The purpose of this Circular is to advise that on 16 June 2005 the Senate disallowed amendments to the Public Service Regulations 1999 (the Regulations), concerning the disclosure of information.
Effect of disallowance
The effect of the disallowance is that:
- Public Service Amendment Regulations 2004 (No. 2), which substituted a new Public Service Regulation 2.1 into the Regulations, no longer had effect from and including 16 June 2005; and
- former Regulation 2.1 is revived from and including 16 June 2005.
As previously advised, in an advice from the Public Service Commissioner dated 19 December 2003 ), doubt was cast on the validity of regulation 2.1 by the decision in Bennett v The President, Human Rights and Equal Opportunity Commission  204 ALR 119 (the Bennett case).
Questions about the validity of regulation 2.1 which now applies do not mean that it is open slather for public servants to disclose government information. There remain in place a large number of sources, in specific statutory provisions, including in the APS Code of Conduct, in common law and in equity that limit the disclosure of information by public servants.
It is also open to Agency Heads to issue directions to employees about particular kinds of information which they consider require a more specific direction because of the particular sensitivity or other character of the information.
Delegations and authorisations
Authorisations given under the disallowed regulation and delegations given for the purposes of the disallowed regulation ceased to have effect from and including 16 June 2005. Agencies should therefore consider the issuing of new authorities and delegations for the purposes of the revived Regulation 2.1.
Action under the APS Code of Conduct
The disallowance does not affect any sanction imposed for breach of the disallowed regulation. In addition, agencies can continue to investigate any suspected breach of the disallowed regulation which occurred while it was in force (i.e. from 23 December 2004 until 15 June 2005) or instigate investigations.
When the disallowed regulation was introduced, the APS Commission issued amendments to the guidelines on official conduct APS Values and Code of Conduct in Practice: a guide to official conduct for APS employees and Agency Heads. In particular, there were significant changes to chapter 3 (Managing Official Information) and a small change to chapter 13 (Employees as citizens) in relation to participating in union activities.
While those passages that refer specifically to the disallowed regulation are no longer current, much of the advice on managing official information in chapter 3 remains relevant.
The advice on making public comment in chapter 3 is not affected by the disallowance of the regulation and should continue to be observed by APS employees.
Section 16 of the Public Service Act 1999 (protection for whistleblowers) protects an APS employee from discrimination or victimization where the employee report a suspected breach of the Code of Conduct through the proper channels - that is, to the Agency Head, Public Service Commissioner, Merit Protection Commissioner or a person authorised by them. This provision, the related regulations and the procedures that departments are required to have in place to facilitate and inquire into such reports are not affected and continue to apply.
The Government will be considering what steps it might now take to ensure that there is an appropriate balance between the ability of public servants, as citizens to discuss important issues, and the need to ensure the confidentiality of government information where appropriate.
Further advice will be issued as soon as possible.
Please contact the APS Commission's Employment Policy Adviceline by phone-on (02) 6202 3859, or by email at -employmentadvice [at] apsc.gov.au. It may be appropriate for more complex or sensitive queries to be dealt with in writing.