Breaches of the APS Code of Conduct procedures

Publication date: April 2021

Statement from Agency Head

I, Angelene Falk, Agency Head of the Office of the Australian Information Commissioner, establish these procedures under subsection 15(3) of the Public Service Act 1999 (the PS Act).

These procedures commence on 26 November 2020.

These procedures supersede the previous procedures made under subsection 15(3) of the PS Act, and apply, from their date of commencement, to all new and ongoing processes for determining breaches of the APS Code of Conduct and for determining sanction.

Angelene Falk

Australian Information Commissioner

November 2020

 

Introduction

  1. 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.

Application of procedures

  1. These procedures apply when determining whether a person who is an APS employee in the Office of the Australian Information Commissioner (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.

Note: These procedures give effect to the relevant provisions of the Australian Public Service Commissioner’s Directions 2016 about the procedural requirements for dealing with suspected breaches of the Code; see Part 5 of the Australian Public Service Commissioner’s Directions 2016.

  1. 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.
  2. 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 APS employee.

Availability of procedures

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

Initial decision-maker – initiation of Code process

  1. As soon as practical after a suspected breach of the Code has been identified the matter must be brought to the attention of the Deputy Commissioner by a member of the Executive. Where a staff member receives a complaint that may constitute a breach of the Code, they must discuss the matter with the relevant Assistant Commissioner, Principal Director or Principal Lawyer.
  2. The Deputy Commissioner will decide whether to deal with the suspected breach under these procedures (the initial decision-maker).

Note: There is no procedural fairness obligation to provide any employee an opportunity to comment before deciding to initial an inquiry under these procedures.

  1. Where the conduct of an APS employee raises concerns that relate both to effective performance and possible breaches of the Code, the initial decision maker must, before making a decision to initiate an inquiry under these procedures, have regard to any relevant standards and guidance issued by the Australian Public Service Commissioner.

Note: Not all suspected breaches of the Code need to be dealt with by way of determination under these procedures. In particular circumstances, another way of dealing with a suspected breach of the Code may be more appropriate.

Note: Section 40 of the Australian Public Service Commissioner’s Directions 2016 provides that where conduct of an APS employee raises concerns that relate both to effective performance and possible breaches of the Code, the Agency Head must, before making a decision to initiate an inquiry under procedures established by the Agency Head under subsection 15(3) of the PS Act, have regard to any relevant standards and guidance issued by the Commissioner. The standards and guidance are set out in the Australian Public Service Commission, Handling misconduct: a human resource manager’s guide (9 June 2015), paras 5.1.5 – 5.1.9.

Breach decision-maker

  1. Where the initial decision-maker decides to initiate an inquiry under these procedures, they may authorise any independent person to determine in writing whether a breach of the Code has occurred (the breach decision-maker).

10. These procedures do not prevent the initial decision-maker from being the breach decision-maker in the same matter.

Sanction delegate

11. The person (the sanction delegate) who is to decide what, if any, sanction is to be imposed on an APS employee who is found to have breached the Code must be the Information Commissioner or hold a delegation of the powers under the PS Act to impose sanctions.

12. These procedures do not prevent the initial decision-maker or the breach decision-maker from being the sanction delegate in the same matter.

Independence

13. The breach decision-maker and the sanction delegate must be, and must appear to be, independent and unbiased.

14. They must advise the initial decision-maker 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

15. Section 28 of the PS Act and regulation 3.10 of the Public Service Regulations (the Regulations) set out the criteria and procedural requirements for suspending an APS employee who is suspected of having breached the Code.

16. 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

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

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

Note: Procedural fairness generally requires that:

  • The person suspected of breaching the Code is informed of the case against them (i.e. any material that is before the decision-maker that is credible, relevant and significant in relation to any proposed findings or decision adverse to the person or their interests)
  • The person is provided with a reasonable opportunity to respond and put their case, in accordance with these procedures, before any decision is made on breach or sanction
  • The decision-maker acts without bias or an appearance of bias
  • There is logically probative evidence to support the making, on the balance of probabilities, of adverse findings.

19. The breach decision-maker may undertake an investigation or seek the assistance of an investigator. The investigator may investigate the alleged breach, gather evidence and make a report of recommended factual findings to the breach decision-maker and provide any other assistance requested by the breach decision-maker.

Note: The breach decision-maker is responsible for independently finding what conduct the employee engaged in and for determining whether or not that conduct was in breach of the Code.

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

Note: A person may make a statement in relation to the suspected breach within seven calendar days of a preliminary decision, or any longer period that is allowed by the breach decision-maker. The breach decision-maker may also allow the person to make an oral statement within the same seven day period, or any other specified period, on whatever conditions the decision-maker considers reasonably, including requiring that an oral statement be recorded and that the statement be given at a particular time and place.

