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Last updated: 19 February 2007

Handling Misconduct : A human resources practitioner's guide to the reporting and handling of suspected and determined breaches of the APS Code of Conduct

Appendix 1: Legislative instruments

Extracts from the Public Service Act, Public Service Regulations, the Public Service Commissioner's Directions and the Privacy Act

PUBLIC SERVICE ACT 1999—SECT 10

The APS Values
  1. The APS Values are as follows:
    1. the APS is apolitical, performing its functions in an impartial and professional manner;
    2. the APS is a public service in which employment decisions are based on merit;
    3. the APS provides a workplace that is free from discrimination and recognises and utilises the diversity of the Australian community it serves;
    4. the APS has the highest ethical standards;
    5. the APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public;
    6. the APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government's policies and programs;
    7. the APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public;
    8. the APS has leadership of the highest quality;
    9. the APS establishes workplace relations that value communication, consultation, cooperation and input from employees on matters that affect their workplace;
    10. the APS provides a fair, flexible, safe and rewarding workplace;
    11. the APS focuses on achieving results and managing performance;
    12. the APS promotes equity in employment;
    13. the APS provides a reasonable opportunity to all eligible members of the community to apply for APS employment;
    14. the APS is a career based service to enhance the effectiveness and cohesion of Australia's democratic system of government;
    15. the APS provides a fair system of review of decisions taken in respect of APS employees.

PUBLIC SERVICE ACT 1999—SECT 12

Agency Heads must promote APS Values

An Agency Head must uphold and promote the APS Values.

PUBLIC SERVICE ACT 1999—SECT 13

The APS Code of Conduct
  1. An APS employee must behave honestly and with integrity in the course of APS employment.
  2. An APS employee must act with care and diligence in the course of APS employment.
  3. An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.
  4. An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means:
    1. any Act (including this Act), or any instrument made under an Act
    2. any law of a State or Territory, including any instrument made under such a law.
  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.
  6. An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff .
  7. An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.
  8. An APS employee must use Commonwealth resources in a proper manner.
  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.
  10. An APS employee must not make improper use of:
    1. inside information; or
    2. the employee's duties, status, power or authority in order to gain, or seek to gain, a benefit or advantage for the employee or for an other person.
  11. An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.
  12. An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.
  13. An APS employee must comply with any other conduct requirement that is prescribed by the regulations.

PUBLIC SERVICE REGULATIONS 1999

Reg 2.1 Duty not to disclose information (Act s 13)

For the purposes of subsection 13(13) of the Act, an APS employee, except in the course of his or her duties as an APS employee or with the Agency Head's express authority, must not give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.

Note: Under s 70 of the Crimes Act 1914, it is an offence for an APS employee to publish or communicate the information.

PUBLIC SERVICE ACT 1999—SECTION 15

Breaches of the Code of Conduct
  1. An Agency Head may impose the following sanctions on an APS employee in the Agency who is found (under procedures established under subsection (3)) to have breached the Code of Conduct:
    1. termination of employment
    2. reduction in classification
    3. re-assignment of duties
    4. reduction in salary
    5. deductions from salary, by way of fine
    6. a reprimand.
  2. The regulations may prescribe limitations on the power of an Agency Head to impose sanctions under subsection 1.
  3. An Agency Head must establish procedures for determining whether an APS employee in the Agency has breached the Code of Conduct. The procedures: a. must comply with basic procedural requirements set out in Commissioner's Directions b. must have due regard to procedural fairness c. may be different for different categories of APS employees.
  4. The Commissioner must issue directions in writing for the purposes of subsection 3.
  5. An Agency Head must take reasonable steps to ensure that every APS employee in the Agency has ready access to the documents that set out the procedures referred to in subsection 3.

