Bennett v President, Human Rights and Equal Opportunity

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A55 OF 2001

AND: THE PRESIDENT, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

THE COURT ORDERS THAT: 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. 3. The matter be referred to the first respondent for further consideration. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A55 OF 2001

AND: THE PRESIDENT, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

REASONS FOR JUDGMENT 1 The applicant, Peter Phillip Bennett, is both a public servant employed in the Australian Customs Service ("Customs") and the Federal President of the Customs Officers Association ("the COA"), an industrial organisation registered under the Workplace Relations Act 1996 (Cth). He complained to the Human Rights and Equal Opportunity Commission ("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. 2 A delegate of the President of HREOC later advised Mr Bennett that she declined to continue her inquiry into his complaints as she was satisfied that the acts of Customs (a) were not inconsistent with or contrary to his human right of freedom of expression; and (ii) did not constitute discrimination on the basis of trade union activity or political opinion. HREOC had statutory rights to refuse to continue its inquiries in such circumstances: Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"), s 20(2)(a); s 32(3)(a). 3 The present application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) challenges HREOC's decision not to continue its inquiry. The factual setting is complex as are some number of the issues raised. There is, though, one matter of considerable importance that is in issue. A direct challenge has been made to the validity of what at the relevant time may be called the "official secrecy" provision of the Public Service Regulations. That provision (Reg 7(13)) stated: "An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head's express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge." 4 Mr Bennett contends that this provision infringes the implied constitutional freedom of political communication that was confirmed in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and, as such, it was invalid or else it exceeded the regulation making power conferred by s 97(1)(k) of the Public Service Act 1922 (Cth). 5 If Mr Bennett's contention of invalidity is correct an important part of Australia's official secrecy regime will be thrown into some uncertainty, the more so as the provisions of s 70 of the Crimes Act 1914 (Cth) relating to "Disclosure of information by Commonwealth officers" presuppose the validity of Reg 7(13) and its present successor. THE STATUTORY SETTING 6 Two of the functions conferred on HREOC by its constating Act are to inquire into any act or practice (i) that may be inconsistent with or contrary to any human right: HREOC Act, s 11(1)(f); and (ii) that may constitute discrimination: ibid, s 31(b). 7 "Human rights" are defined to mean rights and freedoms that (inter alia) are recognised in the International Covenant on Civil and Political Rights ("the ICCPR"). Of present relevance, Art 19 of the ICCPR provides: "1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals." 8 Section 3(1) of the HREOC Act defines "discrimination" to mean (for present purposes): (a) any distinction, exclusion or preference made on the basis of … political opinion … that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and (b) any other distinction, exclusion or preference that: (i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and (ii) has been declared by the regulations to constitute discrimination for the purposes of this Act; but does not include any distinction, exclusion or preference: (c) in respect of a particular job based on the inherent requirements of the job …" 9 Regulation 4 of the regulations made under the Act extended this definition to encompass discrimination on the ground of "trade union activity". THE FACTUAL SETTING 10 Mr Bennett has been employed in Customs for more than 30 years. He does not occupy a position in the Senior Executive Service of the Australian Public Service. 11 For some period prior to 1999 Mr Bennett advocated the establishment of a Single Border Protection Agency. His proposal, which he communicated to the Prime Minister, ministers and others, would have resulted in the splitting of Customs with some of its functions going to other departments and agencies. It would appear that on a number of occasions he received directions from the CEO of Customs concerning media comment that he had made seemingly in his capacity as President of the COA. 12 On 21 September 1998 the CEO (Mr Woodward) issued the following direction to him. Omitting formal parts, it stated: "Notwithstanding a number of previous directions on the matter, I note that you were interviewed on the "World Today" on 31 August 1998 on Customs related matters, on the Alan Jones program on 17 August 1998 on steroid trafficking and again in the Age on 8 September 1998 concerning Mr Fleming. Leaving aside the quite incorrect implication arising from your interview with Alan Jones that Mr Fleming had been charged with an offence under the Public Service Act following an address at a Churchill Fellowship meeting, I restate the view previously expressed to you by Customs senior management, that there is no reason for you to be excused from the normal rules governing media comment by Customs officers on policy or operations matters involving Customs. This therefore is a formal direction to you that you are not to make media comment as a Customs officer, or as President of the Customs Officers Association (Fourth Division), which involves (directly or indirectly) disclosure of information about public business or anything of which you have official knowledge. If you fail to comply with this direction, I warn that formal action for a breach of the APS Code of Conduct will commence without any further warnings. 13 On 23 September Mr Bennett wrote to the CEO concerning the direction. He stated that the conduct of which Mr Woodward complained was undertaken by him as President of the COA on behalf of its members. He indicated he considered it was unlawful for him to be threatened in his employment because of his union activities. He sought the withdrawal of the direction. This was refused. 14 On both 21 and 20 October Mr Bennett wrote to Mr Woodward seeking his authority to discuss certain matters with the media which might lead to the disclosure of "official knowledge". I set out the letter of 21 October in full as it evidences the tenor of later correspondence. Omitting formal parts, it stated: "It is my understanding the Australian Customs Service is to be carved up and its parts are to be distributed to various government departments. This is a courageous move by the Government. It if is done well, it will better serve the community than the disparate clump of competing agencies that currently range round the nation's borders. It may lead to greater efficiencies and better effectiveness. Hopefully it will lead to a greater confidence of Customs Officers in the leadership and direction of what may be Customs new functions. 2. Obviously this is a matter of public interest and considerable concern to the Customs Officers Association (COA) and its members. In my capacity as President of the Association I wish to communicate the Association's response to this move to the public through the media. 3. In letters dated 21 and 30 September 1998, you directed me in my capacity as the Federal President of the Customs Officers Association to make no media comment. The directive included a threat of disciplinary action against me as an employee of the Customs Service if I did not comply with your direction. 4. The matter of Government policy does not fall within the constraints the direction. I have no official knowledge or information of public business relating to this matter. Therefore this Government decision about the restructure of Customs functions would not be subject to your directive. 5. However I have information supporting the Government decision which may constitute official knowledge. This information concerns in general, the scope of the Customs enforcement role, the morale of officers, the lack of confidence in the current leadership and the concern of officers about the present direction of the ACS. 6. Therefore despite my views that your directive is unlawful I seek your "express authority" as the Agency Head to discuss publicly through the media; (a) the decision of Government and (b) information relative to this decision of Government including references to the Hinds Survey report, the recent industrial stoppage at SKSA and the motions arising therefrom, the general role of Customs and other border agencies and issues concerning the previous direction and leadership of Customs as compared to any future direction. As this is a very important public matter and of great concern to the Association and members I seek an urgent response to this request." 15 Mr Woodward replied to both letters on 23 October 1998 declining to give the authorisation sought. It indicated: "Your letters do not enable me to form a proper view as to the precise detail of the information which you seek my authority to disclose. I am not persuaded, at this stage, that there is a sufficient basis for relieving you of the ordinary obligation of confidentiality which applies to you as an officer." And it went on to reiterate that the direction of 21 September was given to Mr Bennett in his capacity as a public servant. It concluded: "Your position as Association President does not relieve you of your obligation under Public Service Regulation 7(13)." A subsequent letter of Mr Woodward (of 5 November 1998) stated that the direction "merely reflected your confidentiality obligation as an officer". 16 Thereafter until 30 August 1999 Mr Bennett made further requests for "authorisation" to disclose information for the purposes of media comment, trade union purposes and otherwise. These were in the main refused, though in some instances authorisation for limited purposes was given (eg to make certain disclosures to members of the COA or to obtain legal advice. By way of illustration and to anticipate matters somewhat, Mr Bennett was charged under the Public Service Act 1992 (Cth) with failing to comply with Reg 7(13) of the Regulations. In one of Mr Woodward's responses to a request to disclose information (ie that of 17 June 1999) the following was stated: "Could you please note that you are not authorised to give or disclose information relating to the charge you have faced under Regulation 7(13) except to legal advisers you instruct to act on your behalf in connection therewith." 17 From the time of the 21 September direction Mr Bennett indicated in correspondence to Mr Woodward that the direction was interfering with his capacity to conduct his trade union activities. Illustrative of this was a letter of 2 November which stated that "your threat to prejudice me in my employment situation has caused me to halt my duties as the COA President pending the resolution of this matter". 18 On 19 November 1998 Mr Bennett was interviewed on radio by Graham Richardson about proposed cuts to Customs waterfront officers. The giving of this interview led to a charge being laid against Mr Bennett under s 56 of the Public Service Act. It alleged and particularised (by reference to the interview) a breach of Reg 7(13). 