FEDERAL COURT OF AUSTRALIA
Griffiths v Rose [2011] FCA 30
FEDERAL COURT OF AUSTRALIA
Griffiths v Rose [2011] FCA 30
CORRIGENDUM
1. The numerical listing of the respondents in this judgment should be as follows:
1. Jo-Ann Rose
2. Ken Pettifer
3. Commonwealth of Australia
2. In Order 2, the reference to the second respondent should be a reference to the third respondent.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Perram. |
Associate:
Dated: 2 February 2011
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent KEN PETTIFER Third Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the second respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY | |
GENERAL DIVISION | ACD 9 of 2010 |
BETWEEN: | JOHN FRANK LEWIS GRIFFITHS Applicant
|
AND: | JO-ANN ROSE First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent KEN PETTIFER Third Respondent
|
JUDGE: | PERRAM J |
DATE: | 31 JANUARY 2011 |
PLACE: | SYDNEY (BY VIDEO LINK TO CANBERRA) |
REASONS FOR JUDGMENT
I
1 The applicant in this proceeding, Mr Griffiths, is a senior member of the Australian Public Service working in the Commonwealth Department of Resources, Energy and Tourism (the Department). On 8 days between Saturday 30 May 2009 and Sunday 21 June 2009 he used a Departmental laptop to access a number of websites which contained pornographic images. Mr Griffiths viewed all of these websites in the comfort of his own home and using his own internet service provider. None of the pornography was in anyway unlawful and there is no suggestion that Mr Griffiths committed any offence by accessing the images in question.
2 All of the days on which access to the images took place fell on weekends with the exception of Thursday 4 June 2009. On the evening of that day access to the imagery took place for a period of 22 minutes starting after 10 o’clock in the evening. Apart from those involved in the investigation process itself (and a number lawyers involved in this litigation) no person apart from Mr Griffiths saw the images. Other persons in his workplace were not scandalised by being exposed to them and there is no evidence that he passed any of the material on to others. Unsurprisingly in those circumstances, there is no evidence that any complaints about the material were received by the Department. There was also no suggestion that Mr Griffiths was a recidivist who had been apprehended yet again.
3 Mr Griffiths deleted the entries in his browser’s internet history no doubt with the anticipation that this would prevent any person accessing the laptop from knowing – if they looked at the entries within it – the nature of the material he had been accessing. Mr Griffiths did not, however, reckon upon the presence on the laptop of some software known as Spector360. Since he was a member of the Department’s IT sub-committee there was perhaps an element of irony about this. Spector360 was a utility of a kind known as a “desktop logging system”. It performed a number of functions including logging the occurrence of particular keywords and taking a precise snapshot of the user’s desktop every 30 seconds. On the next occasion that a laptop installed with Spector360 was connected to the Department’s network it was configured to send the data it had collected to a dedicated server. For completeness, it might be noted that Spector360 also collected all emails, attachments, internet searches and instant messages performed by a user and sent them to the same dedicated server. Three of the Department’s security officers had access to this server.
4 On 2 July 2009, some weeks after these events, the security officers performed a standard operational audit of the keywords which had been logged. The Department had set as one of the keywords for which Spector360 was to keep vigil the word “knockers” and the system flagged that word as having been searched for by Mr Griffiths’ user account (I interpolate that each person who used a Departmental laptop was required to log on in the name of an account which was registered to him and which was known as the person’s user account). After the detection of that word further inquiry ensued and there was retrieved from the dedicated server the screenshots recorded by the laptop at 30 second intervals during the period of Mr Griffiths’ use. A sample of these screenshots was placed into evidence by the Commonwealth to demonstrate not only that Mr Griffiths had used the well-known search engine at www.google.com.au to search for the material but also that Spector360 had recorded screenshots which showed him deleting the browsing history. I accept both of these matters.
5 Mr Griffiths’ 25 year career with the Australian Public Service now hangs in the balance. The Commonwealth submits that the public servants in Mr Griffiths’ Department (including Mr Griffiths) had been directed in clear terms not to use its computer equipment for accessing pornography and that they had been warned that the Department regarded any such use as a very serious matter. Indeed, so the Commonwealth says, staff members’ attention had been particularly drawn to the fact that termination of employment was a consequence potentially attending disobedience to this instruction. Further, it submits that once Mr Griffiths was confronted with the fact of his having viewed the material he dissembled; in the first instance, by claiming his viewing was accidental and afterwards, when confronted with the fruits of Spector360’s operation, by creating an elaborate, but ultimately unbelievable, explanation for his actions based around notions of research and inquiry.
6 On 28 July 2009, following an investigation, an officer of the Department, Ms Rose, decided that Mr Griffiths had breached the “Australian Public Service Code of Conduct”. That code is contained in s 13 of the Public Service Act 1999 (Cth) and consists of a number of stipulations setting out what the Parliament expects of the Commonwealth’s public servants. Ms Rose found that Mr Griffiths had breached s 13(5) which requires that a public servant “must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction”. The direction which she found Mr Griffiths to have breached was contained in a written Departmental policy entitled “Use of DIISR ICT Facilities Policy” (DIISR is an acronym for the Department’s full name; ICT is an acronym for “information and communications technology”). I refer to this policy as the principal policy or, more simply, the policy. That principal policy contained a stipulation which was, relevantly, in these terms:
Employees are prohibited from using Departmental ICT facilities to deliberately access, display, download, distribute, copy or store:
• pirated software and/or material;
• racist material;
• pornography; or
• links to such material.
