Commonwealth employees outside the APS

13.4 As discussed in detail in Chapter 12, the Public Service Act and related instruments establish a comprehensive administrative secrecy regime for APS employees.[1] However, many Commonwealth employees, including those who may handle some of the most sensitive Commonwealth information, fall outside the ambit of the Public Service Act and therefore are not subject to the APS Code of Conduct. These include:

  • members of the Australian Defence Force (ADF);
  • members of the Australian Federal Police (AFP);
  • employees of the Australian Security Intelligence Organisation (ASIO) and the Australian Security Intelligence Service (ASIS);
  • employees and office holders of statutory authorities and corporations; and
  • ministerial staff and employees of parliamentary departments.

13.5 The disciplinary framework relevant to secrecy obligations that applies to these employees is summarised below.

Members of the ADF

13.6 The Defence Force Discipline Act 1982 (Cth) (DFD Act) establishes the disciplinary regime applicable to ADF members. There are two secrecy provisions in the DFD Act. Section 16 prohibits communications with, or the giving of intelligence to, the enemy. Section 58 prohibits the unlawful disclosure of information likely to be prejudicial to the defence or security of Australia.

13.7 Responsibility for investigating suspected breaches of the DFD Act rests with the service police forces under the overall command of the Provosts-Marshall. Service police forces decide whether or not to investigate incidents, refer offences to civilian criminal authorities for investigation and, when required, conduct investigations and provide evidence to support prosecutions of service offences.[2]

13.8 Under the DFD Act, the manner in which a charge for breach is dealt with—and the potential punishment for any finding of breach—depends on the ‘service tribunal’ to which the hearing of the breach is allocated: a summary authority or a higher order body.[3] Summary authorities comprise officers of the ADF. They try service offences in a manner broadly akin to a civilian criminal trial, in accordance with detailed procedural requirements set out in the Summary Authority Rules 2008 (Cth). Although the Rules reflect many of the due process requirements of the general law, there are also some significant departures. For example, while an accused person has a right to representation by a member of the ADF, there is no automatic right to a legal representative.

13.9 Between 1 October 2007 and 26 August 2009, more serious service offences were tried by the Australian Military Court (AMC)—a permanent military court independent of the ADF chain of command.[4] In the case of Lane v Morrison, however, the High Court held that the provisions of the DFD Act that established the AMC were unconstitutional, on the basis that the AMC exercised the judicial power of the Commonwealth but did not satisfy the requirements for a federal court set out in Chapter III of the Australian Constitution. The Commonwealth’s defence power (which had been relied on to uphold previous military justice systems) could not overcome this inconsistency.[5]

13.10 At the time of writing, the former military justice system of trials by court martial and Defence Force magistrate had been reinstated as an interim measure[6] and the Australian Government is considering options for a permanent replacement for the AMC.[7]

Members of the AFP

13.11 The Australian Federal Police Act 1979 (Cth) (AFP Act) and the Australian Federal Police Categories of Conduct Determination 2006 (Cth) establish the disciplinary regime relevant to AFP appointees.[8]

13.12 The AFP Act sets out the overarching disciplinary framework for misconduct by AFP appointees. The Act provides for four categories of AFP misconduct of escalating seriousness:[9]

  • Category 1: inappropriate conduct that relates to minor management or customer service matters, or reveals a need for improvement in performance;[10]
  • Category 2: minor misconduct or inappropriate conduct that reveals unsatisfactory behaviour which, because of its repeated nature, warrants being treated as category 2 conduct;[11]
  • Category 3: serious misconduct that raises the question whether termination action should be taken or involves a breach of the criminal law or serious neglect of duty;[12] and
  • Conduct giving rise to a corruption issue.

13.13 The conduct that falls within categories 1, 2 and 3 is described in the Australian Federal Police Categories of Conduct Determination. Breach of a secrecy provision could amount to category 2 conduct if it involves ‘accidental or unintentional access or disclosure of information which the AFP appointee had a duty not to disclose or should not have had access’.[13] A more serious breach could fall within category 3 conduct if it involves: ‘improperly disclosing or failing to protect from improper disclosure, sensitive information held by the AFP’, ‘unlawfully or improperly accessing AFP information’, or breaching any criminal law other than one relating to Commonwealth fraud.[14]

13.14 Category 1 and 2 conduct issues are dealt with by an appointee’s manager and the AFP Act sets out detailed procedural requirements for handling them.[15] These include requirements for a manager to ensure that the AFP officer and the complainant (if any) have an adequate opportunity to be heard in relation to the issue; and to ensure that the AFP officer is involved, as far as practicable, in the resolution of the issue. Where a manager is satisfied on reasonable grounds that an AFP appointee has engaged in category 2 conduct the manager may take remedial action, training and development action, or both, against the appointee.[16]

