Introductory Info
Date of introduction: 27 November 2025
House introduced in: House of Representatives
Portfolio: Prime Minister and Cabinet
Commencement: On the earlier of proclamation or 6 months after Royal Assent
Purpose of the Bills
The purpose of the Defence and Veterans’ Service Commissioner Bill 2025 and the Defence and Veterans’ Service Commissioner (Consequential and Transitional Provisions) Bill 2025 (the Bills) are to transition the Defence and Veterans’ Service Commission from Part VIIIE of the Defence Act 1903 to a standalone Act.
The Bills also seek to refine the role, powers and functions of the Defence and Veterans’ Service Commission and its permanent Commissioner following stakeholder consultation and parliamentary review of existing legislation.
Structure of the Bills
The Defence and Veterans’ Service Commissioner Bill 2025 (DVSC Bill) contains 7 Parts:
- Part 1 deals with preliminary details
- Part 2 establishes the role and functions of the Defence and Veterans’ Service Commission (DVSC) and the Commissioner
- Part 3 outlines the inquiry processes and sets out the information gathering powers for special inquiries
- Part 4 deals with information management, including appropriate disclosure of information and the handling of information
- Part 5 specifies offences and protections for persons providing information to the Commissioner
- Part 6 outlines administrative procedures in relation to staffing and reporting
- Part 7 includes miscellaneous items like delegations, eligible judges, protections and allows the Minister to make rules.
There are 2 Schedules to the Defence and Veterans’ Service Commissioner (Consequential and Transitional Provisions) Bill 2025 (Consequential Bill) that support the DVSC Bill.
- Schedule 1 repeals Part VIIIE of the Defence Act and inserts a new provision into the Archives Act 1983 — for records of the DVSC that are subject to non-publication direction — and the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) — to set out circumstances where an Inspector-General of Intelligence and Security official can disclose information to the DVSC.
- Schedule 2 sets out transitional provisions to allow the continuation of ongoing investigations and allow actions taken under Part VIIE of the Defence Act to be treated as if they were taken under the Bill.
Background
In 2020, the Morrison Government sought to establish a permanent National Commissioner for Defence and Veteran Suicide Prevention through the introduction of 2 Bills:
The 2020 Bills did not proceed. Instead, the Royal Commission into Defence and Veterans Suicide commenced in July 2021 and, in response to the recommendations of the Royal Commission, the DVSC was established under legislation in February 2025 (details noted further below).
A Department of Veterans’ Affairs official informed a Senate Committee in August 2025 that provisions in the existing legislation are ‘modelled heavily’ on the 2020 Bills (p. 32).
Further background information on the 2020 Bills is available in the Bills Digest.
Royal Commission into Defence and Veterans’ Suicide
On 9 September 2024, the Final Report of the Royal Commission into Defence and Veteran Suicide was released. On 2 December 2024 the Albanese Government responded to the Royal Commission’s report. The response included an intention to immediately act on Recommendation 122 of the Final Report.
Recommendation 122: Establish a new statutory entity to oversee system reform across the whole Defence ecosystem
The Australian Government should establish a new statutory entity with the purpose of providing independent oversight and evidence-based advice in order to drive system reform to improve suicide prevention and wellbeing outcomes for serving and ex-serving Australian Defence Force members (p. 168).
The Royal Commission recommended the new body be established as a non-corporate Commonwealth entity through enabling legislation that outlines the purpose and functions of the entity (p. 284).
This recommendation was based on a consultation process that took place from November to December 2023. The Consultation Paper highlighted reasons for establishing a new entity including ensuring change happens, addressing a grave and systemic problem, maintaining relevance, allowing a more holistic approach and providing independent oversight and accountability (pp. 3–5).
The Royal Commission received 252 submissions during the consultation process and stakeholder views were overwhelmingly in favour of the proposal to establish a new entity (Final Report of the Royal Commission into Defence and Veteran Suicide, pp. 301–302).
Passage of legislation to establish the Commission
The Defence and Veterans’ Service Commission was established through an amendment to the Veterans’ Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024 (VETS Bill).
The amendment inserted Schedule 9 in the Bill to establish the DVSC in new Part VIIIE of the Defence Act. The amendment set out the role of the Commissioner and the powers and functions of the new entity.
The VETS Bill, including new Schedule 9, passed both houses of Parliament on 13 February 2025 and received Royal Assent on 20 February 2025 (known as the VETS Act) with DVSC set to commence operations on 29 September 2025 (Schedule 9, section 2(1), item 8).
Note: The Bills Digest for the VETS Bill did not include analysis of Schedule 9 as the amendment to include Schedule 9 had not been introduced at the time of writing.
Establishing the Commission
In January 2025, former Commonwealth Ombudsman Michael Manthorpe was appointed interim Head of the DVSC to lead the establishment of the new entity.
With the passing of the VETS Bill in February 2025, the DVSC was scheduled to commence operations on 29 September 2025 (Schedule 9, section 2(1), item 8).
