Part I: Framework for handling misconduct

Last updated: 02 Aug 2015

This page is: current

1. Introduction

1.1 Purpose

1.1.1 This guide, Handling Misconduct, is aimed at assisting Australian Public Service (APS) agencies to develop a timely and effective approach to managing suspected and proven misconduct.

1.1.2 Agencies are encouraged to use the information in this guide to develop their guidance material. The better practice advice, sample procedures and checklists are not intended to be prescriptive and can be used to inform agency guidance material and procedures.

1.2 Structure

1.2.1 Handling Misconduct comprises three parts and appendices:

  1. Part I, Sections 1–3 outlines the legislative framework, the context and key concepts applying to reporting and dealing with suspected misconduct i.e. suspected breaches of the APS Code of Conduct (the Code).
  2. Part II, Sections 4–7 contains good practice advice on reporting and managing suspected misconduct, from the time an allegation is received to the imposition of sanctions. Part II is the core of this guide and steps through the key stages of the process.
  3. Part III, Sections 8-10 contains good practice advice on associated processes, such as record-keeping, review of decisions and quality assurance mechanisms.

1.2.2 The appendices to Handling Misconduct provide further information including:

  1. information on the application of the Code to statutory office holders
  2. an example of agency procedures under s15(3) of the Public Service Act 1999 (PS Act)
  3. information on the interaction between the Code and the Public Interest Disclosure Act 2013
  4. information on the relationship between the Code and the duties of officials in the Public Governance, Performance and Accountability Act 2013
  5. information on each element of the Code
  6. tips and traps when selecting an external investigator
  7. a checklist for consideration of incidents or reports of suspected misconduct when first identified
  8. a checklist for decision-makers when considering suspending employees
  9. a checklist for decision-makers making determinations of a breach of the Code
  10. a checklist for decision-makers imposing a sanction.

1.3 Terminology

1.3.1 Terms used in this guide have the same meanings as set out in s7 of the PS Act and subordinate legislation. Where the legislation does not define terms used in this guide, they have the following meanings:

  • 'assignment of duties' means the action of the agency head, under s25 of the PS Act, in determining the duties of an employee and the place or places where the duties are to be performed. A related action is the 're-assignment of duties' which is one of the sanctions available under s15 of the PS Act
  • 'breach decision-maker' means the person selected under the agency's s15(3) procedures to determine whether or not a breach of the Code has occurred
  • 'determination' means a decision made by the breach decision-maker under the agency s15(3) procedures about whether an APS employee was found to have breached the Code
  • 'employee' means a person employed under the PS Act. It may include former employees who are or have been the subject of an investigation under an agency's s15(3) procedures in relation to action(s) while they were employed under the PS Act
  • 'misconduct' means conduct by a person while an APS employee that is determined under s15(3) procedures to be in breach of the Code. Before such a determination is made, the conduct is referred to as 'suspected' or 'alleged' misconduct
  • 'misconduct action' or 'misconduct process' refers to those processes and decisions, in relation to an individual, that an agency carries out in accordance with its s15(3) procedures
  • 'movement' means a voluntary move of an ongoing employee between agencies under s26 of the PS Act
  • 'must' is used where an action is a requirement in the PS Act, Public Service Regulations 1999(PS Regulations), Australian Public Service Commissioner's Directions 2013 or other law
  • 'public interest disclosure' or 'PID' has the same meaning as in the Public Interest Disclosure Act 2013
  • 's15(3) procedures' means the procedures established by the agency head in accordance with s15(3) of the PS Act for determining whether an APS employee, or former employee, in the agency has breached the Code and the sanctions, if any, that are to be imposed where a breach of the Code has been determined
  • 'sanction' means one of the actions set out in s15(1) of the PS Act
  • 'sanction decision-maker' means the person who is the delegate of the agency head under s15(1) of the PS Act for the purpose of deciding sanction
  • 'should' indicates good practice
  • 'suspension' means the action of standing an employee down from their duties for a suspected breach of the Code, as set out in s28 of the PS Act and regulation 3.10 of the PS Regulations
  • 'suspension decision-maker' means the person who is the delegate of the agency head under regulation 3.10 of the PS Regulations for the purpose of deciding whether an employee should be suspended from duty.

1.4 Further information

1.4.1 Further information on the APS Values, Employment Principles and the Code is available from the Australian Public Service Commission's (the Commission) website at www.apsc.gov.au and from the Ethics Advisory Service on 02 6202 3737 and ethics@apsc.gov.au.