PUBLIC SERVICE REGULATIONS 1999

Reg 3.10 Suspension from duties (Act s. 28)
  1. An Agency Head may suspend an APS employee employed in the Agency from duties if the Agency Head believes on reasonable grounds that:
    1. the employee has, or may have, breached the Code of Conduct; and
    2. the employee's suspension is in the public, or the Agency's, interest.
  2. The suspension may be with remuneration.
  3. If the suspension is to be without remuneration, the period without remuneration is to be: a. not more than 30 days b. if exceptional circumstances apply—a longer period.
  4. The Agency Head must review the suspension at reasonable intervals.
  5. The Agency Head must immediately end the suspension if the Agency Head no longer believes on reasonable grounds: a. that the APS employee has, or may have, breached the Code of Conduct b. that the employee's suspension is in the public, or the Agency's, interest.
  6. The Agency Head must immediately end the suspension if a sanction has been impose don the APS employee for the relevant breach of the Code of Conduct.
  7. In exercising powers under this regulation, the Agency Head must have due regard to procedural fairness unless the Agency Head is satisfied on reasonable grounds that, in the particular circumstances, it would not be appropriate.
Reg 5.24 Application for primary review
  1. An affected employee may apply in writing to the relevant Agency Head for primary review of a reviewable action.
  2. However, the application must be made to the Merit Protection Commissioner if the application is for review of:
    1. a determination that the affected employee has breached the Code of Conduct
    2. a sanction imposed for breach of the Code of Conduct.
  3. Also, the employee may apply in writing to the Merit Protection Commissioner for review of the action if:
    1. the Agency Head was directly involved in the action
    2. it is not appropriate, because of the seriousness or sensitivity of the action, for the Agency Head to deal with the application
    3. the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of action.
  4. The application must state briefly:
    1. why the review is sought
    2. if a particular outcome is sought—the outcome sought.

Examples of outcomes

  1. Reconsideration of the action.
  2. Re-assignment of duties.
Reg 5.36 Making of application does not operate as stay

The making of an application for review of an APS action under this Division does not operate to stay the action.

PUBLIC SERVICE COMMISSIONER'S DIRECTIONS 1999

Chapter 5—Basic Requirements for Procedures for Determining Breaches of the Code of Conduct
5.1 Purpose of Chapter 5

The purpose of this Chapter is to set out the basic procedural requirements that must be complied with by the procedures established by an Agency Head under subsection 15 (3)of the Act for determining whether an APS employee in the Agency has breached the Code of Conduct.

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

5. 2 Information to be given to employee before determination is made

Before any determination is made in relation to a suspected breach of the Code of Conduct by an APS employee, the employee must:

  1. be informed of:
    1. the details of the suspected breach of the Code of Conduct (including any variation of those details)
    2. the sanctions that may be imposed on the employee under subsection 15 (1) of the Act (including any limitations on that power contained in regulations made for the purposes of subsection 15 (2) of the Act)
  2. be given reasonable opportunity to make a statement in relation to the suspected breach.
5.3 Determination process to be informal

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

5.4 Person making determination to be independent and unbiased

An Agency Head must take reasonable steps to ensure that the person who determines whether an APS employee has breached the Code of Conduct is, and appears to be, independent and unbiased.

5.5 Record of determination

After a determination in relation to a suspected breach of the Code of Conduct by an APS employee is made, a written record stating whether the employee has been found to have breached the Code of Conduct must be prepared.

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

5.6 Appropriate procedures if basis of APS employee's engagement in an agency changes or employee moves to a different agency
  1. This clause applies if:
    1. an APS employee in an Agency is suspected of having breached the Code of Conduct
    2. before any determination is made in relation to the suspected breach:
      1. the basis of the employee's engagement in the Agency changes
      2. the employee moves to a different Agency.

Note: Examples of a change in the basis of an APS employee's engagement in an Agency are as follows:

  1. a change from engagement for a specified term, or for the duration of a specified task, to engagement as an ongoing APS employee
  2. a change from engagement for duties that are irregular or intermittent to engagement as an ongoing APS employee.
  1. A determination (if any) in relation to the suspected breach must be made:
    1. if the basis of the employee's engagement in the Agency has changed—in accordance with the procedures applicable to the basis of the employee's engagement in the Agency at the time the process for determining whether the employee has breached the Code of Conduct is commenced
    2. if the employee has moved to a different Agency—in accordance with the procedures applicable in the Agency to which the employee has moved at the time the process for determining whether the employee has breached the Code of Conduct is commenced.

