Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017 Bills

I rise to speak to the Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017. In doing so, I will go back to a paragraph—I will just take a few parts out—from my first speech in this place. Having served in Defence for over two decades, I believe it is important that we recognise that:

Inextricably linked to defence is our ongoing responsibility to those who have served this nation.

… … …

I am conscious, however, that with sustained operational commitments the number of people requiring support is increasing, and this parliament has a duty to ensure that the funding for support services increases at a rate that is at least commensurate with the need.

… … …

We expected the loyalty of service men and women when they enlisted and if they deployed; they have a right to expect ours now they have returned and retired.

And so it has been a focus of mine, both when I was in the other place and since election to the Senate, to work on committees which deal with issues that support our veterans and ex-service members. There have been a number of reports. There have probably been about five reports that I have been involved with during my time here. There are a number of themes that are very consistent. One of them is focus. The legislation, the process and the people who are working within the Department of Veterans’ Affairs should be focused on veterans. It should seek to understand the veterans and their families and be empathetic to the things that have created the situation they find themselves in and to beneficially apply legislation to them.

There has been a consistent understanding—albeit there are some individual witnesses who have argued that individuals within DVA are not particularly empathetic. But there are many who have said, ‘Look, we recognise that the staff are applying the legislation that they have been given.’ In fact, in one recent inquiry last month, a witness said, ‘The staff are handcuffed to the rules that they have been given.’ So, there has been a call over many years now for us to look at ways where we can refine and improve the rule set to make it more focused on the veterans and more flexible so that it actually meets the needs of the veteran community, recognising that the unique nature of military service does not sit comfortably along some of the rule sets and procedures that we have put in place for looking after other Commonwealth public servants. Along with that also comes a long identified need to improve the tools that are available to the Department of Veterans’ Affairs, and, most importantly, amongst those tools is the issue of information technology.

In the day where even one of my uncles in his 90s does his banking and orders his groceries and things on his iPad, and certainly where my generation and my children’s generation live on their smartphones and tablets and other devices—we do banking, we register cars and we do all manner of things via mobile devices—it would shock many people to realise that the system that supports our veterans, ranging from the elderly and vulnerable widow of a veteran through to younger men and women who have families and who are seeking to re-engage in our community, is archaic. Much of it is paper based.

In fact, we have heard time and again in inquiries about the problems with the deep separation of functions within DVA. The fact that a paper file that is held on a veteran passes from state office to state office, depending on where a particular piece of work is done, means that not only is there a time delay from this particular file being passed around but there is also a danger of loss, something being misplaced or information that is submitted to one area not catching up with the file. There are a raft of reasons why the current secretary and minister are heavily committed to reinvesting in the Department of Veterans’ Affairs in the space of information technology and to bring it, to drag it, into the current age in terms of the tools that are available to the staff within the Department of Veterans’ Affairs to use. However, as the witness said earlier this month, if we are to free them from the handcuffs, if we are to give them these new tools, then we also need to give them the legislative basis, the permissions and the legal framework that they can use these tools within. So much of this discussion on this bill is around digital readiness, and I will address some of the concerns that have been raised, some of the issues that have come out of this bill.

The other part that I will touch on briefly is the issue of perception. Because of the flaws in the system, because of the numerous pieces of legislation, because of the people in some cases—I would not say all cases; in fact, I think the majority of staff within the Department of Veterans’ Affairs work diligently to seek the best outcome for veterans—because of all of these things there have been times where veterans have been disadvantaged, where veterans have been disadvantaged to the point that we see veteran suicide as a significant issue. That is something that the Senate Foreign Affairs, Defence and Trade References Committee is dealing with as we speak.

