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Last updated: 19 December 2003
Disclosure of Information by APS employees-implications of the Bennett case
Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.
Note: This advice has been superseded by Circular 2004/8. Agencies may still find the information it contains relating to obligations not to disclose information that exist in addition to PS Regulation 2.1 useful.
Purpose
The purpose of this letter is to advise you of the implications of a recent decision of Finn J of the Federal Court (Bennett v HREOC [2003] FCA 1433) which casts doubt on the validity of regulation 2.1 of the Public Service Regulations 1999, and to suggest action you may wish to take to manage its repercussions in the short term. Regulation 2.1 relates to disclosure of information by public servants.
2. The case has significant implications for the Australian Public Service (APS) Code of Conduct and for the management of some misconduct processes as, prior to the decision, regulation 2.1 was regarded as part of the Code of Conduct.
Background
3. The case concerns Mr Bennett, an employee of the Australian Customs Service who is also Federal President of the Customs Officers Association. In 1998 Mr Bennett was given a formal direction by the CEO of Customs to the effect that he was not to make media comment as a Customs officer, or as President of the Customs Officers Association, on policy or operations matters involving Customs. He was warned that failure to comply with the direction could lead to disciplinary action. Mr Bennet gave a media interview in November 1998 and was subsequently charged with a breach of regulation 7(13) of the then Public Service Regulations. The disciplinary charges were later dropped by Customs. Mr Bennett made a complaint to the Human Rights and Equal Opportunity Commission (HREOC). (See Casenote No. 53, 12 December 2003 published by the Australian Government Solicitor for a summary of the facts of the case.)
4. Regulation 2.1 of the Public Service Regulations 1999 is cast in almost identical terms to regulation 7(13), which was repealed as a consequence of the introduction of the Public Service Act 1999.
What was decided
5. In summary, Finn J found that:
- the subject matter of the directions given to Mr Bennett was set by regulation 7(13)
- the regulation was invalid in that it infringes the implied freedom of civil and political communication
- it cannot be read down so as to avoid that consequence
- even if the regulation were not invalid, the direction issued by Customs was inconsistent with Mr Bennett's right to freedom of expression under Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) as the direction was not necessary for the protection of public order under Article 19(3)
- but the direction may have been a lawful and reasonable exaction of loyalty from Mr Bennett which was not inconsistent with Article 19(3), based on his duty of 'loyalty and fidelity' as an APS employee
- because this possibility was not addressed by HREOC Finn J decided that the matter must go back to HREOC for further consideration.
6. The Commonwealth has until 23 January 2004 to lodge any appeal.
Immediate consequences of the decision
7. As a consequence of the decision, Agency Heads and delegates should not:
- regard regulation 2.1 as an effective part of the APS Code of Conduct; or
- initiate or continue inquiries into a suspected breach of the Code that relies solely on regulation 2.1; or
- rely on regulation 2.1 as the basis for giving a lawful and reasonable direction to an APS employee; or
- rely on regulation 2.1 as the basis for a duty not to disclose information for the purposes of s. 70 of the Crimes Act 1914.
Information to staff on their obligations of non disclosure
8. Regardless of the result of any appeal lodged, the possible invalidity of regulation 2.1 does not mean that any official information can be disclosed. There remain in place a large number of sources, in specific statutory provisions, including in the Public Service Act 1999 (PS Act), in common law and in equity that limit the disclosure of information by public servants.
9. Agency Heads should consider issuing information to staff reminding them of the extent of an employee's obligations not to disclose information. Information on the following matters may be included:
- employees' duties under the Crimes Act 1914, the Privacy Act 1988 and specific secrecy provisions in legislation relevant to the agency;
- an employee's common law duty of loyalty and fidelity; and
- any existing agency directions in relation to the protection and non-disclosure of particular information.
10. Employees should also be reminded that:
- information and materials related to the details of government policy-making and any other specified matters (which may be those included in 9c above) should generally be treated as confidential;
- employees should not decide for themselves whether it is open for them to disclose such information; and
- before disclosing to the media any information acquired in the course of APS employment, employees need to obtain authorisation from their supervisor, or another appropriate person, within the agency (or comply with any other relevant agency protocols).
11. In addition to this reminder to employees of their general duties, Agency Heads may consider that particular kinds of information require a more specific direction because of the particular sensitivity or other character of the information. Where this is the case, a direction may be given to employees in the agency who may acquire that kind of information in the course of APS employment that it is not to be disclosed except in the course of the employee's duties or with the Agency Head's or a delegate's express authority. It may be that most information of this kind will already be subject to a classification that obliges employees not to disclose it (for example, a national security classification, or a classification of staff?in?confidence), but there may be other unclassified material which nevertheless the Agency Head has a legitimate aim in ensuring is not disclosed to other persons without express authority.
