implemented an automated Compensation Claims Processing System (CCPS) to guide decision makers through the process of investigating and determining veterans’ compensation claims.[17] DVA has stated that the system was the first Australian Government application to use expert technology for large-scale processing.[18] In 2004, the Deputy Secretary of DVA, Ian Campbell, described the CCPS as combining:

… a natural language claims processing checklist with a sophisticated, object-oriented case management system and uses a massive medical knowledge rule base to direct the investigation and determination of compensation eligibility and assessment.

The knowledge rule base of CCPS contains all the logic of the policy and the questions that have to be answered to apply the policy, as well as commentary on interpretation of the policy. It also has a Research Library that includes military history, repatriation history, legislation and departmental instructions.[19]

The CCPS was subsequently expanded through the development of the Military Compensation Expert (MCE) automated system, which used a web service format to guide users—both departmental decision-makers and veterans—through an interactive investigation process.[20] Under existing systems, claimants also can test their own eligibility to various entitlements via the DVA website.[21] However, while these appear to use automated systems to guide decision-makers, they do not automate the decision-making process itself.

Proposed ICT reforms

The process of reforming DVA’s business systems is in the early stages, and follows on from a 2013 Department of Finance report which identified that DVA’s rehabilitation and compensations ICT systems were ageing and at risk of failure.[22] The 2016–17 Budget included two key measures to support the reform of these systems. The first is $24.8 million to develop a business case to simplify and streamline the Department’s business processes and replace legacy ICT systems.[23] DVA has indicated that the funding will be shared with the Department of Human Services (DHS), which will design the ICT system that underpins the business case and integrates with the new whole of government payment system.[24]

Secondly, the Government is providing $23.9 million to improve the operation of DVA’s existing compensation and rehabilitation processing systems while the business case is being developed.[25] DVA has stated that this will involve the gradual replacement of 19 systems used for rehabilitation and compensation processing with a single system.[26] The Department has claimed that key outcomes of the reforms will include:

… the successful transition of ADF members to civilian life; provision of accurate, tailored and coordinated support for veterans, based on circumstances and need; partnering where appropriate for efficiencies and consistency; circumstance-driven services that are efficient and fiscally sustainable and reflect the changing circumstances of veterans; and simpler, faster access to DVA services.[27]

Disclosure of information

Public interest certificates under social security law

The amendments in Schedule 2 of the Bill enable the Secretary of DVA to disclose information about a case, or class of cases, where the Secretary certifies that it is in the public interest to do so. The capacity to make public interest disclosures which may otherwise be restricted by the Privacy Act 1988 (Cth) already exists under a number of federal social security laws.[28] An example is under sections 208 and 209 of the Social Security (Administration) Act 1999 (Cth), on which the provisions in this Bill are modelled. These require the Secretary, in issuing a public interest certificate or disclosing information, to comply with any guidelines issued by the Minister. The Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 (Cth) currently governs the exercise of the Secretary’s power to give public interest certificates. The guidelines prescribe circumstances in which such a certificate may be given, and matters to which the Secretary must have regard. They provide that a certificate may be given when the information cannot reasonably be obtained other than from the Department of Social Services or DHS, the person to whom the information will be disclosed has sufficient interest in the information, and the disclosure is for a purpose specified in the Guidelines, such as:

•       to prevent, or lessen, a threat to the life, health or welfare of a person

•       for the enforcement of certain criminal laws, or the making or enforcing of a proceeds of crime order

•       to brief a Minister so that the Minister can consider complaints or issues raised by or on behalf of a person with the Minister

•       to assist a court, coronial inquiry, Royal Commission, department or any other authority of a state or territory in relation to the whereabouts of a missing person, or to help a person locate a relative or beneficiary of a deceased person

•       to ensure a child’s school enrolment and attendance

•       to facilitate rent calculation, rent deduction or administration of an income confirmation service in relation to public housing or other state or territory managed housing or

•       for research and statistical analysis purposes.[29]

