Coming soon! Cyber security audits announced by VAGO

The Victorian Auditor-General’s Office (VAGO) has this month announced plans to conduct audits on departments and agencies to assess their implementation of the Victorian Protective Data Security Framework (VPDSF) and Victorian Protective Data Security Standards (VPDSS), as well as cyber security strategy.

The audits, to run in 2018-19, will ascertain whether the VPDSF and VPDSS have been effective in improving cyber resilience in government to determine whether departments and agencies can adequately prevent, respond to and recover from cyber security attacks.

The Commissioner for Privacy and Data Protection released the VPDSF and VPDSS in mid-2016 to provide direction for Victorian public sector agencies on their data security obligations.  Department heads must prepare Protective Data Security Plans to address the VPDSS and submit the plan to the Commissioner.

Whilst VAGO will be undertaking performance audits for the purpose of ascertaining the effectiveness of the VPDSF and VPDSS in improving government's cyber resilience, the Commissioner may also conduct monitoring and assurance activities, including audits, to ascertain whether departments and agencies are complying with data security standards.

If you would like to know more, contact:

Rebecca Radford
9947 1403

Snezana Stojanoska
9947 1412

James Stephens
 9947 1422

What to do if you are contacted by IBAC

Since being established in 2012, the Independent Broad-based Anti-corruption Commission's (IBAC) operations are in full swing. It has conducted a range of both private and public investigations. VGSO has advised the State on each of the first three public examinations by IBAC:

• 'Operation Fitzroy' into allegations of serious corruption in the former Department of Transport and Public Transport Victoria;
• 'Operation Ord' into alleged serious corruption at the Department of Education and Training; and
• 'Operation Dunham' into the Department of Education and Training’s $180 million Ultranet project.

In the course of conducting its investigations, IBAC may, among other things, issue a witness summons or a confidentiality notice. As a public servant receiving such documents from IBAC, what should you do?

I have received a witness summons. What do I do?

A witness summons from IBAC may require you to attend and give evidence at an examination and/or produce documents or other things to IBAC. The examination may be conducted in private or public, or both.

If the summons is for an examination, the summons will state:

• your rights and obligations in respect of the examination;
• whether the examination will be held in private or in public; and
• the matters you will be asked to discuss at the examination.

If you receive a witness summons:

• You must comply with the summons. It is an offence to fail, without reasonable excuse, to comply with a summons.
• You may seek legal advice in relation to the summons without breaching any confidentiality notice that may accompany the summons (refer below).
• You may bring a lawyer to the examination. A lawyer can advise you during the examination and assist you to claim any rights and protections. A lawyer cannot answer questions on your behalf.
• You may discuss your examination and the IBAC investigation with other persons, except where:
• you receive a confidentiality notice (refer below);
• you receive a draft report;
• ordinary obligations as a public sector employee prevent you from disclosing the information; or
• the other person may also be called as a witness. Discussing your evidence with a potential witness may compromise the integrity of your answers to IBAC and the integrity of IBAC's investigation. It is an offence to hinder an investigation, including by colluding with other witnesses.
  

I have received a confidentiality notice. What do I do?

A confidentiality notice is a notice that requires you not to disclose the matters specified in the notice. You may receive a confidentiality notice if IBAC determines that the disclosure of certain matters would be likely to prejudice IBAC's investigation or a person's safety, reputation or fair trial. In our experience, confidentiality notices are not uncommon during an IBAC investigation.

If you receive a confidentiality notice:

• You cannot discuss with anyone the matters specified in the notice, unless IBAC authorises this, or it is necessary to comply with the notice, or to obtain legal advice. It is an offence not to comply with a confidentiality notice.
• You may only disclose to another person a matter specified in the notice:

• if you are directed or authorised by IBAC to do so;
• if it is necessary in order to obtain any information, document or other thing that you need to comply with a witness summons or confidentiality notice; or
• subject to some restrictions, to obtain legal advice or representation in relation to a witness summons or confidentiality notice.

In such circumstances, you will need to provide the other person with a copy of the confidentiality notice at the time of disclosure. They will also need to comply with the confidentiality notice.

• You may also disclose a matter specified in the notice if it has already been lawfully made public, either in an IBAC report or otherwise.

If you are an employee of the Victorian Government and have received a witness summons or confidentiality notice from IBAC and would like legal advice about your rights and obligations, contact your in house legal department in the first instance.

Eliza Bergin
Principal Solicitor
8684 0267

Greg Elms
Managing Principal Solicitor
8684 0414

Katie Miller
Innovation Counsel
8684 0268

Social media - when can you dismiss a public sector employee for inappropriate comments?

