Claims of “privacy” are increasingly being used to obscure the reasons and costs behind the premature departure of senior public servants – eroding transparency and accountability.

Along with reflex claims of ‘commercial-in-confidence’ and ‘national security’, the Privacy Act is now being pathetically blamed for keeping citizens in the dark about the workings of their government.

When Adam Fennessy left his job as Secretary of the Commonwealth Agriculture Department, the Department of the Prime Minister and Cabinet (PM&C) was not prepared to say if he had resigned or was sacked or if he had received a termination payment. That information PM&C claimed was protected by the Privacy Act.

The Public Service Commission (PSC) went along with this buffoonery but when the Commissioner, Gordon De Brouwer, was asked for the details at a Senate Estimates Committee he did the honourable thing and explained that yes, Fennessy was sacked and he was paid close to a million dollars for the inconvenience of not being allowed to serve out the five year term of his appointment.

Then, just before Christmas, the Minister for Employment and Workplace Relations announced that the Secretary of her department, Natalie James, was departing some 18 months short of the end of her term of appointment. The wording of the Minister’s media release was almost identical to that used for Fennessy, suggesting the existence of an AI-generated pro forma. The release on James didn’t explain if she had resigned or had been sacked, whether she received a termination payment, or whether she had to content herself with the Minister’s best wishes for her “future endeavours”, a sentiment that was insufficient in Fennessy’s case.

The PSC and PM&C were asked about the details of James’s departure in the lay down misère expectation that these would be provided in the light of de Brouwer’s honest accountability in the Fennessy case. But the PSC deferred to PM&C which again resorted to the Privacy Act defence and would say nothing.

It’s as if the PM&C Secretary, Steven Kennedy, thinks his colleague, de Brouwer offended the Privacy Act in disclosing the reasons for and terms of Fennessy’s premature exit. Indeed, de Brouwer may also think he has so offended, for how else to explain his conversion from a model of openness and accountability to a model of ham-fisted inconsistency who is resigning from his post? Whatever, Kennedy and de Brouwer have put paid to the old rule of thumb that officials should disclose information if they could not refuse to provide it to a parliamentary committee – not great notches to have in their reputational belts.

The Privacy Act is a model of legal obscurity – one of the best in the business. It would not, however, take expensive legal help to run up a convincing case that the reasons for the separation of departmental secretaries and the terms on which they are executed, in a manner of speaking, should be routinely disclosed consistent with the provisions of Privacy Principle 6.2(b) in the Privacy Act.

In a general sense, the public needs to have confidence that public servants are separated from their employment for cause and by a due process consistent with the law. That confidence cannot exist if information about the reasons and terms of separation are not disclosed, as PM&C and the PSC are now insisting.

Their position is inconsistent with Rule 2014 under the Public Governance, Performance and Accountability Act applying to Commonwealth entities which requires the disclosure of remuneration for senior officials, including termination payments, in agency annual reports.

It is also inconsistent with provisions of the Corporations Act and other Commonwealth legislation requiring the disclosure of remuneration, again including any termination payments, of key management personnel in listed companies. The full details of Alan Joyce’s termination payments from Qantas were fully disclosed.

The Howard, Abbott and Morrison governments were not shy of owning up to the sacking departmental secretaries even if they might not have been forthcoming in offering those they sacked best wishes in any “future endeavours”.

So in continuing to refuse to disclose the reasons for the separation of Secretaries of Commonwealth departments and their terms, Kennedy and de Brouwer are holding themselves to lower standards than those in the Public Governance, Performance and Accountability Act, the Corporations Act and the practices of the Howard, Abbott and Morrison governments, while using the Privacy Act as an excuse. Their stance is especially silly as the details of pay and conditions of individual Secretaries are published by the Remuneration Tribunal and it would be inconsistent not to disclose termination payment additions to them.

What on Earth is going on?

It’s likely Fennessy and James have just not been able to hit it off with their Ministers and have therefore been moved on. Government coyness about these matters is probably down to a reluctance to own up to sacking people and paying around million dollars for doing so in each case. If so, it’s possible the government’s feelings have been communicated to Kennedy and de Brouwer and they are behaving accordingly, if with one honourable exception in de Brouwer’s case. It’s pathetic in the era of the much vaunted Charter of Leadership Behaviours.

There’s another important point.

In causing departmental secretaries to “disappear” without explanation, the government risks creating apprehensions that could cause a reluctance in some Secretaries to provide advice Ministers might not like to hear lest they end up ‘on the streets’. That is to say, the chances are improved of a Robodebt-type re-run where Secretaries couldn’t even bring themselves to tell Ministers about illegalities. It’s not a pretty prospect.

When the Albanese ALP won the 2022 federal election, there were signs it might be willing to put laws about the appointment and tenure of departmental Secretaries on a sounder footing. Such reformist intentions have now been displaced by policy diffidence, administrative inconsistency and self-serving secrecy.