The Explanatory Memorandum to the present Bill notes that the nature and content of rules made by the Minister for Veterans’ Affairs in regards to public interest certificates are likely to be similar to those contained in this Determination.[30]

Existing information sharing provisions

There is no present provision in the defence compensation Acts permitting disclosure of information by the Secretary. Information sharing provisions under the MRCA and SRCA do enable the MRCC, or a staff member assisting the MRCC, to disclose information in certain circumstances. However, the two Acts are not consistent. The MRCA and associated regulations currently enable the MRCC to disclose information to Defence agencies in relation to litigation of claims, and for monitoring occupational health and safety performance and the cost of injuries, as well as to DHS for the purposes of administering the social security law.[31] The MRCC also has the power to request in writing that any person provide information or documents as required by the Commission, or answer questions before a specified staff member.[32]

In contrast, the SRCA’s information sharing provision is more limited, permitting disclosures only to Centrelink, Medicare and the Secretary of the Department/s administering the National Health Act 1953; Aged Care Act 1997 and Human Services (Centrelink) Act 1997.[33] Additionally, the MRCC may only request documents and information ‘that are relevant to a defence-related claim’ from the Secretary of the Defence Department, Secretary of DVA and the Chief of the ADF.[34]

The Bill proposes inserting into the DRCA provisions in line with the existing information sharing provisions under the MRCA.

Committee consideration

Senate Standing Committee on Foreign Affairs, Defence and Trade

The Bill was referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report. Details of the inquiry are available here.[35] The Committee published its report on 20 February 2017, and recommended that the Bill be passed with minor amendment.[36] Although the Committee acknowledged concerns regarding the computerisation of decision making, it noted assurances provided by the Department that the computerised system would not be used for debt recovery-related purposes. It further observed that computerising some decisions would improve efficiency and free up resources, therefore improving services to veterans.[37]

The Committee supported the intent of the proposed public interest disclosure provision, but made the following recommendations for additional safeguards:

•       DVA consult with the Commonwealth Ombudsman and Office of the Australian Information Commissioner on the content of the Minister’s regulations controlling the exercise of the Secretary’s public interest disclosures, before the regulations are finalised and introduced in the Parliament

•       DVA undertake a privacy impact assessment of the regulations, and this completed assessment be made public and

•       the Bill be amended to include a mandatory review of the implementation of the legislation and accompanying regulations two years from the commencement date.[38]

Labor Senators on the Committee issued additional comments about the public interest disclosure provisions of the Bill, in which they expressed concerns about the broad scope of disclosures provided for in the Bill.[39] The Nick Xenophon Team also issued additional comments and recommended that the Minister’s rules on the exercise of the Secretary’s public interest disclosure power be made publically available—and therefore subject to feedback from interested persons—before they are tabled in Parliament as a legislative instrument.[40]

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny of Bills Committee considered the Bill in its Alert Digest No. 10 of 2016.[41] The Committee raised concerns with the broad scope of the Secretary’s power, under Schedule 2 of the Bill, to certify that disclosure of information is in the public interest. In particular, the Committee has sought the Minister’s advice as to:

•       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, but instead a discretionary power to do so.[42]

The Minister’s response was included in the Committee’s Scrutiny Digest No. 1 of 2017.[43] The Minister advised that his Office had been working with the Office of the Shadow Minister for Veterans’ Affairs, Amanda Rishworth, to develop rules that would:

… appropriately 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.[44]

The Minister noted that setting out rules in delegated legislation would allow him to respond quickly and flexibly to changing circumstances necessitating the disclosure of information, whereas this would be more limited if such rules or guidance were located in the primary legislation.

In response, the Committee noted 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.[45]

It reiterated its view that high level guidance, at least, about the exercise of the Secretary’s disclosure power should be included in the primary legislation, or that there should be a positive duty on the Minister to make rules for the exercise of the Secretary’s power.[46]

Policy position of non-government parties/independents

As noted above, the Senate Foreign Affairs, Defence and Trade Legislation Committee recommended that the Bill be passed, with the Labor Senators and Nick Xenophon Team making additional comments but not opposing the passage of the Bill. Other non-government parties and independent members of Parliament had not commented on the Bill at the time of writing.