The Fair Work Commission has recently handed down a decision that sheds light on the circumstances in which a public sector employer can (and cannot) dismiss an employee for his or her comments on social media  (Starr v Department of Human Services [2016] FWC 1460 (29 March 2016)).

While the decision is subject to appeal, the result at first instance shows that the path to dismissing an employee on the grounds of inappropriate social media comments is not always smooth.

The Facts

The Commonwealth Department of Human Services (DHS) terminated the employment of a Centrelink officer when it found that he had made a number of negative comments relating to his work on social media.

Over a three year period, the employee had posted numerous adverse comments about Centrelink and its customers in online forums such as 'Whirlpool' and 'Sportal'.

Following a misconduct investigation,  DHS found that the employee's negative and inappropriate comments on social media had breached s 13 of the Public Service Act 1999 (Cth), including by breaching the Australian Public Service Values and Code of Conduct and Centrelink's Social Media Policy, and had brought Centrelink's reputation into disrepute.

Offensive online posts a valid reason for dismissal

The Commission found that the following posts by the employee gave rise to a valid reason for his dismissal:

• Posts in which the employee referred to DHS's clients as "spastics and junkies", "whinging junkies" and "junkies";
• Posts in which the employee commented that a large proportion of clients seeking exemption from the work search requirements of Newstart did not have genuine reasons for doing so; and
• Posts in which the employee stated that DHS's processing times were "utterly disgraceful", that he was "embarrassed to work there" and "there isn't a damn thing those of us in the offices can do about it".

However, the Commission rejected DHS's submission that the employee's criticism of the Government itself constituted a valid reason for his dismissal. The Commission held that the relevant sections of the Public Service Act were not sufficiently clear and unambiguous to entirely displace public servants' common law rights to freedom of expression and political communication.

Dismissal unfair despite valid reason

Despite the Commission agreeing that there was a valid reason for the dismissal, it ultimately found that the dismissal was harsh in the circumstances.  The Commission arrived at this finding because of:

• The lack of evidence to substantiate actual damage to the reputation of DHS by the employee's posts;
• the 'situational' and 'impulsive' nature of the employee's posts, which were found to have been 'made out of frustration and not maliciously' rather than in a deliberate attempt to 'publically damage the reputation of [DHS]';
• the employee's genuine remorse and regret for his conduct; and
• the employee's 20 years of service and limited alternative job prospects.

Having found the dismissal to be unfair, the Commission ordered that the employee be reinstated.
No orders were made in relation to lost remuneration as the Commission considered that any loss of income constituted a 'suitable sanction' for the employee's improper conduct.

We understand that the decision is now subject to appeal by the DHS.

Key lessons for public sector employers

• The mere fact that a public servant has made inappropriate or political comments on social media may not be sufficient to warrant dismissal.
• Training employees on a social media policy may bolster an employer's defence to an unfair dismissal claim.
• In weighing up whether a public employee has breached his or her duties, it will be important to analyse whether the impugned conduct has actually compromised the employee's work or damaged the employer's interests or reputation.  Just because an online post is embarrassing or offensive, it may not have sufficient impact to warrant dismissal.
• In all cases, employers must weigh up the nature and gravity of the conduct against factors such as the length and quality of the employee's service, the frequency and extent of any offensive comments and the circumstances in which the comments were made.

We’ll provide an update when the Full Bench hands down its decision.

For more information please contact:

David Catanese
Managing Principal Solicitor
9032 3040

Nicole Lorenz
Solicitor
9032 3051

Operation Fitzroy - learnings for integrity in procurement practices

Between September 2013 and October 2014, IBAC conducted an extensive investigation into alleged serious corrupt conduct by employees of a government department and statutory authority.

The investigation, dubbed 'Operation Fitzroy', involved 15 current and former public officials and government contractors being called to evidence during a series of public examinations conducted in the County Court of Victoria in mid-2014. These were the first such examinations conducted by IBAC since its establishment in 2012.

The IBAC report identifies a need for the Victorian public sector to learn from the findings of Operation Fitzroy and to strengthen measures to ensure integrity in public procurement.

As another year begins, it is timely for government agencies and departments to reflect on the findings of the IBAC report and consider whether their own existing procurement practices are adequate to safeguard against corruption.

Lessons from Operation Fitzroy

Public sector organisations are entrusted with a significant responsibility for public expenditure. With this comes an obligation to have robust measures in place to ensure integrity in procurement practices.

Solid organisational processes, and a good organisational culture, are cornerstones of good procurement practice.

