Prejudice to the effective working of government

Background

12.21 As noted above, reg 2.1(3) of the Public Service Regulations prohibits an APS employee from disclosing information obtained or generated in connection with that person’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.^[23]

12.22 This requirement was introduced in 2006, following the decision of Finn J in Bennett v President, Human Rights and Equal Opportunity Commission (Bennett)^[24] that the broader predecessor of the regulation was inconsistent with the implied constitutional guarantee of freedom of communication about government and political matters.^[25]

12.23 The Explanatory Statement for the replacement regulation describes its scope as follows:

Depending on the circumstances, this restriction could cover information such as opinions, consultation, negotiations (including about the management of a contract), incomplete research, or advice or recommendations to the Government, leading or related to, the development or implementation of the Government’s policies or programs. The legitimate interest of government in regulating access to such classes of information is recognised in the Freedom of Information Act 1982.^[26]

12.24 The scope of the regulation has been further clarified by the Australian Public Service Commission (APSC) in its publication, APS Values and Code of Conduct in Practice:

APS employees need to consider on each occasion whether the disclosure of information could damage the effective working of government, including, for example, in relation to unclassified information and in circumstances where there is no relevant Agency Head direction …

The exemptions set out in the [Freedom of Information Act 1982 (Cth) (FOI Act)] are a useful starting point in determining which categories of information may potentially fall within the scope of regulation 2.1.^[27]

12.25 The constitutionality of the amended regulation was upheld by Refshauge J of the ACT Supreme Court in R v Goreng Goreng (Goreng Goreng).^[28] He expressed the view that the regulation was not a ‘catch-all’ provision like its predecessor, but rather a more focused and targeted provision that sought to protect a legitimate government interest.^[29] Some concerns remain, however, in relation to the uncertain scope and application of the revised regulation.

12.26 For example, in Goreng Goreng, Refshauge J stated that it was with ‘considerable hesitation’ that he upheld reg 2.1(3) as meeting the requisite standard of certainty, on the basis ‘that public servants will, by and large, comprehend what is encompassed’.^[30] The unclear nature of the obligation was also commented on by Whistleblowers Australia, in its submission in response to the Issues Paper, Review of Secrecy Laws (IP 34):

The regulation is so imprecise and unclear as to dissuade any reasonably cautious employee from making any comments about the public sector. It unnecessarily burdens the employee, because it lacks precision and does not afford clear advice about what may or may not be disclosed. The purpose of the regulation appears to be to maintain control over public interest disclosures, and that cannot be an appropriate constitutional purpose adapted for a legitimate end.^[31]

12.27 In this Inquiry, the ALRC has considered several options for reforming reg 2.1(3), in order to clarify its scope and application. The ALRC has also considered a potential framework for disciplinary authorities and others to interpret whether particular conduct was in breach of the regulations. These options for reform are considered below.

The ‘effective working of government’

12.28 As noted above, reg 2.1(3) is based on the prejudice that a disclosure could cause to the effective working of government. This formulation was largely derived from the comments of Finn J in Bennett, where he accepted that secrecy laws designed to meet this end could be compatible with the implied constitutional freedom of communication about government and political matters.^[32]

12.29 Several other jurisdictions have also linked a public servant’s obligation of non-disclosure to potential prejudice to the role or functions of government. For example, s 57 of the Public Sector Management Act 1995 (SA) sets out a general prohibition on the disclosure of official information by South Australian government employees, except to the extent that the disclosure is authorised under the regulations. One such exception applies where the disclosure or comment:

(i) does not give rise to any reasonably foreseeable possibility of prejudice to the Government in the conduct of its policies, having regard to the nature of the disclosure or comment, the employee’s current position or previous positions in the Public Service and the circumstances in which the disclosure or comment is made; and

(ii) is not made with a view to securing a pecuniary or other advantage for the employee or any other person; and

(iii) does not involve—

(A) any disclosure of information contrary to any law or lawful instruction or direction; or

(B) any disclosure of trade secrets or information of commercial value the disclosure of which would diminish its value or unfairly advantage a person in commercial dealings with the Government; or

(C) any disclosure of information in breach of intellectual property rights.^[33]

12.30 Another example is found in the UK Civil Service Management Code:

civil servants must not seek to frustrate the policies or decisions of Ministers by the use or disclosure outside the Government of any information to which they have had access as civil servants.^[34]

