Appendices

Last updated: 02 Aug 2015

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Appendix 1 - Statutory officer holders and the Australian Public Service Code of Conduct

1.1 Introduction

1.1.1 The following explains the provisions in the Public Service Act 1999 (PS Act) and the Public Service Regulations 1999(PS Regulations) relating to certain statutory office holders and the Australian Public Service (APS) Code of Conduct (the Code). In broad terms, the Code applies to statutory office holders who are not agency heads, where they supervise APS employees or have a day to day working relationship with APS employees.

1.1.2 The Code applies to certain statutory office holders who are not excluded from the provision, 51 to the extent that they are engaging with APS employees as managers or colleagues. This means, for example, that statutory office holders working with APS employees are required to meet the same standards of respect and courtesy as APS managers and employees in their dealings with APS employees.

1.1.3 The arrangements preserve the independence of statutory office holders. The PS Regulations provide that in the event of a conflict between the requirements of the Code and the legislation under which the statutory office holder performs their statutory functions, the latter takes precedence.

1.1.4 The Australian Public Service Commissioner (the Commissioner) has a function of inquiring into allegations of breaches of the Code by statutory office holders. While the Commissioner is able to determine that a statutory office holder has breached the Code, the Commissioner is unable to impose a sanction.

1.2 Legislative framework

1.2.1 Section 14 of the PS Act provides that statutory office holders are bound by the Code to the extent prescribed by the PS Regulations. Regulation 2.2 of the PS Regulation details the statutory office holders to whom the Code does and does not apply.

Statutory office holders bound by the Code

1.2.2 The Code applies to statutory office holders who are:

  • engaged, employed, or appointed under an Act, and
  • assisted by, or have dealings with APS employees, in a supervisory capacity, or in another capacity related to the office holder's day-to-day working relationship with APS employees.

1.2.3 In this context, a statutory office holder having a 'day-to-day working relationship' with APS employees refers to circumstances in which an office holder and APS employees work together as colleagues or where the statutory office holder otherwise comes into contact with APS employees on a day-to-day working basis. An APS employee does not have to be in the same agency as the statutory office holder for the Code to apply.

Statutory office holders not bound by the Code

1.2.4 Regulation 2.2 of the PS Regulations excludes agency heads, judicial officers, members of the Defence Force and certain tribunal members listed in regulation 2.2(2)(c) of the PS Regulations from the statutory office holders covered by the Code.

Code does not apply if inconsistent with statutory functions

1.2.5 There may be times when the requirements of the Code, including the requirement to uphold the APS Values and Employment Principles, may not be consistent with a statutory office holder's functions, or may have the effect of compromising their statutory independence. In these circumstances, it is expected that the statutory office holder will adhere to the requirements of their primary legislation, rather than the Code. PS Regulation 2.2 provides that if there is an inconsistency between the requirements of the Code and another law relating to the statutory office holder's office or appointment, the statutory office holder's own legislation will take precedence.

1.3 Managing suspected of misconduct by statutory office holders

1.3.1 The legislation under which statutory office holders are appointed or hold office will usually contain provisions relating to the circumstances in which a statutory office holder may be removed from office. Some legislation includes provisions for disciplinary arrangements that are separate from the arrangements in s14 of the PS Act.

1.3.2 For the purposes of the arrangements established under s14 of the PS Act, the Commissioner has the function of inquiring into suspected breaches of the Code by statutory office holders, and determining whether or not the statutory office holder has breached the Code (regulation 6.1A of the PS Regulations).

1.3.3 Where it is suspected that a statutory office holder covered by the Code may have breached the Code in relation to their treatment of an APS employee, it is advisable to discuss the matter with the Australian Public Service Commission.


Footnotes

51 Regulation 2.2 of the PS Regulations excludes certain statutory office holders from coverage of the Code.

Appendix 2 - Example of agency procedures under section 15(3) of the Public Service Act 1999

I, [name of agency head], acting in my capacity as [position and name of agency], establish these procedures under subsection 15(3) of the Public Service Act 1999 ('the Act').

These procedures commence on [date of commencement].

[Signature of agency head]

1.  Application of procedures

1.1 These procedures apply in determining whether a person who is an Australian Public Service (APS) employee in the [name of agency], or who is a former APS employee who was employed in the [name of agency] at the time of the suspected misconduct, has breached the APS Code of Conduct ('the Code') in section 13 of the Act.

1.2 These procedures also apply in determining any sanction to be imposed on an APS employee in the [name of agency] who has been found to have breached the Code.

1.3 These procedures, as they apply to determining whether there has been a breach of the Code, apply to any suspected breach of the Code except where a decision had been made, before [date of commencement], to begin an investigation to determine whether there had been a breach of the Code.

1.4 These procedures, as they apply to determining any sanction for breach of the Code, apply where a sanction decision is under consideration on or after [date of commencement].

1.5 In these procedures, a reference to a breach of the Code by a person includes a reference to a person engaging in conduct set out in subsection 15(2A) of the Act in connection with their engagement as an APS employee.

2. Availability of procedures

2.1 As provided for in subsection 15(7) of the Act, these procedures are publicly available on the [name of agency] website [or as otherwise made publicly available].

3. Breach decision-maker and sanction delegate

3.1 As soon as practicable after a suspected breach of the Code has been identified and the [name of agency head], or a person authorised by the [name of agency head], has decided to deal with the suspected breach under these procedures, the [name of agency head] or that person will appoint a decision-maker ('the breach decision-maker') to make a determination under these procedures.

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

3.3 The breach decision-maker may undertake the 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.

3.4 The person who is to decide what, if any, sanction is to be imposed on an APS employee who is found to have breached the Code ('the sanction delegate')will be a person holding a delegation of the powers under the Act to impose sanctions.

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

4. Person or persons making breach determination and imposing any sanction to be independent and unbiased

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

4.2 The breach decision-maker and the sanction delegate must advise the [name of agency head or the person authorised by the agency head to appoint the breach 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.

5. The determination process

5.1 The process for determining whether a person who is, or was, an APS employee in the [name of agency] has breached the Code must be carried out with as little formality, and with as much expedition, as a proper consideration of the matter allows.

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

5.3 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 of:
    1. the details of the suspected breach of the Code, including any subsequent variation of those details; and
    2. where the person is an APS employee, the sanctions that may be imposed on them under subsection 15 (1) of the Act; and
  2. give the person a reasonable opportunity to make a statement in relation to the suspected breach.

5.4 The statement may be a written or oral statement and should be provided within [number of days – generally this would be 7 calendar days] or any longer period that is allowed by the decision-maker.

5.4 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.

5.5 For the purpose of determining whether a person who is, or was, an APS employee in the [name of agency] has breached the Code, a formal hearing is not required.

6. Sanctions

6.1 The process for imposing a sanction must be consistent with the principles of procedural fairness.

6.2 If a determination is made that an APS employee in the [name of agency] 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 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 written statement in relation to the sanction or sanctions under consideration.

6.3 The statement may be a written or oral statement and should be provided within [number of days—generally this would be 7 calendar days] or any longer period that is allowed by the sanction delegate.

7. Record of determination and sanction

7.1 If a determination is made in relation to a suspected breach of the Code by a person who is, or was, an APS employee in the [name of agency], 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 has breached the Code; and
  4. if a statement of reasons was given to the person regarding the determination in relation to suspected breach of the Code, or, in the case of an employee, regarding the sanction decision, that statement of reasons or those statements of reasons.

Appendix 3 - Interaction between the Australian Public Service Code of Conduct and the Public Interest Disclosure Act

1. Introduction

1. 1 On 15 January 2014 the Public Interest Disclosure Act 2013 (PID Act) came into effect, repealing the whistleblower scheme that had previously existed under the Public Service Act 1999 and introducing a new framework for the making of public interest disclosures across the Commonwealth public sector.

1.2 This appendix provides information on the connection between the PID Act and the Australian Public Service (APS) misconduct framework in relation to internal disclosures made by public officials about the conduct of APS employees. Information on the general operation of the PID scheme, including on external, emergency and legal practitioner disclosures can be found on the Commonwealth Ombudsman's website www.pid.ombudsman.gov.au or by contacting the Ombudsman at PID@ombudsman.gov.au.

1.3 The Commonwealth Ombudsman, and the Inspector-General of Intelligence and Security (IGIS) in respect of intelligence agencies, oversee the PID Scheme. The Commonwealth Ombudsman has issued an Agency Guide to the Public Interest Disclosure Act 201352 explaining how the PID Act works, setting out the Commonwealth Ombudsman's statutory obligations, and suggesting best practice in handling public interest disclosures.

1.4 The PID Act creates a framework for facilitating the disclosure of suspected wrongdoing in the Commonwealth public sector, for protecting disclosers from adverse consequences of making a disclosure, and for timely and effective investigation of disclosures of suspected wrongdoing.

2. Internal disclosures that may also be allegations of breaches of the APS Code of Conduct

2.1 Disclosable conduct is defined in s29 of the PID Act to cover a broad range of inappropriate conduct within the Commonwealth public sector, including conduct that is contrary to law, or could otherwise give reasonable grounds for disciplinary action. Disclosures could therefore contain material that alleges a breach of the APS Code of Conduct (the Code) by an APS employee or employees.

2.2 Internal disclosures are those made in accordance with the PID Act to an appropriate 'authorised officer' in a Commonwealth agency. A current or former public official can make an internal disclosure to an authorised officer within their agency or the last agency in which they were employed. A current public official may also make a disclosure under the PID Act to their supervisor, who is then obliged to pass it on to an authorised officer in their agency. If a public official wishes to make an internal disclosure about the conduct of an employee in a different agency, it can be made to an authorised officer in that employee's agency.53 The Commonwealth Ombudsman and the IGIS may also receive disclosures about the conduct of officials in other agencies within their respective jurisdictions.

2.3 Once an authorised officer receives a disclosure under the PID Act, they must notify the principal officer of the disclosed information. For APS agencies the 'principal officer' is the agency head. When a public interest disclosure alleges a breach of the Code, the agency head54 will need to manage the disclosure under the terms of the PID Act in the first instance.

2.4 Under that Act, unless there are grounds not to investigate, the agency head must investigate the disclosure. The agency head may:

  • conduct an investigation in accordance with that agency's s15(3) procedures and simultaneously investigate the disclosure under the terms of the PID Act, or
  • consistent with sections 47(3) and 51 of the PID Act, decide whether or not it would be appropriate to deal with the matters raised by the disclosure as a suspected breach of the Code in accordance with the agency's s15(3) procedures.

3. Investigations of allegations of breaches of the Code under the PID Act

3.1 Disclosures under the PID Act that allege a breach of the Code must be considered in accordance with the PID Act.

3.2 It is open to agencies to carry out an investigation simultaneously under their s15(3) procedures and the PID Act. Where this option is chosen, agencies will need to exercise great care to ensure that they meet all of their obligations under both the PID Act and their s15(3) procedures. A failure to do so may lead to an invalid determination by the breach decision-maker.

3.3 Alternatively, an agency may choose to conduct a PID investigation separately. At the conclusion of that investigation, which may be of relatively short duration and focus on whether there is sufficient substance to the allegation to merit investigation as a suspected breach of the Code under their agency's s15(3) procedures, the agency head is required to prepare a report as required under s51 of the PID Act.