13.15 More formal investigation processes apply to category 3 conduct and corruption issues. Investigations are conducted by an allocated officer of an AFP unit specifically constituted to undertake investigations of misconduct by AFP appointees.[17] The Commonwealth Ombudsman must also be notified of any investigation of a category 3 conduct issue.[18] Where an investigator is satisfied, on reasonable grounds, that an AFP appointee has engaged in category 3 conduct, the investigator may recommend any one or more of the following: termination; remedial action; training and development action; or any other action that the Commissioner can take in relation to the AFP appointee.[19]

Employees of ASIO and ASIS

13.16 Unlike other officers of the Australian Intelligence Community (AIC),[20] employees of ASIO and ASIS are not employed under the Public Service Act, but rather under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) and the Intelligence Services Act 2001 (Cth), respectively. While ASIO and ASIS employees are subject to criminal secrecy offences,[21] no express administrative secrecy obligations or penalties are set out in their respective legislation.

13.17 Under s 86 of the ASIO Act, the terms and conditions of employment of officers and employees of ASIO ‘are determined from time to time by the Director-General’. The Act provides only minimal requirements for such employment conditions—principally, that an officer’s employment can only be terminated in accordance with a term or condition of that employment.[22] While information on ASIO’s terms and conditions of employment is not publicly available, ASIO advises that ‘ASIO’s conditions of service are similar to those of the Australian Public Service’.[23] ASIO has also developed a Code of Conduct to define the ‘personal and professional standards’ expected of ASIO officers, which includes using official information in a ‘proper and reasonable manner’.[24]

13.18 The Intelligence Services Act is somewhat more prescriptive as regards the terms and conditions of ASIS employment. As with ASIO, the Director-General of ASIS may determine the terms and conditions on which employees are to be employed. The Director-General of ASIS is obliged, however, to consult with affected employees about these conditions.[25] Further, the Act prescribes that:

Although employees of ASIS are not employed under the Public Service Act 1999, the Director-General must adopt the principles of that Act in relation to employees of ASIS to the extent to which the Director-General considers they are consistent with the effective performance of the functions of ASIS.[26]

13.19 The Director-General is also under an obligation to establish staff grievance procedures, adopting the principles of the Public Service Act to the extent that they are consistent with the effective performance of the functions of ASIS.[27] The procedures must include:

  1. initial consideration of grievances by the Director-General or a person authorised in writing by the Director-General; [and]
  2. establishment of Grievance Review Panels chaired by independent Chairs to make determinations reviewing initial consideration of grievances.[28]

Employees and office holders of statutory authorities

13.20 A Commonwealth statutory authority can be defined as any public sector entity created by a specific law of the Commonwealth.[29] There are approximately 150 statutory authorities in the Commonwealth sphere, with diverse legal frameworks and governance structures.[30] In particular, there is variation in whether the authority is an agency prescribed under the Financial Management and Accountability Act 1997 (Cth) (FMA Act)[31] or an authority subject to the Commonwealth Authorities and Companies Act 1997 (Cth) (CAC Act).[32] Every Commonwealth statutory authority must operate in accordance with the governance framework set out in one of these Acts.

13.21 The functions performed by statutory authorities also vary widely. For example, some of the statutory authorities subject to the CAC Act, such as the ALRC, undertake a public policy function, largely separate from the commercial sphere. Others, such as the Australian Postal Corporation, undertake functions that are more closely akin to business activities in the private sector. Professor Roger Wettenhall has commented on the lack of a clear classification system for public sector entities, and the challenges that this creates:

We all know that structures abound with formal titles such as ‘department’, ‘division’, ‘bureau’, ‘commission’, ‘council’, ‘authority’ and so on, but we lack a classificatory system which might align such apparent class-names with agreed sets of purposes or operating conditions. There is room for confusion when a department here seems to be discharging similar functions to a bureau or a commission there, or when a board is renamed a commission simply as a sort of rejuvenating exercise, without major structural redesign. Equally unhelpfully, moderns in the [New Public Management] tradition sometimes abandon explanatory class-names altogether—as in recent Australian cases such as Transport Australia, Environment Australia, or Planning and Land Management.[33]

13.22 The conduct requirements—including the secrecy obligations—that apply to employees of Commonwealth statutory authorities depend on the status of the employing authority under the Public Service Act. For many statutory authorities, the statutory office holder and his or her staff constitute a ‘statutory agency’ within the meaning of the Public Service Act.[34] In such cases, the administrative framework in the Public Service Act applies—including the APS Code of Conduct and procedures for suspected breaches of the Code.

