Ross Hart (Bass, Australian Labor Party) Share this | Hansard source

The purpose of this bill, the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, is to make the Department of Veterans' Affairs 'digitally ready' as part of the government's digital transformation agenda. It seeks to make legislative change in support of planned business and ICT reforms that will reduce processing times and automate and streamline existing processes. Labor is supportive of measures that will ease the claims process for veterans when dealing with the Department of Veterans' Affairs.

As government agencies move closer to a wholly digital platform, it is appropriate to include measures that allow the Department of Veterans' Affairs to engage this platform. However, I note that in his second reading speech, the Minister for Veterans' Affairs indicated that provisions in this bill would enable the secretary of DVA to arrange for computer programs to make decisions and determinations; exercise powers or comply with obligations; or do anything else related to making decisions and determinations, or exercising powers or complying with obligations. For example, where a particular provision requires notice of a decision to be given, this new automated decision-making provision would enable the computer program to both make the decision and send the notice.

It is important to understand that the use of automated decision-making by government departments and agencies has been in operation in various forms for in excess of 20 years. The pathway towards this legislation has been long. For example, 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 the 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.

The same document then goes on to say:

A hallmark of an automated system is its ability to examine a set of circumstances ... to 'decide' dynamically what further information is required, or what choices or information to present the user, or what conclusion is to be reached.

In some cases it can be fairly said that automation of business processes within a department might have been used as an aid to decision-making, whilst not displacing the matrix required to be assessed as part of an administrative decision. It is perfectly appropriate, where automation of decision-making is to be elevated beyond an aid to decision-making, that there is legislative sanction for the use of computer programs to make decisions or exercise other functions.

There have been reviews, including a 2004 report of the Administrative Review Council, which considered the administrative law implications of such decision-making. The ARC concluded that expert systems could assist by potentially reducing inaccuracy and human prejudice in the interpretation and application of complex rules and policy. Nevertheless, it appears that the ARC was somewhat prescient in noting, as follows:

… 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.

I say again: 'A mistake in the design or operation of such a system has the potential to affect many people.' The problems reported with respect to the Centrelink robo-debt debt recovery issues are a case in point.

Labor believes that there are fundamental flaws in the design of the systems and algorithms associated with the data-matching program, which is generating letters and asserting that debts have arisen based upon flawed assumptions. I sincerely hope that the government will heed lessons from the debt recovery program in designing the processes and systems associated with decision-making in this space. I would be particularly concerned if our veteran community had to endure the same stress, worry and fear that the Centrelink robo-debt debacle imposed on thousands of innocent Australians. Centrelink's debt recovery scheme was a nightmare scenario that saw individuals having to prove the absence of a debt, against the state, in a system that, by design, made that task an unreasonable burden.

It is not enough to say that automated decisions might be subject to departmental appeal or to judicial review. There needs to be sufficient human oversight to ensure that decisions are made correctly and communicated accordingly. We cannot allow digital transformation to completely eliminate person-to-person contact in decision-making processes. This is particularly important when dealing with our veterans and our ex-service personnel communities. We know that the rate of suicide for veterans in Australia is tragically high, particularly among ex-serving men aged 18 to 23, for whom the suicide rate is almost twice that of Australian men of the same age.

A report from the DVA, released in July 2016, noted that veterans can experience a number of risk factors for suicidal behaviour, amongst them a high prevalence of post-traumatic stress disorder, depression, traumatic brain injury and physical health problems. Veterans might also experience a number of veteran-specific risk factors such as difficulty returning to civilian life, including relationship problems, mental illness, alcohol and drug misuse, employment problems, bereavement, and a loss of routine and structure.

I must acknowledge the tireless work already done by RSLs and veteran support groups throughout Australia—particularly, in my electorate, the Launceston RSL. Your passion and dedication to ensure no-one is left behind inspires me. Certainly this is a cohort of our community that often needs particular support, and this is where incorrect decisions made by an automated system could potentially have very serious consequences.

I am pleased to note that, in addition to providing a legislative basis for the use of computer systems to make decisions and determinations, the Department of Veterans' Affairs has developed a strategic plan, which is called Towards 2020, which includes the goal of providing simpler and faster access to clients. DVA states in its plan:

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.