INFORMATION PRIVACY PRINCIPLES (IPPS) UNDER THE PRIVACY ACT 1988 (CTH)—SECTION 14

Principle 1—Manner and purpose of collection of personal information
  1. Personal information shall not be collected by a collector for inclusion in a record or in a generally available publication unless:
    1. the information is collected for a purpose that is a lawful purpose directly related to a function or activity of the collector; and
    2. the collection of the information is necessary for or directly related to that purpose.
  2. Personal information shall not be collected by a collector by unlawful or unfair means.
Principle 2—Solicitation of personal information from individual concerned

Where:

  1. a collector collects personal information for inclusion in a record or in a generally available publication; and
  2. the information is solicited by the collector from the individual concerned;
    the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensurethat, before the information is collected or, if that is not practicable, as soon as practicable after the information is collected, the individual concerned is generally aware of:
  3. the purpose for which the information is being collected;
  4. if the collection of the information is authorised or required by or under law—the fact that the collection of the information is so authorised or required; and
  5. any person to whom, or any body or agency to which, it is the collector's usual practice to disclose personal information of the kind so collected, and (if known by the collector) any person to whom, or any body or agency to which, it is the usual practice of that first mentioned person, body or agency to pass on that information.
Principle 3—Solicitation of personal information generally

Where:

  1. a collector collects personal information for inclusion in a record or in a generally available publication; and
  2. the information is solicited by the collector: the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is collected:
  3. the information collected is relevant to that purpose and is up to date and complete; and
  4. the collection of the information does not intrude to an unreasonable extent upon the personal affairs of the individual concerned.
Principle 4—Storage and security of personal information

A record-keeper who has possession or control of a record that contains personal information shall ensure:

  1. that the record is protected, by such security safeguards as it is reasonable in the circumstances to take, against loss, against unauthorised access, use, modification or disclosure, and against other misuse; and
  2. that if it is necessary for the record to be given to a person in connection with the provision of a service to the record-keeper, everything reasonably within the power of the record-keeper is done to prevent unauthorised use or disclosure of information contained in the record.
Principle 5—Information relating to records kept by record-keeper
  1. A record-keeper who has possession or control of records that contain personal information shall, subject to clause 2 of this Principle, take such steps as are, in the circumstances, reasonable to enable any person to ascertain:
    1. whether the record-keeper has possession or control of any records that contain personal information; and
    2. if the record-keeper has possession or control of a record that contains such information:
      1. the nature of that information;
      2. the main purposes for which that information is used; and
      3. the steps that the person should take if the person wishes to obtain access to the record.
  2. A record-keeper is not required under clause 1 of this Principle to give a person information if the record-keeper is required or authorised to refuse to give that information to the person under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.
  3. A record-keeper shall maintain a record setting out:
    1. the nature of the records of personal information kept by or on behalf of the record-keeper;
    2. the purpose for which each type of record is kept;
    3. the classes of individuals about whom records are kept;
    4. the period for which each type of record is kept;
    5. the persons who are entitled to have access to personal information contained in the records and the conditions under which they are entitled to have that access; and
    6. the steps that should be taken by persons wishing to obtain access to that information.
  4. A record-keeper shall:
    1. make the record maintained under clause 3 of this Principle available for inspection by members of the public; and
    2. give the Commissioner, in the month of June in each year, a copy of the record so maintained.
Principle 6— Access to records containing personal information

Where a record-keeper has possession or control of a record that contains personal information, the individual concerned shall be entitled to have access to that record, except to the extent that the record-keeper is required or authorised to refuse to provide the individual with access to that record under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.

Principle 7— Alteration of records containing personal information
  1. A record-keeper who has possession or control of a record that contains personal information shall take such steps (if any), by way of making appropriate corrections, deletions and additions as are, in the circumstances, reasonable to ensure that the record:
    1. is accurate; and
    2. is, having regard to the purpose for which the information was collected or is to be used and to any purpose that is directly related to that purpose, relevant, up to date, complete and not misleading.
  2. The obligation imposed on a record-keeper by clause 1 is subject to any applicable limitation in a law of the Commonwealth that provides a right to require the correction or amendment of documents.
  3. Where:
    1. the record-keeper of a record containing personal information is not willing to amend that record, by making a correction, deletion or addition, in accordance with a request by the individual concerned; and
    2. no decision or recommendation to the effect that the record should be amended wholly or partly in accordance with that request has been made under the applicable provisions of a law of the Commonwealth;

the record-keeper shall, if so requested by the individual concerned, take such steps (if any) as are reasonable in the circumstances to attach to the record any statement provided by that individual of the correction, deletion or addition sought.

