This paper seeks the views of the public, Australian Public Service (APS) agencies and employees about whether staffing decisions—in particular, decisions to terminate APS employees’ employment, and the reasons for doing so—should continue to be notified in the Australian Public Service Gazette (the Gazette).
All APS agencies are encouraged to respond. In addition, the Australian Public Service Commission (the Commission) would like to hear from other interested stakeholders, including individuals who have had their personal information published in this way.
Submissions will be published on the Commission’s website unless respondents request otherwise.
Terms of reference
Public confidence in public administration is crucial to the effective working of government, and often depends on the proper balance of competing interests. Public confidence in the APS relies on a transparent, accountable public service—but also on due regard being had to the privacy of individuals and to the effective management of the APS.
In this context, the Commission is reviewing the Service-wide practice of notification in the Gazette of employment decisions; in particular, of terminations of employment including the employee’s name and the reason for the termination.
Gazetting employment decisions provides assurance about the transparency of the APS and promotes confidence in the integrity of its administration. At the same time, however, an employee whose employment has been terminated has the right to privacy and to the protection of their reputation.
The Commission is therefore considering whether employment decisions should continue to be publicly notified in the Gazette, and if so to what level of detail.
How to provide comment
Questions about the consultation may be directed to the Ethics Advisory Service on (02) 6202 3737. Please send your comments by 22 April 2014 to the Ethics Advisory Service: ethics [at] apsc.gov.au or by post to:Ms Karin Fisher, Group Manager Ethics
Australian Public Service Commission
16 Furzer Street
Phillip, ACT 2606
The Parliamentary Joint Committee on Human Rights, in its consideration of the Australian Public Service Commissioner’s Directions 2013 (the Directions), wrote to the then Minister for the Public Service and Integrity seeking information about Directions requiring notification in the Australian Public Service Gazette (the Gazette) of certain employment decisions; in particular, the names of employees whose employment had been terminated and the grounds for their termination. The Committee raised these questions in the context of its assessment of the compatibility of the Directions with the International Covenant on Civil and Political Rights (ICCPR)—to which Australia is a signatory—with particular regard to the right to privacy guaranteed in article 17 of that Covenant, as well as the Convention on the Rights of Persons with Disabilities.
In response to the Committee’s letter, the Australian Public Service Commissioner (the Commissioner) undertook to consult publicly and review whether publication of termination decisions, and the grounds for termination, is in the public interest having regard to an individual’s right to privacy and to the Convention.
This paper examines the relationships between sometimes competing public and private interests, namely:
- the private interests of APS employees; in particular, their right to privacy and the protection of their reputation,
- the public interest in the protection of individuals’ privacy, and
- the interest of the public in its right to know how public resources are being managed.
Views on the right balance in upholding these competing interests will inform consideration of whether amendments are necessary to the Commissioner’s Directions on public notification of staffing decisions in the Gazette.
Public Notification of the Outcome of Staffing Decisions and Employees’ Names
The significance of the right to privacy and protection of reputation in the APS legislative framework was highlighted last year when the Parliamentary Joint Committee on Human Rights queried the requirement in the Australian Public Service Commissioner’s Directions 2013(Commissioner’s Directions) to notify employment decisions and the names of the employees concerned in the Australian Public Service Gazette (the Gazette).
The Chair of the Parliamentary Joint Committee on Human Rights wrote to the then Minister for the Public Service and Integrity in relation to certain provisions of the Commissioner’s Directions. The particular concerns identified by the Committee related to clause 2.29 of the Commissioner’s Directions which requires the gazettal of certain employment decisions. The Committee sought
clarification as to why it is necessary to publicise employment decisions in the Public Service Gazette, in particular publication of decisions to terminate employment and the grounds for termination, and how this is compatible with the right to privacy and the Convention on the Rights of Persons with Disabilities.
1. Gazettal of employment decisions—a history
The requirement to gazette certain employment decisions has been a feature of Public Service legislation for many years. Some provisions of the Public Service Act 1902 were re-enacted in substantially the same form when the Public Service Act 1922 was introduced; one of these (s.92) related to public notifications. Immediately before its repeal in December 1999, s.92 of the 1922 Act provided that ‘notice of every appointment, promotion, retirement or dismissal of officers’, as well as certain transfers ‘shall be published in the Gazette’.
Under the 1999 arrangements, the public notification requirement was moved to the regulations. Regulation 3.12 continued the requirement for public notification of certain employment decisions, including engagements, movements, assignments of duties, promotions, and terminations as well as retirements of SES employees under s.37 of the Public Service Act 1999 (the Act).
