Federal public sector secrecy provisions belong in 'nineteenth century'

Cases

Federal public sector secrecy provisions belong in 'nineteenth century'

The Federal Court has rejected attempts by a Federal Government department to suppress litigation over the reassignment of a Customs officer by using secrecy provisions in the relevant legislation.

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The Federal Court has rejected attempts by a Federal Government department to suppress litigation over the reassignment of a Customs officer by using secrecy provisions in the relevant legislation.

The Customs officer, who was also a union official, had been barred from speaking to the media by his departmental head.

Justice Finn ruled invalid regulation 7(13) of the Public Service Act 1922. This regulation controlled the disclosure of public information by Federal public servants.

Consequently, the Federal Court overturned a Human Rights and Equal Opportunity Commission (HREOC) ruling that it could not hear a discrimination complaint by the Australian Customs Service officer.

Background

The applicant, Peter Phillip Bennett, alleged the ACS had tried to suppress his right to make media comments about customs. HREOC ruled it had no jurisdiction to hear the matter, basing its decision on public service regulation 7(13) 'requiring Commonwealth public servants not to disclose information about public business or anything of which he or she has official knowledge'.

Mr Bennett was both a public servant employed in the Australian Customs Service and the Federal President of the Customs Officers Association, an industrial organisation registered under the Federal Workplace Relations Act 1996.

He complained to the HREOC that the Chief Executive Officer of Customs had so acted towards him (particularly, but not only, in relation to such media comment about Customs as Mr Bennett might make) as (i) to infringe his human right of freedom of expression; and (ii) to discriminate against him on the basis of his trade union activity and his political opinion.

Conclusion

Justice Finn concluded:

‘This litigation has raised issues that are basic (i) to the proper province of official secrecy in a modern democracy; (ii) to the rights and freedoms that ought be enjoyed by Commonwealth public employees notwithstanding their public employment; and (iii) to the conduct of public sector trade unionism. These are by no means issues unique to this country.

'They find reflection in contemporary disputes in other common law countries. What, though, is surprising about the first two issues mentioned is that the Commonwealth has persisted in relying upon mid-nineteenth century instruments to deal with decidedly contemporary problems.

'It is unsurprising that its so doing has produced less than satisfactory results.’

The judge made the following orders: (1) the application be allowed; (2) the decision of the first respondent of 27 July 2001 declining to continue to inquire into the applicant's complaints be set aside; and (3) the matter be referred to the first respondent for further consideration.

See: Bennett v President, Human Rights and Equal Opportunity Commission [2003] FCA 1433 - Finn J - (10 December 2003).

 

   

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