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. DSS, the Department of Education and Training, 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 individual 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 needs of the individual,
  • when the staff member does not know the answer to the question, they should inform the individual 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 individual,
  • in some circumstances, suggest to individuals that they should seek independent advice from suitably qualified people,
  • ensure the individual understands when the advice or information given is of an interim or conditional nature,
  • ensure the individual is advised that their question is ultimately for the courts to determine and that they should not rely on Centrelink advice if information or advice is sought on a question of legal interpretation. Where advice is sought on this basis, the individual 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 Centrelink is the authoritative source

Disclaimers of the kind recommended above are not appropriate if Centrelink is the only authoritative source of information or advice on a matter and it is reasonable for Centrelink to provide it.

Call centres

The Attorney-General's Department has advised that liability may arise if advice is issued by a call centre. Centrelink actively encourages individuals to use call centres as the first point of contact. Individuals are entitled to assume that if unconditional advice is provided by a Centrelink 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 individual is advised of this doubt and given the option to have the matter referred to an area that can answer the individual'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 & Reconciliation, 1.4.3 Duty of Care

Last reviewed: 20 September 2016