Principle 8—Record-keeper to check accuracy etc of personal information before use

A record-keeper who has possession or control of a record that contains personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, up to date and complete.

Principle 9—Personal information to be used only for relevant purposes

A record-keeper who has possession or control of a record that contains personal information shall not use the information except for a purpose to which the information is relevant.

Principle 10—Limits on use of personal information
  1. A record-keeper who has possession or control of a record that contains personal information that was obtained for a particular purpose shall not use the information for any other purpose unless:
    1. the individual concerned has consented to use of the information for that other purpose;
    2. the record-keeper believes on reasonable grounds that use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person;
    3. use of the information for that other purpose is required or authorised by or under law;
    4. use of the information for that other purpose is reasonably necessary for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue; or
    5. the purpose for which the information is used is directly related to the purpose for which the information was obtained.
  2. Where personal information is used for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue, the record- keeper shall include in the record containing that information a note of that use.
Principle 11—Limits on disclosure of personal information
  1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:
    1. the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;
    2. the individual concerned has consented to the disclosure;
    3. the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;
    4. the disclosure is required or authorised by or under law; or
    5. the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.
  2. Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure.
  3. A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.

Appendix 2: Suggested agency procedures under section 15(3) OF THE Public Service Act 1999

Procedures for determining breaches of Code of Conduct

I, [name of Agency Head], [position and name of Agency], establish these Procedures under subsection 15 (3) of the Public Service Act 1999.

Dated

1. Application of procedures

These Procedures must be complied with in determining whether an APS employee has breached the Code of Conduct.

Note: These Procedures apply only in relation to a suspected breach of the Code of Conduct by an APS employee in respect of which a determination is to be made. Not all suspected breaches of the Code of Conduct may need to be dealt with by way of a determination. In particular circumstances, another way of dealing with a suspected breach of the Code may be more appropriate.

2. Selection of decision maker

Subject to the Agency Head having made a selection, the person who determines whether an APS employee has breached the Code of Conduct is to be selected by [name or title of person].

3. Formal hearing not required

For the purpose of determining whether an APS employee in an Agency has breached the Code of Conduct, a formal hearing is not required.

4. Information to be given to employee before determination is made
  1. Before a determination is made in relation to a suspected breach of the Code of Conduct by an APS employee, the employee must:
    1. be informed of: i the details of the suspected breach of the Code of Conduct (including any variation of those details) ii the sanctions that may be imposed on the employee under subsection 15 (1) of the Act (including any limitations on that power contained in regulations made for the purposes of subsection 15 (2) of the Act)
    2. be given reasonable opportunity to make a statement, in writing, in relation to the suspected breach within 7 days or any longer period as is allowed.
  2. If the employee makes a written statement within 7 days (or, if allowed, any longer period) of being given the opportunity to do so, the employee must also be given the opportunity to make an oral statement in relation to the suspected breach.
  3. An employee who does not make a written statement in relation to the suspected breach is not, only for that reason, to be taken to have admitted committing the suspected breach.
5. Determination process to be informal

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

6. Person making determination to be independent and unbiased
  1. An Agency Head must take reasonable steps to ensure that the person who determines whether an APS employee has breached the Code of Conduct is, and appears to be, independent and unbiased.
  2. In particular, a person must not determine whether the employee has breached the Code of Conduct if the person has previously made a report in relation to any of the matters suspected of constituting a breach by the employee of the Code of Conduct.
7. Action that may be taken if breach found to have occurred
  1. If a determination is made that an APS employee has breached the Code of Conduct, the employee may be counselled or a sanction may be imposed on the employee under section 15 of the Public Service Act 1999.
  2. If a sanction is imposed on the employee, the employee must be given a written statement setting out the reasons for the determination and the imposition of the sanction.
8. Record of determination

After a determination in relation to a suspected breach of the Code of Conduct by an APS employee is made, a written record stating whether the employee has been found to have breached the Code of Conduct must be prepared.

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

9. Appropriate procedures if basis of APS employee's engagement in an agency changes or employee moves to a different agency
  1. This clause applies if:
    1. an APS employee in an Agency is suspected of having breached the Code of Conduct
    2. before any determination is made in relation to the suspected breach: i the basis of the employee's engagement in the Agency changes ii the employee moves to a different Agency.