The Interim Commissioner’s May 2025 submission to the Senate Foreign Affairs, Defence and Trade Legislation Committee (SFADT Legislation Committee) inquiry into Schedule 9 of the VETS Act provided insights into potential issues with the existing legislation and made several recommendations — which the Bills attempt to address — including:
- Standalone legislation excising Part VIIIE from the Defence Act and creating its own Act in an earlier timeframe rather than waiting for the 36-months review period (subsection 110ZLE). This would ‘appropriately recognise the significance and independence of the Commission as a new stand-alone body to oversee the defence and veteran ecosystem and lend appropriate gravitas to its creation’ (p. 7). The DVSC should be established as ‘a separate physical and electronic identity distinct from Defence’ (p. 8).
- Under this legislation, the Commissioner should be appointed by the Governor-General on advice from the Minister and the terms of the recruitment and appointment processes should be ‘transparent and robust’ (p. 8). The eligibility criteria should be amended to ensure the incumbent Commissioner has not recently served in the ADF within the last 5 years (p. 8).
- The primary legislation, rather than regulations, should ‘deal with the administrative matters pertaining to the Commissioner’s role’, similar to other statutory authorities like the Commonwealth Ombudsman, Inspector-General of Aged Care (IGAC) and the National Anti‑Corruption Commissioner (p. 8). Administrative matters might include clarification about acting appointments, disclosure of interests, leave arrangements, resignations and terminations (p. 8).
- Limiting the power of the Minister to direct the DVSC to conduct a review into specific matters (p. 9). The interim Commissioner noted ‘the Minister’s power to direct the IGAC to conduct a review is limited in similar terms’ (p. 9).
- Removing the potential for the Minister to constrain the Commissioner’s ability to conduct a special inquiry (p. 9).
- Reinforcing the independence of the Commissioner by providing, similar to the arrangements that apply to the IGAC, that the Commissioner is not subject to direction in relation to the conduct of an inquiry (p. 10).
- Enshrining various other requirements in legislation, rather than in the rules, relating to procedural fairness, reports to be published at the Commissioner’s discretion and timing for Royal Commission implementation inquiries (pp. 10–12).
- Inserting general powers into the legislation that allow the Commissioner to access Commonwealth premises as part of a special inquiry without the need to apply for a warrant issued by a judge (p. 12).
The interim Commissioner also made several suggestions for consideration (pp. 13–20) and attached a table setting out the elements of the Royal Commission’s new entity recommendations in line with the relevant Schedule 9 VETS Act sections (pp. 21–27).
The DVSC was formally established as planned on 29 September 2025. At the time of the announcement, the Government stated it would introduce standalone legislation for the DVSC, with the Commissioner to be appointed by the Governor-General and defence and veterans’ families included in DVSC functions.
Penny McKay (former Deputy Commonwealth and Defence Force Ombudsman) replaced interim Commissioner, Michael Manthorpe, being appointed on 29 September 2025 to the role of Acting Commissioner, while recruitment takes place for the permanent DVSC Commissioner position.
Parliamentary inquiry
Section 5 of the VETS Act required the SFADT Legislation Committee to commence an inquiry into Schedule 9. The SFADT Legislation Committee commenced its inquiry on the day the VETS Act received Royal Assent.
One of the key issues raised during the inquiry, and noted in the Committee’s report, identified ‘the importance of an independent commission’ including through standalone legislation for the operation of the commission (p. 13). The interim Defence and Veterans’ Services Commissioner, Michael Manthorpe, recommended that Schedule 9 of the VETS Act be excised and transitioned to a standalone act (p. 16). The Committee report cited Manthorpe:
Given the significance of this body, the importance people have placed on it, the gravity of the issue and the importance of having a standalone independent commissioner, I think that having a standalone act is an important part of that story. (p. 17)
The Committee reported its findings to Parliament in August 2025 with 3 recommendations:
Recommendation 1
The Committee recommends that the Australian Government transitions Part VIIIE of the Defence Act 1903 into standalone legislation.
Recommendation 2
The Committee recommends that the Australian Government considers amending Schedule 9 of the Veterans’ Entitlements, Treatment and Support (Simplification and Harmonisation) Act 2025 to include a reference to veterans' families for the purpose of the Defence and Veterans' Services Commissioner's functions.
Recommendation 3
The Committee recommends that the Australian Government reviews the functions and powers of the Defence and Veterans' Services Commission, specifically to consider the amendments proposed by the Interim Head of the Defence and Veterans' Services Commission (p. ix).
The Albanese Government’s response to the Committee’s report was the introduction of the Bills.
Policy position of non-government parties/independents
The report of the SFADT Legislation Committee’s review of Schedule 9 of the VETS Act 2025 included additional comments from the Coalition, the Greens, and the Jacqui Lambie Network (JLN). All supported the Committee’s recommendation to establish standalone legislation for the DVSC. The Greens and the JLN also supported the recommendations of the interim Commissioner, such as the Governor-General appointing the Commissioner, restricting the Minister’s powers to intervene in inquiries and expand the Commissioner’s powers of investigation.