Position of major interest groups

In submissions to the Senate inquiry, the War Widows’ Guild of Australia (WWGA) and Vietnam Veterans Association of Australia (VVAA) expressed support for the broad objectives of the Bill. The VVAA noted that it had been consulted by DVA on the development of the Bill, and expressed support for:

… the introduction of a modern computer system that will be of benefit to the veteran community, to potentially reduce time taken to act and respond to changes by the department, at the same time maintain … the ability of the ex-service community to keep a watching brief on the operation of new electronic procedures as they are introduced.[47]

The WWGA also supported the upgrading of the DVA IT systems and streamlining of its claims processing, as well as the Public Interest Disclosure provisions of the Bill.[48]

The Commonwealth Ombudsman raised concerns with the information disclosure provisions under Schedule 2. These concerns are discussed in further detail under the Key Issues and Provisions section below.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[49]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[50]

Parliamentary Joint Committee on Human Rights

In its first report of 2017, the Parliamentary Joint Committee on Human Rights deferred consideration of the Bill.[51]

Key issues and provisions

Schedule 1—Computerised decision-making

Schedule 1 provides the Secretary of DVA with the power to authorise the use of computerised decision-making for a broad range of purposes. Items 1, 3 and 5 insert a computerised decision-making power into the MCRA, DCRA and VEA respectively. This provides that the Secretary of DVA[52] may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the MRCC (or, in the case of the VEA, the Repatriation Commission) may or must:

•       make a decision or determination

•       exercise any power or comply with any obligation or

•       do anything else related to making a decision or exercising a power or complying with an obligation.[53]

The Secretary therefore possesses a broad discretion to authorise the use of computer programs to perform any of the relevant Commission’s functions. Though the relevant provisions state that the computer programs must be used ‘under the Secretary’s control’, there is no further detail in the Bill or explanatory materials of what this phrase may require.

Where a computer program does one of the actions set out above, the relevant Commission will be taken to have performed this action for the purposes of the applicable Act or legislative instrument.[54] This means that the provisions under each Act providing for reconsideration and review of MRCC or Repatriation Commission determinations will still apply to decisions which are ‘made’ by computer programs. Additionally, the relevant Commission is given the power to substitute a decision or determination where it is satisfied that the computer program’s decision or determination is incorrect.[55] The Explanatory Memorandum notes that this provision, as inserted into the MRCA and DRCA:

… would enable a delegate of the MRCC to intervene and substitute a decision or determination where a computer programme has produced an incorrect outcome. The MRCC will be able to exercise this power on “own motion”, without the need for a person to request review of an incorrect decision or determination made by a computer programme.[56]

The relevant provisions expressly state that the capacity of the MRCC and Repatriation Commission to make own-motion corrections of errors does not limit a claimant’s right to review of a decision or determination.[57]

Item 6 amends subsection 214(1) of the VEA to provide that the Secretary’s powers under proposed section 4B are non-delegable. A similar provision does not need to be inserted into either the MRCA or DRCA as neither Act provides for any powers of delegation by the Secretary.

Commencement

Items 1, 2, 5 and 6 commence on the day after Royal Assent.[58] Items 3 and 4 amend the DRCA, and commence on the later of either the day after Royal Assent or immediately after the commencement of Part 2 of Schedule 1 of the SRC Amendment Bill (when enacted).[59]

Schedule 2—Disclosure of information

Public interest disclosures

Items 1, 7 and 10 insert into the MRCA, DRCA and VEA respectively, provisions in equivalent terms enabling the Secretary to make public interest disclosures. Under these proposed provisions, where the Secretary certifies that it is in the public interest to do so in relation to a particular case or class of cases, the Secretary may disclose any information obtained by any person under the relevant Act, to such persons and for such persons as the Secretary determines.[60] ‘Public interest’ is not defined in the Bill or any of the relevant Acts. The Explanatory Memorandum states:

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.[61]

The proposed provisions are broader in scope than existing information disclosure provisions under the MRCA and SRCA (discussed above). The Secretary is granted considerable discretion regarding the purposes for which, and persons to whom, information can be provided. The provisions do place some constraints on this discretion. Firstly, the Minister may, by legislative instrument, make rules for and in relation to the exercise of the Secretary’s power to give certificates, and the Secretary must act in accordance with any such rules.[62] Item 11 amends section 212 of the VEA to provide that the Minister’s power to make such rules is non-delegable. Similar amendments are not required for the MRCA or DRCA as the Minister does not have powers of delegation under these Acts.

Secondly, the Secretary must adhere to specified notice requirements before disclosing personal information about a person.[63] The Secretary must advise 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, and consider any written comments which the person makes. The Secretary commits an offence by disclosing personal information without complying with these requirements, with an applicable maximum penalty of 60 penalty units, being equivalent to $10,800.[64]

Thirdly, a public interest disclosure certificate issued by the Secretary that applies to a class of cases is a legislative instrument, and is subject to the Parliamentary disallowance process.[65] However, a certificate issued for a particular case is not a legislative instrument, and is therefore not disallowable. Item 12 amends section 214 of the VEA to provide that the Secretary’s power to issue a public interest disclosure certificate is non-delegable.[66]

Disclosures of information which comply with the proposed provisions are expressly stated to be authorised by the relevant Act for the purposes of the Australian Privacy Principles.[67]

The Commonwealth Ombudsman has raised concerns with the scope of these proposed amendments, noting that they:

… would allow the Secretary to release sensitive personal information to the public at large where he or she is of the view that it is in the public interest to do so. The Ombudsman is concerned that the release of an individual’s personal information has the potential to adversely affect veterans and ex-service personnel, particularly those who are already vulnerable.[68]

The Ombudsman has suggested that a preferable approach may be to mirror the existing MRCA disclosure provision under section 409, rather than introducing new expanded provisions to all three Acts.[69]

Information sharing

Item 3 modifies the operation of section 61 of the DRCA to require the MRCC to give to the Chief of the Defence Force a copy of the notice of a determination relating to liability for an injury, disease, death or the permanent impairment of a person who was a member of the ADF at the time of the determination. The Explanatory Memorandum states that this change is necessary because the obligation to provide claims information about serving members to the Chief of the Defence Force under the DRCA is more limited than the equivalent provision at subsection 346(2) of the MRCA.[70]

Item 5 inserts proposed subsection 151A(1A) into the DRCA. This expands the information sharing powers of the MRCC, in line with those contained in the MRCA. The proposed subsection provides that the MRCC, or a staff member assisting the MRCC, may provide information to the Secretary of the Defence Department for any purposes relating to:

•       litigation involving an injury, disease or death of an employee in relation to which a claim has been made under the DRCA

•       monitoring or reporting on the performance of the ADF in relation to occupational health and safety or

•       monitoring the cost to the Commonwealth of injuries, diseases or deaths of employees, in relation to which claims have been made under the DRCA.

Commencement

Items 1, 2 and 9 to 13 commence on a day to be fixed by Proclamation, or if they do not commence within six months of Royal Assent, on the day after the end of that period. Items 3 to 8, which amend the DCRA, commence on the later of either the day of commencement of the other provisions within Schedule 2, or the 28th day after the commencement of Part 2 of Schedule 1 to the SRC Amendment Bill (when enacted).[71]

Schedule 3—Technical amendments

Item 1 amends the short title of the DRCA. The Explanatory Memorandum states that while the SRC Amendment Bill amends the long title of the DRCA, it does not amend the short title.[72] The amendment will ensure the short and long titles of the DRCA are consistent. Item 1 commences the later of the day after Royal Assent and immediately after the commencement of Part 2 of Schedule 1 of the SRC Amendment Bill (when enacted).[73]