Submissions and consultations

12.31 In the Discussion Paper, Review of Secrecy Laws (DP 74), the ALRC noted the broad range of situations that may warrant disciplinary action by an Australian Government agency. The ALRC expressed the preliminary view that the requirement of prejudice to the effective working of government was an appropriate way of capturing the many unauthorised disclosures that are legitimately the subject of disciplinary proceedings. Instead, the ALRC focused on narrowing the scope of conduct regulated by amending other aspects of the regulation—for example, by proposing that a disclosure must be ‘reasonably likely’ to prejudice the effective working of government.^[35] The ALRC also developed a framework for interpreting when a disclosure would cause the requisite prejudice.^[36]

12.32 The Community and Public Sector Union (CPSU) and Whistleblowers Australia argued against retaining a broad provision based on prejudice to the effective working of government.^[37] Whistleblowers Australia expressed the view that:

There is a difference between reg 2.1 and statutory secrecy provisions which deal with specific, real and factual data. Reg 2.1 is concerned with public service administrative information about some generalised and amorphous matters which lack specificity and are subjectively identified by agencies which have vested interests in the continued secrecy of the information. Conversely other statutory secrecy provisions objectively deal with specific and clearly identified real subjects (e.g. national security, tax or Census records, Customs transactions, Medicare health records or matters directly concerning law enforcement, defence or intelligence information).^[38]

12.33 Whistleblowers Australia submitted that so long as ‘prejudice to the effective working of government’ is retained, any of the ALRC’s proposals for reform of reg 2.1(3) are merely ‘papering over a hole below the waterline’. Whistleblowers Australia commented that such a recommendation would not help APS employees to reach a point of ‘clarity, certainty and safety’.^[39]

12.34 In its response to IP 34, the Public Interest Advocacy Centre (PIAC) also queried the breadth of a prohibition on the disclosure of information that could prejudice the ‘effective working of government’:

Understood at its simplest, an action is effective if it brings about an expected result. Expressed at such a high level of generality, the interest sought to be protected (‘the effective working of government’) may frequently be in tension with other important public interests, such as the transparent working of government.^[40]

12.35 In comparison, the Australian Government Attorney-General’s Department (AGD) supported reg 2.1 as ‘an example of a general secrecy law designed to protect sensitive government information that is reasonably likely to cause some identifiable harm’.^[41]

ALRC’s views

12.36 For the APS to serve the needs of the Australian Government, the Parliament and the Australian public, in accordance with the objects of the Public Service Act, there must be confidence that APS employees will not disclose information in potentially harmful circumstances. Agencies rely on employees complying with internal processes for the release of official information to ensure that only material that is accurate and properly reflective of the views of the Australian Government is issued in their name. Ministers and others seeking to engage in sensitive policy discussions with the APS rely on the fact that these deliberations will be treated confidentially. Members of the public also expect that the information they provide to the APS will be accorded a high level of confidentiality. Important aspects of government administration, such as the taxation and welfare systems, rely on citizens making full disclosure of sensitive personal and financial information, trusting that such information will be protected.

12.37 In the ALRC’s view, prejudice to the ‘effective working of government’ should remain the basis of the administrative secrecy obligation in the APS Code of Conduct because of the broad range of situations where the unauthorised disclosure of information may warrant the imposition of a disciplinary penalty. Attempting to articulate these harms more specifically—as was suggested, for example, by Whistleblowers Australia—risks inappropriately narrowing the provision’s scope. This approach should be distinguished from the use of the ‘effective working of government’ as the basis for criminal sanctions, which the ALRC considers to be overly broad in that context.^[42]

12.38 Below, the ALRC makes recommendations to narrow the scope of conduct regulated by reg 2.1(3) of the Public Service Regulations to those disclosures that are ‘reasonably likely’ to prejudice the effective working of government^[43] and to clarify the application of the regulation.^[44] Further, in Chapter 14, the ALRC recommends that Australian Government agencies should issue information-handling guidelines to help employees and others understand disclosures that are, and are not, the subject of secrecy provisions.^[45] These recommendations mitigate the potentially broad scope of ‘prejudice to the effective working of government’.

Narrowing the scope of conduct regulated

12.39 In DP 74, the ALRC noted that several of the elements of reg 2.1(3) of the Public Service Regulations were different from, and generally broader than, elements of other Commonwealth secrecy provisions. These include:

•  

  • the regulation’s application to any information that an APS employee obtains or generates in connection with his or her employment; and

  • breach of the regulation occurring where it is reasonably foreseeable that an APS employee’s disclosure could be prejudicial to the effective working of government.

