Background

The Australian Public Service

12.5 The Public Service Act provides the legislative framework for the APS. The APS is defined in s 7 of the Act as comprising agency heads and employees of:

• Commonwealth departments of State;
• executive agencies established by the Governor-General under s 65 of the Public Service Act;^[1] and
• statutory agencies, being bodies declared by an Act to be a statutory agency for the purposes of the Public Service Act.^[2]

12.6 As at June 2008, more than 160,000 people were engaged as APS employees,^[3] with employees and agencies covered by the Public Service Act accounting for over two-thirds of the Commonwealth public sector.^[4]

Secrecy obligations under the general law

12.7 Aspects of the general law impose duties on employees—including APS employees—not to disclose information in certain circumstances. As discussed in Chapter 3, general law obligations include the equitable doctrine of confidence and employees’ common law duty of fidelity and loyalty. These may supplement the statutory secrecy obligations that apply to APS employees, discussed later in this chapter.

12.8 Another aspect of an employee’s duties that may give rise to a particular obligation of confidentiality is the requirement on every employee to obey lawful and reasonable orders of an employer that fall within the scope of the contract of employment.^[5] In the case of R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday, Dixon J expressed the common law standard or test as follows:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.^[6]

12.9 Section 13(5) of the Public Service Act expressly requires that 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’.^[7] A supervisor has implied authority to direct subordinate staff: he or she does not require an express authorisation by the agency head to issue directions.^[8]

12.10 The test for the lawfulness of a direction given to an APS employee is likely to be broader than the common law formulation. The Australian Government Solicitor (AGS) has advised that:

Whilst public servants are in an employment relationship, that relationship has a constitutional and statutory setting which includes values and interests which go beyond bare matters of employment. A direction to an APS employee can be lawful if it involves no illegality and if it is reasonably adapted to protect the legitimate interests of the Commonwealth as employer or to discharge the obligations of the Commonwealth as an employer. Also, the direction must be reasonable in all the circumstances.^[9]

Secrecy obligations under the Public Service Act

Obligations under the APS Code of Conduct

12.11 The Public Service Act is the principal legislation regulating employment relations in the APS. Section 13 of the Act sets out the APS Code of Conduct, which binds APS employees, secretaries of departments, heads of executive agencies or statutory agencies, and statutory officeholders.^[10] The Code of Conduct requires, among other things, that an APS employee:

• comply with all applicable Australian laws, when acting in the course of APS employment, which includes secrecy laws;^[11]
• maintain appropriate confidentiality about dealings that the employee has with any minister or minister’s member of staff;^[12] and
• comply with any other conduct requirement that is prescribed in the regulations.^[13]

12.12 Regulation 2.1 of the Public Service Regulations 1999 (Cth)—set out in full in Appendix 5—is the only other conduct requirement prescribed in the regulations. The regulation requires that:

(3) An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs.

(4) An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s employment if the information:

1. was, or is to be, communicated in confidence within the government; or
2. was received in confidence by the government from a person or persons outside the government;

whether or not the disclosure would found an action for breach of confidence.

12.13 Exceptions to these prohibitions on disclosure apply where:

• the information is disclosed in the course of the employee’s duties;
• the information is disclosed in accordance with an authorisation given by an agency head;
• the disclosure is otherwise authorised by law; or
• the information is lawfully in the public domain.^[14]

12.14 The regulation also expressly preserves an agency head’s authority to give ‘lawful and reasonable directions’ regarding the disclosure of information.^[15]

Role of secrecy provisions in the APS Code of Conduct

12.15 In Chapter 4, the ALRC considers the role that administrative secrecy provisions serve in regulating the disclosure of information by Commonwealth officers. First, administrative secrecy obligations may be the only remedy available, or the most appropriate remedy, to address situations where disclosure does not warrant criminal sanctions or criminal sanctions are not available. Secondly, by addressing the distinct context of public sector employment obligations, administrative secrecy provisions also protect different interests from those recognised in the criminal context. In particular, they should satisfy the objects in the Public Service Act of establishing ‘an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public’.^[16]

Consequences of breaching the APS Code of Conduct

12.16 Breach of the APS Code of Conduct gives rise to potential administrative sanctions.^[17] However, because of the operation of s 70 of the Crimes Act 1914 (Cth), an APS employee who breaches the Code’s secrecy obligations could also be subject to criminal sanctions.

12.17 As discussed elsewhere in this Report, s 70 of the Crimes Act prohibits a person who is, or has been, a Commonwealth officer from disclosing ‘any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose’. Regulation 2.1 gives rise to such a duty for the purposes of s 70 and has been used as the basis for prosecutions.^[18]

12.18 In Chapter 4, the ALRC recommends a new general secrecy offence to replace s 70 of the Crimes Act. Rather than relying on externally imposed duties, the general secrecy offence expressly targets unauthorised disclosures that are reasonably likely to cause harm to essential public interests. Importantly, in the ALRC’s view, a broadly based public interest in the ‘effective working of government’ is not sufficient to enliven the general offence.

Relationship between secrecy obligations and other APS requirements

12.19 Requirements in the Public Service Act, other than express secrecy provisions, may constrain the manner in which an APS employee communicates official information. For example, the APS Code of Conduct requires APS employees to exercise discretion when commenting on government policy to uphold the APS Value of an apolitical public service.^[19] The Code of Conduct also requires that an APS employee:

• does not make improper use of inside information, or his or her duties, status, power or authority, in order to gain a benefit or advantage for the employee or for any other person;^[20] and
• behaves at all times in a way that upholds the integrity and good reputation of the APS.^[21]

12.20 In Chapter 14, the ALRC discusses the information-handling policies of Australian Government agencies. These policies address a range of issues beyond secrecy. These may include, for example, safeguards to ensure that the agency provides information that is accurate and not misleading, and that the agency is—and is seen to be—apolitical. Information-handling policies may also include requirements for employees to release information in certain circumstances.^[22]