Why can't I serve a subpoena on Centrelink and the Australian Taxation Office?

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Carroll & O'Dea

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While subpoenas are a good tool to direct the production of documents, there are limits on the power of a subpoena.
Australia Litigation, Mediation & Arbitration
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Subpoenas can often be seen as a very intimidating concept. The average person will often hear this word thrown around in legal dramas followed by a very heated argument between the fictional lawyers.

A subpoena is not something to fear. Put simply, a subpoena is an order from the Court directing the recipient to either produce a document or thing they hold or come to the Court to give evidence. In some circumstances, it can be both of those things.

A part of claiming compensation for personal injury damages involves proving the loss you have suffered. In personal injury claims, the 'loss' someone has suffered due to an injury is usually proven through medical records, wage records, and statements.

Subpoenas are commonplace in personal injury claims. Often, a subpoena to produce documents are sent to places like doctor surgeries, hospitals, insurance companies, and past employers to obtain records that are needed to prove or disprove the loss an individual claims.

It can be difficult for an individual to independently remember each doctor they visited or each company they have worked for. Fortunately, much of this information is usually recorded by Medicare and the Australian Taxation Office ('ATO').

While subpoenas are a good tool to direct the production of documents, there are limits on the power of a subpoena.

The ability to send a subpoena to the ATO and Centrelink is one of those limits.

Australian Taxation Office

The Taxation Administration Act 1953 ('TA Act') contains within it secrecy provisions which protect it from the disclosure obligations of a subpoena.

Subsection 355-25(1) of Schedule 1 to the TAA makes it an offence for an officer from the ATO to disclose records that are considered to be 'protected information' to another entity (other than the entity the information is about), or to a court or a tribunal, unless a relevant exception applies.

The TA Act helpfully describes what is considered protected information in Subsection 355-30 of Schedule 1.

Protected information relates to the affairs of an entity, that was disclosed or obtained under or for the purposes of a taxation law, and that identifies or is reasonably capable of being used to identify the entity.

In a wide reading of this description, the tax records of an individual fall within the confines of the description of protected information.

The exception to the rule above is contained in section 355-75 of Schedule 1 to the TA Act. This exception allows the ATO to release records if it is necessary to do so for the purposes of carrying into effect the provisions of a taxation law. In most circumstances in personal injury litigation, proving personal injury damages does not fall into this exception.

As a result, officers of the ATO cannot be compelled by a subpoena.

Centrelink

Medicare and Centrelink fall under what is known as Services Australia.

Certain information held by both Medicare and Centrelink are protected under various secrecy laws for each department.

Sometimes when an individual is gathering evidence to prove loss pursuant to their personal injury claim, records from Centrelink may be helpful in proving this loss, for example:

  1. Centrelink has records of when an individual was incapacitated for work which may or may not affect their economic loss claim;
  2. Medicare may have a record of an ongoing injury, which is often considered in a personal injury damages claim.

Centrelink, like the ATO, has legislation that protects personal information. Specifically, Sections 204 and 207 of the Social Security (Administration) Act 1999 and Section 167 of the A New Tax System (Family Assistance) (Administration) Act 1999.

The legislation that is particularly relevant to personal injury claims is Sections 204 and 207 of the Social Security (Administration) Act 1999 which states it is an offence to release information to a Court, tribunal, authority or person which is considered an unauthorised making a record of, disclosure of or use of protected information.

In short, Centrelink is also exempt from releasing records in personal injury litigation.

Proving Loss in a Personal Injury Claim

Access to these records have long been a point of frustration for lawyers in personal injury litigation.

While a Court cannot compel the ATO or Centrelink to release records, an individual can consent to the release of records through a signed authority and subsequent service of those records to prove aspects of their claim.

A Court has also commented on the value records held by Centrelink and ATO have on an individual's claim for damages for personal injury in the matter of Tahana v Hines [2021] NSWSC 564. In this motion, the Court ordered the Claimant to provide the Defendant with an authority permitting access to his Centrelink records.

General comments were made as follows at [16] – [18]:

"It has occasionally been said by this and other Courts that a plaintiff who seeks substantial damages from a defendant based on a loss of income should be prepared to expose his or her financial affairs to the Court as part of the claim. However there are limits and I agree with the defendants that it would not be appropriate to make the orders sought unless there is a legitimate forensic purpose in requiring the plaintiff to authorise release of the information from the Department, which the defendants suggest there is. Plainly, an order shall not be made in circumstances in which the defendant is simply engaged in what is conventionally known as a fishing expedition."

In summary, while a Court or subpoena can compel the release of records from the ATO, due consideration should be given to the impact such records might have on a claim for damages.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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