Public Service Act 1999 Advice No. 23: Transitional provisions for dealing with pre-commencement misconduct

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Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.

Introduction

This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). It is proposed that the new legislation will come into operation on 5 December 1999 and the information contained in this advice will take effect on commencement of the legislation.

2 The purpose of this advice is to transmit legal advice received from the Australian Government Solicitor on the management of misconduct that occurred prior to 5 December 1999 and in respect of which no charges have been laid before 5 December 1999.

Background

3 The PSMPC sought advice from the Australian Government Solicitor (AGS) as to whether further clarification was needed of the transitional arrangements which are to apply in respect of misconduct which occurred during the period in question. The advice from AGS is set out in the attachment to this advice.

Related advice

4 If you have any enquiries about the attachment, please contact Tom Howe (02 6246 1256) or Joan Bonsey (02 6246 1233) at AGS.

5 Related advices deal with

Breaches of the Code of Conduct and
the APS Values and Code of Conduct.

The contact for more general questions about breaches of the Code of Conduct is the PSMPC Helpline (02 6202 3859) or email: psact@apsc.gov.au

Jenny Harrison
Team Leader
Values, Conduct and Diversity Team

19 November 1999

Aust Govt Solicitor logo

Our ref: 99006972

11 November 1999

Ms Mary-Ann Moore
Public Service and Merit Protection Commission
Edmund Barton Building
Core 1, Kings Avenue
Barton ACT 2600

Dear Ms Moore

Transitional provisions for dealing with pre-commencement misconduct

1. You have sought our advice as to whether there is any need for clarification of the transitional arrangements which are to apply in respect of conduct engaged in by public servants prior to commencement of the Public Service Act 1999 ('the new Act'). The new Act is scheduled to commence operation on 5 December 1999. Until the new Act comes into operation, the existing provisions of the Public Service Act 1922 ('the old Act') will, of course, continue to apply.

2. Our short advice is that the transitional arrangements contained in the Public Employment (Consequential and Transitional) Amendment Act 1999 ('the Transitional Act'), as explained in the accompanying Explanatory Memorandum, are satisfactory as a legal framework. However, agencies may benefit from some explanation from the Commission as to the special status of pre-commencement conduct to ensure valid decision-making in relation thereto.

The legislative framework

3. Section 15 of the new Act permits an Agency Head to impose sanctions on an employee who is found, under an Agency Head's procedures, to have breached the Code of Conduct. The 'Code of Conduct' is defined in section 7 of the new Act to mean the rules set out in section 13 ('the new Code'). We note that the new Code corresponds to the matters presently contained in Public Service Regulation 7 (save for Public Service Regulation 7(13) which deals with non-disclosure of official information). We shall refer to the requirements of Public Service Regulation 7 as 'the old Code'.

4. Returning to subsection 15(1) of the new Act, it is clear that pre-commencement conduct could not constitute an actual breach of the new Code because the new Code would not, at the relevant time, have been in existence. With the repeal of the old Act, it was obviously necessary to set in place some transitional arrangements in respect of pre-commencement conduct, otherwise there would be no regime in place for dealing with same.

5. Section 10 of the Transitional Act prescribes transitional arrangements in relation to pre-commencement misconduct in respect of which no charge was laid under the old Act before the new Act commences operation. Transitional arrangements in respect of pre-commencement misconduct which is the subject of a charge before the new Act commences operation will be dealt with in Regulations, for which specific provision is made in subsection 14(3)(a)(ii) of the Transitional Act.

6. Section 10 of the Transitional Act provides as follows:

An Agency Head may, under section 15 of the new Act, impose the same sanctions on an APS employee in the agency for pre-commencement misconduct as the Agency Head could have imposed on the employee for that conduct under that section if the conduct had happened after the commencing time.
Subsection (1) does not apply to conduct for which a person was charged under the old Act before the commencing time.
For the purposes of this section, the procedures referred to in section 15 of the new Act apply in determining whether:
1. conduct was misconduct for the purposes of Subdivision C, D or E of Division 6 of Part III of the old Act; and
2. conduct would have been a breach of the Code of Conduct if the conduct had happened after the commencing time.'

7. The Explanatory Memorandum accompanying the Transitional Act explains the transitional arrangements as follows:

'The transitional arrangements in relation to misconduct before the PS Bill commences will be as follows:

where an APS employee was charged before this Bill commences and the charge was dealt with to finality: no action will be possible under the PS Bill;

where an APS employee was charged before the commencement of the PS Bill and the charge was not dealt with to finality: transitional regulations will be made to enable the matter to be completed under 1922 PSA; and

where an APS employee was not charged before the commencement of the PS Bill: the Agency Head will be able to impose the same sanctions as are allowed under the PS Bill provided that the conduct was both misconduct under the 1922 PSA and a breach of the new Code of Conduct' (emphases added).

8. The italicised words in the EM, at first blush, appear to deal with a matter not expressly dealt with in section 10 of the Transitional Act. However, the reference to 'pre-commencement misconduct' in subsection 10(1) is defined in section 4 of the Transitional Act to mean:

'conduct of an old Act officer or old Act employee before the commencing time that was misconduct for the purposes of Subdivision C, D or E of Division 6 of Part III of the old Act.'

9. This makes clear that pre-commencement conduct can only attract the imposition of a penalty under section 15 of the Act if each of two conditions is satisfied:

such pre-commencement conduct amounts to pre-commencement misconduct under the old Act;
such pre-commencement conduct would amount to a breach of the new code if it had been engaged in after the commencing time.

10. Subsection 10(3) of the Transitional Act then comes into play. It requires that fulfilment of each of these conditions is to be determined by application of an Agency Head's procedures established under subsection 15(3) of the new Act.

11. Thus, imposition of a sanction under section 15 in respect of pre-commencement conduct (which is not the subject of a disciplinary charge @ 5.12.99) should only occur where an Agency Head, or delegate thereof, is satisfied of each of the two abovementioned conditions. Such a requirement will not appear from the Commissioner's Directions, or from an Agency Head's Procedures, because each of these documents is directed to determining whether a breach of the new Code has occurred (pre-commencement conduct cannot actually constitute a breach of the new Code). Accordingly, the Commission may wish to give consideration to disseminating an explanatory circular to Agency Heads to ensure valid decision-making in this area.

12. In relation to pre-commencement misconduct in the period 15 March 1998 to 4 December 1999, few problems are likely to arise because the old Code and the new Code are virtually identical (save for PS Regulation 7(13)): in that period a breach of the old Code, save for PS Regulation 7(13), would necessarily amount to a breach of the new Code if such conduct had occurred after the commencing time (and vice versa).

13. In relation to pre-commencement conduct engaged in prior to 15 March 1998, an Agency Head (or delegate) would have to consider the provisions of section 56 of the old Act (including the Regulations in force thereunder at the time of such conduct: see paragraph 56(f)(i)). Whilst it is difficult to imagine a circumstance in which misconduct under the old Act would not also amount to a breach of the new Code (and vice versa), section 10 of the Transitional Act expressly contemplates such a possibility. Significantly, the issue is one which must be addressed before a sanction is imposed for pre-commencement conduct

. 14. If we can be of further assistance please do not hesitate to contact us on 62461256.

Yours sincerely

Tom Howe
Deputy General Counsel
Australian Government Solicitor

Tel: 02 62461256
Fax: 02 62461271
E-mail: tom.howe@ags.gov.au