The IBAC report identified a number of factors as contributing to corruption risks. Ensuring that departments and agencies have robust practices in the following areas will help protect against corrupt conduct and ensure integrity in procurement practices.

1. Contract management. Good contract management practices are essential to managing corruption risks. It is good practice, for example, to continue to monitor projects once a tender process is finished and a contract awarded. Adequate performance monitoring, which continues beyond a tender process, may assist in detecting corrupt practices. Controls over sub-contracting arrangements are also important.
2. Supplier due diligence. Due diligence must be conducted on suppliers who are awarded contracts. This enables departments to investigate any connections between individuals within the department, and companies that are being awarded contracts. There should be controls to ensure that suppliers have the necessary skills, qualifications, financial viability and experience to deliver the required goods and services. This will help ensure that value for money is achieved in government procurement practices.
3. Training and expertise. Government employees with procurement responsibilities must have appropriate training, experience and adequate technical knowledge about the goods or services being procured. There should be ongoing processes for employees and contractors to raise concerns about procurement misconduct and corruption. There should also be ongoing education and training for all relevant employees regarding procurement policies and procedures, as well as associated corruption risks, and mechanisms to engage with suppliers regarding procurement policies and procedures, probity obligations, standards and requirements.
4. Management of conflicts of interest. Departments must ensure that there are appropriate processes in place to manage conflicts of interest. This could include, for example, a register of interests in which department employees regularly record any relevant interests, training for identifying when conflicts of interests occur, and processes for referring contentious or difficult conflict of interest issues to management.
5. Management of procurement staff. Managers of procurement officers must be appropriately trained in managing conflicts of interest and other corruption risks, and have appropriate managerial expertise. This will ensure that procurement staff are adequately supervised, and that staff activities are monitored and checked. It will also mean that red flags, which may indicate that improper or corrupt practices are occurring, are identified and acted upon sooner, rather than later. There must also be accountability of those at management level.
6. Recruitment of management staff. There should be processes for screening prospective employees in potentially high-risk positions relating to finance and procurement, and re-screening regularly for appointed employees.
7. Timeframes for delivery of projects. Tight timeframes and a culture of expediency may create corruption risks related to procurement planning, compliance and scrutiny of decisions. Regarding procurement policies as subservient to delivering significant programs of work as quickly as possible may lead to non-compliant or improper behaviour. The tension between meeting project delivery requirements and complying with procurement policies and processes must be monitored and managed appropriately.

The VGSO has a long-standing practice in public sector integrity, government procurement and public sector governance. We can assist you to ensure that your department or agency is protected against corruption risks, and conducts its procurement activities appropriately. With extensive expertise in public sector integrity processes, we can also provide advice and assistance with respect to department and agency responses to inquiries by bodies such as IBAC.

 For queries relating to any of the issues identified in this blog, please contact:

Julie Freeman
Assistant Victorian Government Solicitor
9947 1404
julie.freeman@vgso.vic.gov.au

Alison O'Brien
Assistant Victorian Government Solicitor
8684 0416
alison.o'brien@vgso.vic.gov.au

Sophia Angelis
Solicitor
sophia.angelis@vgso.vic.gov.au

Handy resources for procurement

• Current Victorian Government Purchasing Board procurement policy framework 
• Victorian Public Sector Commission Good Practice Checklist -Supporting Integrity in Procurement

Recent facelift for public sector governance

In the 10th year of its operation, the Public Administration Act 2004 (Act) has had a facelift.  On 1 April 2014, the Public Administration Amendment (Public Sector Improvement) Act 2014 (Amending Act) made a number of key changes to Victoria's public sector governance framework.

These changes are as follows:

1. the State Services Authority (SSA) has now been replaced by the Victorian Public Sector Commission (Commission);
2. subsidiaries of public entities are now classified as 'public entities' under the Act, bringing them within the accountability regime in Part 5 of the Act;
3. Department Heads now have a statutory obligation to oversee public entities; and
4. the Secretary of the Department of Premier and Cabinet has the power to issue administrative guidelines to public entities and their subsidiaries.

The Act also now requires the board of a public entity to assess its own performance (collectively) in addition to assessing the performance of individual board members.

1. The Commission

The Commission, like its predecessor the SSA, is tasked with improving Victoria's public sector administration and governance.

The Commission's objectives are to:

• strengthen the efficiency, effectiveness and capability of the public sector; and
• maintain and advocate for public sector professionalism and integrity.

In addition to carrying out the SSA's existing functions (such as issuing binding codes of conduct for employment standards), the Commission will conduct research and disseminate best practice information in relation to:

• public sector administration;
• governance;
• service delivery; and
• workforce management and development. 

