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Australia – Civil Immunity For Queensland Public Servants And Other Employees When Doing Their Jobs.

19 February, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Labour & Employment

 

Public Service and Other Legislation (Civil Liability) Amendment Bill 2013

 
WHAT YOU NEED TO KNOW

 

  • Legislation passed in the Queensland Parliament on 12 February 2014 will provide greater protection for public sector employees, police officers and other persons from civil liability for carrying out their official duties.
  • Civil liability will be transferred to the State, giving claimants a right of action against the State rather than an individual employee who has engaged in the conduct giving rise to a claim.
  • The State will be able to seek financial contributions from State employees who have engaged in conduct other than in good faith and with gross negligence.
  • The Bill is specific to Queensland and is not intended as complementary or uniform legislation. South Australia is the only other jurisdiction with a comparable broad legislative immunity for its public service.

 

New legislation passed by the Queensland Parliament on 12 February 2014 will provide Queensland public servants (such as teachers, doctors and nurses), Queensland police officers and some other State employees enhanced protection from civil liability arising from the performance of their jobs.

 
The Public Service and Other Legislation (Civil Liability) Amendment Bill 2013 (Qld) (the Bill) amends two pieces of legislation – the Public Service Act 2008 (Qld) (PSA) and the Police Service Administration Act 1990 (Qld) (PSAA).

 
Policy Objectives

 
The policy objectives of the Bill are to assist State and QPS employees to perform their roles, make decisions independently and to innovate and improve service delivery without the concern of being sued and the accompanying financial risk.

 
Currently there are a number of different policies and legislative provisions that provide varying levels of indemnity and immunity for public officials. The reforms contained in the Bill will reduce the number, complexity and administrative burden of the existing indemnity and immunity regimes and will provide public sector employees with greater certainty that the State will protect them from civil liability incurred in carrying out their official duties.

 
South Australia is the only other jurisdiction to have passed comparable legislation to provide a broad legislative immunity for its public service.

 
New Provisions

 
The Bill inserts new provisions into the PSA and the PSAA that:

 

 

  • provide greater protection for State employees from civil liability for engaging, or for the result of engaging, in conduct in an official capacity;
  • preserve the rights of potential claimants by transferring civil liability of State employees to the State (or, where the employee is a member or employee of a body corporate, to the body corporate); and
  • allow the State to recover financial contributions from State employees who have engaged in conduct other than in good faith and with gross negligence.

 

Who Is Protected?

 
The new protections under the PSA extend, not only to public service employees, but to a range of other State employees including ministerial staff members, associates to Supreme Court judges, District Court judges and commissioners under the Industrial Relations Act 1990, persons who are not public servants but who are members or employees of government entities that represent the State and any other persons prescribed by regulation as State employees.

 
Notably, the protections do not extend to persons who are employed in or appointed by government owned corporations and any other persons prescribed by regulation as persons who are not State employees, including persons to whom the protections would otherwise apply.

 
The civil liability immunity provisions under the PSAA extend to police officers, staff members, recruits and volunteers.

 
The new protections in both Acts also apply to persons who were employed in one of the categories mentioned in the legislation at the time the persons engaged in the conduct in an official capacity.

 
Civil Liability

 
The definition of “civil liability” in the Bill extends to an agreement or order to pay an amount, such as by way of compensation or financial settlement, and liability to do something that involves paying an amount, including an obligation to rectify damage to a building or to publish an apology in a newspaper.

 
The immunity is broad enough to cover complaints to bodies such as the Anti-Discrimination Commission of Queensland and the Health Quality Complaints Commission, as well as defamation proceedings.

 
The Explanatory Notes state, however, that the immunity will not “preclude an employee being named in proceedings or prevent a court or tribunal making orders or issuing injunctions about specific conduct by employees, such as orders to cease contraventions of an Act”.

 
Recovery From Negligent Employees

 
The ability of the State to recover financial contributions from State employees, where they have acted otherwise than in good faith and with gross negligence, is intended to strike an appropriate balance between protecting employees from civil liability and ensuring they remain responsible and accountable for their actions.

 
The dual requirement of acting otherwise than in good faith and with gross negligence will greatly limit the circumstances in which the State will be able to seek financial contributions from employees.

 
It is also noted that the provisions to be inserted into the PSAA do not allow for recovery against volunteers, reflecting the nature of their involvement with the police service and consistent with the current regime under the PSAA.

 
When The Enhanced Protections Will Apply

 
The new provisions will apply prospectively, and therefore will not apply to events which have occurred prior to the commencement of the new provisions. Subject to any existing law, whether the State grants indemnity to a public servant for earlier conduct will be a decision for the State.

 
However, protections available to certain officials under provisions of the PSA and PSAA that are to be repealed by the Bill will still be available to those officials for engaging in official conduct prior to the commencement of the new provisions.

 
Furthermore, if official conduct engaged in prior to the commencement of the new provisions forms part of a course of conduct that occurs after the commencement of the new provisions, the enhanced protection from civil liability will apply to all the conduct forming the course of conduct.

 
Where an immunity provision under the amended PSA or PSAA will afford an employee a higher level of protection than under an alternative immunity provision in another piece of legislation, the PSA or PSAA provision will prevail.

 

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Vince Rogers, Partner, Ashurst
vince.rogers@ashurst.com

 
Nerida Cooley, Ashurst
nerida.cooley@ashurst.com

 
Ffion Whaley, Ashurst
ffion.whaley@ashurst.com

 

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