1.4.2 This guide complements other Commission publications and advice relating to the behaviour expected of APS employees, particularly APS Values and Code of Conduct in practice: A guide to official conduct for APS employees and agency heads.1

1.4.3 Other useful sources of information on issues relating to misconduct include:

  • material on privacy on the website of the Office of the Australian Information Commissioner
  • legal briefings from law firms
  • published decisions of courts and the Fair Work Commission
  • the Merit Protection Commissioner's case summaries published on the APS Commission website.2

1.5 Legal advice on the Public Service Act

1.5.1 Agencies are asked to contact the Legal Services Unit in the Commission at legal@apsc.gov.au when obtaining legal advice on the PS Act. Agencies are to forward copies of legal advice they obtain to the Commission, consistent with clause 10 of the Legal Services Directions 2005.

1.6 Disclaimer

1.6.1 The Commission has used its best endeavours to ensure the accuracy of the material at the time of writing, and will update the document from time to time. Agencies will be notified of any significant changes to the misconduct framework through the Commission's website as they arise.

1.6.2 However, the Commission is unable to guarantee that this guide is complete, correct and up-to-date, or that it is relevant to the particular circumstances of any matter. Agencies may wish to consider obtaining legal advice before making a decision if they are uncertain of their obligations.


Footnotes

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

2 See www.apsc.gov.au/aps-employment-policy-and-advice/merit/case-summaries

2. Legislative Framework

2.1 Legislative framework

2.1.1 The legislative framework for handling suspected misconduct in the Australian Public Service (APS) includes a number of components. The main legislative base is the Public Service Act 1999 (PS Act).

Public Service Act

2.1.2 Together the APS Values (s10 of the PS Act), the APS Employment Principles (s10A of the PS Act), and the APS Code of Conduct (the Code) (s13 of the PS Act and regulation 2.1 of the Public Service Regulations 1999 (the PS Regulations)) set out the standards of conduct required of APS employees. The APS Values set out the standards and outcomes that are expected of APS employees while the APS Employment Principles broadly guide employment and workplace relationships in the APS. The Code sets out the behaviour expected of individual APS employees. These statements of expected standards help to shape the APS organisational culture.

2.1.3 The PS Act, the PS Regulations, and the Australian Public Service Commissioner's Directions 2013 (the Directions) are available on the ComLaw website.3

2.1.4 The Code applies to:

  • all APS employees engaged under the PS Act i.e. ongoing and non-ongoing employees and heads of overseas missions (ss7, 13, and 39 of the PS Act)
    • it does not apply to locally engaged employees in overseas missions
  • all agency heads, including secretaries of departments, heads of executive agencies and heads of statutory agencies (s14(1) of the PS Act)
  • certain statutory office holders to the extent that they supervise, or have a day-to-day working relationship with, APS employees (s14 of the PS Act and regulation 2.2 of the PS Regulations). Further information can be found in Appendix 1 Statutory officer holders and the Australian Public Service Code of Conduct of this guide.

2.1.5 In addition, the Code extends to behaviour when applying for employment in the APS. Under s15(2A) of the PS Act an APS employee can be found to have breached the Code if they provided false and misleading information, wilfully failed to disclose relevant information, or failed to act with honesty and with integrity in connection with their engagement as an APS employee.

Agency s15(3) Procedures

2.1.6 Section 15(3) of the PS Act requires agency heads to develop written procedures for determining:

  1. whether an employee, or former employee, in their agency has breached the Code
  2. the sanction, if any, that is to be imposed on an employee where a breach of the Code has been found.

2.1.7 If an employee is found to have breached the Code, an agency head may impose sanctions. The available sanctions are listed in s15(1) of the PS Act. However, a sanction cannot be imposed on former employees.

2.1.8 The procedures must comply with the basic procedural requirements contained in the Directions (s15(4)(a) of the PS Act and Chapter 6 of the Directions) and must have due regard to procedural fairness (s15(4)(b) of the PS Act). Section 15(4)(b) of the PS Act explicitly recognises that the administrative law principles of procedural fairness apply to the misconduct action process.

2.1.9 Most administrative decisions that affect the rights and interests of individuals need to be made in accordance with the rules of procedural fairness and other administrative law principles. See Part II, Section 6 Investigative Process of this guide for further information.

2.1.10 Anyone given responsibility for investigating suspected misconduct, determining whether there has been a breach of the Code and imposing a sanction should have a good understanding of the procedural requirements for making a lawful administrative decision. 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.

2.1.11 It is preferable for agency s15(3) procedures to include a statement about how the person who determines whether a breach has occurred is to be selected or otherwise identified. While an agency head may nominate any person to make that selection, it is generally good practice for agency s15(3) procedures to identify clearly at least one person or position who can select a decision-maker in each case.

2.1.12 Agency s15(3) procedures should be established as soon as practicable after the creation of a new agency. Where agencies are affected by machinery of government (MOG) changes, including a name change and/or changes to administrative functions, it would be prudent for agencies to remake their procedures to avoid any doubt about the validity of the procedures applied to suspected misconduct after the MOG changes.

