Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

PUBLIC SERVICE AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 396

Subsection 79(1) of the Public Service Act 1999 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 13 of the Act sets out the Australian Public Service (APS) Code of Conduct. The Code of Conduct applies to all APS employees, all Agency Heads and certain statutory office holders who have supervisory duties in relation to APS employees. An Agency Head may impose sanctions under subsection 15(1) of the Act where it is found that a breach of the APS Code of Conduct has occurred.

Subsection 13(13) of the Act says that an APS employee must comply with any other conduct requirement that is prescribed by the regulations. Regulation 2.1 of the Public Service Regulations 1999 (the Principal Regulations) is the only regulation that has been made for the purposes of subsection 13(13). It provides that:

An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head's express authority, give or disclose, directly or indirectly, to any person any information about public business or anything of which the employee has official knowledge.

The Regulations put in place substitute provisions regulating the disclosure of information by public servants by substituting a new regulation 2.1 into the Principal Regulations.

Reasons for replacing the former regulation

The provision on disclosure of information in the Principal Regulations had not moved in step with community expectations and public policy as reflected in, for example, the Freedom of Information Act 1982, which aims to extend as far as possible the right of the Australian community to access information in the possession of the Government. Nor had it moved in step with recent court decisions.

A decision in December 2003 of Finn J in Bennett v The President, Human Rights and Equal Opportunity Commission [2003] FCA 143, cast doubt on the validity of regulation 2.1 of the Principal Regulations. The Court was asked to examine the validity of subregulation 7(13) of the former Public Service Regulations, as a result of an APS agency finding that an employee had breached an obligation under that regulation. While former Public Service subregulation 7(13) was repealed when the Act came into effect, it is almost identical to regulation 2.1 of the Principal Regulations.

Finn J found that the former regulation was invalid in that it infringed the applicant's implied freedom of political communication. The former regulation was found to be a catch-all provision which did not meet the test in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567 which asks:

•       whether the law effectively burdens freedom of communication about government or political matters; and

•       if it does, whether the law is reasonably appropriate and adapted to serve a legitimate end which is compatible with the maintenance of the system of representative government prescribed by the Constitution.

The Regulations bring the law regulating disclosure of information by public servants into line with community expectations and address the matters raised by Finn J in his decision.

Purpose of the regulation

The Regulation balances the public interest in having access to information held by government, the public interest in limiting disclosure to ensure the effective and proper conduct of government, and the constitutional rights of freedom of expression of individual public servants.

It is essential in a healthy democracy that members of the public have the opportunity to contribute to policy development and decision-making, and that there is public scrutiny and accountability of government. Public access to information in the possession of government agencies helps to make this possible.

There are some circumstances where there is an overriding public interest in maintaining the confidentiality of information held by government. Disclosing information inappropriately is against the public interest for a variety of reasons. At its most serious, leaking information can damage Australia's national security or reputation and in extreme circumstances put the lives of Australian officials and others at risk. Inappropriate disclosures may also damage the relationship of trust between the government of the day and its public service advisers. This may reduce the willingness of the government of the day to seek the advice of the public service. Among other things, this would reduce the capacity of the public service to have its views and experience taken into account in the policy development process.

The Regulation ensures that the law governing disclosure of information by public servants is compatible with the expectations of the Australian public and the legitimate interests of government in protecting certain information. It ensures that a public servant's freedom of communication about government or political matters is not unnecessarily burdened and is reasonably appropriate and adapted to serve a legitimate end which is compatible with the maintenance of the system of representative and responsible government prescribed by the Constitution.

Details of the Regulations are set out in the Attachment.

The Regulations will commence on the date of their notification in the Gazette.

ATTACHMENT

Regulation 1 names the Regulations as the Public Service Amendment Regulations 2004 (No. 2).

Regulation 2 of the Regulations provides that the Regulations commence on the date of their notification in the Gazette.

Regulation 3 of the Regulations provides that Schedule 1 amends the Public Service Regulations 1999 (the Principal Regulations).

Schedule 1       Amendments

Item 1        Regulation 2.1

The amendment substitutes existing regulation 2.1 with a new regulation dealing with restrictions on disclosure of information.

Subregulation 2.1(1)

Subregulation 2.1(1) makes clear that the Regulation is made for the purposes of subsection 13(3) of the Act.

Subregulation 2.1(2)

Subregulation 2.1(2) makes clear that the Regulation does not affect other restrictions on the disclosure of information. Such restrictions may be created by legislation, for example the Privacy Act 1988, or the common law, for example the implied common law duty of loyalty and fidelity.

Subregulation 2.1(3)

Subregulation 2.1(3) prohibits the disclosure of information by an Australian Public Service (APS) employee which the APS employee obtains or generates in connection with their employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs.

Depending on the circumstances, this restriction may cover information such as opinions, consultation, negotiations (including about the management of a contract), incomplete research, or advice or recommendations to the Government, leading or related to, the development or implementation of the Government's policies or programs. The legitimate interest of government in regulating access to such classes of information is recognised in the Freedom of Information Act 1982.

Subregulation 2.1(4)

Subregulation 2.1(4) prohibits the disclosure of information by an APS employee which the APS employee obtains or generates in connection with their employment if the information was, or is to be, communicated in confidence within the government or was received in confidence by the government from a person or persons outside the government. The prohibition applies whether or not the disclosure would found an action for breach of confidence.

Information will be taken to be communicated in confidence within government where an employee is given the information on the understanding that it should not be disclosed except in the course of official duties. This will be most apparent where the information is formally classified. For instance, information subject to a national security classification or a Cabinet-in-Confidence or staff-in-confidence classification is clearly communicated in confidence within government.

However, other circumstances may indicate that the information is given to an employee in confidence, even where it is not formally classified. For example, information may be given to an employee on the understanding that it is only to be disclosed in the course of duties or with the authorisation of the Agency Head. Alternatively, the nature and context of the information may make it clear that the information should not be disclosed except in the course of duties, for example, information which if disclosed except in the course of duties might damage Australia's relations with foreign States.

Information will be taken to be received in confidence by the government from a person or persons outside the government where the provision of the information is subject to an express confidentiality condition (whether in a contract or otherwise), and in other circumstances where it is clear that the information is provided on the basis that it is to be used only for the purpose for which it is provided. Again, the nature and context of the information may make it clear that the information is disclosed on a confidential basis (eg information provided by a foreign State about its likely position in a treaty negotiation or information provided by a commercial entity which would be useful to its competitors).

The exemptions set out in the Freedom of Information Act are a useful starting point in determining which categories of information may potentially fall within the scope of the regulation

Subregulation 2.1(5)

Subregulation 2.1(5) does not prevent a disclosure of information by an APS employee in the course of an employee's duties, or in accordance with an authorisation given by an Agency Head, or that is otherwise authorised by law.

Subregulation 2.1(6)

Regulation 2.1 is not designed to regulate the disclosure of official information comprehensively. Rather, it is intended to operate alongside other provisions and obligations, such as any lawful and reasonable direction given by someone in the employee's agency who has authority to give the direction. Subregulation 2.1(6) makes it clear that the Regulation does not limit the authority of an Agency Head to give more specific lawful and reasonable directions in relation to the disclosure of particular classes of information held by the agency.

Note

A note to the regulation makes clear that under section 70 of the Crimes Act 1914, it is an offence for an APS employee to publish or communicate any fact or document which comes to the employee's knowledge, or into the employee's possession, by virtue of being a Commonwealth officer, and which it is the employee's duty not to disclose.

Regulation 2.1 creates such a duty.