13.23 For statutory authorities that employ staff other than under the Public Service Act, the terms and conditions of employment are usually left to a Certified Agreement or the discretion of the authority itself (or a particular person or persons within the authority).[35] The terms and conditions of appointment of statutory office holders generally are at the discretion of the responsible minister or the Governor-General.[36]

13.24 The terms and conditions of employment for some, but not all, statutory authorities include express secrecy obligations. These differ in respect of their level of detail and the degree to which they diverge from the APS Code of Conduct. Differences also arise with regard to the administrative penalties made available to the authority and the processes for dealing with suspected breaches. For example, one of the Key Performance Indicators in the Employee Collective Agreement for the Australian Institute of Criminology is that ‘staff [will] conduct themselves in a manner which is consistent with the Public Service Code of Conduct’.[37]

13.25 Somewhat more targeted requirements are set out in the terms and conditions of employment for the Australian Prudential Regulation Authority (APRA). Section 48AC of the Australian Prudential Regulation Authority Act 1998 (Cth) (APRA Act) requires that the Chair must determine a Code of Conduct for APRA, but does not include any guidance on the content of the Code.[38] The APRA Code of Conduct was issued on 1 July 2007 and includes a provision about information handling:

If you have access to confidential or sensitive information you should respect that confidentiality/sensitivity. You should take care to follow correct procedures, to ensure that information is not released to any unauthorised parties, including those who could seek to benefit financially or in other ways from its disclosure. Your attention is drawn to sections 56 and 57 of the Australian Prudential Regulation Authority Act 1998 that relate to secrecy and to sections 70 and 79 of the Crimes Act 1914. Copies of the sections are available from the General Manager Human Resources.[39]

13.26 The APRA Code also includes a number of procedures that are ‘designed to ensure that a staff member under investigation is treated fairly and is given a reasonable opportunity to respond to allegations’.[40]

13.27 The APRA Code provides for a range of administrative penalties ranging from counselling or mediation for minor breaches through to transfer from a position, suspension from duty, exclusion from a performance payment or a reduction in pay or classification level for more serious or ongoing breaches. Provided a member of APRA’s Executive Group gives approval, an employee may be dismissed for major breaches or a failure to heed reprimands or warnings.[41]

13.28 Part 3 div 4 of the CAC Act sets out some of ‘the most significant duties’ of officers and employees of Commonwealth authorities governed by that Act.[42] These provisions are a mix of civil and criminal penalty provisions. The ALRC has not classified any of these provisions as secrecy provisions. However, s 22 imposes an obligation on officers and employees to exercise their powers with care and diligence and in good faith; and ss 24 and 25 impose an obligation not to use their position—or information gained because of their position—to gain personal advantage or cause detriment to the Commonwealth or to another person.[43] These are civil penalty provisions. Where a court has determined that an officer has contravened one of these obligations, the relevant minister may apply for a pecuniary penalty order in an amount of up to $200,000. In making such an order, the court must be satisfied that the contravention ‘materially prejudices the interests of the Commonwealth authority or Commonwealth company’; ‘materially prejudices the ability of the Commonwealth authority or Commonwealth company to pay its creditors’; or ‘is serious’.[44]

13.29 No equivalent obligations or penalties are set out in the FMA Act.

Ministerial staff and employees of parliamentary departments

Employees of parliamentary departments

13.30 The parliamentary departments—being the Department of the Senate, the Department of the House of Representatives and the Department of Parliamentary Services—provide information, advice and support to the Houses of Parliament, and to parliamentary committees, senators and members.

13.31 Prior to 1999, employees of the parliamentary departments were governed by the same legislation as the APS.[45] This changed with the introduction of the Parliamentary Service Act 1999 (Cth), which established a separate framework for the employment of staff in the parliamentary departments.

The framework follows that established by the Public Service [Act] except where differences are necessary to reflect the unique character of the parliamentary service and the obligation of parliamentary staff to serve the Parliament.[46]

13.32 Under the Parliamentary Service Act, employees of parliamentary departments must comply with the Parliamentary Service Code of Conduct.[47] Many of the obligations imposed by this Code are equivalent to those set out in the APS Code of Conduct.[48] For example, a parliamentary departmental employee is under a duty to comply with all applicable Australian laws when acting in the course of his or her employment;[49] and to maintain ‘appropriate confidentiality’ about dealings that he or she has with Houses of Parliament and parliamentary committees and their members.[50]

13.33 The Parliamentary Service Code of Conduct also requires employees to ‘comply with any other conduct requirement that is made by either House of the Parliament or by determinations’.[51] A secrecy obligation is set out in cl 2.3.1 of Parliamentary Service Determination 2003/2 (Cth), which provides that:

Parliamentary Service employees must not, directly or indirectly, give or disclose to any person any information about the affairs of any other person or body which they acquire in the course of their employment unless:

  1. they are required to do so in the course of their duties; or
  2. they have the Secretary’s express authority to do so.