It was the direction in the third bullet point that Mr Griffiths was found to have disobeyed.
7 Ms Rose also found that Mr Griffiths had breached s 13(8) which requires of a public servant that he or she “use Commonwealth resources in a proper manner”. This was because, so it was said, the use of the laptop to access the imagery was not a proper purpose. Finally, Ms Rose also found that Mr Griffiths had breached s 13(11). That provision required of Mr Griffiths that he “must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS”. APS is an acronym for the Australian Public Service and the APS Values are a list of some fifteen values set out in s 10(1) of the Public Service Act 1999. Ms Rose considered that Mr Griffiths’ behaviour should be seen as not upholding two of those values. These were the value that “the APS has the highest ethical standards” (s 10(1)(d)) and the value that “the APS has leadership of the highest quality” (s 10(1)(h)). A further finding by Ms Rose of another breach by Mr Griffiths of s 13 was subsequently revoked and is not material.
8 The range of sanctions available to the Department, once Ms Rose had found a breach of the Code of Conduct had occurred, were set out in s 15(1) of the Public Service Act 1999. They were:
(a) termination of employment;
(b) reduction in classification;
(c) reassignment of duties;
(d) reduction in salary;
(e) deductions from salary, by way of fine;
(f) a reprimand.
9 In assessing which of these sanctions to visit upon Mr Griffiths, Ms Rose took into account the seriousness of the conduct, Mr Griffiths’ attempts to conceal the behaviour, his long unblemished record of employment with the public service and the fact that the Department needed to maintain the confidence of the public and the tourism and energy sectors. She also thought it relevant to observe that the Department needed to be seen as reliable and trustworthy and that any impairment of that reputation would have a direct and adverse impact on its capacity to achieve its objectives. In those circumstances, she did not consider “that any of the other sanctions [apart from termination] provided for under s 15(1) of the Public Service Act 1999 would be appropriate”. Accordingly, she terminated his employment immediately.
10 For reasons which are no longer material, Ms Rose’s decision that Mr Griffiths’ employment should be terminated was reversed as a result of an internal Departmental review but her conclusion that he had breached s 13(5), (8) and (11) was left in place. A new official, Mr Pettifer, then set about determining whether Mr Griffiths’ employment should be terminated. He concluded that it should be. The question for Mr Pettifer was not whether the breaches had occurred – this had been determined by Ms Rose – but rather what sanction was appropriate. Mr Pettifer, therefore, did two things. First, he surveyed the activities in question to gauge their seriousness. Secondly, he considered what he regarded as Mr Griffiths’ dishonest exculpatory statements when confronted with allegations about the misuse of the laptop. Ultimately, Mr Pettifer thought that, even without those aggravating circumstances, the breaches themselves were too serious to permit the imposition of a reprimand (s 15(1)(f)) or a fine by way of a deduction from salary (s 15(1)(e)). That, of course, left open termination (s 15(1)(a)), reduction in classification (s 15(1)(b)), re-assignment of duties (s 15(1)(c)) or reduction in salary (s 15(1)(d)) as available penalties. However, because of Mr Griffiths’ conduct in seeking to conceal his activities, Mr Pettifer concluded that only termination would do. It will be seen, therefore, that the decision rested not only on Mr Griffiths having viewed the images in question but also on Mr Pettifer’s assessment of his integrity.
11 As a matter of law, Mr Griffiths’ status as a member of the Senior Executive Service meant that his termination could not formally occur unless and until the Public Service Commissioner issued a certificate under s 38 of the Act. At the time of the hearing in this Court that had not yet occurred so that the present state of affairs, so I was informed from the Bar table, is that Mr Griffiths is presently suspended on full pay.
12 Mr Pettifer’s determination that the appropriate sanction was termination was made on 18 March 2010 which was a Thursday. On the following Thursday, 25 March 2010, Mr Griffiths commenced the present proceeding in which he sought orders against the Commonwealth, Ms Rose and Mr Pettifer quashing both Ms Rose’s decision that he had breached the Code of Conduct and Mr Pettifer’s decision that the appropriate sanction was termination. He also sought a declaration that the Commonwealth was not entitled further to investigate his conduct insofar as it concerned access by him of lawful pornography in private and outside of working hours. A claim for damages was also made although not pursued at trial.