3.4 The PID investigation report could include a recommendation, or a decision, where appropriate, as to whether or not a Code investigation is to be conducted under the agency's s15(3) procedures. A 'decision' rather than a 'recommendation' may be more likely to assure the person making the disclosure that their disclosure has been considered and dealt with appropriately. The person making that decision must be authorised to do so consistent with that agency's procedures. If the agency head decides that further inquiry in accordance with the agency's s15(3) procedures is not appropriate, then he or she needs to record the reasons for reaching this conclusion and their recommendation or decision as to what other action, if any, would be appropriate.

3.5 A copy of the report made under s51 of the PID Act must be given to the discloser. Section 51 sets out provisions relating to providing that report and the limits on material that may be included as part of the report given to the discloser.

3.6 An investigation under an agency's s15(3) procedures is a discrete and separate investigation, not a continuation of the PID investigation.

Discretion not to investigate or investigate further under the PID Act

3.7 The agency head may decide not to investigate a disclosure or, if the investigation has started, not to investigate the disclosure further, for any of the reasons listed in s48 of the PID Act. This includes where an investigation into the same, or substantially the same, disclosable conduct is already underway or has been concluded under the agency's s15(3) procedures (see ss48(1)(f) and (g) of the PID Act).

3.8 The agency head is required to notify the discloser of the decision not to investigate, or investigate further, and to provide reasons for the decision (ss48, 50(1) and 50(3) of the PID Act). These reasons could include, for example, that the matters that form the subject of the disclosure are being investigated, or have been investigated, as a suspected breach of the Code under the agency's s15(3) procedures.

4. Protection of disclosers including confidentiality

4.1 A person who makes a public interest disclosure covered by the PID Act has immunities from legal liability and protection from reprisals.55 The discloser's identity has special protection under s 20 of the PID Act. These protections will continue to apply to the discloser where an investigation under an agency's s15(3) procedures arises from a PID disclosure.

4.2 It is an offence to disclose information obtained in the course of a PID investigation, or in connection with the performance of a function under the PID Act unless the information is used for the purposes of the PID Act or taking action in response to a disclosure investigation. Such an offence could result in imprisonment and/or a fine.56 While an investigation conducted under an agency's s15(3) procedures following a decision or recommendation of a PID investigation is an action taken in response to a disclosure investigation, agencies will need to consider carefully the disclosure of information obtained in the course of the PID investigation.

4.3 Agency heads will need to ensure appropriate arrangements are in place to protect the identity of the discloser and to protect them from reprisals for making the disclosure. To assist agencies, the Commonwealth Ombudsman's Agency Guide to the Public Interest Disclosure Act 2013 includes information on supporting and protecting the discloser. Chapter 6 of that guide is particularly relevant.

4.4 It may be necessary to reveal the identity of a complainant (including a person who has made a disclosure under the PID Act) or a witness in conducting a misconduct investigation for procedural fairness reasons. Even where the agency adopts measures to avoid revealing identities of complainants and witnesses during the course of its own inquiry, the identities may be revealed on review by the Merit Protection Commissioner, the Fair Work Commission, in related criminal proceedings, or in the context of a legal challenge to the decision. It is appropriate for agencies to let disclosers and witnesses know that while their identities will be kept confidential so far as the law allows, they may be revealed during the investigation or subsequently. In that context, it may be useful to provide advice on the arrangements in place to protect the discloser and witnesses from possible reprisals in the event that identities are disclosed.


Footnotes

52 See http://www.ombudsman.gov.au/pages/pid/pid-resources/.

53 If the disclosure relates to conduct in another agency, in whole or in part, the disclosure may be allocated to that agency for handling (see ss43 to 45 of the PID Act).

54 Under s77 of the PID Act, an agency head who is a principle officer for the purposes of the PID Act can delegate any of his or her powers under that Act to a public official who belongs to their agency.

55 See ss9 to 24 of the PID Act.

56 See ss65(1) and (2) of the PID Act.

Appendix 4 - The Australian Public Service Code of Conduct and the Public Governance, Performance and Accountability Act

1. Introduction

1.1 The Public Governance, Performance and Accountability Act 2013 (PGPA Act) is the primary piece of legislation governing financial resource management in the Commonwealth. The PGPA Act supports the efficient, effective, economical and ethical use of Commonwealth resources and is administered within the Finance portfolio. More information about the PGPA Act can be found on the Department of Finance website.

1.2 This appendix provides information on the connection between the PGPA Act, particularly the duties of officials, and the Australian Public Service Code of Conduct (the Code).

2. General duties of officials and the Code of Conduct

2.1 Sections 25 to 29 of the PGPA Act set out the following general duties of officials:

  • to act with care and diligence
  • to act honestly, in good faith and for a proper purpose
  • to not use their official position or information improperly, including to obtain a benefit or cause harm
  • to disclose material personal interests.

2.2 These duties are similar to elements of the Code. Generally, if an employee upholds the Code they will also be complying with the general duties of officials. Appendix 5 Elements of the Australian Public Service Code of Conduct of this guide provides more information on the connection between the Code and relevant sections of the PGPA Act. Further information on the general duties of officials can be found in the Department of Finance Resource Management Guide No. 203 General duties of officials.57

3. Comparison of the Code of Conduct and the PGPA Act

3.3 Below is a table comparing relevant elements of the Code with the general duties of officials in the PGPA Act.

General duties of officials in the PGPA Act compared to the relevant elements of the Code of Conduct
PGPA Act Code of Conduct
Section 25 Duty of care and diligence
  1. An official of a Commonwealth entity must exercise his or her powers, perform his or her functions and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if the person:
    1. were an official of a Commonwealth entity in the Commonwealth entity's circumstances; and
    2. occupied the position held by, and had the sameresponsibilities within the Commonwealth entity as, the official.
  2. The rules may prescribe circumstances in which the requirements of subsection (1) are taken to be met.
Section 13(2)

An APS employee must act with care and diligence in connection with APS employment
Section 26 Duty to act honestly, in good faith and for proper purpose

An official of a Commonwealth entity must exercise his or her powers, perform his or her functions and discharge his or her duties honestly, in good faith and for a proper purpose.
Section 13(1)

An APS employee must behave honestly and with integrity in connection with APS employment

Section 13(8)

An APS employee must use Commonwealth resources in a proper manner and for a proper purpose
Section 27 Duty in relation to use of position

An official of a Commonwealth entity must not improperly use his or her position:
  1. to gain, or seek to gain, a benefit or an advantage for himself or herself or any other person; or
  2. to cause, or seek to cause, detriment to the entity, the Commonwealth or any other person.
Section 13(10)

An APS employee must not improperly use inside information or the employee's duties, status, power or authority:
  1. to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or
  2. to cause, or seek to cause, detriment to the employee's Agency, the Commonwealth or any other person.
Section 28 Duty in relation to use of information

A person who obtains information because they are an official of a Commonwealth entity must not improperly use the information:
  1. to gain, or seek to gain, a benefit or an advantage for himself or herself or any other person; or
  2. to cause, or seek to cause, detriment to the Commonwealth entity, the Commonwealth or any other person.
Section 13(10)

An APS employee must not improperly use inside information or the employee's duties, status, power or authority:
  1. to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or
  2. to cause, or seek to cause, detriment to the employee's Agency, the Commonwealth or any other person.
Section 29 Duty to disclose interests
  1. An official of a Commonwealth entity who has a material personal interest that relates to the affairs of the entity must disclose details of the interest.
  2. The rules may do the following
    1. prescribe circumstances in which subsection (1) does not apply;
    2. prescribe how and when an interest must be disclosed;
    3. prescribe the consequences of disclosing aninterest (for example, that the official must not participate at a meetingabout a matter or vote on the matter).
Section 13(7) An APS employee must:
  1. take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee's APS employment; and
  2. disclose details of any material personal interest of the employee in connection with the employee's APS employment.

4. Transitional matters

4.1 The PGPA came into effect on 1 July 2014. The Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 amended both the PGPA Act, before it came into effect, and the Public Service Act 1999 (PS Act) to align the relevant elements of the Code and the duties of officials. Transitional provisions provide that

  1. For the purposes of s13(7) of the PS Act, the obligation to disclose a material personal interest, and to take reasonable steps to avoid any real or apparent conflict of interest, will apply regardless of whether that interest, or that conflict of interest, arose before or after commencement.
  2. For the purposes of s13(8) of the PS Act, the obligation to use Commonwealth resources for a proper purpose applies to uses of resources after commencement.
  3. The amendments to s13(10) of the PS Act, apply to
    1. uses by APS employees occurring after commencement of information obtained before and after commencement and
    2. uses by APS employees of their duties, status, power or authority after commencement.

4.2 Whether an employee has breached the Code or not will be determined having regard to the requirements of the Code at the time of the suspected act of misconduct.


Footnotes

57 www.finance.gov.au/resource-management/accountability/officials

Appendix 5 - Elements of the APS Code of Conduct

1.1 Introduction

1.1.1 This appendix provides guidance on the elements of the Australian Public Service (APS) Code of Conduct (the Code). It has been developed to assist decision-makers, and others involved in handling misconduct matters, better understand the application of the Code.

1.1.2 The Code in s13 of the Public Service Act 1999 (PS Act) has 13 subsections, or elements, some of which contain several obligations. For example, s13(3) requires APS employees, when acting in connection with APS employment, to treat everyone with respect and courtesy, and without harassment.

1.1.3 When interpreting the Code, as a general rule each obligation in the Code is given its ordinary meaning. Decision-makers may rely on authorities such as the Macquarie Dictionary for definitions.

1.1.4 Further advice on the application of the Code is provided in Part I Section 3.5 of this guide. This includes, in particular, the meaning of the terms 'in connection with' and 'at all times'.

1.1.5 Other publications also provide information on the Code including:

  1. the APS Values and Code in practice: A guide to official conduct for APS employees and agency heads.58
  2. Chapter 1 of the Australian Public Service Commissioner's Directions 2013 (the Directions) provides information on the application and scope of the Values.

1.2 Standard

1.2.1 The standard of behaviour expected of APS employees is an objective one:

The propriety of the actions expected of an employee should be assessed by reference to the standard of conduct expected of a public servant, having regard principally to the expectations of the public.59

1.2.2 The question of whether particular conduct breached the Code is not determined by the subjective standard of the particular employee. The fact that an employee genuinely believed that the action he or she took was proper is not relevant to the decision about whether that action was in breach of the Code. For example, an employee may genuinely believe that he or she was justified in using defamatory and hurtful language about a colleague, but such behaviour may not meet the objective standard of respect and courtesy in the Code.

1.3 Intent or motive

1.3.1 A determination that a person has breached the Code does not generally require intent. A person being investigated for misconduct may still be found to have breached the Code if they, for example, acted without care or without diligence, whether or not they meant to. The Code does not use words such as 'wilful' or 'reckless' or 'negligent' to qualify the behaviour involved. Proven behaviour contrary to the particular section of the Code may suffice as evidence of a breach of the Code. Generally, it not necessary to establish motive or personal gain to find a breach of the Code.

1.3.2 There are some exceptions. These are set out later in this appendix.

1.3.3 While intent, motive, or personal gain may not be required to establish a breach of the Code, they may be considered when deciding whether to investigate a matter under an agency's s 15(3) procedures or making a decision about sanction. For example, knowingly acting in breach of the Code would generally be considered more serious than a one-off careless act.

1.4 Multiple obligations

1.4.1 Some elements of the Code contain several obligations. For example, s13(1) of the PS Act requires APS employees to behave honestly and with integrity, in connection with APS employment. An employee is required to uphold all obligations of each element of the Code to comply with the Code.