13.34 Section 15 of the Parliamentary Service Act sets out an exhaustive list of the penalties that a secretary may impose on a parliamentary service employee who breaches the Code of Conduct.[52] Procedures for determining whether an employee has breached the Code of Conduct must ‘have due regard for procedural fairness’ and comply with any requirements in a direction from the Parliamentary Service Commissioner.[53]

Staff of ministers and other Members of Parliament

13.35 Stakeholders in this Inquiry,[54] and other inquiries,[55] have suggested that a large number of unauthorised disclosures of official information come from ministers or ministerial advisers, for the purpose of satisfying political goals.

13.36 People employed by Members of Parliament (including ministers and other parliamentary office-holders) are engaged under the Members of Parliament (Staff) Act 1984 (Cth) (MOPS Act).

13.37 In its 2003 inquiry into the framework for employment and the management of staff under the MOPS Act, the Senate Finance and Public Administration References Committee remarked on the ‘almost complete control’ the Act gives the Prime Minister over the conditions of employment for MOPS staff.[56] The MOPS Act itself does not directly impose any secrecy obligations on employees, nor is the ALRC aware of such obligations arising as a consequence of other employment frameworks for MOPS staff, other than those arising under the general law.

13.38 In the specific context of ministerial staff, however, additional conduct requirements apply. The Code of Conduct for Ministerial Staff came into operation on 1 July 2008 and sets out the standards that ministerial staff are expected to meet in the performance of their duties.[57] Many of these standards are essentially the same as those set out in the APS Code of Conduct and the Parliamentary Service Code of Conduct.[58] Other conduct requirements are specifically tailored to issues arising out of the particular functions of ministerial staffers, such as a requirement for staff to ‘acknowledge that ministerial staff do not have the power to direct APS employees in their own right and that APS employees are not subject to their direction’.[59]

13.39 The Code of Conduct for Ministerial Staff does not include a secrecy provision equivalent to reg 2.1 of the Public Service Regulations 1999 (Cth) (or the related duty in the Parliamentary Service Code of Conduct). The Code does, however, require ministerial staff to ‘maintain appropriate confidentiality about their dealings with their Minister, other Ministers, other Ministerial staff, and APS and Parliamentary Service employees’.[60]

13.40 The Senate Finance and Public Administration Reference Committee has supported distinguishing between the conduct requirements of ministerial staff and other MOPS employees in the following terms:

Ministerial advisers are in many ways functionally the same as public servants: they are employees of the executive arm of government, there to implement the government’s policies. This is why in most jurisdictions … ministerial staff are public servants subject to a number of special conditions. It is their attachment to the executive arm that distinguishes them from all other MOPS employees, who, even though they may have partisan loyalties, serve the needs of their employer as a Member of Parliament.[61]

Submissions and consultations

13.41 In the Discussion Paper, Review of Secrecy Laws (DP 74), the ALRC expressed the view that there should be a shift in emphasis away from relying on broad criminal provisions and towards relying more heavily on administrative processes. Accordingly, the ALRC stressed the importance of having in place suitable administrative secrecy obligations, supported by just and effective procedural frameworks, for all Commonwealth employees. On this basis, the ALRC proposed that:

Australian Government agencies that employ persons other than under the Public Service Act 1999 (Cth)—including agencies prescribed under the Financial Management and Accountability Act 1997 (Cth) and bodies subject to the Commonwealth Authorities and Companies Act 1997 (Cth)—should:

  1. include in the agency’s terms and conditions of employment the requirements set out in reg 2.1 of the Public Service Regulations 1999 (Cth), to the extent that these requirements are consistent with the agency’s functions and structure; and
  2. adopt the safeguards set out in the Public Service Act for dealing with suspected breaches of reg 2.1, to the extent that these safeguards are consistent with the agency’s functions and structure.[62]

Framing administrative secrecy requirements

13.42 Most stakeholders that commented on this issue supported the proposal that the conduct requirement in reg 2.1 of the Public Service Regulations should be the standard administrative secrecy requirement applying to all Commonwealth employees.[63] The Australian Privacy Foundation agreed that the proposed approach was ‘reasonable in principle’, subject to its concerns with the proposed revisions to reg 2.1, discussed in Chapter 12.[64]

13.43 The Australian Crime Commission (ACC) gave in-principle support for this proposal but submitted that, in light of the sensitive nature of its information holdings, it may require more specific administrative secrecy requirements than those set out in reg 2.1.[65] The ACC also commented on its ‘unusually complex employment situation’, including APS employees, secondees employed under the AFP Act and other legislation, and contractors, suggesting that ‘this is a clear example of the need to impose the same standards of conduct irrespective of the employment regime that applies to individual staff members’.[66]