Financial implications
The Mid-Year Economic and Fiscal Outlook 2024–25 Budget allocated $5 million over 2 years towards the establishment of the DVSC (p. 234).
In September 2025 a further $44.5 million was allocated for operational funding over a 4 year period (p. 1897). This measure was confirmed in the Mid-Year Economic and Fiscal Outlook 2025–26 drawing from within Defence’s existing resources (pp. 21, 183, 223).
Key issues and provisions
The Bills incorporate proposals from the SFADT Legislation Committee’s final report following its inquiry into Schedule 9 (Part VIIIE of the Defence Act) and the Interim Commissioner, Michael Manthorpe’s submission to the SFADT inquiry.
Standalone legislation
The Bills seek to establish an independent DVSC under standalone legislation. Schedule 1, Part 1 of the Consequential Bill repeals Part VIIIE of the Defence Act. The DVSC Bill establishes the DVSC and the Commissioner under a standalone act. The Interim Commissioner’s submission (p. 7) noted standalone legislation would alleviate key stakeholder concerns about ‘the perceived and actual independence of the Commissioner’, the DVSC and its staff.
Clause 3 sets out the object the Bill, which is to drive improvement in suicide prevention and wellbeing outcomes for veterans by:
- establishing an independent DVSC headed by the Commissioner to inquire into, and provide advice on, systemic reforms, including the Commonwealth implementation of the Government’s response to the recommendations of the Royal Commission into Defence and Veteran Suicide and
- establishing a framework for the Commissioner to report publicly to the Minister and Parliament.
Establishment of the DVSC and the Commissioner
Part 2 of the DVSC Bill establishes the role and functions of the Commissioner and the DVSC.
Functions of the Commissioner
Clause 10 mirrors existing section 110ZJB of the Defence Act in relation to the Commissioner’s functions, except for the removal any reference to serving Australian Defence Force (ADF) members — subclause 10(1) uses the term veteran only. However, clause 7 defines veteran as a person who is or has been a member of the Australian Defence Force, which ensures that the term covers serving members.
Additionally, subparagraph 10(1)(f)(ii) would include a reference to the families of veterans, which may satisfy the SFADT Legislation Committee’s second recommendation of the Schedule 9 inquiry (noted above) ‘to include a reference to veterans' families’ for the purpose of the Commissioner's functions (p. ix).
Subparagraph 10(1)(a)(v) has been added to allow the Commissioner to monitor, inquire into and report on any matter that another provision in the Bill or other Commonwealth law permits or requires such action on. Subclause 10(2) stipulates the Commissioner’s reporting function includes reporting evidence-based findings of the Commissioner’s monitoring or inquiring and making recommendations. Subclause 10(3) outlines the functions not applicable to the Commissioner’s role. These excluded functions are:
- to make findings of civil or criminal wrongdoing
- to make findings on the manner or cause of death of a veteran, including findings that the manner or cause of a death was suicide
- to monitor or inquire into a single exercise of a power, or a single performance of a function or duty.
The Explanatory Memorandum (EM) to the Bills explains this is to ensure the Commissioner will not be undertaking the role of a court and does not deal with complaints from individuals in relation to other Australian Government agencies as these matters are handled by other relevant agencies. This also reflects the intent expressed in the Royal Commission’s Final Report (p. 16).
Powers and independence of the Commissioner
Clause 11 clarifies the Commissioner has powers to do all that is necessary or convenient to perform their functions as provided in Clause 10. The Commissioner may exercise their powers within and outside Australia.
Clause 12 implements the Interim Commissioner’s submission (p. 10) recommendation that existing legislation (section 110ZJD of the Defence Act) be strengthened in relation to the independence of the Commissioner and specify ‘that the Commissioner is not subject to direction in relation to the conduct of an inquiry, including its terms, timing and priority, or how it is to be conducted’.
The Defence and Veterans’ Service Commission
Clause 13 clarifies a minor alteration to the entity’s name, which will be the Defence and Veterans’ Service Commission (currently the Defence and Veterans' Services Commission, subclause 13(1)). Subclause 13(2) expands upon existing section 110ZKA of the Defence Act, which sets out the composition of the DVSC. Currently the DVSC consists of the Commissioner and the public service staff of the Commission. Under subclause 13(2) the DVSC will also consist of Deputy Commissioners, Assistant Commissioners, contractors, consultants and persons assisting. Subclause 13(3) maintains (as currently under section 110ZKA) the status of the DVSC as a listed entity and the Commissioner as an accountable authority of the DVSC within the meaning of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).
Clause 14 would establish the function of the DVSC as assisting the Commissioner in the performance of their functions as outlined in the Bills (this reflects current section 110ZKB of the Defence Act). The substantive functions contained in the Bills are conferred on the Commissioner personally rather than the DVSC as a listed Commonwealth entity.
Inquiries by the Commissioner
Part 3 of the DVSC Bill outlines the inquiry processes and sets out the information gathering powers for special inquiries.