1.4.2 In such cases, it is not necessary to find that an employee breached every obligation within an element in order to make a determination that the Code has been breached. For example, an employee can be found to have failed to have behaved with integrity, and therefore been in breach of s13(1), without also being found to have behaved without honesty. This applies to other elements of the Code with multiple obligations; care and diligence, respect and courtesy and without harassment etc.60

1.4.3 Section 13(11) requires APS employees at all times to uphold the Values and the Employment Principles. A failure by an APS employee to uphold any single obligation of the Values and Employment Principles may also be a breach of the Code.

1.5 Overlapping concepts

1.5.1 There is some overlap between different elements of the Code and between obligations in the same section of the Code. For example, not taking reasonable steps to avoid a conflict of interest could also be a lack of care and diligence. Behaving dishonestly may also be a lack of integrity.

1.5.2 It is generally unnecessary to determine the degree of overlap; a breach of one obligation is a breach of the Code.

1.5.3 Where multiple elements are in play it is appropriate to consider the allegation against each element separately to the extent needed. A breach of one element does not necessarily say anything about the other(s). For example, the fact that a person acts without care and diligence does not mean they cannot have acted with integrity.

2. Section 13—guidance on the scope or application of the elements of the Code

13(1) An APS employee must behave honestly and with integrity in connection with APS employment

2.1 Behaving honestly and with integrity involves concepts such as 'truthfulness', 'sincerity' and 'frankness'. Integrity involves a 'soundness of moral principle and character'. 61

2.2 Failure to act honestly includes deliberate behaviour that the employee knows to be wrong. However, employees may make honest mistakes without breaching this element of the Code. Such action will usually be better dealt with through performance management such as training or counselling. In more serious cases, it may be dealt with as a potential breach of s13(2) of the PS Act.

2.3 This element of the Code aligns with the duties in s26 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act). Adherence to the Code will ordinarily meet the requirements of s26 of the PGPA Act.

13(2) An APS employee must act with care and diligence in connection with APS employment

2.4 Care and diligence have their ordinary dictionary meanings of 'serious attention and solicitude to work' and 'earnest effort to accomplish what is undertaken'.62 The standard of care and diligence required is objective and can be assessed by applying the standard of a 'reasonable person' in the same circumstances as the APS employee. The level of care and diligence required of senior managers responsible for the delivery of a program of work may be higher than that of other employees delivering single elements of that program.

2.5 Things done carelessly or without appropriate attention, i.e. without diligence, might be dealt with as a performance issue, through training, or counselling but might also be dealt with as a breach of the Code, particularly for more serious examples. The relevant decision-maker will need to decide which option best meets the circumstances—see Relationship between misconduct and performance management processes in Part II, Section 5.1 of this guide.

2.6 Once it has been decided that a Code investigation is warranted, the breach decision-maker can then consider whether the conduct was careless or lacked diligence. It is not, however, enough for the breach decision-maker merely to come to a view that it would have been preferable to deal with the matter in question differently. A difference of opinion on how a matter should have been handled does not necessarily mean that the matter was handled without appropriate care or diligence. The question will be what a reasonably careful and diligent employee in the same position should have done in all the relevant circumstances. This may include, for example, a consideration of whether the employee's conduct was consistent with any professional standards that might apply in that role in addition to those under the Code and Values.

2.7 In some cases, the personal attributes of the employee may be relevant to whether they have acted with care and diligence. For example:

  1. an employee who has received training in a specialist skill may be expected to exercise those skills. A person who was known not to have those skills could not reasonably be expected to exercise them;
  2. an employee with many years' of relevant experience might reasonably be expected to discharge their duties more effectively than an employee who had no previous directly relevant experience.

2.8 This element of the Code aligns broadly with the duty of care and diligence under s25 of the PGPA Act. Adherence to the Code will ordinarily meet the requirements of s25 of the PGPA Act.

13(3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment

2.9 There are three obligations within this section of the Code—respect, courtesy and no harassment.

2.10 The Values also require APS employees to be respectful. Having regard to the employee's duties and responsibilities, employees are expected to respect all people, including their rights and their heritage. Further information on the application of this Value can be found in clause 1.4 of the Directions.

2.11 The requirement to treat everyone with respect and courtesy, and without harassment, is an objective one. The subjective opinion of the person alleging disrespect, discourtesy, bullying or harassing behaviour does not establish the fact of behaviour in breach of s13(3). Similarly, a breach of the element does not require that the relevant employee be offended by the behaviour, or even aware of it. The question is whether a reasonable person observing the behaviour would consider that the behaviour in question met the standard of the Code.

2.12 The use of the word 'treat' does not require direct communication with, or that the behaviour is directed at, a particular person. There are definitions of the word 'treat' that are less direct—'to deal with in speech' is one.

2.13 It may be necessary to consider patterns and overall behaviour when looking at allegations of bullying and/or harassment. Individual actions may not appear to be very significant but, taken in conjunction with other actions, might reveal a pattern of bullying or harassing behaviour.

2.14 Care should be taken with general allegations of bullying and harassment, such as vague claims of 'passive aggressive' behaviour or feelings of being undermined. Allegations of this sort may be a description of the complainant's subjective response to the person they are complaining about. For a breach of the Code to be determined, it is necessary to identify specific incidents and events that can be objectively assessed. In addition, a lack of such specificity in allegations of misconduct will make it more difficult to ensure that the person who is the subject of those allegations is able to respond to them in a fair and meaningful way. If an agency is taking into consideration a pattern of behaviour, that pattern of behaviour has to be linked to observable incidents that are capable of being proven as misconduct.

13(4) An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws.

2.15 This element of the Code will most commonly arise in agencies where the work is governed by legislation, or will involve broader laws such as work, health and safety legislation, financial legislation, and the criminal law. For the purposes of s13(4), Australian laws include any Commonwealth, State or Territory legislation and any instruments made under such legislation.

2.16 Not all Australian laws will be relevant for the purpose of s13(4). Only those laws which establish a particular standard of individual conduct will be relevant. For example, a law which requires a corporation to submit a tax return is not a law that an individual person can breach. By contrast, a law requiring an individual to lodge a tax return is a law which imposes a particular standard of conduct on individuals.

2.17 Some of the applicable laws, for the purposes of s13(4), are criminal laws. A person who has breached a law which is a criminal law can be tried by a court and found guilty of a criminal offence. Only a court can make a decision that a person is guilty of a criminal offence. However, this does not prevent a breach decision-maker in an agency from making a finding that a person has not complied with a criminal offence provision.

2.18 In these circumstances, a breach decision-maker is not making a finding of criminal guilt and is not bound by the laws relating to evidence. Further, the burden of proof on a breach decision-maker is generally that he or she be satisfied 'on the balance of probabilities'. In a criminal prosecution, the burden of proof must generally be discharged 'beyond reasonable doubt'.

2.19 The specific offence provision will generally define the physical and fault elements of an offence, such as whether there was the necessary level of intent. The breach decision-maker will need to satisfy himself or herself about the employee's conduct in that context. In cases of doubt, agencies are encouraged to seek legal advice.

2.20 Care should be exercised before deciding to investigate an APS employee for suspected breach of this element of the Code. The fact that a person has been charged with a criminal offence and is awaiting trial does not prevent an agency from investigating an employee for breach of this element. However, there may be circumstances where the investigation may prejudice the outcome of criminal proceedings.63

2.21 Where a court has recorded a conviction or otherwise determined criminal guilt a breach decision-maker can have regard to this in determining whether the employee breached s 13(4). Equally, the fact that a person has been convicted of a criminal offence does not mean that the person is automatically in breach of s13(4). A decision-maker proposing to take into account a criminal conviction must provide the individual with a reasonable opportunity to comment before doing so.

13(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

2.22 This element of the Code contains a number of limbs in relation to the giving of a direction, all of which must be met before a breach of the element can be determined.

Clarity of the direction

2.23 A direction needs to be 'tightly drafted, using the language of command throughout, and specify exactly what actions should and should not be taken'.64 A direction also needs to be internally consistent. It is appropriate to use language that is clear and directive and that provides the employee with no discretion in relation to their behaviour.

2.24 A general policy or guideline is not a direction for the purposes of the Code. Where a policy document is intended to be a direction from an agency head the document should be written using the language of command and to specify that it is a direction for the purposes of the PS Act.

2.25 A direction also needs to be clear in its terms and capable of being complied with. A direction to 'behave appropriately', for example, may be difficult to comply with and enforce as it is not clear what is meant by the term.

Reasonableness of the direction

2.26 The direction must be both lawful and reasonable. Whether it is reasonable will depend upon all the circumstances.

2.27 A reasonable direction has been described as one with the object of 'securing proper values to be required of a public servant…and in particular, the maintenance of public confidence in the integrity of the public service and public servants'.65 A reasonable direction needs to be proportionate to the end to be achieved.

2.28 Using that test, directions concerning private behaviour may be reasonable, but the circumstances would be critical. For example, directing an employee not to contact a co-worker at work and outside work, including using private telephone or email or social media, may be reasonable to protect that other employee's health and safety. Generally, directions aimed at private conduct with no apparent connection with the employee's work would not be reasonable.

Authority to give the direction

2.29 While there is no provision of the PS Act that expressly authorises the giving of directions, s13(5) of the PS Act recognises that there is an implied power to give directions.66 Therefore, a supervisor has implied authority to direct subordinate staff and an employee with functional responsibility for a particular matter generally has implied authority to give directions relevant to that matter.67

13(6) An APS employee must maintain appropriate confidentiality about dealings that the employee has with a Minister or Minister's member of staff

2.30 APS employees who deal with Ministers or with Ministers' offices may be privy to sensitive information in the course of their employment. APS employees must treat any such dealings with appropriate confidentiality. The phrase 'appropriate confidentiality' allows for disclosure to whomever else within the APS and the Government might have a proper need to know.

2.31 The APSC publication APS Values and Code in practice: A guide to official conduct for APS employees and agency heads provides guidance on working with the Government and the Parliament, and on managing official information.

13(7) An APS employee must:

  1. take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee's APS employment; and

  2. disclose details of any material personal interest of the employee in connection with the employee's APS employment

2.32 A conflict of interest, including a material personal interest, can arise out of a work, private or social context. It might arise due to an APS employee's private share holdings, or those of their immediate family, other personal interests, acceptance of a gift, benefit or hospitality, cultural obligations, political activities or personal relationships. It can also arise through outside work—paid or voluntary.

2.33 To be 'material' a personal interest needs to be of a type that can give rise to a real or apparent conflict of interest. Personal interests do not give rise to a conflict of interest unless there is a real or sensible possibility of conflict and not simply a remote or theoretical possibility of conflict. If no reasonable person could draw a connection between the employee's personal interest and their duties, then the personal interest is not 'material'.

2.34 Once a material personal interest is identified, the employee must disclose that interest. If an employee is in a position to, or perceived to be in a position to, influence an outcome or a decision then that person needs to take reasonable steps to avoid that conflict of interest.

2.35 This element of the Code aligns with the duty to disclose interests under s29 of the PGPA Act. Adherence to the Code and the agency's policy and procedures for disclosing and managing conflicts of interest will ordinarily meet the requirements of s29 of the PGPA Act.

