Home page
> APS legislative framework > Frequently asked questions
> Employment policy and advice
‹ Previous page
Last updated: June 2008
Frequently asked questions
What can employees expect in terms of natural justice (procedural fairness) during a Code of Conduct investigation or a Whistleblowing inquiry?
Under section 15(3)(b) of the Public Service Act 1999, an Agency Head must establish procedures for determining whether an APS employee in the Agency has breached the Australian Public Service (APS) Code of Conduct (the Code) and must have due regard to procedural fairness.
Chapter 5 of the Public Service Commissioner’s Directions 1999 sets out the basic procedural requirements for determining breaches of the Code. These Directions incorporate the principles of natural justice and procedural fairness.
Public Service Regulation 2.4(2)(a) also requires Agency Heads to establish procedures for dealing with a whistleblowing report made by an APS employee under section 16 of the Public Service Act 1999, and states that these procedures must have due regard to procedural fairness and comply with the Privacy Act 1988.
The terms natural justice and procedural fairness are interchangeable and have the following three common law requirements:
- The hearing rule: that the person who has allegedly breached the Code has the right to be heard or present their case.
- This means that during an investigation the accused is advised of the allegations and given the opportunity to reply.
- The bias rule: that no one ought to judge their own case i.e. there is a requirement that the decision maker is unbiased.
- This means that investigators and decision makers:
- must act without bias in relation to all procedures
- must be impartial
- must make decisions based on a balanced and considered assessment of the information and evidence without favour
- should be careful to avoid the appearance of bias and,
- should ensure there is no conflict of interest.
- This means that investigators and decision makers:
- The evidence rule: that an administrative decision must be based on logical proof or evidence material.
- This means that investigators and decision makers
- should not base their decisions on mere speculation or suspicion, and
- should be able to clearly point to the evidence on which the inference or determination is based.
- This means that investigators and decision makers
