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Legislative Assembly for the ACT: 2002 Week 14 Hansard (11 December) . . Page.. 4241..


MR STANHOPE: I thank Mrs Cross for the question. I can give you my understanding in relation to some of these issues but I will have to take the detail on notice, and I am happy to do that.

This is a vexed question, particularly as it affects politicians and as it affects public servants. In relation to potential legal action instituted against politicians, certainly against ministers-and more often than not or almost always it involves a minister who would be named as the defendant-the prevailing view of the practice in this jurisdiction, which I think matches the practice in other jurisdictions, is that if action is instituted against a person in that person's capacity as a minister, the general or broad situation is that it is appropriate for the territory to not so much indemnify but certainly meet the reasonable legal costs for that minister in that minister's or person's defence.

If a minister does something, acts or is confronted with a legal action as a result of some alleged act or omission and that act or omission is alleged to relate to the performance of that person's duties, then the principle is that it is only reasonable that that person should receive legal support.

That principle applies, as I understand it, to public officials-in other words, the public servants and others who might also be caught up in legal matters as a result of an alleged act or omission which it is alleged they committed or omitted to do pursuant to their duties. In those circumstances, the territory not so much indemnifies but it does meet the reasonable legal costs of that person. So, to that extent, they are indemnified as to their costs.

That is the position as I understand it. I would prefer, for the sake of completeness, to take advice from the department on whether or not there is a formal positional protocol in relation to that. I believe we, as a government, certainly have guidelines in relation to action against members of the Assembly. As I say, it has always been a difficult issue.

From time to time politicians who are not members of the executive are subject to legal action and more often than not it is in circumstances where they are being sued for defamation. Many politicians in that circumstance think, "Look, I was just doing my job as a politician. I didn't really mean to defame anybody. I was just trying to be open and honest,"and this writ comes out of the blue. The position in relation to that, of course, is that it is not part of our duties as politicians to go around defaming people.

I think the position that has generally been taken by governments around Australia is that it is not reasonable to ask the taxpayer to fund a legal defence in circumstances where it cannot be said that the action relates to the performance of duty. But there may be circumstances where a person should perhaps be indemnified in those cases. So it is not simple; it is not cut and dried. But they are the general principles, as I understand them. I am more than happy to get the details of all the rules, the guidelines and conventions that apply.

MRS CROSS: Mr Speaker, I ask a supplementary question. I thank the minister for his answer. Minister, without trespassing into the realm of a hypothetical question, can you please inform the Assembly whether a defined list of conduct exists, such as violent behaviour or drunkenness, that would remove a public servant's or statutory office holder's indemnity when their conduct exposes the territory to a civil liability?


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