19 Mr Bennett wrote to Mr Holloway (who was the inquiry officer under s 62 of the Public Service Act), objecting to the charge. His letter stated in part: "It is my opinion that the charge against me is improper and malicious. I believe the charge has been instituted for the base and unreasonable purpose of using my employment situation to coerce, dissuade or prevent me in my official capacity as the Federal President of the Customs Officers Association of Australia from raising matters of public interest, for reasonable debate and discussion about the public service of the Australian Customs Service (ACS) in the interests of members and to further the objects of the Association. The aim has been to quash reasonable public awareness and information about the ACS and the consequential effects on the general community. The ACS has been successful in this act of intimidation in that I have not discharged my duties as an Association official pending the resolution of this charge." He also reiterated that he did not know what was meant by "public business" and "official knowledge", and that he had sought but had not been provided with explanations of these terms. 20 On 17 May 1999 Mr Holloway issued a Notice of Decision in which he found that the charge was proven. Of Reg 7(13) Mr Holloway stated in his notice the following: "21. Regulation 7(13) is cast in wide terms. It refers to any information about public business or about anything of which an employee has official knowledge. Whilst protection of confidential information is one aspect of the operation of Regulation 7(13), another aspect of its operation is to prevent officers from making unauthorised public comment, or engaging in unauthorised (sic) public debate, on the public business of an agency (in this case, Customs) including its administration. 22. You also submit that Regulation 7(13) should not be interpreted too broadly, otherwise every officer who tells his wife that he is on a roster and is going to work at a particular locality is guilty of breach of Regulation 7(13). Without wishing to enter a debate on the outer reaches of the operation of Regulation 7(13), the example given by you is not related, even by way of loose analogy, to the sort of information revealed by you in the course of the interview. The time an officer expects to finish work, or his/her work locality, may not be 'information about public business' or information of which an employee has 'official knowledge'. Also, Regulation 7(13) can be regarded as giving voice to one aspect of an employee's duty of fidelity to his/her employer. This duty of fidelity exists as 'a necessary implication which must be engrafted on' every contract of employment: Robb v Green (1895)QB 315 at 320. An employee's duty of fidelity to the employer imposes on the employee an obligation to act at all times in the best interests of the employer. Even if information such as the time an employee expects to finish work, or the location of an employee's workplace, was regarded as coining within Regulation 7(13) it is most unlikely that disciplinary action would result (unless disclosure adversely affected the interests of the agency concerned). In any event, I emphasise that I am not here concerned with a Customs officer informing his spouse what time he expects to finish work. Rather, I am concerned with ventilation, in the media, of non-rudimentary matters relating to Customs. I am satisfied that the terms of Regulation 7(13), as a matter of plain language and ordinary commonsense, apply to the present circumstances - indeed, the present circumstances fall within the core of the mischief which Regulation 7(13) was designed to avoid. … 27. Finally, the broad application of Regulation 7(13) which I favour is not out of kilter with equivalent State provisions and cannot be said to lead to a novel or extraordinary result. For instance, section 95 of the Constitution Act 1975 (Victoria) prohibits a person employed in any capacity in the service of the State of Victoria from publicly commenting upon the administration of any Victorian Department and from disclosing information gained by or conveyed to him/her through connection with the Public Service (indeed, section 95 renders a public servant liable to dismissal for breach of these obligations)." 21 To anticipate a matter because of its present relevance, on 26 January 2001 Customs responded to a request from HREOC for "[d]etails of why the information discussed in the [radio] interviews was considered to have breached the Public Service Regulations". That response was, in part, that: "The Inquiry Officer's report into Mr Bennett's disciplinary charge provides details of why comments made by Mr Bennett were considered to have breached Public Service Regulation 7(13). From the papers you have forwarded, I note that Mr Bennett has provided only the first half of the report to you at attachment 5 of his submission. As the Inquiry Officer's report contains personal information about Mr Bennett and is protected information for the purpose of section 16 of the Customs Administration Act 1985, I am unable to provide you with a copy of the report at this time. You may, of course, request that Mr Bennett provide you with a full copy of the report and I note that the Commission may issue a notice requiring that it be produced." 22 It would appear from HREOC's decision on Mr Bennett's subsequent complaint to it that it had obtained a full copy of the report - a luxury not shared by the Court in this proceeding - and that that report stated (inter alia) that: "you were found to have breached Regulation 7(13) in various ways, mainly involving your speaking in public about matters pertaining to Customs. The report also found that much of what you said was inaccurate and misleading and could lead to the public having a wrong perception of the activities of Customs." 23 It was from the time of the above decision that Mr Bennett began to experience serious health problems. 24 On 8 June 1999 a penalty of salary reduction was imposed on Mr Bennett. It was on the following day Mr Bennett sought authorisation to make public comment on the charges against him. As noted earlier, Mr Woodward refused this. 25 Some time thereafter proceedings for judicial review of Mr Holloway's decision were instituted in the High Court. The matter was later remitted in part to the Federal Court. 26 On 28 September 1999 Mr Howe for the Australian Government Solicitor wrote to Mr Bennett's lawyers offering to revoke the decisions challenged in the Federal Court. This was done "in the light of new legal advice". The letter stated (in part): "2. In this regard, I note that in reaching the subject decisions the First Respondent construed Public Service, Regulation 7(13) broadly, in the light of the legal advice which had been provided to him. As a consequence of the proceedings instituted by your client, the correctness of this legal advice has been reconsidered. AGS has now advised Customs that Public Service Regulation 7(13) does not prohibit all public comment by an officer on matters of public administration. Rather, the sub-regulation must be construed or 'read down' so as not to apply to public comment on matters of administration which are already on the public record. Public Service regulation 7(13) does operate, however, to prohibit the giving/disclosing of official information (ie information acquired in the course of duties as an officer) which is not already a matter of public record." 27 In October 1999, variously, the original charge, Mr Holloway's decisions and Mr Woodward's 21 September direction and authorisations were revoked. 28 On 20 April 2000, Mr Les Jones, the National Manager Border Operations, advised that he wanted Mr Bennett moved to a new position under Customs mobility provisions. Mr Bennett had previously indicated to Mr Jones that he had had three moves in the last four years and that in his view he did not meet the criteria for mobility. On 13 September 2000 he was advised he was to be reassigned to new duties in the Commercial Application area. 29 He initiated his complaint to HREOC on 16 October 2000. THE HREOC COMPLAINT 30 It is necessary to enter on this matter in a little detail as is the subject matter of the complaint to HREOC. One of Mr Bennett's contentions is that HREOC failed to consider at all some of the matters of which he made complaint. 31 The complaint form Mr Bennett sent to HREOC on 16 October identified three complaints which he claimed breached his human rights, involved discrimination against him in his employment and improperly interfered with his "implied constitutional entitlements of political expression". The complaints themselves are best revealed in that part of the form entitled "How has this affected you". The reference to each complaint is followed by the typed word "(synopsis)". 32 Complaint 1 was described as follows: "Reference - Complaint 1; (synopsis) A) I was prejudiced and discriminated against in my employment by; i) the CEO directing that I express no public political opinions about Customs under threat of employment sanctions. This had the effect of stopping my legitimate public trade union activities. The CEO had no lawful authority to issue such directions. The interference seriously curtailed political activities and significantly interfered with legitimate public trade union political agitation concerning matters of government and public administration. ii) the initiation of disciplinary charges when there were no lawful grounds on which to base such charges. iii) the establishment of an inquiry into unsustainable charges, the improper determination that I had a case to answer, the improper findings of guilty and the imposition of a significant but unwarranted and unreasonable penalty." It then went on to describe what was the "result of the unlawful direction and associated authorisations": underlined in original. 33 Complaint 2 was described so far as presently relevant in these terms: "Reference - Complaint 2; (synopsis) I have been prejudiced in my employment by what I consider to be a premeditated and malicious act (but failing that, a reckless, indifferent and/or negligent act) whereby I have been subject to workplace discrimination. The complaint goes principally to the motive of those concerned who ordered that I be transferred. The complaint relates to the motive in ordering the transfer rather than the transfer itself. The complaint also goes to the potential that further discrimination, prejudice and harm will ensue. I was directed to transfer from an existing position in which I was considered competent and well qualified and in which I had a community of interest and career aspirations to take up a position in which I am unskilled, untrained and unqualified and in which I have no community of interest or career aspirations. To reiterate, the question of a transfer is of itself, not a part of this complaint." Complaint 3 was as follows: "Reference - Complaint 3; (synopsis) My rights as an employee to be free from fear from discrimination and victimization at work has been violated. But just as importantly my constitutional right to participate in and express political opinions about matters of government including public administration have also been violated. Officers of the Australian Customs Service used threats, coercion and intimidation against me in my employment circumstances to interfere with my human rights and my constitutional entitlements. Such interference is inconsistent with lawful constitutional entitlements of any citizen and particularly so in this instance because I believe it was premeditated, concerted and continuous. The injury is exacerbated because from those who perpetrated the injury there is no remorse or regret for the injury inflected.(sic) Moreover, based on what has transpired concerning 'Complaint 2' I believe that further harm will be inflicted upon me by certain Customs managers." 