On 27 August 2020, the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020 and the National Commissioner for Defence and Veteran Suicide Prevention (Consequential Amendments) Bill 2020 were introduced into the House of Representatives by the Attorney-General, the Hon Christian Porter MP.
On 3 September 2020, pursuant to the Senate Selection of Bills Committee Report, the provisions of the Bills were referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee (the committee) for inquiry and report. As no reporting date was set by the Senate the committee agreed a reporting date of 30 November 2020.
Conduct of the inquiry
The committee advertised the Inquiry on its website, calling for submissions by 9 October 2020. The committee also wrote directly to a range of organisations and individuals to invite them to make written submissions. Submissions received are listed at Appendix 1.
The committee held a public hearing in Canberra on 17 November 2020. Witnesses who appeared at the public hearing are listed at Appendix 2. Published submissions and the Hansard transcript of the public hearing are available from the committee's website: www.aph.gov.au/senate_fadt.
Background to the Bills
On 5 February 2020, the Prime Minster announced the establishment of a permanent National Commissioner for Defence and Veterans Suicide Prevention to investigate all suspected veteran and ADF suicides and causes to help save lives. The announcement noted that the Commissioner will be empowered to undertake two roles:
as an independent and permanent public accountability body, with the same powers of a Royal Commission to compel the production of evidence and summon witnesses, and make findings and recommendations to government; and
provide an ongoing investigative funding of individual cases of suicide, working with each state and territory coronial office, making recommendations to government.
Interim National Commissioner
On 30 September 2020, Dr Bernadette Boss CSC was announced as the interim National Commissioner. The interim National Commissioner will begin an independent review (the Review) of past defence and veteran suicides. The Australian Institute of Health and Welfare and the Australian Commission of Safety and Quality in Health Care will provide technical expertise for the Review.
The Review's Terms of Reference notes that it will 'predominantly focus on deaths by suicide among ADF members and veterans who have had one day or more of service since 1 January 2001, where the death occurred between 1 January 2001 and 31 December 2018'. It was explained that this is the period 'for which the most comprehensive and robust data and information is available'. However, the National Commissioner 'will be able to include other cases as they consider appropriate'.
The objectives of the Review are to:
identify and understand the risk and protective factors relevant to past deaths by suicide among ADF members and veterans;
provide affected families the opportunity to share their stories and provide insights;
make recommendations to government to inform more tailored and effective strategies for suicide prevention among ADF members and veterans; and
provide a foundation for the future work of the National Commissioner.
The National Commissioner will provide an Interim Report to Government within 12 months of commencing the Review and a Final Report with recommendations within 18 months. The Government will table a formal response to the Final Report in Parliament and the National Commissioner will monitor the implementation of recommendations made.
Attorney-General's Department Consultation process
When the Bills were introduced on 27 August 2020 the Attorney-General's Department (AGD) began a four week public consultation process inviting submissions from interested persons and organisations. In the Second reading speech it was noted that 'submissions received during the consultation process will inform the ongoing refinement of the Bills during their passage through the Parliament'.
Purpose of the Bills
The National Commissioner for Defence and Veteran Suicide Prevention Bill 2020 gives effect to the 5 February 2020 announcement and establishes the National Commissioner for Defence and Veteran Suicide Prevention as an independent statutory office holder within the Attorney-General's portfolio.
The National Commissioner for Defence and Veteran Suicide Prevention (Consequential Amendments) Bill 2020 amends the Freedom of Information Act 1982 to exclude the Commission and the Attorney-General's Department (AGD) from the application of the Act. It also amends the Inspector-General of Intelligence and Security Act 1986 to allow the Commissioner to be prescribed under the regulations so the Inspector-General of Intelligence and Security may disclose information to the Commissioner to assist with their inquiries.
This section outlines the key provisions of the Bills in general terms.
Clause 11 of the Bill sets out the functions of the Commissioner, which are:
inquiring into the circumstances of relevant deaths by suicide (further elaborated in clause 26);
making findings and recommendations following such inquiries, addressing defence and veteran suicide prevention strategies, and any policy, administrative or structural reforms that may be required;
reviewing action taken in response to any findings or recommendations the Commissioner has already made;
working collaboratively with state and territory Coroners to understand issues contributing to defence and veteran deaths by suicide;
maintaining a record of defence and veteran deaths by suicide notified to the Commissioner;
promoting understanding of suicide risks for members and veterans, and factors that can improve the wellbeing of members and veterans;
consider any matter referred to the Commissioner by the Prime Minister or Minister; and
anything incidental or conducive to the performance of the above functions.
