Protection of officials and others from liability
335 Protection of officials and others from liability
This section applies to each of the following entities (each a protected entity)—
the commission;
a person who is—
a commission officer; or
a person acting under the direction of a commission officer;
a person who was a person of a type mentioned in paragraph (b) at the time the person engaged in conduct in an official capacity.
A protected entity does not incur civil liability for engaging, or for the result of engaging, in conduct in an official capacity.
If subsection (2) prevents liability attaching to a protected entity, the liability attaches instead to the State.
If liability attaches to the State under subsection (3), the State may recover contribution from the protected entity but only if the conduct was engaged in—
other than in good faith; and
with gross negligence.
In a proceeding under subsection (4) to recover contribution, the amount of contribution recoverable is the amount found by the court to be just and equitable in the circumstances.
In a proceeding for defamation, there is a defence of absolute privilege for a publication to or by the commission or a commission officer made for the purpose of performing the commission’s functions.
In this section—civil liability, of a protected entity 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 entity because of—
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
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
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 protected entity.
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, an entity’s function or role as a protected entity, including, for example, engaging in conduct under or purportedly under this Act.
This Act’s bill:Explanatory memorandum
The statute text is free to read above. View subscription options to unlock the case-law research tools for each provision.