Note: Examples of a change in the basis of an APS employee's engagement in an Agency are as follows:

  1. a change from engagement for a specified term, or for the duration of a specified task, to engagement as an ongoing APS employee
  2. a change from engagement for duties that are irregular or intermittent to engagement as an ongoing APS employee.
  1. A determination (if any) in relation to the suspected breach must be made:
    1. if the basis of the employee's engagement in the agency has changed-in accordance with the procedures applicable to the basis of the employee's engagement in the agency at the time the process for determining whether the employee has breached the Code of Conduct is commenced
    2. if the employee has moved to a different agency-in accordance with the procedures applicable in the agency to which the employee has moved at the time the process for determining whether the employee has breached the Code of Conduct is commenced.

Appendix 3: Employee suspension checklist

Deciding whether or not to suspend 23

Is it in the public interest, or the agency's interest, to remove the employee from the workplace?

Has re-assignment of duties been considered as an option?

Is it clear that the decision maker is not prejudging and is seen as not prejudging whether the employee has breached the Code?

When imposing suspension

Will the suspension be with pay or without pay?

Has there been an opportunity for the employee to make a statement before the suspension is implemented?

Has the employee been advised of the possible length of the suspension and of his/her ongoing status (e.g. attendance at training courses previously booked, entitlement to apply for vacancies, access to the work premises)?

Where suspension is without pay

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

Has the employee been advised about the length of the period of suspension and the fact that he/she could seek outside employment?

During suspension

Is the suspension being reviewed at reasonable intervals?

Are there exceptional circumstances warranting the extending of unpaid suspension beyond 30 days?

23 Regulation 3.10 requires that an Agency Head may suspend an APS employee employed in the agency from duties if the Agency Head believes on reasonable grounds that:

  1. the employee has, or may have, breached the Code of Conduct; and
  2. the employee's suspension is in the public, or the agency's interest.

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?

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

Is it appropriate to take outside earnings into account before reinstating forgone salary?

Terminating the suspension

Has a sanction been imposed on the employee for the relevant breach? OR

Does the agency head no longer believe that the employee has or may have breached the code? OR

Does the agency head no longer believe that the suspension is in the public interest or in the agency's interest?

At the conclusion of the period of suspension

Is it necessary to decide whether the period of suspension counts as service?

Has the appropriate documentation been completed?

Appendix 4: Relevant records in National Archives of Australia Administrative functions disposal authority, February 2000

Records relating to Code of Conduct cases—Administrative functions disposal authority 24

PERSONNEL—Counselling
'The activities associated with giving advice or guidance to an employee for various reasons'.
Entry No Description of records Disposal Action
1702

Records documenting general counselling of staff . Includes

  • personal counselling
  • work performance counselling
  • counselling for minor breaches to the Code of Conduct

[For counselling relating to disciplinary action use PERSONNEL—discipline]

Destroy 2 years after action completed

 

PERSONNEL—Performance management
Sometimes minor conduct issues are dealt with in performance management contexts. Also conduct issues can be taken into account in assessing performance and related decisions such as salary advancement or the payment of pay bonuses etc.
Entry No Description of records Disposal Action
1734 Performance agreements with individual employees. Includes final version of agreement, notes from meetings with employees and assessment and review reports. Destroy 2 years after agreement is superseded

24 <http://www.naa.gov.au/recordkeeping/disposal/authorities/gda/AFDA/summary.html>

 

PERSONNEL—Discipline
'The activities and actions associated with the disciplinary process. Includes investigation, charges, formal inquiries, punishment and appeals'
Entry No Description of records Disposal Action
1704 Records documenting investigations of misconduct (e.g. a breach of the Code of Conduct) by either the agency or an external body, which result in disciplinary action being taken Destroy 5 years after action completed
1705 Records documenting allegations into misconduct where no follow-up investigation is made (i.e. where allegations are proved to be frivolous or vexatious). Destroy 18 months after action completed
1706 Records documenting investigations of misconduct which are investigated, either by the agency or by an external authority, and where allegations are proved to be unfounded and the employee has requested the retention of the records. Destroy 75 years after date of birth of employee or 7 years after last action, whichever is later, or when requested by the employee
1707 Records documenting investigations of misconduct which are investigated, either by the agency or by an external authority, and where allegations are proved to be unfounded and the employee has not requested the retention of the records Destroy 18 months after investigation completed