34 The letter accompanying the complaint form foreshadowed the sending of a "relevant statement with associated Attachments as soon as possible". The foreshadowed documents were sent to HREOC on 24 October 2000. They consisted of a closely typed fourteen page document. That document for the most part enlarged upon the three complaints previously notified to HREOC. For present purposes I need only refer to its treatment of "Complaint 1". This complaint again took Mr Woodward's 21 September direction as the central cause of the complaint ("the direction was clearly intended as a means to control and extinguish my political and trade union support for [stated] matters".) It dealt with his being charged and then the revocation of the charge decisions, etc. Where the statement enlarged significantly on the earlier "synopsis" complaint was in its description of the effect of the alleged control exercised over him through the direction. It drew particular attention to the authorisations he felt compelled to seek and to the refusals or very limited grants of authorisation. Two schedules to the document went on to list (i) correspondence with the CEO in which complaint was made that the threat in the direction was stopping him from expressing political opinions and carrying out trade union activities (Schedule A); and (ii) correspondence seeking authorisation to make political comment and to engage in trade union activity (Schedule B). 35 On 7 December 2000 the Delegate indicated by letter to Mr Bennett that, though the human rights and discrimination complaints were being investigated, HREOC had no role in inquiring into alleged breaches of the Constitution. 36 Mr Bennett continued corresponding with HREOC, variously, answering inquiries, providing further information and complaining of further harassment. In a letter of 29 December 2000 he indicated to HREOC that the High Court and Federal Court proceedings did not deal with his complaints and the complaints were not resolved when Customs revoked the direction, etc. He went on to state: "The fact that the ACS ceased their action against me is of little value in the absence of any ruling on the validity or otherwise of their initial actions against me. None of my specific aims, goals or objectives were achieved or resolved." Emphasis added. 37 On 8 March 2001 Mr Bennett wrote to HREOC. The principal purpose of this letter was the "Clarification of the unlawfulness of the direction and the charges". The clarification provided is calculated to confuse. Nonetheless, the burden of it would seem to be the contention that the direction given on 21 September was unlawful because it was beyond power, apparently for reasons relating to limitations on the scope of Reg 7(13). In consequence, "all directions and authorisations, which flowed from the original direction, were not lawful". HREOC'S DECISION 38 The Delegate, Ms Clifford, provided HREOC's decision to Mr Bennett on 27 July 2001. As I earlier indicated the decision was that she declined to continue her inquiry into his complaint as she was not satisfied that the acts complained of were inconsistent with or contrary to Mr Bennett's human rights or constituted discrimination. 39 The Delegate's reasons for decision characterised Mr Bennett's complaint as being, in substance, the first two of the three complaints in the original complaint form. I emphasise in passing that, insofar as the third of those complaints related to the implied "constitutional freedom", Ms Clifford had already indicated that HREOC lacked jurisdiction to entertain that complaint. The reasons noted (inter alia) that: "Customs states that the disciplinary proceedings that were taken against you were done so because of its understanding at the time of the scope and operation of Public Service Regulation 7(13). Customs states that during the Federal Court proceedings against you it became aware that its interpretation of Regulation 7(13) was too broad, which is why it commenced settlement negotiations and agreed to pay your costs." 40 In making her own assessment of the complaints the Delegate dealt first with the discrimination complaint. She took the view that (i) as Mr Bennett was representing the view of the COA as its President in the radio interviews, that constituted trade union activity for the purposes of the HREOC Act; and (ii) the concerns he expressed constituted "political opinion" under the Act. In each case though the "critical issue" was whether the way he was treated by Customs constituted discrimination on the basis of his trade union activity or political opinion. 41 Ms Clifford noted that a distinction, exclusion or preference would not constitute discrimination under the Act if, in respect of a particular job, it was "based on the inherent requirements of the job". She then characterised those requirements in his case as follows: "I am satisfied that it is an inherent requirement any public service position that a person not impede the effective operations of the agency for which he or she works. It is also an inherent requirement that an employee comply with the legislation that governs employment in the Australian Public Service. Public Service Regulation 7 states in part that you must obey all reasonable directions given to you by a person who has the authority to do so, and also that you are not permitted to make public comment on matters of which you have knowledge through your work. Emphasis added. I have also examined findings of the ILO in relation to ILO111 and its discussions of the need for public servants to have certain limitations in relation to their actions and public comments. The ILO has accepted that there are limitations for public servants in relation to the expression of political opinions where a certain obligation of neutrality and loyalty can be required. … I am also satisfied that it is an inherent requirement of being a public servant that a person not criticise his or her employer in the media in a way that would damage the reputation or operational capacity of the agency. I am satisfied that this inherent requirement would include that a person employed by Customs should constrain their public comments so as to not create an apprehension of loss of confidence by the public in the services provided by Customs or undermine the core function of the agency in relation to protecting Australia's borders. I note that you were not prevented by Customs from making any comments, public or private, in the course of your role as President of the COA, just from making media comments. You have provided information to the Commission that demonstrates that you wrote to the Minister and the Prime Minister as well as the Leader of the Opposition and the Australian Olympic Committee expressing concerns about the importation of drugs prior to the Olympics. You were not sanctioned for such letters and comments. It was comments in the media that caused Customs' concern and led to your being warned and then charged. While I understand that you were mostly speaking of these things as President of the COA, you were at the same time an employee of the Australian Public Service and so were bound to follow a reasonable order not to speak to the media about things that you have official knowledge." Emphasis added. The Delegate then concluded (in the following paragraph): "As this is the case, I am satisfied that the actions of Customs in relation to your being charged under the Public Service Act 1922 were based on the inherent requirements of your position and so did not constitute discrimination. This also means that any subsequent acts of Customs, such as your transfer, did not constitute discrimination." Emphasis added. 42 Turning to the human rights complaint, Ms Clifford treated the matter as raising the right to freedom of expression under Art 19(2) of the ICCPR. Her reasons went on: "Customs agrees that the charges were laid under the Public Service Regulations which state that a person shall not give or disclose directly or indirectly any information about public business or anything which of which the employee has official knowledge. An employee also has to comply with any lawful and reasonable direction given by someone who has the authority to give such a direction. You allege that this restricts your freedom of expression, and in particular the way that Customs interpreted and administered this law limited your freedom of expression. Customs states that it needed to do this for the good workings of the organisation. The right to freedom of expression is not unfettered and party states may create laws that place limitations on this civil and political right. The Public Service Act 1922 and 1999 and the Regulations create such limitations. Article 19(3) of the ICCPR provides that the right of freedom of expression can be limited, in part, by actions that are by law and are necessary for the protection of public order (ordre public). Acts of a state that are done in order to protect "confidential information" and also for the prevention of disorder and crime would fall into this limitation. It has also been found that certain limitations on freedom of expression by members of security forces or by officials may be justified by the public order limitation. In this instance I consider that "public order" would include the necessity for Customs to patrol Australia's borders and prevent the importation of prohibited goods. You state that your previous position in Border Operations involved "enforcement" and Customs has listed your duties as involving targeting and profiling resources and staff. The concerns that you raised in the media involve Customs operations in relation to law enforcement and the prevention of the importation of prohibited goods and you expressed your view that Customs is not protecting Australia's borders adequately. Having considered all of the information provided by you and Customs, I am satisfied that the actions of Customs were provided for by law, were necessary and were done in order to ensure public order. The actions were done under the Public Service Act 1922 and Regulations were necessary for the operations of Customs, and were done in order to ensure public order in the regulation and security of Australia's borders. I am therefore satisfied that the actions of Customs did not breach your human rights under Article 19(2) by virtue of the limitations in Article 19(3) of the ICCPR and so I am satisfied that there was no act that was inconsistent with or contrary to your human rights." THE SEQUEL TO THE DECISION 43 On 18 December 2001 Mr Bennett's legal adviser wrote to HREOC indicating that the decision did not address all matters of complaint raised by him. The letter noted a number of instances where such was said to be the case. It stated (in part): "In particular, there is no reference to the evidence provided to you concerning repeated requests by Mr Bennett to his employer, seeking authorisation to engage in trade union activities or express political and other opinions." HREOC was requested (a) to confirm that the decision was intended to cover all aspects of Mr Bennett's complaint - in which case it was suggested supplementary reasons were required; or (b) to make a decision on the outstanding matters as quickly as possible. 44 HREOC replied on 21 December indicating that Mr Bennett's complaint had been completed. THE ISSUES 45 HREOC's decision declining Mr Bennett's complaint has been challenged on three broad fronts. I will for convenience describe these as "the human rights issue", "the discrimination issue" and the "complaint issue". The last of these, I would note in passing, raises the allegation that HREOC failed to address all of the complaints made to it by Mr Bennett and that this amounted to a constructive failure to exercise jurisdiction. 46 I will consider each of these issues in turn though noting at the outset that, because of the view I have taken on the human rights and discrimination issues, it will be unnecessary to consider the complaints issue in any detail.

