Legislative Council Wednesday 18 March, 2020

Ms FORREST question to LEADER of the GOVERNMENT in the LEGISLATIVE COUNCIL, Mrs HISCUTT

My questions relate to the practice or process around settlements reached generally following a process of mediation leading to a decision to offer and accept a settlement between an aggrieved party, whether a member of the public or public servant and a government department.

(1) After settlement has been agreed between parties and prior to the agreement being signed by the solicitor-general or his office and the aggrieved party, what standard conditions, if any, are included?

(2) If standard conditions are included, are provisions for immunity from further investigation or redress from the solicitor-general and his office or other government departments routinely or occasionally included?

(3) How is a standard immunity provision worded, if they use one? If it is not the usual practice or process to include immunity provisions -

(a) have there been circumstances in which immunity provisions have been included;

(b) what were some of the circumstances where this may or does occur; and

(c) how are the immunity provisions worded, and do you believe the inclusion of an immunity clause creates a potential of injustice to the aggrieved party?

ANSWER

Mr President, I thank the member for Murchison for her question.

(1) Each set of circumstances is unique, so each deed of settlement is unique. There are no standard conditions, if by that what is meant is conditions which always appear in deed of settlement.

2 (a) It is common for a clause to be inserted to the effect that the releasor, in return for payment of money, releases the state and its servants and agents from all claims and complaints that are or can be made in relation to the subject matter of the dispute or the issue resolved by the deed. The settlement includes such a release.

(b) There are variations. The following is an example only -

Mr B agrees to accept a certain amount of money and costs in full satisfaction and discharge of any liability, actions, suits, proceedings, claims, complaints and demands of whatever kind, and whether under statute, common law or otherwise which he or she now has or may have against the state and/or any of its servants or agents, past and present, in relation to any matter touching and concerning the matter set out in the recycles of the deed.

(3) It is the same as (2).

(4) The answer is no. The aggrieved parties receiving money from the state and this is in exchange for something, that being the release. Sometimes the claim made by the aggrieved party has significant merit, that is, a strong case or claim in law. Sometimes it does not. The amount of the settlement sum, which, it must be borne in mind, arises out of negotiations, reflects this.

Oftentimes, the aggrieved party has a view of the strength of his/her or its claim that is at odds with the views formed by the leader advisers to the state. The aggrieved party always has a choice to accept a settlement. It is not necessarily unjust to require one party to give up rights in return for a payment of money. That is the essence of a settlement. The law of compromise requires both offer and acceptance of terms that bring the matter to finality. This is what some people refer to as its closure. It is generally seen as desirable. The law embraces finality. It is not a matter of injustice. Quite the contrary, it is in the public interest.

Ms FORREST - Mr President, I might resend part of that question in that in the first section, the first question - after the settlement has been agreed between the parties and prior to the agreement, we have a person who has made the complaint and who thinks they have agreed to a certain thing and find this in their documentation. It can seem like an addition.