Regulation 2.1—Disclosure of information
This Circular provides advice on the amendment to the Public Service Regulations 1999 (the Regulations) concerning the disclosure of information.
Public Service Amendment Regulations 2006 (No. 1) has changed the arrangements regulating the disclosure of information by public servants by substituting new regulation 2.1 into the Regulations. New regulation 2.1 brings the law regulating disclosure of information by public servants into line with community expectations and addresses the matters raised by the Federal Court decision in Bennett v The President, Human Rights and Equal Opportunity Commission  FCA 143.
New regulation 2.1
The new regulation contains a number of clauses governing the disclosure of different kinds of information, particularly
- information prejudicial to the effective working of government (subregulation 2.1(3))
- information communicated in confidence (subregulation 2.1(4)) .
Other restrictions on disclosure
The new regulation does not affect other restrictions on the disclosure of information. Such restrictions may be created by legislation, for example the Privacy Act 1988, or the common law.
The regulation also allows an Agency Head to give specific lawful and reasonable directions in relation to the disclosure of particular classes of information held by the agency (subregulation 2.1(6)).
The regulation also makes it clear that, under section 70 of the Crimes Act 1914, it remains 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
Information may be disclosed in the course of duties or where otherwise authorised
Subregulation 2.1(5) provides that a disclosure of information may be made by an APS employee in the course of an employee’s duties, or in accordance with an authorisation given by an Agency Head, or if it is otherwise authorised by law.
Thus, for example:
- as part of their duties, an agency’s media contact, FOI officer or a person staffing a help line may be authorised to disclose information, including to make judgements that information that was originally sensitive or confidential and so protected by subregulation 2.1(3) or (4) can now be released;
- paragraph 2.1(5)(c) permits the disclosure of information, even if it had originally been confidential, where this is authorised by the Archives Act 1983; and
- paragraph 2.1(5)(c) also permits public servants to make whistleblower reports about suspected breaches of the Code of Conduct provided it is done in accordance with the whistleblower provisions of the Public Service Act and Regulations.
Date of effect
The new regulation (at Attachment A) came into effect on the 15 th of July 2006. A consolidated version of the Regulations, including this amendment, is available on-line at ComLaw.
The amendments to the Regulations were tabled in Parliament on the 8th of August 2006. Please note that the regulation was not disallowed by either House of Parliament.
The APS Commission has updated the guidelines on official conduct APS Values and Code of Conduct in Practice: a guide to official conduct for APS employees and Agency Heads as a consequence of the new regulation. The latest amendments to chapter 3 of the guidelines are at Attachment B, copies of which should be placed with existing stocks of the publication. The updated guidelines are also available on the APS Commission’s website.
Please contact the APS Commission’s Employment Policy Adviceline by phone—on (02) 6202 3859. It may be appropriate for more complex or sensitive queries to be dealt with in writing.
26 July 2006
2.1 Duty not to disclose information (Act s 13)
- 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.