Public Administration (Public Sector Communication) Regulations 2018

The Regulations do not define “public sector communication” themselves; that definition resides in Part 5A of the Public Administration Act 2004. The Regulations instead prescribe the purposes and standards that apply to such communications. A “State purchase contract” is defined in regulation 3 as a whole-of-government aggregated arrangement for the procurement of certain goods or services commonly used by Victorian public sector bodies. The “Victorian Electoral Commission” is defined by reference to the Electoral Act 2002. References to “the Act” mean the Public Administration Act 2004.

The central concept is the list of twelve public interest purposes in regulation 4. These are the only grounds on which a public sector communication may be published under Part 5A. The purposes range from factual information provision (regulation 4(a)) to advocacy for Victoria’s commercial interests (regulation 4(k)) and revenue generation (regulation 4(l)). The breadth of these purposes means that most government advertising, public information campaigns, and recruitment drives will be covered. However, the list is exclusive: a communication that does not fit any of the twelve purposes would not be authorised under Part 5A.

The seven public sector communication standards in regulation 5 impose substantive content restrictions. They prohibit references to a political party (regulation 5(1)(a)), including slogans, logos or branding of a political party (regulation 5(1)(b)), and links to websites of a political party, candidate for election, or member of Parliament (regulation 5(1)(c)). They prohibit denigration without grounds (regulation 5(1)(d)), deliberately inaccurate or misleading statistics or comparisons (regulation 5(1)(e)), presenting unsubstantiated facts (regulation 5(1)(f)), and naming, portraying or promoting members of Parliament in a manner regarded as excessive or gratuitous (regulation 5(1)(g)). The term “deliberately” in regulation 5(1)(e) imposes a mens rea requirement: innocent errors fall outside the prohibition. “Without grounds” in regulation 5(1)(d) is not defined, creating interpretive uncertainty.

There is a carve-out in regulation 5(2): despite the prohibition on links to member of Parliament websites, a public sector communication may include links to a member of Parliament’s social media account. This creates a distinction between official MP websites and personal social media accounts, which may be exploited for promotional purposes.

The advertising standard in regulation 6 prohibits referring to the State, Parliament or the public sector by the name of a political party leader or the party name. Regulation 7 prohibits directly promoting projects for which funding has not yet been provided. The term “directly promotes” is not defined, leaving room for indirect promotion or general awareness campaigns that may circumvent the restriction.

The advertising requirement in regulation 10 obliges media placements to be purchased under a State purchase contract, with exceptions: where the media is outside the contract’s scope, available as an optional service, no contract exists, or the body is exempt under regulation 11. The Secretary to DPC may grant an exemption after consulting the Secretary to Treasury, but the Regulations set no criteria for granting or refusing exemptions.

The Regulations directly bind Victorian public sector bodies that publish communications under Part 5A of the Public Administration Act 2004. This includes government departments, statutory authorities, councils (to the extent covered by the Act), and other agencies subject to the Act. The Victorian Electoral Commission is affected but receives a specific exemption for election-related communications (regulation 8), allowing it to include political party references that would otherwise be prohibited.

The Premier of Victoria receives special treatment under regulation 9. Any public sector body may include a link to the Premier’s official website (as distinct from a party website) and may name, portray or promote the Premier in an official capacity, even though similar treatment of other members of Parliament is restricted by regulation 5(1)(c) and (g). This creates a carve-out that could allow extensive use of the Premier’s image and name in government advertising, provided the promotion is in an official rather than partisan capacity. The line between official and partisan promotion is not defined in the Regulations and may be contested.

Political parties and candidates are indirectly affected: they cannot be referenced in public sector communications except by the VEC during elections. This limits their ability to benefit from government advertising but also prevents government from targeting or criticising them by name.

Media suppliers and advertising agencies are affected because regulation 10 requires media placements to be purchased under a State purchase contract, unless an exception applies. This funnels government advertising spend through a limited number of pre-approved procurement arrangements, reducing competition from smaller or non-panel media outlets. Companies that hold State purchase contracts gain a preferential position. The exceptions in regulation 10(2) provide some flexibility but the default requirement imposes a compliance burden on public sector bodies to verify that a placement falls within the contract’s scope.

The Secretary to the Department of Premier and Cabinet and the Secretary to the Department of Treasury and Finance are affected by regulation 11: they must be consulted before an exemption from the advertising requirement can be granted. No other decision-makers are specified.

Taxpayers are ultimately affected because the Regulations aim to prevent misuse of public funds for partisan advertising. However, the breadth of permitted purposes and the Premier exception mean that considerable taxpayer-funded messaging remains possible. Compliance costs fall on public sector bodies, which must train staff, review content, and maintain documentation on which public interest purpose is relied upon for each communication.

