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Breaches of the APS Code of Conduct procedures

June 2017

Change history
VersionChangesDate
1.0 Original June 2017
1.1 Updated Word template January 2019

Statement from Agency Head

I, Timothy Pilgrim, Agency Head of the Office of the Australian Information Commissioner, establish these procedures under subsection 15 (3) of the Public Service Act 1999 and the Public Service Amendment Act 2013.

Timothy Pilgrim
Australian Information Commissioner

June 2017

Introduction

The APS Code of Conduct (the Code) sets out the behavioural standards expected of APS employees. The Code is set out in section 13 of the Public Service Act 1999 (PS Act). The PS Act requires the head of each agency to establish procedures for determining whether an employee has breached the Code and what sanction, if any, is to be imposed if a breach is found.

What is a Breach of the Code?

An APS employee whose conduct does not comply with a standard of conduct listed in the Code can be found to have breached the Code. In these procedures, a reference to a breach of the Code includes reference to conduct set out in subsection 15 (2A) of the PS Act in connection with their engagement as an employee.

An APS employee (current or former) whose conduct does not comply with an element of the Code can be found to have breached the Code. Where a provision of the Code contains more than one element, it may not be necessary for a person to have breached all elements in order for a breach of the Code to be determined.

The Code specifies different levels of connectedness between the standard of conduct and APS employment as follows:

  • in connection with employment (more than just in the course of employment)
  • at all times.

‘In connection with APS employment’ is construed broadly and is not confined to performance of the tasks of the job or other conduct in the course of employment. It may include conduct in connection with engagement as an APS employee (such as knowingly providing false or misleading information) and conduct outside the normal workplace and normal working hours (such as at social events endorsed by the employer).

Not all suspected breaches of the Code will be the subject of formal action. Depending on the seriousness of the conduct, the employee’s history and an assessment of whether the incident is likely to be an isolated one, counselling or a warning may be more appropriate.

Application and availability of procedures

All APS employees, agency heads and statutory office holders are subject to the Code.

These procedures apply when determining whether a person who is an APS employee in the OAIC, or who is a former APS employee who was employed in the OAIC at the time of the suspected misconduct, has breached the Code.

These procedures also apply when determining any sanction to be imposed on an employee in the OAIC who has been found to have breached the Code.

As provided for in subsection 15 (7) of the PS Act, these procedures are made available on the OAIC’s intranet.

Decision-maker and sanction delegate

As soon as practical after a suspected breach of the Code has been identified and the Information Commissioner or delegate has decided to deal with the suspected breach under these procedures, the Information Commissioner or delegate will appoint an independent person (decision maker) to make a determination.

The role of the decision maker is to determine in writing whether a breach of the Code has occurred.

The decision maker may seek the assistance of an investigator with matters including investigating the alleged breach, gathering evidence and making a report of recommended factual findings to the decision maker.

The person who is to decide what, if any, sanction is to be imposed must hold a delegation of the power under the PS Act to impose sanctions (the sanction delegate).

The decision maker who makes the determination may also be the sanction delegate in the same matter, where they have the relevant delegation under section 15 and/or 29 of the PS Act.

Independence

The decision maker and the sanction delegate must be, and must appear to be, independent and unbiased. They should have no previous reporting responsibilities in relation to the matters raised in the suspected breach.

They must advise the Information Commissioner in writing if they consider that they may not be independent and unbiased, or if they consider that they may reasonably be perceived not to be independent and unbiased, for example if they are a witness in the matter.

Suspension and temporary reassignment of duties

Section 28 of the PS Act and regulation 3.10 of the Public Service Regulations (the Regulations) set out the legislative basis for suspending an employee who is suspected of having breached the Code. Employees may be suspended with or without pay if the Information Commissioner or delegate believes on reasonable grounds that an employee has breached the Code and where suspension is in the public or the OAIC’s interest.

As an alternative to suspension, the Information Commissioner or delegate may decide that it is more appropriate to temporarily reassign the employee’s duties.

Determination process

The process for determining whether a person has breached the Code must be carried out with as little formality and as much expedition as a proper consideration of the matter allows.

The process must be consistent with the principles of procedural fairness.

A determination may not be made in relation to a suspected breach of the Code by a person unless reasonable steps have been taken to:

Inform the person of:

  • the details of the suspected breach of the Code (including any subsequent variation of those details)
  • the sanctions that may be imposed on them under subsection 15 (1) of the PS Act, and give the person reasonable opportunity to make a written statement, or provide further evidence in relation to the suspected breach, within seven calendar days or any longer period that is allowed.