The Commission also has a new advocacy function in respect of public sector professionalism and integrity.

2. Subsidiaries are now 'public entities' 

An important change is the expansion of what constitutes a 'public entity' to cover bodies that fall within the meaning of 'subsidiary' in the Corporations Act 2001 (Cth).  Whether a body is a 'subsidiary' of a public entity depends on the level of control the public entity has over the other body.

Subsidiaries are now regulated by Part 5 of the Act, which prescribes minimum governance standards and accountabilities for Victorian public entities and their boards, directors and chairpersons.  In addition, employees of subsidiaries are now subject to the Code of Conduct for Victorian Public Sector Employees.  These obligations are in addition to any obligations that a subsidiary may have under other Victorian Acts or the Corporations Act.

3. Department Heads to oversee public entities 

In a new development, Department Heads will have a statutory obligation to oversee, and provide guidance to, public entities (and their subsidiaries) within their Ministers' portfolios on matters relating to public administration and governance.

Department Heads will also be required to provide to the relevant Minister information about the performance of public entities that fall within that Minister's portfolio.  This information must, in turn, be provided to the Department Heads by the relevant public entity.

These changes provide an opportunity and an obligation on departments to engage proactively with their entities, including monitoring their performance.  The provisions are intended to enable public entities (and their subsidiaries that are public entities), Departments and Ministers to identify and manage governance risks.

4. Administrative guidelines

The Act now empowers the Secretary to the Department of Premier and Cabinet to issue administrative guidelines to public entities and public services bodies.  The purpose of such guidelines is to ensure that consistent standards of administration are maintained across the public sector.

The guidelines will not be binding, but if a public entity intends to operate inconsistently with them, then it must notify the Secretary and provide reasons.

If you are in the Victorian Government and would like more information about these changes, please contact:

Udara Jayasinghe
udara.jayasinghe@vgso.vic.gov.au

Carolyn Doyle
carloyn.doyle@vgso.vic.gov.au
9947 1403

Katie Miller
katie.miller@vgso.vic.gov.au
8684 0460

Victoria leads the way in regulatory impact analysis (but there is room for improvement!)

A recent parliamentary committee inquiry into the Regulatory Impact Statement (RIS) process has found that the Victorian system of regulatory impact analysis is highly regarded across Australia and on par with leading practice internationally.

Regulatory impact analysis is the process by which certain regulation proposed to be introduced through subordinate legislation is subjected to scrutiny. It involves an assessment of whether the regulation is necessary, and whether it is in the least burdensome and most cost-effective form possible. The rationale behind the process is to encourage the testing of alternative regulatory approaches and to require consultation with the public and stakeholders to make sure all relevant information is obtained to assist good decision making.

The types of subordinate legislation that are subject to regulatory impact analysis include regulations, statutory rules, court rules, orders in council and codes of practice. The threshold set by the Subordinate Legislation Act 1994 for when a RIS needs to be prepared is that the piece of subordinate legislation is likely to impose 'a significant economic or social burden on a sector of the public.'

A similar scrutiny process - a business impact assessment (BIA) - now also applies to certain primary legislation. The threshold for when a BIA is required is that the legislative proposal (ie a Bill) has 'potentially significant effects for business and/or competition in Victoria.' BIAs are based on the same methodology as the RIS process but are not governed by legislation; rather, the content and processes of BIAs are agreed by Cabinet and set out in the Victorian Guide to Regulation.

The Inquiry into the Regulatory Impact Statement Process (Inquiry) conducted by the Environment and Planning Legislation Committee (Committee) concluded that although there was some evidence that the RIS process is perceived to be overly burdensome, time consuming and costly, the benefits of conducting regulatory impact analysis outweigh the costs. In addition, the weight of evidence put to the Committee indicated that the Victorian system is working well and the rigour and standard of analysis of RISs produced in Victoria is higher than in other jurisdictions.

However the Inquiry did find that there are still ways in which the system can be made more effective and the Committee made a number of recommendations as to how the RIS process in Victoria can be improved. Four key areas flagged for improvement are outlined below.

Making the RIS process more efficient by increasing departmental involvement

The Committee found that Victorian departments are engaging consultants to prepare RISs much more frequently than in other jurisdictions. In 2012-13, 77 percent of Victorian RISs and BIAs were prepared either wholly or partially by consultants. Evidence before the Inquiry suggested widespread and consistent use of consultants can limit the accrual of skills, expertise and experience within the department or agency. It also risks distancing the regulatory process from the policy-making process, which is contrary to the rationale behind the RIS system.

