Sect 1.3 Managing official information
Relevant elements of the Values, Code of Conduct and Regulations
- The APS is apolitical, performing its functions in an impartial and professional manner.
- The APS is openly accountable for its actions, within the framework of Ministerial responsibilities to the Government, the Parliament and the Australian public.
- The APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government’s policies and programs.
- The APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public.
APS Code of Conduct
- An APS employee must behave honestly and with integrity in the course of APS employment.
- An APS employee must act with care and diligence in the course of APS employment.
- An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws.
- An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff.
- An APS employee must not make improper use of: (a) inside information, or (b) the employee’s duties, status, power or authority in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.
- An APS employee must at all times behave in a way that upholds the APS Values and the integrity and the good reputation of Australia.
- An APS employee must comply with any other conduct requirement that is prescribed by the regulations.
Public Service regulations
- This regulation is made for subsection 13 (13) of the Act.
- This regulation does not affect other restrictions on the disclosure of information.
- An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s 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.
- An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s 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;
- whether or not the disclosure would found an action for breach of confidence.
- Subregulations (3) and (4) do not prevent a disclosure of information by an APS employee if:
- the information is disclosed in the course of the APS employee’s duties; or
- the information is disclosed in accordance with an authorisation given by an Agency Head; or
- the disclosure is otherwise authorised by law; or
- the information that is disclosed:
- is already in the public domain as the result of a disclosure of information that is lawful under these Regulations or another law; and
- can be disclosed without disclosing, expressly or by implication, other information to which subregulation (3) or (4) applies.
- Subregulations (3) and (4) do not limit the authority of an Agency Head to give lawful and reasonable directions in relation to the disclosure of information.
Note 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.
Disclosing and using information
There is a legal and regulatory framework that governs the general disclosure and use of official information by APS employees and access by the public. Apart from the Public Service Act 1999 (including the Code of Conduct), the framework includes:
- Crimes Act 1914 (Crimes Act)
- Criminal Code Act 1995 (Criminal Code)
- Freedom of Information Act 1982 (FOI Act)
- Archives Act 1983 (Archives Act)
- Privacy Act 1988 (Privacy Act)
Also included in the legal and regulatory framework is an employee’s common law duty of loyalty and fidelity, which is an implied term in any employment relationship.
At an administrative level, there is the Australian Government Protective Security Manual (PSM) which sets out the protective security policy, practices and procedures for the Australian Government and the use of its national security information. Access to the PSM is limited to Australian Government, State and Territory agencies and their employees and contractors.
Openness is at the core of Australia’s modern system of government. 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.
But there are some circumstances where there is an overriding public interest in maintaining the confidentiality of information held by government. Governments are required to strike a balance between the public interest in having access to information and the public interest in ensuring the effective and proper conduct of government. Disclosing information inappropriately is against the public interest for a variety of reasons. At its most serious, leaking information can damage Australia’s international 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.
Most agencies should be engaging widely with the public and their particular stakeholders to ensure their policy advice is well informed and their programmes are administered effectively. Requests for information must be treated consistent with the requirements of the FOI Act and parliamentary questions answered in accordance with the relevant sections of Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters (November 1989) available from the Department of the Prime Minister and Cabinet’s website (see also Chapter 2: Working with the Government and the Parliament).
Secrecy provisions in legislation
Many APS employees are subject to duties of secrecy contained in legislation which apply to particular types of information, for example, section 16 of the Income Tax Assessment Act 1936 or section 150 of the Child Support (Assessment) Act 1989. In the case of personal information, the Privacy Act establishes rules prohibiting the use or disclosure of information except in certain circumstances. APS employees should familiarise themselves with the Privacy Act and any secrecy provisions in legislation applying to their duties.
Dealing with Ministers or Ministers' offices
APS employees who deal with Ministers or with Ministers’ offices may access particularly sensitive information. They must treat any dealings with appropriate confidentiality (s. 13(6) PS Act).
Supporting Ministers, Upholding the Values (2006) contains more information about dealing with Ministers’ offices. It examines good practice principles associated with establishing the roles and responsibilities that define interactions between APS employees and Ministers and their advisers.
