Public officials often incur legal costs in the course of their public duty. When that happens the public must pay. It is in the public interest that public officials not expose their own pockets to defend actions taken against them over the execution of their duty. Otherwise, good people will be reluctant to take public positions. This is not cant. The threat of being sued in these days of astronomic legal fees can damp the most public-spirited of people.
That said, there is a limit. Public provision of legal costs should be a shield, not a sword. Two illustrations were revealed this week. One of the first announcements by the new NSW Premier, John Fahey, was that the Government would pay the legal costs of Nick Greiner and Tim Moore to challenge the findings of the Independent Commission Against Corruption. The other was the decision by the board of the Civil Aviation Authority to help with legal costs of two senior managers who had allegedly been defamed.
The latter is clearly bad in principle. Public administration would not be affected one iota if they did not sue. The public purse should not provide for first-instance plaintiffs. However, if they were being sued, if they were defendants, it would be different. The public purse (within reason) should be opened to them to defend a defamation action arising out of their public duty.
Many statutes, however, make these cases rare. Invariably statutory officers are granted immunity from legal action while they are pursuing what they honestly believe to be their public duty.
The Greiner-Moore case is different. They are defending their actions in pursuit of what they honestly believed was their public duty. Equally, at the original ICAC hearing, participants should get reasonable legal costs. It is nonsense to argue that ICAC hearings are not legal hearings and do not affect people’s rights. Events this week put paid to that argument. However, they must be reasonable legal fees. The public is sick of paying armies of QCs fabulous sums for the myriad of inquiries that have continued non-stop in Australia for the past three decades. A competent solicitor or junior barrister should handle these cases. And once the limits of the public purse are struck at that level, not the QC level, no doubt we will see fewer QCs and more solicitors and juniors appearing at inquiries. Further, the results will not be much different.