Regulation 3.12 was amended in December 2000 to include a specific requirement that the gazettal of termination decisions include the grounds for termination. The Explanatory Memorandum to the regulations explained the purpose of the amendment as being:
to assist the Public Service and Merit Protection Commission in monitoring and reporting on the types of separations from the APS.
Although in 2013 the requirement to notify employment decisions was moved from the regulations to the Commissioner’s Directions, the broad issue of the appropriateness of gazetting employment decisions was not considered as part of the preceding legislative review. That said, a new provision has been included in the Commissioner’s Directions that allows the Commissioner to agree to an agency withholding the name of an employee in a gazette notice in certain work-related or personal circumstances.
Under the current arrangements, the majority of employer-initiated employment decisions are required to be gazetted, although employee-initiated decisions such as resignation and retirements are not.
2. Practices in other Australian jurisdictions
Only two other Australian jurisdictions have a requirement to notify termination decisions in the equivalent of the Gazette.
In Tasmania, gazettal of all employment decisions, including termination, is taken as ‘conclusive evidence’ of the actions taken on the basis of these decisions. The notice must include the name, department, and date of effect, but not the reason for the termination of employment.
In the Australian Capital Territory, retirements and dismissals are notified together, without differentiation, in a single section of the gazette. The notice includes the employees’ name, but as there is no differentiation between retirement and dismissal, does not include reasons for termination.
3. Why publish names and employment decisions?
Public notification of APS employment decisions reinforces the openness, transparency and accountability of the APS. (One of the APS Values is ‘Accountable’ which includes being open to scrutiny and transparent in decision-making.)
3.1 Engagement and promotion decisions
Notifying engagement and promotion decisions in the Gazette allows the community to hold the public service to account that such decisions are based on the principle that the APS is staffed on merit and provides an easily accessible public record of when engagement and promotion decisions take effect. This public recordkeeping also facilitates the efficient management of the APS, including the process for employees to apply for review of promotion decisions.
The routine notification of such decisions impacts on the privacy of the employees but because this type of information is commonly disclosed as part of normal social interaction and because of the strong public interest grounds the practice is arguably justified. Should a public servant’s personal situation be such that it outweighs the public interest of disclosure, the Commissioner’s Directions allow for a name to be withheld on application to the Commissioner.
On balance there appear to be sound reasons for continuing to notify engagement and promotion decisions in the Gazette as a matter of routine.
3.2 Termination decisions
The rationale for publishing termination decisions, which contain the name of the employee and the grounds for termination, is not as strong.
The grounds on which an ongoing employee’s employment may be terminated are set out in section 29 of the Act which, among other things, gives employees, agencies and the public clarity around the situations in which termination is possible. These grounds are:
- the employee is excess to the requirements of the Agency;
- the employee lacks, or has lost, an essential qualification for performing his or her duties;
- non-performance, or unsatisfactory performance, of duties;
- inability to perform duties because of physical or mental incapacity;
- failure to satisfactorily complete an entry-level training course;
- failure to meet a condition imposed under subsection 22(6);
- breach of the Code of Conduct;
- any other ground prescribed by the regulations.
In 2012-13 there were 3137 employees whose employment was terminated (this figure includes SES employees accepting an incentive to retire under section 37 of the Act). Of the total number of terminations, 85.4% (2679) were on excess grounds (including SES incentives to retire), while 277 (or 8.8%) were terminations on the grounds of physical/mental incapacity and 181 (or 5.8%) involved termination on other grounds. Of these 181 other terminations, all were non-SES employees, and 38 employees had their employment terminated for a breach of the Code of Conduct.
Publishing names and the reasons for termination as a matter of routine in the Gazette assists the APS by providing an accessible and reasonably up to date public record of termination decisions which can be used to monitor these matters Service-wide and inform management decisions. The data supplements (and is occasionally used to reconcile) data published in the Australian Public Service Statistical Bulletin (the Bulletin). The Bulletin publishes on an annual basis the numbers of separations from the APS and includes comprehensive information on separations including by type of separation, agency, classification, length of service, age group and sex.
As well as providing an accurate record of termination decisions, publication of names and reasons for termination can assure the public that appropriate action is being taken in cases where the good management of the Service is compromised, such as in Code of Conduct and underperformance cases, particularly for senior employees whose decisions and actions may have a significant impact on the community.
Publication of the names of employees who receive a monetary benefit because they are ‘excess to requirements’ can also reinforce the openness, transparency and accountability of the APS. At present, the names of employees terminated because they are excess to requirements are gazetted, as are the names of SES employees who accept an incentive to retire under s.37 of the Act after being displaced due to the downsizing of an agency following a restructure, or where changing job requirements have resulted in a judgement being reached that an SES employee no longer possesses the appropriate skills required. (While retirement under s.37 of the Act is a voluntary process in that the employee must agree to the termination, the employee is considered to have retired involuntarily from the APS.)
While recognising that openness and transparency are important, such principles need to be balanced against the concerns expressed by the Committee about the impact on the privacy of employees.
When the requirement to publish termination decisions was introduced in 1902, personal information became protected by its ‘practical obscurity’ once archived, meaning that thereafter it could only be tracked down in a library or archive by a motivated researcher. Today, termination information published online in the Gazette is available years after the fact, and is discoverable via a search engine. This raises a new set of privacy challenges that may call for a different procedure.
The recently commenced Australian Privacy Principles (APPs), the legally binding principles which are the cornerstone of the privacy protection framework in the Privacy Act 1988, were designed to be technology neutral, applying equally to paper-based and digital environments. The APPs set out standards, rights and obligations in relation to handling, holding, accessing and correcting personal information. An underlying theme of the APPs is that personal information should only be used or disclosed for the purpose it was collected (or created) or a related secondary purpose that is within the individual’s reasonable expectations. While the publication of termination decisions would be possible under APP exceptions that allow for disclosure where it is required or authorised by or under an Australian law (in this case the Commissioner’s Directions), it may be useful to have regard to what a reasonable employee would expect in the circumstances.
Most employees would regard publication of information that would indicate that they are incapable of fulfilling their duties because of a physical or mental incapacity an unacceptable intrusion into their privacy. Many employees are also likely to consider that the publication of information indicating that they lack, or have lost, an essential qualification, failed to complete an entry-level training course, failed to meet a condition of their engagement (specified in subsection 22(6) of the Act), or are ‘excess to requirements’ as equally unacceptable.
In relation to termination of employment for a breach of the Code of Conduct and non-performance or underperformance of duties, employees may consider that the penalty of termination of employment is sufficient punishment and that public release of such information is an additional and unwarranted punishment.
On this basis, it is reasonable to consider removing the requirement to gazette termination decisions. The interests of transparency may be served in a different way; for example, by publishing information about termination of employment in aggregate form in the State of the Service report or the Bulletin.
While agencies provide the Commissioner with data on the reasons for termination, this has not been published to date in the Bulletin but could be—for example, in a way that does not identify individuals. Aggregate data on termination of employment for breaches of the Code of Conduct is routinely published in the State of the Service Report. Publication of aggregated data showing the reasons for termination in these circumstances may be sufficient to maintain public confidence in the APS and avoids naming individuals.
4. What change is proposed?
An amendment of the Australian Public Service Commissioner’s Directions 2013 is proposed to remove the current requirement to notify in the Gazette when an ongoing APS employee is terminated under section 29 of the Act (clause 2.29(1)(i)) or an SES employee is retired under section 37 of the Act (clause 2.29(1)(j)).
5. Questions on which views are sought
1. Is there any justification for publishing in the APS Gazette termination decisions that show the name of the employee and the reason for termination?
Are the goals of transparency and accountability sufficient to justify the intrusion on privacy entailed by gazettal? Is it necessary, in the interests of transparency and accountability, to include the employee’s name and the reason for the termination?
2. Is there any justification for treating particular termination decisions differently than others?
Are there some types of terminations for which the justification for continuing to publish names and reasons for termination is stronger, for example when employment is terminated as a result of underperformance or a breach of the Code of Conduct, or where a monetary benefit has been received?
Is it necessary, in the interests of transparency and accountability, to include the employee’s name when publishing these types of termination decisions? If decisions about other types of terminations of employment are not gazetted, is it reasonable to gazette a smaller subset of decisions?
3. Could the intention of the gazettal requirement be achieved in some other way?
Might it be sufficient, for example, to report in the Commissioner’s annual State of the Service report, or the APS Statistical Bulletin, on overall numbers of terminations of employment across the APS? Reasons for termination could be presented in aggregate form.
 The Committee noted that gazettal of termination decisions and the grounds for termination may infringe on the rights guaranteed in this Convention in cases where termination is due to physical or mental incapacity.
 See A History in Three Acts—Evolution of the Public Service Act 1999, now archived and available at http://www.apsc.gov.au/publications-and-media/archive/publications-archive/history-in-3-acts
 Clause 1.5 of the Australian Public Service Commissioner’s Directions 2013
 At the time of writing there are no other grounds prescribed by the Public Service Regulations.
 State of the Service Series, 2012-13, Australian Public Service Statistical Bulletin, Table 50 and State the Service Report, Table 3.7