Note: This clause is designed to ensure that by the time the breach decision-maker comes to make a determination, reasonable steps have been taken for the person suspected of breach to be informed of the case against them. It will generally also be good practice (but not a legal obligation) to give the person notice at an early stage in the process of a summary of the details of the suspected breach that are available at that time and notice of the elements of the Code that are suspected to have been breached.

21. 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.

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

23. The breach decision-maker (or the person assisting the breach decision-maker, if any) may agree to a request made by the person who is suspected of breaching the Code to have a support person present in a meeting or interview they conduct. The breach decision-maker (or the person assisting) can restrict the role of support person as considered appropriate, including making clear that the support person cannot act as a representative.

Note: A breach decision-maker should ensure that they also conform to any procedural requirements to which an employee suspected of breaching the Code is legally entitled under their terms and conditions of employment such as under an enterprise agreement.

Sanctions

24. The sanction delegate’s role will commence after a breach determination is made. The role of the sanction delegate is to determine in writing what, if any, sanction or sanctions should be imposed on an APS employee for a breach of the Code.

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

26. If a determination is made that an APS employee has breached the Code, a sanction may not be imposed on the employee unless reasonable steps have been taken to: 

  1. inform the employee of:
    1. the breach determination that has been made; and
    2. the sanction or sanctions that are under consideration, and
    3. the factors that are under consideration in determining any sanction to be imposed, and
  2. give the employee a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration.

27. A written statement may be made in relation to any sanction under consideration within seven calendar days of a preliminary decision, or any longer period that is allowed by the sanction delegate. The sanction delegate may decide to give the employee the opportunity to make an oral statement within the same seven day period on whatever conditions the sanction delegate considers reasonable, including requiring that an oral statement be recorded and that the statement be given at a particular time and place.

28. The sanction delegate may agree to a request made by the person determined to have breached the Code to have a support person when making an oral statement. The sanction delegate can restrict the role of the support person as considered appropriate, including making clear that the support person cannot act as a representative.

Note: Where a sanction of termination of employment is under consideration the sanction delegate should not unreasonably refuse to allow the employee to have a support person present to assist at any discussion relating to termination to ensure that any termination of employment will not be found unfair by the Fair Work Commission because of any such refusal: s 387(d) of the Fair Work Act 2009. A sanction delegate should ensure that they also conform to any procedural requirements to which to which an employee is legally entitled under their terms and conditions of employment such as under an enterprise agreement.

29. The sanction delegate may impose one or more of 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, of no more than 2% of an employee's annual salary or
  • a reprimand.

30. The sanction delegate may also decide to impose no sanction.

31. Sanctions may not be imposed on former employees.

Record of determination and sanction

32. If a determination in relation to a suspected breach of the Code 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.

33. 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.

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

Advice to complainants

35. Advice to complainants about the outcomes of investigations into alleged breaches of the Code will be consistent with the requirements of the Privacy Act and any applicable guidance from the Australian Public Service Commission.

Moving to a different agency or resignation

36. This paragraph applies if:

  1. an ongoing APS employee in the OAIC  is suspected of having breached the Code
  2. the employee has been informed of the details of the suspected breach
  3. the matter to which the suspected breach relates has not yet been resolved, and
  4. a decision has been made that, apart from this clause, would result in the employee moving to another Agency (including on promotion) under section 26 of the PS Act.

37. 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.

38. Resolution is by:

  • a determination being made as to whether or not the APS employee has breached the Code, or
  • a decision that a determination is not necessary.

39. 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, determine whether or not the APS employee has breached the Code and/or impose a sanction based on the former agency’s investigation.

40. Where an employee resigns during the course of an investigation the Information Commissioner or delegate may choose, depending on the circumstances, to discontinue or continue the process to determine whether or not the APS employee has breached the Code.

Review rights

41. 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 PS Regulations. Making an application for review does not stay the action.

42. 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). Time limits apply.

43. An employee who has been dismissed may have remedies under the Fair Work Act 2009, or other Commonwealth laws.

Criminal matters

44. Where an employee has been charged with a criminal offence (including in relation to activity occurring in a person’s private life), the initial decision-maker may decide that it is appropriate to investigate the matter as a possible breach of the Code.

References

Public Service Act 1999

Public Service Regulations 1999

Australian Public Service Commissioner’s Directions 2016

APS Values and Code of Conduct in Practice

Australian Public Service Commission, Handling misconduct: a human resource manager’s guide