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Last updated: 28 August 2008

APS Values and Code of Conduct in practice

Section 1: Relationship with the Government and the Parliament

Chapter 3: Managing official information

Relevant elements of the Values, Code of Conduct and Regulations

APS Values

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

2.1

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:
1. was, or is to be, communicated in confidence within the government; or
2. 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:
1. the information is disclosed in the course of the APS employee’s duties; or
2. the information is disclosed in accordance with an authorisation given by an Agency Head; or
3. the disclosure is otherwise authorised by law; or
4. the information that is disclosed:
  1. is already in the public domain as the result of a disclosure of information that is lawful under these Regulations or another law; and
  2. 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 Act1983 (Archives Act)
Privacy Act 1988 (Privacy Act)

The legislation can be accessed online through ComLaw at www.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 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.

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.

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 Conduct 1.

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. )

Authorisations and delegations given for the purposes of the revived regulation cease to have effect from and including 15 July 2006. Agencies should therefore consider the issuing of new 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 programs (PS Regulation 2.1(3) 2). 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 Memorandum 98 on the Attorney-General’s Department’s web site at www.ag.gov.au/foi.

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 e.g. 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.

Using information

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 officer 3 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

Some APS employees, as part of their normal duties, provide comment to the media and the public about agency activities. Sometimes they are required to defend agencies against criticism, such as about a lack of probity or competence.

More generally, APS employees as private citizens may make public comment in a private capacity, so long as they make it clear they are expressing their own views. It is not appropriate, however, for APS employees to make public comment that could be perceived as:

being on behalf of the agency or government rather than a personal view. (This applies particularly to senior public servants.)
compromising the APS employee’s capacity to fulfil his or her duties in an unbiased manner. (This applies particularly where comment is made about policies and programs of the employee’s agency.)
so harsh or extreme in its criticism of the government or its policies 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 should always attempt to resolve grievances by informal discussion with a manager or by using internal dispute resolution mechanisms.)
a gratuitous personal attack
compromising public confidence in the agency or the APS.

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. Because of the influence SES employees carry with stakeholders, and because they are likely to be required to advise on, or lead the implementation of, government policies and programs, 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.

The term ‘public comment’ is used broadly, and includes comment made on political or social issues at public speaking engagements, during radio or television interviews, on the Internet, in letters to the press or books or notices, or in other ways where the comment is intended for the community at large.

APS employees participating in union activities must uphold the APS Values and comply with the Code of Conduct in the same way as all APS employees, including when making public comment (see also Chapter 15: APS employees as citizens).

Inappropriate public comment by APS employees may result in sanctions under the PS Act, for example, under section 13(11) of the PS Act ‘An APS employee must at all times behave in away that upholds the APS Values and the integrity and good reputation of the APS’.

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 (official witness guidelines) 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. Senior APS employees in particular should carefully consider the impact, because of their position, of any comments they make.

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.

Recordkeeping

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 report Recordkeeping (No. 45 of 2001-02) which can be found at: Audit Report - Recordkeeping
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 Auditor-General acknowledges the need for good judgement in his report on Magnetic Resonance Imaging Services (Audit Report 42 (99-00):

‘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
program 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 program decision making.

The National Archives of Australia advises 4 that records (whether the format is paper or electronic) should be created and kept to:

provide evidence of business activity, as individuals are accountable to managers in their organisation, other organisations or to the public
satisfy regulatory requirements such as legal and audit requirements
support effective decision making, so that information is available to make an informed decision
provide a record of the past – historical value
help with individual communication needs because records enable individuals to share information with others.

In the above reports, the Auditor-General also made the following point about the discipline required to keep records when time and resources are constrained:

‘Often it is considered that maintaining paper or electronic records is too burdensome. This is especially so in an environment where there are time and resource constraints. However, such considerations may be substantially lessened by a soundly based corporate governance framework that is set up to deal with such demands. Perversely, it is such a constrained environment that often requires adequate documentation for accountability purposes. In this context, sound public administration requires key deliberations, decisions and resolutions to be recorded’.

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. In 1995 the National Archives of Australia issued a policy under the Archives Act that electronic records have the same status as paper records. The policy states that:

‘All digital data created or received in the conduct of Commonwealth business are Commonwealth records under the Archives Act 1983 and need to be managed in accordance with the Act. Commonwealth Government agencies must manage electronic records with the same care as they manage paper records. Agencies must not dispose of electronic records except under an appropriate disposal authority issued by the National Archives of Australia’. 5

The policy also covers emails:

‘Email is part of the official business communication of a Commonwealth agency. Email sent or received contains information about business activities and therefore can function as evidence of business transactions which are part of the official records of an agency. All email messages created using Commonwealth government systems are Commonwealth records and must be managed in accordance with the Archives Act 1983’. 6

To assist agencies to systematically manage records, in March 2000 the National Archives released an extensive range of recordkeeping standards, policies, tools and guidelines for the Commonwealth. This is available on the Archives’ Internet site at National Archives of Australia - Commonwealth Recordkeeping.

1 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).

2 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).

3The definition of a Commonwealth public official in the Criminal Code extends to contracted service providers for a Commonwealth contract, and their officers and employees.

4 E-permanence: The New Standard in Recordkeeping for Training for Commonwealth Record-keepers (National Archives of Australia, August 2000)

5 National Archives of Australia 2001, Electronic Records [online], available: www.naa.gov.au/recordkeeping/er/summary.html [ 18 July 2001]

6 National Archives of Australia 2001, Email is a Record!, Archives Advice 20, February 2001 [online], available: www.naa.gov.au/recordkeeping/rkpubs/advices/advice20.html [ 18 July 2001]

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