13.44 Mixed staffing arrangements were also raised in an earlier submission by the Australian Securities and Investments Commission (ASIC), employees of which include both APS employees and persons employed under s 120(3) of the Australian Securities and Investments Commission Act 2001 (Cth).[67] ASIC requires persons engaged under s 120(3) to comply with the APS Code of Conduct and other ASIC policies and procedures.[68]

Processes for investigation and enforcement

13.45 A number of stakeholders agreed that Australian Government agencies should adopt the safeguards set out in the Public Service Act for dealing with suspected breaches of administrative secrecy obligations, to the extent that these are consistent with the agency’s functions and structure.[69] The AGD commented in its submission on IP 34 that it ‘can see value’ in disciplinary processes being consistent with those applicable in the APS:

The majority of disciplinary processes for non-APS Commonwealth officers incorporate natural justice principles, such as the ability to respond to allegations and options for reconsideration of a decision. Where there is no merits review of penalties imposed on non-APS Commonwealth officers, consideration could be given to the appropriateness of introducing such a process.[70]

13.46 However, several Australian Government agencies suggested that the proposed approach would be difficult to implement. For example, the ACC—staff of which includes APS employees, secondees, and contractors—commented that, beyond some ‘core elements’, in some situations ‘the ideal of imposing unified processes for investigation and enforcement on a mixed workforce is unlikely to be feasible in practice’.[71] APRA noted that s 48AC of the APRA Act already sets out processes for dealing with suspected misconduct, and did not support the development of separate processes for dealing with breach of secrecy provisions.[72]

13.47 The Australian Privacy Foundation sought assurance that disciplinary action would be an option for ‘all categories of individuals to whom the obligations applied’, including ministers and ministerial staff, parliamentary staff, contractors and volunteers.[73]

ALRC’s views

13.48 A key component of the ALRC’s recommended regulatory framework is that—except in the most serious cases—the unauthorised disclosure of Commonwealth information should generally be dealt with through administrative processes and, where necessary, disciplinary proceedings, rather than through the criminal law. Accordingly, a sound administrative secrecy regime must be in place for all Commonwealth employees—not only APS employees.

Framing administrative secrecy requirements

13.49 The ALRC recommends that Commonwealth employees who are not employed under the Public Service Act should usually be subject to obligations of non-disclosure that reflect those set out in reg 2.1 of the Public Service Regulations, including the ALRC’s recommended amendments to this regulation. This will ensure that there is ‘a consistent approach across government to the protection of Commonwealth information’ at the administrative level—a key objective in the Terms of Reference for this Inquiry.[74]

13.50 The ALRC notes the advice from ASIC that the staff it employs other than under the Public Service Act are nevertheless required to comply with the APS Code of Conduct. Other statutory authorities—for example, the Australian Institute of Criminology and the ALRC itself—have voluntarily taken on the APS Code of Conduct as the template for their employee conduct requirements. This illustrates that it will often be appropriate for equivalent administrative secrecy obligations to apply to employees inside and outside of the APS.

13.51 Moreover, the standard set out in reg 2.1 could be adopted as the administrative secrecy requirement for a particular class of Commonwealth employees even where the entire APS Code of Conduct may not be applicable. For example, some of the conduct requirements in the Parliamentary Service Code of Conduct differ from those that apply to the APS because of the political environment within which parliamentary departments operate. However, the ALRC considers that there is no policy rationale to justify the minor differences between the wording of reg 2.1 and the administrative secrecy requirements that currently apply to employees of parliamentary departments and ministerial staff employed under the MOPS Act.

13.52 In some situations, however, the duties of a Commonwealth employee may be sufficiently different from those in the APS to warrant distinct administrative secrecy obligations. For example, it has been argued that for the ADF to function effectively, members must work within a very different disciplinary regime from that which applies elsewhere in the APS. As one stakeholder submitted to the Senate Foreign Affairs, Defence and Trade References Committee inquiry into the effectiveness of Australia’s military justice system:

a democracy cannot maintain an effective Defence Force without that force being subject to a code of disciplinary legislation that specifically covers the purposes, situations, conditions and exigencies of war. No extension of civil codes of law can, or necessarily should, meet those requirements.[75]

13.53 In the context of the ACC, the Commonwealth Ombudsman has recommended that unauthorised accessing of information should constitute ‘a serious breach of ACC policy’.[76] This would reflect misconduct provisions that apply to members of the AFP. Unauthorised access, however, is not expressly covered in the APS Code of Conduct. Considering the sensitivity of much of the information held by law enforcement agencies, this may illustrate another situation where divergence from the standards set out in reg 2.1 would be warranted.

