Home page
> Publications > Supporting Ministers, Upholding the Values > Appendix 1 > Next: Appendix 2
> Employment policy and advice
‹ Previous page
Last updated: 9 March 2006
Supporting Ministers, Upholding the Values
Appendix 1: Managing official information: disclosing and using information
Extract from APS Values and Code of Conduct in Practice: A Guide to Official Conduct for APS Employees and Agency Heads
Chapter 3—Managing Official Information
Disclosing and using information
There is a legal and regulatory framework that governs the 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)
The legislation can be accessed at the Department of Attorney-General’s website at: http://comlaw.gov.au.
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 Commonwealth Protective Security Manual 2000 (PSM) which sets out the protective security policy, practices and procedures for the Australian Government. Access to the PSM is currently restricted to Australian Government agencies and their employees.
Disclosing information
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.
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).
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) of the Public Service Act 1999). 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 Conduct.
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 Regulations relating to the management of official information can be accessed at: http://www.apsc.gov.au/publications/legislation.htm.
