Exceptions and defences

Background

12.82 The prohibitions set out in regs 2.1(3) and (4) of the Public Service Regulations do not prevent an APS employee from disclosing information if:

(a) the information is disclosed in the course of the APS employee’s duties; or

(b) the information is disclosed in accordance with an authorisation given by an Agency Head; or

(c) the disclosure is otherwise authorised by law; or

(d) the information that is disclosed:

(i) is already in the public domain as the result of a disclosure of information that is lawful under these Regulations or another law; and

(ii) can be disclosed without disclosing, expressly or by implication, other information to which subregulation (3) or (4) applies.^[97]

12.83 It is notable that the Public Service Regulations do not include an express exception or defence for public interest disclosures by APS employees. Some protection, however, is provided by s 16 of the Public Service Act:

A person performing functions in or for an Agency must not victimise, or discriminate against, an APS employee because the APS employee has reported breaches (or alleged breaches) of the Code of Conduct to:

(a) the [Public Service] Commissioner or a person authorised for the purposes of this section by the Commissioner; or

(b) the Merit Protection Commissioner or a person authorised for the purposes of this section by the Merit Protection Commissioner.

(c) an Agency Head or a person authorised for the purposes of this section by an Agency Head.^[98]

12.84 The relationship between public interest disclosures under the above provision and s 70 of the Crimes Act 1914 (Cth) is explained in the APS Values and Code of Conduct in Practice:

a public interest disclosure that is made in accordance with the [Public Service] Act and regulations (that is, to the relevant Agency Head, the Public Service Commissioner, the Merit Protection Commissioner or persons authorised by them) is not considered an unauthorised disclosure of information or an offence under s 70 of the Crimes Act.^[99]

12.85 Where an APS employee discloses information within the parameters of s 16 of the Public Service Act, such a report would attract the exceptions in reg 2.1(5) for information disclosed ‘in the course of the APS employee’s duties’ or ‘otherwise authorised by law’. Accordingly, he or she would not be liable to disciplinary action.

12.86 The scope of protection, however, is not comprehensive. In particular, a disclosure will only be protected where it raises a breach, or alleged breach, of the Code of Conduct. This excludes several types of disclosures that the House of Representatives Standing Committee on Legal and Constitutional Affairs, in its February 2009 report into whistleblowing protection within the Australian Government public sector, recommended should fall within the scope of public interest disclosure legislation—for example, a disclosure that alleges dangers to public health or safety, damage to the environment or wastage of public funds.^[100] Section 16 only protects disclosures that an APS employee makes to the agency head, the Public Service Commissioner, the Merit Protection Commissioner or an authorised representative of one of these. The House of Representatives Standing Committee noted the need for a public interest disclosure system to provide multiple avenues for reporting disclosures and recommended that bodies authorised to receive and investigate public interest disclosures should also include the Commonwealth Ombudsman and integrity agencies.^[101]

12.87 In its submission in response to IP 34, the CPSU stated that there was a ‘clear consensus’ among its members about the inadequacy of whistleblower protections in s 16 of the Public Service Act. The CPSU recommended that secrecy provisions in the Public Service Act should include an express exception dealing with protected disclosures.^[102]

Submissions and consultations

12.88 In DP 74, the ALRC proposed that reg 2.1 should include a note cross-referencing to the immunity provided by proposed Commonwealth public interest disclosure legislation. Those stakeholders that commented on this issue unanimously supported the proposal.^[103]

12.89 Whistleblowers Australia reiterated its concerns about the operation of s 16 of the Public Service Act, a provision it considered to be ‘impotent and ineffective’ in protecting APS employees who ‘make a well-intentioned disclosure that they believe would serve the public interest’. It argued that ‘the only redeeming feature of [the] scheme’ was that ‘it is so patently unworkable that few officers put themselves at risk by using it’.^[104] It recommended that s 16 be repealed upon the introduction of Commonwealth public interest disclosure legislation.^[105]

12.90 Whistleblowers Australia also queried the exception in reg 2.1(5)(d)(i) for information which ‘is already in the public domain as a result of a disclosure of information that is lawful under these regulations or another law’. This exception, it said, ‘implies the obvious’: if information has been lawfully disclosed once then it is not a new offence to disclose it a second time.^[106]

ALRC’s views

12.91 The ALRC considers that robust public interest disclosure legislation is an essential corollary of Commonwealth secrecy obligations, including administrative obligations in the Public Service Act. The limited scope of s 16 of the Public Service Act prevents it from adequately performing this function.

12.92 As discussed in Chapter 2, the ALRC is assuming in this Report that Commonwealth public interest disclosure legislation will be enacted and that the terms of this legislation will largely reflect the recommendations in the 2009 House of Representatives Standing Committee’s report. The proposed legislation would provide immunity from liability under reg 2.1 for disclosures made within the public interest disclosure framework.

12.93 The ALRC has decided not to recommend that secrecy provisions in Commonwealth legislation should include notes expressly cross-referring to the immunity provided by Commonwealth public interest disclosure legislation. For the reasons set out in Chapter 7, such a note is considered unnecessary. APS employees must, however, be clearly informed about the availability of public interest disclosure mechanisms in other ways. In particular, in Chapter 14 the ALRC recommends that Australian Government agencies should develop and implement policies clarifying the application of relevant secrecy laws to their information holdings. These should include avenues for an employee to raise queries or concerns, including the process by which he or she can make a public interest disclosure.^[107]

12.94 Other than Whistleblowers Australia’s concerns about the exception for publicly available information, which is dealt with below, the ALRC has not been made aware of any issues with the exceptions currently set out in reg 2.1. These exceptions provide important limitations on the potential for an APS employee to be made subject to disciplinary action for the disclosure of Commonwealth information. The ALRC’s view, therefore, is that these exceptions should be retained. The exceptions are consistent with those included by the ALRC in the recommended general secrecy offence.^[108]

12.95 The exception in reg 2.1(5)(d)(i) for information that is already in the public domain as a result of a lawful disclosure serves a useful role in administrative secrecy regimes. To illustrate, the media could report an anonymous leak of budget information before the budget’s public release. It is reasonably likely that an APS employee who confirms the leak, and consequently validates the information, could cause prejudice to the effective working of government. However, once information is lawfully available, then no prejudice to the effective working of government could result from its disclosure, regardless of the circumstances of its disclosure.