Clause 16 would allow the Commissioner to inquire on their own initiative into matters relating to suicide prevention or wellbeing outcomes for veterans. This includes:
- data and trends regarding suicide and suicidality among veterans;
- systemic factors relating to the Commonwealth’s administration of policies, programs, systems and practices that contribute to suicide and suicidality among veterans;
- the state of the defence and veteran ecosystem, as it relates to the prevention of suicide and suicidality among veterans;
- the Commonwealth’s implementation of the recommendations of the Defence and Veteran Suicide Royal Commission, including progress, impact and outcomes;
- any matter that another provision of this Act or any other law of the Commonwealth permits or requires the Commissioner to monitor, inquire into or report on (paragraphs 10(1)(a)(i–v)).
Inquiries by Ministerial request
Clause 17 sets out the circumstances under which the Minister may request the Commissioner to conduct an inquiry or provide advice on specified matters. Subclause 17(1) provides that the Minister may request the Commissioner to inquire into or advise on a matter mentioned in paragraph 10(1)(a) (set out above). Subclause 17(2) outlines matters the Minister must have regard to prior to making a request to the Commissioner. These include:
- the objects of the DVSC Bill, as set out at clause 3 (discussed above)
- any current or planned inquiries by the Commissioner
- any advice already being prepared by the Commissioner
- whether the Commissioner has sufficient resources to conduct the inquiry or provide the advice
- the need to avoid prejudicing other contemporaneous inquiries like an Inspector-General of the Australian Defence Force inquiry under section 110C of the Defence Act.
Under subclause 17(3) the Commissioner must comply with any such request. According to the EM, the subclause expresses the intent of the Royal Commission that ‘the Minister should have the power to direct the entity to conduct a particular review. This is so the entity can be responsive when different areas of government identify pressing matters requiring inquiry that relate to the entity’s functions’ (p. 21).
Under subclauses 17(4)–(6) the Minister would be able to request a person other than the Commissioner conduct an inquiry. If such a request is made, the Commissioner must provide the Minister with a list of suitable people and the Minister must choose a person from this list to conduct the inquiry. The Commissioner is required to appoint this person as a Deputy Commissioner. As set out in the EM, this means that the listed people ‘must not only have the appropriate skills and experience to conduct the inquiry… but they would also need to have the appropriate skills and experience to be appointed as a Deputy Commissioner’ (p. 22).
The Minister can include terms of reference in their written request to the Commissioner (subclause 17(7) and any written ministerial request is not a legislative instrument (subclause 17(8)). The Minister would be able to withdraw or amend any inquiry request prior to the Commissioner providing the final report or advice to the Minister (subclause 17(9)).
The Interim Commissioner’s submission (p. 9) recommended supporting the independence of the Commissioner and the operation of the DVSC by including additional parameters around existing legislation (section 110ZFB of the Defence Act) relating to requests by the Minister. Mr Manthorpe emphasised this would ‘ensure that the Minister must have regard to the objects of the legislation establishing the Commissioner, the current and planned inquiries for the year, and whether the Commission has sufficient resources to conduct the activities directed’. Similar parameters are in place for reviews conducted by the IGAC.
Inquiries into the implementation of Royal Commission recommendations
Clause 18 mirrors existing section 110ZFC of the Defence Act by requiring inquiries into the implementation of the Royal Commission’s recommendations. Subclauses 18(3)–(4) provide specific timeframes with the first inquiry to be completed by 2 December 2027 and the second inquiry to be completed by 2 December 2030. The Commissioner may prepare more than one final inquiry report.
Notice of inquiry
Clause 19 outlines the notification process required for inquiries under clauses 16 or 17. The Commissioner must provide written notice of the commencement of an inquiry, including the terms of reference, to the Minister. The Commissioner must also publish the notice on the DVSC’s website, unless satisfied that doing so would adversely affect the proper conduct of that, or any other inquiry, or the preparation of an inquiry report. The EM provides:
The ability for the Commissioner to exercise discretion not to publish a notice of an inquiry is appropriate in these limited circumstances as there may be instances where an inquiry deals predominately with matters of national security or otherwise highly classified information.
Inviting submissions
Subclause 20(1) allows the Commissioner to invite submissions to an inquiry under clauses 16, 17 or 18. Subclause 20(2) provides the Commissioner with discretion in deciding matters connected to the invitation process such as publishing an invitation for submissions from the public or inviting specific persons or organisations to provide oral submissions at a meeting.
Submitters would be able to request confidentiality under subclause 20(3). The Commissioner must agree to any request made by a person or body that is not a Commonwealth entity (subclause 20(5)). Subclause 20(4) allows the Commissioner to still have regard to information contained in a confidential submission. The Commissioner may determine whether to agree to a confidentiality request from a Commonwealth entity if the request is reasonable, granting the request would not unduly impede the inquiry, and the submission was made in good faith (subclause 20(6)). If the Commissioner refuses a confidentiality request from a Commonwealth entity, that entity may withdraw the submission or part of the submission (subclause 20(7)).