1. THE HUMAN RIGHTS ISSUE 47 The applicant's case, put shortly, is that (i) the 21 September direction and actions taken by Customs consequent upon it were founded upon Reg 7(13) of the Public Service Regulations; (ii) that regulation is invalid in that, by infringing the implied constitutional freedom of political communication, it either exceeded the regulation making power conferred by the Public Service Act 1922 or else it is invalid as such; and, in the alternative, (iii) the directions and actions taken by Customs restricted Mr Bennett's right to freedom of expression under Art 19 of the ICCPR but the restrictions so imposed were not saved by Art 19(3) as they were not necessary "for the protection of public order." 48 The Commonwealth's response to this is that (i) Reg 7(13) is not invalid notwithstanding that it restricted the applicant's freedom of communication, as it was reasonably appropriate and adapted to serve the legitimate end of maintaining the constitutionally prescribed system of representative and responsible government; (ii) even if the regulation is invalid, the directions given and actions taken nonetheless embodied a lawful and reasonable direction with which Mr Bennett had to comply consistent with his duty of loyalty and fidelity to the Commonwealth; and (iii) for the purposes of Art 19(3) of the ICCPR, that direction was necessary for the protection of public order as it was in the interests of efficient public administration to restrict the right of public officials to comment on matters in respect of which they have official information. 49 I mean no disrespect to counsel in not outlining at length their various submissions though I acknowledge the assistance I have derived from them. However, I should note several matters relied upon by the parties. 50 First, the Commonwealth has emphasised, correctly, that Mr Woodward's power to give directions was not derived from Reg 7(13) (which states a free-standing obligation of a public servant). That power derived from s 25(2) and s 56(a) of the Public Service Act 1922 (Cth). The Commonwealth has also emphasised that Reg 7(13) is not concerned with regulating public comment upon matters of public administration. Its concern is with controlling the disclosure of official information. The significance of these two matters will become apparent below. 51 For his part, Mr Bennett has contended that the suggested official information/public comment dichotomy is artificial, if not false, in that it often is the case that public comment on a matter of public administration necessitates disclosure of information about that matter if the comment itself is to be intelligible to the community. 52 My own conclusions on the matter, which I will elaborate upon below, are that (i) the subject matter of the directions given and actions taken by Customs was set by Reg 7(13); (ii) that regulation is invalid in that it infringes the implied freedom of political communication and cannot be read down so as to avoid that consequence; (iii) if I am incorrect on the issue of validity, the directions given were, in their terms, inconsistent with Mr Bennett's right to freedom of expression for the purposes of Art 19(2) of the ICCPR as they were not necessary for the protection of public order under Art 19(3); (iv) it may, nonetheless, be the case that the direction in the circumstances was justified in substance as a lawful and reasonable exaction of loyalty from Mr Bennett which was not inconsistent with Art 19 of the ICCPR; but (v) that possibility was not addressed by HREOC and for that reason the matter must be remitted to HREOC for further consideration. 53 I will address each of these conclusions in turn but it is necessary to refer, first, to the provenance of Reg 7(13) and to its interpretation. Matters of History 54 Australia's public sector secrecy regimes are obviously home grown products which in some jurisdictions, but most notably in the Commonwealth, still betray their local ancestry. The British influence has been slight, an obvious reason for this being that the Civil Service in the UK has not to this day been placed on a statutory footing. That step was first taken in colonial Victoria in the Civil Service Act 1862. It was followed progressively in the other colonies, and then by the Commonwealth in 1902 after Federation. 55 The tenor of the formal regulation that became the norm for Australian public servants was, insofar as presently relevant, foreshadowed in Regs 20 and 21 of the Victorian Civil Service Regulations 1867 (which appear to be the first regulations made under the 1862 Act). They provided: "20. Information not to be given - No information out of the strict course of official duty shall be given, directly or indirectly, by any officer without the express direction or permission of the responsible Minister. 21. Communications not to be made to the public press - No officer shall make any communication, directly or indirectly, to the press upon any matter affecting the department in which he serves, or the business or the officers thereof, or relating to the public service, or his own official position or acts, or upon any political subject or question whatsoever, without the express permission or authority of the responsible Minister." 56 Later revisions of these regulations and the process of inter-colonial borrowings produced some modification in the language of these obligations though with little softening in their burden: see eg Public Service Regulations 1884 (Vic), Regs 33 and 34; Public Service Regulations 1896 (NSW), Reg 74. In the Queensland Civil Service Regulations 1889, for example, a composite obligation was imposed by Reg 20. It was cast in terms that prefigured those of Reg 7(13): "No information concerning public business shall be given, directly or indirectly, by an officer without the express permission of the Minister, except in the performance of his official duties, and no officer shall reveal information which has come to his knowledge in his official capacity." 57 Before turning to the Commonwealth's regulations I would note in passing that Reg 21 of the 1867 Regulations and its Victorian successors were, in substance, designed to prohibit public communication (or "comment") upon public administration (albeit in convoluted language). A further regulation prohibited officers from taking "any part in political affairs" so enabling them "to render loyal and efficient service to the Government": see eg Public Service Regulations 1884 (Vic), Reg 36. 58 Turning now to the regulations made under the Commonwealth Public Service Act 1902 (Cth), Regs 41 and 42 provided: "Officers not to take part in Politics 41. Officers are expressly forbidden to publicly discuss or in any way promote political movements. They are further forbidden to use for political purposes information gained by them in the course of duty. Information not to be Given 42. Except in the course of official duty, no information concerning public business or any matter of which an officer has knowledge officially shall be given, directly or indirectly, by an officer without the express direction or permission of the Permanent Head or responsible Minister." 59 The former of these was soon to be replaced by a new "public comment" provision in the following terms (Public Service Regulations 1913, Reg 41): "An officer shall not - (a) publicly comment on the administration of any Department of the Commonwealth." A slightly enlarged version of this regulation remained in force until 1974 when the prohibition on public comment was lifted. A circular issued by the Public Service Board at the time of the repeal explained that: "The basic purpose of this repeal is to give public servants greater freedom by minimising the restrictions on public comment, but at the same time seek to avoid involvement of staff in public controversy where this could prejudice the identity of a politically impartial career public service." 60 The latter of the 1902 obligations ("Information not to be Given") was further expanded to include the disclosure of "the contents of official papers" within its general prohibition. That inclusion was deleted in 1998 when Reg 7(13) took its now present form which, to reiterate, is: "(13) An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head's express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge." 61 Before considering the scope of Reg 7(13) it should be said that the coercive character of the public service secrecy regimes that were instituted in this country was exaggerated in most jurisdictions by the enactment of general criminal offences governing the disclosure of information which an official was obliged to keep secret. Section 70(1) of the Crimes Act 1914 (Cth) remains emblematic of such offences. It provides: "Disclosure of information by Commonwealth officers (1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom is he authorized to publish or communicate it, any fact or document which comes to his knowledge, or into his possession, by virtue of being a Commonwealth officer, and which it is his duty not to disclose, shall be guilty of an offence." Emphasis added. For the relationship of this provision to Reg 7(13) and its predecessors, see Review of Commonwealth Criminal Law, Final Report, para 25.12 (1991). Interpreting Reg 7(13) 62 The hallmark of the historical family of provisions represented by Reg 7(13) lay, not so much in its control of what information was disclosed by public officials, as in its control of when and by whom disclosure could be made. That control was exercised by ministers and/or senior officers, who could regulate the public dissemination of information in the hands of public officials. 63 When one turns to the actual language of Reg 7(13) two features are immediately arresting. The first, reflecting the provenance of the provision, is the archaic character of its terminology. The second is the amplitude of the information coverage it seeks to secure. The only limitations on the information that is caught by the regulation are that the information be "about public business" or that it be "anything of which the employee has official knowledge". The former of these limitations would seem to encompass all and any aspect of the structure, conduct and operations of public administration. If this conclusion seems remarkable it is nonetheless consistent with the obvious intent of the provision's ancestry: see eg Civil Service Regulations 1867 (Vic), Reg 21. The reference to "official knowledge" in the alternative limitation refers to the capacity in which information is derived. If it is derived by a person in his or her official capacity it is caught by the regulation. The ancestry of this terminology is again consistent with this interpretation. Neither of the two limitations is, as such, concerned with whether the information in question was or was not otherwise publicly available, or with whether it ought to be or could be made so. Nor are they concerned with whether in a given instance any public interest consideration could reasonably justify a prohibition on disclosure. As the Review of the Commonwealth Criminal Law observed in its Final Report (1991) of counterpart provisions of the Crimes Act 1914 (s 70 and s 79) dealing with unauthorised disclosure of official information (at para 25.12): "No distinction is drawn for the purposes of these provisions between information the disclosure of which may cause real harm to the public interest and information the disclosure of which may cause no harm whatsoever to the public interest." In my view Reg 7(13) and its predecessors were intended to be "catch-all" provisions. 