External

Military Compensation Scheme

Safety, Rehabilitation and Compensation Act 1988 (SRC Act)

SUBJECT – MCRS INTERACTION WITH CENTRELINK AND WITH THE DEFENCE LEGAL SERVICE AND ITS REPRESENTATIVES IN RELATION TO COMMON LAW DAMAGES ACTIONS AGAINST THE COMMONWEALTH (DEPARTMENT OF DEFENCE).

  1. PURPOSE
    1. The purpose of this MCRI is to advise MCRS staff regarding the manner in which requests for information received from Centrelink and from the Defence Legal Service (DLS) or its representatives in relation to common law damages actions against the Commonwealth (Department of Defence) in relation to MCRS claimants are to be handled.
  2. CENTRELINK
    1. There has in the past been some confusion in relation to:

  •     what information the MCRS can provide to Centrelink regarding MCRS clients; and
  •     what Centrelink notices are appropriate.

  1. What guidelines should the Delegate follow?

2.2.1.     Any request for information regarding a MCRS client which might be received from Centrelink must be in writing.  It is sufficient if this information is faxed to the MCRS,

2.2.2.     The notice from Centrelink must be addressed to an individual MCRS officer (by name) or to an individual position in MCRS which can be identified (e.g., Claims Manager A to K),

2.2.3.     The notice from Centrelink must include the section of their legislation under which the request is made, and

2.2.4.     The Delegate who handles the Centrelink request for information must put an appropriate comment on Defcare which details the information which has been provided to Centrelink as a result of the notice issued by Centrelink staff.

  1. It should be noted that Centrelink must provide a “Notice of Completion” or a “Notice of Charge Rendered” once the information request has been completed.  The Centrelink request for information remains current until a completion notice or a notice of charge rendered is received.
  2. It is also important to note that Delegates must not give information regarding MCRS Clients to Centrelink over the telephone since to do so would constitute a serious breach of the Privacy Act 1988.
  3. What information should the Delegate provide to Centrelink?

2.5.1.             Centrelink is able to recover benefits it has paid to a person from SRC Act incapacity payments and lump sum redemptions of incapacity, so MCRS Delegates are able to release details of any such payments which might have been made in individual cases,

2.5.2.             Although Centrelink cannot recover benefits from a SRC Act permanent impairment (PI) payment which has not yet been paid to the claimant, Centrelink may adjust a claimant's benefits to take account of any PI lump sum compensation received.  Delegates are therefore able to provide Centrelink with details of PI payments.

PLEASE NOTE – A garnishee notice given by Centrelink under section 1123 of the Social Security Act 1991 gives Centrelink the power to recover their funds from PI payments.  The MCRS is not compelled to advise Centrelink of any such payment in the same way it is compelled to advise Centrelink of incapacity or lump sum redemption payments if a preliminary notice has been issued by Centrelink under section 1174 of the Social Security Act 1991.