Complying with all applicable Australian laws, including common law
When acting in the course of APS employment, APS employees must comply with all applicable Australian laws, including any law of a State or Territory (s. 13(4) PS Act). As the common law is part of the law of States and Territories, APS employees who breach their common law duty of loyalty and fidelity to their employer may also breach the APS Code of Conduct13.
The common law duty of loyalty and fidelity is applicable to restrictions on disclosure of information in particular circumstances. For example, where an agency has classified information with a security classification (national or non-national) in order to protect the legitimate ends and interests of government, disclosure may be a breach of the common law duty of loyalty and fidelity. Even in relation to unclassified information, the duty of loyalty and fidelity can be relevant. For example, if an APS employee disclosed information in accordance with a personal view and in defiance of agency policy, the employee may have breached the common law duty of loyalty and fidelity. If an employee who has been told or directed not to disclose particular information disobeys such a direction, the employee may breach subsection 13(5) of the PS Act as well as their common law duty of loyalty and fidelity.
Public Service Regulation 2.1
Following Bennett v President, Human Rights and Equal Opportunity Commission (2003) FCA 1433 an amendment to regulation 2.1 of the Public Service Regulations 1999 came into effect in December 2004. However, on 16 June 2005 the regulation amending the Public Service Regulations was disallowed in the Senate.
A new regulation 2.1 was subsequently made and came into effect on 15 July 2006. While it is largely the same as the disallowed Regulation, new Regulation 2.1 includes an additional paragraph 2.1(5)(d) that makes it clear that (with some qualifications) subregulations 2.1(3) and (4) do not apply to information that, although received or communicated in confidence, is already lawfully in the public domain by the time of disclosure.
An agency investigating a suspected breach of the Code involving possible unauthorised disclosure of information should note the form of regulation 2.1 in force at the relevant time.
- 5/12/99 – 22/12/04
As provided via original Public Service Regulations 1999, which came into effect on 5/12/99.
- 23/12/04 – 15/06/05
Amended regulation as inserted by Public Service Amendment Regulations 2004 (No.2) and disallowed in the Senate (disallowed regulation)
- 16/06/05 – 14/07/06
As introduced via original Public Service Regulations 1999 (revived regulation)
- From 15/07/06
Current amended regulation, as inserted by Public Service Amendment Regulations 2006 (No.1)
Authorisations and delegations given for the purposes of the revived
regulation ceased to have effect from and including 15 July 2006. Agencies should have updated authorisations and delegations for the purposes of the current amended regulation.
New regulation 2.1 is framed in such a way that it leaves some room for judgement by APS employees in its application to a particular circumstance. The test in the regulation is an objective one of a reasonable person i.e. one standing in the shoes of the relevant employee (in the same circumstances with the same information). The new regulation is not designed to regulate the disclosure of official information comprehensively. Rather, it is intended to operate alongside other provisions and obligations, including agency-level directions. The following paragraphs provide guidance on the exercise of judgement in relation to the regulation.
Effective working of government
An APS employee must not disclose information obtained or generated in connection with his or her APS employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation of policies or programmes (PS Regulation 2.1(3)14). Depending on the circumstances, this restriction could 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 programmes.
APS employees need to consider on each occasion whether the disclosure of information could damage the effective working of government, including, for example, in relation to unclassified information and in circumstances where there is no relevant agency head direction. In some cases it will be acceptable for employees to disclose information that is already lawfully in the public domain. However, there may be circumstances where it is not appropriate either to confirm or deny information already in the public domain. An example would be where a public servant makes a disclosure without authorisation which, because of their official role, has the effect of confirming a previous leak of information.
The exemptions set out in the FOI Act are a useful starting point in determining which categories of information may potentially fall within the scope of regulation 2.1. Further information about the operation of the FOI Act exemptions may be found in FOI Guidelines – Exemptions sections in the FOI Act (31 December 2007) on the Department of the Prime Minister and Cabinet website.