Making submissions publicly available
The Commissioner may make a submission or part of a submission publicly available under clause 21. However, the Commissioner must not make a submission, or part if a submission available to the extent that it names or identifies individuals (other than, for instance, Ministers, SES employees, or the individual making the submission) or the submission contains sensitive information, intelligence information, or operationally sensitive information. These terms are defined in clause 7. The Commissioner would be able to redact, or partially redact, submissions to remove such material before making them publicly available. A written record of an oral submission made by a person must not be made publicly available unless the person has verified the content of the record .
The EM notes that clauses 20 and 21 reflect Australian Privacy Principle (APP) 2, which provides individuals with the option not to identify themselves.
Inquiry reports
Clauses 22 and 23 deal with draft inquiry reports including ensuring Commonwealth entities or any other person or body have a reasonable opportunity to respond to criticism or comment on preliminary findings etc. Any responses must be included in the final inquiry report (paragraph 25(1)(d)). The Interim Commissioner’s submission (p. 10) recommended that procedural fairness requirements be included in the legislation.
Clause 24 outlines the process and requirements for the Commissioner when preparing, providing and publishing a final inquiry report. Subclause 24(3) allows the Commissioner to prepare more than one additional final inquiry report.
Clause 25 sets out requirements for final inquiry reports. A final inquiry report must contain findings, a summary of the evidence on which the findings are based and any recommendations. The Commissioner has discretion as to whether to provide the final report of an own motion inquiry under clause 16 to the Minister and publish it. The Commissioner must provide the Minister with final reports for inquiries into the Government’s response to the Royal Commission under clause 18 or requested by the Minister under clause 17. The Commissioner must also provide these reports to any Commonwealth entity or other person to whom a recommendation is directed or to whom the draft inquiry report was provided. The reports must also be published on the DVSC’s website.
Clause 26 requires final inquiry reports that have been provided to the Minister to be tabled in Parliament within 15 sitting days after receipt by the Minister. The Minister must table the Government’s response within 3 months or 15 sitting days of the report’s tabling (whichever is later).
Clause 27 seeks to ensure that adequate, appropriate and timely action is taken in response to recommendations made in final inquiry reports. It allows the Commissioner to require details from a Commonwealth entity or official, or any other person, of any action taken, or proposed to be taken.
If the Commissioner is not satisfied with the response of a Commonwealth entity to a request for information, they may refer the matter to the Prime Minister and Minister and provide details to the President of the Senate and the Speaker of the House of Representatives for presentation to Parliament.
If the Commissioner is not satisfied with the response of a person (other than a Commonwealth entity or official) to a request for information, they may make a public statement. It is not clear what action the Commissioner may take if they are not satisfied with the response of a Commonwealth official.
Clause 28 stipulates that inquiry reports must not include certain information like personal and private information, unless the individual to whom the information relates gives consent. The Commissioner must also exclude from inquiry reports operationally sensitive information or intelligence information.
Clause 29 specifies the process the Commissioner must follow when excluding operationally sensitive information or intelligence information from a final inquiry report to ensure the information remains confidential. This involves the Commissioner preparing a classified information report that sets out the information and the reasons for its exclusion in the final inquiry report. The classified information report is provided to the Minister, is not publishable and must not be tabled in Parliament.
Coercive powers in relation to special inquiries
Clause 30 reflects existing section 110ZGA of the Defence Act. It allows the Commissioner to determine that an inquiry under clauses 16,17 or 18 is a special inquiry and provides for coercive information gathering powers in the conduct of special inquiries. The EM explains there is an expectation that engagement with the Commissioner will be collaborative and ‘in good faith’. Nonetheless, the Royal Commission cautioned that this might not always be the case, and the Commissioner should have the appropriate powers:
… to obtain necessary information from those agencies, or any other person or body, if they have reason to believe they have information or a document relevant to the [Commissioner’s] functions (p. 36).
Note: there is a requirement for the Commissioner’s annual report to include the number of times the Commissioner uses coercive powers (clause 87).
Clause 31 reflects existing section 110ZGC of the Defence Act and allows the Commissioner to summon a person to attend a hearing for a special inquiry, give evidence and produce documents or things. To exercise these powers the Commissioner must have reasonable grounds to suspect that a person has evidence relevant to a special inquiry. Failure to comply with a summons is an offence with a maximum penalty of 2 years imprisonment (subclause 57(1)).
Clause 32 mirrors existing section 110ZGD of the Defence Act and allows the Commissioner to require a witness appearing at a hearing for a special inquiry to take an oath or make an affirmation. Refusal to take an oath or make an affirmation, or to answer a question or provide evidence, are offences under subclauses 57(1) and (2), with a maximum penalty of 2 years imprisonment. Hearings overseen by the Commissioner are considered judicial proceedings as defined in Part III of the Crimes Act 1914, meaning the offences and penalties under Part III including giving false testimony, fabricating evidence, intimidation of witnesses, corruption of witnesses, deceiving witnesses and destroying evidence are applicable (EM, p. 39).