64 If the apparently draconian character of these provisions seems surprising to the point of suggesting that the view I have taken of Reg 7(13) produces unreasonable results, it is worth observing that a like situation obtained in relation to public service secrecy for much of the twentieth century in other British Commonwealth countries: for a useful general survey see Ontario Law Reform Commission, Report on Political Activity, Public Comment and Disclosure by Crown Employees, (1986); for the somewhat similar state of affairs in the US in the first half of the last century despite its constitutional guarantees, see Connick v Myers 461 US 138 at 143-144 (1983) ("the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment - including those which restricted the exercise of constitutional rights"). 65 By way of illustration, I would note that s 2 of the Official Secrets Act 1911 (UK) made it an offence for any Crown servant to communicate official information obtained in office "to any person, other than a person to whom he is authorised to communicate, or a person to whom it is in the interest of the State his duty to communicate it". As was pointed out in the Franks Report (Departmental Committee on Section 2 of the Official Secrets Act 1911 (Cmnd 5104, 1972) Vol 1, para 17: "The main offence which section 2 creates is the unauthorised communication of official information (including documents) by a Crown servant. The leading characteristic of this offence is its catch-all quality. It catches all official documents and information. It makes no distinctions of kind, and no distinctions of degree. All information which a Crown servant learns in the course of his duty is 'official' for the purposes of section 2, whatever its nature, whatever its importance, whatever its original source. A blanket is thrown over everything; nothing escapes. The section catches all Crown servants as well as all official information. Again, it makes no distinctions according to the nature or importance of a Crown servant's duties. All are covered. Every Minister of the Crown, every civil servant, every member of the Armed Forces, every police officer, performs his duties subject to section 2." Emphasis added. Importantly, it was unnecessary to show for the purposes of the section that the information in question was derived by the official "in confidence". As was said by Avery J in R v Crisp and Homewood (1919) 83 JP 121 at 122: "It is sufficient if it is shown that [the defendant] obtained the [information] owing to his position as a person who held office under his Majesty." Likewise it was unnecessary to show that the disclosure was likely to or was intended to harm the public interest: see generally Cripps, "Disclosure in the Public Interest: The Predicament of the Public Sector Employee" [1983] Pub L 600 at 615; contrast Official Secrets Act 1889 (UK) s 2(1) which was repealed by the 1911 Act. And under Canada's Public Service Employment Act RSC 1970 c P-32 a public employee was required to take an oath or affirmation that he or she would not (inter alia) "without due authority in that behalf, disclose or make known any matters that comes to [his or her] knowledge by reason of such employment": ibid s 23 and Sched III; see also Dussault & Borgeat, Administrative Law, Vol 2, 128 (2nd ed, 1988). 66 I will later indicate why I cannot accept the "read down" view of the regulation the Commonwealth presses when outlining why I consider Reg 7(13) to be invalid. 67 I now turn to the conclusions I foreshadowed. (i) Reg 7(13) and Customs' Directions and Actions 68 It is not open to serious question that the directions etc given by Mr Woodward were designed to prohibit and to preclude certain public comment by Mr Bennett insofar as it involved the disclosure of information falling within the scope of Reg 7(13). 69 It likewise is not open to question that the disciplinary action taken against Mr Bennett was founded on the regulation and that the findings made by the inquiry officer were informed by a "broad application of [the] Regulation": Notice of Decision of 17 May 1999. 70 Customs later acknowledged that its view of Reg 7(13) was "too broad". Whatever the new interpretation advanced by Customs, both Customs and HREOC proceeded properly on the assumption that the regulation was valid and imposed limitations on the civil and political right of freedom of expression contained in Art 19(2) of the ICCPR. 71 For reasons I give below, I am satisfied that a public servant's ICCPR freedom of expression may be able to be limited (a) by a lawful and reasonable direction given by a person having authority to do so, or (b) by the requirements of his or her duty of loyalty and fidelity. The necessary precondition of such limitations, though, is that the direction given is lawful or, where the duty of loyalty is being relied upon, that that duty is capable of justifying the particular prohibition imposed on the public servant in question. 72 In the present matter it is clear that HREOC, as it was obliged to, regarded the restrictions imposed on Mr Bennett by the Public Service Act and Regulations as being lawful restrictions. In consequence it seems to have acted on the view - and I so infer - that (i) the directions given to Mr Bennett were lawful; and (ii) the scope of their subject matter insofar as it related to information disclosure was set by Reg 7(13) and was thus mandated by the Regulations. In other words, that regulation was an important element in HREOC's reasoning to its conclusion that the restrictions imposed on Mr Bennett's Art 19(2) rights were, in fact, "provided by law" for Art 19(3) purposes. The question raised in this proceeding is whether Reg 7(13) was itself valid and capable of being so used. (ii) The Invalidity of Reg 7(13) 73 Before considering the alleged invalidity of Reg 7(13) there is one introductory matter to which I should refer. Though the Commonwealth had separate regulations dealing variously with "disclosure of official information" and "public comment" throughout most of the twentieth century, there was an obvious area of overlap between them. The precursors in the Commonwealth of Reg 7(13) predated the public comment provision that was repealed in 1974: see Commonwealth Public Service Act 1902 (Cth), Reg 42. I do not consider the latter's 1974 repeal altered the interpretation that should thereafter be given to Reg 7(13). 74 There is no necessary connection between a non-disclosure provision such as Reg 7(13) and the making of public comment by a public servant. Nonetheless, as the applicant rightly submits, the latter activity is likely to involve the disclosure of official information if the public comment made is to be informative or even intelligible - save in cases where the subject matter of comment is itself notorious. To insist on non-disclosure in such settings is to restrict public communication. 75 I emphasise this point for this reason. It is not possible to divorce official secrecy from public comment by a public servant, as if the two were in unrelated fields of discourse. Were it otherwise one could institutionalise a form of public debate about matters of government and public administration that has been described as a "dialogue of the deaf" between those who do not know and those who will not or cannot tell: cf Kernaghan and Langford, The Responsible Public Servant, 89 (1990). 76 Turning now to Reg 7(13), if it is a law that burdens the freedom of public servants to disseminate information and to make communications about government and political matters it must be subjected to the test of validity formulated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567: "When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect. Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively "the system of government prescribed by the Constitution")." 77 The first of these questions can be answered shortly. For present purposes the implied freedom can be described sufficiently in the words of McHugh in Levy v Victoria (1997)189 CLR 579 at 622; see also John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000)181 ALR 694 per Spigelman CJ: "The freedom protected by the Constitution is not, however, a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution. Unlike the Constitution of the United States, our Constitution does not create rights of communication. It gives immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters. But, as Lange shows, that right or privilege must exist under the general law." 78 First, as Reg 7(13) prohibits any disclosure to any person (subject to its two provisos), it prevents to that extent communication by public servants to other members of the Australian community. Secondly, it is the case that information caught by the regulation need not necessarily or of course be relevant to "political and governmental matters" of the kind described by McHugh J. It may, for example, relate only to private or commercial information supplied by a member of the community to a government agency. As I have already indicated, the regulation is undifferentiating between the types and quality of the information it embraces. Nonetheless, as a regulation that applies to public servants in departments and agencies of government who are charged with formulating and implementing government programs and policies, its heartland is concerned with information about political and governmental matters and about the executive organs of the State for which ministers are in some measure responsible in our system of government. One of the regulation's major concerns on its face is with "information about public business" of the Commonwealth. 79 I will refer below to a body of opinion, judicial and otherwise, that emphasises the important purposes served (a) by the public communication of information about government and (b) more generally, by open government in a modern democratic society such as our own. In my view, those purposes bear directly on the vitality of the system of representative and responsible government provided for by our Constitution. I conclude in consequence that Reg 7(13) effectively burdens the constitutional freedom of communication. It is an impediment to the community being informed as to whether "the democratic machinery is in good working order": Zines, The High Court and the Constitution, 380 (4th ed, 1997). 