Information communicated in confidence
An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s 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, whether or not the disclosure would found an action for breach of confidence (regulation 2.1(4)).
Information will 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 security classification or a Cabinet‑in‑confidence classification is clearly communicated in confidence within government and is subject to regulation 2.1(4).
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 express 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. This might include, for instance, information which if disclosed except in the course of duties might:
- damage Australia’s relations with foreign States; or
- damage the Commonwealth’s relations with the States; or
- prejudice the conduct of a prosecution or civil litigation to which the Commonwealth or an agency is party; or
- prejudice a tender process; or
- prejudice a certified agreement negotiation being conducted by the Commonwealth or an agency; or
- damage an individual.
Information will 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).
Disclosure in the course of duties
Regulation 2.1 does not prevent the disclosure of information if an APS employee is required to make disclosures as part of their duties. Such disclosures should be in accordance with agency protocols or guidance. For example, employees undertaking regular liaison with members of the media may be required to disclose certain information routinely.
APS employees may also disclose information in accordance with an authorisation given by an agency head or a delegate. Information may be disclosed where disclosure is otherwise authorised by law.
In addition, subregulation 2.1(5) makes it clear that subregulations 2.1(3) and (4) do not prevent the disclosure of information that, at the time of disclosure, is already lawfully in the public domain. This is provided that the disclosure can be made without disclosing other information, as described elsewhere in the regulation. For example, if an APS employee provides details to a member of the public about a government initiative after it has been announced. However, this exception would not apply if at the time of disclosure the information had not yet been lawfully disclosed, for example if the matter was made public via a budget ‘leak’.
The regulation does not prevent APS employees making whistleblower reports about suspected breaches of the Code of Conduct provided they do so in accordance with the Public Service Act and Regulations.
Agency policies and APS employees’ responsibilities
Agencies should establish clear policies and guidelines so that employees are aware of the provisions that govern the management of information. In addition, agencies may care to consider issuing directions:
- that require APS employees to comply with agency-level protective security policies and instructions developed on the basis of the PSM;
- to specific groups of APS employees working with particular kinds of information (for example, APS employees working on a particular tender exercise);
- that require APS employees to seek advice if they are unsure about whether to disclose information and to keep a record of that advice if authorised to disclose information.
APS employees have a responsibility to familiarise themselves with their agency policies and guidelines. If in doubt about whether information may be lawfully disclosed, APS employees should always seek the advice of someone in their agency with appropriate authority such as their supervisor.
Sanctions and criminal penalties
Unauthorised disclosure of official information may breach the Code of Conduct and result in sanctions under the PS Act. It may also breach s. 70 of the Crimes Act, which makes it an offence for a Commonwealth officer to publish or communicate any fact, or document (except where authorised to do so) which comes into his or her knowledge or possession, and which it is his or her duty not to disclose. Section 3 of the Crimes Act provides an extended definition of a Commonwealth officer, which has the effect of extending s. 70 to persons performing services for or on behalf of the Commonwealth. Such a disclosure is an offence with a maximum penalty of two years imprisonment.
Disclosure of information by former APS employees and contractors
The Crimes Act prohibits a former Commonwealth officer from making an unauthorised disclosure of information that was protected at the time he or she ceased employment with the Commonwealth (subsection 70(2)). Such a disclosure is an offence under the Crimes Act, with a maximum penalty of two years imprisonment.
APS employees must not make improper use of information obtained in their official capacity in order to gain, or seek to gain, a benefit or advantage for themselves or others. This includes information about a company that may enable employees to speculate on the stock market. It also includes information about a tender exercise which could unfairly advantage a person, such as a friend or a relative, who is tendering for a contract (see also Chapter 6: Working with the private sector and other stakeholders).
Employees must not obtain, access or use unauthorised information about another person such as taxation or Centrelink records. The Criminal Code makes it an offence for a Commonwealth officer15 to use official information to dishonestly obtain a benefit for them or another person or dishonestly cause detriment to another person (paragraph 142.2(1)). The same provisions apply to former Commonwealth public officials. The offence attracts a maximum of five years imprisonment.
