Ex gratia legal assistance

The grant of legal assistance to Ministers, public officials and public sector employees is governed by Premier's Memorandum 2022-10.

The Memorandum details:

• Who can apply and the circumstances in which a grant can be made (including what proceedings can be covered by a grant of assistance);
• The criteria for a grant of assistance (and for the withdrawal of a grant);
• Who will act; and
• The nature of the indemnity provided by the grant of assistance.

Please ensure you have read the Memorandum thoroughly before applying.

Who can apply and when

Ministers, public officials and other Crown employees may apply for Crown representation (ex gratia legal assistance) where legal proceedings have been commenced, or are anticipated, against them and where the circumstances giving rise to the proceedings arose out of or are related to the performance of their official duties.

Applications can be made by individuals who are the defendants in civil or criminal proceedings.

Ex gratia assistance is not provided to allow an applicant to initiate proceedings, except where a public official, in circumstances arising out of his or her employment, needs to commence or defend an application for an apprehended violence order (AVO).

Generally, applications will not be approved retrospectively (that is, after the proceedings have been finalised). However, if an applicant can show that his or her Departmental Head was on notice that an application was to be made prior to the proceedings, the application may be accepted.

Who acts, and who pays?

Unless a matter falls into the category of core work, all costs associated with the representation of the Minister or public official must be met by the administration of the Minister or the Department which employs the officer.

In most instances the Crown Solicitor will be instructed to act on behalf of the applicant. However, if the applicant asserts and is able to demonstrate that a conflict may arise should the Crown Solicitor act on his/her behalf, then the Attorney General may approve of the applicant being permitted to obtain private legal assistance (usually at the Attorney General's rates and subject to moderation by the Crown Solicitor's Office). The level of representation will also be stipulated (i.e., whether by solicitor, Counsel or both).

The approval of the Attorney General is required before Senior Counsel can be briefed in proceedings.

How to apply

An applicant (other than a Minister or Departmental Head) must first write to his/her Departmental Head. It is important that the applicant:

• make a full disclosure of all the circumstances of the case;
• establish that he/she has a substantial and direct interest in the outcome of the proceedings; and
• request that Crown representation be granted.

Upon receipt of the application, the Departmental Head must:

• cause a full investigation of the incident to be undertaken;
• determine whether to support the application; and
• if satisfied of the merits of the application, write to the Secretary of the Department of Communities and Justice advising of his/her support for the grant of ex-gratia legal assistance and providing the information referred to above.

The extent of the Departmental investigation required very much depends on the facts of the case and the nature of the proceedings. The purpose of the investigation is more to ensure that a full disclosure has been provided by the applicant than to come to any final view as to the allegations or the conduct in question.

Applications should be sent to

The Secretary
Department of Communities and Justice
C/- Legal
Locked Bag 5000
Parramatta NSW 2124

Applicants must ensure that sufficient time is given to the Secretary to consider and determine their applications. Any enquiries about this procedure can be made to Legal.