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• Australian and ACT government FAQs

Further information relating to FAQ 9 “What privacy issues should supervisors in Australian and ACT government agencies take into account when providing referee reports?” appears below.

Privacy Issues and Referee Reports

Seeking Referee Reports - General

Advertisements for employment in a government agency often specify that the names of referees supplied by an applicant must include their current supervisor. In this case the applicant would be expected to supply the name of their supervisor and, by doing so, they would be providing consent for the agency to contact the supervisor.

Agencies should be aware that in seeking a referee report from someone other than a person the applicant has named, the agency would be disclosing information (i.e. the fact that the applicant has applied for another job) to that person. It is unlikely that the applicant would expect that the agency would contact people other than those whose details are provided in their application. Agencies should therefore notify applicants before seeking the referee report.

Where an employee has been counselled due to performance problems and they apply to move internally to a vacant position in another unit, the prospective employer can seek from, and be given relevant information about the applicant's performance, by the applicant's supervisor.

In the interests of transparency and fairness, good practice indicates that information collected by a prospective employer when seeking a referee report should generally be entered into a record of the selection process.

Referee Reports and the Information Privacy Principles (the IPPs)

The IPPs allow a supervisor in a government agency to disclose an individual's personal information contained in a record when providing a referee report, as follows:

• As a use for a directly related purpose (IPP 10.1(e));
• As a disclosure of which the applicant is reasonably likely to be aware (IPP 11.1(a)); or
• By consent under IPPs 10.1(a) and 11.1(b).

a) 'Directly related purpose'

If the referee report is being given internally (i.e. the job is within the supervisor's agency) the IPPs do not prevent normal comment on the applicant's work performance. Technically, the supervisor is using personal information they collected for one purpose (managing the applicant) for another purpose (providing the applicant with a referee report). So this 'use for another purpose' needs to be justified in terms of IPP 10.1.

The normal range of comments in a referee report would be permitted under IPP 10.1(e) because the purpose for which the personal information was originally obtained (managing the applicant in their current job) can reasonably be regarded as 'directly related' to the purpose for which it is now being used (providing the applicant with a referee report for a possible future job in the agency). But 'by the way' information (e.g. information the supervisor picked up outside the work context; or information that does not bear directly on the suitability of the applicant for the job (eg dress sense, political and religious views) should be avoided because it is harder to argue that the reason for which it was obtained (which might not be work related at all) is directly related to the purpose of giving the applicant a referee report.

The inclusion of such information in a referee report also runs the risk of breaching IPP 9, which requires that a record-keeper shall not use personal information except for a purpose to which it is relevant.

b) 'Reasonably likely to be aware'

If the referee report is being given externally (i.e. the job is not within the supervisor's agency) the IPPs again should not prevent normal comment on the applicant's work performance. Technically, the supervisor is disclosing personal information, so this disclosure needs to be justified in terms of IPP 11.1.

The normal range of comments in a referee report would be permitted under IPP 11.1(a) because the applicant is 'reasonably likely to be aware' that that kind of information may be passed to a prospective employer by their supervisor. But the content of the referee report should be limited to what the applicant would be reasonably likely to be aware might be said about them. Speculation, irrelevancies, expressions of personal taste and other comments that fall outside what might reasonably be expected in a referee report should be avoided.

Whether the referee report is being given internally or externally, it is prudent to warn the applicant if the supervisor is likely to be making adverse comment. 'No surprises' is a good rule to follow.

Comment on health matters is always a touchy subject. It is best to avoid such comments if possible. If the supervisor has concerns about the applicant's attendance, comments on the facts of that matter can be made but speculation and assumptions should be avoided. This will make it easier to argue that the referee report provided fell within what the applicant would reasonably expect (for an external report) or that the purpose for which it was used was directly related to the purpose for which it was originally obtained (for an internal report).

c) Consent

It is also possible to give a referee report on the basis that the applicant has consented to the use or disclosure of the personal information involved. It would in most cases be implied, not express, consent: if you ask someone to act as your referee, you are impliedly consenting to them disclosing at least relevant personal information.

If an agency appeals to the consent exceptions in relation to a referee report, it has no need to distinguish between internal and external referee reports.

It should be noted that an applicant can be regarded as having impliedly consented only to relevant personal information being used or disclosed. So the same sort of caution recommended above in regard to irrelevant information, extracurricular activities, adverse comments and health matters should be exercised in this case as well.