Public access to official information
The public can access official information under the FOI and Archives Acts. Under the Privacy Act individuals can access information about themselves.
The FOI Act allows the public access to most government-held documents, including electronic material, unless one of the exemptions in the FOI Act is applied to the document. There is no need for the person requesting the information to establish a ‘need to know’.
There are some categories of documents which are exempted from the operation of the FOI Act. For example, documents that originate from certain intelligence and security agencies are exempt, and documents may be exempt if disclosure may damage national security or the legitimate interests of an individual or corporation.
APS employees frequently disclose information and documents held by their agencies in response to requests from the public. Some agencies have identified types of information that may be disclosed through less formal means than FOI requests. The FOI Act encourages this. Protection provided by the FOI Act (ss.91 & 92) does not apply when information is disclosed outside the Act. The FOI Act requires most government agencies to publish information about:
- their operations and powers
- the manuals and other documents they use to make decisions or recommendations that affect the public.
Under the Privacy Act, Commonwealth agencies are required to maintain a description of records containing personal information, their purpose, who has access to the records and how persons may obtain access, and the length of time the record is kept. The information must be available to the public. Each year the Federal Privacy Commissioner updates the Personal Information Digest on the basis of information provided by agencies covered by the Privacy Act.
Also, the Senate Continuing Order No. 6 requires agencies to publish, on their Internet homepage, a list of files they create.
The Archives Act allows public access to Commonwealth records that are more than 30 years old. Exemptions may be granted if disclosure of information might damage a restricted range of government interests such as defence, security, international relations, financial and property interests of the Commonwealth or the personal affairs of individuals.
Protecting official information
Most agencies hold information that is confidential and/or security classified. Agencies usually store paper records in a secure place and restrict access to electronic records.
Agencies may wish to consider what additional qualities a person may need to have when selecting those who will access confidential or security classified information. This may include a security assessment. The type of security assessment needed will depend on the information accessed and duties undertaken. Agencies should advise potential job applicants in advance about the need for a security clearance.
Information about protection of official information and assets can be found in the PSM, issued by the Attorney-General’s Department.
Employees should keep official records and papers in good condition, as they are crucial to the work of government. The Archives Act sets out how to dispose of official records, including electronic records. Penalties may apply to the unauthorised destruction, damage or disposal of Commonwealth records.
Reporting and protection against liability
APS employees may be required to prepare a report on another person and may be concerned about being sued for defamation. Under common law, unless the report was malicious or communicated more widely than necessary, defamation action would probably not succeed. State or Territory legislation may also be relevant.
Reports about others should be open, honest and written without malice. Only relevant information should be disclosed, on a ‘need-to-know’ basis.
Making public comment
APS employees have the same right to freedom of expression as other members of the community, subject to legitimate public interests, such as the maintenance of an impartial and effective public service in which the community can have confidence.
The term ‘public comment’ is used broadly, and includes comment made on current affairs
- at public speaking engagements
- during radio or television interviews
- on the internet (including blogs, social networking sites and other online media that allow user participation and interaction)
- in letters to the press
- in books or notices
- in academic or professional journals
- in other forums where the comment is intended for, or may be accessed by, the community.
Broadly speaking, APS employees make public comment in two capacities: official and unofficial.
Making comment in an official capacity
Some APS employees, as part of their official duties, provide comment to the media and others in the community about agency activities and government programmes. Sometimes they are required to respond to criticism, such as about a lack of probity or competence in their agency.
APS employees may also be called upon to act as the public face of their agency, or to explain the operations of particular government policies. This might occur, for example, in meetings with, or presentations to, members of the public and/or agency stakeholders; by providing comment to the media; or through participation in, or moderation of, official online forums.
When making comment in an official capacity, employees remain bound by the APS Values and Code of Conduct, including the duty under Public Service Regulation 2.1 not to disclose certain information without authority, and are also required to abide by their agencies’ policies relating to clearance of material for public release.
