A correspondent writes:

I have a question that on face value seemed quite simple and would be able to be solved with a common sense policy, but as the matter has been discussed in more detail, it has seemed to become clouded.

I manage a Tasmanian unit within a government enforcement agency. I have been advised that in the course of the Officers delegated duties, if an allegation of a criminal nature is made (such as the scenario below), and if the Officer denies the claim, it is up to the Officer to provide and pay their own legal representation.

Scenario

  • An Officer in the course of his/her daily duties attends a property to speak to a resident about a relevant matter in which they are delegated to investigate.
  • At a later time, the Officer is advised that a complaint has been put forward to Tasmania Police revolving around an inappropriate action (inappropriately touched, harassment etc.) whilst the Officer was at the resident’s property.
  • The Officer denies the resident’s claims to the enforcement agencies management.
  • The Officer asks if he/she could be provided with legal representation due to the matter.
  • The Officer potentially has out of pocket expenses relating to defending himself/herself against the accusation. Even if Tasmania Police do not proceed to charge the Officer, they have out of pocket expenses for an incident which was born directly from conducting his/her delegated duties, as an Officer for the enforcement agency.

This is a scenario that has not occurred (to the best of my knowledge), but has been identified as a possible risk. The advice provide to me by the employer is that the Officer would stand alone regarding any defence of the accusation as it is a criminal matter. As an example if an accusation is made the Officer would be required to seek legal advice at their own expense and then (on return to the role after the investigation was founded to be vexatious etc) continue to put themselves in a vulnerable position with the possibility of the same act occurring, without any coverage from the agency. My unit is not part of a union and does not have personal insurance of this kind. The agency does have insurance but it is not apparent to criminal matters. The unit does not wear body worn cameras and works in an autonomous role regularly.

It is my opinion that this is a work health and safety matter and it would be up to the agency to reduce the risk relating to this style of act, or cover the out of pocket expenses of the Officer, if the complaint is found to be vexatious.

Any advice would be much appreciated.

I’m not sure what a ‘unit within a government enforcement agency’ actually means so I’m going to play with the scenario a bit to talk about fire fighters and paramedics, but the implications will be the same.

I have previously said, on many occasions, that personal liability is not a real issue because of the legal notion of vicarious liability; that is the rule that an employer is liable for the negligence of its employees.  That rule is, however, about liability to pay compensation.  The torts or negligence system is not intended to punish but to ensure that a person who suffers a loss due to the fault of someone else gets compensation.   A convincing theory of why person A should be liable for the negligence of Person B (even if A employs B) is hard to find.  In Hollis v Vabu (2001) 207 CLR 21 Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ said (at [32]-[35]):

It has long been accepted, as a general rule, that an employer is vicariously liable for the tortious acts of an employee … vicarious liability derived originally from mediaeval notions of headship of a household, including wives and servants; their status in law was absorbed into that of the master…

A fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law. Dean Prosser and Professor Keeton observe:

“A multitude of very ingenious reasons have been offered for the vicarious liability of a master: he has a more or less fictitious ‘control’ over the behavior of the servant; he has ‘set the whole thing in motion,’ and is therefore responsible for what has happened; he has selected the servant and trusted him, and so should suffer for his wrongs, rather than an innocent stranger who has had no opportunity to protect himself; it is a great concession that any man should be permitted to employ another at all, and there should be a corresponding responsibility as the price to be paid for it – or, more frankly and cynically, ‘In hard fact, the [real] reason for the employers’ liability is […] the damages are taken from a deep pocket.'”

Even though the justification for vicarious liability for torts may be hard to find, the rule is clear and ‘has long been accepted’.  Elsewhere I have argued that the rule must extend to volunteers (Emergency Law (4th ed, 2013, The Federation Press)) and I won’t go over those arguments here.  For the sake of the argument I will assume that this is uncontroversial, so an agency like a fire or ambulance authority or a ‘unit within a government enforcement agency’ is liable for the torts of its employees.

This is however limited to tort liability, not criminal.  The idea of the criminal law is to punish the wrongdoer so the punishment, whether it’s no more than recording a conviction or sending someone to gaol, is personal.  If an employee negligently injures someone, the employer is the one who must pay the damages but if the employee engages in criminal conduct it is the employee who is going to gaol.  Equally I can take out insurance to cover my liability for torts, so if I am in a car accident and injure another person I don’t have to pay their medical expenses, but it is me, and not my insurance broker, who must go to gaol.