The Committee concluded that consultants have an important role in regulatory impact analysis in terms of advising departments on technical matters relating the regulatory proposal. However, it recommended that departments should endeavour to develop their own in-house skills with the aim of building the capacity of the department to undertake the bulk of the non-technical aspects of regulatory impact analysis. To help facilitate this, the Committee also recommended a number of improvements to Victorian Guide to Regulation to better support departments and local councils.

Bringing the BIA process into line with the RIS process

Although many of the steps involved in the BIA process are similar to those in the RIS process, the 'threshold' test for a BIA is different and significantly narrower than for a RIS. To make the BIA process more effective, the Committee recommended that the threshold test for when a BIA is required be changed to bring it into line with the RIS threshold, and that the term 'business impact assessment' be replaced with the more accurate term 'legislative impact assessment.'

Independent quality assessment and compliance monitoring

At present, the oversight body for the regulatory impact analysis system is the Victorian Competition and Efficiency Commission (VCEC) which is attached to the Department of Treasury and Finance. The VCEC provides the final independent assessment of whether RISs and BIAs are compliant with their requirements.

The Committee found that leading practice suggests oversight bodies with a greater degree of independence are likely to operate with more objectivity and transparency in implementing regulatory impact analysis requirements. Accordingly, the Committee made two recommendations: First, that the Victorian Auditor-General conduct bi-annual evaluations of the VCEC's assessments of RISs and BIAs; and second, that the VCEC be established as a fully independent body reporting to the Parliament.

Recommended change to the planning system

Planning scheme amendments are currently exempt from the RIS process, largely because a requirement to prepare an RIS for these amendments would create duplication of existing assessment and consultation requirements under the Planning and Environment Act 1987 and potentially increase unnecessary delay.

However, the Committee found that the rigorous cost-benefit analysis required by the RIS process has the potential to improve policy making in all areas, including in the planning system. As such, the Committee recommended that a requirement for a cost-benefit analysis be introduced for any significant changes to a planning scheme.

If you are in the Victorian Government and would like more information about this report, please contact:

Retta Berryman
Trainee Lawyer
retta.berryman@vgso.vic.gov.au
t 8684 0468

The ins and outs of good governance of public sector boards

No one doubts the importance of public sector boards having impeccable governance procedures, but what does this really involve?

The Victorian Ombudsman's recent report on the Review of the Governance of Public Sector Boards in Victoria (Report) provides a helpful guide.

It identifies two dimensions to governance arrangements of public sector boards:

• External governance, being the entity's relationship with Parliament, the responsible Minister and the relevant government department.
• Internal governance, being an entity's organisational structure, internal procedures and financial practices and policies.

External governance

External governance arrangements are generally set by the entity's enabling legislation and, depending on the form of the entity, public sector governance legislation such as the Public Administration Act 2004 (PAA); Financial Management Act 1994; Audit Act 1994; Information Privacy Act 2000; Independent Broad-based Anti-Corruption Commission Act 2011 and so forth.

Compliance with public sector governance legislation requires the public entity, the department and the responsible Minister to collaborate. This is because the legislation, although applying separately to the public entity and the Minister, imposes obligations on each.

The board of a public entity is accountable under the PAA to the responsible Minister who in turn is responsible to Parliament. Ministers need to be kept informed of the performance and operations of public entities within their portfolio and will rely on their departments for ready access to such information.

Unless stated in the enabling legislation, departments do not currently have an automatic role in the accountability framework for public entity boards. Departments assist at the Ministers' direction.

The Public Administration Amendment (Public Sector Improvement) Bill 2013 currently before Parliament gives statutory recognition to the role of departments. The bill proposes that a department head is responsible for advising the Minister on matters relating to a public entity, including the discharge of responsibilities by the entity. The department head is also entrusted with the task of providing guidance to each relevant public entity on matters relating to public administration and governance.

The key to ensuring that each party - the entity, the Minister and the relevant department head is able to discharge their particular statutory responsibilities is to put in place workable governance arrangements that are understood and accepted by all.

Internal governance

The principal internal governance concern identified in the Report is the relationship between a public entity board and its CEO. An effective board-CEO relationship is essential for the operational governance of an entity. Separation between the roles of the CEO and the board assists the effective governance of boards. Insufficient accountability dilutes responsibility and poses a risk to good governance.

The Report highlights a number of accountability mechanisms which may regulate the relationship between the board and the CEO, and discusses ways in which conflicts of interest may be avoided.

Board Design

The composition of a board is crucial to its ability to govern effectively. The board member appointment process is a key area of governance risk.