Clause 33 reflects existing section 110ZGE of the Defence Act and provides the Commissioner with power to require a person to provide information, a document or thing to a special inquiry. To exercise these powers the Commissioner must have reasonable grounds to suspect that a person has information relevant to a special inquiry. Failure to comply is an offence under clause 57.Clause 34 would provide the Commissioner with the power to allow an authorised official to enter and remain on premises as part of the conduct of a special inquiry. The EM states:
This power and the associated offence at clause 63 are necessary to ensure that the Commissioner can undertake full, independent and transparent investigations that are not hampered by non-compliance on the part of a Commonwealth entity (p. 41).
This power only allows entry to premises occupied by a Commonwealth government entity or a Commonwealth contractor (subclause 34(2)). The authorised official must be able to fully and freely access any documents or other property at all reasonable times, assess and make copies of or take extracts from any documents and may remove the documents from the premises (subclause 34(4)). If the ASIO Minister is satisfied that entering certain premises might prejudice national security or defence, they may make a declaration that requires entry to such premises to be authorised by a Minister and impose conditions on the exercise of the power (subclauses 34(7) and (8)). The Interim Commissioner’s submission (p. 12) recommended the inclusion of powers to access Commonwealth premises for the purpose of a special inquiry.
Clause 35 would allow the Commissioner, or an authorised person, to remotely access electronic documents or other records held on an agency’s systems.
Clause 36, which deals with search warrants, reflects existing section 110ZGJ of the Defence Act and aims to incorporate changes in response to concerns raised by the Scrutiny of Bills Committee on the existing legislation.
The Scrutiny of Bills Committee considered the ‘authorisation of coercive search powers has the potential to unduly trespass on personal rights and liberties’ and legislation enabling coercive search powers should be tightly controlled and include sufficient safeguards (Scrutiny Digest 3/25, p. 17).
The proposed section differs from the existing provision by:
- requiring the warrant to include a description of the land, premises, vessel, aircraft or vehicle to which the warrant relates (proposed paragraph 36(4)(c))
- requiring the person executing the warrant to identify themself and provide a copy of the warrant to the owner or occupier of the place to be searched (proposed subsections 36(6) and (7)) and
- allowing a thing seized in a search to be retained for as long as is reasonably necessary (proposed subsection 36(8)).
The EM states that it is expected this power would only be used in ‘exceptional circumstances connected with a potentially imminent concealment, loss, mutilation or destruction of material relevant to a special inquiry, rather than forming part of the Commissioner’s usual information- and evidence-gathering processes’ (p. 46).
Clause 38 mirrors existing section 110ZGL of the Defence Act and relates to witnesses who are subject to questioning at a hearing of a special inquiry. It sets out who can question or cross-examine witnesses.
Information management
Part 4 of the DVSC Bill deals with information management, including appropriate disclosure of information and the handling of information.
Clause 41 mirrors existing section 110ZFD of the Defence Act, except for the removal of sections 110ZFD(3) and (4) in relation to issuing written guidelines on procedures for hearings. The Commissioner has the power to hold hearings in public and not be bound by rules of evidence. A record of the hearing must be made.
The provisions in relation to the conduct of private hearings have been strengthened from existing section 110ZFE of the Defence Act ensuring that a private hearing must (instead of may) be held if the Commissioner determines that operationally sensitive information or intelligence information may be given at a hearing (subclauses 42(1)–(2)). As with the current provision a private hearing may be held if the Commissioner is satisfied that personal and private information concerning a deceased person or the family, friends or associates of a deceased person, or a veteran’s lived experience with a suicide risk may be disclosed at the hearing (subclause 42(3)). Clause 43 deals with the use of evidence provided at a private hearing.
Clauses 44 and 45 relate to the disclosure of information to the Commissioner and reflects existing sections 110ZGN and 110ZGP of the Defence Act. As currently, the authorisations to disclose information to the Commissioner under the provisions has effect despite anything in state or territory law that might restrict or prohibit the disclosure of information.
Clause 46 reflects existing section 110ZGQ of the Defence Act, which requires the Commissioner to make specific arrangements with the relevant Australian intelligence agencies when entrusted persons (as defined in clause 7) handle intelligence information.
Note: Item 3 of Schedule 1 to the Consequential Bill would insert new section 34AC in the IGIS Act to allow the disclosure of information to the DVSC.
Clause 50 would allow the Commissioner to make public statements, if deemed to be in the public interest, regarding the performance of the Commissioner’s functions and powers or an inquiry (subclause 50(1)). There are safeguards built in around the consideration of sensitive information relating to deceased persons, family and friends/associates, or information that is personal, private, operationally sensitive or intelligence based (subclause 50(2)). The Commissioner would also need to have regard to any potential impact on other ongoing investigations (such as an investigation by the Inspector-General of the ADF). Before making a statement that is critical of a Commonwealth entity or person, the Commissioner must provide them with an opportunity to respond (subclauses 50(3)–(4)).
Note: The disclosure of protected information (as defined in clause 7) outside of the parameters of subclause 51(1) could be an offence under clause 70 of the Bill, which attracts a maximum penalty of 2 years imprisonment.
