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Australian
Public Service Commissioner's Directions 2013
FRLI ID: F2013L00448
Portfolio: Public Service and Integrity
Summary of committee view
2.15
The committee
seeks clarification as to why it is necessary to publicise employment decisions
in the Public Service Gazette, in particular publication of decisions to
terminate employment and the grounds for termination, and how this is
compatible with the right to privacy and the Convention on the Rights of
Persons with Disabilities.
Overview
2.16
The Australian
Public Service Commissioner's Directions 2013 (the Directions) prescribe the
minimum standards with which agency heads and Australian Public Service (APS)
employees must comply in order to meet their obligations under the Public
Service Act 1999 (the Act), and support agency heads to fulfil their
responsibilities in respect of their employer powers.
2.17
Chapter 2 of the
Directions provides, among other things, for notification in the Public Service
Gazette of certain employment decisions. Subclause 2.29(2) of the
Directions provides that such a notification must include the employee’s name,
unless the agency head decides that the name should not be included because of
the person’s work-related or personal circumstances (for example, if the agency
is a security agency, or if the individual has a legal protection order).
Compatibility with human
rights
2.18
The statement of
compatibility states that Public Service Gazette notification provision
promotes APS employees' right to privacy insofar as there is option for agency
heads to decide that a name should not be included in a Gazette notice
because of the person’s work-related or personal circumstances.
2.19
However, the
issue of the appropriateness of the provision in general is not addressed.
Subclause 2.29(1) lists the employment decisions for which a notice must appear
in the Public Service Gazette. These decisions include engagement
decisions, promotion decisions, termination decisions and decisions relating to
the retirement of an SES employee where a payment of an incentive to retire has
been made. While notices relating to engagement decisions may not adversely
impact on a person's right to privacy, it would appear that where an individual
is named in a Gazette notice in relation to his or her termination from
the APS this limits the right to privacy as guaranteed in article 17 of the
International Covenant on Civil and Political Rights (ICCPR).
2.20
This limitation
is made more severe by the requirement in paragraph 2.29(1)(i) that the grounds
for termination is also to be included in the notice. It is therefore possible
for any member of the public to access the Gazette on the internet and
discover that an individual has been terminated from the APS and ascertain the
grounds for that termination. Grounds for termination (outlined in section 29
of the Act) that can be publicised in the Gazette include:
- that the
employee lacks, or has lost, an essential qualification for performing his or
her duties;
- non-performance,
or unsatisfactory performance, of duties;
- inability to
perform duties because of physical or mental incapacity;
- failure to
satisfactorily complete an entry-level training course;
- breach of the
Code of Conduct;
2.21
In addition to
engaging the right to privacy in general, public notification that a person is
unable to perform duties because of physical or mental incapacity may engage
rights under the Convention on the Rights of Persons with Disabilities (CRPD).
2.22
The
committee intends to write to the Minister for the Public Service and Integrity
to seek clarification as to why it is necessary to publicise employment
decisions in the Public Service Gazette, in particular decisions to
terminate employment and the grounds for termination, and how this is
compatible with the right to privacy and the CRPD.
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