Civil liability transferred with the passing of the Public Service and Other Legislation (Civil Liability) Amendment Act 2013

On 12 February 2014, the Queensland Parliament passed the Public Service and Other Legislation (Civil Liability) Amendment Act 2013. The Act amends the Public Service Act 2008 (PSA) and the Police Service Administration Act 1990 (PSAA). The amendments took effect on 31 March 2014.

Effect of the Public Service and Other Legislation (Civil Liability) Amendment Act 2013

Generally, the amendments transfer the civil liability that would ordinarily arise from the actions of State employees (including members of the Queensland Police Service) in the course of their employment from the individual employee to the State. Where the person is a member or employee of a State ‘body corporate’, the liability transfers to the body corporate (PSA s. 26C(1) and (2); PSAA s. 10.5(2) and (3)).

The civil liability covered includes liability arising from claims in tort, contract, breach of statutory duty and defamation, claims for fatal injury and complaints under anti-discrimination or human rights legislation (PSA s. 26C(6); PSAA  s. 10.5(6)).

However, where liability has transferred to the State or a State body corporate, it may bring proceedings against the employee to recover a contribution where the State employee has acted other than in ‘good faith’ and with ‘gross negligence’ (PSA s. 26C(4); PSAA s. 10.5(4)).

Meaning of ‘good faith’ and ‘gross negligence’

Generally, in legislation ‘good faith’ refers to personal honesty and the absence of malice. In the context of statutory indemnities, the term ‘negligence’ is usually equated with ‘carelessness’ and does not import the elements of the common law tort of negligence. It follows that ‘gross negligence’ is equivalent to ‘gross carelessness’, where ‘gross’ is given its ordinary meaning. The ordinary meaning indicates flagrant or exceptionally culpable conduct or a high degree of careless conduct.

New indemnity guideline

The effect of the amendments is that, generally, State employees will no longer need indemnity or legal assistance in respect of civil liability. However, there will still be some circumstances in which State employees will need indemnity and legal assistance. Accordingly, a new Queensland Government Indemnity Guideline has been developed and is available at www.psc.qld.gov.au/includes/assets/legal-protection-indemnity-guideline.pdf.

Nature of indemnity

An ‘indemnity’ under the new guideline will consist of any combination of:

• an undertaking on the part of the State to pay any damages or costs awarded against a State employee or agreed to under a negotiated settlement of a proceeding
• the payment of reasonable legal costs incurred by a State employee before an indemnity is in place
• the provision of legal representation and advice at State expense.

Importantly, an indemnity will not be available where the State has commenced proceedings against the relevant State employee.

Civil proceedings

Despite the amendments, plaintiffs or claimants could still bring civil proceedings against a State employee. In that case, the State may still grant an indemnity or legal assistance to defend the proceeding.

Legal assistance also will be available where criminal charges have been brought against the State employee. The new guideline sets out particular requirements for criminal proceedings.

Inquiries and investigations

Legal assistance also will be available for external investigations or inquiries by:

• an entity established or appointed under Queensland legislation, including a commission of inquiry
• a committee of any state, territory or Commonwealth Parliament
• an investigation by a coroner for any state or territory, including an inquest
• any other state, Commonwealth or territory body with investigatory or inquiry powers
• a police service, professional body or other entity responsible for investigating offences by or complaints against a public officer.

Legal assistance is not available for internal departmental investigations or inquiries. For example, matters referred to a department by the Crime and Misconduct Commission or a matter arising from a complaint regarding human resources.

Process of granting indemnity

Each department or unit of public administration will put in place procedures for:

• how a State employee is to notify their employer of any proceeding that requires an indemnity
• the signing of an acceptable undertaking by the State employee (a pro forma is attached to the new guideline)
• how the State will provide Indemnity to the State employee.

There will be no ‘application’ and decision-making process as such.

However, where the indemnity relates to criminal proceedings, written approval for the indemnity will be required from the Director-General of the Department of the Premier and Cabinet.

Importantly, the State will retain the right to withdraw its indemnity (and/or seek reimbursement of the costs of the indemnity) where the State employee has not acted in good faith and without gross negligence.

Further, the costs of an indemnity will not be met by the State (where the indemnity relates to a criminal charge) if the State employee is found guilty in a criminal proceeding or found to have engaged in conduct that would warrant their dismissal. In such circumstances, the State will seek a reimbursement of any legal costs or damages awarded.

Transitional arrangements

Applications for indemnity or legal assistance made prior to 31 March 2014 under the previous indemnity guideline will be processed and completed under the previous guideline. The indemnity provided in such cases will be given and administered under the previous guideline.

The new guideline applies to proceedings for which indemnity is required from 31 March 2014.

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}