2.1.13 The agency head must ensure that the agency's s15(3) procedures are made publicly available (s15(7) of the PS Act). Many agencies meet this requirement by posting their procedures on their websites.

Basic procedural requirements—Australian Public Service Commissioner's Directions

2.1.14 The Directions (Chapter 6) set out basic procedural requirements with which agency s15(3) procedures must comply. These basic procedural requirements are to the effect that:

  • A determination may not be made in relation to a suspected breach of the Code unless reasonable steps have been taken to inform the employee, or former employee, of the details of the suspected breach and, for employees, the sanctions that may be imposed (clause 6.3 of the Directions).
    • This includes providing the employee or former employee with information on any variation in the suspected breach.
  • The employee or former employee must be given a reasonable opportunity to make a statement in relation to the suspected breach (clause 6.3 of the Directions).
  • If a determination is made that an employee has breached the Code a sanction may not be imposed unless reasonable steps have been taken to inform the employee of the determination and each sanction being considered. This means more than simply advising the employee of the range of sanctions available under s15(1) of the PS Act. The agency must also take reasonable steps to inform the employee of the factors that are being considered in deciding sanction and the employee must be given a reasonable opportunity to make a statement in relation to the sanctions under consideration (clause 6.4 of the Directions). A sanction cannot be imposed on a former employee.
  • Reasonable steps must be taken to ensure that a person who determines whether there was a breach of the Code and a person who decides any sanction is, and appears to be, independent and unbiased (clause 6.5 of the Directions). More information on these roles is available in Part II, Sections 6 and 7 and checklists in the appendices 9 and 10 of this guide.
    • Care needs to be taken in selecting and appointing or delegating people to these roles to ensure that decisions are not later invalidated owing to an incorrect appointment.
  • The process for determining whether an APS employee, or former employee, has breached the Code must be carried out with as little formality and as much expedition as a proper consideration of the matter allows (clause 6.6 of the Directions).
  • If a determination is made in relation to a suspected breach of the Code, a written record must be made of the determination—whether the employee or former employee was found to have breached the Code or not. Where a breach is determined and a sanction imposed, a record must also be made of the sanction decision. If a statement of reasons was given to the affected person, that statement must be included in the written record (clause 6.7 of the Directions).

Directions relating to movement between agencies

2.1.15 Where an employee moves to a different agency while misconduct action is in train, the procedures of the losing agency no longer apply. If the misconduct action is to continue, it needs to do so under the procedures of the receiving agency. See Part II, Section 7.8 Employee moves to another APS agency before a determination or a sanction is made of this guide.

Other relevant legislation

2.1.16 Other legislation of relevance to handling suspected and proven misconduct include:

  • Administrative Decisions (Judicial Review) Act 1977
  • Fair Work Act 2009
  • Freedom of Information Act 1982
  • Privacy Act 1988
  • Public Interest Disclosure Act 2013
  • Public Governance, Performance and Accountability Act 2013
  • Work Health and Safety Act 2011.

2.2 Developing s15(3) procedures and agency guidance material on handling misconduct

2.2.1 Taking action in cases of suspected misconduct is primarily aimed at protecting the integrity of the agency and the APS and thereby maintaining public confidence in public administration. Rather than seeking to punish the employee, an aim of misconduct action is to maintain proper standards of conduct by APS employees and protect the reputation of the APS. Sanctions are intended to be proportionate to the nature of the breach, to be a deterrent to others and to demonstrate that misconduct is not tolerated in the agency.

2.2.2 Agency s15(3) procedures, and any associated guidance material, need to strike an appropriate balance between the interests of employees, the agency as an employer and the public.

2.2.3 Agency s15(3) procedures must be consistent with the PS Act and the Directions.

2.2.4 Section 15(5) of the PS Act provides that agency procedures may include different procedures to deal with:

  • different categories of employees, for example probationers
  • determining breach for former employees
  • determining breach for employees, or former employees, who have been found to have committed an offence against a Commonwealth, State or Territory law.

2.2.5 An agency's s15(3) procedures are often included in an appendix to agency guidance material. An example of agency s15(3) procedures can be found at Appendix 2 to this guide.

Compliance with agency procedures

2.2.6 Agencies are advised to emphasise to managers, decision-makers and delegates the importance of complying with the agency's s15(3) procedures. Failure to comply will leave the agency exposed to legal risk and, in particular, a risk that the breach decision and/or sanction decision may be challenged.

