17 March 2010


Equal Justice For Troops has recently been made aware of a significant oversight in the Archives Act 1983 which allows for the public to access all records of a Defence Force veteran so long as the records are over 30 years old; including confidential medical, psychological and performance reports. Compounding the issue, the defence force member would not be informed that their records have been accessed and are unable to know who has accessed them.

The Defence Force Welfare Association DFWA (responsible for bringing the issue to the attention of Equal Justice For Troops) has contacted relevant authorities and requested amendments to the Archives Act 1983. This was done after the association received a complaint from a concerned member of the public who had requested a relatives service records from the National Archives of Australia (NAA) and was sent, among other records, confidential medical reports.

Under s.5 of the Archives Act 1983, the NAA is vested with making Commonwealth records available to the public after 30 years. however, the legislation includes a number of exemptions that prohibit the release of certain records, notably:

s.33.1 (d) Information or matter the disclosure of which under this Act would constitute a breach of confidence;

s.33.1 (g) Information or matter the disclosure of which under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person);

The problem that arises is that the legislation provides no clear definition for the terms "breach of confidence" or "personal affairs" and this ambiguity has led to the issue at hand. The implications of this are very concerning for both current and ex-serving members of the ADF. Contemporary Defence medical and psychological consultations are given in-confidence, as are many performance reports. Older records of the same kind, that may not have explicitly been given 'in-confidence', should no doubt be considered exempt from release as it would involve the unreasonable disclosure of the personal affairs of the member. If they are of the same nature as contemporary Defence in-confidence records then surely they should be given the same respect in terms of privacy. Even still, it is unclear whether the NAA would consider contemporary defence in-confidence records as exempt, given its stance regarding confidential personal medical records.

Most concerning is the public access to former defence personnel's psychological reports. In such consultations soldiers often speak of their fears, difficulties dealing with incidents whilst on deployment and occasionally dealing with post-traumatic stress or post-deployment stress disorder (PDSD). Allowing public access to these records is undoubtedly an unreasonable disclosure of a veteran's 'personal affairs' and a serious breach in the confidence a member has placed in the ADF. Unfortunately, due to the ambiguity of the legislation, the NAA does not seem to agree.

Whilst it would appear most current and ex-serving members feel quite strongly about protecting the privacy of their personal records, finding a suitable balance between veteran's privacy and the public's right to access Commonwealth archives is a more difficult issue. Should all records other than basic service details be regarded as 'personal affairs' and be prohibited from public access without the permission of the member concerned? Or should the exemption from access only extend to medical and psychological records and allow public access to confidential performance reports? Either way, it would be a vast improvement on the current open door policy, adopted by the NAA to all Defence personal records over 30 years of age.

The DFWA is still waiting for a response from the relevant authorities as to the rectification of this matter. Equal Justice For Troops will closely follow any developments in conjunction with the DFWA and will be ready to take further action to defend the privacy of veteran's personal records if the need arises.

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