II
13 The matter was called on for hearing on Wednesday 24 November 2010 at which time Mr Erskine SC appeared with Ms Carnell of counsel for Mr Griffiths and Ms Stern of counsel appeared for the Commonwealth. The cases of both parties proceeded largely like ships in the night. From the Commonwealth’s perspective the matter was obvious: it was its laptop; it was not obliged to give Mr Griffiths any personal use of its computer at all so that it must be entitled to regulate the use to which it could be put and, as a corollary, to insist that he should not use it to look at pornography; he had been warned of the risks if he did and he now had to accommodate himself to the consequences of his own actions. Granted he had rights of privacy, it did not follow that he had a right to use the laptop contrary to its owner’s express instructions not to view pornography. Further, Mr Griffiths’ dishonesty during the process of investigation thwarted the possibility of contending that the decision to terminate Mr Griffiths’ employment was beyond any reasonable decision which could have been made.
14 From Mr Griffiths’ perspective things looked somewhat different. The Department had given him a computer for personal use; it was a gross invasion of his privacy for Spector360 to be taking snapshots of his usage during periods of personal use in his own home and using his own internet connection; the policy relied upon by Ms Rose did not apply to personal use because it was not a “lawful” or “reasonable” direction (the only directions he was obliged to obey by s 13(5) of the Public Service Act 1999). The direction was not lawful or reasonable both because it invaded his privacy to the extent that it permitted the Department to monitor his personal usage with Spector360 and because it was not connected to the protection of any legitimate interest of the Department.
15 As the arguments have been presented, there are ultimately eleven issues requiring resolution. These are:
(a) The Direction issue. Mr Griffiths contends, and the Commonwealth denies, that the direction in the principal policy against viewing pornography did not apply to the laptop in question because the policy applied only to “IT facilities” and the laptop was not such a facility. The Commonwealth submits that this is an unduly narrow reading of the word “facilities”.
(b) The Lawfulness issue. Mr Griffiths contends that the direction was not a lawful direction and hence he was not obliged to obey it. It was not lawful because it was said to be contrary to s 16 of the Privacy Act 1988 (Cth). The Commonwealth denies there was any breach of s 16.
(c) The First Reasonableness issue – common law and equity. Mr Griffiths submits that even if the direction were lawful it was nevertheless not a reasonable one. He submits that the direction infringed common law and equitable rules relating to privacy. Consistent with the well-known principle of statutory interpretation that important common law rights are not to be read as having been abrogated unless the words of the statute are clear the word “reasonable” should be read as not entrenching on those common law rights. Section 15(5) was, accordingly, not to be read as authorising the direction. The Commonwealth denies that there was any relevant common law or equitable principle infringed. Further, the word “reasonable” is not relevantly ambiguous and there is, therefore, no reason to invoke the principle.
(d) The Second Reasonableness issue – Article 17 of the International Covenant on Civil and Political Rights. Mr Griffiths submits that the word “reasonable” should be interpreted in a way which is consistent with Australia’s obligations under public international law including Article 17 of the International Covenant on Civil and Political Rights. That article creates a right of privacy. Mr Griffiths contends that the direction infringed Article 17 and could not, therefore, be seen as being authorised by the word “reasonable”. The Commonwealth denies any ambiguity in the word “reasonable” and submits that the direction does not, in any event, infringe Article 17.
(e) The Third Reasonableness issue – no legitimate interest. The third argument is that the direction was itself unreasonable because it protected no legitimate interest of the Commonwealth. On this view, what Mr Griffiths did in his own home with his own internet connection on his own time was none of the Commonwealth’s business. The Commonwealth submits that the fact that it owned the laptop made the matter its business.
(f) The Breach issue. Mr Griffiths contends that the power to find that the Code of Conduct had been breached was statutory in nature and that as a statutory power it was to be read in light of any general law rights of privacy and Article 17 of the International Covenant on Civil and Political Rights. Even if there had been a breach of the Code of Conduct, therefore, the power to determine that that breach had occurred could not be exercised where to do so would infringe those privacy principles. To find that he had breached the Code of Conduct as a result of information garnered through Spector360 would, therefore, infringe those principles. Accordingly, even if the Code of Conduct had been breached Ms Rose had no power to find that that breach had occurred. The Commonwealth submits that none of the privacy principles alleged were infringed and that, even if they were, there was no ambiguity in the provision authorising the finding of a breach upon which the principle of interpretation nominated could act.
(g) The Apprehension of bias argument. Mr Griffiths argues that there was a reasonable apprehension that Mr Pettifer would not bring an unbiased mind to bear on the question of whether Mr Griffiths should be terminated. There are three reasons for this: first, when Mr Pettifer came to determine whether his employment should be terminated he was already aware that Ms Rose had previously decided that it should be; secondly, Mr Pettifer had been involved in the development of the principal policy; thirdly, Mr Pettifer had been assisted by the same solicitor as Ms Rose had been. The Commonwealth denies the capacity of any of these matters to give rise to an apprehension of bias.
(h) The Jurisdictional error issue. Mr Griffiths submits that because Ms Rose had erred in law in her approach to the question of the direction it followed that Mr Pettifer had no jurisdiction to reach the decision that his employment should be terminated. The Commonwealth denies that Ms Rose committed any such error.
(i) The Relevant consideration issue. Mr Griffiths contends that since Mr Pettifer had taken into account his apparent lack of frankness in responding to the inquiry he should also have taken into account his early and frank admission that he had accessed inappropriate material. The Commonwealth submits that Mr Pettifer was under no such obligation.
