5Expenditure should normally be approved to assist an employee who is a defendant in civil or criminal proceedings if:

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).

Basis for approving indemnification of e Basis for approving indemnification of employees against costs or damages

Basis for approving indemnification of employees against costs or damages

8 The indemnification of an employee against any costs or damages payable to another party by the employee (including as a result of agreeing to a reasonable settlement) in civil proceedings is only to be approved on condition that the employee has agreed that the employee’s defence will be controlled by the Commonwealth and that the employee will provide all assistance required by the Commonwealth in the conduct of the defence. 8A The indemnification of an employee against costs incurred in criminal proceedings against the employee and any penalty payable by the employee as a result of those criminal proceedings is not to be conditional upon that employee agreeing that the employee’s defence will be controlled by the Commonwealth. However, an indemnity may be expressed to be subject to the condition that it extends only to expenses to which the employing body gives approval. 9 Indemnification may be refused if an employee has failed to notify the employing body of the proceedings within a reasonable time of becoming aware of them and the delay may prejudice the Commonwealth’s position. 10 Payment of any amount by way of assistance may nevertheless be refused if assistance is not provided as required by paragraph 8 of this Appendix.