13(8) An APS employee must use Commonwealth resources in a proper manner and for a proper purpose

2.36 'Commonwealth resources' is a broad term and includes money, goods, services, vehicles, office equipment, official records, office premises, telephones or other telecommunication devices and computers. It also includes the salary costs of APS employees.

2.37 Most agencies have policies advising their employees on the appropriate use of Commonwealth resources. It is not appropriate for Commonwealth resources to be used for private gain. However, subject to agency policies, it is reasonable for APS employees to have limited private use of office equipment, for example reasonable and necessary telephone or email communication with family. Inappropriate use of an agency's ICT resources at work or out of office hours is covered by this section of the Code.

2.38 Damage to Commonwealth resources, however caused, can come within this section but each case will need to be considered carefully on its merits before deciding that misconduct action is appropriate.

2.39 The PGPA Act also requires APS employees to manage or use public resources in a proper manner. Adherence to the Code will ordinarily meet the requirements of s26 of the PGPA Act.

13(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

2.40 APS employees are required to provide responsive, efficient and effective services consistent with the APS Values, Employment Principles and associated Directions. Requests for information for official purposes may be made by members of the public, businesses, members of the media, other jurisdictions—national and international, members of Parliament, other Commonwealth agencies, by the employee's agency or another APS agency, or by work colleagues.

2.41 The information provided by APS employees in connection with their APS employment should not be misleading and should be appropriate to the request being made. An objective consideration of the information given and the circumstances in which it was given is necessary to determine whether the information was misleading. That a person receiving the information was misled does not make the information misleading in and of itself.

2.42 This element of the Code applies to requests for information made for official purposes in connection with an employee's APS employment. This is broader than requests for information that an employee may receive as part of their duties, and includes requests for information that relate to their own employment, such as information relevant to the job, applications for promotion, or to leave applications.

13(10) An APS employee must not improperly use inside information or the employee's duties, status, power or authority:

  1. to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or

  2. to cause, or seek to cause, detriment to the employee's Agency, the Commonwealth or any other person

2.43 A breach of this element could occur if, for example, an APS employee gains, or seeks to gain an advantage for themselves, a friend, family member or associate. It can also occur if a senior officer in a supervisory role uses their status to gain favours from a member of their team or other junior staff. The benefit or advantage is not defined and is not limited to financial gain.

2.44 Whether or not any person actually obtained a benefit from the employee's actions does not determine whether the behaviour is in breach of this element of the Code. This element can be breached if the employee merely sought a benefit or advantage. Similarly, actual detriment to the agency, Commonwealth or other person does not have to have occurred for a breach to be found.

2.45 Inside information could include any official information which is not public. For example, it could include confidential information the employee has access to as a consequence of their employment or information that was provided on the basis that it was to be used only for a specific purpose. There may also be other agency specific legislation limiting the use of information.

2.46 Whether a use is improper, or not, will depend on the circumstances of each case. It is appropriate, generally, to assess the case by considering whether a reasonable person would, having regard to any relevant agency guidance, form the view that the use was improper. Employees of the APS are expected to undertake their duties in the public interest. On that basis, deciding whether a use was improper would have regard to the nature of the benefit or advantage they were attempting to gain, or the detriment they were attempting to cause.

2.47 The phrases 'seek to gain' a benefit and 'seek to cause' detriment indicate that the employee's conduct was intentional. In considering behaviour against this element of the Code, agencies will need to be able to establish that the employee acted with some degree of intention to achieve the gain or cause the detriment.

2.48 This element of the Code aligns with the duty in ss27 and 28 of the PGPA Act of an official not to use their position or information or improper purpose.68 Adherence to the Code will ordinarily meet the requirements of ss27 and 28 of the PGPA Act.

13(11) An APS employee must at all times behave in a way that upholds:

  1. the APS Values and APS Employment Principles; and

  2. the integrity and good reputation of the employee's Agency and the APS

2.49 This element of the Code applies to an APS employee's behaviour 'at all times'. It may be breached by an APS employee outside normal work hours and at non-work premises. There is no explicit requirement in the section that the suspected conduct of the employee must be connected to their APS employment. In practice, however, determining that an action breaches the Code will generally require some degree of connection to the employee's employment.

2.50 This element of the Code places a positive obligation on APS employees to behave in a way that maintains confidence in their ability to serve the Government of the day professionally and does not undermine public confidence in their agency or the APS.

2.51 Because this element of the Code places a positive obligation on employees, it is not necessary to establish actual damage to the reputation of the agency or the APS in order to find that this section of the Code has been breached. A lack of damage may be relevant to a decision to start an investigation under an agency's s15(3) procedures or be relevant to mitigation when deciding a sanction.

2.52 Where an agency is alleging that an employee has breached s13(11) of the Code for behaviour that fails to uphold the Values and/or the Employment Principles, it is necessary to identify which Values or Employment Principles are at issue. It also necessary to advise the employee which Values or Employment Principles are at issue, and to give the employee an opportunity to respond, consistent with the agency's s15(3) procedures, prior to making a decision on breach.

2.53 The concept of integrity in this section of the Code is different to integrity in s13(1). Under s13(1), it is necessary to behave with integrity; here, an APS employee has to behave in a way that upholds the integrity of the employee's agency and the APS. For example, a public servant agreeing with critical comments made by a client about government policy may not be consistent with a requirement to behave in a way that upholds the integrity of their agency and the APS, in the sense of upholding their sound or unimpaired condition, but it may not in itself indicate that the public servant lacks integrity.

2.54 Information on the relationship between private behaviour of a criminal nature and the Code is in Part I, Section 3.7 of this guide Suspected Misconduct that may also be a criminal act.

13(12) An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia

2.55 The Code applies to APS employees on duty overseas at all times, encompassing the private behaviour of APS employees overseas. It is recognised that Australia expects the highest levels of professional and ethical behaviour by its representatives overseas. Given that employees serving overseas are particularly visible, inappropriate or unethical conduct in their private lives is likely to reflect negatively on the good reputation of Australia.

2.56 Most agencies with employees overseas have policies that articulate the responsibilities of those employees.69 If such policies do not exist, it is advisable for agencies to advise staff who travel and work overseas of their obligations under the Code and the agencies' expectations of behaviour.

13(13) An APS employee must comply with any other conduct requirements prescribed by the regulations

2.57 To date, only one other conduct requirement has been prescribed under the Public Service Regulations 1999 (PS Regulations).

2.58 Regulation 2.1 of the PS Regulations imposes a duty on an APS employee not to disclose certain information without authority. The duty applies to information communicated in confidence or where disclosure could be prejudicial to the effective working of government. Regulation 2.1(5) of the PS Regulations sets out circumstances where APS employees are not prevented from disclosing information.

2.59 The regulation is not designed to regulate the disclosure of official information comprehensively. It operates alongside other provisions and obligations, including agency-level directions and authorisations.

2.60 This regulation also notes that under s70 of the Crimes Act 1914 it is an offence for an APS employee to publish or communicate any fact or document which it is the employee's duty not to disclose. Section 70 also applies to former employees.


Footnotes

58 www.apsc.gov.au/publications-and-media/current-publications/aps-values-and-code-of-conduct-in-practice (under review)

59 Bercove v Hermes (1983) 74 FLR 315

60 See Rothfield v Australian Bureau of Statistics [PR 927240] AIRC (3 February 2003) where Senior Deputy President Lacy held that the provisions in s13(3) should be read disjunctively.

61 Macquarie Concise Dictionary

62 Macquarie Concise Dictionary

63 see section 3.7.9 of this guide for more information about this issue

64 Phillips v DAC (1994) 48 FCR 57

65 McManus v Scott-Charlton (1996) 140 ALR 625

66 It has been held that the source of the power to give a direction is the contract of employment, not statute. Thus the decision to give a direction is not a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies: Bayley v Osborne (1984) 4 FCR 141 at [33].

67 The Australian Government Solicitor's Legal briefing Number 104 Misconduct in the Australian Public Service provides further information on the scope of a direction and who can give a direction www.ags.gov.au/publications/legal-briefing/index.html

68 See Department of Finance Resource Management Guide No. 203 General Duties of Officials for further information.

69 The Department of Foreign Affairs and Trade has established guidelines and a code of conduct in this area that other agencies may wish to adapted to suit their needs – see dfat.gov.au/about-us/publications/Pages/dfat-code-of-conduct-for-overseas-service-2.aspx. APS Values and Code in practice: A guide to official conduct for APS employees and agency heads also provides some guidance.

Appendix 6 - Australian Public Service Code of Conduct: Tips and traps in selecting external investigators

1. Introduction

1.1 Depending on the circumstances, agencies may find that they require the services of an external investigator to conduct, or assist with, an investigation of suspected misconduct. This could occur, for example, where agencies do not have the resources or expertise to conduct investigations themselves.70

1.2 This appendix is designed to assist APS managers and human resource practitioners with selecting and managing the engagement of an external investigator to undertake an investigation of suspected misconduct. This appendix may also assist those who are managing investigations conducted by APS employees.

2. Objective

2.1 The objective of this appendix is to assist agencies in managing these investigations in a way that will produce a good quality outcome and represents value for money for the agency.

2.2 This appendix provides advice on

  • the decision-making framework
  • the circumstances in which an agency may choose to engage an external investigator
  • the role of the external investigator
  • identifying and engaging a person with the appropriate skills to conduct the investigation
  • specifying what will be required of the external investigator in the contract
  • briefing and managing the performance of the external investigator
  • deliverables required from an investigator
  • investigator training programs
  • where to access further information
  • details on cooperative agency procurement.

3. Limitations of this appendix

3.1 This appendix is not guidance on contract management. The Department of Finance (Finance) has policy responsibility for procurement. When conducting procurement, agencies must comply with the Commonwealth Procurement Rules (CPRs), and their procurement instructions, and guidelines, and spending approval processes.

3.2 The Australian National Audit Office has produced a better practice guide on developing and managing contracts. The ANAO guide covers the phases of the procurement cycle commencing from the selection of a preferred tenderer or contractor through to managing and ending the contract.71

3.3 Further information on applying the procurement framework is also available from each agency's procurement area.

4. Terminology

4.1 In this appendix, the terms 'external investigator', 'investigator' and 'contractor' are used interchangeably to describe private sector contractors engaged by an agency to conduct an investigation of suspected misconduct.

4.2 A reference to an agency's 'misconduct procedures' or &ls s15(3) procedures' is a reference to the written procedures made by the agency head for the purpose of determining whether an Australian Public Service (APS) employee, or former employee, has breached the APS Code of Conduct (the Code) and for determining sanction. These written procedures are made under s15(3) of the Public Service Act 1999 (PS Act).

5. When might an agency consider hiring an external investigator?

5.1 An agency may decide to engage an external investigator for various reasons. Such reasons could include the following circumstances.

  • Where the agency considers it to be a cost effective way of managing its investigations caseload.
  • The agency is small and has limited expertise internally, or cannot commit the internal resources required to conduct an investigation.
  • The allegations concern matters that require expertise which is not available in the agency.
  • There is difficulty finding people within the agency to investigate who would be seen to be independent and unbiased.
  • Where public confidence in the administration of the agency would be best served by an investigation that is at 'arm's length' from the agency.

5.2 Another option could be to use an employee from another APS agency which would also have the added benefit of assisting in building capability across the APS. Alternatively, for non-Senior Executive Service employees suspected of breaching the Code, and with the relevant employee's agreement, an agency may seek the services of the Merit Protection Commissioner or the Australian Public Service Commissioner to conduct the investigation in certain circumstances.