So where does that leave the issue of employers paying the legal costs of employees, or volunteers, facing criminal charges?  I would suggest that there is a difference is the allegation is that the employee did exactly what they were asked to do and someone alleges that conduct was criminal.  Take the low end of the scale and a paramedic who receives an infringement notice for travelling through a red traffic light. The service may well review the records, confirm that the paramedic had been despatched on an urgent call and was taking reasonable care. One would expect that the service may well write the letter to the police asking for the infringement notice to be withdrawn and provide legal representation should the police refuse and the matter go to court.  When I was a legal officer with NSW Health back in the 1990s we certainly represented paramedics in those sort of situations.   Whether that is still the case I can’t say.

Assume a more serious offence where the paramedic is involved in a collision and someone is seriously injured.  The police investigate and taking into account all the evidence charge the paramedic with dangerous driving causing grievous bodily harm (or the equivalent, the exact language varies state to state, but each jurisdiction has some similar sort of offence).  Would the service represent the driver?  One has to imagine it depends on the view of their conduct and the attitude of the police.  If the service thinks it was just an accident and the police are being ‘over the top’ they might, but if they think the driver was acting way outside service guidelines they may not.

Another example where one might expect the service to help out might be on the fire ground where an Incident Controller has ordered a person to leave the area, they have not done so, so a fire fighter has used force to remove them (Country Fire Authority Act 1958 (Vic) s 30). In those circumstances if the person alleges there was excessive force, or force was not authorised, the service may well be willing to meet the legal defence.

Move to the other end of the spectrum, more akin to the scenario posed and assume someone alleges a paramedic, in the privacy of the ambulance, inappropriately touched the patient.  The allegation is not that the paramedic was acting in good faith as a paramedic and something that he or she did was illegal, this is conduct well outside the practice of paramedicine.    Further a service in that situation has a dilemma, it may want to support its employee but it has also has to support its patients and community – one only need consider the trouble caused too, and by, the Catholic Church for failing to put the interests of victims of abuse ahead of the church and its priests.  If the matter comes down to the paramedics word v the alleged victim it would be very difficult to be seen to be funding the paramedic.  Remember too that there are many steps before charge so if the matter did get before a court, the police will be pretty sure that they have sufficient evidence to secure a conviction.  The evidence may not stand up to scrutiny but the matter is not there on a whim.  If the matter does not get that far it may be that there is insufficient evidence but it’s not usual for anyone to say the complaint was ‘vexatious’ (even if it was).

In the circumstances it will be difficult for employees (and volunteers) to know support they might expect so hopefully there may be some guidance.  The NSW Rural Fire Service does have a policy on providing legal representation to its members. Service Standard 1.1.24 Legal Assistance for Volunteers and members of the Staff of the Service says (at [1.5]):

Legal assistance will not be provided to a member who has been charged with, or is under investigation in relation to, a criminal offence unless the alleged offence occurred in circumstances where the member was acting in good faith in the capacity of member of the Service. For example, assistance would be provided if the member was charged with an offence arising out of an operational decision on the incident ground.

Clearly they are not going to support a fire fighter charged with arson, looting or sexual assault.

What of the presumption of innocence?  That does, in theory still apply but, at the risk of getting political, the constant law and order auctions that are held each state election have watered that down.  Governments of all persuasions do not want to appear ‘soft on crime’, and the emergency services are all agents of government so there is little political benefit in supporting staff who are alleged to have committed offences unless, as with my example of a fire fighter using force to remove a trouble maker, you can paint the alleged offender as a ‘hero’ and the complainant as a ‘rat bag’.

If the allegation is inappropriate sexual behaviour, there is no votes in supporting the alleged offender – just think of the outrage over the fact that the Martin place gunman was on bail for offences for which he had not been convicted and which he denied.

If there is an allegation that a person has committed a terrorist offence or even knows of terrorism matters, they may be ‘disappeeared’ (ie taken off the street and held in a secret place with no ability to contact their family or a lawyer) for up to 7 days (Australian Security Intelligence Organisation Act 1979 (Cth) ss 34A-34ZZ).  If the Commonwealth has its way, a person may also be stripped of their citizenship without proof of wrongdoing.   The rule of law may have been considered important in 1215 with the signature of Magna Carta – its status is much more perilous today (see Mark Kenny, ‘Malcolm Turnbull breaks ranks on citizenship, declaring constitution cannot be compromised’ Canberratimes.com.au, June 16, 2015).

In the circumstances I can’t see any government agency committing itself to funding all defence cases or promising to reimburse costs for successfully defended matters.  Rather, as with the RFS, they will want a policy that leaves them room to judge each case on its merits.

Conclusion

Criminal responsibility is inherently individual so it is up to an agency to determine if and how it will fund the defence of members charged with a criminal offence.  Unlike vicarious liability for torts, there is no legal rule that says an employer must defend an employee or reimburse their legal costs if they are acquitted of the offence charged.