1.4.4 Liability of Decision Makers
Decisions subject to a right of review under the Act
A person affected by a decision of an officer under FA law may apply for a review of the decision. FaHCSIA, DEEWR, Centrelink, Medicare Australia or the ATO should not accept liability if an incorrect decision has been made under FA law when there is a right of review available to the person.
Liability when giving advice
Liability will generally not arise if the reason for the advice being incorrect was that the applicant/recipient had provided incorrect information and there was no reason for the staff member to query the accuracy of that information.
No liability will arise if the advice was incorrect because the officer reached a view of the law that was reasonable.
However, the officer may be negligent if they:
- failed to check the relevant law, or
- carelessly misread a clear statement of the law.
Avoiding liability when giving advice
To ensure reasonable care is taken when giving advice, staff should do the following:
- ensure that they obtain and understand all relevant facts,
- ensure that the relevant law is identified and understood,
- apply the law to the facts to give advice that is easy to understand and accurate. The staff member should ensure that they understand why the advice is required and tailor the advice to the applicant's/recipient's individual needs,
- when the staff member does not know the answer to the question, they should inform the applicant/recipient that they will contact them after obtaining the relevant information,
- when there are still doubts about the reliability of the information or the authority of the staff member to provide advice, these should be made known to the applicant/recipient,
- in some circumstances, suggest to applicants/recipients that they should seek independent advice from suitably qualified people,
- ensure the applicant/recipient understands when the advice or information given is of an interim or conditional nature,
- ensure the applicant/recipient is advised that their question is ultimately for the courts to determine and that they should not rely on FAO advice if information or advice is sought on a question of legal interpretation. Where advice is sought on this basis, the applicant/recipient should be advised to seek an independent opinion on the law and its statutory interpretation, and
- in some circumstances, indicate that while all care is taken in providing the information or advice, no responsibility is accepted for any loss incurred as a result.
Where FAO is the authoritative source
Disclaimers of the kind recommended above are not appropriate if the FAO is the only authoritative source of information or advice on a matter and it is reasonable for the FAO to provide it.
The Attorney-General's Department has advised that liability may arise if advice is issued by a call centre. The FAO actively encourages applicants/recipients to use call centres as the first point of contact. Applicants/recipients are entitled to assume that if unconditional advice is provided by a FAO call centre, they can rely on that advice without taking further action.
Call centre staff must ensure that advice given is correct and, if in doubt, that the applicant/recipient is advised of this doubt and given the option to have the matter referred to an area that can answer the applicant's/recipient's query.
Act reference: FA(Admin)Act section 104 Decisions that may be reviewed by the Secretary on own initiative
Policy reference: FA Guide Part 6 Review & Reconciliaton, 1.4.3 Duty of Care
Last reviewed: 1 December 2008