Under the federal Privacy Act, applicants for Australian Public Service jobs have a legal right to find out precisely what their referrers said about them, including where the reference was delivered wholly or partly orally.

This is because entities covered by the act are obliged to disclose to any person the "personal information" they have collected about them, so the person can ensure the information is accurate and up to date.

"Personal information" is broadly defined as information or an opinion about an identified or reasonably identifiable individual, regardless of whether it is true and whether it is recorded in a material form. The definition clearly covers a job applicant's references, written and oral.

The common law encourages referrers to be honest about the performance and conduct of their (former) employees by imposing liability on them for providing references that are either falsely positive or falsely negative.

On the one hand, it is important for a prospective employer to be able to rely on the truth and accuracy of references, to ensure they employ the right candidate. Accordingly, a referrer who gives a falsely positive reference may be liable to the new employer, under the law of negligence, for the economic loss it suffers as a result of that reference. They must therefore take reasonable care with preparing and providing the reference.

On the other hand, a poor reference will cause serious and potentially irreparable damage to the applicant's job prospects, and so a referrer who gives a falsely negative reference may be liable to the employee under the law of defamation, provided that the employee can prove it was done maliciously. There may also be a concurrent duty to take reasonable care in giving the reference in ensuring that, as a whole, it is accurate and fair, although the law in Australia is not yet settled in this respect.

References are usually party or wholly oral, and delivered directly to the prospective employer, so the employee is often unaware of their contents until after the fact, if ever. However, these common law principles become particularly relevant to the referrer where the applicant for an APS job is able to compel the disclosure of what was said by the referrer under the Privacy Act.

The APS is subject to the Privacy Act, which means it must comply with the Australian Privacy Principles. Principle 12 imposes an obligation on the Commonwealth to give an individual access to any personal information it holds about them.

This means (unsuccessful) job applicants can request that an agency release what their referrers said about them and, by law, the agency must comply with that request. Where the references were wholly or partly oral, the agency will need to create a record of the conversation and provide that to the applicant. Under principle 10, the agency must ensure that the record of the conversation is accurate and complete.

If the applicant considers that the information contained in the reference is inaccurate, under principle 13 they may request that the information be corrected. If the agency refuses (on reasonable grounds), the applicant can append to the information a statement that it is inaccurate, incomplete, irrelevant or misleading.

Principle 11 does oblige an agency to take reasonable steps to destroy personal information that it no longer needs for any purpose, and this would apply to references after the job application process has ended. However, in the case of an oral reference where no record was made, the memory of that information could not be "destroyed", so it is unclear how principle 11 could apply.

But what does this all mean for the referrer? Do they have any rights under the Privacy Act to prevent disclosure to the applicant of the reference they gave in good faith, in compliance with their duty to ensure the reference was accurate, and which may accordingly contain some negative statements about the applicant?

It is open for private sector employers subject to the Privacy Act to refuse to disclose the contents of a reference on the basis that it would have an unreasonable impact on the referrer's privacy. However, this exception does not apply to the Commonwealth.

Further, the requirement under principle 6 to seek a person's consent to use or disclose their personal information for a secondary purpose does not apply to the referrer, because the reference they have given is not "about" them, so it is not "their" personal information.

This leaves the referrer in the somewhat unenviable position of having to provide a reference for an applicant for a job in the APS – which may necessarily include some negative comments – in the knowledge that the applicant can then obtain a record of what they had said.

Yet leaving to one side any social discomfort that may arise in those circumstances, no matter how damaging the comments may be, the referrer will not be liable for any loss to the APS or the employee, provided that the comments are accurate and fair; because here, as everywhere else, the law strives for honesty to prevail.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. john.wilson@bradleyallenlove.com.au