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RELEVANT CASES AND AIRC DECISIONS DURING 2003—04

BENNETT V HREOC

A decision by the Federal Court (Bennett v HREOC (2003) FCA 1433) handed down by Finn J on 10 December 2003 has had a significant impact on the framework for the management of disclosure of information in the APS. The decision casts serious doubt on the validity of PS regulation 2.1, which regulates the disclosure of information by APS employees, and was regarded prior to the decision as part of the APS Code of Conduct.

The Federal Court took the view that PS regulation 7(13) (a regulation made under the repealed Public Service Act 1922 (Cwlth) but almost identical to regulation 2.1) was invalid as it infringed the implied constitutional freedom of political communication. The Australian Government did not appeal the decision.

The PS Commissioner wrote to all agency heads shortly after the decision advising that agency heads and delegates should not:

• regard regulation 2.1 as an effective part of the APS Code of Conduct
• initiate or continue inquiries into a suspected breach of the Code that rely solely on regulation 2.1
• rely on regulation 2.1 as the basis for giving a lawful and reasonable direction to an APS employee
• 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 (Cwlth).

Agency heads were also given advice about alternative sources of law to regulate the disclosure of information by APS employees in the absence of a valid regulation, such as in specific statutory provisions (including other elements of the Code of Conduct) in common law and in equity.

The PS Commissioner foreshadowed that he would consider proposing to Government a replacement regulation. In developing a possible replacement regulation, the APS Commission is giving careful and serious consideration to the comments made by Finn J in the Bennett case.

WILLIAMS V CENTRELINK

During the year there were a number of APS termination decisions referred to the AIRC. In the Williams case, the AIRC revisited some of the principles applying to the calculation of sanctions for misconduct.⁹

Mr Williams was terminated from employment at Centrelink after sending 23 emails containing ‘pornographic or otherwise sexually explicit images’ to other Centrelink employees and people outside that organisation. Mr Williams contested his termination from Centrelink on the basis that it was ‘harsh, unjust or unreasonable’.

The AIRC rejected Mr Williams’ submission. It affirmed the principle that there are a number of matters that should properly be taken into account in imposing a sanction and that consistency with sanctions imposed for other similar acts of misconduct was only one of the things that needed to be considered.

In Mr Williams’ case, for example, the AIRC drew particular attention to the fact that Mr Williams was a workplace harassment contact officer, that he was a relatively senior employee, and that he showed no contrition for his actions but, rather, persistently blamed the actions of others for failing to prevent his conduct.

9 Williams v Centrelink U2003/4372 PR 942762