Public Service Act 1999 Advice No. 18: Release of personal information under the new Public Service Act

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Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.

Introduction

This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). It is proposed that the new legislation will come into operation on 5 December 1999 and the information contained in this advice will take effect on commencement of the legislation

2 The purpose of this advice is provide information on the release of personal information.

3 Confidentiality will be ensured through section 70 of the Crimes Act 1914 (the relevant sections as summarised at 3.14.9 of the Explanatory Memorandum to the new PS Act), the APS Code of Conduct and the Information Privacy Principles.

The Privacy Act 1988 and the Freedom of Information Act 1982

4 The Information Privacy Principles (IPPs) in the Privacy Act 1988 provide a legal framework for the collection, storage, access and correction, use or further disclosure of personal information relating to APS employees. The Freedom of Information Act 1982 provides a mechanism for access to, and correction of, personal information. Personal information is defined widely in those Acts to mean:

Information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

5 Recognising the relationship between the Commonwealth and the APS, it is important that personal information be permitted to be moved between APS agencies and to other bodies performing people management functions for APS agencies, subject to the principles in the Privacy and FOI Acts.

The new PS Act and Regulations

6 Accordingly, the new PS Act (s.76) enables regulations to be made that will:

ensure that the Public Service Commissioner will have appropriate access to the personal information needed for the discharge of the Commissioner's functions;
enable appropriate personal information to be moved to another agency where an APS employee moves to that agency;
ensure that the principles reflected in the FOI and Privacy Acts are observed in relation to the handling of personal information; and
control the collection, storage, access and correction, use and disclosure of personal information by other bodies performing people management functions for APS agencies.

7 It is expected that the regulations will provide for an Agency Head to disclose personal information (within the meaning of the Privacy Act 1988) that is in the possession, or under the control, of the Agency Head in any of the following circumstances:

the disclosure is necessary for the performance or exercise of the employer powers of the Agency Head or another Agency Head;
the disclosure is necessary for the performance of a function of the Public Service Commissioner or the Merit Protection Commissioner;
the disclosure is necessary for the performance of a function of an ISAC;
the disclosure is necessary for the review of APS action or action of a statutory office holder by:
1. a PRC; or
2. the Merit Protection Commissioner; or
3. a person nominated, or a committee constituted, by the Merit Protection Commissioner to conduct the review.

8 It is expected that the regulations will also provide for an Agency Head to release personal information about APS employees to another Agency Head or an outsourced body contracted to undertake a personnel function that would otherwise be carried out by the initiating agency.

9 Disclosure of personal information under the regulations must be consistent with any guidelines issued by the PSMPC. The PSMPC, in consultation with the Privacy Commissioner, will issue these guidelines early next year.

Related legislation

10 There is other legislation related to the disclosure of information. The major Acts are:

The Privacy Act 1988
The Freedom of Information Act 1982
The Archives Act 1983
Spent Convictions Provision in Part VIIC of the Crimes Act 1914
The Auditor-General Act 1997

There is also a range of other legislation relating to specific actions or functions, such as agency specific legislation, that refers to disclosure of personal information in general.

Further advice

11 The contact for policy advice on privacy issues is Gabrielle Mackey, Information and Security Law Division, Attorney-General's Department, tel: 6250 6891, email: gabrielle.mackey@ag.gov.au. The PSMPC contact for this Advice is Helen Graham, tel: 02 6202 3859. Enquiries can also be made by E-mail to psact@apsc.gov.au or the PSMPC's Helpline on 6202 3859. APS staff who contact the PSMPC will be asked to direct their inquiries to the appropriate area of their own agency.

12 Advice from DEWRSB is accessible through the government employment web sites at www.dewrsb.gov.au or through the PSMPC's web site.

Jeff Lamond
Team Leader
Staffing, Structures and Performance Team

2 December 1999