Bennett v President, Human Rights and Equal Opportunity Commission [2003] FCA 1433

FEDERAL COURT OF AUSTRALIA

Bennett v President, Human Rights and Equal Opportunity Commission [2003] FCA 1433 HUMAN RIGHTS – complaint to HREOC that employer had infringed freedom of expression and discriminated against public servant in workplace – HREOC decision to discontinue inquiry into complaints – decision based on public service regulation (Reg 7(13)) requiring Commonwealth public servants not to disclose information about public business or anything of which he or she has official knowledge CONSTITUTIONAL LAW – validity of Regulation 7(13) under Public Service Act 1922 (Cth) – regulation infringes implied freedom of political communication – not appropriate or adapted to serving a purpose that does not unreasonably impair the freedom EMPLOYMENT LAW – Public Service – duty of loyalty and fidelity – secrecy obligation – permissible public comment and disclosure of official information HUMAN RIGHTS – right to freedom of expression under ICCPR – whether restriction necessary for protection of public order – restriction founded on Regulation 7(13) not necessary for protection of public order – open to HREOC to consider if necessary for protection of public order if restriction based on Commonwealth employee's implied contractual duty to serve with good faith and fidelity HUMAN RIGHTS – discrimination – inherent requirements of the job – public servant's duty of loyalty and fidelity – conflict between employee's dual role as public servant and as trade union official Administrative Decisions (Judicial Review) Act 1977 (Cth) Crimes Act 1914 (Cth), s 70 Commonwealth Public Service Act 1902 (Cth) Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 3(1), 11(1)(f), 20(2)(a), 31(b), 32(3)(a) Public Service Act 1922 (Cth), ss 25(2), 56, 62, 97(1)(k) Workplace Relations Act 1996 (Cth) Public Sector Management Act 1995 (SA) Public Service Regulations 1913 (Cth), Reg 41 Public Service Regulations 1998 (Cth), Reg 7(13) Civil Service Regulations 1867 (Vic), Regs 20, 21 Public Service Regulations 1884 (Vic), Regs 33, 34, 36 Public Service Regulations 1896 (NSW), Reg 74 Public Sector Management Regulations 1995 (SA) Official Secrets Act 1889 (UK), s 2(1) Official Secrets Act 1911 (UK) Official Secrets Act 1989 (UK) Public Service Employment Act (Canada) RSC 1970, c P-32 Civil Service Management Code 1993 (UK) International Covenant on Civil and Political Rights, Art 19 Discrimination (Employment and Occupation) Convention 1958 Anderson v Sullivan (1997) 78 FCR 380 cited Boulting v Association of Cinematograph Television and Allied Technologies [1963] 2 QB 606 cited Clark Boyce v Mouat [1994] 1 AC 428 cited Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 considered Connick v Myers 461 US 138 (1983) considered de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 considered Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 cited Finance Sector Union of Australia v Australian & New Zealand Banking Group Ltd (2002) 120 FCR 107 applied Haydon v Canada [2001] 2 FC 27 considered Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] Ch 169 applied John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 Kelly v Cooper [1993] AC 205 cited Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 applied Levy v Victoria (1997) 189 CLR 579 applied McManus v Scott-Charlton (1996) 70 FCR 16 cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Moody v Cox and Holt [1917] 2 Ch 71 cited Osbourne v Canada [1991] 2 SCR 69 considered Pickering v Board of Education 391 US 563 (1968) considered R v Crisp & Homewood (1919) 83 JP 121 considered Re Fraser and Public Service Staff Relations Board (1985) 23 DLR (4th) 122 considered Sankey v Whitlam (1978) 142 CLR 1 cited Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 applied Wolf v City of Aberdeen 758 F Supp 551 (1991) cited X v The Commonwealth (1999) 200 CLR 177 applied Civil Service Royal Commission Report (1858-59) (Vic) Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (1989) (Qld) Cripps, "Disclosure in the Public Interest: The Predicament of the Public Sector Employee" [1983] Pub L 600 Departmental Committee on Section 2 of the Official Secrets Act 1911 (Cmnd 5104, 1972) Dussault & Borgeat, Administrative Law (2nd ed, 1988) Heirs, "First Amendment Speech Rights of Government Employees: Trends and Problems in Supreme Court and Fifth Circuit Decisions" (1991) So West L J 741 International Labour Conference, Equality in Employment and Occupation (1996) Kernaghan and Langford, The Responsible Public Servant (1990) Macken et al, Law of Employment (5th ed, 2002) Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) Ontario Law Reform Commission, Report on Political Activity, Public Comment and Disclosure by Crown Employees (1986) Public Service Commission, Guidelines on Official Conduct of Commonwealth Public Servants (1995) Report of the Royal Commission into the Commercial Activities of Government and Other Matters (1992) (WA) Report of the Royal Commission on Australian Government Administration (1976) (Cth) Review of Commonwealth Criminal Law, Final Report (1991) Smith and Randall, Contract Actions in Modern Employment Law (2002) Zines, The High Court and the Constitution (4th ed, 1997) PETER BENNETT v THE PRESIDENT, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, THE CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE A55 OF 2001 FINN J 10 DECEMBER 2003 CANBERRA