The particular functions of an entity should determine the design of its board. Generally, a board should have a combination of generalist skills and skills specific to the sector in which the entity operates. An entity's enabling legislation may specify that the board must include members with particular skills and expertise.

The Report notes that it is desirable for the Chair of the board to be involved in the appointment process, as the Chair can assist in identifying the skills and experience required, and the mix of personalities most likely to make for a cohesive board. .

The Report also identifies the size of the board as a critical aspect of good governance. Large boards can be inefficient and unwieldy.. But on the other hand, a board's ability to effectively govern could be impaired if it is too small or is operating at a reduced capacity due to delays in vacancies being filled. The Report recommends that boards with more than nine members should be avoided unless the circumstances require a higher number of appointments.

Drawing from many years of practical experience, the VGSO's experts in corporate governance can assist you in establishing and implementing governance processes and support you to conduct the business of government consistently with public sector governance legislation. If you are in the Victorian Government and seek advice on corporate governance issues, please contact:

Udara Jayasinghe
Principal Solicitor
t 9947 1445
udara.jayasinghe@vgso.vic.gov.au

Carolyn Doyle
Principal Solicitor
t 9947 1403
carolyn.doyle@vgso.vic.gov.au

To whom can Victorian public servants report corruption?

Recent changes to Victoria's integrity framework, including the establishment of several new integrity bodies and a system to monitor and oversee them, has changed the way in which to report allegations of corruption or improper conduct in the Victorian public sector.

Here’s a summary of some of the options available to a public servant or a member of the public who suspects improper conduct.  More information can be found from VGSO's publications, IBAC's website or the website of the body about which a complaint is to be made.

Type of conduct: ‘police personnel misconduct’

Body: the Independent Broad-based Anti-corruption Commission (IBAC)

IBAC started on 10 February 2013. It replaced the Office of Police Integrity and is the sole integrity agency with responsibility for dealing with matters relating to the misconduct of sworn and unsworn police members (described as 'police personnel conduct').

For a sworn officer, this includes:

• conduct that constitutes an offence punishable by imprisonment;
• conduct that is likely to bring the police force or police personnel into disrepute or diminish public confidence in them; and
• disgraceful or improper conduct, whether in their official capacity or otherwise.

The definition of police personnel misconduct is narrower for an unsworn officer.  It does not include conduct which constitutes an offence punishable by imprisonment, or disgraceful or improper conduct.  Unsworn members include those members who assist in the administration of the police (i.e. VPS members employed by Victoria Police), police recruits and Protective Services Officers.

Type of conduct: ‘corrupt’ conduct of public officers/ bodies (other than the IBAC or the IBAC's officers)

Body: IBAC

IBAC can receive complaints about ‘corrupt conduct’ of ‘public officers’ and ‘public bodies’.

Public officers/bodies include public servants, departments and statutory authorities, local councils, Members of Parliament, public schools and universities, public hospitals, judges and magistrates, except those bodies covered by the Inspectorate, set out below.

‘Corrupt conduct’ of public officers/bodies includes:

• dishonesty;
• breach of public trust;
• misuse of information; and
• conspiracy to do any of the above acts.

The conduct must, if the facts were found proved beyond reasonable doubt at a trial, constitute either:

• a statutory indictable offence; or
• the common law offences of perverting, or attempting to pervert, the course of justice or bribery of a public official.

IBAC can investigate only where it is ‘reasonably satisfied’ that the corrupt conduct is ‘serious’.  It can refer complaints to the Ombudsman, Chief Commissioner of Police, Auditor-General, Victorian Inspectorate or WorkSafe for investigation if it thinks it more appropriate for that body to investigate it.

IBAC is not prevented from investigating a complaint simply because the subject of the complaint is no longer a public officer or body.

Type of conduct: ‘improper conduct’ of public officers/ bodies (other than the IBAC or the IBAC's officers)

Body: IBAC/ Protected Disclosure Coordinator within a Department or Administrative Office (when it concerns their employee)/ the Ombudsman

IBAC can receive ‘disclosures’ about ‘improper conduct’ and has responsibility for determining whether a disclosure is a protected disclosure and which body will investigate.

Improper conduct means ‘corrupt conduct’ (as above) or specified conduct that is outside 'corrupt conduct' which includes:

• a substantial mismanagement of public resources, or
• a substantial risk to public health or safety, or
• a substantial risk to the environment.

The conduct must be serious enough that if proven it would constitute a criminal offence or reasonable grounds for dismissal.

‘Protected disclosures’ about employees of Departments or Administrative Offices can also be made to the Protected Disclosure Coordinator or the head of that Department or Administrative Office; or the supervisor of either the person making the disclosure (if they are a public servant) or the supervisor of the employee who is the subject of the disclosure.

