Commission Advice 2013/07: Legislative changes to procedures for handling misconduct

Last updated: 02 May 2013

This page is: archived

The Public Service Amendment Act 2013 (the Amendment Act) made significant changes to the Public Service Act 1999 (the Act). As a consequence the Public Service Regulations 1999 have been amended and the Public Service Commissioner's Directions 1999 repealed and replaced with the Australian Public Service Commissioner's Directions 2013 (the Directions).

The Australian Public Service Commission (the Commission) has developed a series of ‘Advices’ to assist Australian Public Service (APS) agencies implement the changes in the amended legislation and the new Directions. The Advices are available on the Circulars and advices page of the Commission’s website.

This Advice informs agencies of amendments to subsection 15(3) of the Act concerning procedures for determining whether a breach of the Code of Conduct has occurred and the sanction (if any) imposed as a consequence.

The commencement date for the amended Act, amended Regulations and the Directions is 1 July 2013. The changes will become part of Commonwealth law on that date. Agencies will need to take action to prepare for these changes before the commencement date.

Why are these changes being made?

These changes aim to improve the effectiveness of the procedures for handling misconduct in the APS, while at the same time safeguarding the rights of APS employees. The current framework for handling misconduct is essentially sound, and the amendments will clarify and strengthen it further in key areas.

What changes are being made?

For a complete review of all the changes to the Code, refer to Advice 2013/4 (APS Values, Employment Principles and revisions to the Code of Conduct).

Code of Conduct Procedures

Amended subsection 15(3) of the Act requires agency heads to establish procedures for:

  • determining whether an APS employee, or former APS employee, in the agency has breached the Code (including by engaging in conduct referred to in subsection 15(2A) of the Act); and
  • determining sanctions to be applied to an APS employee who is found to have breached the Code (including by engaging in conduct referred to in subsection 15(2A) of the Act).

New subsection 15(4) of the Act states the above procedures must comply with basic procedural requirements set out in the Directions and must have due regard to procedural fairness.

Procedures for handling suspected breaches of the Code

The new Chapter 6 of the Directions sets out basic procedural requirements with which the procedures established by an agency head under subsection 15(3) of the Act for determining whether an APS employee, or former APS employee, in the agency has breached the Code must comply. These procedural requirements are substantially the same as those that are currently in place, and provide that a determination may not be made in relation to a suspected breach of the Code by an APS employee, or former employee, unless reasonable steps have been taken to inform the individual of the details of the suspected breach and, in the case of an APS employee, the sanctions that may be imposed.

Procedures for determining sanctions

The changes to the Act will require agency heads to establish procedures for determining the sanction to be applied to an APS employee who is found to have breached the Code. In accordance with Chapter 6 of the Directions, if a determination is made that an APS employee has breached the Code, agencies may not impose a sanction unless reasonable steps have been taken to inform the employee of the determination, the factors that are under consideration in determining any sanction, the sanctions or sanctions that are under consideration, and must give the employee a reasonable opportunity to make a statement in relation to the sanction(s) under consideration. Sanctions may not be imposed on former employees.

An agency head must also ensure that the procedures established are made publicly available. The intention is to promote transparency and accountability in investigating alleged breaches of the Code.

Code of Conduct investigations and inter-agency moves

Chapter 6 of the Directions clarifies the procedures to be followed in circumstances where a decision has been made for an ongoing APS employee to move to another agency, but that employee is suspected of breaching the Code of Conduct and has been informed of the suspected breach and the sanctions that may be imposed if the misconduct is proven. Under the new Directions, the APS employee under investigation must remain in their original agency until the matter is resolved, unless the original agency head and new agency head agree otherwise. ‘Resolved’ means that a determination is made or it is decided that a determination is not necessary.

Australian Public Service Commissioner and Merit Protection Commissioner inquiries

The Australian Public Service Commissioner and the Merit Protection Commissioner can undertake inquiries into Code breaches by APS employees and former APS employees in limited circumstances. Further information is available in Advice 2013/5 (Australian Public Service Commissioner's functions) and Advice 2013/6 (Merit Protection Commissioner's functions).

Chapter 6 of the Directions is attached.

What transitional arrangements need to be put in place?

Part 1 and Part 6 of Schedule 4 of the Amendment Act outline the transitional arrangements for dealing with alleged breaches of the Code. Agencies must implement the following when applying their Code of Conduct procedures after 1 July 2013:

Alleged breaches of the Code that occur before and after commencement

For the purposes of Parts 4, 6 and 7 of Schedule 4 of the Amendment Act, if a breach of the Code is alleged to have occurred between two dates, one before and one after 1 July 2013, the breach is alleged to have occurred before 1 July 2013.

Investigation in progress

If, before 1 July 2013, an agency head had:

  • begun an investigation to determine whether an APS employee in the agency had breached the Code, but no finding had been made, or
  • decided to begin such an investigation, but had not yet done so,

the old legislation and relevant procedures continue to apply at and after 1 July 2013 in relation to the investigation and determination.

If the APS employee is found to have breached the Code, the agency head must determine any sanction to be imposed in accordance with the new procedures (i.e. those established under 15(3)(b) of the new Act), but with reference to the old Code.

Finding of a breach but no sanction imposed

If, before 1 July 2013, an APS employee was found to have breached the Code, but no sanction had been imposed, the agency head must determine any sanction to be imposed in accordance with the procedures established under the new Act but with reference to the old Code.