Clause 12 of the Bill sets out general principles that should be taken into account in the performance or exercise of the Commissioner's functions and powers, namely that:
the Commissioner should take a trauma-informed and restorative approach; and
the Commissioner should recognise that families and others affected by defence and veteran deaths by suicide have a unique contribution to make to the Commissioner’s functions, and that those families and other affected persons may wish to be consulted.
Part 3 of the Bill sets out the broad information gathering and inquiry powers available to the Commissioner. The Commissioner's information gathering powers include:
compelling the production of documents and written statements;
convening public and private hearings; and
summoning persons to attend a hearing to give evidence under oath or affirmation.
Proposed clause 36 provides for the Commissioner, or an authorised member, to apply for a search warrant in relation to a matter that is relevant to the Commissioner's functions.
These powers are closely modelled on the equivalent powers of a Royal Commission under the Royal Commissions Act 1902 (Cth), and are supported by similar criminal penalties.
Proposed clause 14 provides that staff assisting the Commissioner are to be APS employees in AGD or persons engaged as contractors by or on behalf of the Commonwealth. These staff will be administratively separate to confirm their independence from other departmental functions.
Proposed clause 60 outlines the arrangements for the Commissioner to provide reports for tabling in the Parliament. The Commissioner must give a report on their findings and recommendations to the Parliament each year, as well as other additional reports the Commissioner considers necessary. An additional report may be in relation to any matter relating to, or arising in connection with, the exercise of the powers, or the performance of the functions, of the Commissioner.
Proposed clause 61 requires the Commonwealth to respond in writing to any report provided by the Commissioner.
Proposed clause 18 provides that the Commissioner is to be paid the remuneration determined by the Remuneration Tribunal.
Proposed Part 4 sets out offences and potential penalties, as well as relevant defences and protections for witnesses. The offences in Part 4 relate to matters such as:
failure to comply with a compulsory notice;
failure to attend a hearing following a summons;
failure to give written notice ahead of disclosing operationally sensitive and intelligence information; and
contempt of the Commissioner.
The Explanatory Memorandum (EM) states that $42.7 million has been provided over five years to support the establishment and operation of the National Commissioner's function. The costs include funding for a one-off review of historical ADF member and veteran deaths by suicide, to be led by the National Commissioner. It also includes funding for a dedicated legal financial assistance scheme.
Scrutiny by other committees
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee) reported on the Bills raising the issues set out below.
Scrutiny of Bills Committee
The Scrutiny Committee considered the Bills in its Scrutiny Digest 12 of 2020, making comments and requesting more detailed information from the Minister on each of the following issues:
reversal of evidential burden of proof;
legal professional privilege; and
privilege against self-incrimination.
The Scrutiny Committee received a response from the Minister and considered this response in its Scrutiny Digest 14 of 2020. The Scrutiny Committee requested that addenda to the explanatory memorandum containing key information provided by the Minister be tabled in Parliament as soon as practicable. The committee also drew the attention of three issues to the Senate as a whole for consideration their appropriateness: the reversal of the evidential burden of proof in clause 58; the abrogation legal professional privilege in certain circumstances; and abrogating the privilege against self-incrimination in circumstances where a derivative use immunity is not provided.
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (Human Rights Committee) considered the Bill in its Human Rights Scrutiny Report 11 of 2020. The Human Rights Committee made comments and requested advice from the Attorney-General on the following issues:
information gathering powers;
legal professional privilege; and
privilege against self-incrimination.
The Human Rights Committee received a response from the Attorney-General, and in its Human Rights Scrutiny Report 13 of 2020 commented that:
the information gathering powers, including coercive information-gathering and disclosure powers, are rationally connected to the objective of undertaking the important task of combatting suicide among defence members and veterans for the purposes of international human rights law;
certain amendments to the Bill would address proportionality issues in relation to the Commissioner's compulsory information-gathering powers and disclosure of protected information; and
abrogating the privilege against self-incrimination and legal professional privilege engages and may limit the right to a fair trial.
Structure of the report
Chapter 2 provides an overview of issues raised in evidence and contains the Committee's views and recommendation.