 

PERSONNEL—Reviews (Decisions)
Entry No Description of records Disposal Action
1759 Records documenting reviews of actions, other than reviews of promotion decisions, either carried out within the agency or by an external authority. Destroy 5 years after action completed

 

LEGAL SERVICES—Litigation
Entry No Description of records Disposal Action
1585 Records documenting litigation matters where legal precedents are set Retain as national archives
1586 Records relating to litigation matters that do not set legal precedents Destroy 7 years after action ceases

 

LEGAL SERVICES—Advice
Entry No Description of records Disposal Action
1570 Records documenting all other advice [i.e. than re interpretation of an agency's own legislation etc ] received from an internal or external legal service provider Destroy 5 years after action completed.

Records of matters that might trigger a Code of Conduct investigation

Agencies may keep a variety of records on matters that may sometimes give rise to formal Code of Conduct investigations. Such records include records of investigations of grievances and allegations by whistleblowers, infringements of rules, security or privacy breaches.

PERSONNEL—Employment conditions
Entry No Description of records Disposal Action
1719 Attendance records for employees where agency agreements or individual employee agreements do not allow for the payment of overtime .. Destroy 2 years after action completed

 

PERSONNEL—Grievances
'The activities associated with the handling and resolution of grievances. Includes handling complaints over perceived discrimination… or those arising over work environment, …peers, supervisors or subordinates.'
Entry No Description of records Disposal Action
1722 Records documenting formal grievances lodged by an individual employee and considered either internally within the organisation and/or by an external body. Includes notes of meetings, reports and recommendations. For records covering disciplinary action resulting from a grievance use PERSONNEL—discipline Destroy 5 years after action completed

 

PERSONNEL—Infringements
'The activities associated with handling breaches of rules. Includes driving or traffic infringements and infringements of an organisation's intellectual property.'
Entry No Description of records Disposal Action
1723 Records documenting infringements by an employee.
[For infringements that lead to disciplinary action use PERSONNEL—discipline] 		Destroy 18 months after action completed

 

LEGAL SERVICES—Infringements
Entry No Description of records Disposal Action
1581 Records documenting infringements or breaches of mandatory standards, rules or statutory requirements that do not proceed to litigation. Includes notifications of breaches and investigations and negotiations. Destroy 7 years after action ceases
Alleged Privacy and Security breaches

The retention of records relating to alleged privacy breaches, security breaches etc is dealt with other sections of AFDA e.g. the sections on information management, property management, equipment and stores and technology and communications.

In broad terms, records relating to minor security incidents or breaches or alleged privacy breaches can be destroyed after a period ranging from 5 years after an incident to 7 years after action is completed.

[Records relating to minor security breaches or incidents relating to property can be destroyed 5 years after the incident; records relating to alleged privacy breaches can be destroyed after 5 years after the investigation and records relating to breaches relating to classified material can be destroyed 5 years after the last action; reports on leaks and investigation into alleged security breaches relating to technology and communications and referral of those breaches to law enforcement authorities to law enforcement authorities— destroy 7 years after action is completed.]

However, records of major security breaches or incidents (e.g. which result in the laying of charges), including records of referral to law enforcement authorities, are retained as national archives.

Records kept for the duration of an employee's career

PERSONNEL—Security
'The activities associated with measure taken to protect people, premises, equipment or information from accidental or intentional damage or from unauthorised access. Includes the security classification of personnel and criminal record checks'.
Entry No Description of records Disposal Action
1766 Records documenting security checks (vetting) carried out as part of pre-engagement and preemployment checks, or periodic reviews. Destroy 5 years after separation from the APS or 6 years after the date of the last clearance on file, whichever is sooner.

 

PERSONNEL—Employment conditions
'The activities associated with managing the general conditions of employment for personnel'
Entry No Description of records Disposal Action
1709

Records documenting the consolidated employment history of all ongoing employees…and SES employees from initial appointment and subsequent promotions and details of higher duties undertaken. Includes:

  • details of assigned duties (initial and subsequent variations)
  • probation reports
  • declarations of pecuniary interests
  • undertakings to preserve official secrets.