The primary duty is on public sector bodies to ensure that any communication published under Part 5A of the Act meets the prescribed standards and serves one of the twelve public interest purposes. This duty applies before publication; there is no retrospective cure. The body must check that the communication does not refer to a political party or use political branding (regulation 5(1)(a)-(b)), does not link to party, candidate or MP websites (regulation 5(1)(c)), does not denigrate without grounds (regulation 5(1)(d)), does not present deliberately inaccurate or misleading statistics (regulation 5(1)(e)), does not present unsubstantiated facts (regulation 5(1)(f)), and does not excessively promote MPs (regulation 5(1)(g)). For advertising, the body must not refer to the State, Parliament or public sector by a party leader’s name or party name (regulation 6) and must not directly promote unfunded services, activities or infrastructure projects (regulation 7). If media placement is required, it must be purchased under a State purchase contract unless a specific exception applies (regulation 10).

Public sector bodies have a right to publish communications that would otherwise breach the standard against links to MP websites, if they instead link to the MP’s social media account (regulation 5(2)). They also have a right to publish communications that would otherwise breach the prohibition on promoting MPs, provided the subject is the Premier and the promotion is in the Premier’s official capacity (regulation 9). They may apply to the Secretary to DPC for an exemption from the State purchase contract requirement (regulation 11), though the Regulations do not require reasons to be given or create a right of review if the exemption is refused.

The Victorian Electoral Commission has a special right under regulation 8 to publish communications that refer to political parties, use party branding, or link to party, candidate or MP websites, but only for the purpose of conducting an election. This right is not available for other communications.

Notably, the Regulations impose no corresponding duties or rights on members of the public. Individuals and groups have no statutory right to challenge a communication that breaches the standards, unless the parent Act provides such a mechanism. The denigration standard (regulation 5(1)(d)) protects individuals and organisations from denigration without grounds, but the Regulations give no private right of action. Enforcement is left to internal public sector processes or ministerial oversight.

The Regulations themselves contain no penalty provisions. They are made under section 112 of the Public Administration Act 2004, which may prescribe offences for non-compliance with regulations, but this particular instrument does not do so. Enforcement therefore depends on the parent Act and on administrative or disciplinary measures within the public sector.

Under Part 5A of the Act, the relevant sections (97C and 97E) may include directions powers, remedial orders or reporting requirements. Without access to the full text of Part 5A, it is not possible to specify the exact enforcement mechanisms. The Regulations only prescribe the content of standards and advertising requirements; they do not create offences such as “publishing a communication that fails to meet the standards.” Practitioners should consult Part 5A directly to determine whether a breach gives rise to a penalty, an administrative direction, or merely a reputational or political consequence.

What the Regulations do provide is a framework for the Secretary to DPC to exempt a public sector body from the State purchase contract requirement (regulation 11). That exemption is discretionary and requires prior consultation with the Secretary to Treasury, but the Regulations set no criteria, time limits, or review rights. The Secretary’s decision is not subject to merits review under these Regulations.

The practical enforcement risk is likely internal: public sector employees who authorise communications that breach the standards may face disciplinary action, including for misconduct under the Public Administration Act 2004 or under codes of conduct. The prohibition in regulation 5(1)(e) against “deliberately” inaccurate or misleading statistics imports a high threshold, meaning that honest mistakes are not penalised under these standards, though they may still attract criticism under other policies.

There is no independent regulator specifically empowered to enforce these Regulations. The Victorian Auditor-General or the Ombudsman may have jurisdiction to investigate complaints about government advertising, but that arises from their general powers, not from the Regulations. Political accountability - through question time, parliamentary committees, or media scrutiny - may be the most significant enforcement mechanism in practice.

The absence of pecuniary penalties in the Regulations reduces the direct cost of non-compliance. However, the reputational and political costs of breaching standards on political neutrality can be substantial, particularly if a breach is seen as an attempt to use public funds for partisan advantage.

The Regulations sit under Part 5A of the Public Administration Act 2004, which is the primary law governing public sector communication for Victoria. The Regulations do not replace or override that Part; they fill in the details that Part 5A leaves to subordinate legislation. Any reference to “public interest purposes” in the Act is now defined by regulation 4. Any reference to “public sector communication standards” is defined by regulation 5. Any reference to “advertising standards” or “advertising requirements” is defined by regulations 6, 7 and 10.

The Regulations interact with the Electoral Act 2002 through regulation 8, which specifically authorises the Victorian Electoral Commission to include political party references when conducting elections. This ensures that VEC communications are not caught by the general prohibition in regulation 5(1)(a)-(c). Without this exception, the VEC could not lawfully inform voters about party candidates or link to party websites during an election - a result that would undermine election administration.

The Subordinate Legislation Act 1994 governs the making and sunsetting of Victorian statutory rules. These Regulations were made under that framework and will automatically sunset on 25 September 2028 unless re-made or extended. The Endnotes confirm that the Regulations are subject to sunset.