The Parliamentary Joint Committee on Human Rights (PJCHR) noted that measures in the Bill that authorise the collection, use and disclosure of personal information limit the right to privacy (p. 19). The PJCHR stated that it considered that these measures pursue legitimate objectives (p. 22) but that the proportionality of the measures may be assisted if the Bill was amended to:
- provide that a person that may be affected by the disclosure or publication of certain information is notified, gives consent where possible and is afforded the opportunity to correct information prior to its disclosure or publication and
- require that the extent of personal information disclosed is limited to that which is strictly necessary to achieve the purpose for which the information is disclosed, and where possible, information is disclosed in a de-identified or anonymous form (p. 23).
Offences and protections
Part 5 of the Bill specifies offences and protections for persons providing information to the Commissioner.
Offences under Part 5 of the Bill would fall under extended geographical jurisdiction Category B (section 15.2 of the Criminal Code Act 1995). As set out in the EM, this means that the offences extend to conduct outside of Australia by an Australian citizen or resident or body corporate, including, for instance in overseas operations. In the case of a resident of Australia, the offence would only apply if there is an equivalent offence in the law of the local jurisdiction (EM, p. 68).
The Final Report of the Royal Commission into Defence and Veterans Suicide recommended the legislation establishing the new oversight entity should include offences ‘for failing to give the information, produce a document, or appear as requested … as should offences for the provision of false or misleading information or documents’. The Royal Commission noted there ‘is precedent for this approach in the Inspector-General of Aged Care Act 2023 (IGAC Act), which provides for coercive information gathering’ and offences for those who fail to comply with such requests (p. 286).
The Interim Commissioner’s submission (pp. 18–19) noted the absence of an offence in Part VIIIE of the Defence Act for providing false or misleading information or destroying a document or thing sought by the Commissioner. This has been addressed in the Bill.
Clause 57 sets out offences for failure to attend a hearing, refusal to be sworn in or make an affirmation or answer questions at a hearing, provide information or produce documents or a thing, which could attract a maximum penalty of 2 years imprisonment. Reasonable excuse provisions are available in subclauses 57(4)–(6), for instance, where a person does not have the information, document or thing identified in the Commissioner’s notice. The defendant bears an evidential burden, which the EM states is consistent with subsection 13.3(3) of the Criminal Code and ‘would require the defendant to adduce or point to evidence that suggests a reasonable possibility that the matters comprising the defence exist or do not exist. If the defendant does so, the prosecution would then need to discharge its legal burden to negate that possibility beyond reasonable doubt for the offence to apply’. (p. 71).
Clause 58 would make it an offence to knowingly provide false or misleading information or documentation, which would attract a maximum penalty of 2 years imprisonment. Similarly, the destruction of documents or things would be an offence under clause 59, with a maximum penalty of 2 years imprisonment.
Clause 60 in relation to legal professional privilege mirrors existing section 110ZHD of the Defence Act, which provides that, subject to some exceptions, a claim of legal professional privilege is not a reasonable excuse for a person to fail to give information or a statement, or to produce a document or thing. If a claim of legal professional privilege is made, the Commissioner can accept or reject the claim.
Clause 61 mirrors existing section 110ZHE of the Defence Act dealing with offences relating to failure to give evidence, or produce a document or thing, when a claim of legal professional privilege has been denied. A maximum penalty of 2 years imprisonment may apply.
The Senate Scrutiny of Bills Committee raised concerns in its assessment of Schedule 9 of the VETS Act, stating sections 110ZHD and 110ZHE of the Defence Act abrogate legal professional privilege:
… which is intended to encourage full and frank disclosure by clients in seeking and obtaining legal advice without apprehension of being prejudiced by subsequent disclosure of that communication.
…
The Committee expects any justification for limiting legal professional privilege should be set out clearly within the explanatory materials to the bill (Scrutiny Digest 3/25, p. 15).
This issue is dealt with at pages 77–81 of the EM.
Clause 62 mirrors existing section 110ZHF of the Defence Act and provides that an individual is not excused from providing evidence, information or a statement, document or thing on the ground that it might tend to incriminate them. The only exception is where the evidence relates to an ongoing criminal charge still before the courts (subclause 62(2)). A ‘use immunity’ is provided for potentially self-incriminating information, such that the information and the giving of that information, is not admissible in evidence against the individual in most criminal or defence service proceedings (subclause 62(3)). The PJCHR advised that ‘the proportionality of this measure may be assisted were the bill amended to provide for a derivative use immunity’ (p. 25). The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers explains that the effect of a ‘derivative use immunity’ is that ‘any information or evidence given that would tend to incriminate the person may not be used to gather other evidence against that person’ (p. 90). The absence of a derivative use immunity was also noted by the Scrutiny of Bills Committee, which requested advice from the Minister ‘as to why it is necessary and appropriate to abrogate the privilege against self-incrimination’ (p. 29).
Clause 63 makes it an offence if a person fails to provide facilities or assistance to an authorised official for the effective exercise of the official’s powers. The maximum penalty for this offence is 6 months imprisonment.