Again in the inquiry we had just last week, one of the witnesses identified the fact that perception is incredibly important. He identified that many people do not have the time to locate and read through the details of legislation or new rule sets or even the correct details of cases that have occurred, and so the perception of what has occurred influences the approach and the attitude and, in some cases, the mental wellbeing of veterans who do not feel supported. One of the things this bill looks to do is to provide an opportunity for the minister to go into the public space and to correct the record where there is a perception that is not accurate and that perhaps is being fed by an email that has started doing the rounds of the various networks. We had one example last week of how these things can start. In some evidence that was given there was a reference made to a decrease, or a perceived decrease, in the level of hearing aid available to veterans. This actually occurred some time ago, but as presented in the inquiry the casual observer, listener or reader could very easily assume that it was applicable to this bill. We actually talked about it during the inquiry. We clarified exactly where that evidence had come from and what it applied to, but it is an example of how very quickly people can get a perception that there is a particular outcome that is going to result.

The minister needs the opportunity to correct the record for the sake of the people who are going to be affected by that, for the sake of those who are going to feel less supported or who are going to feel more under pressure or who are going to feel fearful that support may be taken away from them. When those facts are not true, for their sakes and for their health, let alone for the government and reputations and all those other things—for the sake of those in the veterans’ community who are affected, it is important that the government has the legal framework and the opportunity to go out and correct that public record. There are a number of concerns that have been raised around that in terms of privacy, and so I will come to some of those points.

The bill itself, the Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017, is very much driven by DVA’s direction. The government have been very clear that we are seeking for them to reform their direction to one that is veterans’ centric, that improves the services for veterans and their families by not only re-equipping DVA in terms of the tools but also their processes and, in this case, the legislation that empowers and allows that to occur. Some of those business tools are things like the ICT reforms that will reduce claims processing times and automate and streamline existing processes. So the bill inserts provision in each of the VEA, MRCA and the new DRCA that would enable the secretary to authorise the use of computer programs to make decisions and determinations to exercise powers, or comply with obligations to do anything else relating to making decisions and determinations or exercising powers or complying with obligations under those acts and legislative instruments made under those acts.

Some concerns have been raised around that, and I will go to the positives first. We have heard Senator Kakoschke-Moore rightly identify that there are many benefits to that. I think Senator Ludlam also recognised there were many benefits to automating decision-making. The case that the DVA and the minister’s office have used in their briefings is one that is very straightforward: rather than having to do paperwork and wait weeks when processing transport claims, a claim can be submitted instead via a smartphone app and overnight the transaction is through and it is in the veteran’s bank account. That frees up resources within the department; it gets a better outcome for the veteran.

In items 1 and 3 of this particular amendment you might notice that it talks about amending the bill so:

… the Secretary will be enabled to arrange for computer programmes to be used to:

make decisions or determinations

exercise powers or comply with obligations, or

do anything else related to the above two … points …

It is important to remember that this is not just about a computer that says ‘yes’ or ‘no’. It is also about using IT to assemble the information that is required for a decision-maker. It is also about using IT to share information, for example between the Department of Defence and the Department of Veterans’ Affairs. It is also about automating the process of advising people when a decision is imminent, or has been made, so that that occurs quickly and without delay.

In terms of the concerns that have been raised—I am aware Senator Lambie has some amendments that she is looking to put through—to my mind there is a very simple procedural check that would provide a good balance here. If we do eventually go down the path of having computers use algorithms to look at data and make decisions, to my mind the very simple premise would be that if that decision is beneficial to the veteran then you let it run. But any time there is a decision that is not beneficial to the veteran then that automatically flags it for human intervention so that the opportunity is there to consider the facts that have been provided, to look at the context and to do all the normal things that should be done for the benefit of the veteran. That would also allow people to review why the algorithm did not get that right and how you perhaps need to shape information. Whether it is the MRCC or others that are looking to actually make the final determination, this bill gives them that right.