A person who does not make a statement in relation to the suspected breach is not, for that reason alone, to be taken to have admitted to committing the suspected breach.

For the purpose of determining whether an employee has breached the Code, a formal hearing is not required.

Where the decision maker conducts a meeting or interview with the person suspected of breaching the Code and they request to have a support person present and it is considered reasonable in the circumstances, this request should be granted.

Sanctions

Sanctions are intended to be proportionate to the nature and seriousness of any breach. A sanction cannot be imposed unless it has been determined that a breach has occurred. More than one sanction may be imposed.

The process for deciding on sanction must be consistent with the principles of procedural fairness.

If a sanction is to be imposed on an employee, the employee must be given a written statement setting out:

  • the determination
  • the sanction or sanctions that are under consideration, and
  • the factors that are under consideration in determining any sanction to be imposed, and
  • be given reasonable opportunity to make a written statement in relation to sanctions under consideration within seven calendar days, or any longer period that is allowed by the sanction delegate. The sanction delegate may decide to give the employee the opportunity to make both a written and oral statement.

The Information Commissioner or delegate may impose the following sanctions where an employee is found to have breached the Code:

  • termination of employment
  • reduction in classification
  • re-assignment of duties
  • reduction in salary
  • deductions from salary, by way of fine, or
  • a reprimand.

Sanctions may not be imposed by the OAIC on former employees.

Record of determination and sanction

If a determination in relation to a suspected breach of the Code by an employee in the OAIC is made, a written record must be made of:

  • the suspected breach
  • the determination
  • any sanctions imposed as a result of a determination that the employee has breached the Code, and
  • If a statement of reasons was given to the employee in relation to the determination and/or the sanction decision — that statement of reasons.

Records relating to misconduct should not be placed on the employee’s personal file but kept on a separate misconduct file and held in secure storage.

The Archives Act 1983 and the Privacy Act 1988 apply to OAIC records.

Moving to a different agency or resignation

Movement between agencies (including on promotion) for employees suspected of a breach of the Code will not take effect until the matter is resolved, unless agreed by the respective Agency Heads.

Resolution is by:

  • a determination being made, or
  • a decision that a determination is not necessary.

Should the Agency Heads agree to a move prior to the resolution of a suspected breach of the Code, the receiving agency may continue an investigation and/or impose a sanction based on the former agency’s investigation.

Where an employee resigns during the course of an investigation the Information Commissioner or delegate may choose, depending on the circumstances, to discontinue the process.

Review rights

Non-SES employees who have been found to have breached the Code and who wish to challenge either the determination that a breach has occurred or the sanction imposed (except in the case of termination) may lodge an application under Division 5.3 of the Regulations. Making an application for review does not stay the action.

An application for review of a determination that an employee has breached the Code or a sanction imposed as a result of the breach must be made to the Merit Protection Commissioner, as required by Regulation 5.24(2).

An application for review of any other action that relates to a person’s APS employment, including suspension, would generally in the first instance be made to the Information Commissioner or delegate (see Regulation 5.24(1), and section 33 of the PS Act).

An employee who has been dismissed may have the right under the unfair dismissal provisions of the Fair Work Act 2009 for a remedy.

The PS Act contains other provisions that enable an inquiry to be commenced into an alleged breach of the Code by an APS employee or former APS employee, and a determination made. Section 41B provides that an inquiry may be undertaken by the Australian Public Service Commissioner at the request of the Information Commissioner or the Prime Minister. Section 50A provides that an inquiry may be undertaken by the Merit Protection Commissioner at the request of the Information Commissioner and with the agreement of the APS employee or former employee.

Criminal matters

Where an employee has been charged with a criminal offence (including in relation to activity occurring in a person’s private life), the Information Commissioner may decide that it is appropriate to investigate the matter as a possible breach of the Code. The Commissioner may decide on this course of action if the person’s conduct relates to behaviour that could have an impact on the person’s ability to maintain honesty and integrity in their APS employment, is otherwise inconsistent with the APS Values, or is likely to damage the integrity and/or good reputation of the APS.

References

Public Service Act 1999

Public Service Amendment Act 2013

Public Service Regulations 1999

Australian Public Service Commissioner’s Directions 2016

APS Values and Code of Conduct in Practice

Public Interest Disclosure procedures