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Misconduct investigations: to disclose or not to disclose?

beware the inside threat

It might not be poetically Shakespearean, but the question of whether to disclose the outcome of Commonwealth public sector misconduct investigations is nevertheless a vexing one for decision-makers. As the Australian Public Service Commission’s recent discussion paper reveals, determining the appropriate extent of disclosure can often involve a formidable balancing act between strong competing principles.

At present, a 2008 APSC circular offers guidance for agencies on how to manage this dilemma. It notes that although “agencies can provide general information to complainants about the outcome of investigations”, “personal information about the employee who is subject to the investigation should only be provided where certain conditions are met”. While considerations such as the nature and seriousness of the misconduct will inform this decision, an employee’s identity should not be released “unless it is necessary, appropriate and reasonable to do so”.

Unfortunately, these somewhat nebulous guidelines have failed to provide sufficient clarity, such that the discussion paper identifies “a tendency across the APS to err on the side of non-disclosure”. As several decisions have indicated, this might be a habit that needs to be broken.

The recent case of Banerji v Bowles provides an apt example. Banerji made a complaint of bullying against a colleague. When she enquired what the outcome of her complaint was, her employer (the Department of Immigration and Citizenship, as it then was) told her that “appropriate action” had been taken. But the department refused to give any details about what the “appropriate action” was, saying that the Privacy Act prevented it from doing so. That led Justice Neville to quip dryly, “the letter is (a) less than informative (or otherwise illuminating), and (b) classic Yes, Minister speak”. He continued:

“One might inquire or observe, not unreasonably I hope, how a complainant might obtain any relevant information, or ask any questions, about a grievance that involves ‘serious misconduct’ in circumstances where that person is advised that no relevant information can be provided? … [S]uch an information vacuum might understandably give rise to a certain angst or tension in the workplace.”

The Australian Information Commissioner offers some support for greater disclosure, saying this in a matter recently before him:

“To the extent that such a disclosure demonstrates that an investigation has been properly undertaken, that disclosure will improve general confidence in an agency’s capacity to conduct future investigations.”

The present state of affairs is not necessarily an evil in need of decisive action, though. The right to privacy, with both international law and federal legislative underpinning, militates against arbitrary interference with privacy and reputation, while both the Freedom of Information Act and Public Interest Disclosure Act recognise instances where disclosure is not necessarily beneficial. One might argue, for example, that where an alleged code of conduct breach has been highly contested, and there is significant ill-will between the complainant and the accused, disclosing significant details about the investigation could risk inflaming the situation.

“These considerations are underscored by a more fundamental principle of the public sector disciplinary process: the purpose is protectionary, not punitive.”

These considerations are underscored by a more fundamental principle of the public sector disciplinary process: the purpose is protectionary, not punitive. In this respect, the APSC’s recent discussion paper evidences what might be described as “mission creep”. The report qualifies this seemingly absolute principle by suggesting that “taking action in cases of suspected misconduct is primarily aimed at protecting the integrity of the APS and thereby maintain public confidence”, “rather than aiming to ‘punish’ the employee per se”.

The High Court in New South Wales Bar Association v Evatt, however, found no room for such qualification. A unanimous judgment noted that the disciplinary process is:

“… entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.”

This aside, overly broad disclosure of disciplinary outcomes may be viewed unfavourably by courts and tribunals in determining the legality of the process. While certain disclosure measures may be necessary to protect public confidence in an agency, wanton dissemination of adverse information about an employee could easily be considered as “punitive”. Thus core disciplinary principles, alongside the privacy concerns highlighted above, need to be weighed against the factors favouring disclosure. However difficult it may seem, striking the right balance is essential.

The APSC discussion paper proposes the introduction of four principles governing disclosure:

  1. Agencies should provide enough information to assure a reasonable complainant that the matter has been dealt with properly.
  2. Agencies should provide enough information to assure employees and the public that complaints are dealt with fairly and effectively.
  3. Generally, the more harm done to the complainant and/or the agency as a consequence of the misconduct, the more information should be provided.
  4. Before any disclosure is made, the views of the employee who is the subject of the complaint should be sought and taken into consideration.

While these new guidelines will undoubtedly assist decision-makers, they are not a panacea to cure all ills; nor should they be seen as providing a one-size-fits-all answer to replace reflective deliberation on the facts of each matter.

Like Hamlet’s eternal question, “to disclose or not to disclose” has no easy answer. Elaborated APSC guidance and a careful case-by-case consideration of the conflicting values is a good start, though.

Author Bio

John Wilson

John Wilson is the managing legal director of Bradley Allen Love in Canberra and an accredited specialist in industrial relations and employment law. He has twice appeared on the Best Lawyers list, and has an extensive public sector employment practice.