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Amendments to Regulation 2.1
Last year’s report noted the decision by the Federal Court (Bennett v HREOC (2003) FCA 1433) that cast doubt on the validity of Regulation 2.1. This regulation dealt with the unauthorised disclosure of work-related information by APS employees.
To remove uncertainty about the validity of the provision, a replacement Regulation 2.1 was developed; it became effective on 23 December 2004.
The amended Regulation was subject to a notice of disallowance in either House of Parliament and on 16 June 2005 the Senate voted in favour of a motion put by the Opposition to disallow the amended regulation.
Immediately following the vote to disallow the amended regulation, the Commission issued interim advice to agencies about the disallowance, and noted that the Government was considering what steps it might take to ensure 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. In the meantime, the original regulation has revived. Further information on this issue can be found in the Commission’s circular 2005/3 Disallowance of Amendments to the Public Service Regulations 1999—Regulation 2.1 (Disclosure of Information).
The uncertainty about Regulation 2.1 and subsequent advice provided by the Commissioner may have resulted in agencies not regarding it as an effective part of the Code. Only six employees in four agencies were investigated for disclosure of information without authority in 2004–05.