Agencies may find it useful to develop policies on the application of the APS Values and Code of Conduct to the specific types of public comment that their employees are expected to make in their official roles. It is important that such policies reflect:
- the apolitical character of the APS. The role of APS employees in referring to government policy is to help to explain it, or to provide information about its implementation—rather than to promote or ‘market’ a policy or initiative (see also Chapter 5: Involvement of public servants in public information and awareness initiatives)
- the requirement for all APS employees to act honestly, professionally, and with respect and courtesy.
The role of statutory office holders may be less clear and will need to be considered on a case-by-case basis, having regard to any requirements of the statute(s) establishing their office. While statutory office holders who are agency heads are bound by the Code of Conduct in the same way as any other agency head, statutory officers who are not agency heads (e.g. members of certain tribunals) are bound by it only in certain circumstances (Public Service Regulation 2.2 sets these out).
Some statutory office holders have responsibility for promoting good practice in particular fields, or protecting the interests of individuals or groups. Statutory office holders should have regard to the extent to which their functions properly permit public comment, and, in making any such comment, should be careful to avoid taking partisan positions.
Making comment in an unofficial capacity
Outside the role of their APS employment, employees may wish to make public comment in a professional or a private capacity.
- Professional. Some employees are subject matter experts in fields that may relate to their APS employment—or which may be wholly separate from it—and might make comment in that capacity. For example, an APS employee who is a scientist might publish in academic journals, or speak at professional conferences, in their own time and outside their APS role.
In such cases, it is important for the employee to notify their manager of any comment that they propose to make in their ‘expert’ role that might reasonably reflect on their APS employment. This would need to be considered in light of the agency’s policies and the APS Values and Code of Conduct. It is important that the employee also make it clear, when making public comment in this role, that they are not representing their agency or the Government.
Agencies and employees need to manage situations where the relationship between the employee’s professional interests and their APS employment may create ambiguity about the capacity in which the employee’s comments are being made. In exceptional circumstances an agency may need to direct the employee to avoid making comment.
- Private. APS employees may generally make public comment in a private capacity, so long as they make it clear they are expressing their own views.
In either case, employees should have regard to the general principles set out below.
Making public comment in an unofficial capacity—general principles
The Code of Conduct requires APS employees to behave at all times ‘in a way that upholds the APS Values and the integrity and good reputation of the APS’—section 13(11) of the Public Service Act 1999 (the PS Act). When APS employees are making public comment in an unofficial capacity, it is not appropriate for them to make comment that is, or could be perceived to be:
- being made on behalf of their agency or the Government, rather than an expression of a personal view
- compromising the APS employee’s capacity to fulfil their duties in an unbiased manner. This applies particularly where comment is made about policies and programmes of the employee’s agency
- so harsh or extreme in its criticism of the Government, a member of parliament from another political party, or their respective policies, that it raises questions about the APS employee’s capacity to work professionally, efficiently or impartially. Such comment does not have to relate to the employee’s area of work
- so strong in its criticism of an agency’s administration that it could seriously disrupt the workplace. APS employees are encouraged instead to resolve concerns by informal discussion with a manager or by using internal dispute resolution mechanisms, including the APS whistleblowing scheme if appropriate
- a gratuitous personal attack that might reasonably be perceived to be connected with their employment
- unreasonable criticism of an agency’s clients and other stakeholders
- compromising public confidence in the agency or the APS.
At all times, APS employees must be mindful of the requirements set out in Public Service Regulation 2.1 concerning the disclosure of information.
Because of their position, senior APS employees in particular should carefully consider the impact of any comments they make. Senior Executive Service (SES) employees have a special responsibility under section 35 of the PS Act to promote the APS Values and compliance with the Code of Conduct, by personal example and other appropriate means within their own agencies. SES employees within each agency are also part of a collective leadership group that extends across the APS. Because of the influence that SES employees carry with stakeholders, and because they are likely to be required to advise on or lead the implementation of government policies and programmes, SES employees should be particularly careful when making public comment. The role of SES employees provides more scope for conflict, real or perceived, between a personal view and:
- the ability to fulfil current and potential duties in an apolitical, impartial and professional manner
- the ability to be responsive to the Government.