80 The difficulty in giving an affirmative answer to the second Lange question inheres in the "catch-all" character of the regulation. One can identify readily enough some number of public interests or "legitimate ends", both particular and general, which could be said to be comprehended by Reg 7(13) and which are compatible with the maintenance of the system of representative and responsible government. These range, for example, from national security and cabinet secrecy through privacy protection, to the maintenance of an impartial and effective public service in which the public can have confidence. But given the very generality of the regulation such legitimate end as may be served by it must itself be of an appropriately general character. For this reason the Commonwealth in its submissions relied upon the end of "furthering the proper and efficient operation of the Government". Subsumed within this was maintaining an orderly, efficient and disciplined public service. I emphasise the need for an end of a general character for this reason. Ends of a more particular character, for example, privacy protection or preserving Cabinet secrecy could reasonably be secured by greatly less burdensome and more precise and particular restrictions. 81 The short question raised by the second test is whether Reg 7(13) is reasonably and appropriately adapted to furthering the general end relied upon "without unnecessarily or unreasonably impairing the freedom of communication about government and political matters protected by the Constitution": Lange, at 568. In my view, it manifestly is not. 82 The regulation is a relic of an era of government in which the practice of politics and of public administration differed markedly from our own. Its ancestors in their historical setting could probably be characterised reasonably as "command and control" mechanisms considered appropriate to the circumstances prevailing in the infant colonies of this country: see eg Civil Service Royal Commission Report, paras 4 and 31, VPP (1858-59), vol 3 no 19. Circumstances have changed: see Lange at 565. Whatever may have been regarded as acceptable a century and a half ago, the vices of excessive secrecy in the conduct of government, its effect on the quality of public debate and, ultimately, on the practice of democracy itself, have more recently been both exposed and addressed in this country and on some number of fronts. These concerns, as I will indicate below, are by no means uniquely Australian. 83 The Report of the Royal Commission on Australian Government Administration (1976) ("the Coombs Report") in discussing public access to information in the hands of government agencies acknowledged (at para 10.7.20): "While there is no simple solution to the problems of determining what can properly be withheld, the general sentiment and expectations of the community have been changing consistently in the direction of requiring more openness and access to information gathered and held in its administration." 84 The progressive advent of Freedom of Information legislation has provided the principal governmental accommodation of the 'changing community sentiment' discerned in the Coombs Report. That sentiment is equally reflected in judicial responses to claims made to protect "government secrets" from disclosure in legal proceedings: see eg Sankey v Whitlam (1978) 142 CLR 1; in arbitrations: see eg Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 31-32; or to the media: Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39. 85 In the John Fairfax case Sir Anthony Mason observed of the equitable jurisdiction to protect information in the hands of government from public disclosure in the media (at 52): "It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action. Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected." 86 The public interest in open government in this country (which the Coombs Report heralded) has been a central refrain in a number of prominent official reports resulting from inquiries into official misconduct particularly at State level: see eg Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, para 3.5.7ff, p 358 (1989) ("The Fitzgerald Report"); Report of the Royal Commission into the Commercial Activities of Government and Other Matters, Ch 2 (1992) ("the WA Inc Report"). As the latter report makes plain, open government is not synonymous with the enactment of Freedom of Information legislation: ibid, para 2.3.1ff. 87 The same theme of informing the public has been reiterated in other contexts. In Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, for example, McHugh J in commenting upon the defence of qualified privilege in defamation proceedings observed (at 264-265): "In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally. If this legitimate interest of the public is to be properly served, it must also follow that on occasions persons with special knowledge concerning the exercise of public functions or powers or the performance by public representatives or officials of their duties will have a corresponding duty or interest to communicate information concerning such functions, powers and performances to members of the general public." 88 Distinctly, and partly as a result of the inquiries into official misconduct referred to above, criticism has been levelled at some of this country's more extravagant official secrecy regimes. The 1992 Report of the Royal Commission into the Commercial Activities of Government and Other Matters, for example, characterised the secrecy obligations imposed on public officials in Western Australia as encouraging "the practice of information paternalism. They are quite opposed to any reasonable concept of open government": para 2.3.2. That Report illustrated its objection by reference to the obligations imposed on that State's public servants which (public comment apart) were similar to that of Reg 7(13). 89 Again the Review of Commonwealth Criminal Law in its Final Report, when recommending a significant liberalisation of the Crimes Act 1914 (Cth) offences dealing with official secrecy accepted the principle that: "in a modern democratic society, the public should have access to as much information as to the workings and activities of Government and its servants as is compatible with the effective functioning of that Government." The Committee proceeded to comment: "The Review Committee considers that existing disciplinary sanctions as to disclosure of official information should be reviewed following this Report but, as these disciplinary sanctions are outside the criminal law, this review must be undertaken by some other body. Nevertheless, the Review Committee expresses the hope that it should be possible to avoid the present catch-all approach of Public Service Regulation 35 [Reg 7(13)'s precursor] and limit the application of these disciplinary sanctions to no more than is really required for the effective working of Government." 90 As this final comment illustrates the State does have a legitimate interest in regulating the disclosure of official information by its officers and employees. Courts in systems practising both representative and responsible government (eg Canada) and representative government alone (eg the US) have accepted that the legitimate interests of the State can justify some measure of curtailment of the public actions of public officials as members of the community in question. As the Judicial Committee accepted in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 75: "in every truly democratic society a civil servant holds a unique status in many respects. As the servant or agent of the state he enjoys special advantages and protections and correspondingly must submit to certain restrictions." I would merely add in passing that, as the Canadian courts have well recognised, the common law provides its own such restrictions through its distinctive duty of loyalty (irrespective of any statutory restrictions): see Re Fraser, and Public Service Staff Relations Board (1985) 23 DLR (4th) 122; Haydon v Canada [2001] 2 FC 27 and the cases referred to therein. 91 As is now well recognised, whatever may have been acceptable in the past: cf Connick v Myers 461 US 138 at 143-144 (1983); the State's interests do not override as of course any other legitimate interest of the public servant with which they conflict. As was said by Dickson CJC in Re Fraser,above, in a public comment case raising no issue under either the Canadian Bill of Rights or the Charter of Rights and Freedoms (at 131): "Public servants cannot be, to use Mr Fraser's apt phrase, "silent members of society"." 92 However, it equally has been well recognised that such other legitimate interests (even when taking the forms of constitutional guarantees) similarly do not override the State's interest in regulating its officers and employees. As was said in Pickering v Board of Education 391 US 563 (1968) at 568 - a leading decision on free speech rights of government employees: see Hiers, "First Amendment Speech Rights of Government Employees: Trends and Problems in Supreme Court and Fifth Circuit Decisions" (1991) 45 So West L J 741 - "it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 93 No Australian court appears as yet to have considered the proper limits to the constraints that the State, by the exercise of legislative or executive power, may impose upon its public officers and employees in relation to information disclosure, public comment or for that matter partisan political activity, in light of the constitutional freedom of political communication. In other democratic societies such issues have been decided, often enough in the setting of constitutional guarantees. The assistance that can be derived from those decisions is at the least necessarily qualified (a) by the nature of the right or freedom (constitutionally guaranteed or otherwise) propounded by the public official; (b) by the constitutional jurisprudence of the State concerned; (c) by the particular State interest propounded to justify the constraint imposed having regard to the particular conduct of the official in question; and (d) by the manner in which government is structured and practised in a given country. This said, as I will indicate, useful assistance can be derived from them. 94 I referred above to the "legitimate interests of the State" in the plural. This was to acknowledge (a) both the complexity of, and the need to maintain public confidence in, modern systems of democratic government; and (b) that differing types of action by public officials may impact upon the State in ways that enliven differing facets of, or emphases in, the State's interests. Partisan political activity, for example, in a system practising responsible government may enliven the State's interest in preserving the impartiality, neutrality and loyalty of its public service: see eg de Freitas at 76; Osbourne v Canada [1991] 2 SCR 69. In the case of public comment, that emphasis may shift in a given case towards maintaining the effective working of government: cf Re Fraser, above, at 130. In the present case, it being merely one of controlling information disclosure where no public interest particular to the actual information being disclosed is relied upon, the relevant interest propounded by the Commonwealth as the legitimate end of the regulation is, as I have indicated, the efficient operation of government. 