Penalties

Background

12.96 Under the Public Service Act, an agency head may impose one of the following penalties for a breach of the Code of Conduct: termination of employment; reduction in classification; re-assignment of duties; reduction in salary; deductions from salary, by way of fine, which is not to exceed 2% of the APS employee’s annual salary;^[109] and a reprimand.^[110] An agency head may also prescribe other action in order to reduce the risk of further misconduct provided it is clearly cast as management action and not a penalty.^[111]

12.97 Within these parameters, each agency head can decide whether to impose an administrative penalty for a breach of the Code of Conduct, and what type of administrative penalty to impose. The House of Representatives Standing Committee on Legal and Constitutional Affairs noted that:

The culture of each organisation is a significant variable in any discussion concerning consistency in the application of administrative sanctions. Increased emphasis may be placed on the security of third party information in some departments than others because of the nature of a department’s operation. For example, as officers of some departments are subject to legislation which imposes criminal sanctions on the disclosure of particular information, it may be expected that stronger disciplinary action would be taken against those officers than officers in other departments where penal sanctions do not exist.^[112]

12.98 In Handling Misconduct, the APSC notes that the purpose of the Code of Conduct is ‘to ensure effective administration and to maintain public confidence in the integrity of an organisation’s processes and practices rather than to punish individuals’.^[113] Sanctions for breach, therefore, ‘should focus on reducing or eliminating the likelihood of future similar behaviour’.^[114] The APSC goes on to advise that:

Sanctions are intended to be proportionate to the nature of the breach, provide a clear message to the relevant employee that their behaviour was not acceptable, and act as a deterrent to the employee and others … The sanction should focus on the seriousness of what the employee has done—the number of elements breached is not, of itself, a relevant consideration. Prior misconduct is also relevant to the imposition of a sanction and might usefully be taken into account by the sanction delegate where:

• it indicates that the employee was, or should have been, well aware of the standard of conduct expected and the potential consequences of misconduct

• it demonstrates that the employee is apparently unwilling to adhere to the standard of conduct expected.^[115]

12.99 Termination of employment, for example, is considered by the APSC to be appropriate only where the misconduct is sufficiently serious that the employee should no longer remain in the APS; or where the employee has, by his or her actions, repudiated a basic element of the employment relationship.^[116] The APSC advises that agencies should develop guidance materials, including an explanation of the penalties that can be imposed for breach of the Code of Conduct, factors to be considered in determining an appropriate penalty and agency-specific examples of the circumstances in which particular penalties may be appropriate.^[117]

Submissions and consultations

12.100 In IP 34, the ALRC asked whether the range and level of administrative penalties available for breaches of secrecy provisions committed by Commonwealth officers were adequate and appropriate.^[118] The ALRC also questioned whether administrative penalties for breach of similar types of secrecy provisions were being applied consistently across Australian Government agencies.^[119]

12.101 Only a small number of stakeholders made submissions on these questions.^[120] The AGD noted that the range and level of administrative penalties available for breaches of secrecy provisions by Commonwealth officers were the same as those that apply for all breaches of the Code of Conduct.^[121] Whistleblowers Australia and Liberty Victoria suggested that any penalties should be commensurate with the potential harm that could result from the disclosure.^[122] The Department of Human Services added that penalties should reflect

the circumstances of the breach, the seniority of the employee, the seriousness of the consequences of the breach and whether the employee has breached the provision previously.^[123]

12.102 The ALRC did not propose any reform of the range of administrative penalties for breach of secrecy provisions in DP 74. Instead, the ALRC focused on clarifying the manner in which an agency will apply administrative penalties for breaches of such provisions. In particular, the ALRC proposed that agency information-handling policies should clearly set out the disciplinary penalties that could result from breach of secrecy obligations, including the factors that will be considered in determining any such penalty.^[124]

12.103 Most stakeholders that commented on this issue agreed with the ALRC’s proposed approach.^[125] The ATO advised that it already provides its employees with information about their secrecy obligations and the consequences of breaching those obligations. The ACC noted the potential usefulness of the proposed guidance but questioned why this sort of detail should be required in relation to disclosure of information as opposed to other misconduct issues. It also commented on the importance of ensuring that any attempt to identify relevant factors did not result in decision makers getting the impression that the listed factors were the only ones they needed to take into account. This could result in errors of law in making particular decisions.^[126]

ALRC’s views

12.104 The penalties that an Australian Government agency may impose on an APS employee who has breached a secrecy requirement in the Public Service Act are the same as those that apply to all other breaches of the APS Code of Conduct. Submissions to this Inquiry have not expressed particular concern about the range of penalties available. Accordingly, the ALRC does not recommend reform of the range of administrative penalties for breach of secrecy provisions.^[127]

12.105 However, there is scope for clarifying the manner in which an agency will apply administrative penalties for breaches of secrecy provisions. In Chapter 14, the ALRC recommends that Australian Government agencies should develop and implement policies and guidelines clarifying the application of relevant secrecy laws to their information holdings.^[128] These policies should advise APS employees about the administrative penalties that could result from breach of a secrecy obligation, including factors that will be considered in determining penalties, such as the potential harm caused to the agency by the circumstances of disclosure or the nature of the information, any prior unauthorised disclosures, and the seniority of the employee.

12.106 The above factors are an inclusive, rather than an exhaustive, list of the considerations that a decision maker should take into account in determining the appropriate sanction. They are intended to give employees an idea of the likely implications of breach of a secrecy provision. A publicly available policy might also assist an APS employee who has been sanctioned for such a breach to assess whether he or she should appeal the severity of the sanction—for example, to the Merit Protection Commissioner.