Items 2 and 3 make technical amendments to penalty provisions of the VEA. The changes bring the provisions into line with the current Commonwealth drafting practice of expressing penalties for criminal offences in penalty units rather than as a monetary figure. Item 2 amends a reference to a penalty of ‘$1,000 or imprisonment for 6 months’ to read ‘imprisonment for 6 months or 10 penalty units’; item 3 replaces a reference to ‘$500’ with ‘5 penalty units’. As noted in the Explanatory Memorandum, section 4AB of the Crimes Act 1914 (Cth) provides that a provision referring to a penalty in dollars is to be converted into a reference to a penalty of a certain number of penalty units.[74] The amendments therefore do not have substantive effect, but improve the clarity and accessibility of the relevant provisions. Items 2 and 3 commence the day after Royal Assent.

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[1].              Parliament of Australia, ‘Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016 homepage’, Australian Parliament website; P Pyburne, Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016, Bills digest, 2016–17, Parliamentary Library, Canberra, 2017.

[2].              Australian Government, Automated assistance in administrative decision-making: better practice guide, Australian Government, Canberra, February 2007, p. 4.

[3].              Ibid.

[4].              J Pinder and S Lloyd, ‘Computer says no: automated decision making and administrative law’, LSJ: Law Society of NSW Journal, 16, October 2015, pp. 70–71.

[5].              For example: Australian Citizenship Act 2007 (Cth), section 48; Social Security (Administration) Act 1999 (Cth), section 6A; Customs Act 1901 (Cth), section 126H; Migration Act 1958 (Cth), section 495A; A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), section 223; National Consumer Credit Protection Act 2009 (Cth), s. 242. In addition, the National Health Amendment (Pharmaceutical Benefits) Bill 2016, which is currently before Parliament, proposes to amend the National Health Act 1953 to allow computer programs to be used for certain administrative decisions and actions relating to the Pharmaceutical Benefits Scheme.

[6].              Administrative Review Council (ARC), Automated assistance in administrative decision making, Report to the Attorney-General, 46, ARC, Canberra, November 2004.

[7].              Ibid., pp. 9, 34–36.

[8].              Ibid., p. 48.

[9].              Ibid., p. viii (principles 1 and 2).

[10].              Ibid., p. viii (principle 5).

[11].              Australian Government, Automated assistance in administrative decision-making: better practice guide, op. cit.

[12].              M Perry (Justice of the Federal Court of Australia) and A Smith, iDecide: the legal implications of automated decision-making, speech, delivered at the Cambridge Centre for Public Law Conference 2014: process and substance in public law, 15–17 September 2014.

[13].              Department of Veterans’ Affairs (DVA), ‘Towards 2020—future state plan’, DVA Corporate Plan 2016–2020, DVA website, 2016.

[14].              D Tehan (Minister for Veterans’ Affairs), ‘Second reading speech: Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016’, House of Representatives, Debates, 24 November 2016, p. 4316.

[15].              DVA, Submission to Senate Foreign Affairs, Defence and Trade Legislation Committee, ‘Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 [provisions]’, 25 January 2017, p. 2.

[16].              R Pearce, ‘Department of Veterans’ Affairs prepares for computerised decision-making’, Computer World website, 25 November 2016.

[17].              I Campbell, ‘The Department of Veterans’ Affairs Compensation Claims Processing System’, Admin Review, 56, June 2004, pp. 31–47; Australian Government, Automated assistance in administrative decision-making: better practice guide, op. cit. pp. 68–70.

[18].              Campbell, ‘The Department of Veterans’ Affairs Compensation Claims Processing System’, op. cit., p. 34.

[19].              Ibid., p. 34.

[20].              Australian Government, Automated assistance in administrative decision-making: better practice guide, op. cit., p. 70.

[21].              DVA, ‘Terms and conditions of entitlement self assessment’, DVA website, 6 February 2012.

