The last thing a police officer should have to worry about when exercising powers is whether they might be sued for their actions. In February 2014 the Police Service Administration Act 1990 (PSAA) was amended by the Public Service and Other Legislation (Civil Liability) Amendment Act 2014. The primary purpose for the amendment was to ensure that police officers could carry out their functions without the concern of being sued, and facing the potential financial risk that accompanies those proceedings, as a result of engaging in conduct in an official capacity.
Prior to these amendments section 10.5(5) of the PSAA stated that a police officer was to be indemnified by the State if they acted in good faith and without gross negligence. This provision was similarly repeated throughout Queensland’s statutes, but it overlooked the element that whether an officer acted in; (a) in good faith, and (b) without gross negligence, are questions of fact; to be determined by a judicial officer in the course of legal proceedings. Take as one example the tort of wrongful arrest. Police officers are regularly named and served with legal documents because they are typically the first defendant in these types of civil actions. They then have to wait to find our whether the State of Queensland will indemnify them. This common tort is often established even when an officer acts entirely within their powers, but in the mind of the judicial officer, misapplied their discretion to arrest.
The changes made by the Public Service and Other Legislation (Civil Liability) Amendment Act 2014 have quietly ushered in a new regime, rather than merely making minor amendments. Section 10.5 of the PSAA has been completely re-written and provides that a police officer, staff member, recruit or QPS volunteer does not incur civil liability for engaging in, or as the result of engaging in, conduct in an official capacity. The State of Queensland is liable instead.
This is a huge shift. The unequivocal language should provide certainty and peace of mind to police officers who are lawfully carrying out their duties, despite the fact that sometimes that means interfering with people’s property or liberties.
However, the State does have recourse. The new provisions allow the State of Queensland to recover contributions from officers, staff members and recruits if the State was found liable for the actions of the relevant person. However, in order to recover against the relevant person though, the State must prove that the conduct engaged in was other than in good faith and exhibited gross negligence.
This is good news for the QPUE and its members. Arguably, if an officer was following properly issued orders then they were likely acting in good faith, which is highly relevant to whether the State can recover a contribution from
them pursuant to these amendments. This is balanced by the fact that if an officer goes beyond orders and beyond the limits of their power then they leave themselves open to be pursued by the State, with all its resources, quite apart from any internal disciplinary proceedings that would ordinarily follow questionable conduct.