Flexible procedures

2.2.7 It is advisable that agencies keep their s15(3) procedures relatively brief and as flexible as possible while still meeting the legislative requirements. This will help minimise the risk that the decision-making process fails to comply with the s15(3) procedures. For example, it may be preferable not to mandate that the person under investigation must receive an oral hearing as it may not be possible to provide this in all cases. If agencies wish to provide practitioners and employees with detailed guidance, including good practice guidance, this can be included in separate guidance material.

Additional guidance material

2.2.8 An agency's s15(3) procedures can be accompanied by separate, more detailed guidance material, drawing on this guide. Alternatively, some agencies may prefer not to have separate guidance material, relying instead on this guide to fulfil that function.

2.2.9 Agencies should ensure that the guidance material avoids words that appear to impose mandatory requirements, such as 'must', unless this is intended and appropriate e.g. references to the mandatory requirements of the statutory framework.

2.3 Managing misconduct action consistent with privacy requirements

2.3.1 Misconduct action gathers personal information, as defined in s6(1) of the Privacy Act 1988(Privacy Act)about employees, former employees and other persons involved in the events associated with the suspected misconduct.

2.3.2 This personal information must be handled within the boundaries set by the Privacy Act, the PS Act and the PS Regulations. If the suspected misconduct came to light through a public interest disclosure under the Public Interest Disclosure Act 2013(PID Act) agencies must take account of the PID Act in dealing with personal information. For further information on the PID Act see the Commonwealth Ombudsman website www.ombudsman.gov.au/pages/pid/ and Appendix 3 of this guide.

2.3.3 The arrangements for the collection, storage, use and disclosure of information of this kind are subject to the Australian Privacy Principles in the Privacy Act. Advice from the Office of the Australian Information Commissioner is relevant to the development of personal information handling practices. The use and disclosure of personal information collected by agencies in the context of their employer powers is facilitated by regulation 9.2 of the PS Regulations. Agencies must also have regard to any advice issued by the Australian Public Service Commissioner on the operation of regulation 9.2.

2.3.4 Agencies are advised to assess their misconduct management, investigation and decision-making processes in accordance with:

  • the Privacy Commissioner's guidance on APP 3 (collection of solicited personal information), APP 4 (dealing with unsolicited personal information), APP 5 (notification of collection of personal information) and APP 6 (use or disclosure of personal information), and
  • any guidance from the Australian Public Service Commissioner on regulation 9.2

to ensure that personal information is collected, used and disclosed lawfully.

2.3.5 Agencies may wish to consider whether to develop a specific privacy policy relating to the misconduct process and tools to support managers, human resource practitioners and decision-makers in handling personal information consistent with the agency's obligations under the Privacy Act.


Footnotes

3 www.comlaw.gov.au

3. Concepts and context

3.1 Obligation to uphold the Values, Employment Principles and Code

3.1.1 Australian Public Service (APS) agency heads and APS employees have obligations to act consistently with the APS Code of Conduct (the Code). Agency heads and Senior Executive Service employees have an additional duty to uphold and promote the APS Values and APS Employment Principles (s12 and s35(3)(c) of the Public Service Act 1999 (PS Act) and clauses 1.7 and 1.8 of the Australian Public Service Commissioner's Directions 2013 (Directions)).

Other requirements

3.1.2 APS employees have a range of other legal obligations arising from administrative law, criminal law, and legislation that directs the administrative functions of the agency for which they work.

3.1.3 The Public Governance, Performance and Accountability Act 2013 (PGPA Act) is one area where direct links exist between specific legislative obligations and the Code. The PGPA Act provides, through the duties of officials, a set of expected behaviours necessary for high standards of governance, performance and accountability. See Appendix 4 The Australian Public Service Code of Conduct and the and Public Governance, Performance and Accountability Act for further information.

3.2 Agency guidance material on expected behaviour

3.2.1 Agencies have obligations to provide employees with guidance and training that covers how employees are expected to conduct themselves in the workplace. This includes the central role of the APS Values, APS Employment Principles and the Code and how employees can report suspected misconduct. Agencies also issue policies on related matters, such as prevention of bullying and harassment, information technology security, management of client and stakeholder relationships and conflicts of interest. Taken together agency policies, guidance and training assist employees to understand their obligations under the PS Act and other Acts.

3.2.2 The Commission's publication APS Values and Code of Conduct in practice: A guide to official conduct for APS employees and agency heads4 provides practical information and guidance to all employees on the application of the Values and the Code in APS employment.

3.3 Misconduct in the APS

3.3.1 Misconduct refers to any action or behaviour by employees which has been determined to have breached the Code. Until that point, any inappropriate action or behaviour by an employee is only 'suspected' or 'alleged' misconduct.

3.3.2 Most commonly, misconduct action involves the investigation of current APS employees for behaviours they engaged in as an APS employee. However, misconduct action can also be taken, in accordance with s15(2A) of the PS Act, when it is suspected that an APS employee provided false or misleading information, wilfully failed to disclose relevant information or failed to act with honesty and integrity in connection with engagement as an APS employee. In this context, the Code extends to a person's behaviour before they became an APS employee.

