Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

Asked the Minister for Defence, in writing, on 4 July 2011:

Can health records of members of the Australian Defence Force, including (a) medical assessments, (b) psychological assessments, and (c) counselling interviews and records, be subpoenaed by either civilian or military prosecutors or other legal authorities; if so, can he say whether any such records were seized or subpoenaed as part of the general court martial proceedings brought against Sergeant J and Lance Corporal D in relation to the 12 February 2009 Civilian Casualty Incident in Afghanistan.

Stephen Smith (Perth, Australian Labor Party, Deputy Leader of the House) Share this | Link to this | Hansard source

The answer to the honourable member's question is as follows:

(1) Documents in the possession of the Department of Defence, including personnel records, in relation to Australian Defence Force members and Defence employees can be sought under subpoena or summons issued by a Court or Tribunal or under a statutory Notice to Produce. The type of documents that can be sought under subpoena, summons or statutory notice to produce in respect of Australian Defence Force members include health records such as a member's medical assessments, psychological assessments and counselling interviews and records.

Subsection 138(2) of the Defence Force Discipline Act 1982 (Cth) allows the Registrar of Military Justice to issue a summons ordering production of documents held by the Department of Defence for the purposes of a proceeding before a service tribunal. Summonses under subsection 138(2) can be issued at the request of either a defending officer or a prosecutor in the particular proceeding.

However, no medical assessments, psychological assessments, or counselling interviews and records, were subpoenaed or seized by either civilian or military prosecutors or other legal authorities as part of the general court martial proceedings brought against Sergeant J and Lance Corporal D in relation to the 12 February 2009 Civilian Casualty Incident in Afghanistan.

(2) Consistent with the Privacy Act 1988, access to information from health records of Australian Defence Force members may also be given to Service police engaged in the investigation of a service offence under the Defence Force Discipline Act.

There is a Defence Instruction (General) which addresses the privacy of health information in Defence and, among other things, sets out the process for the Service Police to request access to health information of Defence members. This process includes criteria which are to be taken into account by an investigator in deciding to make request and a process to make the request. This process does not allow Service Police unlimited access to health information, such as psychological records, of members of the Defence Force. In effect the only information accessible by Service Police is information that serves a legitimate forensic purpose in respect of a particular Defence Force Discipline Act investigation.

During the investigation of possible service offences arising from 12 February 2009 Civilian Casualty Incident in Afghanistan, the Australian Defence Force Investigative Service (ADFIS) requested access to the psychological records of Sergeant J and Lance Corporal D in accordance with the guidance contained in the Defence Instruction. In requesting these records, ADFIS determined they were pertinent to the pursuit of an authorised Defence Force Discipline Act investigation and limited their request to documents concerning the deployment of these members to Afghanistan and to any subsequent treatment that could be related to their deployment. Relevant psychological records of both members were subsequently included in the ADFIS Brief of Evidence provided to military prosecutors.