(j) The Reasonableness issue. Mr Griffiths submits that when account is taken of “the applicant’s rights [sic] to privacy protected by international and domestic law” Mr Pettifer’s conclusion that his employment should be terminated was devoid of any plausible justification and hence fell within the principle in Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 per Lord Greene MR. The Commonwealth denies that the threshold for the application of that principle has been reached.
(k) The Irrelevant consideration issue. Mr Griffiths submits that Mr Pettifer’s conclusions about his honesty were not relevant to the function being performed by him. The Commonwealth submits that this is not so.
16 It is necessary to deal with each of these arguments in turn.
III
Whether Mr Griffiths was directed not to use the laptop to view pornography
17 The first question which arises is whether Mr Griffiths was given a direction not to use the laptop for viewing pornography. There is no doubt the policy contained a prohibition on the use of the Department’s IT facilities for viewing pornography. Mr Erskine SC submits on Mr Griffiths’ behalf that the laptop was not an “IT facility” so that the prohibition (which was only directed to IT facilities) was not engaged. The policy does not define what a facility is but it is tolerably clear that the policy envisaged its application to hardware. For example, the policy expressly referred to the need for staff to show discretion “in the display of material on their workstation” and it also applied to telephones by expressly prohibiting their use for the purpose of making harassing calls. Those references suggest, and I accept, that the word “facilities” in the policy is a word of wide import intended to cover the large range of items which might be encompassed by an IT use policy. That reading is supported by two other matters. First, the policy recited that the “principle underlying this policy” was that “Australian Government resources are to be used for approved purposes and in a proper manner”. The policy, in that regard, expressly referred to s 44(1) of the Financial Management and Accountability Act 1997 (Cth) which required an agency head to manage the affairs of an agency in a way which promoted the “proper use of … Commonwealth resources”. It is difficult to see how that principle would be served by a reading of the word “facilities” which left out laptops; more so where desktops and telephones were plainly encompassed. The second point is related to the first and directs attention to why it is that the policy might be limited in its application to objects not including laptops. I can discern no sensible reason to read the policy that way.
18 Mr Griffiths has a secondary argument about this. Another policy – entitled “Remote Access Policy” – contained these words: “The Department provides certain employees with remote access services to enable them to access the Department’s ICT facilities when away from the office using a Departmental laptop or desktop computer”. Those words show, so the argument runs, that “ICT facilities” were something to which laptops might be remotely connected which necessarily meant that they could not include those laptops themselves. I reject this argument for two reasons. First, taken as a whole this is not what this policy says. A later portion makes clear that connected devices are part of the facilities (“Remote access users must remember that the connection from their laptop or desktop computer is an extension of the Department’s ICT facilities and provides a point of entry to all Departmental information”). Secondly, even if that were not so, I do not accept that this second policy is a legitimate aid to the construction of the principal policy. That policy applies to very many circumstances and it would be anomalous for a subsidiary policy to control its meaning.
19 It follows that I accept that Mr Griffiths was bound by a direction not to use the laptop to view pornography.
IV
Was the direction given to Mr Griffiths not to use the laptop to view pornography lawful?
20 Mr Griffiths was only obliged to obey lawful directions (s 13(5) Public Service Act 1999). In the written submissions prepared on his behalf, he argues that a direction to him not to view pornography in his own home was not lawful because of s 16 of the Privacy Act 1988. Section 16 of that Act required the Department not to “do an act, or engage in a practice, that breaches an Information Privacy Principle”. There are eleven such principles and they are set out in s 14 of the Act. Mr Griffiths relied only on Principles 1 and 3. Principle 1 prohibits collection of personal information in certain circumstances and Principle 3 relates to personal information which is “solicited”. Since neither Principle 1 nor Principle 3 address in any way the making of directions to staff about activities for which computer equipment may not be used there is no direct infringement of s 16. Mr Erskine SC seeks to outflank that problem by relying on some remarks made by the United Nations Human Rights Committee in Toonen v Australia (Human Rights Committee Communication No 488/1992 (1994)) which was given on 31 March 1994. The Human Rights Committee is established under Article 28 of the International Covenant on Civil and Political Rights and is authorised, where States Party have acceded to the First Optional Protocol, to determine whether a breach of the International Covenant on Civil and Political Rights has occurred. Australia acceded to the First Optioned Protocol on 25 September 1991. At the time of the Toonen case, the laws of Tasmania made sexual conduct between men unlawful. Mr Toonen complained to the Committee that the Tasmanian law breached a number of provisions of the International Covenant on Civil and Political Rights including, pertinently, Article 17 which deals with privacy. The Committee determined that the Tasmanian law did contravene Article 17. Parts of its reasons included the following statement:
The State party acknowledges, however, that in the absence of a specific policy on the part of the Tasmanian authorities not to enforce the laws, the risk of the provisions being applied to Mr Toonen remains, and that this risk is relevant to the assessment of whether the provisions “interfere” with his privacy.
