Queensland Consolidated Acts

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PUBLIC SERVICE ACT 2008 - SECT 26C

Civil liability of State employee for engaging in conduct in official capacity

26C Civil liability of State employee for engaging in conduct in official capacity

(1) A State employee does not incur civil liability for engaging, or for the result of engaging, in conduct in an official capacity.
(2) If subsection (1) prevents liability attaching to a State employee, the liability attaches instead as follows—
(a) if paragraph (b) does not apply—to the State;
(b) if, at the time the State employee engaged in the conduct, the person did so as a member of a body corporate or the governing body of a body corporate, or as a person who was employed by, appointed by or a delegate of, a body corporate—the body corporate.
(3) If liability attaches to the State under subsection (2) (a) , the State may recover contribution from the State employee but only if the conduct was engaged in—
(a) other than in good faith; and
(b) with gross negligence.
(4) If liability attaches to a body corporate under subsection (2) (b) , the body corporate may recover contribution from the State employee but only if the conduct was engaged in—
(a) other than in good faith; and
(b) with gross negligence.
(5) In a proceeding under subsection (3) or (4) to recover contribution, the amount of contribution recoverable is the amount found by the court to be just and equitable in the circumstances.
(6) In this section—

"civil liability" , of a State employee for engaging, or for the result of engaging, in conduct in an official capacity, means liability of any type for the payment of an amount by the State employee because of—
(a) a claim based in tort, contract or another form of action in relation to the conduct or result, including, for example, breach of statutory duty or defamation and, for a fatal injury, includes a claim for the deceased’s dependants or estate; or
(b) a complaint made under a law that provides a person may complain about the conduct or result to an entity established under the law, other than a complaint to start criminal proceedings, including, for example, a complaint under the Justices Act 1886 ; or
(c) an order of a court to pay costs relating to a proceeding for an offence against a law in relation to the conduct or result, unless the proceeding was for an offence by the State employee.
Examples of types of liability—
• a liability because of an agreement or an order under the Anti-Discrimination Act 1991 or the Australian Human Rights Commission Act 1986 (Cwlth) requiring payment of an amount to a complainant (however described) under the Act
• a liability because of an obligation under an agreement to settle a proceeding, or an order of a court or tribunal, to do something that involves paying an amount, including an obligation to rectify damage to a building or to publish an apology in a newspaper

"conduct" means an act or an omission to perform an act.

"engage in conduct in an official capacity" means engage in conduct as part of, or otherwise in connection with, a person’s role as a State employee, including, for example, engaging in conduct under or purportedly under an Act.
Example of a State employee engaging in conduct in an official capacity—
A State employee makes a decision in relation to an application for a licence.

"State employee" see section 26B (4) .



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