3.3.3 Misconduct action can also be taken in relation to former employees. Where a misconduct process has started and an employee leaves the APS, the agency may continue that process to determine whether there was any breach of the Code by the now former employee. In addition, an agency may start misconduct action against a former APS employee to determine whether that person engaged in misconduct while still an employee. Misconduct action can only be taken with respect to former employees who left the APS on or after 1 July 2013.5 A sanction cannot be imposed on a former employee. Further information is provided in Part II, Section 5.3 Suspected misconduct of former APS employees.

Elements of the Code with multiple obligations

3.3.4 In broad terms, an APS employee whose conduct does not comply with an element of the Code can be found to have breached the Code. Where an element of the Code contains more than one obligation, it is not generally necessary for the employee to have failed to comply with all obligations in order for a breach of the Code to be found. For example, s13(3) of the PS Act states that an employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment. An employee who was found to be discourteous but not also found to have engaged in harassing behaviour could be found to have breached the Code. See Appendix 5 Elements of the Australian Public Service Code of Conduct for more information on the application of the Code.

Does intent matter?

3.3.5 A breach of the Code does not generally require intent. An employee will still breach the Code if they, for example, acted without respect or courtesy, whether they meant to or not. The Code does not use words such as 'wilful' or 'reckless' or 'negligent' to qualify the behaviour involved—behaviour contrary to the particular section of the Code will suffice.

3.3.6 However, there is room for an honest and reasonable mistake which, depending on the circumstances, may be better dealt with through process improvements, training, performance management or counselling.

3.4 Agency-based codes of conduct or expected behaviours

3.4.1 Some agencies promulgate their own set of expected behaviours. For example, agencies may identify specific behavioural standards for employees based overseas or where the agency has both APS and non-APS employees.

3.4.2 When an employee infringes an agency-based set of expected behaviours, the agency needs to be able to link the behaviour in question to a particular element in the Code, if it is to form the basis of misconduct action. For example, where an agency-based set of behaviours is promulgated by way of lawful and reasonable directions by the agency head to all employees in the agency, an infringement can be enforced on the basis that it is a breach of s13(5) of the Code.

3.5 The connection between work and misconduct

3.5.1 The various elements of the Code specify different levels of connectedness between the standard of conduct required of an APS employee and their employment or are silent on the matter. Some elements of the Code apply to behaviours 'in connection with employment' and others apply 'at all times'.

3.5.2 APS employees are entitled to a private life. However, the Code may apply to behaviours that, on their face, appear to be largely private owing to a connection between the behaviour and the agency's confidence in the capacity of the employee to perform their duties professionally, and/or because of the possible impact of the behaviour on the reputation of the agency or the APS. Any misconduct action must carefully consider the relevant level of connectedness in determining whether there has been a breach of the Code.

In connection with APS employment

3.5.3 The term 'in connection with employment' is not confined to the performance of job-related tasks or other conduct in the course of employment. Employees are required to abide by the Code when engaged in activities outside work hours and away from the workplace where there is some connection with their APS employment. This includes for example, on work-related travel, during training, and, in certain circumstances, when using social media or other online forums.

At all times

3.5.4 The term 'at all times' is used in s13(11) and s13(12) of the Code and provides for a broader application to conduct outside of work hours than most other elements of the Code. The requirement that APS employees must at all times behave in a way that upholds the integrity and good reputation of the agency and the APS (s13(11) of the PS Act) can be read broadly. This is particularly relevant when employees chat online on publicly available personal social media pages or other public forums. It is therefore important that agencies have in place guidance material that will assist employees to understand their responsibilities and their agency's expectations in relation to making public comment. Employees also need to understand the consequences if such comment breaches the Code. See also information on the connection between work and criminal acts in Part II, Section 3.7 Suspected Misconduct that may also be a criminal act of this guide.

3.5.5 Additionally, the requirement that an employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia (s13(12) of the PS Act) means that a broad range of activities by an APS employee while overseas on duty may fall within the provisions of the Code. An employee on duty overseas, that is on a posting or travelling for work purposes, is representing Australia and may be identifiable as an Australian Government employee even when not undertaking official duties.

3.6 Probation and the Code

3.6.1 Probationers are required to abide by the Code in the same way as other employees. Probationers who fail to adhere to behavioural and performance standards may have failed to meet a condition of their probation and in that circumstance there may be grounds for termination of employment under s29(3)(f) of the PS Act. Agencies may also manage concerns about the behaviour of a probationer as a suspected breach of the Code in accordance with their s15(3) procedures.