21 Mr Erskine SC seeks to extract from this passage the proposition that there could be a breach of Article 17 arising from the risk that a particular direction might be enforced. So far as s 16 went, the point of this is, I think, to demonstrate that Principles 1 and 3 might be breached by the direction not to look at pornography because of the risk that that direction might be enforced by the use of software like Spector360.
22 I will assume in Mr Griffiths’ favour that this argument is sound. The question then becomes whether the enforcement of the direction not to view pornography infringes either of Principles 1 or 3. Principle 1 provides:
1. Personal information shall not be collected by a collector for inclusion in a record or in a generally available publication unless:
(a) the information is collected for a purpose that is a lawful purpose directly related to a function or activity of the collector; and
(b) the collection of the information is necessary for or directly related to that purpose.
2. Personal information shall not be collected by a collector by unlawful or unfair means.
23 Mr Griffiths places particular emphasis on the need for the information to be directly relevant to the functions of the collector and for it to be necessary for that purpose. He also draws attention to the requirement that the information not be collected by unlawful or unfair means.
24 There is no dispute that there was relevantly a “record” (in the form of a server) and the Commonwealth does not seek to argue that what was collected from Mr Griffiths was not “personal information”. Instead, it submits that the information was “obtained and used for the purpose of monitoring compliance with the Code of Conduct”. I accept that that was a lawful purpose directly related to the functions of the “collector”. Mr Griffiths submits that no purpose of the Department was served by spying on his private use in his own time using his own internet connection. Ms Stern, for the Commonwealth, points out that it was the Commonwealth’s computer and, as its owner, it was entitled as a matter of dominium to insist that it not be used in any particular way it wished to specify. Further, the Department did have a legitimate interest in ensuring that its equipment did not come into contact with pornography. One such concern, she submits, was the risk posed by the pornography’s accidental reappearance or display in the workplace. Mr Griffiths had himself put that concern forward as part of his own explanation for why he had deleted the entries in his browsing history. He had been worried, so he said at the time, about the material accidentally reappearing during a Powerpoint display at work. As it happens, Mr Pettifer did not believe that account but I do not think that that shows that the Department’s general concern about the potential difficulties of having pornography on a computer which is sometimes in the workplace is an unfounded or unreasonable one. Even though Mr Pettifer did not ultimately accept that Mr Griffiths had deleted his browsing history because of that concern, it does not follow that the concern is not a legitimate one from the Department’s perspective. Indeed, the fact that Mr Griffiths was minded to put it forward provides powerful evidence that he thought the concern plausibly valid as well.
25 Accordingly, I accept that the Department’s use of Spector360 did not infringe Principle 1(1). Mr Griffiths also places reliance on the prohibition in Principle 1(2) on the use of “unfair” means. I take this to be a reference to the intrusive nature of Spector360. To this the Commonwealth responds by pointing out that it had made it quite clear that it monitored computer use. In that regard it points to that part of the policy which reads:
The Department may monitor all use of its ICT facilities (including, but not limited to the email and telephone systems) to ensure employees are using them in accordance with this policy. However, in doing so the Department respects the privacy of employees’ communications provided they adhere to this policy.
The Department may record all telephone and facsimile numbers called, and emails sent and received by employees and may examine those records for any Departmental function, activity or purpose, including ensuring that employees are not using the telecommunications, email or ICT facilities for improper purposes in contravention of Departmental policy.
Departmental ICT Security staff monitor web uniform resource locator (URL) logs and email messages constantly. If material is found that breaches the Department’s policy, or the ICT facilities being used for improper purposes, the matter will be handled in accordance with the DIISR Code of Conduct policy and procedures. Departmental ICT Security staff also monitor Departmental telephone usage accounts constantly. Specific information on staff usage of Departmental ICT resources can be provided to Heads of Division on request.
26 Further, so it submits, this was not just a case of the policy existing. Mr Griffiths had himself signed a document recording that he understood the policy. One might add, I suppose, that he was also a member of the Senior Executive Service as well as the IT sub-committee. I do not, in those circumstances, think that it was “unfair” to monitor Mr Griffiths’ laptop to ascertain compliance with the Code of Conduct when it had been made plain that monitoring of IT facilities would take place. Mr Griffiths’ real complaint is not that he did not expect to be monitored – one can see from the fact that he deleted the entries in his browser history that he anticipated being monitored– rather, it is that he underestimated the intensity of the monitoring.
27 Mr Griffiths puts a submission that it was unfair to monitor his private use of the laptop. I would not exclude the possibility that the use of Spector360 might well give rise to unfair collection of information in some circumstances. For example, the policy set out above does not warn employees that if they visit on-line banking sites Spector360 may record all of their banking details. It is difficult to see what interest the Department would have in such material. The Department’s answer to that is, in part, to suggest that the laptop could not be used for personal use. I would, however, reject that submission. It is plain from the policy that the Department does permit limited personal use of its IT facilities. For example, it says:
The Department allows employees reasonable access to the internet for personal use including, for example, accessing news, banking, travel, sport, weather and similar sites. Employees should limit their access to these sites in a way which does not affect their work related duties.