  1. DEFENCE LEGAL SERVICE AND ITS REPRESENTATIVES
    1. An increasing number of requests for information/documents regarding MCRS clients' claims for compensation under the SRC Act is being received by the National Office of the MCRS.  In August 2001, when the original MCRI 7 was issued, most requests were received directly from DLS at the Department of Defence's Russell Office complex in Canberra.  However, more recently, MCRS National Office and the Legal Services Branch of the Department of Veterans' Affairs National Office in Canberra has been approached by various offices of the Australian Government Solicitor (AGS) and, in some instances, by private legal firms which are engaged by DLS to represent the Commonwealth in relation to common law damages actions (against the Commonwealth).
    2. The information/documents are required by DLS and its representatives to assist in the conduct of the Commonwealth's defence of common law damages actions commenced by, or on behalf of, members and former members of the Australian Defence Force and, most often, the Royal Australian Navy.  While the claims for damages are most commonly in relation to the collision of HMAS Voyager and HMAS Melbourne in 1964, the MCRS can probably expect an increasing number of enquiries in relation to the similar collision of HMAS Melbourne and the USS Frank E Evans in 1969 and other naval incidents such as the fire on board HMAS Westralia in 1998.  The claims for damages are usually the subject of legal proceedings before the Courts in NSW and Victoria.
    3. National Office's practice to date has been to search Defcare records to try to identify whether the individual who has claimed common law damages has also lodged a claim for compensation benefits under the SRC Act.  If Defcare indicated that a SRC Act compensation claim had been lodged, DLS, the AGS or the private legal firm was advised which MCRS office is dealing with the claim and appropriate contact details were provided.  If Defcare records did not confirm that a SRC Act compensation claim had been lodged, advice was provided accordingly with an undertaking that, if it became apparent later that a compensation claim had in fact been lodged, MCRS staff would conduct a search of any old card records that may be available in MCRS State/Territory offices.
    4. Some MCRS State/Territory office staff have expressed concerns regarding privacy when they are approached for details of compensation claims made with the MCRS.  Similar concerns were raised in National Office as to whether it is appropriate to provide information and documents from MCRS files to DLS or to its representatives in relation to common law damages actions. 
    5. The Commonwealth (and the Department of Defence) maintains that it is properly entitled to MCRS information and documents in order to defend any common law action against the Commonwealth arising from the claimant's ADF service.  Specifically, the Commonwealth (and the Department of Defence as the member's employing agency) relies upon Information Privacy Principle (IPP) 11.1(e) as justification for release of relevant information and documents held by the MCRS.  IPP 11.1(e) relates to access to information and documents in order to “protect the public revenue” – see the Privacy Commissioner's guidelines.  MCRS National Office and the Privacy Section of DVA's National Office in Canberra considers that there is justification for release of information and documents from MCRS files where IPP 11.1(e) is relevant.
    6. When such requests for information and documents are received from DLS, AGS or from private legal firms which may have been engaged to represent the Commonwealth, officers of the MCRS must comply with the requests and provide the information and/or documents requested, providing that the request includes an explanation as to why disclosure of the information/documents is justifiable having regard to IPP 11.1(e).  For example, the explanation should demonstrate the way in which disclosure of the information would protect the public revenue.
    7. If it is considered appropriate to release information in accordance with IPP 11.1(e), it is imperitive to ensure that details of the information and/or documents which are released are recorded on the paper file and also on Defcare records – IPP 11.2 refers.  The note MUST say something to the effect that; “the personal information in this record/these records has been disclosed relying on exception 11.1(e) of the Information Privacy Principles”, as well as when, by whom, to whom and for what purpose the disclosure was made.  An appropriate note should also be made in Defcare and printed for the paper file.
    8. From the date of this MCRI, staff in the MCRS National Office will continue to search Defcare records in those matters in which information/documents are requested by DLS or its representatives.  If a Defcare record is found, the request will be faxed to the relevant MCRS State/Territory office Manager/Assistant Manager/Team Leader with advice as to whether it is considered appropriate to release the requested information/documents.  It will then be the responsibility of the MCRS State/Territory office Manager (or, where appropriate, the Assistant Manager or Team Leader) to ensure that:

  •     the relevant file(s) is/are obtained,
  •     the requested information is gathered and/or that the requested documents are copied,
  •     appropriate notation is included on the file and on Defcare regarding the disclosure
    (see paragraph 3.7 above), and
  •     the relevant information/documents is/are provided to the requesting office or solicitor quickly and within any indicated timeframe if at all possible.

  1. Finally, there have been a number of complaints regarding a lack of action by MCRS staff in some cases where a request for information or documents has been made.  MCRS Managers/Assistant Managers/Team Leaders must ensure that appropriate priority is afforded any such requests.  This is particularly so bearing in mind that, in some cases, the time allowed for provision of information and/or documents may be quite limited.  In some instances, it may not be possible to provide the requested information/documents within the requested timeframe.  In that event, the MCRS Manager/Assistant Manager/Team Leader must ensure that advice is provided to the requesting office or solicitor regarding the reason(s) for the delay.  This should allow a request for an extension of time in which to present documents to the Court to be filed where necessary.

  1. ACTION REQUIRED
    1. Please remove the MCRI 7 which was issued in August 2001 and replace it with this MCRI.

  1. ENQUIRIES
    1. Any questions regarding this MCRI should be directed to John M Vidler on (02) 6289 4851.  If he is unable to answer a question immediately, he will obtain the required information and get back to the person making the enquiry as soon as possible.

Mark Travers

Director

Policy and Procedures Section

MCRS National Office – Canberra

       October 2002