Criteria for assistanceCriteria for assistance

Criteria for assistance

5 Expenditure should normally be approved to assist an employee who is a defendant in civil or criminal proceedings if: (a) the proceedings arose out of an incident that: (i) in relation to an NCCE employee—relates to their employment with the non‑corporate Commonwealth entity, or (ii) in relation to a MOPS Act employee ‑ relates to the performance (or non‑performance) of their duties assisting the Minister in performing ministerial duties, and (b) the employee acted reasonably and responsibly. 6 The criteria in paragraph 5 (b) do not preclude the provision of assistance under the Directions to an employee who has acted, or is alleged to have acted, negligently (ie failed to exercise the legal standard of ‘reasonable care’ owed in the circumstances). Rather, the criteria are intended to preclude the provision of assistance in circumstances where the Commonwealth is likely to seek contribution or indemnity from the employee if the Commonwealth were itself sued in relation to the same matter. A decision to seek contribution or indemnity will normally be appropriate only where the employee’s conduct involved serious or wilful misconduct or culpable negligence. 7 If it is not clear whether the employee has acted reasonably and responsibly, it may be appropriate to defer a decision on assistance until the conclusion of the proceedings, or to agree to fund the employee’s defence but to defer a decision on whether to fund any costs or damages payable to another party by the employee until after the facts are ascertained, for example, by a court. However, expenditure is not to be approved to assist an employee for proceedings arising out of a motor vehicle incident where the employee’s liability is insured or where the employing body considers that the employee’s liability should reasonably have been insured (in particular, where the employee has received an allowance that includes an insurance component).