95 For the purposes of the second Lange test I am prepared to accept that the end propounded by the Commonwealth is a legitimate one though, in common with the members of the committee who conducted the Review of Commonwealth Criminal Law, I would myself have cast that end in terms of "the effective working of Government": cf Final Report, para 31.3; rather than "the efficient operation of Government". This difference, though, is not of present moment. 96 I have already described Reg 7(13), as have others, as being concerned not so much with control of what information was disclosed by public servants as with control of when and by whom disclosure could be made. I will not repeat further what I have said about the proper construction of the regulation. 97 For reasons that I have in some measure foreshadowed, I am not satisfied that the regulation is reasonably appropriate or adapted to serving even the end of furthering the efficient operation of Government, let alone in a way that does not unnecessarily or unreasonably impair the implied freedom. 98 Official secrecy has a necessary and proper province in our system of government. A surfeit of secrecy does not. It is unnecessary to enlarge upon why I consider the regulation to be an inefficient provision other than to comment that its ambit is such that even the most scrupulous public servant would find it imposes "an almost impossible demand" in domestic, social and work-related settings: cf the WA Inc Report, para 2.3.3. 99 The dimensions of the control it imposes impedes quite unreasonably the possible flow of information to the community - information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public's knowledge and understanding of the operation, practices and policies of executive government. 100 There are, unquestionably, species of official information the disclosure of which the State, properly, might wish to regulate or prohibit for reasons of public interest relating, variously, to the nature of the information, the circumstances of its generation or acquisition or the timing or possible consequences of its disclosure. So, for example, the present Civil Service Management Code in the UK provides (4.1 Annex A, para 10): "Civil servants should not without authority disclose official information which has been communicated in confidence within the Administration, or received in confidence from others. Nothing in the Code should be taken as overriding existing statutory or common law obligations to keep confidential, or to disclose, certain information. They should not seek to frustrate or influence the policies, decisions or actions of Ministers, Assembly Secretaries or the National Assembly as a body by the unauthorised, improper or premature disclosure outside the Administration of any information to which they have had access as civil servants:" emphasis added. I should add, given my earlier reference to the Official Secrets Act 1911 (UK), that that Act was repealed in 1989 and its successor, the Official Secrets Act 1989 (UK), abandoned the "catch-all" approach in favour (as stated in its preamble) of "protecting more limited classes of official information". 101 It is one thing to regulate the disclosure of particular information for legitimate reasons relating to that information and/or to the effects of its disclosure. It is another to adopt the catch-all approach of Reg 7(13) which does not purport either to differentiate between species of information or the consequences of disclosure. It is noteworthy in this that the very breadth of Reg 7(13) has been relied upon by the Commonwealth in association with the penal sanction of s 70 of the Crimes Act 1914 (Cth)as a deterrence to public whistleblowing: see eg Public Service Commission, Guidelines on Official Conduct of Commonwealth Public Servants, 95 (1995). 102 The Commonwealth in its submissions has suggested that the authorisation exception in Reg 7(13) in effect provides for this differentiation to be made and in somewhat the same way as authorised officers make determinations under Freedom of Information legislation. Further, it is said, the discretion given the agency head would not offend the implied freedom as it must be read down so as to conform with that freedom. 103 There is a number of responses that can be made to this, the most blunt being that placing "an unbridled discretion" in the hands of an Agency Head may, or may appear to, "result in censorship": cf Wolf v City of Aberdeen 758 F Supp 551 (1991) at 555. Distinctly, when this authorisation mechanism is considered as part of the balancing process required by the second Lange test, it unreasonably compromises the freedom by transforming the freedom into a dispensation. It is not an appropriate filtering device to protect the efficient workings of government in a way that is compatible with the freedom. The suggested "reading down" proposed by the Commonwealth merely highlights that inappropriateness. 104 I earlier referred to the fact that, in a number of countries of the British Commonwealth including Australia, catch-all prohibitions (subject to exceptions) on the disclosure of official information have been called into question. Simply to illustrate that modern democratic governments have found it possible to regulate information disclosure without compromising interests that ought be protected and without silencing public servants through catch-all provisions, I refer by way of example to the present position in South Australia. 105 The disciplinary provisions of the Public Sector Management Act 1995 (SA)renders an employee liable to disciplinary action if the employee (s 57(g)): "except as authorised under the regulations, discloses information gained in the employee's official capacity, or comments on any matter affecting the Public Service or the business of the Public Service." 106 Regulation 15 of the Public Sector Management Regulations 1995 in turn provides: "15(1)For the purposes of section 57(g) of the Act, an employee may disclose information gained in the employee's official capacity, or comment on matters affecting the Public Service or the business of the Public Service if the disclosure or comment - (a) is required as part of the employee's official duties; or (b) is required or authorised under the Freedom of Information Act 1991 or the Whistleblowers Protection Act 1993 or is otherwise required by law; or (c) is made with the permission of the Chief Executive of the administrative unit in which the employee is employed; or (d) - (i) does not give rise to any reasonably foreseeable possibility of prejudice to the Government in the conduct of its policies, having regard to the nature of the disclosure or comment, the employee's current position or previous positions in the Public Service and the circumstances in which the disclosure or comment is made; and (ii) is not made with a view to securing a pecuniary or other advantage for the employee or any other person; and (iii)does not involve - (A) any disclosure of information contrary to any law or lawful instruction or direction; or (B) any disclosure of trade secrets or information of commercial value the disclosure of which would diminish its value or unfairly advantage a person in commercial dealings with the Government; or (C) any disclosure of information in breach of intellectual property rights. (2) Subregulation (1)(c) and (d) apply whether the disclosure or comment is made in an official or private capacity. (3) For the purposes of section 57(g) of the Act, an employee may comment on matters affecting the Public Service or the business of the Public Service if the comment is made in the employee's capacity as a member of the governing body of a recognised organisation." 107 I should foreshadow that I will again refer to sub-para (3) of this regulation later in these reasons. 108 Though I am mindful that Reg 7(13) and its predecessors has been a threatening presence for Commonwealth public servants for over 100 years I am satisfied that it is invalid. 109 This conclusion is not the end of the matter for the purposes of Mr Bennett's human rights complaint. As I will indicate below it may well be that irrespective of Reg 7(13), Customs' directions and actions both were lawful having regard to Mr Bennett's duty of loyalty and were excused by Art 19(3) for ICCPR purposes. (iii) Customs' Directions and Actions and the ICCPR 110 My comments here will be brief and proceed upon the assumption, contrary to my finding above, that Reg 7(13) is valid. As such the directions and actions taken by Customs would have been "provided by law" for the purposes of Art 19(3) of the ICCPR. The question, though, would remain whether the restrictions imposed upon Mr Bennett were "necessary … [f]or the protection of … public order (ordre public)"? 111 Given my ultimate conclusion I do not consider it necessary to enlarge at length upon the historical background of Art 19(3): see generally, Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 348ff (1993). 112 I have earlier indicated that the Commonwealth, in maintaining the constitutional validity of Reg 7(13), described its purpose as being to further the efficient operation of government and that subsumed within that purpose was the maintenance of an orderly, efficient and disciplined public service. I have also indicated that Reg 7(13) played an integral part in fact in Customs' directions and actions. It provided one dimension of the restrictions imposed upon Mr Bennett's "freedom of expression" under Art 19(2) of the ICCPR. The other was provided by Mr Woodward's power to give lawful and reasonable directions. 113 For Art 19(3) purposes the present question is whether the Reg 7(13) restriction as such was necessary for the protection of the public order. It is convenient to refer to two passages in Nowak dealing with the concept of "public order" before answering the question I have posed. The first (at 355-356) states: "The protected interest "public order" can be found in all legal provisos in the Covenant and was just as disputed during the drafting of Art 19(3) as with the other provisions. John Humphreycorrectly termed this ground for restriction to be a "highly dangerous (from the point of view of human rights) civil law concept … a concept which, as we have seen, covers at least as much ground as public policy in English-American law and perhaps much more". In the HR Comm, a British motion to replace the vague term "ordre public" with that of "prevention of disorder or crime" modelled on Art 10(2) of the ECHR was defeated by the narrow majority of 7:6, with 2 abstentions. Therefore, in addition to prevention of disorder and crime, it is possible to include under the term ordre public all of those "universally accepted fundamental principles, consistent with respect for human rights, on which a democratic society is based." The second observation is at 357: "Finally, certain limitations on freedom of expression by members of security forces or by officials, as well as on the freedom of information of prisoners, may be justified by protection of the ordre public. Since ordre public may otherwise lead to a complete undermining of freedom of expression and information - or to a reversal of rule and exception - particularly strict requirements must be placed on the necessity (proportionality) of a given statutory restriction." 