6. The role of the external investigator

6.1 Depending on the circumstances, an external investigator may be engaged to perform various tasks. The Commission is aware that agencies commonly engage an external investigator to

  • assist the breach decision-maker with an investigation into part or all of the suspected misconduct
  • conduct an investigation and make a recommendation to the agency breach decision-maker about whether a breach has occurred
    • this may include making a recommendation about a sanction to the agency
  • conduct an investigation and determine whether a breach has occurred
    • this may include making a recommendation about a sanction to the agency
  • conduct an investigation, determine whether a breach has occurred, and determine a sanction if one is required.

6.2 There are advantages and disadvantages with each option. In general, there are significant advantages in separating the investigation from the decision-making process. In particular, if the external investigator's role is limited to assisting with, or conducting, an investigation and making recommendations, this allows the agency decision-maker to ensure that the process is procedurally sound. It also offers the opportunity to correct any procedural errors in the investigation before a decision is made.

6.3 Where the investigator's task is to make a recommendation to the agency decision-maker, this also ensures that the decision-maker is available to answer questions and to explain the reasons for their decision, should the decision be subject to administrative review or legal challenge.

6.4 However, arranging for the investigator to have decision-making powers may avoid double handling of the matter and may save costs and time. It may also be necessary to provide the investigator with decision-making powers because the outcome needs to be independent of agency decision-makers.

6.5 If an external investigator is tasked with determining whether a person has breached the Code, the agency needs to ensure that the investigator is properly authorised in accordance with the agency's s15(3) procedures.

6.6 Where an agency requires an external investigator to impose a sanction, authority to delegate the statutory power to impose a sanction to an 'outsider' must be obtained from the Australian Public Service Commissioner (the Commissioner) in accordance with s78(8) of the PS Act.72 The Commissioner considers each request on a case-by-case basis and, before giving consent, takes into account a range factors, including the duties to be performed and the qualifications and skills of the outsider.

7. Key attributes that an investigator should possess

7.1 Decisions made about suspected misconduct are important administrative decisions, both in their impact on the person under investigation and in relation to stakeholder confidence in an agency's employment decisions generally.

7.2 There are some essential skills and capabilities that external investigators engaged to undertake investigations into suspected breaches of the Code need to be able to demonstrate. These will be important in any evaluation of the skills of potential contractors.

7.3 These specific skills and capabilities are

  • a good understanding of the APS employment framework, in particular the PS Act and subordinate legislation, and the relevant requirements of the Fair Work Act 200973
  • expertise in conducting administrative investigations which requires, among other things, the capacity to weigh often conflicting evidence for the purpose of making findings of fact
  • a good understanding of administrative decision-making, including the requirements of procedural fairness and the need for balanced, reasonable and fair decisions
  • a capacity to provide a written report that is evidence-based, demonstrates sound reasoning and sets out the process followed in the investigation and the findings in a logical, clear way74
  • sound analytical skills, good judgement, interpersonal and strong oral and written communication skills
  • sound skills in gathering evidence and conducting interviews.

7.4 The investigator should also have a reasonable understanding of the Privacy Act 1988 and the Public Interest Disclosure Act 2013.

8. Risks arising from engaging the 'wrong' investigator

8.1 There are some obvious risks arising from engaging a contractor who does not have the appropriate capabilities. Examples include

  • The investigator does not comply with the agency's s15(3) procedures for investigating suspected misconduct. This can result in a procedural flaw that may lead to a recommendation from the Merit Protection Commissioner that the breach and/or sanction decision be set aside. A procedural flaw may also lead to the breach and/or sanction decision being set aside by a court.
  • The individual under investigation is unable to respond to the case against them appropriately because of inadequacies in the case put to them, resulting in a procedural flaw with the same consequences as above.
  • The investigator is engaged to undertake the investigation, but subsequently advises that they had not realised the level of difficulty of the case and withdraws their services while the investigation is underway.
  • An investigator that has little expertise in conducting administrative inquiries cannot competently weigh the evidence about the individual's behaviour to make clear findings of fact. This can result in a Merit Protection Commissioner recommendation that the decision be set aside, and/or the decision is set aside by a court.
  • Having a decision set aside on review is more than just a 'technical glitch'. It increases the time and resources required to resolve an issue and can influence employee opinion on the fairness and reasonableness of the agency's actions, making it more difficult to enforce appropriate standards of behaviour.

9. Engaging the investigator

9.1 Identifying the right investigator, providing clear instructions about their role and responsibilities, and managing their performance throughout the period of the contract is critical to obtaining value for money. Whoever is chosen should be 'fit for purpose'. Particular investigators may suit particular types of cases-investigating a relatively straightforward suspected misuse of credit card is quite different from investigating alleged bullying and harassment.

9.2 After identifying a need for investigator services and determining the scope, risk and estimated cost of the investigation, an agency will need to consider how the investigator services will be obtained from the market.

9.3 The engagement and contract management process for outsourced Code investigations is not different, in its essentials, from the management of other types of contracts. Accordingly, an agency considering engaging a contractor to undertake a Code investigation must comply with the CPRs and the agency's procurement instructions and guidelines, and spending approval processes.

Sourcing investigator services from the market—procurement methods

9.4 The CPRs set out the rules that agencies must comply with when they procure goods and services.75 The estimated cost of the investigator services will largely determine the procurement method for the agency, those methods being an open tender, prequalified tender or limited tender. A limited tender under the CPRs 'involves an agency approaching one or more potential suppliers to make submissions, where the process does not meet the rules for open tender or prequalified tender'.76

Cooperative procurement

9.5 Cooperative procurement enables the use of a procurement contract by more than one agency. Agencies can procure cooperatively by a joint approach to the market and/or where an agency/ies establish a contract or standing offer arrangement that allows other agencies to access.

9.6 If an agency wishes to join an existing contract of another agency, the initial request for services and the contract/deed of standing offer should have already specified potential use by other agencies, i.e. a multi-agency access clause/s.

9.7 Agencies joining an existing contract should ensure that:

  • value for money is achieved
  • the goods and services being procured are the same as provided for within the contract
  • the terms and conditions of the contract are not being materially altered.77

9.8 Smaller agencies may wish to check with their portfolio agencies to see whether cooperative procurement arrangements for investigation services exist which they could access.

9.9 The AusTender78 search functionality also allows the searching of current cooperative procurement arrangements in APS agencies. Providers listed on the Legal Services Multi-Use List may also offer such services.79

9.10 Some agencies have already approached the market and have established a panel for investigation services. Two agencies with these arrangements in place, at the time of writing, are listed at the end of this appendix under Cooperative Procurement.

Preliminary discussion before engaging a potential investigator

9.11 If an open tender is not required under the CPRs and is undesirable, then a limited tender may be undertaken. In this case a preliminary discussion with the investigator/s may be suitable. Such discussions should focus on the contractor/s suitability for the role in accordance with evaluation criteria. It provides an opportunity to:

  • confirm that the potential investigator has the expertise to investigate the case, given the level of complexity involved
  • confirm training undertaken and/or academic qualifications
  • undertake additional checks on the potential investigator's suitability, including requesting contact details for referees
  • identify any conflicts of interest or concerns about possible bias
  • explore the potential investigator's ideas for managing the investigation
  • clarify the support that may be required from the agency including, for example, access to administrative support and/or legal advice
  • discuss the preliminary details of a contract, including a statement of requirements to define the services the investigator is expected to deliver, the standard to which they are to deliver it, and associated timelines
    • it is important in having discussions of this sort that the agency does not divulge sensitive and/or confidential information
  • establish the basis on which fees are payable, for example, capped costs, hourly rates etc.

9.12 The suggested discussion points above, on skills, experience, the suitability of the investigation methodology and costs, are likely to form the basis of the evaluation criteria for the procurement.80

Tip

A judgement needs to be made about the information that is able to be provided to potential contractor/s, given that no contract has been signed and any potential investigator is, therefore, not yet bound by contract provisions concerning confidentiality.

A general outline of the case, the potentially relevant aspects of the Code, an assessment of the complexity of the case, and the likely number of witnesses should serve as an adequate amount of information on which to approach potential contractors.

Generally, information provided about the case should not include any sensitive information, including personal information about the person under investigation or other parties. However, it will be necessary to check that a particular investigator does not have a conflict of interest in undertaking the work and the name of the person(s) under investigation will therefore need to be disclosed at some point.

Referee checking

9.13 Checking with referees is a critical part of evaluating the suitability of contractor/s and testing a potential investigator's claims regarding skills and capabilities before deciding to engage them.

9.14 A referee should be an individual with a good knowledge of the APS misconduct framework and in a position to answer questions on the outcomes of at least one or more previous investigations of suspected misconduct that the investigator has conducted.

9.15 Agencies may also wish to ask a potential invest igator for a list of agencies for which they have conducted employment related investigations, including the contact details of the relevant contract managers. This enables the agency to choose who to contact as a referee. A potential investigator should be informed that the agency may approach any number of these agencies for references.

9.16 Attachment A to this appendix contains a checklist of suggested questions to ask referees.

Tip

The key to selecting a competent investigator and achieving a good outcome is:

  • thorough referee checks
  • clear terms of reference for the investigation. See Terms of Reference for Investigation below.
  • sound contract management undertaken by a contract manager with a good understanding of the legislative framework, including the agency's procedural requirements for conducting a Code investigation and, ideally, with experience in managing or investigating suspected misconduct.

10. Developing the contract

10.1 Once a decision has been made to engage a contractor to undertake a Code investigation a contract needs to be developed. Advice on the form of the contract and its mandatory terms is usually available from each agency's procurement areas.

10.2 There should be a common understanding between the investigator and the agency about the services to be delivered that is apparent in the contract for services. This will include matters such as:

  • the role of the investigator, for example, to make recommendations
  • the scope of the investigator's powers, for example, confined to the terms of reference for the investigation which cannot be amended without the agreement of the agency
  • the detail of what is to be included in any report to the agency
  • the process that will be followed in gathering evidence and reaching a decision, including the processes mandated by the agency's misconduct procedures81
  • the resources the agency will make available to assist the investigator
    • depending on the nature of the case this could include access to the agency's electronic records, access to legal advice, access to agency subject matter experts, and administrative support
  • if travel is required, the arrangements for paying for the travel or reimbursement of costs and at what rate
  • how procedural issues will be managed, including, in particular, procedural fairness, privacy and confidentiality
  • the agreed time, subject to any unforeseen circumstances, the investigation will take
  • how the records generated by the contractor will be dealt with
    • generally speaking the contract should provide that all records should be returned to the agency's custody at the completion of the contract with all copies deleted from the contractor's system
    • the contractor may be permitted, however, to keep a de-identified and de-sensitized version of the work for their records
  • a requirement in the contract that the investigator will deliver a report at a standard that satisfies the contract manager and to provide in the contract for the investigator to rework the report, at their own cost, if the contract manager is not satisfied with the standard of the draft report
  • where a capped fee is not agreed, the estimated cost of the investigation and the circumstances and processes for approval of additional costs should the investigation require this
  • the arrangements that exist for the investigators' professional indemnity insurance - for example, to cover the cost of defending their decision in court. If there is no professional indemnity insurance the contract may provide that the service provider will meet these costs.