Allegation of breach of Code by APS employee before commencement time

If, before 1 July 2013, an allegation is made that an APS employee has breached the Code, but the agency head had not decided whether to begin an investigation, the new Act (and new procedures) applies in relation to investigation and determination, but with reference to the old Code.

If, after 1 July 2013, an allegation is made that:

  • an APS employee has breached the Code, or
  • a person who became a former APS employee after 1 July 2013 has breached the Code, and

the breach is alleged to have occurred before 1 July 2013, the new Act (and new procedures) apply in relation to the alleged breach, but with reference to the old Code.

What do agencies need to do?

Agencies must comply with the amended legislation from 1 July 2013. Agencies must review and revise their Code of Conduct procedures and establish procedures for setting sanctions having regard to Chapter 6 of the Directions.

Agencies are advised to review and update any associated guidance material and publications, as appropriate, to ensure they reflect the changes to the procedures for determining whether APS employees, or former APS employees, have breached the Code and the procedures for determining sanctions for current employees.

A breach of the Code can lead to the application of sanctions under subsection 15(1) of the Act, and it is important that agencies communicate these changes to their employees. Transitional arrangements will need to be in place as of 1 July 2013.

Agencies must ensure that their procedures established under amended subsection 15(3) of the Act (determination and sanctions procedures) are publicly available from 1 July 2013 and are advised to communicate the changes to these procedures to their employees.

Further information

The Public Service Amendment Act 2013, the Public Service Amendment Regulation 2013 and the Australian Public Service Commissioner's Directions 2013 are available on the Comlaw website.

Enquiries from agencies' corporate services staff can be made by email at ethics@apsc.gov.au or by telephone on 02 6202 3737.

APS employees who have queries about how the changes will affect them are asked to contact the HR area in their agency.

Karin Fisher
Group Manager, Ethics
Australian Public Service Commission

April 2013


Attachment: Australian Public Service Commissioner’s Directions 2013

Chapter 6 Agency Head handling of suspected Code of Conduct breaches

Division 1—Preliminary–Preliminary

6.1 Purpose of Chapter 6

The purpose of this Chapter is to set out the basic procedural requirements that must be complied with by the procedures established by an Agency Head under subsection 15 (3) of the Act for:

  • determining whether an APS employee, or a former APS employee, in the Agency has breached the Code of Conduct; and
  • determining what sanction, if any, should be imposed on an APS employee for a breach of the Code of Conduct.

Note: The requirements set out in this Chapter and the procedures established under subsection 15 (3) of the Act apply only in relation to a suspected breach of the Code of Conduct by an APS employee in respect of which a determination may be made. Not all suspected breaches of the Code of Conduct need to be dealt with by way of a determination. In particular circumstances, another way of dealing with a suspected breach of the Code may be more appropriate. (See also clause 4.2.)

6.2 Application to former APS employees

  1. In this Chapter, unless the contrary intention appears, a reference to an APS employee in an Agency includes a reference to a former APS employee who is suspected of having breached the Code of Conduct while an employee in the Agency.
  2. Subparagraph 6.3(a)(ii) and clause 6.4 do not apply in relation to a former employee.

Division 2—Basic procedural requirements

6.3 Employee must be informed that a determination is being considered

A determination may not be made in relation to a suspected breach of the Code of Conduct by an APS employee unless reasonable steps have been taken to:

  1. inform the employee of:
    1. the details of the suspected breach (including any subsequent variation of those details); and
    2. the sanctions that may be imposed on the employee under subsection 15 (1) of the Act; and
  2. give the employee a reasonable opportunity to make a statement in relation to the suspected breach.

6.4 Employee must be informed before a sanction is imposed

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

  1. inform the employee of:
    1. the determination; 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 sanctions under consideration.

6.5 Person making determination to be independent and unbiased

An Agency Head must take reasonable steps to ensure that:

  1. the person who determines whether an APS employee has breached the Code of Conduct is, and appears to be, independent and unbiased; and
  2. the person who determines any sanction to be imposed is, and appears to be, independent and unbiased.

6.6 Determination process to be informal

The process for determining whether an APS employee has breached the Code of Conduct must be carried out with as little formality and as much expedition as a proper consideration of the matter allows.

6.7 Record of determination and sanctions

If a determination is made in relation to a suspected breach of the Code of Conduct by an APS employee, 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 breached the Code of Conduct; and
  4. if a statement of reasons was given to the employee—the statement of reasons.

Note: The Archives Act 1983 and the Privacy Act 1988 apply to a record made under this clause.

6.8 Procedure when an employee is to move to another Agency during an investigation

  1. This clause applies if:
    1. an ongoing APS employee in an Agency is suspected of having breached the Code of Conduct; and
    2. the employee has been informed of the matters mentioned in paragraph 6.3(a); and
    3. the matter has not yet been resolved; and
    4. a decision has been made that, apart from this clause, would result in the movement of the employee under section 26 of the Act to another Agency (including on promotion).
  2. Unless the original Agency Head and the new Agency Head agree otherwise, the movement (including on promotion) does not take effect until the matter is resolved.
  3. For this clause, the matter is taken to be resolved when:
    1. a determination is made, as mentioned in clause 6.3; or
    2. it is decided that a determination is not necessary.