An official must not improperly use information accessed, gained or made available by virtue of their employment or position with a Commonwealth entity to gain, or seek to gain, a benefit or an advantage for themselves or for another person (section 28 of the PGPA Act). The official must also ensure they do not cause, or seek to cause, detriment to the Commonwealth entity that employs or employed them, to the Commonwealth more broadly or any other person.
An official contravenes this duty if they:
Misuse of information may also involve a breach of the duty of care and diligence, the duty to act in good faith and for a proper purpose, and the duty in relation to the use of position and could also breach other legal obligations (for example, the Privacy Act 1988).
Examples of misuse of information could be:
- releasing information to the media without appropriate authority
- using protected data held by a government entity for personal financial gain
- providing information to a person or company that gives, or potentially gives, that person or company a competitive advantage in a procurement tender.
There are secrecy provisions in other legislation applying to the work of particular Commonwealth entities.
Case study
Shaun works for a Commonwealth entity and meets Raoul at a friend's barbecue. Raoul and Shaun start talking about what they do for a living. Shaun mentions that he is busy because he is working on the government's innovation policy. Raoul tells Shaun that he runs a small fintech company that is keen to access the government's innovation funding. Raoul asks Shaun if he knows if the government is going to have programs that will help companies like his.
Appropriate action: Shaun advises Raoul that he is unable give him any details beyond what is publicly available. By doing this, Shaun recognises that revealing any information gained through his role working on the innovation policy may result in Raoul gaining an advantage over others. However, Shaun advises Raoul of what has been made public and refers him to the entity's website for more details.
- For APS employees, the APS Code of Conduct requires an employee to not improperly use inside information in order 'to gain, or seek to gain, a benefit or an advantage for the employee or for any other person or to cause, or seek to cause, detriment to the employee's agency, the Commonwealth or any other person' (section 13(10) of the Public Service Act 1999) and imposes a duty through Public Service Regulation 2.1 not to disclose certain information without authority (i.e. information communicated in confidence or where disclosure could be prejudicial to the effective working of government).