12.40 These elements are discussed further below, including possible options for reform.

‘In connection with’

12.41 Regulation 2.1(3) applies to any information that an APS employee obtains or generates in connection with his or her employment. Somewhat narrower constructions have been used in other Commonwealth secrecy provisions. Most commonly, these require that the regulated party has acquired the information ‘in the course of’, or ‘in the performance of’, his or her functions or duties.^[46] The regulation’s application to conduct ‘in connection with’ the employment of an APS employee is, however, consistent with two other requirements in the APS Code of Conduct:

• the requirement to disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment; and
• the requirement not to provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment.^[47]

12.42 The scope of information acquired ‘in connection with’ an officer’s functions or duties has not been judicially considered in the context of reg 2.1(3) or other secrecy provisions. Some limited guidance, however, may be drawn from the interpretation of this phrase in different Commonwealth legislation. For example, the Administrative Decisions (Judicial Review) Act 1977 (Cth) exempts from the requirement to provide a statement of reasons decisions ‘in connection with’ the investigation or prosecution of person for a Commonwealth offence.^[48] In adjudicating on this exemption, Davies J noted that:

Expressions such as ‘relating to’, ‘in relation to’, ‘in connection with’ and ‘in respect of’ are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute … The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.^[49]

12.43 In its good practice guide, Handling Misconduct, the APSC explains that ‘in connection with’ is used to connect a required standard of conduct in the Code and APS employment ‘where an employee’s actions may have some influence on how they perform their duties’.^[50] This can be compared with, for example, ‘in the course of employment’, which is used ‘in direct association with the particular conduct expected of APS employees at work’.^[51]

Reasonably foreseeable that disclosure could be prejudicial

12.44 Breach of reg 2.1(3) will occur if it is reasonably foreseeable that an APS employee’s disclosure could be prejudicial to the effective working of government. This sets out an objective test, based on what a reasonable person would decide in the same circumstances and with the same information.^[52] In a motion for disallowance of the Public Service Amendment Regulations 2004 (Cth)—which included an identical provision to the current reg 2.1(3)—Senator Kim Carr commented that:

‘could be prejudicial’ is … an extremely broad definition of an action and one which I say is aimed at intimidating public servants into not speaking out on any matter, because any action ‘could be prejudicial’ if the political masters of the Public Service deem it to be so.^[53]

Submissions and consultations

12.45 In DP 74, the ALRC proposed that reg 2.1 should be amended to apply to information:

• to which an APS employee has access ‘by reason of his or her employment’ (as compared with information obtained or generated ‘in connection with’ his or her employment);^[54] and
• where the disclosure is ‘reasonably likely to prejudice the effective working of government’ (as compared with where it is reasonably foreseeable that an APS employee’s disclosure could be prejudicial).^[55]

12.46 In particular, the ALRC proposed these amendments more narrowly focus the operation of the regulation, which it considered to be particularly important in light of the broad scope of ‘prejudice to the effective working of government’. The proposed amendments were also consistent with the proposed elements of the general secrecy offence.

12.47 Civil Liberties Australia supported the proposed amendments. In its view, the threshold for reg 2.1(3) ‘has been set far too low’ and ‘reasonable likelihood’ is a more appropriate model to follow.^[56] Ron Fraser agreed, noting that the current wording is ‘very wide’.^[57] A number of Australian Government agencies also supported the proposed amendments to the regulation.^[58]

12.48 However, several stakeholders questioned whether it was necessary or desirable to amend reg 2.1(3) as proposed. The APSC expressed the view that amending reg 2.1 to apply to information which is ‘reasonably likely to be prejudicial’ would ‘clearly water down the regulation while … asking individual public servants to make a much more difficult judgement’. The APSC also noted that the use of ‘in connection with’ had the benefit of capturing situations where an APS employee, for example, browses a database containing personal information out of interest, rather than accessing it in the performance of his or her official duties.^[59]

12.49 The Australian Crime Commission (ACC) also raised concerns about the proposed changes, noting that the disciplinary provisions should remain sufficiently broad in order to ‘encompass a range of minor wrongdoings that merits some indication of disapproval’.^[60] The Australian Privacy Foundation was concerned that the proposed amendments would excuse APS employees from any consequences relating to unauthorised disclosures that breach personal privacy, but are not considered to be prejudicial to the workings of government.^[61]

12.50 For others, however, the proposed changes did not go far enough. For example, although Whistleblowers Australia supported the ‘reasonably likely’ to cause harm threshold, it suggested that this benefit was largely undone by the retention of the ‘prejudice to the effective working of government’ requirement.^[62] The CPSU suggested that the ‘minor amendments’ proposed by the ALRC would not fix the broad scope and uncertainty of reg 2.1(3). It argued that even with this narrowing, the provision could still operate as a ‘catch-all provision of uncertain scope and indeterminate application’, remaining ‘an effective way of fostering a culture of secrecy in the public service and unnecessarily inhibiting openness and accountability of government’.^[63]