11. Terms of reference for the investigation

11.1 The scope of the investigation, in effect its 'terms of reference', will need to settled and provided to the investigator before the investigation starts. The terms of reference should not be too broad or too narrow and needs to be clear. Different formulations can provide very different outcomes in terms of cost and time and therefore need careful consideration. For example, terms of reference that require an examination of 'Jane's behaviour towards Mary last week' is very different from an examination of 'Jane's behaviour towards Mary' and from 'Jane's behaviour towards Mary at a meeting on [date/time]'.

11.2 It is often helpful to provide the employee under investigation with a copy of the terms of reference for the investigation.

11.3 The contract should be formulated so that if fresh allegations emerge during the investigation revised terms of reference will need to be agreed with the agency.

12. Managing the performance of the investigator

12.1 As with any contract, the performance of the contractor, including whether they are meeting the terms of the contract, needs to be managed. In the case of Code investigations, the contract management role often falls to a human resource practitioner.

12.2 The contract manager should be a person with a good understanding of the legislative framework, including the agency's s15(3) procedures requirements for conducting a Code investigation, and ideally would themselves have experience in managing or investigating suspected breaches of the Code.

12.3 In addition, the contract manager needs to be confident in:

  • advising the investigator on the handling of the investigation. If the investigator is a decision-maker care needs to be taken to ensure that any advice given maintains the independence and impartiality of the investigator
  • assessing the investigator's performance as the investigation progresses and taking action if there are concerns about the investigator's performance.

12.4 All contract managers should familiarise themselves with this guide, Handling Misconduct, and other reference material listed below in the section on Further information. Contract managers are also able to obtain advice about good practice in managing Code investigations from the APSC's Ethics Advisory Service. The contact details for this service are also in the section on Further information below.

12.5 If the contract manager is inexperienced, and doubts arise about the contractor's management of the investigation or procedural issues arise during the investigation, they may need to access expert advice within the agency, for example from the agency's procurement/administrative areas.

12.6 Agencies may wish to consider building the following process stipulations into their contracts with external investigators to provide the contract manager with adequate capacity to guide the investigator.

  • Sufficient details of the process to be followed to enable the contract manager to assess that the process the investigator intends to follow conforms with the agency's misconduct procedures. The amount of detail will vary according to the scope of an agency's misconduct procedures.
  • The investigator to clear all key correspondence with the contract manager before dispatch, including, in particular, the notice prepared under the agency's misconduct procedures to advise the employee of the details of the suspected breach of the Code.
  • The investigator to report on progress to the contract manager at key milestones, and/or regular intervals, during the investigation.
  • The investigator to advise the contract manager of any procedural or other issues that might delay or complicate the investigation. In certain circumstances, it may also be appropriate to require the investigator to clear the handling of these matters with the contract manager. These circumstances include
    • where there are fresh allegations of breaches of the Code that fall outside of the terms of reference
    • where an employee raises medical issues
    • where anyone associated with the process threatens to harm themselves or others.
  • The investigator to clear any correspondence to the individual under investigation or witnesses with the contract manager where that correspondence concerns procedural issues, including complaints or concerns about the investigation raised by the individual under investigation and witnesses.
  • The investigator to provide the contract manager with a draft report before it is submitted as a final report for procedural matters to be checked; however, care needs to be taken that the independence of the report is not compromised.
  • In circumstances where the investigator is asked to determine breach and/or decide sanction, the investigator is to make themselves available to the agency, at their own cost, in the event that questions about the decision are raised on review by the Merit Protection Commissioner or the courts.

12.7 In addition, it may be helpful for the contract manager to review records of interview with the employee under investigation and witnesses as they are completed to check that they are sufficiently thorough and relevant to the matters under investigation.

13. Deliverables required from the investigator

13.1 The key deliverable from the investigation process is an investigation report which includes the investigator's findings, which, depending on the investigator's role, may be preliminary findings, and any recommendations. The documentary and other evidence that was relied upon by the investigator need to be presented in support of the findings and recommendations in the report.

13.2 The report should be clearly written and follow a logical structure.82 Where the investigator is performing a decision-making role, rather than making recommendations to an agency breach decision-maker, the report should:

  • set out the details of the alleged misconduct and summarise how the concerns came to light
  • set out the process followed in the investigation to collect evidence and information
  • determine what facts need to be established in order for the decision-maker to be able to make a decision, i.e. material questions of fact
  • present all the relevant evidence including, in particular, the employee's response to the allegations and to any new or conflicting evidence that was uncovered during the investigation
  • set out the investigator's findings of fact and conclusions for each allegation. This may not be the case if the role is simply to make a recommendation to an agency breach decision-maker
  • include details of the evidence that the investigator relied on to support findings of fact/conclusions
  • include any matters that are disputed and set out the reasons for preferring one account over another
  • note any other inconsistencies in the evidence or issues that remain unclarified
  • identify any mitigating or aggravating circumstances identified during the investigation. This will be especially relevant if a sanction is to be determined
  • express a view on whether the Code has been breached, and refer to the relevant element or elements of the Code in question
  • set out reasons why the action or behaviour amounted to a breach of the element or elements of the Code.83

Tip

Particular attention needs to be paid to the way the investigator presents the allegation of suspected misconduct in the notice of suspected misconduct and then again in the report.

In the course of a misconduct investigation it will be important to make findings of fact about the behaviours the person is alleged to have engaged in. For this reason the allegations should refer to specific behaviours on specific occasions. For example, it is not sufficient to state that the allegation is that the person has breached s13(3) of the Code without describing the behaviours that are of concern.

Nor should the allegations be presented as assertions about the individual's personality or character, for example, that he or she is an aggressive and angry individual. In the absence of examples of specific behaviour it is not possible to prove or disprove assertions about an individual.

Allegations should link specific behaviours, that the investigator is able to gather evidence about, to specific breaches of the Code. For example, 'on [a named date and place, person X] by raising their voice, used threatening language towards a colleague and appeared to be angry and in doing so is alleged to have breached s13(3) of the APS Code of Conduct.'

14. Investigator training programs

14.1 Knowing that an external investigator has attended a relevant training program can provide some reassurance of the skills of the investigator.

14.2 There are investigation skills training programs which could be useful and worth considering in evaluating a contractor's skills. These include competency based training in investigations, particularly with respect to fraud control,84 and training in investigations and administrative decision-making offered by law firms.

14.3 For example, the Australian Government Solicitor offers courses for APS employees who have a role in determining whether a breach of the code of conduct has occurred, when and how suspension from employment should be managed and the imposition of a sanction 85 which focuses on the APS conduct framework. These courses have been assessed by the APSC as appropriately covering the conduct framework and the responsibilities of investigators and decision-makers and for this reason is endorsed. This endorsement does not cover the learning experience or the quality of the facilitator.

15. Further information

15.1 The Ethics Advisory Service within the Commission is available to all APS employees. This includes human resource practitioners and managers who are managing investigations of suspected misconduct, who wish to discuss and seek advice on ethical issues which occur in the workplace, and make sound decisions around these issues.

15.2 The Ethics Advisory Service may be contacted on 02 6202 3737 or by email at ethics@apsc.gov.au.

15.3 The Commission has published a range of guidance on the APS Values, Employment Principles, and the Code and related matters. These publications are available from the APSC's website http://www.apsc.gov.au.

15.4 Of particular relevance is APS Values and Code of Conduct in practice: A guide to official conduct for APS employees and agency heads .86

15.5 From time to time the Commission also releases circulars and advices about specific aspects of reporting or managing suspected misconduct in the workplace. These are available from www.apsc.gov.au/publications-and-media/circulars-and-advices.

15.6 As mentioned throughout this appendix, the Administrative Review Council has published better practice guides on administrative decision-making which explain the elements of making sound and lawful administrative decisions. Those guides are available at www.arc.ag.gov.au/Publications/Reports/Pages/OtherDocuments.aspx.

15.7 Further information on contract management and the CPRs is available at the Finance procurement website www.finance.gov.au/procurement/index.html.

15.8 The Finance website includes a number of tools that may assist agencies conduct streamlined procurement activities. This includes a standard contracting suite and procurement process map for low valued procurements.

Cooperative procurement

15.9 The contact details of three agencies that have in place a panel for investigation services are as follows

Australian Public Service Commission

Panel Name: Business Services Panel – Service Area – Administrative Investigations
Contact Panel Services: (07) 3004 0725 or panelservices@apsc.gov.au

Australian Taxation Office (ATO)

Panel Name: Administrative Investigations and Review Services.
Contact ATO Helpline: 13 15 50

A request for details on the investigator panel arrangements will be escalated to the ATO Code of Conduct area.

Department of Agriculture

Panel Name: Investigation of Misconduct Allegations.
Contact Procurement Advice and Operations Team: Procurementhelpdesk@daff.gov.au


Footnotes

70 At the request of the agency head, or the Prime Minister, the Public Service Commissioner may inquire into and determine whether an APS employee, or former employee, has breached the Code in certain circumstances (s41(2)( n) of the PS Act). Similarly, at the request of an agency head the Merit Protection Commissioner may inquire into and determine whether an APS employee, or former employee, has breached the Code in certain circumstances (s50(ca) and s50A of the PS Act).

71 www.anao.gov.au/html/Files/BPG%20HTML/Developing%20and%20Managing%20Contracts/index.html

72 See the Australian Public Service Commissioner's guidance Delegations under the Public Service Act 1999 and subordinate legislation www.apsc.gov.au/aps-employment-policy-and-advice/employment-framework/delegations.

73 An understanding of the unfair dismissal and adverse actions provisions of the Fair Work Act may be important, depending on the circumstances of any given case. Likewise, an understanding of anti-discrimination law may also be necessary. Training in administrative law is generally offered by law firms.

74 Consistent with the Administrative Review Council's Best Practice Guides, particularly those on 'Evidence, Facts and Findings' and 'Reasons'

75 www.finance.gov.au/procurement/procurement-policy-and-guidance/commonwealth-procurement-rules and www.finance.gov.au/procurement/procurement-policy-and-guidance/buying/accountability-and-transparency/ethics-and-probity/principles.html

76 www.finance.gov.au/procurement/procurement-policy-and-guidance/commonwealth-procurement-rules/cprs-procurement-method.html

77 www.finance.gov.au/procurement/procurement-policy-and-guidance/commonwealth-procurement-rules/cprs-value-for-money.html#cooperative

78 www.tenders.gov.au

79 www.ag.gov.au/LegalSystem/LegalServicesCoordination/Pages/Legalservicesmultiuselistandserviceproviders.aspx

80 Contact details for procurement information is available at www.finance.gov.au/procurement/contact-us.html

81 Some agencies specify how parties are to be contacted.

82 Agencies are encouraged to refer to the Administrative Review Council Best Practice Guides on 'Evidence, Facts and Findings' and 'Reasons' for guidance on this element of administrative decision-making.

83 Ibid

84 The Department of the Attorney-General has information about fraud control and investigations training on its website and links to other sites that provide information on courses at: www.ag.gov.au/CrimeAndCorruption/FraudControl/Pages/default.aspx

85 www.ags.gov.au/training/training-calendar.html

86 www.apsc.gov.au/publications-and-media/current-publications/aps-values-and-code-of-conduct-in-practice - please note at time of publication this guide was under review

Attachment A to Appendix 6

Contacting referees to verify investigator credentials

Checking an investigator's credentials with referees is an important part of the process for choosing an investigator. Questions to ask referees could include

Understanding of the legal and administrative decision-making framework

  • Did you have confidence in the investigator's understanding of the APS misconduct framework and associated administrative law framework?