13.54 Another option to accommodate differences between the secrecy standards set out in reg 2.1 and those that are considered appropriate for particular Commonwealth employees is for an Australian Government agency to issue a direction to its staff. The role of ‘lawful and reasonable directions’ in administrative information-handling frameworks is considered in Chapter 14.

Processes for investigation and enforcement

13.55 As noted above, the Public Service Act and related instruments provide high-level procedural safeguards for the investigation and determination of suspected breaches of secrecy provisions. These reflect general administrative law principles,[77] including requirements that:

  • the procedure for determining whether any Australian Government employee has breached an administrative secrecy provision has ‘due regard to procedural fairness’;[78]
  • employees are given information, and a reasonable opportunity to make a statement, before a determination of breach is made;[79]
  • processes for determining breaches are carried out informally and expeditiously;[80] and
  • a person who determines whether an employee has breached an administrative secrecy requirement is, and appears to be, independent and unbiased[81]

13.56 These obligations will be appropriate in the vast majority of Australian Government employment situations. In limited circumstances, however, particular features of the employing agency may warrant a different approach.

13.57 For example, the heightened difficulty of investigating misconduct in the context of law enforcement, and the special position of trust that is accorded to law enforcement officers, may justify some variations from the procedural safeguards set out in the Public Service Act. In the report, Integrity: But Not by Trust Alone, the ALRC noted the special difficulties in investigating police misconduct:

  • police know the system and are likely to have early warning of any interest in their activities
  • they are skilled in investigation techniques and counter surveillance
  • they are likely to have corrupt associates willing to cover for them
  • they are experienced in being interviewed, in being cross examined and in giving evidence
  • their good credibility and character are readily assumed by jurors, courts and tribunals
  • they can exert considerable personal influence over internal informants and internal investigators particularly if they hold senior rank.[82]

13.58 What, if any, variations are warranted should be considered by the Australian Government on an agency-by-agency basis, including any variation that may be necessary within an agency to accommodate mixed staffing arrangements such as contractors and secondees.

13.59 The ALRC’s recommendation for procedural safeguards is only stated to apply to suspected breaches of secrecy provisions, in accordance with the terms of reference for this Inquiry. However, in implementing this recommendation, the Australian Government could consider applying such procedural safeguards to misconduct proceedings more broadly.

Recommendation 13–1 Australian Government agencies that employ persons other than under the Public Service Act 1999 (Cth) should, to the extent that it is consistent with agency functions and structure:

  1. include the requirements in reg 2.1 of the Public Service Regulations 1999 (Cth) in terms and conditions of employment; and
  2. adopt the safeguards under the Public Service Act for dealing with suspected breaches of reg 2.1.

[1]An APS employee is defined in s 7 of the Public Service Act 1999 (Cth) to mean a person engaged under s 22—that is, a person engaged by an agency head for the purposes of the agency; or under s 72—that is, a person engaged as an APS employee by the Public Service Commissioner in a specified agency as the result of an administrative rearrangement. An agency is defined in s 7 to mean a department, an executive agency established by the Governor-General, or a statutory agency.

[2] Parliament of Australia—Senate Foreign Affairs, Defence and Trade References Committee, The Effectiveness of Australia’s Military Justice System (2005), [3.8].

[3] The Defence Force Discipline Act also provides for the appointment of Discipline Officers to deal with minor infractions: Defence Force Discipline Act 1982 (Cth) pt IXA.

[4] The AMC was established by the Defence Legislation Amendment Act 2006 (Cth).

[5]Lane v Morrison [2009] 258 ALR 404.

[6]Military Justice (Interim Measures) Act (No 1) 2009 (Cth). The Military Justice (Interim Measures) Act (No 2) 2009 (Cth) purports to impose disciplinary sanctions on ADF members on whom the AMC imposed punishments.

[7] Department of Defence, Changes to the Military Discipline System (2009) <www.defence.gov.au/mjs/
reform.htm> at 27 October 2009.

[8] An AFP appointee is defined to include: a Deputy Commissioner; an AFP employee; a special member; or a special protective service officer: see Australian Federal Police Act 1979 (Cth) s 4.

[9] Ibid s 40RK. The content of these misconduct categories is described in the Australian Federal Police Categories of Conduct Determination 2006 (Cth).

[10]Australian Federal Police Act 1979 (Cth) s 40RN.

[11] Ibid s 40RO.

[12] Ibid s 40RP.

[13]Australian Federal Police Categories of Conduct Determination 2006 (Cth) sch.

[14] Ibid.

[15]Australian Federal Police Act 1979 (Cth) pt V div 3 subdiv C.

[16] Ibid s 40TJ.

[17] Ibid s 40RD.