28 It would follow that Mr Griffiths would have been entitled to use the laptop to obtain reasonable personal access through the Department’s internet connection. It would be curious if personal use of the laptop were permitted when connected to the Department’s internet connection but such use was not permitted when connected to his own internet connection. Clear words to the contrary apart, therefore, one would expect the right of limited private use to access the internet using the laptop to extend to personal use at home. Consistently therewith Mr Griffiths agreed with the Department when he took delivery of the laptop that:
The item/s on personal issue to me will be used for official purposes and occasionally be used for personal purposes where such use is incidental to use of the property for official purposes.
29 The expression “personal purposes…incidental to use of the property for official purposes” is oxymoronic, certainly obscure and probably meaningless. I reject the argument of the Commonwealth that it refers to use which assists in the discharge of an employee’s duties (such as remaining abreast of current affairs). Such use is not incidental to official purposes, it is an official purpose. Rather, I construe this contradictory statement in light of the fact that the Department in its policies contemplated reasonable personal use so long as it did not affect the performance of work related duties. I would read the provision as meaning “personal purposes so long as they do not affect work related duties”.
30 However, I do not think that that conclusion assists Mr Griffiths. Unlike the circumstance where Spector360 gratuitously collects personal banking information or credit card details during periods of personal use (which may very well involve a breach of privacy) what it collected from Mr Griffiths was the very thing it was intended to collect, namely, evidence of breaches of the Code of Conduct. It was also the very thing the Department had warned Mr Griffiths that it was going to monitor his use to detect. In those circumstances, I conclude that the collection of this particular information was not unfair within the meaning of Principle 1(2). It is not unfair to warn a person that their computer use will be monitored in order to detect any accessing of pornography and then to do so.
31 Mr Griffiths also places reliance on Principle 3(d). However, that principle only applies to information which is “solicited” by a collector and “solicit” is defined in s 6 to mean “request a person to provide that information, or a kind of information in which that information is included”. There was no request in this case and the Principle has no application.
32 It follows that the use of Spector360 did not infringe s 16 of the Privacy Act 1988 on the facts of this case. For completeness it should be noted that in his amended application (but not in his counsels’ written or oral submissions) Mr Griffiths also contends that s 4 of the Human Rights (Sexual Conduct) Act 1994 (Cth) applied so that the direction not to view pornography was not lawful. Section 4(1) provides: “Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.” Not having received any submission about it I do not need to consider it further. There may, however, be a question as to whether the mere viewing of pornography is properly described as “sexual conduct”. The words “involving consenting adults” suggests some form of activity to which the notion of consent is meaningful. It may be open to doubt – I express no particular view – whether a person viewing pornography on a computer screen is engaged in consensual sexual activity in that sense.
33 In all of those circumstances I reject the argument that the direction was not a lawful direction.
V
Whether the word “reasonable” in s 13(5) should be construed so as not to abrogate general law rights to privacy
34 Mr Griffiths argues that he had general law rights to privacy which were infringed by the direction to him not to view pornography insofar as that direction applied to him in his own home and using his own internet connection. Since the only directions which he was bound to obey were “reasonable” ones (s 13(5)) and since statutes should be interpreted as not abrogating common law rights without words of clear intendment, it follows, so he submits, that a direction could not be made which infringed those rights.
35 The short answer to this argument is that Mr Griffiths’ privacy was not infringed. It was not his laptop and its owner had asked him not to use it to view pornography. The same owner had explicitly warned him that his use of the laptop would be monitored with a view to detecting that kind of use (“The Department may monitor all use of its ICT facilities (including, but not limited to the email and telephone systems) to ensure employees are using them in accordance with this policy.”). Mr Griffiths’ difficulties in this case spring from one of three sources: (a) he did not appreciate the laptop was an ICT facility; or, (b) he thought that the policy did not apply in his home using his own internet connection; or, (c) he did not understand just how extensive the monitoring carried out by the Department was. In none of those cases is a breach of privacy made out. As to the first and second matters, if such views were held by him they were erroneous; as to the third, this is a source of regret to Mr Griffiths, no doubt, but it was not a breach of his privacy (I say nothing of the situation where personal information not related to the enforcement of the Code of Conduct is collected by Spector360).
36 It is not necessary in those circumstances to determine whether the general law right asserted exists. Because of the explicit warning that monitoring would occur, this case does not provide an appropriate vehicle to explore how the action in equity to prevent misuse of confidential information extends to the personal affairs and private life of a plaintiff: cf. Breen v Williams (1996) 186 CLR 71 at 128 per Gummow J; ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [123] per Gummow and Hayne JJ.