3.6.2 Agencies are advised to bring to a probationer's attention on their engagement their obligations to uphold the APS Values, Employment Principles and comply with the Code as essential elements underpinning their employment in the APS.

3.6.3 Where it is suspected that a probationer may have breached the Code, the agency head can take action in accordance with agency procedures established under subsection 15(3) of the PS Act to investigate the matter immediately. The agency head may impose a sanction on a probationer where the employee is found to have breached the Code. If, as a result of an investigation, it is established that a serious breach of the Code has been committed by the employee, the agency head can terminate the engagement immediately, without waiting for the period of probation to run its normal course. As noted above, in establishing relevant procedures under s15(3) of the PS Act, agencies may need to consider whether they should provide for different misconduct provisions to apply to employees who are still serving a period of probation.

3.6.4 Further information is available in the Commission's publication, Recruitment and selection in the APS: The legislative framework. 6

3.7 Suspected misconduct that may also be a criminal act

3.7.1 Criminal proceedings may result from an employee's behaviour in the workplace, or from his or her private actions. In both cases, agencies can face difficult judgements. These include whether or not to start a Code investigation when a criminal investigation or trial is underway or about to start.

3.7.2 Even where an employee's behaviour is found by an appropriate authority to be a criminal act, an agency head may consider investigating, under the agency's s15(3) procedures, whether that behaviour was also a breach of the Code. Circumstances in which this may occur include where the behaviour may:

  • have an adverse effect on the employee's ability to carry out their duties, or
  • have an adverse effect on the workplace, or
  • bring the employee's agency or the APS into disrepute.

Handling reports of criminal acts

3.7.3 Agencies are advised to have clear processes for receiving and dealing with reports of a breach or suspected breach of the criminal law by their employees, including self-reporting by employees.

3.7.4 Agencies are required under the Public Interest Disclosure Act 2013 (PID Act) to establish procedures for dealing with disclosures made under that Act. It is open to employees when they become aware of a suspected breach of the criminal law by another employee to make a public interest disclosure consistent with the procedures established by their agency. Should an investigator in the course of an investigation under the PID Act suspect that the disclosure includes an offence against a law of the Commonwealth that may be punishable by imprisonment for a period of at least two years, the investigator must notify a member of an Australian police force of that suspected offence.7

3.7.5 Agencies also have obligations relating to receiving and dealing with reports of suspected breaches of the criminal law under the Australian Government's Protective Security Policy Framework.8

3.7.6 If an agency, or an employee, wishes to report a suspected breach of the criminal law directly to the relevant law enforcement agency, they will need to consider which enforcement agency is appropriate. Whilst many crimes against the Commonwealth are dealt with by the Australian Federal Police (AFP), there may be cases where State or Territory law applies and suspected breaches may need to be reported to other law enforcement agencies.

3.7.7 The AFP has primary responsibility for investigating serious or complex crimes, including fraud, against the Commonwealth. Generally allegations of serious crime against the Commonwealth are to be referred to the AFP who will determine whether it will investigate the matter.9 The AFP may recommend a joint investigation with the agency or other law enforcement agencies. Some agencies may have obligations to refer such matters to the Australian Commission for Law Enforcement Integrity.

3.7.8 Where there is doubt about to whom suspected breaches of the criminal law are to be reported, agencies can consult the AFP or State or Territory police or seek legal advice. The AFP has published advice on its website about the type of criminal incidents that can be reported to the AFP or the State/Territory police.10

Managing suspected criminal acts by employees

3.7.9 When an agency becomes aware that the police are investigating a suspected breach of the criminal law, or a prosecution is being conducted by a State/Territory prosecution authority or the Commonwealth Director of Public Prosecutions (CDPP), advice should be sought from the police or the prosecuting authority before starting, or continuing with, a Code investigation.

3.7.10 Where the agency becomes aware of possible criminal behaviour by an employee, the agency has three main options:

  • referring the matter to the AFP, other Commonwealth investigatory agency or relevant State/Territory law enforcement agency11
  • conducting an internal investigation, such as a fraud investigation, if the agency has the relevant authority and expertise. The internal investigation may result in referral of the findings to the CDPP for consideration of prosecution. 12
    • This option may be appropriate where, for example, the AFP has decided not to investigate the matter but the agency considers the matter serious enough for investigation.
  • conducting an investigation into the allegation as a suspected breach of the Code under agency s15(3) procedures
    • a misconduct investigation may precede, be concurrent with, or subsequent to a criminal investigation.
    • a misconduct investigation may be an alternative to a criminal investigation for allegations about less serious criminal acts. If it becomes evident during the investigation that the matter is of a more serious nature, agencies may refer the matter to the relevant law enforcement agency.