114 As the restriction imposed on Mr Bennett inhered in Reg 7(13) itself, the direction merely reiterating its force in the setting of media comment, the relevant restriction to be evaluated for Art 19(3) purposes is the Reg 7(13) restriction itself. The answer to the question I have posed above - "Is it necessary for protection of public order?" - must, in my view, be in the negative. As I have indicated previously, the regulation is not concerned with protecting confidential information as such: cf Nowak, 356-7 on "public order and confidential information." And whatever might be the outer limits of the term "public order", I do not consider it extends to furthering the efficient conduct of government (which is the purpose of the regulation on which the Commonwealth relies). That purpose hardly qualifies as a "fundamental [principle], consistent with respect for human rights, on which a democratic society is based". 115 I would add that those principles relating to open government that inform my reasons for finding the regulation invalid apply with like force to how Reg 7(13) should be characterised for Art 19(3) purposes. 116 My conclusion is based on the inappropriateness of the terms of Reg 7(13), not on the factual setting in which the direction was given by Mr Woodward. Again for reasons I give below, this conclusion would not be sufficient for Mr Bennett to succeed in his application. As I will next indicate, the direction may have been justifiable on a distinct basis upon which the Commonwealth is entitled to rely. (iv) Mr Bennett's Duty of Loyalty and Fidelity 117 Both parties to this proceeding accept, as they must, that as an employee of the Commonwealth Mr Bennett owed a common law implied contractual duty to the Commonwealth to serve with good faith and fidelity or, as I would prefer to put it in a public service setting given the nature of public service, to serve with loyalty and fidelity. I would comment in passing that it may be that in public sector settings the duty is sourced as well in status considerations: cf Re Fraser, above; de Freitas, above. And I would also add that in public service settings, case law in British Commonwealth countries on public comment, etc: eg de Freitas' case, above; has emphasised the distinctive employment requirement of loyalty to the Crown (ie to the Government of the day), as have official publications: see eg Civil Service Management Code, para 4.1 (UK) (1993); and scholarly writings: see eg Hood Phillips and Jackson, Constitutional and Administrative Law, 18-029 (8th ed, 2001). 118 Where the parties differ is in their respective view of the significance of this duty in this proceeding. 119 It is the Commonwealth's contention that even if Reg 7(13) is found to be invalid, the duty of loyalty when coupled with the power to give directions provided the necessary justification for what was actually done to Mr Bennett in the circumstances. Reliance in this was placed on my decision in McManus v Scott-Charlton (1996) 70 FCR 16; see also Anderson v Sullivan (1997) 78 FCR 380. 120 The applicant's contention is that if the duty can be so relied upon, this presupposed not only that the duty was being used in a fashion compatible with the implied constitutional freedom but also that appropriate findings had been made by HREOC that the duty could properly have been invoked in the circumstances. No such findings having been made, the matter at best would have to be remitted to HREOC. 121 For my own part I agree generally with the applicant's submissions. HREOC has not made the findings that would be necessary to support the conclusion that what was done by Customs was "provided by law" for the purposes of Art 19(3). It is not sufficient simply to contend that Customs gave lawful and reasonable directions with which Mr Bennett was bound to comply when there would be a real issue between the parties as to whether the directions given were lawful and reasonable: see eg McManus v Scott-Charlton, above, 21ff. The matter is not advanced by invoking an employee's duty of loyalty and fidelity and by contending that the directions given were in aid of, and to secure the performance of, that duty. The duty, as I will indicate, is one possessed of notorious uncertainties and its applications tend to be instance specific in character. 122 Given that I intend to remit the matter to HREOC and that I have not had the benefit of full argument as to how the duty of loyalty might apply in a matter such as the present, I will limit myself to the following observations. 123 (a) First, the common law duty must only be developed in a way that ensures that the protection given to the various interests which sustain the duty in a public service setting "does not unnecessarily or unreasonably impair the freedom of communication about government and political matters which the Constitution requires": Lange, at 568. 124 (b) The imprecision in, and the need for instance specific application of it, has been well recognised in private sector settings. I need only refer to often quoted comments of Lord Greene MR in Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] Ch 169 at 174: "It has been said on many occasions that an employee owes a duty of fidelity to his employer. As a general proposition that is indisputable. The practical difficulty in any given case is to find exactly how far that rather vague duty of fidelity extends. Prima facie it seems to me on considering the authorities and the arguments that it must be a question on the facts of each particular case. I can very well understand that the obligation of fidelity, which is an implied term of the contract, may extend very much further in the case of one class of employee than it does in others." 125 (c) The burden of the duty is contrived both by the particular employment context and by the individual setting in which it is to be applied. The difficulty this creates in a matter such as the present is that there is no significant Australian jurisprudence on how the duty is to be adapted to accommodate the distinctive demands of public service employment that result from the "special position": de Freitas's case, above, at 75; public servants enjoy. It probably is the case that such reasonable expectations that a government could entertain of its employees and which might give substance to the duty in a given case, are likely to be found in now commonplace codes of conduct and guidelines issued to employees (subject of course, to the accuracy, legality and reasonableness of the relevant code provisions). What our jurisprudence lacks, though, is linkage of the duty to the "constitutional conventions" that underpin our system of responsible government: cf Osborne v Canada [1991] 2 SCR 69. This is not the place to essay the significance that ought be given to the precepts of loyalty, neutrality and impartiality which are hallmarks of a public service in a system of responsible government and which have been relied upon in other jurisdictions (most notably Canada) in justifying the imposition of restrictions on public servants in exercising freedom of expression, etc: see Re Fraser; Osborne v Canada; Haydon v Canada; see also de Freitas. My only comment would be that to consider the duty in a setting such as the present without regard to such precepts would involve a flight from reality. 126 (d) The relatively instance specific character of the duty raises what might be a substantial difficulty in this matter. Mr Bennett, as a public servant, was subject to a duty of loyalty to the Commonwealth. He also was, and was known to be, the Federal President of the Customs Officers' Association, an industrial organisation registered under the Workplace Relations Act 1996. It was his action in that latter capacity that gave rise to this matter. It may be uncontroversial that the "fact that an employee holds an office in an industrial organisation does not alter his or her obligations to the employer": Finance Sector Union of Australia v Australian & New Zealand Banking Group Ltd (2002) 120 FCR 107 at 125. But may it be the case that, in judging whether the particular actions of a person so circumstanced constituted disloyalty, account may need to be taken of the nature and purpose of those actions if the person concerned was engaging in legitimate trade union activities? I will return to this matter when I consider the issue of discrimination. 127 (e) It is generally accepted that the duty overlaps with the equitable duty of confidence as it applies in employment settings to protect confidential information: see eg the discussion in Macken et at, Law of Employment, 143ff (5th ed, 2002). It is unnecessary here to consider that overlap. The matter to which I wish to refer relates to the extent to which either the duty or the equitable obligation will protect against disclosure by a public servant, or will justify the prohibition on disclosure of "confidential information". What seems clear is that there is a significant range of information in the hands of government agencies which is confidential in the sense of not being "public property and public knowledge", but which is unlikely to attract protection at common law or in equity because its disclosure is not "likely to injury the public interest": Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51ff. This consideration may assume some importance if it be contended that the information Mr Bennett sought to disclose was confidential. (v) Remitting the Matter to HREOC 128 Notwithstanding the invalidity of Reg 7(13), it is still open to the Commonwealth to contend that the powers it exercised against Mr Bennett were in fact justifiable in the circumstances, but on another and more limited basis. How that contention would fare with HREOC is not a matter on which I could or should express any view - the more so because of the paucity of the factual material before me. 129 In the circumstances the proper course to take is to remit the matter to HREOC for determination afresh.

Counsel for the First Respondent: Counsel for the First Respondent did not appear

Solicitor for the Second Respondent: Australian Government Solicitor

Date of Hearing: 16-17 June 2003

Date of Final Submissions: 3 October 2003

Date of Judgment: 10 December 2003