General abilities

  • Did the employee under investigation challenge the investigator's approach? If so, how did the investigator handle it?
  • Did you have confidence in the investigator's discretion and professionalism?
  • Was the investigation timely and did it represent value for money?

Note: Agencies may have a misconduct matter that requires specialist skills or is particularly complex, for example a case with conflicting evidence and multiple witnesses. This will require more focused questioning of referees about the complexity of the matters the investigator has dealt with.

Procedural matters

  • Did the investigator understand the importance of, and comply with, your agency's s15(3) procedures for investigating suspected misconduct?
  • Did any part of the investigation need to be redone because of a procedural concern with the investigator's approach?
  • Did any problems arise concerning procedural fairness? How was this handled?

Outcomes

  • Did the investigator provide a logical, well-reasoned report?
  • Did you have confidence in the investigator's conclusions and recommendations?
  • Did the investigator deliver the specified services to the required quality and timeliness?
  • Was the process or outcome challenged, for example with an application to the Merit Protection Commissioner, Fair Work Commission, courts or tribunals?
  • What was the outcome of any challenges, including if the matter was settled out of court?
  • Was the outcome or the decision to settle in any way reflective on the role of the investigator?

Appendix 7 - Initial consideration of suspected misconduct checklist

Receiving a report of, or dealing with an incident of, suspected misconduct

□  Is the report of suspected misconduct covered by the Public Interest Disclosure Act 2013 (PID Act)? If so, has the matter been referred to an authorised officer for appropriate action?

  • The agency should take appropriate measures to ensure that its employees comply with the PID Act, including the requirement for supervisors to refer disclosures to the agency's authorised officer in who has responsibility for assessing how the disclosure is to be managed.

□  If not a PID, has the matter been referred to the appropriate person in the agency who has responsibility for assessing how the suspected misconduct is to be managed?

□  Have appropriate measures been taken to treat the information confidential?

□  Have appropriate measures been taken to protect the employee reporting the suspected misconduct from reprisal?

□  If required, has action been taken to protect the safety and wellbeing of employees and clients, and to protect the security of evidence that may be required in the investigation process?

□  If the suspected misconduct is serious, has the matter been referred to the appropriate authorities, for example, the police or internal fraud investigation area?

□  If appropriate, has re-assignment of duties or suspension of the employee suspected of misconduct been considered?

□  Have appropriate records been made of action taken, conversations and meetings?

□  Has management of the impact in the workplace of the reported behaviour, and, if appropriate, the investigation and the outcome of the investigation been considered?

□  If the suspected misconduct became the subject of public comment, has appropriate action been taken to respond to that public comment or other action been taken, for example, to protect the reputation of the agency or the Australian Public Service (APS)?

Considering a report of suspected misconduct

□  If the suspected misconduct was disclosed under the PID scheme, has the disclosure been actioned in accordance with the PID Act requirements?

  • The PID investigation could be a preliminary assessment of whether the suspected misconduct should be subject to a Code of Conduct investigation in accordance with the agency's s15(3) procedures. See Appendix 3 Interaction between the Australian Public Service Code of Conduct and the Public Interest Disclosure Act of this guide for further information.

□  Where the suspected misconduct raises concerns that relate both to effective performance and a potential breach of the Code, has the APS Commissioner's guidance on this matter been considered as required by clause 4.2 of the Australian Public Service Commissioner's Directions 2013? The guidance is in Relationship between misconduct and performance management processes in Part II, Section 5 of this guide.

□  Where the suspected misconduct does not relate to serious misconduct, have alternative methods of addressing the behaviour been considered?

  • For example, warning the employee that continuation of inappropriate behaviour may result in further action such as a misconduct investigation, giving a direction about appropriate behaviour, monitoring or closely supervising the employee, counselling, mediation, or learning and development.

□  To enable consistency of approach in the agency, have agency behavioural standards or agency guidance material on handling misconduct been considered?

□  If a former employee is suspected of misconduct, in deciding whether to investigate the matter have the following matters been considered

  • availability of and access to evidence
  • what public interest there is in investigating the matter
  • the implications for maintaining proper standards of APS conduct and public confidence in the integrity and reputation of the agency or the APS if the matter is not investigated?

□  If the matter is to be investigated under the agency s15(3) procedures, has a decision-maker been appointed, or otherwise authorised, in accordance with those procedures?

Appendix 8 - Employee suspension checklist

Matters for consideration by the suspension decision-maker and action required to enable the suspension87

Preliminary considerations

□  Have you been delegated the power to suspend the employee consistent with regulation 9.3 of the Public Service Regulations 1999 (PS Regulations) and agency policies?

  • If you are not an Australian Public Service (APS) employee, has the delegation been approved by the Australian Public Service Commissioner consistent with regulation 9.3(4) of the PS Regulations?

□  Have you been involved in any related inquiry under the agency's s15(3) procedures?88

□  Have you declared any potential conflicts of interest? See Independent and unbiased decision-maker in Part II, Section 6.1 of this guide.

□  Are you personally satisfied that you will be able to bring an independent and unbiased mind to this matter and that a reasonable bystander would agree?

Deciding whether or not to suspend

□  Do you believe on reasonable grounds that the employee has, or may have, breached the APS Code of Conduct (the Code), and that it is in the public interest, or the agency's interest, to remove the employee from the workplace?

For example,

  • does the alleged conduct pose a risk to
    • the safety of staff, clients or customers
    • the integrity of information held by the agency
    • Commonwealth resources or public revenue
    • the confidence of the public in the administration of the agency or the APS as a whole, especially in the case of more serious suspected misconduct?
  • Is there a risk that
    • the evidence in relation to the alleged misconduct will be compromised if the employee remains in the workplace
    • the alleged misconduct will be repeated?

□  Has re-assignment of duties or alternative management action been considered?

When imposing suspension

□  Have you decided if the suspension will be with or without remuneration?

Generally, suspension without remuneration would be appropriate for serious cases, for example, where a potential appropriate sanction would be termination of employment if a breach of the Code is determined.

□  Have you provided the employee an opportunity to make a statement before the suspension decision is made? 89

□  Where you consider that there is an immediate need for the employee to be removed from the workplace before any suspension decision is made, have you considered the following options:

  • inviting the employee to seek leave, and granting the leave in line with your agency's arrangements, for example miscellaneous leave with pay
  • providing the employee an opportunity to work from home for a specified period, in accordance with your agency's arrangements and s25 of the PS Act, to prepare a statement before the suspension decision is made?

□  If, before the suspension decision is made, you are satisfied on reasonable grounds that, in the particular circumstances, it would not be appropriate to give the employee an opportunity to comment, have you

  • recorded, before the suspension decision is made, your reasons for this, and
  • advised the employee accordingly and given the employee an opportunity to make a submission immediately after the suspension decision was made?

□  Have you considered how you will discharge your obligation under regulation 3.10(4) of the PS Regulations to review the suspension at reasonable intervals and advised the employee when you propose to review the suspension?

  • A review of the suspension decision may be conducted at the request of the employee if, for example, the employee raises matters relevant to hardship where suspension is without remuneration.

□  Has the employee been advised of what has been decided in respect of work-related events during the suspension such as training courses already booked and entitlement to apply for APS vacancies, and other work-related matters such as access to work premises?

□  Has the employee been advised of his or her review rights under s33 of the PS Act and Part 5 of the Regulations?

Where suspension is without pay

□  Has the employee been given reasonable opportunity to comment on any proposal to suspend without pay, including on any issues of hardship, before any decision is made to suspend without pay?

□  Has the employee been advised about possible access to leave credits?

□  Has the employee been advised about whether he/she may seek outside employment and whether prior approval of the agency is required?

□  If the period of suspension without pay is proposed to be longer than 30 days, are there exceptional circumstances that apply?

During suspension

□  Are you reviewing the suspension at reasonable intervals?

□  Have you invited the employee to make a submission to those reviews?

Where it is determined that the employee suspended without pay has not breached the Code of Conduct

□  Is salary forgone during suspension to be reinstated or is there a case for not doing so, for example, the employee received earnings from outside employment?

□  Is it appropriate to re-credit any paid recreation leave or long service leave taken during suspension?

Reasons for ending the suspension

□  Has a sanction been imposed on the employee for the relevant breach? See regulation 3.10(6) of the PS Regulations. or

□  Do you no longer believe that the employee has or may have breached the Code? See regulation 3.10(5)(a) of the PS Regulations. or

□  Do you no longer believe that the suspension is in the public interest or in the agency's interest? See regulation 3.10(5)(b) of the PS Regulations.

At the conclusion of the period of suspension

□  Has the appropriate documentation in relation to ceasing suspension been completed and all relevant documents placed on record?


Footnotes

87 See Deciding whether to reassign duties or suspend the employee in Part II, Section 5.8 of this guide.

88 A suspension decision-maker may make necessary inquiries to determine if suspension is appropriate in the circumstances. This may include informing themselves of the results of any preliminary investigations, whether for Public Interest Disclosure Act 2013 or Code purposes. To avoid the perception of bias and avoid any real or apparent conflicts of interest it is good administrative practice for the suspension decision-maker not to be involved in the related investigation under the agency's s15(3) procedures.

89 Regulation 3.10(7) requires an agency head to have regard to procedural fairness when making decisions about suspension unless the agency head is satisfied on reasonable grounds that, in the particular circumstances, it would not be appropriate.

Appendix 9 - Making a decision about a breach of the Australian Public Service Code of Conduct checklist

About the checklist90

Preliminary considerations

□  Have you been properly appointed or otherwise tasked by your agency head or authorised person in line with your agency's s15(3) procedures?91

□  Have you declared any potential conflicts of interest? See Independent and unbiased decision-maker in Part II, Section 6.1 of this guide.

□  Are you personally satisfied that you will be able to bring an independent and unbiased mind to this inquiry and that a reasonable bystander would agree?

□  Have you read your agency's s15(3) procedures and other guidance material?

□  Where relevant, have you familiarised yourself with your agency policy, procedures or guidelines for dealing with fraud?

□  Have you decided how the matter is to be investigated? See Investigative process in Part II, Section 6 of this guide for further information.

  • If an external investigator is being considered, see Appendix 6 Australian Public Service Code of Conduct: Tips and traps in selecting external investigators of this guide
  • When deciding who will investigate the suspected misconduct care needs to be taken not to breach the privacy protections under the Privacy Act 1999or the non-disclosure obligations under the Public Interest Disclosure Act 2013.

□  Is the scope of the investigation clearly defined? See Deciding the Scope of the investigation in Part II, Section 6.2 of this guide for more information. Agency guidance material or agency HR managers may be available for further guidance.

□  If you are being assisted by an investigator, are you appropriately supervising the investigator's conduct of the investigation and appropriately involved in the investigation, noting that the conduct of the investigation and the making of findings of fact and findings about breach of the Code are your responsibility?92 For example has the investigator been provided guidance on:

  •  what alleged conduct is to be investigated and which element(s) of the Code may have been breached? See Deciding on the Scope of the investigation in Part II, Section 6.2 and Appendix 5 Elements of the Australian Public Service Code of Conductof this guide for more information.
  • the likely witnesses or where other evidence may be available?