[18] Ibid s 40TM(1).

[19] Ibid s 40TR.

[20] The AIC covers the Office of National Assessments, ASIO, ASIS, the Defence Intelligence Organisation, the Defence Signals Directorate and the Defence Imagery and Geospatial Organisation.

[21]Australian Security Intelligence Organisation Act 1979 (Cth) s 18; Intelligence Services Act 2001 (Cth) s 39. ASIO and ASIS employees are also subject to the general secrecy offences in ss 70 and 79 of the Crimes Act 1914 (Cth).

[22]Australian Security Intelligence Organisation Act 1979 (Cth) s 89. Section 90 of the Act also provides that the regulations may deal with matters relating to employment conditions for temporary and casual staff. No such regulations have been made.

[23] Australian Security and Intelligence Organisation, Conditions of Service (2008) <www.asio.
gov.au/Careers/Content/Conditions.aspx> at 30 November 2009. The similarities between the terms and conditions of employment for ASIO staff and APS employees was also noted in the submission by the AIC on the Issues Paper, Review of Secrecy Laws (IP 34): Australian Intelligence Community, Submission SR 37, 6 March 2009.

[24] Australian Security Intelligence Organisation, Code of Conduct (2009) <www.asio.gov.au> at 27 October 2009.

[25]Intelligence Services Act 2001 (Cth) s 33.

[26] Ibid s 355.

[27] Ibid s 37.

[28] Ibid s 37(3). The Director-General must also implement a determination of a Grievance Review Panel to the extent that it is within his or her power to do so: Intelligence Services Act 2001 (Cth) s 37(4).

[29] J Uhrig, Review of the Corporate Governance of Statutory Authorities and Office Holders (2003).

[30] As at 1 October 2009, there were 83 agencies listed under the Financial Management and Accountability Act 1997 (Cth) and 64 authorities under the Commonwealth Authorities and Companies Act 1997 (Cth): Department of Finance and Deregulation, List of Australian Government Bodies and Governance Relationships, Financial Management Reference No 1 (2009). For a discussion of legal frameworks and governance structures, see J Uhrig, Review of the Corporate Governance of Statutory Authorities and Office Holders (2003).

[31] Schedule 1 of the Financial Management and Accountability Regulations 1997 (Cth) lists those bodies that are ‘prescribed agencies’ for the purpose of the Financial Management and Accountability Act 1997 (Cth).

[32] The CAC Act defines ‘Commonwealth authority’ as a body created by legislation with a separate legal identity from the Commonwealth and with the power to hold money on its own account: Commonwealth Authorities and Companies Act 1997 (Cth) s 7.

[33] R Wettenhall, ‘Exploring Types of Public Sector Organizations: Past Exercises and Current Issues’ (2003) 3 Public Organization Review 219, 219–220.

[34] The Australian Public Service Commission has issued a list of all Australian Public Service Agencies, including statutory agencies that employ some or all of their staff under the Public Service Act 1999 (Cth): Australian Public Service Commission, Australian Public Service Agencies (2009) <www.apsc.gov.au/apsprofile/agencies.htm> at 23 November 2009. As at 12 February 2009, there were 63 statutory agencies that employed all staff under the Public Service Act. A further 14 statutory agencies had dual staffing powers.

[35] The enabling legislation for some statutory authorities impose aspirational requirements for these terms and conditions of employment. For example, the Australian Postal Corporation Act 1989 (Cth) requires Australia Post to ‘endeavour to achieve and maintain high standards as an employer in relation to terms and conditions of employment, occupational health, industrial safety, industrial democracy, non-discriminatory employment practices and other matters’: s 90. See also Australian Broadcasting Corporation Act 1983 (Cth) ss 32, 33; Special Broadcasting Service Act 1991 (Cth) ss 54, 55.

[36] In some situations, the terms and conditions of appointment are set by, or on the advice of, the Remuneration Tribunal: Remuneration Tribunal, About the Remuneration Tribunal (2009) <www.remtribunal.gov.au> at 30 November 2009.

[37] Australian Institute of Criminology, Employee Collective Agreement 2006–2009 (2006) <www.aic.gov.
au/institute/agreement/agreement.pdf> at 30 November 2009, cl 37.

[38]Australian Prudential Regulation Authority Act 1998 (Cth) s 48AC.

[39] Australian Prudential Regulation Authority, APRA Code of Conduct (2007) <www.apra.gov.
au/AboutAPRA> at 30 November 2009 under ‘Standards of Conduct’.

[40] Ibid.

[41] Any other disciplinary actions, with the exception of formal warnings, must be approved by the relevant Executive General Manager: Ibid, 18.

[42]Commonwealth Authorities and Companies Act 1997 (Cth) s 21.