State purchase contracts are whole-of-government procurement arrangements typically established under the Financial Management Act 1994 or Treasury policies. Regulation 10 requires media placements to be purchased under such contracts, creating a nexus between these Regulations and Victoria’s procurement framework. A public sector body that purchases media outside a State purchase contract without an applicable exception may breach both the Regulations and the procurement rules.

The Public Administration Act 2004 also contains provisions on public sector values, codes of conduct, and employment obligations. A breach of the communication standards could also be a breach of the code of conduct for public servants, triggering separate disciplinary processes.

There is no apparent interaction with the Charter of Human Rights and Responsibilities Act 2006, though one might argue that restrictions on content could engage freedom of expression rights. The Regulations do not mention the Charter.

The Regulations are silent on their relationship with the Local Government Act 2020 and councils. If councils are “public sector bodies” for the purposes of Part 5A, they are bound by these Regulations. If not, they are not. The Regulations do not define “public sector body”; that is a matter for the parent Act.

According to the Table of Amendments in the Endnotes of the instrument, there are no amendments made to these Regulations by any statutory rules, subordinate instruments or Acts. The version before the analyst is the original version, made on 25 September 2018 and coming into operation on the same day. The Version No. is 001, confirming that no amending instrument has been incorporated.

This is noteworthy: the Regulations have remained unchanged for over six years. It does not mean that the Act’s Part 5A has not been amended; the parent Act may have been amended, which could affect the operation of these Regulations. However, the Regulations themselves have not been updated. This could be because they were drafted with sufficient breadth to remain relevant, or because political attention has been on other matters.

The Regulations will sunset on 25 September 2028, ten years after the day of making. If no replacement instrument is made before then, Part 5A of the Act will operate without prescribed purposes, standards or requirements. That would leave a legislative gap: the Act would refer to “prescribed” matters but have no prescription. Government would need to either make new regulations or amend the Act to remove the reference to prescribing.

Given the lack of amendments, there is no evolving interpretation through regulatory amendments. Any changes to the policy on public sector communication, such as post-election reforms, have not been reflected in this instrument. Practitioners should verify whether Part 5A of the Act itself has been amended, as that could alter the scope of the Regulations.

The absence of amendment history also means there is no trail of explanatory memoranda or ministerial statements that could assist in interpreting ambiguous provisions, such as “directly promotes” or “excessive or gratuitous.”

The Regulations themselves contain no references to any litigation. The Endnotes confirm that there are no explanatory details at the date of publication. As subordinate legislation, these Regulations could theoretically be challenged on the grounds that they are ultra vires the parent Act, or that the parent Act is invalid, but no such challenge is recorded in the source.

To the extent that litigation has occurred about public sector communication in Victoria, it would likely have been brought under the Public Administration Act 2004 directly, or under other laws such as the Local Government Act or the Electoral Act, rather than under these Regulations. The Regulations are procedural in nature and do not create private rights of action. An aggrieved person would need to find a cause of action elsewhere, such as for judicial review of an administrative decision.

The broad drafting and the lack of penalties make successful litigation against a public sector body for breach of these Regulations difficult. A court might consider a communication that breaches the standards as being outside the body’s statutory power, but the remedies would be limited to declaratory relief or an injunction, not damages.

It is possible that internal government review panels or the Victorian Ombudsman have considered complaints under these Regulations, but such matters are not published as litigation. The Regulations do not mandate public reporting of compliance.

The absence of a litigation history is consistent with the Regulations being largely operational and uncontroversial in their application, at least to the extent of not reaching the courts. That does not mean that compliance has been perfect; it may mean that disputes are resolved internally or through political channels.

Several aspects of the Regulations create traps for the unwary.

First, the exception for MP social media accounts in regulation 5(2). While links to a member of Parliament’s personal website are banned, links to the member’s social media account are permitted. This creates a loophole: a public sector communication could link to the MP’s Facebook or Twitter account, which may contain partisan content that would be prohibited if hosted on the MP’s official parliamentary website. The distinction between a “website” and a “social media account” is technologically arbitrary and ripe for exploitation. A public sector body could effectively funnel readers to an MP’s partisan social media presence while complying with the letter of the regulation.

Second, the Premier exception in regulation 9 is broad. Any public sector body may link to the Premier’s official website and may name, portray or promote the Premier in the Premier’s capacity as Premier. There is no requirement of impartiality or proportionality. This allows government advertising to feature the Premier extensively, as long as the portrayal is in an official capacity. The line between official and partisan can be thin. For example, a communication featuring a quote from the Premier thanking a particular electorate may be seen as official promotion, but could also be interpreted as electioneering. The Regulations provide no guidance on how to distinguish the two.