The Ombudsman may also receive 'disclosures' about 'improper conduct', but only if the Ombudsman would be authorised to investigate the subject matter of the disclosure in the event it was determined by IBAC to be a protected disclosure.  If in doubt, a disclosure about improper conduct should be made to IBAC.

Protected disclosures about particular senior public servants including the Chief Commissioner of Police, the DPP and the Solicitor General can only be made to IBAC.  For a full summary, see VGSO’s previous newsletter on this topic.  The newsletter also sets out the whistleblower protections that come with making a ‘protected disclosure’.

 

Type of conduct: complaints about IBAC and its officers

Body: the Victorian Inspectorate (Inspectorate)

The Inspectorate started on 10 February 2013.  The Inspectorate can receive and investigate complaints about conduct of IBAC and its officers.

Type of conduct: complaints about the Chief Examiner, an Ombudsman officer or an officer of the Auditor-General's office

Body: IBAC or the Inspectorate

IBAC or the Inspectorate can receive and investigate complaints about conduct of the above officers.

Type of conduct: complaint about decisions and conduct under the Freedom of Information Act 1982 (Vic)

Body: Freedom of Information Commissioner

The Freedom of Information Commissioner started on 1 December 2012.  She deals with complaints about freedom of information (FOI) decisions.

With the establishment of the Commissioner, complaints about FOI decisions must be made to the FOI Commissioner, not the Ombudsman.  Complaints about the FOI Commissioner can be made to the Ombudsman or, if the complaint is about 'corrupt' conduct or 'improper' conduct, IBAC. 

Type of conduct: complaints about the performance of the duties and functions of the Inspectorate or the FOI Commissioner

Body: the Accountability and Oversight Committee of Parliament

Under the new integrity regime, Parliamentary committees have also been established to oversee a number of integrity bodies.  The Accountability and Oversight Committee is a joint investigatory committee established to monitor, review and report on the exercise of duties, powers and functions of the FOI Commissioner, the Ombudsman, and the Inspectorate (in respect of Ombudsman officers).

Type of conduct: complaints about IBAC or the Inspectorate

Body: the IBAC Committee of Parliament

The IBAC Committee is a joint investigatory committee established to monitor, review and report on the performance of duties and functions of IBAC and the Inspectorate (other than in respect of officers of the Ombudsman or the Auditor-General).

Type of conduct: complaints about the Auditor-General

Body: the Public Accounts and Estimates Committee of Parliament

As before, the Auditor- General remains subject to the Public Accounts and Estimates Committee, which now also has responsibility for oversight of the Inspectorate’s functions in respect of the officers of the Auditor-General.

Type of conduct: ‘protected disclosures’ about members of Parliament

Body: Speaker/ President

Disclosures about members of the Legislative Assembly must be made to the Speaker of the Legislative Assembly.  Disclosures about members of the Legislative Council must be made to the President of the Legislative Council.

For more information about public sector governance and integrity in the Victorian Public Sector, please contact:

Udara Jayasinghe
Principal Solicitor
t 9947 1445
udara.jayasinghe@vgso.vic.gov.au

Katie Miller
Principal Solicitor
t 8684 0460
katie.miller@vgso.vic.gov.au

When is it OK for a public servant to tweet political opinions?

Are you a public servant who uses social media to express political views?  A recent Federal Circuit Court decision involving a pseudonymous Twitter account has once again highlighted the importance for public servants to 'look before you leap' into social media and for Departments to provide clear guidance about political comments by public servants, whether on social media or in other public fora.

The decision

The decision is Banerji v Department of Immigration and it raises more questions than it answers.  Being a Federal Circuit Court decision, it is not binding on State courts or the State Government.  Furthermore, the Court was deciding an application for an injunction and the decision is not a final determination of the limits of a public servant's freedom to engage in social media.  However, the circumstances of a public servant tweeting critical comments about her employer are probably not unique to the federal sphere and it is likely that a Victorian court would consider the case if a similar issue arose with Victorian public servants.  It is therefore a timely reminder to revisit the difficult issue of what kind of online political discussions Victorian public servants may legitimately engage in.

Michaela Banerji works for the Department of Immigration.  She has a Twitter account under the pseudonym @LaLegale.  She used this account to criticise the immigration policies of the Federal Government, the conditions in detention centres and comments made on these issues by various Ministers and government employees.

Ms Banerji claimed the tweets were a ‘simple expression of political opinion, made in her own time away from work’.  The Department claimed that the tweets breached:

• her contract of employment;
• the Department’s Social Media Guidelines; and
• the Australian Public Service’s Code of Conduct.