[43] The Act also sets out criminal offences for officers who are reckless or intentionally dishonest in exercising their powers, or use their position, or information gained from their position, with the intention of gaining an advantage for themselves or causing detriment to the Commonwealth or another, or recklessly as to whether they or another would gain an advantage or cause such detriment: s 26.

[44]Commonwealth Authorities and Companies Act 1997 (Cth) sch 2 cl 3.

[45] The governing Act was the Public Service Act 1922 (Cth).

[46] Explanatory Memorandum, Parliamentary Service Bill 1999 (Cth), 1.

[47]Parliamentary Service Act 1999 (Cth) s 13.

[48]Public Service Act 1999 (Cth) s 13.

[49]Parliamentary Service Act 1999 (Cth) s 13(4).

[50] Ibid s 13(6).

[51] Ibid s 13(13).

[52] Ibid s 15(1) provides that these are: termination of employment; reduction in classification; re-assignment of duties; reduction in salary; deductions from salary, by way of fine; and a reprimand.

[53] Ibid s 15(3).

[54] J Renwick, Submission SR 02, 11 December 2008.

[55] See, eg, United Kingdom House of Commons Public Administration Select Committee, Leaks and Whistleblowing in Whitehall, Tenth Report of Session 2008–09 (2009), [32].

[56] Parliament of Australia—Senate Finance and Public Administration References Committee, Staff Employed under the Members of Parliament (Staff) Act 1984 (2003), [2.13].

[57] J Faulkner (Cabinet Secretary and Special Minister of State), Code of Conduct for Ministerial Staff (2008) <www.smos.gov.au/media/code_of_conduct.html> at 30 November 2009.

[58] Ibid cll 1, 2, 3 provides, eg, that staff must: behave honestly and with integrity in the course of their employment; act with care and diligence in the performance of their duties; and disclose and take reasonable steps to avoid any conflict of interest in connection with their employment.

[59] Ibid cl 11.

[60] Ibid cl 15.

[61] Parliament of Australia—Senate Finance and Public Administration References Committee, Staff Employed under the Members of Parliament (Staff) Act 1984 (2003), [5.5].

[62] Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
14–1.

[63] 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; Australian Taxation Office, Submission SR 55, 7 August 2009.

[64] Australian Privacy Foundation, Submission SR 71, 16 August 2009.

[65] Australian Crime Commission, Submission SR 75, 19 August 2009.

[66] Ibid. The ACC went on to note that this complex staffing situation also demonstrates the potential difficulty of imposing unified processes for investigation and enforcement. This issue is considered below.

[67] Australian Law Reform Commission, Review of Secrecy Laws, Issues Paper 34 (2008).

[68] Australian Securities & Investments Commission, Submission SR 41, 17 March 2009.

[69] 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; Australian Taxation Office, Submission SR 55, 7 August 2009. See also Public Interest Advocacy Centre Ltd, Submission SR 38, 9 March 2009.

[70] Attorney-General’s Department, Submission SR 36, 6 March 2009. The Community and Public Sector Union also supported extending the procedural safeguards in the Public Service Act to persons other than APS employees: Community and Public Sector Union, Submission SR 32, 2 March 2009.

[71] Australian Crime Commission, Submission SR 75, 19 August 2009.

[72] Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009. See also N Rogers, Submission SR 01, 9 December 2008. The AGD also noted that procedural safeguards in the Public Service Act apply to matters other than breaches of secrecy provisions: Attorney-General’s Department, Submission SR 36, 6 March 2009.

[73] Australian Privacy Foundation, Submission SR 71, 16 August 2009.

[74] The Terms of Reference are set out at the beginning of this Report.

[75] Parliament of Australia—Senate Foreign Affairs, Defence and Trade References Committee, The Effectiveness of Australia’s Military Justice System (2005), [2.10], citing the submission of Neil James of the Australian Defence Association.

[76] Commonwealth Ombudsman, Australian Crime Commission: Review of the Collection, Storage and Dissemination of Information, Report No 15 (2009), Rec 4.

[77] See, eg, R Douglas and M Jones, Administrative Law: Commentary and Materials (3rd ed, 1999).

[78]Public Service Act 1999 (Cth) s 15(3).

[79]Public Service Commissioner’s Directions 1999 (Cth) cl 5.2.

[80] Ibid cl 5.3.

[81] Ibid cl 5.4. The Commissioner’s Directions also require a written record to be prepared noting the outcome of the investigation: cl 5.5.

[82]Australian Law Reform Commission, Integrity: But Not by Trust Alone: AFP & NCA Complaints and Disciplinary Systems, ALRC 82 (1996), [9.141]. These factors had been identified in the interim report of the Royal Commission into the NSW Police Service.