12.51 In comparison, in the view of the Australian Taxation Office (ATO), the proposed reforms would not significantly change the outcome of determinations under reg 2.1(3).^[64]

ALRC’s views

12.52 As indicated above, the ALRC accepts that prejudice to the effective working of government is a suitable statement of harm in the context of administrative disciplinary sanctions, given the need to encompass a wide variety of situations where an APS employee who discloses Commonwealth information without authorisation could appropriately be subject to disciplinary penalties. However, given the broad nature of the identified harm, a rigorous threshold is important to forestall the potentially indiscriminate application of the provision. In particular, the ALRC is concerned about the potential breadth of the application of the regulation to disclosures where it is reasonably foreseeable that prejudice could result to the effective working of government. The ALRC concludes, therefore, that the appropriate balance is achieved by limiting the regulation to apply to disclosures that are ‘reasonably likely’ to be prejudicial to the effective working of government.

12.53 In making this recommendation, the ALRC took into account the potential detriment of an APS employee not sharing information in some situations. Disclosing information is a core aspect of an open and accountable system of government—one of the factors to which the ALRC is directed to have regard in this Inquiry.^[65] An important part of facilitating a culture of open government in Australian Government agencies is ensuring that APS employees have confidence to disclose information in appropriate circumstances. Where a disclosure has no reasonable likelihood of prejudicing any aspect of the effective working of government, an APS employee should not be subject to sanctions (including disciplinary sanctions) for releasing the information.

12.54 Some stakeholders were concerned that a test of ‘reasonably likely to be prejudicial’ would be too narrow to adequately cover the range of disclosures warranting disciplinary action. In the ALRC’s view, this concern is largely dispelled by the manner in which courts have interpreted what is necessary to establish a ‘reasonable likelihood’. For example, in Department of Agriculture and Rural Affairs v Binnie, the Supreme Court of Victoria interpreted ‘reasonably likely to endanger’ a person’s life or physical safety in the context of the Freedom of Information Act 1982 (Vic). The Court agreed that ‘reasonably likely’ had a different connotation from ‘likely’ on its own. Rather, as stated by Marks J, the expression

speaks of a chance of an event occurring or not occurring which is real—not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is ‘odds on’, or where between nil and certainty it should be placed. A chance which in common parlance is described as ‘reasonable’ is one that is ‘fair’, ‘sufficient’ or ‘worth noting’.^[66]

12.55 This case concerned the Victorian freedom of information legislation. Because the interpretation of ‘reasonably likely’ may vary depending on the context of the legislation, the courts may adopt a slightly different test where the phrase is used to support administrative disciplinary proceedings.^[67] However, this line of reasoning strongly indicates that the revised regulation would not require a disciplinary authority to conclusively establish that prejudice from an unauthorised disclosure is more likely than not to occur.

12.56 The ALRC also recognises that disclosures that do not meet the higher threshold recommended for reg 2.1(3) may still be the subject of disciplinary proceedings on the basis of other requirements of the APS Code of Conduct, such as the obligation to ‘behave with honesty and integrity in the course of APS employment’ and ‘comply with all applicable Australian laws’. This would include, for example, compliance with relevant privacy laws.

12.57 Another concern that was raised was that a test of ‘reasonable likelihood’ would be a more difficult judgment for APS employees than the current test—that is, whether it is reasonably foreseeable that prejudice could result to the effective working of government. The ALRC does not consider this to be a valid reason for retaining an unduly broad secrecy provision. In Chapters 14 and 15 the ALRC makes a number of recommendations directed towards assisting APS employees and others to understand and comply with their information-handling responsibilities. These include, for example, that Australian Government agencies should develop and implement information-handling policies and guidelines clarifying the application of relevant secrecy laws to their information holdings^[68] and providing avenues for employees to raise queries or concerns.^[69] In the ALRC’s view, these strategies adequately address the potential difficulty that an APS employee may face in deciding whether the disclosure of information would be ‘reasonably likely’ to prejudice the effective working of government.

