C14/2005 Information Gathering: Use of Sections 128 and 54 - 54AA of the VEA

Purpose

The purpose of this Departmental Instruction is to confirm the wording and format requirements for formal notices, when requesting that information or documents be provided to DVA under sections 128, and sections 54 - 54AA of the Veterans' Entitlements Act 1986 (VEA).

Background

The need to review the current wording and format of information gathering notices under section 128 and sections 54 - 54AA follows the recent decision of a superannuation fund not to provide the requested information regarding a pensioner's income stream entitlements.

Existing documentation

Section 128 (Secretary may obtain information, etc) is a general provision which authorises information-gathering.  Unlike the other information-gathering sections (54 – 54AA), section 128 authorises the collection of information from third parties, such as employers, superannuation funds and landlords.

Legal opinion - Section 128

This issue was referred to the DVA Legal Services Group for advice on the required documentary standards, for correspondence to be regarded as a valid section 128 notice.

The LSG advice is that there is no provision in the VEA which requires a notice under section 128 to be given in a prescribed form.  However, it is reasonably clear from the wording of the section that a notice must, at the very least, comply with the following requirements:

(i)        it must be in writing;

2. It must be addressed to the person/organisation who is the intended recipient of the notice;
3. It must specify the information/documentation which is required;
4. It must identify the manner in which the information/documentation is to be provided (being the relevant Departmental contact details);
5. It must specify a clearly determinable time frame (not to be less than 14 days, with a minimum of 15 days being preferred) in which the information/documentation is to be delivered; and
6. It must be issued/signed by an authorised Delegate of the Secretary.

Suggested section 128 notice

A suggested section 128 notice has now been prepared, and is at Attachment A.

While the LSG has confirmed that section 128 does not require that notices be issued in a prescribed form, the use by State Offices of the standardised text in Attachment A, which complies with the above minimum requirements, may help to reduce uncertainty in this area.  The text in Attachment A also mentions other related considerations, including:

• a statement that the information is being sought for a lawful purpose under the VEA;
• a statement of the possibility of disclosure to other agencies;
• a statement of the possible penalties for non-compliance; and
• a reference to the section itself.

Limitations on the use of section 128

References to section 128 should not be included in any information-gathering correspondence directed to a third party (such as an employer, superannuation fund or similar) in the following circumstances –

• where the third party resides overseas.  The VEA does not apply to residents/nationals of overseas countries, and any request seeking information from a foreign national (individual or company) which is purportedly based on the authority in section 128 will be invalid.  In these circumstances a request for information should be made in general terms and be accompanied by a letter of consent from the pensioner;

• where the request is in respect of a Centrelink age pensioner.  Where DVA acts as an agent for the payment of age pension, the information-gathering letters should refer instead to the appropriate legislative authority, being section 192 of the Social Security (Administration) Act 1999; and

.

• where the recipient of the intended notice is a Commonwealth department/agency administering legislation which contains secrecy provisions.  Examples of such departments/agencies include Centrelink and the Australian Taxation Office.

Correspondence

Centrelink/ATO

See Stateline 055926E Notices Issued Pursuant to Section 128 of the Veterans' Entitlements Act 1986 for sample letters to request the release of protected information from Centrelink and the Australian Taxation Office.

VVCS information

Section 128 notices are not to be served on the Vietnam Veterans' Counselling Service, as the VVCS is not a separate legal entity to DVA.  Additionally, undertakings of confidentiality have been given to the veteran community, that information obtained and held by the VVCS will not be used for matters under the VEA unless the veteran concerned has specifically consented, in writing, to the use of that information.

Sections 54 – 54AA notices

Sections 54, 54A and 54AA are contained in Part IIIB of the Act (Provisions applicable to service pensions and income support supplement), and accordingly only apply where information is sought from recipients (or applicants) for these benefits.  In this respect these provisions differ to section 128, which has general application to all pension payments under the Act.  However, the provisions of sections 54A and 54AA are otherwise very similar to that of section 128, and notices under these sections must similarly comply with the requirements identified by LSG.

Section 54

Section 54 is a general enabling provision under which the Secretary can require a pensioner or claimant to inform the Department if either a specified event or change of circumstances occurs, or is likely to occur.  This section is generally quoted in correspondence to a pensioner in which they are notified of their obligation to inform the Department of real or expected changes to their personal circumstances that may affect their pension payments.  Examples of these changes include finding employment, selling a property, divorcing, or losing custody of a child.

One example of a section 54 notice is the You and Your Pension document which is forwarded periodically to pensioners.  This document includes a chapter which informs pensioners of their obligation to notify the Department of changed circumstances.

Section 54A

Section 54A requires a pensioner to give the Department particular information about a matter which may affect their service pension or income support supplement.  Unlike the general obligation contained in section 54, it applies where a specific response is sought from a pensioner.  As identified information is sought, section 54A requires that the person is to provide the requested information in accordance with a form approved by the Commission.

A common example of the use of section 54A is where a person is asked to provide details of their income and assets, by completing the specific income/assets questionnaire designed for this purpose.

The suggested wording for a section 54A notice is at Attachment B.  This attachment provides for a description of the identified information to be included, and makes reference to the attached form.

Section 54AA

Section 54AA is frequently quoted in circumstances where pensioners or claimants are asked to provide information other than by the completion of a form.  It applies where pensioners are asked to provide documents, other information, or to appear before an employee of the Department.  A common example is where information is sought on a pensioner's employment income, such as a request to produce pay slips to support a claim for service pension.

The suggested wording for a section 54AA notice is at Attachment C.

Standard letters

Standard letters which make reference to sections 54 – 54AA and section 128 were recently revised, to take account of the minimum documentary requirements as advised by the LSG.

Departmental Instruction B23/1991

Departmental Instruction B23/1991, Guidelines for Obtaining Information from Individuals and Organisations Including other Departments and Agencies, also provides guidance on the use of section 128.  This includes guidance on the purposes for which information is collected, disclosure rules, privacy considerations, and the collection of sensitive information.  DI B23/91 is still current and should be read in conjunction with this DI.

CLIK Chapter

Appropriate amendments will be made to Part 12, Chapter 2 of the CLIK Policy Library (Information Gathering Powers) to outline the minimum criteria, as listed above, which must be included in any request for information under sections 54 – 54AA and section 128 of the VEA.

Contact

The contact person is Brian Butler, Income Support Policy Section on 16110.