Express law No. 14

7 January 2005

Public service confidentiality

The Public Service Regulations
1999 have been amended to make new provision for regulating
the disclosure by APS
employees of work-related information. Amended regulation
2.1 in essence prohibits an APS employee from disclosing
work-related information if the disclosure could prejudice
the effective working of government or if the information
was, or is to be, communicated in confidence.

Background

Old regulation 2.1 prohibited an APS employee
from disclosing any information about public business or
anything of which
the employee had official knowledge, except in the course
of the employee's duties. This general prohibition
had been in substantially the same form since 1902.

Questions
about the interpretation and constitutional validity of
the predecessor to the old regulation 2.1 arose in the
Federal Court case of Bennett v President, Human Rights
and Equal Opportunity Commission (2004) 204 ALR 119. Justice
Finn found that the provision was a 'catch-all' provision
prohibiting disclosure regardless of the nature of the
information or the consequences of disclosure, including
where the information was publicly available. He held that
the provision infringed the freedom of political communication
implied in the Constitution and was therefore invalid,
essentially because the 'catch-all' nature
of the provision was inconsistent with modern conceptions
of open government and imposed too great a burden on the
flow of government information. Justice Finn acknowledged
that the Commonwealth might validly regulate disclosure
of particular information for legitimate reasons relating
to that information. Legitimate reasons included the effective
working of government.

New regulation 2.1 commenced on 23
December 2004. It is designed to address changed community
expectations and
the matters raised by Justice Finn in the Bennett case
(see Australian Public Service Commission Circular No 2004/8
at [2]-[3]).

New regulation 2.1

New regulation 2.1 is not a 'catch-all' provision.
It prohibits disclosure by APS employees of information
which they obtain or generate in connection with their
employment in two (potentially overlapping) situations.
These situations are:

  • where it is
    reasonably foreseeable that the disclosure could be
    prejudicial to the effective working of government,
    including the formulation or implementation of policies
    and programs; and
  • where 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
    government, whether or not the disclosure would found
    an action for
    breach of confidence.

The new regulation does not prohibit
disclosure in the course of duties or in accordance with
an authorisation
given by an Agency Head or as otherwise authorised
by law.

The new regulation does not affect the operation
of other Commonwealth secrecy and privacy provisions
or the authority
of an Agency Head to give directions in relation
to disclosure of information.

Australian Public Service
Commission Circular No 2004/8 gives guidance in relation
to the application
of the
new regulation. Chapter 3: Managing Official Information
of
APS Values and Code of Conduct in Practice:
a guide to official conduct for APS employees and
Agency
Heads has
been significantly revised as a consequence of
the new regulation, including revised guidance on making
public
comment.

AGS provided advice to the Australian Public
Service Commission in relation to the formulation of
new regulation 2.1.

Text of the new regulation 2.1 is available
at:
http://scaleplus.law.gov.au/cgi-bin/download.pl?/scale/data/numrul/20/10426

Text
of the APSC circular and guidance is available at:
http://www.apsc.gov.au/circulars/circular048.htm and http://www.apsc.gov.au/values/conductguidelines.htm

For
further information please contact:

Jenny Burnett

Senior General Counsel

T 02 6253 7012 F 02 6253 7303

M 0409 445 295

jenny.burnett@ags.gov.au

Richard Harding

Senior General Counsel

T 02 6253 7026 F 02 6253 7304

M 0408 598 696

richard.harding@ags.gov.au

Important: The material in Express law is
provided as an early, interim view for general information
only and further analysis on the matter may be prepared
by AGS. The material should not be relied upon for
the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in this message.