I think that very simple step would mean that where it is to the benefit of the veteran, and where the algorithm has said yes, the veteran gets the benefit immediately. But if it is to the detriment of the veteran, or if the algorithm says no, then it automatically flags a human intervention. That means we have the same protections in whatever percentage of cases that currently exist and hopefully, with these bills and others that are looking at the creation of DRCA and other things, it will actually get better. It will certainly advantage those who get a quick decision and it would not disadvantage those who got a decision that said no from the computer. My view is that it is a very simple way to optimise the use of the technology and continue to evolve the decision-making algorithms; but the safety net would always be that if the answer was no, in terms of the benefit to the veteran, then it would automatically go for human intervention and review.

The other concern people have raised is around the privacy. This comes back to the issue of perception: if people perceive that benefits are being taken away or that there is something about to happen that will impact on them and their families, it causes stress and—as we have seen in evidence given to us during the current veteran suicide inquiry—the last thing this population needs is more stress, particularly if that stress is unfounded. If they are being fed information which is not true, that is something that we need to work on, as a parliament and as a broader community, with the individual to make to sure that veterans have accurate information so that they are given every support and not placed in positions where their situation is made even worse.

In terms of the privacy safeguards, this is an area where there has been a deal of concern and questions have been raised. There has been quite a bit of interaction between the minister, DVA and the Senate to look at what the public interest disclosure provisions in this bill actually mean. The intent is that it will help the department address problems that they currently have with their inability to share information where there is a threat to life, health or welfare so that they can actually inform people appropriately. The bill passed the House with bipartisan support after some months of public exposure, the scrutiny of two Senate committees, a public hearing and submissions, as well as consultation across parties and with the ex-service community.

There has also been a detailed privacy impact assessment. The assessment concluded that the public interest disclosure provisions contain detailed and stringent controls over the exercise of the disclosure power that reflect the importance of taking necessary and proportional considerations into account before relying on the provisions to make a disclosure. The bill consequently has several safeguards. The safeguards in this legislation include that the minister must make the rules about how the power is to be exercised. These rules, importantly, will be a disallowable instrument, which means that not only does the minister bear in mind his focus on saying that we should be veteran-centric, working for the benefit of veterans, and that he must make the rules but the parliament—importantly from a perspective of both transparency and accountability, because the rules are a disallowable instrument—still gets to the view those, scrutinise them and either approve or disallow them.

The secretary of the department must act in accordance with the rules. It is important to recognise that the legislation actually makes provision that if the secretary of the Department of Veterans’ Affairs does not comply with the natural justice requirements before disclosing personal information then he or she will commit a criminal offence, punishable by a fine of 60 penalty units, which is currently over $10,000. Certainly, for a senior public servant to be convicted of a criminal offence is a significant power and disincentive for people to do the things that often they are accused of, such as working in an underhand manner. I do not believe they do, but that is often a perception. This is a very powerful legislative principle to stop that occurring.

The minister cannot delegate his or her power to make rules about how the power is to be exercised by the secretary of the department. The secretary cannot delegate the public interest disclosure power to anyone else. Before disclosing personal information about a person, the secretary must notify the person in writing about his or her intention to disclose the information, give that person a reasonable opportunity to make written comments on the proposed disclosure of the information and consider any written comments made by the person. Finally, after the public interest disclosure provisions and rules have been in operation for two years, there will be a review of the operation of those provisions with a report to be tabled in both houses of parliament. There are a number of significant checks and balances placed in the system. This is not something that can be used arbitrarily to the detriment of any particular veteran or person, but something where there is natural justice incorporated, there is transparency about what the rules are and there are legislative provisions to make sure that people apply them.

So, I do support the bill. I support it because after a number of inquiries in this place I have seen the consistent call for improving the legislative basis that constrains how people within the Department of Veterans’ Affairs work. I have seen the consistent calls for them to have improved IT services, and we need to provide them the legislative permission to use those services. As I said, I think the simple catch-all to protect the veteran is that where a decision is made—if we actually do end up using computers to make decisions—if it is to the benefit of the veteran it goes ahead, and if a decision is not to the benefit of the veteran it is automatically is flagged for a human intervention. I commend the bill to the Senate.