12.58 In the ALRC’s view, the application of reg 2.1(3) to information that an APS employee obtains or generates ‘in connection with’ his or her employment is appropriate. This terminology is consistent with other conduct requirements in the APS Code of Conduct. There is not a sufficient difference between the likely application of ‘in connection with’ and the term proposed in DP 74 ‘by reason of his or her employment’, to warrant reform. In particular, the general words ‘in connection with’ will be confined by the context of the regulation—namely, an ‘APS employee’s employment’.^[70]

Developing an interpretive framework

12.59 In DP 74, the ALRC noted stakeholder concerns that there was insufficient guidance available to APS employees on what disclosures would breach reg 2.1(3). The ALRC suggested that the regulation’s application could be clarified by establishing a framework for disciplinary authorities to use when determining whether particular conduct amounted to a breach. In particular, the ALRC proposed that disciplinary authorities should have regard to:

(a) the nature of the information disclosed, including the likelihood that it would be subject to release under the Freedom of Information Act 1982 (Cth) or through some other means; and

(b) the circumstances in which the disclosure is made, including whether the Australian Public Service employee took reasonable steps to comply with the agency’s information-handling policy or any lawful and reasonable direction concerning the disclosure of information.^[71]

12.60 The interpretive framework was designed to facilitate a complementary approach to secrecy and the Freedom of Information Act 1982 (Cth) (FOI Act) in an agency’s information-handling regime. The ALRC noted that the Australian Parliament has indicated in the FOI Act the types of information that warrant a heightened level of protection by specifying which documents may be denied access to by an agency. Both the Explanatory Statement for reg 2.1 and the APS Values and Code of Conduct in Practice make clear that the availability of these exemptions may indicate the potential for a disclosure to prejudice the effective working of government.

12.61 The ALRC acknowledged, however, that the nature of information is not usually sufficient, in and of itself, to determine the likelihood of harm to the effective working of government resulting from unauthorised disclosure by an APS employee. The circumstances of disclosure may be as, or more, important than the information itself. Accordingly, the proposed framework included consideration of whether an APS employee took reasonable steps to comply with the agency’s information-handling policy or a lawful and reasonable direction regarding the disclosure of information.

Submissions and consultations

12.62 A number of Australian Government agencies and other stakeholders supported the development of a framework for interpreting whether a disclosure was reasonably likely to harm the effective working of government.^[72]

12.63 However, several stakeholders were concerned that the proposed interpretive framework could require APS employees to become familiar with the complexities of FOI law.^[73] The APSC, for example, was concerned that an interpretive framework ‘would, in effect, read into the new regulation all of the exemptions and subtleties that relate to the release of material under the FOI Act’. This would be difficult for APS employees to consider ‘on the ground’. In the APSC’s view, its use would be more appropriate from a practitioner’s or investigator’s perspective.^[74]

12.64 The CPSU also suggested that the proposal should incorporate clear exceptions to the application of reg 2.1, for example:

where the disclosure of information causes embarrassment rather than harm to the government, generates legitimate political communication about matters of public interest or is trivial and inconsequential.^[75]

ALRC’s views

12.65 Throughout the course of this Inquiry, serious concerns have been expressed about the uncertain scope of reg 2.1(3). Clear criteria for assessing whether a disclosure was reasonably likely to cause harm to the effective working of government would go a long way towards addressing these concerns.

12.66 Broadly speaking, the disclosure of information by an APS employee could prejudice the effective working of government in two ways—by the nature of the information disclosed; or by the circumstances of the disclosure. The respective importance of these factors will be governed by the context of the disclosure. Where, for example, particularly sensitive information is disclosed, the dominant concern is the nature of the information. In other situations, an APS employee might, for example, make multiple disclosures of somewhat less sensitive information, each time breaching agency policies and guidelines. Here, the dominant concern is the circumstances of the disclosure.

12.67 The APS Values and Code of Conduct in Practice already advises that the exemptions set out in the FOI Act are ‘a useful starting point’ in determining whether a disclosure falls within the scope of reg 2.1. This guidance should be extended to outline other situations that may indicate that a disclosure of information is reasonably likely to prejudice the effective working of government. In particular, this would include where prejudice results from the circumstances of a particular disclosure, or series of disclosures—for example, the consistent failure by an APS employee to follow an agency’s policy for the release of information.

12.68 The ALRC agrees with the CPSU that it would be beneficial to identify situations where the effective working of government would not be prejudiced. This could include, for example, where the only prejudice that may result from the disclosure of information is embarrassment to the government, or where the disclosure is trivial and inconsequential. A clear statement that a disclosure that is merely embarrassing to the government does not constitute the requisite prejudice is consistent with the operation of the FOI Act^[76] as well as limitations that have been placed on the application of the equitable doctrine of breach of confidence to government information.^[77]