Office of the Australian Information Commissioner - Home

Australian Government - Office of the Australian Information Commissioner
Australian Government - Office of the Australian Information Commissioner

Main menu

Breaches of the APS Code of Conduct procedures

For the Office of the Australian Information Commissioner
October 2013

Change history
VersionChangesDate
0.1 Draft from Human Resources 26 September 2013
0.2 Revised draft from OAIC 3 October 2013
0.3 Clearance from Human Resources 3 October 2013
0.4 Review by Australian Information Commissioner 3 October 2013
1.0 Final for signature by Australian Information Commissioner 17 October 2013

Statement from Agency Head

I, John McMillan, 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.

[signature redacted]

John McMillan
Australian Information Commissioner

October 2013

Back to Contents

Introduction

The APS Code of Conduct (the Code) sets out the standards of conduct required of APS employees. The Code is set out in section 13 of the Public Service Act 1999 (PS Act) and is at Attachment A to these procedures.

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. An APS employee may also be found to have breached the Code if the person engaged in conduct set out in subsection 15 (2A) of the PS Act in connection with engagement as an employee. Subsection 15(2A) is at Attachment B.

The PS Act requires the head of each agency to establish procedures for determining if an employee has breached the Code. Staff should also refer to the APSC website for additional resources.

The procedures must comply with basic procedural requirements contained in the APS Commissioner's Directions and must have due regard to procedural fairness and standards of proof.

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.

Back to Contents

Application and availability of procedures

All APS employees, Agency Heads and statutory office holders are subject to the Code. However, the application of the Code to an ‘information officer' as defined in the Australian Information Commissioner Act 2010 s 6 must be undertaken consistently with the provisions of that Act relating to the functions, powers and responsibilities of an information officer.

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 publicly available on the OAIC's website.

Back to Contents

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.

Back to Contents

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.

Back to Contents

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 agency 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.

Back to Contents

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:

  1. Inform the person of:
    1. The details of the suspected breach of the Code (including any subsequent variation of those details); and
    2. the sanctions that may be imposed on them under subsection 15(1) of the PS Act;

and

  1. 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 is conducting a meeting or interview with a 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.

Back to Contents

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:

  1. Be given a written statement setting out:
    1. the determination
    2. the sanction or sanctions that are under consideration
    3. the factors that are under consideration in determining any sanction to be imposed; and
  2. Be given reasonable opportunity to make a written statement in relation 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
  • reprimand.

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

Back to Contents

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:

  1. the suspected breach; and
  2. the determination; and
  3. any sanctions imposed as a result of a determination that the employee has breached the Code; and
  4. 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.

Back to Contents

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 Agency Heads.

Resolution is by:

  1. a determination being made; or
  2. 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.

Back to Contents

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.

Back to Contents

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.

Back to Contents

References

Back to Contents

Attachment A — Australian Public Service Code of Conduct, Employment Principles and Values

Code of Conduct

The Code of Conduct requires that an employee must:

  • behave honestly and with integrity in connection with APS employment
  • act with care and diligence in connection with APS employment
  • when acting in connection with APS employment, treat everyone with respect and courtesy, and without harassment
  • when acting in connection with APS employment, comply with all applicable Australian laws
  • comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction
  • maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff
  • disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment
  • use Commonwealth resources in a proper manner
  • not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment
  • not make improper use of
    1. inside information
    2. the employee's duties, status, power or authority
    in order to gain, a benefit or advantage for the employee or for any other person
  • at all times behave in a way that upholds the APS Values and Employment Principles, and the integrity and good reputation of the employee's Agency and the APS
  • while on duty overseas, at all times behave in a way that upholds the good reputation of Australia
  • comply with any other conduct requirement that is prescribed by the regulations.

Employment Principles

The APS is a career based service that:

  • Makes fair employment decisions with a fair system of review; and
  • Recognizes that the usual basis for engagement is as an ongoing APS employee; and
  • Makes decisions relating to engagement and promotion that are based on merit; and
  • Requires effective performance from each employee; and
  • Provides flexible, safe and rewarding workplaces where communication, consultation, cooperation and input from employees on matters that affect their workplaces are valued; and
  • Provides workplaces that are free from discrimination, patronage and favouritism; and
  • Recognizes the diversity of the Australian community and fosters diversity in the workplace.

Values

Impartial – The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.

Committed to Service – The APS is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Australian community and the Government.

Accountable – The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.

Respectful – The APS respects all people, including their rights and their heritage.

Ethical – The APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does.

Agency Heads are bound by the Code of Conduct in the same way as APS employees and have an additional duty to promote the APS values.

Back to Contents

Attachment B — Public Service Act 1999

PART 3–THE AUSTRALIAN PUBLIC SERVICE

Section 15      Breaches of the Code of Conduct

(2A) A person who is, or was, an APS employee is taken to have breached the Code of Conduct if the person is found (under procedures established under subsection (3) of this section or subsection 41B(3) or 50A(2)) to have, before being engaged as an APS employee:

  1. knowingly provided false or misleading information to another APS employee, or to a person acting on behalf of the Commonwealth; or
  2. wilfully failed to disclose to another APS employee, or to a person acting on behalf of the Commonwealth, information that the person knew, or ought reasonably to have known, was relevant; or
  3. otherwise failed to behave honestly and with integrity;

in connection with the person's engagement as an APS employee.

Note: If the person is an APS employee at the time a finding referred to in paragraph (2A)(a), (b) or (c) is made in relation to the person, the Agency Head of the employee's Agency may impose sanctions on the person as permitted by subsection (1).

Back to Contents

This page makes up a part of the OAIC Information Publication Scheme IPS