Public Service Act 1999 Advice No. 28: Application of the APS Code of Conduct to certain statutory office holders

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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 advise agencies that certain statutory office holders who are not Agency Heads but who work with APS employees from 5 December 1999 will be bound by the APS Code of Conduct when supervising APS employees.

3 This advice was foreshadowed in para 12 of Advice Number 4, APS Values and Code of Conduct.

Background

4 Under the Public Service Act 1922 (old PS Act) there were no legislative provisions which bound statutory office holders to uphold explicit standards of conduct. There was, however, a government decision following the release of the Report of the Committee of Inquiry Concerning Public Duty and Private Interest (the Bowen Report) that is relevant. As noted in the Guidelines on Official Conduct of Commonwealth Public Servants (pages 60-61), the principles contained in the Report's proposed Code of Conduct (the "Bowen Code") were endorsed by the then Government to apply to ministers of state and their staff, members of the Defence Forces, public servants and statutory office holders The Code consists of ten principles designed to promote the avoidance of conflicts of interests, financial or otherwise, and provides a basis for their resolution where necessary.

5 A copy of the Bowen Code Principles for the avoidance and resolution of conflicts of interests is attached (Attachment 1).

Changes under the new legislation

6 The new PS Act provides that Agency Heads and certain statutory office holders, as prescribed by the regulations, are bound by the Code of Conduct in the same way as APS employees (section 14). This means that Agency Heads and these office holders will be required to uphold the same standards of conduct, which are contained in the APS Code of Conduct at section 13 of the Act, as are required of APS employees. (For convenience, a copy of the APS Code of Conduct is also attached to this Advice at Attachment 2).

7 It is expected that a regulation will be made which will describe the particular class of non-Agency Head statutory office holders who will be bound by the APS Code of Conduct. It is likely that they will be defined as persons who meet several criteria:

they are not APS Agency Heads;
they do not hold a judicial office or appointment;
they are engaged, employed or appointed under a Commonwealth Act;
they are not APS employees; and
they are acting in relation to the exercise of their direct or indirect supervisory duties in relation to APS employees.

8 It is suggested that agencies examine the legislation with which they are involved and determine whether there are office holders who would be covered when supervising APS employees. An indicative list of statutory office holders who may be covered by the APS Code of Conduct when supervising APS employees is attached at Attachment 3. It is important that prescribed statutory office holders with supervisory duties in relation to APS employees are advised by the relevant Agency of the application of the APS Code of Conduct to them when they are exercising those supervisory duties.

9 Since there is no change in the Government's position in relation to the application of the Bowen Code Principles, it is important that agencies also continue to advise statutory office holders of their obligations in relation to these Principles.

10 In addition, it is expected that the Merit Protection Commissioner will have an additional function, as prescribed by regulation under ss 50(1)(e), of inquiring into applications by non-SES employees concerning an action taken by a prescribed statutory office holder that relates to the employee's APS employment. It is intended that the Merit Protection Commissioner will be able to investigate the matter as if it were a reviewable action under s.33, with the Merit Protection Commissioner also having some limited reporting powers to the relevant Agency Minister.

Related advice

11 This advice should be read in conjunction with Advice Number 4, APS Values and Code of Conduct.

12 The PSMPC contact in the first instance is the PSMPC Helpline on 02 6202 3859 and email psact@apsc.gov.au

Jenny Harrison
Team Leader
Values, Conduct and Diversity Team

29 November 1999

Attachment 1: Code of conduct proposed by the Report of the Committee of Inquiry concerning public duty and private interest (the Bowen Report)

Principles for the avoidance and resolution of conflicts of interest

1. An officeholder should perform the duties of his office impartially, uninfluenced by fear or favour.

2. An officeholder should be frank and honest in official dealings with colleagues.

3. An officeholder should avoid situations in which his private interest, - whether pecuniary or otherwise, conflicts or might reasonably be thought to conflict with his public duty.

4. When an officeholder possesses, directly or indirectly, an interest which conflicts or might reasonably be thought to conflict with his public duty, or improperly to influence his conduct in the discharge of his responsibilities in respect of some matter with which he is concerned, he should disclose that interest according to the prescribed procedures. Should circumstances change after an initial disclosure has been made, so that new or additional facts become material, the officeholder should disclose the further information.

5. When the interests of members of his immediate family are involved, the officeholder should disclose those interests, to the extent that they are known to him.

