Requirements to provide information to the MPC
Requirements to provide information to the MPC
This page sets out our expectations when seeking information from an agency for the purpose of conducting a merits review and the requirements on agencies to provide that information.
The MPC requires access to all the information that was considered by the decision-maker, as well as all relevant agency policy and procedure documents. A failure to provide this information impacts our ability to conduct to a merits review of the decision.
However, we understand that agencies have their own obligations to keep sensitive or confidential information secure. Often in these situations an agency may seek to refuse to provide certain information to the MPC on the basis of legal privilege, security classifications and raise public interest immunity arguments.
To assist we have compiled a list of answers to commonly asked questions.
Frequently asked questions
Why do agencies have to provide information to the MPC
Under section 48 of the Public Service Regulations 2023 the MPC can require an agency head to provide information that is relevant to the decision under review. The legislation provides for no exceptions to the rule. A similar power exists for reviews of promotion decisions (Section 32 of the Regulations).
For secondary reviews, agencies are required to give the MPC all relevant documentation and information that relate to, and was relied on, to conduct the primary review of the original decision.
What information does this cover?
All the information held by the agency that is relevant to the decision. We have a list of the types of information.
To assess the merits of a case and make a recommendation on the correct or preferable decision, we need all the information that was relied on to make the decision. We must be able to test the relevance and veracity of the information, especially when evidence is contested or adverse to the applicant.
What about the agency’s responsibility to protect the applicant’s privacy?
If an agency has concerns about providing information about the applicant they can contact the MPC reviewer to discuss options.
If information is personal, an agency can contact the applicant to seek their views on whether the information is relevant to the review. In some instances, this can result in an agreement to redact irrelevant information or finding another way to get information to the MPC reviewer.
If information is not relevant to the review, we will not ask for it to be provided or disclosed.
What about the need to protect the privacy of other parties to an investigation?
Under the ‘hearing rule’ applicants are entitled to know what information has been taken into account to make an employment related decision that affects them.
An employee must be able to respond effectively to allegations of misconduct or inappropriate behaviour. To do this, they need access to the facts and be aware of other versions of events. This obligation to provide information is discussed in more detail in Handling Misconduct.
Complainants, applicants and witnesses to workplace or code of conduct investigations have a legitimate expectation that information about them, their views or their circumstances would not be shared without good reason or a lawful purpose. Merits review by the MPC is a lawful purpose.
Options to redact or remove irrelevant information or providing a summary of the evidence of witness statements rather than the full record can be discussed with the MPC reviewer.
What about legal privilege?
Legal privilege exists to protect the right of an agency and individual to obtain confidential advice about a legal circumstances. The same protection exists for both agencies and individuals.
This privilege co-exists with the requirement to provide the MPC with information relevant and necessary for us to complete our review. Agencies can provide privileged documents to the MPC on the condition we will preserve legal professional privilege and confidentiality.
What about security or classified information
An employee can apply to the MPC to review a decision by Australian Government Security Vetting Agency (AGSVA) to deny or revoke their security clearance.
In limited circumstances, we may accept redacted documents (to protect AGSVA tradecraft) or arrange to view the information at the AGSVA office. This will allow the MPC Reviewer to assess the risk and negotiate with AGSVA, where appropriate, to share that information with the applicant.
If a review involves public interest disclosures
Agencies have obligations to protect the identity of a person who has made a public interest disclosure.
However under the Public Service Regulations, an agency must provide information to the MPC that was before the decision maker or the person who took the action. Some information can be withheld without having any impact on our ability to conduct a review. This can be discussed with the MPC reviewer.
You can also read our guidance on this topic.