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Editors --- "Secrecy Provision Affecting Public Servants Held to Be Invalid" [2004] AdminRw 18; (2004) 56 Admin Review 67

Secrecy provision affecting public servants held to be invalid

In Bennett v President, Human Rights and Equal Opportunity Commission[1] the Federal Court held that a Public Service regulation prohibiting disclosure of information in broad terms was invalid because it was an excessive burden on freedom of political communication.

The applicant had made a complaint to the Human Rights and Equal Opportunity Commission as a result of a dispute with his employer, the Australian Customs Service. He was also President of the Customs Officers Association, in which role he had made comments in the media on several occasions, including after a warning from his employer not to do so. He was then charged with and found to have breached a regulation prohibiting disclosure of ‘any information about public business or anything of which the employee has official knowledge’. The disciplinary action was later revoked on the basis of legal advice. HREOC declined to continue its investigation because it determined that the applicant had an obligation to comply with lawful direction under the regulation.

Finn J held that the regulation was not reasonably appropriate and adapted to furthering the proper and efficient operation of the Government. It attempted to prohibit all disclosure, regardless of the type of information or the consequences of disclosure, and did not allow public servants to participate in public debate. He also held that the regulation was not necessary for the protection of public order under the International Covenant on Civil and Political Rights.

It was possible, however, that Customs could lawfully issue directions based on the applicant’s common law duty of loyalty and fidelity to his employer. Whether the duty had properly been invoked and the directions were justifiable on that basis had not been dealt with by HREOC. His Honour therefore remitted the matter for further consideration.

[1] [2003] FCA 1433.

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