Advice to the person suspected of misconduct

□  Have you, in line with your agency's s15(3) procedures, ensured that the person suspected of misconduct has been advised of:

  • the inappropriate actions or behaviours they are suspected of committing? That is, have they been provided with clear advice about the nature of the act, or acts, that they are suspected of having committed?
    • If during the investigation it becomes clear that the actions or behaviours they are suspected of committing changes, the person should be informed of these before a determination is made about breach.
  • the element(s) of the Code they are suspected of breaching?
    • If during the investigation it becomes clear that the element(s) of the Code that the person is suspected of breaching changes93, the person should be informed of these before a determination is made about breach.
  • the sanctions that may be imposed under s15(1) of the PS Act?
  • if you are being assisted in running the inquiry, who will be providing you that assistance?
  • that you will be making the determination?
  • how the process is expected to proceed in accordance with the agency's s15(3) procedures such as providing them with a copy of the agency's guidance material and procedures?

Gathering the evidence and evaluating the facts

□  Before making your final determination have you ensured that the person suspected of misconduct has been provided with a reasonable opportunity to make a statement in relation to the suspected breach?94

□  In particular, has the person suspected of misconduct been given adequate notice of all material of which you are aware and which is credible, relevant and significant to the proposed breach decision?

  • This includes any such material which could assist the person in answering the case against them, even though you do not propose to rely on the material in making particular findings or decisions adverse to the person?

□  Have you only taken into account evidence that is relevant, credible and probative in relation to each material finding of fact?

□  Have you ensured that appropriate witnesses have been questioned and any conflicting witness statements or conflicting evidence verified or otherwise checked?

□  Have you ensured that any explanations, or evidence, provided by the person suspected of misconduct or witnesses have been appropriately tested and given proper weight?

□  Are you satisfied there is no relevant evidence that has not been taken into account and there is enough reliable evidence to be able to draw a reasonable conclusion on the balance of probabilities?95

□  Has the person suspected of misconduct been given a reasonable opportunity to respond to new credible, relevant and significant material which has emerged since a previous notice to the person?

Reviewing the evidence and writing the investigation report

□  Does the investigation report:

  • outline the nature of the suspected misconduct, that is the suspected inappropriate actions or behaviours
  • identify relevant legislation and policy material or guidelines or other agency practices you took into account
  • set out the steps taken to collect evidence and information
  • outline the evidence and present it in a balanced way, that is including evidence both for and against the person, including the accused person's response to the allegations and the person's response to any new or conflicting evidence that was uncovered in the course of the investigation
  • outline the conclusions or findings on material questions of fact made on the available evidence including any inconsistencies in the evidence or issues that remain unclear. These conclusions need to flow logically from the evidence that has been collected and considered.
  • how all the relevant elements of the Code were considered and reasons why the action or behaviour did, or did not, amounted to a breach of the element or elements of the Code?

Preparing a decision record

□  Have you made a written record of your decision?

□  Does the decision record comply with the agency's s15(3) procedures? Any statement of reasons for the breach decision could include:

  • a summary of the evidence you took into account in making your decision and any evidence or established facts that were not taken into account and reasons why you did not consider that evidence relevant
  • your findings of fact on the balance of probabilities about what happened, that is the act or acts suspected of being misconduct
  • your decision as to whether those act or acts amount(s) to misconduct, and, if so, which elements of the Code have been breached and why.

In summary, you need to include any detailed background to the making of your decision so that the person suspected of misconduct can understand your reasoning. Your decision may also be reviewed by the Merit Protection Commissioner, or other external bodies, so it is good practice for your decision process and the evidence and facts you relied to be clearly identifiable. For further information see Preparing a decision report in Part II, Section 7.2 of this guide.

Advising person suspected of misconduct of the outcome of investigation

□  Have you considered what would be the best way to advise the person suspected of misconduct of your decision?96

□  Where you have determined that there has been a breach of the Code, have you considered what would be the best way for the employee fund to have breached the Code to be given notice of matters relevant to any potential sanction consistent with your agency's s15(3) procedures?

□  Have you notified the person found to have breached the Code of any right to seek review of your determination under s33 of the PS Act, noting that seeking a review will not operate to stay the imposition of the sanction?97

□  If the evidence does not support a decision that there has been a breach of the Code, have you informed the person suspected of misconduct of your conclusion?

Next Steps

  • Where it has been determined that an employee has breached the Code, the next stage is to refer the case to the sanction decision-maker to determine if a sanction or sanctions are to be imposed and/or if other administrative action is to be taken. It may be the responsibility for line managers to determine whether administrative action is to be taken.
  • It is appropriate for the employee found to have breached the Code to be informed of the name of the person who has been given the authority to determine any sanction(s) and what the next steps of the process will involve.
  • Where the misconduct came to light through an allegation made by, for example, another employee, that employee can be informed of the outcome of the investigation in accordance with agency guidance material and taking into account the requirements of the Privacy Act 1988 and the Public Interest Disclosure Act 2013.
  • Where it has been determined that an employee has not breached the Code, consideration should be given to whether any remedial action is needed such as training/development, performance management measures or changes to processes and systems, or whether there is a need to address any issues within the work environment arising from the initial complaint. For example mediation or openly discussing issues of concern within the workplace.

Footnotes

90 This checklist is designed to assist persons appointed under an agency's s15(3) procedures to make a determination about whether an employee, or former employee, that is the person suspected of misconduct, has breached the Code. Separate guidance, and a checklist, is available at Appendix 7 concerning initial consideration of suspected misconduct and whether to initiate action under those procedures. This checklist is consistent with the requirements in Chapter 6 of the Australian Public Service Commissioner's Directions 2013 but is subject to any additional requirements under an agency's s15(3) procedures.

91 Under s15(3) of the Public Service Act 1999, each agency head establishes mandatory procedures for investigating suspected misconduct in their agency.

92 This statement about the responsibility of the breach decision-maker is subject to any contrary provisions of the agency's s15(3) procedures

93 For example, if additional elements of the Code are being considered, or if it becomes clear that other, more relevant, elements should be considered instead.

94 Procedural fairness requires the person to be sufficiently advised of the nature of the case against him or her to respond properly to the allegations. See Investigating whether misconduct has occurred in Part II, Section 6.4 of this guide.

95 The required degree of satisfaction on the balance of probabilities increases in accordance with the seriousness of the matter under consideration. See Standard of Proof in Part II, Section 7.2 of this guide.

96 The employee, or former employee, should usually be informed of the decision. Clause 6.4 of the Australian Public Service Commissioner's Directions 2013requires that the employee must be notified of the breach decision before any sanction may be imposed. In most cases, this would be expected to be done in person with the employee concerned, providing an opportunity to explain the decision and the consequences of it for the employee. It may be appropriate to allow the employee to have a support person at the meeting. A meeting of this kind would generally be additional to providing them with a copy of the decision and the report on which it was based.

97 A Senior Executive Service employee has no right of review under s33 and the relevant regulations.

Appendix 10 - Sanction decision-making checklist

Matters for consideration when making a decision about imposing a sanction following a determination that an employee has breached the Code

Preliminary considerations

□  Do you have the power to make the sanction decision?

Have you been delegated the role of sanction decision-maker and relevant powers by the head of the agency consistent with your agency's policies and s78 of the Public Service Act? Have you been delegated powers to impose the sanction e.g. transfer at level, reduction in classification or termination of employment? See Sanction Delegate in Part II, Section 7.4 of this guide.

□  Have you declared any potential conflicts of interest that might arise from or in making a sanction decision?

□  Are you satisfied that you will be able to bring an independent and unbiased mind to this inquiry and that a reasonable bystander would agree?

□  Have you read your agency's s15(3) procedures and other guidance material? Factors to be considered in determining the sanction in Part II, Section 7.4 of this guide is also relevant

□  Are you aware of the sanctions available under s15(1) of the Public Service Act?

□  If you have any concerns that the determination of breach of the Code was not made in accordance with legal requirements, such as your agency's s15(3) procedures, have you raised this with the relevant person within your agency? See The determination and sanctionPart II, Section 7 of this guide for more information. People delegated to impose a sanction are not generally able to remake determinations of breaches of the Code.

Advice to the employee who has breached the Code before making a decision

□  Has the employee who has been found to have breached the Code been advised in writing

  • that a determination has been made that he or she has breached the Code
  • of the particular sanction(s) under consideration
  • of the factors that are under consideration in determining any sanction(s)?

□  Has the employee who has breached the Code been provided with a reasonable opportunity to make a statement in relation to the particular sanction(s) under consideration and the factors relating to it?

Matters for consideration in determining the sanction or sanctions

Further information on the matters for consideration in determining the sanction can be found in Part II, Section 7.5 of this guide.

Before deciding what sanction, if any, to impose, have you

□  considered the nature and seriousness of the breach?

□  considered the degree of relevance of the misconduct to the employee's duties?

□  considered the likely impact on the reputation of the agency and the APS if the misconduct were a matter of public knowledge?

□  considered whether the misconduct was uncharacteristic of the employee or whether there have been other similar findings of a breach of the Code?

□  considered what other action has been taken to try to improve the behaviour of the employee? For example counselling, training or performance management within the last two years.

□  considered any previous sanctions imposed for a similar breaches of the Code, if the employee has previously breached the Code?

□  taken into account any remorse or willingness to take responsibility for the breach, or understanding of the seriousness of the breach, by the employee?

□  taken into account other action that may have already been taken such as suspension from duty with or without remuneration?

□  considered what sanction, if any, is necessary for the employee to understand the gravity of the situation and for you to be confident that they are unlikely to breach the Code again?

□  considered any mitigating or extenuating factors, including any such factors raised by the employee? See Mitigating Factors in Part II, Section 7.4 of this guide.

□  considered any information or guidance from your agency on sanction decisions to ensure consistency where circumstances are essentially similar? See Consistency of sanctions in Part II, Section 7.4 of this guide.

□  considered other sources of information? If there is no information available about other cases from within your agency other sources of information could be your home agency, case studies of the Merit Protection Commissioner's case summaries and the APSC Ethics Advisory Service98, for example, may be able to provide you with information or advice about appropriate matters to consider when determining sanctions.

Preparing a decision record

□  If you have decided to impose a sanction or sanctions, have you made a written record of your decision?

□  Have you complied with any obligation in your agency's s15(3) procedures to provide a statement of reasons for your sanction decision, including such matters as your findings on material questions of fact, a reference to evidence or other material on which those findings are based, and reasons for your decision?99 Reasons for your decisions could include such matters as

  • your consideration of the range of sanctions available
  • your consideration of any mitigating or extenuating circumstances raised by the employee.

□  Does your decision set out clearly your reasoning for your decision so that the employee can understand why you have imposed the relevant sanction(s) and so that your decision may be properly understood in any subsequent review?

Advising the employee who has breached the Code of your decision

□  Have you taken reasonable steps to inform the employee

  • of your decision on the sanction(s) to be imposed, if any, consistent with relevant requirements in your agency's s15(3) procedures, and
  • when the sanction or sanctions will take effect?

□  Have you ensured that the employee has been advised of any right to seek review under s33 of the PS Act, or other review rights, of your decision, noting that seeking a review will not operate to stay the imposition of the sanctions?


Footnotes

98 See www.apsc.gov.au/aps-employment-policy-and-advice/merit/case-summaries and www.apsc.gov.au/aps-employment-policy-and-advice/ethics/ethics for more information

99 The relevant factual findings are those which relate to sanction. You are bound by the findings made by the breach decision-maker as to what conduct was engaged in by the employee and whether this was a breach of the Code.