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 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:
To ensure reasonable care is taken when issuing advice, staff should do the following:
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.
Last reviewed: 2 January 2013