Destroy 75 years after date of birth of employee or 7 years after last action, whichever is later
1711 Records documenting the appointment of non- ongoing employees Destroy 7 years after termination of appointment
1715 Records documenting the reduction in classification of an APS employee either with or without the employees consent Destroy 75 years after date of birth of employee or 7 years after last action, whichever is later

 

PERSONNEL—Salaries
Employee pay history records may document the carrying out of sanctions on an employee whom it has been determined has breached the Code of Conduct and/or contain information about periods of suspension if this was not on full pay.
Entry No Description of records Disposal Action
1761

Records documenting the payment of employee's salaries. Includes:

  • Employee pay history records
Destroy 75 years after date of birth or 7 years after last action, whichever is later

 

PERSONNEL—Separations
Entry No Description of records Disposal Action
1767

Records documenting the separation of ongoing employees and SES employees. Includes:

  • resignation
  • dismissal
Destroy 75 years after date of birth or 7 years after last action, whichever is later
1768 Records documenting the termination of a non- ongoing employee before the completion of a specified term of engagement Destroy 7 years after termination

Appendix 5: Checklist of key points for agency guidance material

Agency guidance material—Checklist

Overview of a process for handling misconduct (Chapter 2)

an employee's responsibility to uphold the Values and the Code

what constitutes misconduct illustrated by agency specific examples within and outside of the workplace

the relationship between any agency-based codes and the APS Code the preferred approach to the interaction between managing misconduct and underperformance within the agency

the rights of an employee who is being investigated in relation to a suspected breach of the Code.

links to agency material/training on the Code available to employees and links to 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).

Reporting suspected misconduct (Chapter 3)

encouragement of employees to report suspected misconduct as part of their duty as an APS employee

the different options available to employees to report misconduct

the protections available to employees who report misconduct

how to treat or collect any evidence prior to reporting. It could include advice that employees:

Considering a report of suspected misconduct (Chapter 4)

identifying who is responsible for deciding whether suspected misconduct will be handled through the misconduct procedures or alternate procedures

providing examples of suspected misconduct that the agency considers should usually be handled under the misconduct procedures

identifying alternative methods of handling suspected misconduct

determining when a misconduct action should commence once a report of suspected misconduct has been received

the recordkeeping requirements for employee discussions/counselling sessions and what to do if the employee's conduct does not improve or deteriorates further

circumstances in which an employee may be suspended, with or without pay, or assigned other duties

procedures for managing suspension and assignment of duties that identify who is responsible for decision making.

Investigative process (Chapter 5)

outline agency procedures for appointment, alert the decision maker (and investigator if roles are separated) to the need to be vigilant about circumstances that might give rise to claims of bias, and what to do if such claims are made

direct the decision maker (and investigator if roles are separated) to comply with the agency's section 15(3) procedures

describe agency procedures for conducting an investigation including advice on issues such as preparing records of discussion and taking witness statements

provide advice on the different approaches to determining the scope of an investigation

stress the importance of complying with the requirements of procedural fairness and other administrative law principles

note the legislative requirement (generally reiterated in the agency section 15(3) procedures) that the investigation should be carried out with as little formality and as much expedition as a proper consideration of the matter allows

emphasise the need for planning the investigation prior to commencement and, subsequently, in taking time to review the process to ensure all available relevant evidence has been collected

note the important principles in weighing up the evidence and the key features of the written report

cover the handling of situations where evidence does not support misconduct having occurred

provide contact points for support and advice.

The determination and sanction (Chapter 6)

advice on the role of the decision maker

advice for the decision maker on the breach about preparing a decision record— agencies may wish to consider developing a template

advice on how to handle a case where an employee moves to another agency

an explanation of the sanctions that can be used

the factors to be considered in determining an appropriate sanction

some agency-specific examples of when particular sanctions may be appropriate

the importance of consistency references to sources of advice such as data bases, HR personnel

handling the process of notifying the employee of a proposed sanction.

Recordkeeping and access to records (Chapter 7)

agency recordkeeping procedures and appropriate contact points within the agency

the agency's policies on the retention and disposal and associated records policies including clear delineation of roles and responsibilities of misconduct

guidance on consideration of misconduct records for selection committees. Such guidance may more appropriately placed in the agencies recruitment and selection procedures—for example, including a requirement on any personal details form for prospective employees to declare any misconduct procedures.

Review of actions (Chapter 8)

While it is not a PS Act requirement to notify employees of their review rights, it would be good practice to include some information in agency guidance material.