12. At Attachment A is further information about sources of law and other material which may help with the preparation of advice to employees.
13. Key messages that may be included in general guidance are as follows:
- While the Federal Court's finding casts very serious doubt on the validity of regulation 2.1, it is not open slather for APS employees when it comes to disclosure of information.
- There remain in place a large number of sources, in specific statutory provisions, including in the APS Code of Conduct, in common law and in equity that limit the unauthorised disclosure of information by public servants.
- In particular, the decision does not mean that a direction to an employee not to disclose information could not be both lawful and reasonable, particularly if the direction relates to information that is not otherwise publicly available.
Secrecy provisions in legislation
14. Regulation 7(13) was found to be a 'catch all' provision. There are a number of other duties of secrecy contained in legislation, which are not 'catch all' provisions, and these are unlikely to be affected by the decision in the Bennett case. However, Agency Heads may wish to examine the secrecy provisions in legislation for which they are responsible in the light of the Bennett case, and particularly in order to identify whether any of these provisions are inconsistent with the test in Lange v The Australian Broadcasting Corporation (1997) 189 CLR 520, seeking legal advice as necessary.
Effect of Bennett case on past misconduct processes and decisions
15. Subject to the result of any appeal, the effect of the decision in the Bennett case on past misconduct action will depend on a number of factors including:
- how long ago the misconduct action was taken;
- the nature of any sanction imposed;
- whether regulation 2.1 or regulation 7(13) was the sole stated basis for the action; and
- if regulation 2.1 or regulation 7(13) was the sole stated basis for the misconduct action, whether the conduct in question may have constituted misconduct on some other basis.
16. Every case will turn on its own facts. If necessary, Agency Heads may wish to seek legal advice on a case-by-case basis.
Longer-term resolution
17. I am currently considering options for longer-term resolution which may involve amendments to the Public Service Regulations. I will keep you informed of developments in this area, as well as in relation to any appeal.
Further advice
18. Please contact the APS Commission's helpline on (02) 6202 3859 if further information or clarification is required.
A S Podger
19 December 2003
Attachment A
Limits on the disclosure of information by public servants
The APS Code of Conduct
The Code of Conduct in section 13 of the PS Act imposes a number of duties on employees. Depending on circumstances, some elements of the Code, but particularly subsections 13 (4) and (5) (see below) establish a duty of non-disclosure of information. Other elements of the Code which establish, or may establish, a duty of non-disclosure of information are:
- Subsection 13 (1): An APS employee must behave honestly and with integrity in the course of APS employment. Unauthorised disclosure of information could involve a lack of integrity by an APS employee, particularly where the motivation of the employee is based on the personal interest of the employee rather than the public interest.
- Subsection 13 (6): An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff. Although expressly limited in its scope, this provision prohibits certain kinds of unauthorised disclosure of information.
- Subsection 13(10): An APS employee must not make improper use of: (a) inside information; or (b) the employee's duties, status, power or authority; in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person. Unauthorised disclosure of information by an employee may breach this element of the Code.
Section 13(4)
An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means: (a) any Act (including this Act), or any instrument made under an Act; or (b) any law of a State or Territory, including any instrument made under such a law.
Common law duty of loyalty and fidelity
The common law is part of the law of States and Territories. This means that duties implied by the common law into all contracts of employment, including the employee's duty of loyalty and fidelity, are caught by subsection 13(4). The extent of the duty of loyalty and fidelity may be greater where the employer is the Commonwealth.
Protection of information in particular circumstances
Although the application of the duty of loyalty and fidelity tends to be instance specific in character and, as Finn J noted in his decision on the Bennett case (at paragraph 121), its scope is possessed of 'notorious uncertainties', the duty is applicable to protection of information in particular circumstances. For example, disclosure of information would involve disloyalty by an employee where the nature of the information possessed by APS employees in a particular agency, or part of an agency, is of a kind that could damage the interests of effective government in an identifiable way. In such circumstances, it would be sensible to ensure that the duty is attracted by notifying employees that the information should not be disclosed. Providing the non-disclosure restriction is reasonable, an employee who adversely affects the employer's interests by communicating the information to another person, or the media, will have breached their duty of loyalty and fidelity. A breach of the duty of loyalty and fidelity would be a breach of the contract of employment at common law and would also breach subsection 13(4).