VI
Whether the word “reasonable” in s 13(5) should be construed as not authorising breaches of Article 17 of the International Covenant on Civil and Political Rights
37 I assume in Mr Griffiths favour that s 13(5) should be interpreted in light of Article 17 of the International Covenant on Civil and Political Rights. That assumption does not, however, assist him because this case discloses no breach of Article 17. It is as follows:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
38 The protection here is against “arbitrary or unlawful interference”. There was nothing, however, arbitrary or unlawful about monitoring Mr Griffiths’ usage when he had been told that it would be monitored. Article 17 is different in terms to the right of privacy contained in Article 8 of the European Convention on Human Rights. Article 8 provides:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
39 For present purposes, however, they are not relevantly different. Whilst it is true that there is authority in the jurisprudence of the European Court of Human Rights for the proposition that Article 8 operates to confer a right of privacy on an employee using a telephone provided by her employer (Halford v United Kingdom (1997) 24 EHRR 523 at 535) there is also authority that there is no infringement of Article 8 where the user of a provided telephone is expressly warned that his calls will be monitored and that monitoring occurs: Potter v Scottish Ministers [2010] CSOH 85 at [530], [558] per Lord Matthews. In this case, the monitoring by Spector360 was not unlawful for the reasons I have already given. It was not arbitrary in the sense used in Article 17 because Mr Griffiths was informed that it would happen.
40 For completeness, I reject the argument advanced by Mr Griffiths that the use of Spector360 was a disproportionate interference with his privacy. Had this case concerned the question of whether Mr Griffiths’ privacy had been infringed by Spector360 collecting his banking details, issues as to whether Spector360’s intrusive nature was proportionate to the end of detecting access to pornography may well have arisen. However, that is not what this case is about. Spector360 may well be a disproportionate invasion of privacy (I express no view) but what happened to Mr Griffiths had nothing to do with that lack of proportion. Put perhaps a different way, a proportionate detection system would presumably still have detected his viewing of pornography.
VII
Whether the direction was “reasonable” in the ordinary sense
41 As an alternative, Mr Griffiths argues that the direction not to view pornography was not reasonable insofar as it applied to his personal use at home using his own internet connection. This is the case, so it is put, because the Commonwealth has no legitimate interest to protect in making the direction. The Commonwealth submits to the contrary that the laptop belonged to it and that as its owner it had a legitimate interest in the uses to which it might be put. In addition, the viewing of pornography at home on the laptop might have led to its inadvertent reappearance in the workplace, for example, whilst the laptop was being used to provide a presentation.
42 I accept both of these arguments. The laptop was Commonwealth property and the Department, as part of its right of ownership over that asset, was entitled to proscribe the uses to which it could be put. It is difficult to accept that the Commonwealth was disabled from telling its own public servants what they could and could not do with its own property. In any event, the interest in avoiding accidental viewing by others in the workplace of the material is, for reasons already given, a legitimate concern.
VIII
Was the power to determine that the Code of Conduct had been breached subject to a limitation which would prevent findings of transgressions where such findings would also constitute a breach of privacy?
43 I have concluded that the direction not to view pornography was both lawful and reasonable. On the factual findings made by Ms Rose, it is an unavoidable conclusion that Mr Griffiths breached that direction and hence breached s 13(5) of the Public Service Act 1999. However, Mr Griffiths then argues that the power of Ms Rose to find that there had been such a breach could not be exercised where to do so would itself result in a breach of privacy. The submission does not identify the power in question. However, there is no doubt that it is s 15. Section 15(1) allows an agency head to visit a range of penalties on a public servant “who is found (under procedures established under subsection (3)) to have breached the Code of Conduct”. Section 15(3) requires an agency to establish such procedures (they are not presently relevant). The critical question instead is whether the agency head’s power under s 15(1) is enlivened when there has been a breach of the Code of Conduct or whether, as Mr Griffiths must contend, s 15(1) should be read as not applying to those breaches simultaneously giving rise to a breach of some privacy principle. In this case, however, there is no ambiguity about the word “breach” on to which any such interpretative principle could latch. Further, it would be an anomalous reading of the Act which resulted in there existing breaches of the Code of Conduct which could not be remedied under s 15(1). In any event there are no breaches of privacy. Whilst there may be debate concerning the capacity of the decision-maker to make forensic use of evidence obtained as a result of a breach of privacy (cf s 138(3)(f) of the Evidence Act 1995 (Cth)), those questions can have no bearing on whether the power to terminate employment is enlivened.
IX
Apprehended bias
44 Mr Griffiths submits that by the time Mr Pettifer came to consider the appropriate sanction he had become aware that Ms Rose’s original decision was that his employment should be terminated. The question is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. That requires not only the identification of some factor said to give rise to the apprehension of bias but, importantly, “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”: Ebner at [8]. Here the argument is that because Mr Pettifer already knew what Ms Rose had done, he would be likely to do the same thing. I reject this argument. In almost all cases, later decision-makers will be aware of the decisions which have been made by their predecessors. For example, appellate courts operate, as a matter of definition, by examining what a first instance judge has done. On Mr Griffiths’ argument that state of affairs would disqualify an appellate court from its very function. Mr Griffiths seeks to amplify this point by observing that Ms Rose was a “senior colleague” of Mr Pettifer. However, the facts showed that Mr Pettifer was a more senior employee than Ms Rose and worked in a different section. Mr Pettifer was the Head of Innovation Division and held the status as a SES band 2 employee, whilst Ms Rose was Head of Enabling Services and only a SES band 1 employee.