The department has acknowledged that the types of decisions which could be suitable for computerised decision-making include where the decision-making can be converted into an algorithm, in the automated granting of benefits in certain circumstances, and where the decision can be generated based upon information that is not subject to interpretation or discretion. It is particularly important to note that automated decision-making processes should not be applied to the types of decisions which involve the exercise of discretion.

This bill also provides the secretary of the department with the tools to make personal information of veterans and ex-service personnel available to the public. This issue has received notoriety, again in the context of disputes between Centrelink claimants and the department surrounding alleged robo-debts. The relevant minister was required to explain how it was that particular information was made available to the media which otherwise would have been confidential or private information concerning a claimant for benefit. The minister sought to justify the release of this information on grounds that the department was entitled to respond to alleged misinformation in the public domain. I have very real concerns as to whether that disclosure was, in fact, authorised by law. The explanatory memorandum to this bill makes it clear that the disclosure regime in the bill is based upon the equivalent in social security law, with some modifications. It is pleasing to note that the government proposes to extend the rights available to claimants to object to release of this information, something which, unfortunately, was not available in the most recent notorious instance of the use of this power.

Nonetheless, there are still concerns around the broad nature of the criteria provided in the explanatory memorandum and the necessity to include both misinformation and mistake of fact in the bill. This is a new power, in that there is no present provision in the defence compensation acts permitting disclosure of information by the secretary. There are, however, information-sharing provisions which permit the sharing or disclosure of information in certain circumstances. Nevertheless, the legislation is not consistent. The Military Rehabilitation and Compensation Act and the associated regulations enable the disclosure of information to defence agencies in relation to litigation of claims and to monitoring occupational health and safety performance and the cost of injuries, as well as to the Department of Human Services for the purposes of administering the social security law. The Safety Rehabilitation and Compensation Act's information-sharing provisions are more limited, permitting disclosure only to Centrelink, Medicare and the secretaries of the departments administering the National Health Act 1953, the Aged Care Act 1997 and the Human Services (Centrelink) Act 1997.

Labor sent the bill to the Senate Foreign Affairs, Defence and Trade Legislation Committee to investigate what circumstances are necessary to allow the Secretary of the Department of Veterans' Affairs to make this type of information publicly available. The consideration of these issues resulted in the committee supporting the content of the proposed public interest disclosure provisions but with recommendations for additional safeguards. It was recommended that the DVA consult with the Commonwealth Ombudsman and the 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 into parliament. It was also recommended that DVA undertake a privacy impact assessment of the regulations and that this completed assessment be made public, and, finally, that the bill be amended to include a mandatory review of the implementation of the legislation and the accompanying regulations two years from the commencement date. The Labor senators on the committee issued additional comments about public interest, in which they expressed concerns about the broad scope of disclosures provided for in the bill. There have been other concerns expressed. 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 publicly available, and therefore subject to feedback from interested persons, before they are tabled in parliament as a legislative instrument.

Major interest groups have also had the opportunity to provide feedback on this bill. The War Widows' Guild of Australia and the Vietnam Veterans Association of Australia have both expressed support for the broad objectives of the bill. However, the Commonwealth Ombudsman raised concerns with the information disclosure provisions within schedule 2. The particular issue is that the definition of '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.

The secretary is granted considerable discretion regarding the purposes for which or the persons to whom information can be provided. The provisions do place some constraints on the discretion. It is important to note that 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 disallowance process. However, a certificate issued for a particular case is not a legislative instrument and is, therefore, not disallowable.

It is fitting that I close with the concerns expressed by the Ombudsman. The 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.

I outlined earlier in my speech those particular vulnerabilities. It is clear. We owe a duty to our veteran communities to do what is right, particularly when we are dealing with their private and confidential information. If it were not for the fact that there has been, I suggest, a particularly egregious use of confidential information being released to the media in the last two weeks, I would suggest that the protections currently being afforded by this legislation would be sufficient. However, I think we need to act with utmost caution when we are dealing with the confidential information of our veterans community.

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