Ensuring compliance with the Transport Accident Act 1986 (TAA 1986) and related legislation, is integral to delivering a fair and balanced transport accident scheme.
The TAC is the responsible prosecutorial agency under the TAA 1986 for offences in relation to benefits obtained fraudulently, that are not payable or where misleading or false information is provided in connection with any application, return or other information provided under the TAA 1986.
As a Victorian public authority with investigative and enforcement powers, it is the responsibility of the TAC to investigate wrongful conduct in connection with the operation of the transport accident scheme and where appropriate:
- Issue a letter of caution
- prosecute under the criminal law
- refer appropriate matters to other relevant investigative, prosecutorial or professional regulatory bodies and/or
- seek restitution of amounts which ought not to have been paid or were overpaid
This policy describes:
- how investigations will be conducted by the TAC
- the principles adopted by the TAC with respect to decisions about investigation and prosecution
- the referral of matters involving potential recovery of amounts owed to the TAC, as a result of fraudulent or otherwise improper conduct by a person or persons
- how the TAC meets its statutory accountability and responsibility.
In this policy the definition of a 'Person' includes, but is not limited to, a TAC client, contractor, provider or supplier.
Offences and proceedings under the Transport Accident Act 1986
Part 8 of the Transport Accident Act outlines the provisions of the Act in respect of offences committed by a person which involves:
- fraudulently obtaining or attempting to obtain, any benefits
- providing false or misleading information
- obtaining benefits that are not payable
- failing to pay the full amount of the transport accident charge
- obstructing or hindering the administration of the TAA 1986.
A person who is prosecuted by a court and found guilty of an offence against a provision of TAA 1986 or related legislation, may amongst other sentencing outcomes:
- be required to refund money to the Commission and/or
- be subject to the payment of a fine and/or
- be subject to a sentence of imprisonment.
Where the TAC has reasonable grounds to consider that a person may have contravened a provision of the TAA 1986, or for the purposes of enforcing the Act, the TAC will use its powers under the TAA 1986 to investigate the matter in accordance with this policy and the TAC's statutory powers. Section 127A of the TAA 1986 gives the TAC extensive powers of investigation, including the power to:
- enter, inspect and examine premises
- require persons to give information and produce documents
- inspect, examine and make copies of documents
- exercise other powers necessary for purpose of determining whether there has been a contravention of the Act or generally of enforcing the provisions of the Act.
Where it appears that a person may not have cooperated fully with an investigation or may have obstructed an investigation, the TAC may also commence criminal proceedings under section 127B of the TAA 1986 which makes it an offence to obstruct or hinder, or refuse or fail to comply with a requirement given by a TAC Officer exercising powers under section 127A.
Following such an investigation, the TAC may:
- commence criminal proceedings under relevant provisions of the TAA 1986 or relevant criminal legislation
- issue a letter of caution to the person
- determine whether civil action should be taken to recover compensation amounts overpaid
- refer the matter to the Victorian Police, the Coroner, the Office of Public Prosecutions (OPP) or another body (including professional or trade regulatory bodies such as the Australian Health Practitioner Regulation Agency, the Nurses Board of Victoria and the Legal Services Board ); or
- take no further action.
Where a TAC investigation determines that there is sufficient evidence of an offence under the TAA 1986 or relevant criminal legislation by a person, criminal proceedings will be considered.
In determining whether such proceedings should be instituted, the TAC will consider the following criteria:
- Whether there is a reasonable prospect of securing a conviction, taking into account whether there is sufficient, admissible and reliable evidence.
- If so, whether the proceedings are in the public interest.
In determining whether the proceedings are in the public interest, the TAC will adopt the public interest factors set out in the Office of Public Prosecutions (OPP) Prosecution Policies and Guidelines.
The public interest factors which may arise for consideration include:
- The seriousness (or triviality) of the alleged offence.
- Any mitigating or aggravating circumstances.
- The youth, age, intelligence, physical health, mental health or special infirmity of the alleged offender, a victim or a witness.
- The alleged offender's antecedents and background.
- The staleness of the alleged offence.
- The degree of culpability of the alleged offence in connection with the offence.
- The obsolescence or obscurity of the law.
- Whether the proceedings would be perceived as counter productive.
- The availability and efficacy of any alternatives to prosecution.
- The prevalence of the alleged offence and the need for specific and general deterrence.
- Whether the consequences of any resulting conviction would be unduly harsh and oppressive.
- Whether the alleged offence is of considerable public concern.
- Any entitlement of the State, the TAC (as the victim of the alleged offence) or other person or body to criminal compensation, reparation or forfeiture if action is taken.
- The attitude of the TAC (as the victim of the alleged offence) to the proceedings.
- The likely length and expense of the proceedings.
- Whether the alleged offender is willing to cooperate in the investigation or prosecution of others (or the extent to which they have done so).
- The likely outcome in the event of a finding of guilty (having regard to the sentencing options available).
- Special circumstances that would prevent a fair trial from being conducted.
- Whether the alleged offence is triable only on indictment.
- The need to maintain public confidence in basic constitutional institutions (such as the courts).
- Whether a sentence has already been imposed on the alleged offender that adequately reflects the criminality of the alleged offence.
Where appropriate, the TAC will refer matters to the OPP for prosecution and may, in some circumstances, authorise the commencement of proceedings in consultation with the OPP.
Where there is a reasonable prospect of conviction in relation to a contravention of the TAA 1986 or relevant legislation by a person, but where it is not in the public interest for criminal proceedings to be taken, the TAC may issue a letter of caution to the person as an alternative to the institution of criminal proceedings.
The letter of caution will:
- detail the investigation findings
- identify the relevant contraventions in respect of which proceedings could have been brought
- state that, on the basis of the information and evidence then available, the TAC has concluded that it is not in the public interest to commence criminal proceedings
- seek reimbursement of the amount of monies allegedly owed by the person to the TAC. At this point the TAC may pursue the request for reimbursement as a civil recovery.
Where an investigation determines that there may be sufficient evidence to establish a right of recovery, the TAC will consider whether civil action should be taken to recover amounts overpaid by the TAC to the person.
In determining whether such action should be taken the TAC will consider amongst other matters, whether there is a reasonable prospect of obtaining recovery from the person having regard to the cost of the process and the capacity of the person to satisfy all or part of a judgment debt.
Should you wish to make a report of fraudulent behaviour or other breaches of the TAC legislation, in the first instance please contact the TAC's Forensics Group by emailing Fraud_Compliance@tac.vic.gov.au, or by calling 1800 332 556.