[22].              Senate Foreign Affairs, Defence and Trade Legislation Committee, Official committee Hansard, 19 October 2016, p. 165.

[23].              Australian Government, ‘Part 2: expense measures—veterans’ affairs’, Budget measures: budget paper no. 2: 2016–17; DVA, ‘Key 2016–17 budget initiatives’, DVA website, May 2016.

[24].              DVA, ‘Key 2016–17 budget initiatives’, op. cit.

[25].              Ibid.; Australian Government, ‘Part 2: expense measures—veterans’ affairs’, op. cit.

[26].              Senate Foreign Affairs, Defence and Trade Legislation Committee, Official committee Hansard, 19 October 2016, pp. 165–167.

[27].              Ibid., p. 146.

[28].              Social Security (Administration) Act 1999 (Cth), subsection 208, 209; A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss. 168, 169; Paid Parental Leave Act 2010 (Cth), section 128; Student Assistance Act 1973 (Cth), section 355 and 356.

[29].              Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 (Cth).

[30].              Explanatory Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, pp. 12–13.

[31].              Military Rehabilitation and Compensation Act 2004 (Cth), section 409; Military Rehabilitation and Compensation Regulations 2004 (Cth), regulation 21.

[32].              MRCA, section 406.

[33].              Safety, Rehabilitation and Compensation Act 1988 (Cth), section 151A(1).

[34].              Ibid., section 151.

[35].              Inquiry homepage, Senate Foreign Affairs, Defence and Trade Legislation Committee, ‘Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 [provisions]’.

[36].              Senate Foreign Affairs, Defence and Trade Legislation Committee, Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 [provisions], The Senate, Canberra, 2017.

[37].              Ibid., p. 18.

[38].              Ibid., p. 19. Automated decision-making systems are currently the focus of significant public and political interest, due to concerns with Centrelink’s automated debt recovery system. See, for example: T McIlroy, ‘Centrelink debt system faces growing chorus of criticism’, The Age, 3 January 2017, p. 9 and C Knaus, ‘Centrelink debt notices based on 'idiotic' faith in big data, IT expert says’, Guardian Australia (online), 30 December 2016, The Commonwealth Ombudsman has launched an own motion investigation into the system and the Senate Community Affairs References Committee is conducting an inquiry.

[39].              Labor Senators, Additional comments, Senate Foreign Affairs, Defence and Trade Legislation Committee, Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 [provisions], The Senate, Canberra, 2017, pp. 21–22.

[40].              Nick Xenophon Team, Additional comments, Senate Foreign Affairs, Defence and Trade Legislation Committee, Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 [provisions], The Senate, Canberra, 2017, pp. 23–24.

[41].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 10, 2016, The Senate, 30 November 2016.

[42].              Ibid., pp. 29–30.

[43].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 1, 2017, The Senate, 8 February 2017.

[44].              Ibid., pp. 95–96.

[45].              Ibid., p. 97.

[46].              Ibid., p. 98.

[47].              Vietnam Veterans Association of Australia (VVAA), Submission to Senate Foreign Affairs, Defence and Trade Legislation Committee, Inquiry into the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 [provisions], 27 January 2017, p. 2.

[48].              War Widows’ Guild of Australia Inc. (WWGA), Submission to Senate Foreign Affairs, Defence and Trade Legislation Committee, Inquiry into the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 [provisions], 27 January 2017.

[49].              Explanatory Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, op. cit., p. 1.

[50].              The Statement of Compatibility with Human Rights can be found at pages 2 to 5 of the Explanatory Memorandum to the Bill.

[51].              Parliamentary Joint Committee on Human Rights, Report, 1, 2017, The Senate, Canberra, 16 February 2017, p. 54. See also: Parliamentary Joint Committee on Human Rights, Report, 10, 2016, 30 November 2016, p. 17.