Witness protections
The Interim Commissioner’s submission (p. 16) recommended that witness protections in existing legislation (section 110ZHG) be broadened and strengthened to incorporate circumstances beyond dismissal from employment.
Clause 64 is broader in scope than section 110ZHG of the Defence Act in relation to protecting witnesses. Subclause 64(1) makes it an offence to actually cause detriment to another person because of a belief that the person has, may have or intends to assist the Commissioner in performing their functions. Subclause 64(2) deals with a person threatening to cause detriment to a person because of a belief that the person has, may, or intends to assist the Commissioner perform their functions. The threat might be expressed or implied, conditional or unconditional (subclause 64(3)). A maximum penalty of 1 year imprisonment would apply.
Subclauses 65(1)–(4) aim to ensure persons providing information to the Commissioner are protected from prosecution under other Commonwealth laws or from having the information provided to the Commissioner used against them and ensures that it does not impact any claim for legal professional privilege.
Obstruction and contempt
Clause 66 mirrors existing section 110ZHJ of the Defence Act and provides that it is an offence to:
- obstructs or hinder the Commissioner’s work (subclause 66(1)) or
- engage in conduct that would, if the Commissioner were a court of record, constitute a contempt of court (subclause 66(2)).
The maximum penalty for these offences is 3 months imprisonment.
The PJCHR considered that the proportionality of clause 66 could be assisted
were the Bill amended to remove subclause 66(1) (which would retain only the contempt of the Commission offence) and provide that the conduct that the offence seeks to criminalise must reach such a level that the Commission is effectively unable to operate (p. 29).
The PJCHR also recommended that the statement of compatibility in the EM ‘be updated to provide an assessment of the compatibility of the measure with the rights to freedom of assembly and freedom of expression’ (p. 29).
Offences relating to unauthorised publication, use or disclosure etc
If a person knowingly presents false or misleading information or documents at a hearing, including omissions of evidence, a penalty of 2 years imprisonment could be imposed under subclause 67(1).
Under subclause 68(1), a person would commit an offence if they received whole or part of a draft inquiry report, including preliminary findings or recommendations, and discloses any element of that information. A 2-year imprisonment penalty could apply.
The EM states this penalty aligns with section 23(1) of the IGAC Act and is intended to ‘encourage persons to take care that they do not inappropriately disclose draft inquiry reports, as such conduct may undermine the inquiry process and cause harm to individuals or entities’ (p. 93).
Clause 69 provides that it is an offence for a person to publish information in contravention of a non-publication directive under subclause 54(1). The maximum penalty for this offence is 1 year imprisonment. The offence would not apply where the information has already lawfully been made public, with the defendant bearing an evidential burden.
Clause 70 would make it an offence for an entrusted person (as defined in clause 7) or former entrusted person to disclose protected information (as defined in clause 7) that is not for the purpose of the Commissioner’s functions. The maximum penalty would be 2 years imprisonment.
Administrative procedures
Part 6 outlines administrative procedures in relation to staffing and reporting.
The Interim Commissioner’s submission (p. 8) recommended the Commissioner be appointed by the Governor-General. Additionally, he recommended the appointee should not have served in the ADF within the last 5 years prior to appointment.
Clause 72 would ensure the Commissioner is appointed by the Governor-General. The Minister must be satisfied that the person has suitable qualifications, training or experience and was recommended by a panel using a merit-based process for assessing applicants after public advertising of the position. Additionally, the person to be appointed as Commissioner must not have served as a member of the ADF in the last 5 years. The Commissioner would be appointed for a period of 5 years but could be reappointed (subclauses 72(4)–(5)).
Subclause 81(1) would allow the Commissioner to appoint a Deputy Commissioner to assist in the performance of the Commissioner's functions. A Deputy Commissioner could also be appointed to inquire into a specified matter following a request by the Minister (subclause 81(2)). More than one Deputy Commissioner can be appointed (subclause 81(4)).
Subclause 82(1) would allow the Commissioner to appoint one or more Assistant Commissioners.
Clauses 83 – 86 would allow the Commissioner to engage DVSC staff (under the Public Service Act 1999), contractors, consultants and persons from other Commonwealth, state or territory agencies to assist with the Commissioner’s functions.
Annual report requirements
Clause 87 would include annual report requirements for the Commissioner and outlines the minimum information requirements such as the number of inquiries undertaken over a 12‑month period, the number of summons’ and notices served, the number of times premises had been entered and documents accessed remotely, and the number of search warrants applied for. Certain information must be excluded from the report, including intelligence, operationally sensitive or personal and private information.
Miscellaneous
Part 7 includes miscellaneous items including provisions dealing with delegation of functions and powers by the Commissioner, eligible judges, protections and accountability. For further explanation see the EM.
Clause 95 mirrors existing section 110ZLE of the Defence Act. The Minister would be required to commission an independent review into the operation of the Bill as soon as practicable after the end of 3 years after the Bill commences. The report must be provided to the Minister within 6 months beginning on the day the review commences, and the Minister must table a copy of the report in Parliament within 15 sitting days after receiving the report.