6. When an officeholder (other than a Member of Parliament) possesses an interest which conflicts or might reasonably be thought to conflict with the duties of his office and such interest is not prescribed as a qualification for that office, he should forthwith divest himself of that interest, secure his removal from the duties in question, or obtain the authorisation of his superior or colleagues to continue to discharge the duties.

7. An officeholder should not use information obtained in the course of official duties to gain directly or indirectly a pecuniary advantage for himself or for any other person.

8. An officeholder should not:

solicit or accept from any person any remuneration or benefit for the discharge of the duties of his office over and above the official remuneration;
solicit or accept any benefit, advantage or promise of future advantage , whether for himself, his immediate family or any business concern or trust with which he is associated from persons who are in, or seek to be in, any contractual or special relationship with government;
except as may be permitted under the rules applicable to his office, l accept any gift, hospitality or concessional travel offered in connection with the discharge of the duties of his office

9. An officeholder should be scrupulous in his use of public property and services, and should not permit their misuse by other persons.

10. An officeholder should not allow the pursuit of his private interest to interfere with the proper discharge of his public duties.

Attachment 2: APS Code of Conduct

1.An APS employee must behave honestly and with integrity in the course of APS employment.

2.An APS employee must act with care and diligence in the course of APS employment.

3.An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.

4.An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means:

any Act (including this Act), or any instrument made under an Act; or
any law of a State or Territory, including any instrument made under such a law.

5.An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction.

6.An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff.

7.An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.

8.An APS employee must use Commonwealth resources in a proper manner.

9.An APS employee must 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.

10.An APS employee must not make improper use of:

inside information; or
the employee's duties, status, power or authority; in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.

11.An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.

12.An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.

13.An APS employee must comply with any other conduct requirement that is prescribed by the regulations.

Section 13 Public Service Act 1999

An APS employee, except in the course of his or her duties as an APS employee or with the Agency Head's express authority, must not give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.

Proposed Public Service Regulation

Attachment 3: Statutory office holders who may be covered by the APS Code of Conduct

