1.3.5 Liability of Decision Makers

Decisions subject to a right of review under the Act

A person affected by a decision of an officer under the Social Security Act may apply for a review of the decision. Liability should not be accepted if an incorrect decision has been made under the Act and there is a right of review available to the person.

Explanation: The Attorney-General's Department has previously advised that no liability arises under the former Finance Direction 21/3 if a negligent decision is made that is subject to a right of review under the Social Security Act. Dennis Rose QC, then Solicitor-General, advised that the existence of the statutory review provisions clearly implies that there is no duty of care in relation to negligent decisions. Mr Rose stated that it is not even necessary to rely on the persuasive authority of court cases such as the English case of Jones v Department of Employment to support this position. This advice extends to Regulation 9 of the FMAA.

Liability when giving advice

Liability will generally NOT arise if the reason for the advice being incorrect was that the customer 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.

Explanation: The rationale is that even judges can disagree on the construction of a statute.

However, the officer will have been 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 issuing 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 facts to the law 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 customer's individual needs.
• When the staff member does not know the answer to the question, they should inform the customer 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 customer.
• In some circumstances, suggest to customers that they should seek independent advice from suitably qualified people.
• Ensure the customer understands the interim or conditional nature of the information or advice given in some instances (see example 1).
• Ensure the customer is advised that their question is ultimately for the courts to determine and that they should NOT rely on advice if information or advice is sought on a question of legal interpretation (if advice is sought on this basis, the customer should be advised to seek an independent opinion on the law and its statutory interpretation).
• 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 (see explanation).

Example 1: If full consideration of a case is required before coming to a conclusion.

Explanation: Disclaimers of this kind are NOT appropriate if the department or authority is the only authoritative source of information or advice on a matter and it is reasonable for the department or authority to provide it.

Policy reference: SS Guide 1.3.4.10 Duty of Care, 1.3.4.20 Duty of Care when giving Advice or Information, 1.3.4.30 Duty to Invite Claims or Volunteer Information

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Last reviewed: 2 January 2013