ATTACHMENT A

Purpose of the replacement regulation

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.

The Regulations provide an appropriate balance between the public interest in having access to information held by government, the public interest in limiting disclosure to ensure the effective and proper conduct of government, and the constitutional rights of freedom of expression of individual public servants.

There are some circumstances where there is an overriding public interest in maintaining the confidentiality of information held by government. Disclosing information inappropriately is against the public interest for a variety of reasons. At its most serious, 'leaking' information can damage Australia's national 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.

The Regulations do not, however, prevent public servants from raising legitimate concerns about suspected maladministration or corruption, by making whistleblower reports through the appropriate channels, in accordance with the whistleblower provisions of the Public Service Act and Regulations.

The Regulations ensure that the law governing disclosure of information by public servants is compatible with the expectations of the Australian public and the legitimate interests of government in protecting certain information. They ensure that a public servant's freedom of communication about government or political matters is not unnecessarily burdened and is reasonably appropriate and adapted to serve a legitimate end which is compatible with the maintenance of the system of representative and responsible government prescribed by the Constitution.

While the regulation is necessarily framed in terms of broad principles, the Australian Public Service Commission will supplement it by issuing more detailed guidance for public servants. This will take the form of a revised Chapter 3 of its publication The APS Values and Code of Conduct in Practice: A Guide to Official Conduct for APS Employees and Agency Heads.

ATTACHMENT B

Details of the Public Service Amendment Regulations 2006 (No. 1)

Regulation 1 names the Regulations as the Public Service Amendment Regulations 2006 (No. 1).

Regulation 2 provides that the Regulations commence at the beginning of the day following their registration on the Federal Register of Legislative Instruments.

Regulation 3 provides that Schedule 1 amends the Public Service Regulations 1999 (the Principal Regulations).

Schedule 1 Amendments

Item [1] Regulation 2.1

This item substitutes existing regulation 2.1 with a new regulation dealing with restrictions on disclosure of information.

Subregulation 2.1(1)

The subregulation makes clear that the Regulation is made for the purposes of subsection 13(13) of the Act.

Subregulation 2.1(2)

The subregulation makes clear that the Regulation does not affect other restrictions on the disclosure of information. Such restrictions may be created by legislation, for example the Privacy Act, or the common law, for example the implied common law duty of loyalty and fidelity.

Subregulation 2.1(3)

The subregulation prohibits the disclosure of information by an Australian Public Service (APS) employee which the APS employee obtains or generates in connection with their 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.

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 programs. The legitimate interest of government in regulating access to such classes of information is recognised in the Freedom of Information Act 1982.

Because the regulation is not a complete prohibition on disclosure it is framed in such a way that it necessarily leaves some room for judgement by APS employees in applying it to a particular circumstance.

The test in the regulation is an objective one. Such an objective test, based on what a reasonable person would decide, in the same circumstances and with the same information, is common in a range of legislation. The Public Service Commissioner's conduct guidelines make it clear that if an employee is in doubt about whether information may be disclosed, they should seek the advice of someone in their agency with appropriate authority e.g. their supervisor.

The scope of subregulation 2.1(3) is substantially limited by subregulation 2.1(5).

Subregulation 2.1(4)

The subregulation prohibits the disclosure of information by an APS employee which the APS employee obtains or generates in connection with their 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. The prohibition applies whether or not the disclosure would found an action for breach of confidence.

Information will be taken to 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 national security classification or a Cabinet-in-Confidence or staff-in-confidence classification is clearly communicated in confidence within government.

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 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, for example, information which if disclosed except in the course of duties might damage Australia's relations with foreign States.

Information will be taken to 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).

The exemptions set out in the Freedom of Information Act are a useful starting point in determining which categories of information may potentially fall within the scope of the regulation.

The scope of subregulation 2.1(4) is substantially limited by subregulation 2.1(5).

Subregulation 2.1(5)

The subregulation limits the apparent width of subregulations 2.1(3) and 2.1(4). It 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.

In addition, paragraph 2.1(5)(d) makes it clear that subregulations 2.1(3) and 2.1(4) do not prevent the disclosure of information that, at the time of disclosure, is already lawfully in the public domain. For example, if a public servant provided details of budget initiatives to a member of the public after the budget had been handed down.

However, this exception would not apply if at the time of disclosure the information had not yet been lawfully disclosed, for example the matter was made public via a budget 'leak'. Nor would it apply if disclosure would have the effect of expressly or impliedly disclosing other information to which subregulations 2.1(3) and 2.1(4) apply. An example would be where a public servant makes a disclosure which, because of their official role, has the effect of confirming a previous leak of information that had been provided in confidence by another government.

Subregulation 2.1(6)

Regulation 2.1 is not designed to regulate the disclosure of official information comprehensively. Rather, it is intended to operate alongside other provisions and obligations, such as any lawful and reasonable direction given by someone in the employee's agency who has authority to give the direction. The subregulation makes it clear that the regulation does not limit the authority of an Agency Head to give more specific lawful and reasonable directions in relation to the disclosure of particular classes of information held by the agency.

Note

A note to the regulation makes clear that 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.

The regulation creates such a duty.

Commonwealth Numbered Regulations - Explanatory Statements

EXPLANATORY STATEMENT

Issued by authority of the Prime Minister

Purpose of the replacement regulation