It is quite acceptable for APS employees to take part in the political life of their communities. The APS Values stipulate that the APS is, among other things, ‘apolitical, performing its functions in an impartial and professional manner’, but this does not mean that APS employees must be apolitical in their private affairs. Rather, it means that employees should avoid behaving in a way that suggests they cannot act apolitically or impartially in their work.
Similarly, APS employees are entitled to participate in union activities. The APS Values and Code of Conduct apply to these activities in the same way as they apply to all other activities of APS employees, including making public comment. (See also Chapter 15: APS employees as citizens.)
When considering making comment in an unofficial capacity, employees might wish to reflect on the following questions:
- Could the comments reasonably be expected to cause the agency’s clients and other stakeholders, including members of Parliament—whether members of the Government, the Opposition, independents, or other parties—to lose confidence in the employee’s ability to work in an impartial and professional manner?
- Would comment of this kind, without proper justification, be likely to lower or undermine the reputation of the individual agency or of the APS as a whole?
- Are these comments in line with how the community in general expects the public service to operate and behave?
- Are these comments lawful? For example, do they comply with anti-discrimination legislation and laws relating to defamation?
Inappropriate public comment by APS employees may result in sanctions under the PS Act.
In May 2010 the Government provided its response to the Final Report of the Gov 2.0 Taskforce, Engage: Getting on with Government 2.0. The Government agreed to the report’s central recommendation—a ‘declaration of open government’—which stated, in part:
online engagement by public servants, involving robust professional discussion as part of their duties or as private citizens, benefits their agencies, their professional development, those with whom they are engaged and the Australian public. This engagement should be enabled and encouraged.
Making public comment online is becoming increasingly common for APS employees—in official, professional, and private capacities. Employees may make public comment on, for example, blogs, social networking sites, microblogging sites, and online news sites. The same principles apply to online comment as to any other kind of public comment—as do the APS Values and Code of Conduct.
However, there are some additional considerations that apply to online participation. The speed and reach of online communication means that comments posted online are available immediately to a wide audience. Material online effectively lasts forever, may be replicated endlessly, and may be sent to recipients who were never expected to see it, or who may view it out of context.
The APS Values and Code of Conduct, including Public Service Regulation 2.1, apply to using online media in the same way as when participating in any other public forum. The requirements include:
- behaving with respect and courtesy, and without harassment
- dealing appropriately with information, recognising that some information needs to remain confidential
- delivering services fairly, effectively, impartially and courteously to the Australian public
- being sensitive to the diversity of the Australian public
- taking reasonable steps to avoid conflicts of interest
- making proper use of Commonwealth resources
- upholding the APS Values and the integrity and good reputation of the APS
- not acting in a way that would call into question the APS employee’s ability to be apolitical, impartial and professional in the performance of their duties.
APS employees need to ensure that they fully understand the APS Values and Code of Conduct and how they apply to official and unofficial communications. If in doubt, they should consider carefully whether to comment and what to say; consult their agency’s policies; seek advice from someone in authority in their agency; or consult the Ethics Advisory Service in the Australian Public Service Commission.
Commenting online in an official capacity
Web 2.0 provides public servants with unprecedented opportunities to assist the Government to open up government decision making and implementation to contributions from the community.
Many agencies use social media to engage with the communities they serve. Agencies may wish to provide guidance, training and support for employees on how to communicate appropriately in such forums, including any rules or policies about representing their agency online (for example, whether employees must identify themselves and their agency when participating online in the course of their work).
Participating online in an official capacity may generate Commonwealth records which must be managed appropriately. Advice from the National Archives of Australia on social media and records management is available.
Commenting online in an unofficial capacity
From time to time, APS employees may seek to participate robustly, like other members of the Australian community, in policy conversations.
The principles that apply to employees making any unofficial public comment also apply to such comment made online. There are some additional considerations, though, to bear in mind.
Any information an APS employee posts online relating to their employment (such as naming their employer or describing their role) is able to be located easily and quickly by a search engine, and this information may be taken out of context.
APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an ‘alias’ or pseudonym, and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such.
Employees should not rely on a site’s security settings for a guarantee of privacy, as material posted in a relatively secure setting can still be copied and reproduced elsewhere. Further, comments posted on one site can also be used on others under the terms and conditions of many social media sites.
As a rule of thumb, irrespective of the forum, anyone who posts material online should make an assumption that at some point their identity and the nature of their employment will be revealed.
Social media websites are public forums. Inappropriate public comment on such sites could put employees at risk of breaching the Code of Conduct. If employees have concerns relating to an agency, they can seek advice within the agency or from the Ethics Advisory Service about appropriate avenues for raising these.
Agencies may wish to develop policies, guidance, or training on:
- appropriate use of ICT resources in the workplace (including appropriate use of work email, and appropriate use of personal technology, such as smartphones, in work time)
- how to represent the agency online in an official capacity. The Australian Government Information Management Office (AGIMO) Web Publishing Guide helps Australian Government agencies to manage their websites and to identify their legal and policy obligations. The Guide includes a ‘Government 2.0 Primer’ which provides advice on using Web 2.0 technologies.
Agencies may wish to review their induction programmes to include guidance on appropriate use of social media in discussion of the broader topic of conflict of interest.
Agencies may also wish to consider how they gather and use publicly available information about their employees and prospective employees, and reflect this in their policies, including recruitment policies—consistent with the requirements of the PS Act framework.
It may be particularly helpful for agencies to workshop scenarios around some of the areas of uncertainty that arise for employees in deciding whether and how to participate online, in the performance of their duties or otherwise, consistent with the PS Act framework and these guidelines. The Commission’s ‘REFLECT’ decision making model is a useful tool for assisting public servants to resolve these ‘grey’ areas.
Providing information to Parliamentary Committees of Inquiry and Royal Commissions in a private capacity
The Department of the Prime Minister and Cabinet’s Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters may assist APS employees providing information to Members of Parliament. These guidelines highlight the requirement for officials to provide full and accurate information to the Parliament and the factual and technical background to policies and their administration.
APS employees may choose to submit information to, or appear as a witness before, a parliamentary committee of inquiry or a royal commission in a private capacity. Agencies cannot restrict employees from doing this. The above guidelines note the possible impact of any comment made by APS employees in a personal rather than an official capacity.
An APS employee who is providing information in a private capacity should make it clear that they are not speaking on behalf of the Government or any agency. The APS employee must not communicate information in a way that implies their private views are those of the agency, such as using official letterhead.
Before submitting information in a private capacity, APS employees should be aware of the legislation that restricts the disclosure and use of official information. The restrictions may provide grounds for the employee not to disclose certain information.
Over the past few decades, recordkeeping in the APS has been influenced by an increase in public scrutiny through administrative law reform and parliamentary oversight, and increased emphasis on achieving results. Technology has also had a major impact on recordkeeping practices.
Although there has been an increase in the transparency of recordkeeping, a number of organisations have raised concern about the quality of recordkeeping:
- the Australian National Audit Office (ANAO) in its reports Recordkeeping (Audit Report 45 of 2001-02) and Recordkeeping including the management of electronic records (Audit Report 6 of 2006-07)
- the Australian Law Reform Commission in its 1998 review of the Archives Act
- parliamentary committees, including the 2002 Report of the Inquiry into a Certain Maritime Incident
- the Management Advisory Committee, in its report Note for file: A report on recordkeeping in the Australian Public Service (2007).
The Auditor-General acknowledges the need for good judgement in his report on Magnetic Resonance Imaging Services (Audit Report 42 of 1999-2000):
- The level and standard of documentation considered necessary to support an administrative process is always a matter of judgement for management as part of an organisation’s control environment. Nevertheless documentation is important for an agency to:
- demonstrate it has taken all reasonable steps to identify and manage risks
- provide assurance to management that the administrative processes are adequate and have integrity
- record significant events and decisions
- be able to review its decisions and processes thereby identifying strengths and weaknesses in the process, drawing out lessons for the future
- in some circumstances provide support for the Commonwealth’s position in the event of a legal challenge
- meet accountability obligations to the Government, Parliament and other stakeholders.