Judge Neville declined to issue an injunction preventing Ms Banerji’s dismissal on the basis that the application for an injunction was premature, as the internal departmental processes had not yet been finalised. 

Twitter and the implied freedom of political communication

In doing so, his Honour made some brief comments about Ms Banerji's Twitter use, and whether the implied constitutional right of freedom of expression protects it, which set the Twittersphere alight and gave many a public servant pause for thought before pressing 'retweet'.

An implied right to freedom of political communication exists in our Constitution, limiting federal or State ‘laws’, be they exercises of legislative or executive power.  Free communication on matters of government and politics is necessary for the system of representative and responsible government established by s 7 and s 24 of the Constitution, the High Court unanimously reasoned in the 1997 case Lange.  The freedom is not absolute but if limitations are to be imposed on it, those limitations must be ‘reasonably appropriate and adapted’ to maintaining the system of government prescribed by the Constitution.

As his Honour was deciding whether to grant an injunction, Judge Neville did not need to consider whether dismissal of Ms Banerji would be reasonable.  His Honour simply found, without explanation, that the implied freedom did not provide ‘a license… to breach a contract of employment’.

This is an interesting finding. Entry into contracts is a textbook example of an exercise of executive power.  And the implied freedom of political communication can curtail executive power.  This is settled law, even though the only aspect of executive power that has been litigated for infringing the freedom is the exercise of delegated legislative power.

Perhaps some contracts lack a sufficient connection with a ‘law’ to fit within the Lange test.  But Commonwealth public servant employment contracts are so intertwined with Public Service Act 1999 that it is surely arguable that the disciplinary provisions within this Act must be interpreted in line with the freedom.  A discussion for a later judgment, perhaps?

In the meantime, there are only questions and a degree of angst about acceptable online behavior for public servants.  When is tweeting a political opinion OK?  Is there a difference between pseudonymous accounts and accounts that identify the public servant?  What if Ms Banerji had worked for the Department of Treasury while criticising the Department of Immigration?  Perhaps it was the way in which Ms Banerji expressed her tweets, which were described as 'sometimes mocking, sometimes critical'?  Would it have been OK if Ms Banerji had a sufficient disclaimer in her bio? If she was praising her Department rather than criticising? If she was simply re-tweeting the views of others?

How would Ms Banerji have fared if she were a Victorian public servant?

Victorian public servants are bound by the Code of Conduct for Victorian Public Sector Employees (No 1) 2007, the Public Service Standards Commissioner’s ‘Guidance for use of social media in the Victorian public sector’ and individual Departmental policies, such as the Department of Justice’s Social Media Policy.

Clause 2.2 of the Code requires public servants to ‘conduct themselves in an apolitical manner' and to avoid 'in the course of their work, any participation in activities which support a political party or independent candidates including attendance at fund raising or similar events’.  Whilst Ms Banerji was expressing political views, she claimed not to be doing so in the course of her employment - although it is interesting to note that Ms Banerji is a 'public affairs officer' responsible for communicating the Department's message.  Ms Banerji's tweets were not in support of a political party or candidate.

Clause 3.5 of the Code states: ‘When making a comment in a private capacity, public sector employees ensure their comments are not related to any government activity that they are involved in or connected with as a public sector employee and make it clear they are expressing their own view. They ensure personal comments do not compromise their capacity to perform their public sector role in an unbiased manner’.  Ms Banerji was tweeting on matters relating to government activity with which she was connected.  But did her views prevent her carrying out her role without bias?

The Department of Justice policy that public servants should not ‘make any comment or post any material that might otherwise cause damage to the department's reputation or bring it into disrepute’ is stated to apply only ‘[w]here your comments or profile can identify you as a public servant’. 

The issue of how much political discussion is too much for a public servant has always been a difficult one, with clues to the answer lying in the Constitution Act 1975, the Public Administration Act 2004, the Charter of Human Rights and Responsibilities Act 2006, the VPS Code of Conduct and Departmental policy.  The issue is not a new one, but social media has made it more visible.

While the answers remain elusive, Victorian public servants engaging in online or offline political discussion would be wise to read and regularly re-read the VPS Code of Conduct and their Department's policies and to 'think before you tweet'.  Victorian departments and agencies should also regularly review their social media and other policies to check whether they are providing useful and specific guidance on how their employees may participate in political discussions in their private lives.

For advice on social media use by Government and public servants, please poke:

Katie Miller
Principal Solicitor
t  8684 0460 
katie.miller@vgso.vic.gov.au