Appendix 6: Sample clauses for inclusion in agency Code of Conduct investigation procedures—Disclosure of information

Below are sample clauses agencies may wish to include in their Code of Conduct investigation procedures relating to the disclosure of personal information.

Clause 1—defining personal information (refer cIRCULAR 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraph 10)

Personal information is defined in section 6 of the Privacy Act 1988 as 'information or an opinion…about an individual…whose identity is apparent, or can reasonably be ascertained, from the information or opinion'. {Agency} will ensure that, where appropriate, necessary and reasonable, personal information about an employee under investigation will remain confidential.

Clause 1a—sensitive information (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraph 12)

Sensitive information is defined in section 6 of the Privacy Act as 'information or an opinion about an individual's racial or ethnic origin or political opinions or membership of a political association or religious beliefs or affiliations or philosophical beliefs or membership of a professional or trade association or membership of a trade union or sexual preferences or practices or criminal record that is also personal information or health information about an individual or genetic information about an individual that is not otherwise health information'. Special care should be taken in the handling of sensitive information. Sensitive information should generally not be disclosed to a third party without the express consent of the individual concerned.

Clause 2—to whom the personal information may be disclosed (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraph 41)

During the course of a Code of Conduct investigation, or after the investigation is complete, personal information about an employee under investigation may, where necessary, appropriate and reasonable, be disclosed to others (in accordance with IPP 2), including:

Clause 2a—disclosure of personal information to the employee (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraphs 27–33)

During the course of a Code of Conduct investigation, or after the investigation is complete, in accordance with the principles of procedural fairness, the employee may be provided with personal information about an individual who is a party to the investigation. This may include the complainant and any witnesses to the investigation. Disclosure of information about the complainant and any witnesses to the respondent employee or others should be done in accordance with the agency's obligations under the Privacy Act.

Clause 3—opportunity to make a case as to why information should not be disclosed (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraph 31)

Where {agency} is considering disclosing personal information about an employee to another person, body or agency, the employee will be advised in writing and given the opportunity to make a case prior to the information being disclosed, as to why their personal information should not be disclosed. The employee will have {number} days to provide a case, in writing, to the investigating officer.

Clause 4—agency may disclose general information (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraphs 36–40)

Prior to disclosing information about the outcome of a Code of Conduct investigation, {agency} will have due regard to the Privacy Act 1988, including determining whether personal information will be used or disclosed and in what circumstances. General information containing no personal information may be disclosed to others where {agency} considers it necessary, appropriate and reasonable to do so.

Appendix 7: Letter to complainants advising the outcome of a Code of Conduct investigation

Disclosure of personal information under IPP 11 regarding misconduct should be managed in such a way that an employee's identity will not be revealed where it is not necessary, appropriate and reasonable to do so. This is particularly important where the complainant is employed at the same agency as the individual under investigation. Care should be taken not to disclose any additional information about the employee to the complainant.

See paragraphs 34–40 and Attachment B of the Australian Public Service Commission's Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, for further information on factors to consider prior to releasing information.

The following is a sample letter to complainants advising the outcome of a Code of Conduct investigation, which provides information to the complainant without releasing personal information about the employee. However, agency heads can exercise discretion to disclose personal information in some circumstances having regard to their IPP obligations in the handling of this information.

Agencies may choose to provide a greater level of information to the complainant, such as the reasons for not finding a breach or the sanction that was imposed. Where agencies consider it inappropriate to provide information regarding the sanction, they may choose to provide the range of sanctions that have been imposed following similar cases which occurred in the past.

Sample letter

Dear {complainant}

I am writing in relation to your complaint about {nature of complaint}, which you forwarded to {agency} on {date}.

An investigation of this matter has been conducted in accordance with {agency's} Code of Conduct investigation procedures. This investigation has now been finalised.

{May insert one of the following}

As a result, a breach of the Code of Conduct was found and a sanction imposed under section 15 of the Public Service Act 1999.

In addition, {agency} will undertake to {remedial action e.g., train staff, improve agency procedures} to ensure this situation does not arise in the future.

OR

As a result, no breach of the Code of Conduct was found in this case. However, {agency} will undertake to {remedial action e.g., train staff, improve agency procedures} to ensure such a situation does not arise in the future.

OR

As a result, no breach of the Code of Conduct was found in this case.

Please contact, etc.