If the criminal act is also a suspected breach of the Code

Delaying Code of Conduct action during criminal proceedings or investigations

3.7.11 Where an employee's behaviour may be both a breach of the Code and a criminal offence, agencies need not delay taking misconduct action until criminal processes have been completed.13 However, care should be taken not to prejudice any criminal investigations or prosecutions.

3.7.12 Agencies would generally not proceed with a Code investigation if the police, another investigatory body, or the prosecuting authority, has advised them that misconduct action may prejudice criminal proceedings or investigations.

3.7.13 If there is a risk of prejudicing the criminal proceedings or investigation, agencies may

  • put the employee on notice that action under the agency's s15(3) procedures is being considered but not start that action, or
  • start action under the agency's s15(3) procedures but then put that action on hold while the criminal investigation is undertaken,
  • decide whether to suspend the employee for a period of time until circumstances are clearer or criminal proceedings are finalised. See Part II, Section 5.8 of this guide for further information on suspension arrangements
  • liaise with the investigatory body on the appropriate collection and security of evidence.

A criminal conviction may not be a breach of the Code

3.7.14 A finding by a court or authority that an APS employee has been convicted of a criminal offence does not automatically mean the employee has also breached the Code. Each case will need to be considered on its merits, and a decision made as to whether an investigation under an agency's s15(3) procedures is warranted. In undertaking such an investigation, a breach decision-maker cannot simply adopt findings of fact made by courts without testing them, given the obligation to provide procedural fairness to the employee. When deciding whether to inquire into an employee's behaviour as a potential breach of the Code in these circumstances, agencies should consider the following factors. Further information is also provided in Appendix 5 to this guide.

  • Is there a relationship between the criminal act and the employee's employment?
    • APS employees are also citizens and, like all other employees, are entitled to a private life. Some criminal acts committed in a private capacity will not warrant consideration under an agency's s15(3) procedures where they are not relevant to, or have no impact on, the employee's employment or workplace. For example, a criminal conviction for drink driving outside the workplace, which did not result in a custodial sentence and where the employee is not required to drive a car as part of their duties, is unlikely to have sufficient relationship with the employee's employment to warrant consideration as a suspected breach of the Code.
  • Has the conviction affected the employee's ability to carry out their duties/role?
    • This may include an employee's suitability to hold a security clearance.
    • The Australian Government Security Vetting Agency (AGSVA) must be advised of criminal activities by employees with a security clearance and will determine how that information will affect the employee's security clearance.14 The employing agency will need to assess the impact of a change to, or loss of, security clearance on the employee's ability to carry out their duties.
  • Has the employee's actions brought the employee's agency or the APS into disrepute?
    • Criminal acts may have different impacts in different agencies depending on the nature of the acts and the role of the agency. For example, possession or trafficking of illicit drugs may be more serious, and have a stronger relationship to the workplace and its reputation, where the employee is employed by a law enforcement or health regulatory agency.

Privacy and handling of sensitive information relating to criminal convictions

3.7.15 Agencies have responsibilities under the Privacy Act 1988 (Privacy Act) in respect of employees' personal information, including information about criminal records. Under the Privacy Act, a person's criminal record is treated as 'sensitive information' and attracts additional protections.15 The Australian Human Rights Commission has also published guidelines16 for the prevention of discrimination in employment on the basis of a criminal record and provides information on spent conviction laws.

3.7.16 Agencies are advised to refer to guidance material produced by the Office of the Australian Information Commissioner and the Australian Human Rights Commission when dealing with information relating to criminal convictions. See also Part I, Section 2.3 Managing misconduct action consistent with privacy requirements of this guide.

3.8 The process for handling suspected misconduct

3.8.1 The process for handling suspected misconduct may be divided into six stages:

  • identifying behaviour that may amount to suspected misconduct, including receiving allegations of misconduct
  • deciding how to handle the suspected misconduct, including considering alternative administrative or performance management action
  • considering whether it is necessary to suspend the employee and any review of that decision
  • deciding to start misconduct action under the agency's s15(3) procedures and to undertake an investigation
  • making a determination whether the misconduct has occurred
  • imposing an appropriate sanction (if any).

3.8.2 Within these six stages there are important decisions to be made, including:

  • Should action be taken under the agency's s15(3) procedures or not?
  • Are the alleged behaviours sufficiently serious to warrant consideration of suspension from duty?
  • Who should be selected to investigate and determine whether or not there has been a breach of the Code?
  • How and when to provide the person under investigation with an opportunity to respond to the allegations and evidence gathered during the investigation?
  • Does the information gathered during the investigation and determination process indicate that there has been a breach of the Code?
  • Should a sanction be imposed and, if so, what should that sanction be?

3.8.3 This process is summarised in the flowchart in Figure 1. Guidance on appropriate actions at the different stages and how to approach the key decisions is contained in Part II, Sections 4-7 of this guide.

