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Thursday, 30 October 2003
Page: 17406


Senator Brown asked the Minister representing the Attorney-General and the Minister representing the Minister for Veterans' Affairs, upon notice, on 4 September 2003:

Are there any instances or circumstances in which the Government has instructed solicitors acting on its behalf in matters relating to military compensation, to claim legal privilege and to withhold any medical reports generated at their request, which substantiate claimants' statements about injury or illness caused whilst in the service of Australia's armed services; if so, what is the Government's rationale for directing solicitors acting on its behalf to withhold information generated at the Government's own request favourable to the claimant serviceman or woman; if not, what action will the Government take to stop this practice which denies justice to Australia's servicemen and women.


Senator Vanstone (Minister for Immigration and Multicultural and Indigenous Affairs and Minister Assisting the Prime Minister for Reconciliation) —The Minister for Science has provided the following answer to the honourable senator's question:

My portfolio responsibilities include the defence of common law actions arising out of the British nuclear testing programme conducted in Australia in the 1950s and 1960s.

I understand that there have been approximately 80 such legal proceedings instituted against the Commonwealth by ex-servicemen going back to about 1988. Given the immensity of documentation involved, I am not prepared to commit the substantial departmental resources required to meet this request.

The previous Attorney-General's `Legal Services Directions', which Commonwealth agencies must comply with, require agencies to conduct litigation in accordance with legal principle and practice, which includes acting in the Commonwealth's financial interest to defend fully and firmly claims brought against the Commonwealth where a defence is properly available. I understand that there is no legal obligation for one litigant to provide a medico-legal report it has obtained to the other litigant, unless the report is to be used by it as evidence at the hearing of the case.

My Department has informed me that there is one current legal proceeding in which its solicitors (the Australian Government Solicitor) have obtained a medico-legal report about which no decision has yet been made as to whether or not it will be used as evidence should the matter ultimately proceed to trial. My Department has further informed me that one of its freedom of information decision-makers recently refused a request for access to this report under the Freedom of Information Act 1982 on the grounds of legal professional privilege.