PORTFOLIO	AGENCY/BODY	LEGISLATIVE REFERENCE
Agriculture, Fisheries & Forestry	National Registration Authority for Agricultural and Veterinary Chemicals	Agricultural and Veterinary Chemicals (Administration) Act 1992 s.13, s.14 and s.46
Attorney-General	Administrative Appeals Tribunal	Administrative Appeals Tribunal Act 1975 s. 6 and s.24N
Attorney-General	Classification Review Board	Classification (Publications, Film and Computer Games) Act 1995 s.54
Attorney-General	Copyright Tribunal	Copyright Act 1968 s.138, s.139 and s.170
Attorney-General	Human Rights and Equal Opportunity Commission	Human Rights and Equal Opportunity Commission Act 1986 s.8
Attorney-General	National Crime Authority	National Crime Authority Act 1984 s.7
Attorney-General	National Native Title Tribunal	Native Title Act 1993 s.110 and s.130
Attorney-General	Office of Parliamentary Counsel	Parliamentary Counsel Act 1970 s.4
Attorney-General	Privacy Advisory Committee	Privacy Act 1988 s.82
Attorney-General	Special Prosecutor	Special Prosecutors Act 1982 s.5 and s.18
Communications, Information Technology and the Arts	Australian Broadcasting Authority	Broadcasting Services Act 1992 s.155 and s.165
Communications, Information Technology and the Arts	Australian Communications Authority	Australian Communications Authority Act 1997 s.16, s.17
Communications, Information Technology and the Arts	Australian National Maritime Museum	Australian National Maritime Museum Act 1990 s.17 and s.41
Communications, Information Technology and the Arts	National Library of Australia	National Library Act 1960 s.10
Communications, Information Technology and the Arts	National Museum of Australia	National Museum of Australia Act 1980 s.13 and s.31
Defence	Defence Housing Authority	Defence Housing Authority Act 1987 s.12 and s.57
Education & Youth Affairs	Australian National Training Authority	Australian National Training Authority Act 1992 s.24 and s.46
Employment, Workplace Relations & Small Business	Australian Industrial Registry	Workplace Relations Act 1996 s.75
Employment, Workplace Relations & Small Business	Australian Industrial Relations Commission	Workplace Relations Act 1996 s.8
Employment, Workplace Relations & Small Business	National Occupational Health and Safety Commission	Industrial Chemicals (Notification and Assessment) Act 1989 s..90
Employment, Workplace Relations & Small Business	National Occupational Health and Safety Commission	National Occupational Health and Safety Commission Act 1985 s.10, s.54
Environment & Heritage	Australian Heritage Commission	Australian Heritage Commission Act 1975 s.12 and s.33
Environment & Heritage	Great Barrier Reef Marine Park Authority	Great Barrier Reef Marine Park Act 1975 s.10 and s.42
Family & Community Services	Australian Institute of Family Studies	Family Law Act 1975 s.114C
Family & Community Services	Commonwealth Services Delivery Agency	Commonwealth Services Delivery Agency Act 1997 s.36
Finance & Administration	Australian Electoral Commission	Commonwealth Electoral Act 1918 s.6
Finance & Administration	Commonwealth Grants Commission	Commonwealth Grants Commission Act 1973 s.8 and s.15
Finance & Administration	Ministerial Consultants - when working in APS agencies	Members of Parliament (Staff) Act 1984 s.4
Foreign Affairs & Trade	Australian Centre for International Agricultural Research	Australian Centre for International Agricultural Research Act 1982 s.8 and s.31
Health & Aged Care	Australia New Zealand Food Authority	Australia New Zealand Food Authority Act 1991 s.40 and s.38
Health & Aged Care	Australian Hearing Services	Australian Hearing Services Act 1991 s.15 and s.68
Health & Aged Care	Australian Institute of Health and Welfare	Australian Institute of Health and Welfare Act 1987 s.8
Health & Aged Care	Australian Radiation Protection and Nuclear Safety Agency	Australian Radiation Protection and Nuclear Safety Act 1998 s.21, s.24, s.27
Health & Aged Care	Commissioner of Complaints, National Health and Medical Research Council	National Health and Medical Research Council Act 1992 s.69 and s.72
Health & Aged Care	Health Insurance Ombudsman	National Health Act 1953 s.82ZRA and s.82ZUG
Health & Aged Care	National Health and Medical Research Council	National Health and Medical Research Council Act 1992 s.20 and s.45,48
Health & Aged Care	Office of Professional Services Review	Health Insurance Act 1973 s. 106ZPB, s.84
Health & Aged Care	Private Health Insurance Administration Council	National Health Act 1953 s.82C, s.82D and s.82PL
Industry, Science & Resources	Australian Nuclear Science and Technology Organisation	Australian Nuclear Science and Technology Organisation Act 1987 s.9, s.37E and s.24, s.37P
Industry, Science & Resources	Australian Sports Commission	Australian Sports Commission Act 1989 s.13 and s.41
Industry, Science & Resources	Australian Sports Drug Agency	Australian Sports Drug Agency Act 1990 s.19 and s.56
Prime Minister & Cabinet	Australian Institute of Aboriginal and Torres Strait Islander Studies	Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 s.12
Prime Minister & Cabinet	Public Service and Merit Protection Commission	Public Service Act 1999 s.49
Transport & Regional Services	Albury-Wodonga Development Corporation	Albury-Wodonga Development Act 1973 s.10 and s.21
Transport & Regional Services	National Road Transport Commission	National Road Transport Commission Act 1991 s.5
Transport & Regional Services	Federal Airports Corporation	Federal Airports Corporation Act 1986 s.13 and s.61
Treasury	Advisory Committee of the Australian Securities and Investments Commission	Australian Securities and Investments Commission Act 1989 s.147 and s.158
Treasury	Australian Bureau of Statistics	Australian Bureau of Statistics Act 1975 s.19
Treasury	Australian Competition and Consumer Commission	Trade Practices Act 1974 s.7
Treasury	Australian Securities and Investments Commission	Australian Securities and Investments Commission Act 1989 s.9 and s.122
Treasury	National Competition Council	Trade Practices Act 1974 s.29C
Treasury	Productivity Commission	Productivity Commission Act 1998 s.23
Treasury	Superannuation Complaints Tribunal	Superannuation (Resolution of Complaints) Act 1993 s.7 and s.62
Veterans Affairs	Australian War Memorial	Australian War Memorial Act 1980 s.10 and s.28
Veterans Affairs	Repatriation Commission	Veterans Entitlements Act 1986 s.182 and s.196
Veterans Affairs	Repatriation Medical Authority	Veterans Entitlements Act 1986 s.196L and s.196T
Veterans Affairs	Specialist Medical Review Council	Veterans Entitlements Act 1986 s.196ZE and s.196ZM