Third, the prohibition on promoting unfunded projects in regulation 7. It says a public sector communication must not “directly promote” services, activities or infrastructure projects for which funding has not yet been provided. The term “directly promote” is not defined. A general information campaign about a proposed project might be seen as indirect promotion. Conversely, a factual announcement about a project that has received Cabinet approval but not budget appropriation could be caught. Public sector bodies must carefully characterise the purpose of each communication to avoid breaching this standard.

Fourth, the denigration standard in regulation 5(1)(d) prohibits denigration “without grounds”. This introduces a subjective element: what constitutes “grounds”? A fact-based criticism of a private organisation’s poor performance might be grounded; a vague attack might not. The regulation does not specify who judges the grounds or on what evidentiary basis. This uncertainty may chill legitimate public information campaigns that include comparisons, such as public health warnings about the conduct of particular industries.

Fifth, the State purchase contract requirement in regulation 10 may not be as restrictive as it appears. The exceptions in regulation 10(2) are broad: if a media placement is outside the scope of the contract, or is available as an optional service, or no contract is in place, a body can use any supplier. The Secretary’s exemption power in regulation 11 has no published criteria, creating a risk of ad hoc decision making that could favour certain suppliers or communications.

Sixth, the Regulations do not apply to all government communications; they apply only to “public sector communication” under Part 5A. Communications that fall outside Part 5A, such as internal communications, formal legal notices, or ministerial press releases that are not published by a public sector body as such, may not be covered. Practitioners must first confirm that the communication is within Part 5A before applying these Regulations.

Seventh, the sunset on 25 September 2028 is a hard deadline. If no new regulations are made, the prescribed purposes, standards and requirements will lapse, leaving Part 5A without operative definitions. Public sector bodies that rely on these Regulations for compliance will need to monitor the sunset date and any replacement instruments.

Eighth, the absence of a mechanism for public complaints or independent review means that non-compliance may go unaddressed unless it is politically exposed or raised internally.

A public sector body seeking to comply with these Regulations should adopt a three-stage process covering purpose, content, and procurement.

First, determine the public interest purpose. Before any communication is drafted, identify which of the twelve purposes in regulation 4 the communication will serve. The purpose should be recorded in writing. If the communication does not fit any purpose, it cannot be published under Part 5A. If it fits multiple purposes, state the primary purpose. Common purposes include informing the public of policies (regulation 4(a)), promoting behavioural change (regulation 4(b)), encouraging use of services (regulation 4(e)), and recruiting staff (regulation 4(i)). Advocacy for Victoria’s commercial interests (regulation 4(k)) and revenue generation (regulation 4(l)) are also available but may attract more scrutiny.

Second, review content against the seven standards in regulation 5. The communication must contain no reference to a political party, no party slogans, logos or branding. Do not include links to party, candidate or MP websites, but links to MP social media accounts are permitted. Ensure the communication does not denigrate any individual, group or organisation without reasonable grounds. If you are making comparisons or presenting statistics, verify that they are not deliberately inaccurate or misleading. Do not present information as fact unless you can substantiate it with reliable sources. Avoid naming, portraying or promoting any member of Parliament (other than the Premier) in a manner that could be seen as excessive or gratuitous - a vague standard that requires judgment, so err on the side of restraint. If the communication involves the Premier, note that regulation 9 allows promotion in an official capacity, but document why the portrayal is official rather than partisan.

Third, if the communication will be advertised (i.e., paid media placement), check the two advertising standards in regulations 6 and 7. The advertisement must not refer to the State, Parliament or public sector by the name of a political party leader or the party name. It must not directly promote any service, activity or infrastructure project for which funding has not yet been provided. If the project is unfunded, rephrase the advertisement to be informational rather than promotional.

Fourth, for media purchasing, determine whether a relevant State purchase contract exists. If it does, purchase the placement under that contract. If it does not, or if the media format is outside the contract’s scope, or is an optional service, you may use a different contract under the exceptions in regulation 10(2). Document the exception relied upon. If you wish to obtain an exemption from the contract requirement, apply to the Secretary to the Department of Premier and Cabinet, who must consult the Secretary to Treasury before granting an exemption (regulation 11). There is no prescribed form, but a written request identifying the communication and the reasons for the exemption should be provided.

Fifth, maintain a compliance record for each communication, including the public interest purpose, the standard checks, and the procurement method. This record will be essential if the communication is later challenged, whether through internal audit, ministerial inquiry, or parliamentary question.

Sixth, ensure that staff involved in communications are trained on these Regulations. The line between acceptable information and prohibited content is often fine, particularly around the “deliberately” threshold and the “excessive or gratuitous” standard. Internal review processes before publication can reduce risk.

Finally, monitor the sunset date. These Regulations expire on 25 September 2028. Before that date, check whether replacement regulations have been made. If not, Part 5A will operate without prescribed standards, and you will need to rely on the Act’s general provisions or internal policies. Plan for that transition.