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B09/1993 NO OBLIGATION TO PAY FOR INFORMATION REQUESTED UNDER SUB-SECTION 128(1) OF THE VEA OR SUB-SECTION 30(1) OF THE SWP&AA
DATE OF ISSUE: 5 February 1993
NO OBLIGATION TO PAY FOR INFORMATION REQUESTED UNDER SUB?SECTION 128(1) OF THE VEA OR SUB?SECTION 30(1) OF THE SWP&AA
The purpose of this instruction is to advise on whether DVA has to pay for information requested under s.128(1) VEA or s.30(1) SWP&AA. In summary, DVA does not have to pay.
2.Under s.128(1) VEA or s.30(1) SWP&AA the Secretary of DVA can require a person (including an employee of the Commonwealth or of a State) to provide such information as the Secretary requires or to produce such documents as are specified by the Secretary. To do so the Secretary must serve a notice in the proper form. From time to time, persons receiving such notices, request to be paid for the provision of such information or documents.
No requirement to pay
3.As s.128 VEA and s.30 SWP&AA do not provide for payment to be made for the provision of information or documents no payment is required.
What to do if a person who is required to provide information or documents insists on payment
4.Should a person insist on being paid to provide information or documents then it should be explained that:
i)s.128 VEA or s.30 SWP&AA (as relevant) does not provide for the payment of fees; and
ii)DVA has received advice from the Attorney-General's Department that DVA is not liable to pay for information or documents requested under a s.128 VEA or s.30 SWP&AA notice.
5.A person requesting payment may claim to be entitled to payment pursuant to s.51(31) of the Australian Constitution. Such a claim should be immediately referred to the Assistant Secretary (Planning and Management), Central Office.
Penalties for refusal to provide information or documents pursuant to receipt of a s.128(1) VEA or s.30(1) SWP&AA notice.
6.Should a person requiring payment continue to insist on payment despite being advised pursuant to paragraph 4 of this instruction then it should politely be drawn to that person's attention that there are penalties provided ($1,000 or imprisonment for six months or both) for refusal or failure to comply with a s.128(1) VEA or s.30(1) SWP&AA notice.
7.Should a person continue to insist on payment despite procedures outlined in paragraphs 4 and 6 being followed then the matter should be immediately referred to the Assistant Secretary (Planning and Management), Central Office.
8.There are penalties provided by s.128 VEA and s.30 SWP&AA for purported compliance with a notice under these sections involving knowingly furnishing false or misleading information. Should officers form the opinion that such an event has occurred then the matter should be immediately referred to the Assistant Secretary (Planning and Management), Central Office.
Liability to pay for information or documents
9.If DVA requests information or documents without the use of a s.128(1) VEA or s.30(1) SWP&AA notice then it is liable to pay any fees charged to furnish such information or documents. Before requesting information without a notice under s.128(1) VEA or s.30(1) SWP&AA, the officer concerned should ascertain whether such information will only be provided if payment is made. Secondly, that officer should ensure that the charge being sought is reasonable in the circumstances. Accordingly, officers who seek information without the use of a s.128(1) VEA or s.30(1) SWP&AA notice should first attempt to identify the cheapest likely source of required information.
10.If there are any enquiries about this instruction, they should be directed to Warwick Moloney (06-2896351) who is the contact officer on this matter.
Planning and Management Branch