17Expenditure may be approved for the costs of legal representation and other related costs in responding to a subpoena:

17 Expenditure may be approved for the costs of legal representation and other related costs in responding to a subpoena: (a) in relation to an NCCE employee—relating to their employment with the non‑corporate Commonwealth entity, or (b) in relation to a MOPS Act employee—relating to the performance (or non performance) of their duties assisting the Minister in performing ministerial duties. The approval is only to be given for an amount that is reasonable, having regard to the nature of the subpoena. 18 A decision to provide assistance is to be made subject to the condition that the Commonwealth is to be consulted in relation to disclosure or non‑disclosure of Commonwealth documents and information to ensure that an appropriate position can be taken.

Assistance to employees as plaintiffs Assistance to employees as plaintiffs

Assistance to employees as plaintiffs

19 Except in the case of actions for defamation, expenditure to assist an employee to institute proceedings in a matter arising from their employment may be approved where this is in the interests of the Commonwealth. For example, it may be appropriate to assist an employee to seek a restraining order against a person arising from alleged harassment in the workplace. 20 Expenditure is not to be approved to assist an employee to institute proceedings for defamation arising in the course of the performance of their duties (either for representation or the payment of legal costs). Similarly, assistance is not to be provided for any other action relating to alleged defamation, such as assistance to uphold a person’s reputation, legally challenge comments damaging to a person’s reputation, or in obtaining an apology (as distinct from a letter merely seeking to correct the record). The policy is the same even if the employee offers to pay to the Commonwealth any damages which they may receive. (Funding defamation proceedings could give rise to a public perception that the Government was seeking to prevent legitimate criticism.)

Who makes the decision to assist Who makes the decision to assist

Who makes the decision to assist

21 A decision whether to provide assistance to an employee for legal proceedings is normally a matter for the employing body. However, where the request for assistance is made by the accountable authority of a non‑corporate Commonwealth entity, the decision is to be made by the responsible Minister. If it is inappropriate for the Minister or accountable authority to make a decision on assistance because of their involvement in the proceedings, the request is to be referred to the Attorney‑General to enable a decision to be made on how the matter is to be handled. 21A A decision whether to provide assistance to an MOPS Act employee is to be made by the Special Minister of State after consultation with the Attorney‑General.