2. Legislative Framework
Last updated: 09 Jun 2015
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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.
2.1.4 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:
- whether an employee, or former employee, in their agency has breached the Code
- 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.
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.