[52].              Items 2 and 4 insert into the MRCA and DRCA respectively, a definition of Secretary as Secretary of the Department. In accordance with section 19A of the Acts Interpretation Act 1901 (Cth), the ‘Department’ is the Department ‘that is administered by the Minister or Ministers administering that provision in relation to the relevant matter, and that deals with that matter’—in this case, DVA. There is currently no definition of Secretary in either the MRCA or DRCA.

[53].              Item 1, proposed subsection 4A(1) of the MRCA; item 3, proposed subsection 3A(1) of the DRCA; item 5, proposed subsection 4B(1) of the VEA.

[54].              Item 1, proposed subsection 4A(2) of the MRCA; item 3, proposed subsection 3A(2) of the DRCA; item 5, proposed subsection 4B(2) of the VEA.

[55].              Item 1, proposed subsection 4A(3) of the MRCA; item 3, proposed subsection 3A(3) of the DRCA; item 5, proposed subsection 4B(3) of the VEA.

[56].              Explanatory Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, op. cit., p. 9.

[57].              Item 1, proposed subsection 4A(4) of the MRCA; item 3, proposed subsection 3A(4) of the DRCA; item 5, proposed subsection 4B(4) of the VEA.

[58].              Subclause 2(1), items 2 and 4 in column 1 of table.

[59].              Subclause 2(1), item 3 in column 1 of table. If Part 2 of Schedule 1 of the SRC Amendment Bill does not commence, these provisions do not commence at all.

[60].              Item 1, proposed subsection 409A(1) of the MRCA; item 7, proposed subsection 151B(1) of the DRCA; item 10, proposed subsection 131A(1) of the VEA.

[61].              Explanatory Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, op. cit., p. 11.

[62].              Item 1, proposed subsections 409A(2) and (3) of the MRCA; item 7, proposed subsections 151B(2) and (3) of the DRCA; item 10, proposed subsections 131A(2) and (3) of the VEA.

[63].              Item 1, proposed subsection 409A(6) of the MRCA; item 7, proposed subsection 151B(6) of the DRCA; item 10, proposed subsection 131A(6) of the VEA. Subsection 9 of each of these provisions further provides that personal information has the same meaning as in the Privacy Act 1988 (Cth), where it is defined under section 6 as ‘information or an opinion about an identified individual, or an individual who is reasonably identifiable:

(a) whether the information or opinion is true or not and

                            (b) whether the information or opinion is recorded in a material form or not.

[64].              Item 1, proposed subsection 409A(7) of the MRCA; item 7, proposed subsection 151B(7) of the DRCA; item 10, proposed subsection 131A(7) of the VEA.

[65].              Under section 38 of the Legislation Act 2003, legislative instruments must be tabled in each House within six sitting days following registration on the Federal Register of Legislation. A legislative instrument can be subject to disallowance if either a Senator or Member of the House of Representatives moves a motion of disallowance within 15 sitting days of the day that the legislative instrument is tabled. The motion to disallow must be resolved or withdrawn within a further 15 sitting days of the day that the notice of motion is given.

[66].              Similar amendments are not required for the MRCA or DRCA as the Secretary does not have powers of delegation under these Acts.

[67].              Item 1, proposed subsection 409A(8) of the MRCA; item 7, proposed subsection 151B(8) of the DRCA; item 10, proposed subsection 131A(8) of the VEA.

[68].              Commonwealth Ombudsman, Supplementary submission to Senate Foreign Affairs, Defence and Trade Legislation Committee, Inquiry into the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 [provisions], 3 February 2017.

[69].              Ibid.

[70].              Explanatory Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, op. cit., p. 15.

[71].              Clause 2, items 5 to 7 in table. If Part 2 of Schedule 1 of SRC Amendment Bill does not come into effect, items 3 to 8 will not commence at all.

[72].              Explanatory Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, op. cit., p. 18.

[73].              Clause 2, item 8 in the Table. Item 1 will not commence at all if Part 2 of Schedule 1 of the SRC Amendment Bill does not come into effect.

[74].              Explanatory Memorandum, Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, op. cit., p. 17.