The level and standard of documentation needs to match the circumstances. However, it would be expected that both the level and standard of documentation would increase as the consequences of decisions and actions increases.
While it is not necessary to record every meeting, prepare file notes of every conversation or retain all emails, it is important to record and to maintain in an accessible form:
- significant decisions by Ministers, and the basis for them including advice on options and risks
- programme decisions, including decisions affecting individuals or individual businesses that may be subject to administrative review, together with the basis for the decisions and the authority for making the decision
- significant events, including meetings and discussions with Ministers or stakeholders or members of the public which may be significant in terms of policy or programme decision making.
The National Archives of Australia advises17 that:
The creation, maintenance and accessibility of Commonwealth records are not only essential for the conduct of Commonwealth administration but also:
- assist the Government and the public to scrutinise the decisions and activities of Commonwealth institutions;
- allow the community to retain and transfer knowledge, learn from past experience, and protect the interests of Australians collectively and individually; and
- help satisfy people’s interest in the decisions and actions of Government that affected their and previous generations’ lives or shaped the development of Australia.
Commonwealth records, therefore, have the potential to benefit the Government and the community in a variety of ways.
Decisions about the need for records, including retention periods, are made with reference to:
- business needs;
- the requirements of organisational accountability; and
- community expectations.
The Management Advisory Committee report, Note for file, reinforces the importance of good recordkeeping to sound governance:
Good recordkeeping is a necessary element of good governance. Good recordkeeping supports efficiency and accountability through the creation, management and retention of meaningful, accurate, reliable, accessible and durable records of important government activities and decisions.
Good records are necessary for government to keep track of what it has done, so that future activities can be examined on the basis of a comprehensive and accurate knowledge of what has occurred and what has been decided in the past.
Retaining the corporate memory of government, in the form of records, helps public servants perform their duties efficiently, effectively and ethically, and ensures that we maintain audit trails necessary for public accountability and transparency.
The pace of modern business has increased the use of personal diaries to record discussions, and remind the employee about events or tasks to be performed. These diaries should not replace records that should be accessible to others. Employees using diaries should consider, on a regular basis, whether decisions or discussions that are recorded are significant enough to warrant a file note. It is also good practice to draft a file note after a significant meeting, which may need to be endorsed by others who were present.
While it is important to maintain a focus on accuracy, judgements need to be made about the level of detail and the style and presentation of documents. APS employees should consider the need to be professional and responsive (providing ‘frank, honest, comprehensive, accurate and timely advice’). When preparing records employees should ensure the record accurately reflects the advice given, any decision taken and the authority for the decision.
Technology has impacted on recordkeeping practices, including difficulties in linking electronic and paper records, and the pressure for fast communications and timely decisions. Yet technology also offers opportunities for more efficient, reliable and accessible recordkeeping, as demonstrated by online information provision and e‑based decision making in many larger organisations.
To assist agencies to systematically manage records, the National Archives has released an extensive range of recordkeeping standards, policies, tools and guidelines for the Commonwealth. This is available on the Archives’ website at National Archives of Australia – Records Management.
13 Finn J noted in Bennett v President, Human Rights and Equal Opportunity Commission (2003) FCA 1433 that in some public service settings case law has emphasised the distinctive employment requirement of loyalty to the Crown (i.e. to the government of the day)
14 Although the regulation focuses on the present, successive governments have accepted the convention that Ministers do not seek access to documents recording the deliberations of Ministers in previous governments (see also Guidance on Caretaker Conventions issued by the Department of the Prime Minister and Cabinet)
15 The definition of a Commonwealth public official in the Criminal Code extends to contracted service providers for a Commonwealth contract, and their officers and employees
16 The Commission’s decision making tool REFLECT provides a framework for APS employees to work through ethical issues.
17 National Archives of Australia 2003, Why records are kept: Directions in appraisal.