45 Mr Griffiths also submits that Mr Pettifer’s prior involvement with the preparation of the principal policy was something which gave rise to a reasonable apprehension of bias. I reject this submission. I can perceive no connection between his previous role and the task assigned to him, namely, selecting an appropriate penalty under s 15, which might rationally lead to an apprehension of bias.
46 I reject also the submission that a reasonable apprehension of bias was generated by the fact that Ms Rose and Mr Pettifer were assisted by the same solicitor from the Australian Government Solicitor in the discharge of their functions. There is no evidence to suggest that the role adopted by the solicitor exceeded giving legal advice or that Ms Rose or Mr Pettifer somehow involved her in the actual merits of the decisions. Absent material of that kind there is nothing upon which the argument can operate.
X
Jurisdictional error
47 Mr Griffiths submits that Mr Pettifer’s authority to make his decision would not arise if Ms Rose’s determination was vitiated by legal error. I have concluded that none of the attacks on her decision succeed. Accordingly, this question does not arise.
XI
Relevant considerations
48 Mr Griffiths contends that since Mr Pettifer had taken into account his apparent lack of candour in responding to the inquiry he should also have taken into account his early and frank admission that he had accessed inappropriate material. What factors a decision-maker is bound to take into account in making a decision under a statutory power are “determined by construction of the statute conferring the discretion” (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J) and where, as here, those considerations are not expressly stated “they must be determined by implication from the subject-matter, scope and purpose of the Act” (Peko at 39-40). The relevant power being exercised by Mr Pettifer was the power to determine an appropriate sanction under s 15(1) of the Public Service Act 1999. I am unable to discern from the subject-matter, scope or purpose of that Act any implication that required Mr Pettifer to take into account Mr Griffiths’ initial admission. Accordingly, I reject the argument.
XII
The reasonableness issue
49 The decision under s 15(1) was for Mr Pettifer and not this Court to make. This is so because this Court is not structured for, and has little experience with, the day-to-day business of administrative decision making. Nor is it politically responsible for making administrative decisions. Despite that, it is accepted that an exercise of power which is so unreasonable that no reasonable decision-maker could possibly have arrived at it may be set aside: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB at 229. In this country it is also accepted, at least at the Federal level, that when a discretionary power is statutorily conferred upon a repository “the power must be exercised reasonably for the legislature is taken to intend that the discretion be so exercised”: Kruger v Commonwealth (1997) 190 CLR 1 at 36 per Brennan J cited with approval in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [126] per Gummow J. The consequence is likely to be that prohibition (and ancillary certiorari) is available in the face of such an exercise of power: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [40]-[41] per Gaudron and Gummow JJ.
50 The threshold erected by this ground is necessarily high. In exercising it is important not to be drawn into a review of the merits of the matter for the question is not whether this Court agrees with the decision but rather whether the decision is one at which any decision-maker could have arrived. This entails that the ground is not available where there is mere, or even strong, disagreement with the decision in question. The power is enlivened only when the implied limitations on Parliament’s remit are transcended and that occurs when a level of unreasonableness is reached which, in essence, permits of no contrary view. In Wednesbury itself Lord Greene MR said (at 230) that “to prove a case of that kind would require something over-whelming”. In Short v Poole Corporation [1926] Ch 66 at 91 Warrington LJ instanced as an example of this kind of case the sacking of a teacher because of her red-hair. More recently, in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [23], a unanimous High Court has accepted as correct the statement of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36:
[t]the merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
51 There is I think, a real question as to whether the termination of Mr Griffiths’ employment solely on the basis of his viewing of lawful pornography out of hours, in his own home and using his own internet connection would have transgressed the Wednesbury standard. There is much to be said for the view that it comes very close. Some might think that the resources of the Commonwealth could be much better utilised on activities apart from the zealous pursuit of Mr Griffiths over something he did in his own home which was not against the law. More is this so in the absence of any suggested actual harm.
52 However, that is not the question which arises. Mr Pettifer did not decide to terminate Mr Griffiths’ employment because of his viewing of the images. Indeed, his decision was that the range of remedies available on that basis did not include termination. It was Mr Pettifer’s conclusion that Mr Griffiths had sought to disguise his usage and subsequently dissemble about it that led him to form an adverse view about Mr Griffiths’ integrity. That factor has a significant impact on any Wednesbury analysis as Ms Stern correctly submits. It is impossible in these circumstances to say that Mr Pettifer’s decision was unreasonable in the requisite sense. It may well be harsh – there will be those who think it inhumane – but that is not the requisite standard. This argument must therefore be rejected.
XIII
Taking into account of irrelevant consideration
53 Mr Griffiths submits that Mr Pettifer’s conclusions as to his honesty were not relevant to the function being performed by him. The argument must be that in deciding whether Mr Griffiths’ employment should be terminated it should be taken as an implication from the Public Service Act that he was forbidden to have regard to his honesty or integrity during the inquiry and investigation phase. There is, however, no basis for such an implication. To the contrary, it appears to me a matter to which Mr Pettifer was fully entitled to have regard if he so wished.
XIV
54 It follows that Mr Griffiths’ application must be dismissed with costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. |
Associate:
