Lawful and reasonable employer directions

14.54 All employees, including Commonwealth employees, must comply with any ‘lawful and reasonable direction’ issued by their employer. The scope of the common law duty to comply with lawful and reasonable directions is discussed in Chapter 12. In particular, employees are obliged to comply with a command that ‘relates to the subject matter of the employment’, ‘involves no illegality’ and is ‘reasonable’.[52] In the context of the public service, a somewhat broader test for the lawfulness of directions is likely to apply. [53]

14.55 The capacity to issue directions to staff can play an important role in establishing a comprehensive administrative information-handling framework. For example, in Chapter 6 the ALRC considers the regulation of unauthorised access to Commonwealth information and expresses the view that, in most circumstances, this does not warrant criminal sanctions and accordingly should not be an element of the recommended general secrecy offence. However, Australian Government agencies that hold large databases of sensitive information could issue a direction to staff prohibiting inappropriate ‘browsing’. This would operate in addition to other administrative secrecy requirements, for example, in reg 2.1 of the Public Service Regulations.

14.56 In this Inquiry, the ALRC heard concerns about the relationship between an agency’s information-handling policy and ‘lawful and reasonable directions’ to employees.[54] In the 1994 judgment of the Federal Court in Phillips v Secretary, Department of Immigration and Ethnic Affairs, Wilcox J considered whether an administrative policy amounted to an ‘instruction’, compliance with which was required under the Public Service Regulations 1935 (Cth) (the predecessor to the current Public Service Regulations).[55] Despite the fact that the document was expressed to be an ‘instruction’, Wilcox J found its general context to be the provision of advice to officers on how they should comply with obligations sourced elsewhere. He stated that:

A breach of [the Public Service Regulations] is not a criminal offence, but it exposes an officer to the sanction of dismissal. This sanction may be more severe than many criminal penalties. It seems to me that, in such a situation, the word ‘instruction’ … should be confined to such commands as are unequivocally intended to create new legal obligation.[56]

14.57 On the basis of this reasoning, information-handling policies and guidelines would be unlikely, without more, to be interpreted as legally binding instructions—that is, ‘lawful and reasonable directions’.

14.58 In response to IP 34, Whistleblowers Australia advised that the Chief Executive Officer of the Australian Customs Service had previously issued a direction that ‘any and all information obtained by or generated in the Customs Service’ was protected information and subject to a duty of non-disclosure. Whistleblowers Australia commented that some boundaries must be placed on the secrecy directions that can be given by an agency head.[57]

14.59 In Bennett v President, Human Rights and Equal Opportunity Commission, Finn J held that a direction issued by an Australian Government agency to employees will not be ‘lawful and reasonable’ where it infringes the implied constitutional guarantee of freedom of communication about government and political matters.[58] As expressed by Finn J:

It is not sufficient simply to contend that [an agency] gave lawful and reasonable directions with which [the employee] was bound to comply when there would be a real issue between the parties as to whether the directions given were lawful and reasonable.[59]

14.60 In DP 74, the ALRC proposed that Australian Government agencies should review administrative secrecy requirements that differ from reg 2.1 of the Public Service Regulations, including ‘lawful and reasonable directions’ issued to employees, to ensure that these are consistent with the implied constitutional freedom of political communication.[60] Those stakeholders that commented on this proposal expressed support.[61] Whistleblowers Australia suggested that a statutory provision should be enacted providing that lawful and reasonable directions must comply with the implied constitutional freedom.[62]

ALRC’s views

14.61 A focus of the ALRC’s recommendations in this and the preceding chapter is on establishing a consistent and effective administrative secrecy framework in the Australian Government. In particular, the ALRC recommends that equivalent secrecy obligations to those set out in reg 2.1 of the Public Service Regulations should apply to all Commonwealth employees, except where differences are necessary to accommodate an employing agency’s specific functions or structure.[63] Above, the ALRC recommends that Australian Government agencies should develop and implement information-handling policies that clarify the application of these obligations in the particular context of their information holdings.[64] This combination provides a sufficiently nuanced secrecy framework to accommodate most information handling by Commonwealth employees.

14.62 However, as noted above, there may be situations where the potential consequences of the disclosure of Commonwealth information justify an agency giving directions to its employees over and above the standard conduct requirements. In this context, one of the limits on an agency’s discretion is the relationship between the direction and the implied constitutional freedom of political communication.

14.63 The ALRC recommends that Australian Government agencies that have issued ‘lawful and reasonable’ secrecy directions to employees, should review these requirements for consistency with the implied constitutional freedom of political communication. Consistently with Recommendation 15–4, the proposed Information Commissioner could play a role in overseeing agency reviews.

14.64 In the ALRC’s view, it is unnecessary for the Public Service Act 1999 (Cth) or other legislation to provide that directions to employees must comply with the implied constitutional freedom of political communication. As a constitutional requirement, this restriction will apply regardless of any additional statutory expression.

Recommendation 14–3 Australian Government agencies should review ‘lawful and reasonable’ secrecy directions issued to employees to ensure that these are consistent with the implied constitutional freedom of political communication.

[52]R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601, 621–622.

[53] P Vermeesch, Legal Briefing No 80: Misconduct in the Australian Public Service (2006) Australian Government Solicitor. The AGS has advised that a direction to an APS employee can be lawful if it involves no illegality; is reasonably adapted to protect the legitimate interests of the Commonwealth; and is reasonable in all the circumstances.

[54] See, eg, Public Interest Advocacy Centre Ltd, Submission SR 38, 9 March 2009, which noted the need for clarification in this regard.

[55] Under reg 8A of the Public Service Regulations 1935 (Cth), officers were required to comply with ‘any enactments, regulations, determinations, awards or departmental instructions applicable to the performance of his or her duties’.

[56]Phillips v Secretary, Department of Immigration and Ethnic Affairs (1994) 48 FCR 57, 81.

[57] Whistleblowers Australia, Submission SR 40, 10 March 2009.

[58]Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334. The implied constitutional freedom of political communication is discussed in Ch 2.

[59] Ibid, [121].

[60] Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009) Proposal

[61] Department of Human Services, Submission SR 83, 8 September 2009; Department of Health and Ageing, Submission SR 81, 28 August 2009; R Fraser, Submission SR 78, 21 August 2009; Indigenous Business Australia, Submission SR 64, 13 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009.

[62] Whistleblowers Australia, Submission SR 74, 17 August 2009.

[63] Recommendation 13–1.

[64] Recommendation 14–1.