Page 2812 - Week 09 - Wednesday, 17 August 2005
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(2) that the Government has not received any request from individuals who were parties to that application for funding an appeal; and
(3) the long held principle under which the ACT government has provided financial support for those of its officers who have become involved in legal action by virtue of their employment.”.
I have spoken to the first two points in my amendment and indeed to the opposition’s motion. I think the issue that I will concentrate on before closing does go to the third of the points which I make in the amendment, that is, the long-held principle under which the ACT government, indeed all governments around Australia, have provided financial support for officers who have become involved in legal proceedings or legal action by virtue of their employment.
I think we are all aware of the essential principle and the importance of it. It is important not just for those employees who find themselves in that difficult position but also for governments, as employers, in the context, too, of the role of an employer in relation to employees and issues around vicarious responsibility and the responsibility of government for the actions of employees. That is why, traditionally, governments and employers have taken an interest in legal action involving their employees in relation to issues that arose through, or as an incident of, their employment.
These are time-honoured obligations. I think it is fair to say that they are consistent across all jurisdictions in Australia, including the commonwealth. Of course, they go to the relationship between employers and employees. It is expected that an employer would ordinarily provide legal support to an employee involved in legal action in the course of employment.
As I say, there are a number of reasons for that. Firstly, a failure by an employer to provide legal support to an employee may be a breach of the contractual relationship between them. An employee acting in the ordinary course of his or her employment in good faith will generally be indemnified in respect of liability arising from that employment. That is not always the case, but if the employee has acted reasonably in pursuance of their duty the employee may have a legitimate expectation that the employer will provide its support. That applies generally across the board in both the public and the private sectors.
I think it also needs to be noted that a failure by an employer to provide legal support to an employee may result, ultimately, in the employer meeting the cost of any resulting adverse outcome of any litigation through, as I said earlier, the principles of vicarious liability. Under the ordinary principles of vicarious liability, the territory, as an employer, will generally be liable in respect of the actions or omissions of its employees, unless there is a fraudulent, criminal or malicious nature to the conduct that is complained of. Pragmatically, it is sensible for an employer to ensure that there is legal support for employees to ensure that the legal position of both the employee and, of course, through the rules of vicarious liability or responsibility, the employer are at least protected or understood.
The ACT is in no different position from any other employer in relation to that. The territory represents and defends its employees just about every day. It is an incident of
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