3.9 Roles and responsibilities in handling suspected misconduct

3.9.1 The breach decision-maker must be selected in line with the agency's s15(3) procedures and the sanction decision-maker must hold the appropriate delegations to impose a sanction.

3.9.2 Subject to their procedures, agencies have flexibility to decide the extent of the breach decision-maker's role in the misconduct action. Agencies may:

  • engage an investigator to assist the breach decision-maker. The investigator may or may not make recommendations to the breach decision-maker. Where the breach decision-maker is also the sanction decision-maker, the investigator could make recommendations with respect to sanction.
  • appoint a breach decision-maker who conducts the investigation and determines whether a breach of the Code has occurred and makes recommendations to a separate sanction decision-maker. In certain circumstances the Merit Protection Commissioner may be appointed in this role on a fee for service basis (s50A of the PS Act).
  • appoint a breach decision-maker who conducts the investigation and determines whether a breach of the Code has occurred and is also the sanction decision-maker.

3.9.3 A person external to the agency may be appointed in each of the examples above. An externally appointed breach decision-maker needs to be authorised in accordance with the agency's s15(3) procedures. Where a sanction decision is delegated to someone outside the APS approval must be sought in writing from the Australian Public Service Commissioner in accordance with s78(8) of the PS Act. Appendix 6 Australian Public Service Code of Conduct: Tips and traps in selecting external investigatorscontains information on engaging contractors to undertake misconduct action.

3.9.4 Whatever approach is adopted, respective roles and responsibilities need to be clear and quality control mechanisms established. Further guidance on quality assurance is available in Part II, Section 10 of this guide.

Separate decision-makers for suspension, breach and sanction

3.9.5 Agencies need to consider whether it is appropriate for the same person to be appointed as both breach decision-maker and the sanction decision-maker. Subject to the agency's s15(3) procedures, it is possible for one person to have both roles. However, appointing separate decision-makers can avoid a perception of bias. For the same reason, if a suspension is to be considered, it is desirable that a separate person with delegation under regulation 3.10 make the suspension decision.

3.9.6 Agencies must ensure that the person, or persons, taking the decisions to suspend an employee, determine whether a breach of the Code has occurred and impose a sanction have the appropriate authority to make those decisions and that they are, and are perceived as, independent and free of bias.

3.9.7 It would be prudent to advise the employee, or former employee, at the start of the investigation, of the identities of the person or people involved in investigating the allegations, making the breach determination and the sanction decision. This allows the employee or former employee to raise any concerns about apprehension of bias.

3.10 Key points for agency guidance material

3.10.1 Agency guidance material could include information drawn from this section on the following:

  • an employee's obligation to uphold the APS Values, Employment Principles and the Code
  • avenues for reporting suspected misconduct
  • the definition and reach of misconduct, illustrated by agency-specific examples, within and outside of the workplace
  • the application of the Code to former, as well as existing, employees
  • the application of the Code to employees in relation to their behaviour during the process leading to their engagement
  • the relationship between any agency-based codes or behavioural expectations and the Code
  • processes for reporting suspected breaches of the criminal law and the circumstances where behaviour that is a criminal offence might also breach the Code
  • the relationship between the PID Act and the Code
  • the relationship between the PGPA Act and the Code
  • links to agency material/training on the Code available to employees and links to relevant APS Commission material if relevant e.g. APS Values and Code of Conduct in practice: A guide to official conduct for APS employees and agency heads.17

Footnotes

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

5 Reference to transitional provisions in the amendment act

6 See also APSC documents

7 See s56 of the PID Act

8 See Protective security governance guidelines: Reporting incidents and conducting security investigations.

9 See also the Fraud Control Framework for the Commonwealth at www.ag.gov.au/CrimeAndCorruption/FraudControl/Pages/default.aspx for further information on fraud control.

10 See www.afp.gov.au/contact/report-a-crime#How-do-I-report-a-crime-to-the-AFP

11 There may be legal obligations to report criminal acts to the AFP or similar authority.

12 The CDPP Prosecution Policy of the Commonwealth: Guidelines for the making of decisions in the prosecution process www.cdpp.gov.au/wp-content/uploads/Prosecution-Policy-of-the-Commonwealth.pdf

13 Baker v Commissioner AFP (2000) 104 FCR 359; Elliot v APRA [2004] FCA 586; Sullivan v Secretary, Defence [2005] FCA 786.

14 See Maintaining Your Clearance on the AGSVA website

15 See information provided by the Office of the Australian Information Commissioner at www.oaic.gov.au/privacy/privacy-act/criminal-records for further information.

16 Guidelines are available at www.humanrights.gov.au/publications/human-rights-record

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