Service-wide and agency policies on disclosure of information
The Protective Security Manual issued by the Attorney-General's Department is the principal means for disseminating the Commonwealth's protective security policies, principles, standards and procedures to be followed by all agencies for the protection of official resources, including information. It is probable that the systems most agencies have in place for assessing and classifying information as security information (national or non-national), or as unclassified information, is consistent with the purpose of serving the legitimate ends and interests of the government.
Unauthorised disclosure of security information by an employee is likely to be regarded by the courts as a breach of the common law duty of loyalty and fidelity. But even in relation to unclassified information, the duty of loyalty and fidelity of an employee would usually preclude an employee from deciding for himself or herself whether the information should be disclosed. Such decisions are properly the province of Ministers and Agency Heads. If an employee disclosed information in accordance with a personal view, and in defiance of agency policy, the employee may have failed in their duty of loyalty and fidelity to their employer.
Secrecy provisions in legislation
Many APS employees are subject to express duties of secrecy contained in legislation which apply to particular types of information (see for example the Income Tax Assessment Act 1936, section 16 or the Child Assessment Act 1989, section 150). As these are not 'catch all' provisions, unlike regulation 7(13), such provisions are unlikely to be affected by the decision in the Bennett case.
Crimes Act 1914
Subsections 70(1) and (2) of the Crimes Act 1914 create offences relating to disclosure of information by APS employees. An essential element of both offences is that the person who publishes or communicates certain facts or documents has or had a duty not to disclose those facts or documents. The effect of Bennett for section 70 of the Crimes Act is that regulation 2.1 cannot now be relied upon as the source of the duty not to disclose. However, there remain other sources of such duties such as statute law, equity, and the common law duty of loyalty and fidelity.
Section 79 has a more detailed provision relating to official secrets and itself creates a duty of secrecy. Under section 79 information is prescribed information in relation to a person if the person has that information in his possession or control as a result of the person's position as a Commonwealth officer, and by reason of the nature or the circumstances under which it was entrusted to the officer or obtained by him or for any other reason, it is his duty to treat it as secret. This section creates a duty to keep secret particular kinds of information and it is unlikely to be affected by Bennett.
Privacy Act 1988
In addition to specific secrecy provisions, the Privacy Act 1988 protects personal information in the possession of agencies. In particular, IPP 11 (in section 14) prohibits the disclosure of personal information except in the limited circumstances set out in the Principle. Disclosure of personal information in breach of IPP 11 by an APS employee would be a breach of the Code of Conduct in that the employee will have failed to comply with an applicable Australian law.
Equitable duty of confidence
Some information will attract the equitable duty of confidence. The information may be in the nature of a trade secret or be given in a setting to which the equitable duty applies. As the equitable duty of confidence will apply only to a small volume of the information of which APS employees have official knowledge, it is of less significance than the general common law duty of loyalty and fidelity.
Section 13(5)
An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction.
The power to issue directions provides a powerful tool for protecting information held by government. However, a direction should not now rely on regulation 2.1 as the basis for the lawfulness or reasonableness of the direction. Rather the direction would need to relate to particular ends to be served for protecting information of a particular kind that might not otherwise be protected from disclosure by the Privacy Act 1988, a valid secrecy provision or any other law. Therefore, any direction will need to be reasonably specific with respect to both the information to which it applies and the employees who are subject to the direction.
The Bennett case indicates that there may be limits on what directions may be reasonable in light of the International Covenant on Civil and Political Rights.
It would be open to an Agency Head to determine that, for example, information relating to new policy proposals and the development of legislation should not be disclosed without express authorisation. This policy could be implemented by a reasonably general direction, with appropriate qualifications. The direction could be given to APS employees in the Agency who acquired such knowledge in the course of performing their duties, rather than to all employees in the agency. It could even be limited to particular circumstances-for example, information relating to proposals that have not yet been considered by Cabinet, or which are subject to consultation with stakeholders, or relating to legislation that has not been introduced in the Parliament, or in other specified circumstances where the Government's interest in prohibiting disclosure was defensible. The direction would usually be defensible if the direction related to the protection of information that was not otherwise publicly available.
As at the time of writing, the Commission's view is that it is unlikely that Agency Heads could give valid directions that would completely fill the gap left by the striking down of regulation 7(13). A direction that purported to impose a prohibition of similar breadth and generality might suffer from the same characteristics that invalidated regulation 7(13). In addition, being merely a direction rather than a regulation, it arguably should be more particular in character.
December 2003
