Chapter 7: Personal behaviour
Whistleblowing
One means of agencies becoming aware that the Code of Conduct may have been breached is whistleblowing. The PS Act and Regulations provide for APS employees to make whistleblowing reports alleging breaches of the Code of Conduct. The scheme also provides protection from victimisation and discrimination for employees who make such reports.
Generally, whistleblowing disclosures are made to, and investigated by, the agency concerned. However, in specific circumstances an employee may make a disclosure to the Public Service or the Merit Protection Commissioner. Also, where a whistleblower is not satisfied with the findings of an agency-based investigation, they may raise the matter with the Public Service or the Merit Protection Commissioner.
Public Service Regulation 2.4 requires agency heads to establish procedures for dealing with whistleblowing reports. The Public Service Commissioner’s Direction 2.5 (1)(d) provides that an agency head must put in place measures in the agency directed at ensuring that APS employees are aware of the procedures for dealing with whistleblowing disclosures, and are encouraged to make such disclosures in appropriate circumstances.
The agency and employee surveys indicate that more than 30% of agencies do not use measures to make employees aware of whistleblowing provisions, and only 65% of employees indicated that they had been made aware by their current agency that they could report a serious breach of the Code to an authorised person in the agency. These issues are explored further in Chapter 3, which looks at the ways in which agencies are integrating the APS Values and the Code.
During 2002–03, around two per cent of formal investigations commenced by agencies into suspected breaches of the Code were instigated as a result of a report under the whistleblowing provisions (20 out of 936 investigations). Six of these investigations occurred in medium agencies, and 14 in large agencies. No investigations were commenced as a result of a whistleblowing report in small agencies.
Table 7.4 sets out the frequency with which particular elements of the Code were suspected of being breached in the whistleblowing reports made during 2002–03, and the number of agencies that reported undertaking a formal investigation that involved a suspected breach of that element of the Code.
Table 7.4: Elements of the Code of Conduct suspected of being breached in investigations commenced during 2002–03 as a result of a whistleblowing report (a)
| Element of the Code | No. of times element was suspected of being breached | No. of agencies commencing investigations |
|---|---|---|
| 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 | 11 | 7 |
| behave honestly and with integrity in the course of APS employment | 9 | 8 |
| use Commonwealth resources in a proper manner | 5 | 5 |
| when acting in the course of APS employment, treat everyone with respect and courtesy, and without harassment | 5 | 4 |
| when acting in the course of APS employment, comply with all applicable Australian laws | 4 | 4 |
| not make improper use of: inside information, or 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 any other person | 3 | 3 |
| disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment | 3 | 3 |
| except in the course of his or her duties as an APS employee or with the agency head’s express authority, not give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge | 1 | 1 |
| act with care and diligence in the course of APS employment | 1 | 1 |
| 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 | 0 | 0 |
| comply with any lawful and reasonable direction given by someone in the employee’s agency who has authority to give the direction | 0 | 0 |
| while on duty overseas, at all times behave in a way that upholds the good reputation of Australia | 0 | 0 |
| maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff | 0 | 0 |
Note: (a) An investigation may involve more than one employee, and/or a suspected breach of more than one element of the Code. An employee may also be suspected of breaching an element of the Code more than one time as part of a single investigation.
Source: Agency survey
The element of the Code that was suspected of being breached the greatest number of times overall was s. 13(11) of the PS Act—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. Investigations into possible breaches of s. 13(11) were commenced in 15% of all medium agencies and 14% of all large agencies. The element of the Code that was next most frequently suspected of being breached was s. 13(1)—an APS employee must behave honestly and with integrity in the course of APS employment. Investigations into possible breaches of s. 13(1) were commenced in eight per cent of all medium agencies and 27% of all large agencies. Table 7.5 shows the outcomes of those investigations.
Table 7.5: Outcomes of investigations into suspected breaches of the Code of Conduct commenced as a result of whistleblowing reports (a)
| Outcome | No. of times | No. of agencies |
|---|---|---|
| Termination of employment | 1 | 1 |
| Reduction in classification | 0 | 0 |
| Reduction in salary | 1 | 1 |
| Deduction from salary by way of a fine | 1 | 1 |
| Reassignment of duties | 1 | 1 |
| Reprimand | 2 | 2 |
| Counselling | 2 | 2 |
| Other (b) | 1 | 1 |
| Investigation discontinued | 0 | 0 |
| Investigation still in progress | 8 | 6 |
| No breach found | 5 | 4 |
Note: (a) More than one sanction may be imposed on each employee as a result of an investigation; hence there may be multiple outcomes from one investigation. (b) ‘Other’ was resignation prior to formal finding of breach.
Source: Agency survey
Four agencies reported receiving one report each from an employee in 2002–03 in relation to victimisation/discrimination as a result of their having made a report under the whistleblowing provisions. All reports were made in large agencies. They dealt with attempts to identify the whistleblower, the whistleblower being able to be identified, and the whistleblower being disadvantaged.
It is notable that, while only four agencies reported receiving reports from employees alleging victimisation/discrimination as a result of having made a whistleblowing report, 21% of employees responding to the employee survey indicated that they would take no action if they observed another, more senior, employee engaging in behaviour that they thought was a serious breach of the Code because they would not be confident of being protected from victimisation and discrimination. Employees were less likely to fear victimisation and discrimination where the person committing the breach was at the same level as the employee (eight per cent) or where the person was more junior (five per cent). This issue is explored further in Chapter 3, Embedding the Values and Code of Conduct.
During 2002–03, the Merit Protection Commissioner received two whistleblowing reports, the same number as last year. The two reports raised issues relating to inappropriate use of taxpayers’ money, lack of probity in selections, and inequities in access to training and development opportunities. The Merit Protection Commissioner concluded in both cases that there was insufficient evidence to support the allegations.
During the year the Public Service Commissioner received 13 whistleblowing reports, one more than last year. Six were from current APS employees, three from former employees and four from private citizens.
Only one of the disclosures proceeded to investigation by the Commissioner. The report alleged breaches of the Code in relation to a selection process and is currently being investigated.
The other 12 disclosures did not meet the requirements for investigation by the Public Service Commissioner. Four were from private citizens who were provided with information on other mechanisms to pursue their concerns. Three were from former APS employees, who alleged nepotism in a selection process and raised issues about termination of employment, and were advised that the matters they raised were more appropriately dealt with by the relevant agency heads and in one case the Ombudsman.
The remaining five disclosures included three anonymous reports relating to a range of employment actions and selection processes, which were referred to the relevant agency heads for consideration. Of the final two cases, in one it was determined that no inquiry was warranted, and in the other the agency head had commenced consideration of the matter.
The Public Service Commissioner also finalised two investigations that were carried over from the previous year. One disclosure related to alleged interference in a tendering and contracting exercise and the other to alleged breaches of the Privacy Principles. In both cases the Public Service Commissioner concluded that there was insufficient information to support the allegations, though he did recommend to an agency that better guidance be provided to relevant employees in relation to a particular aspect of a tendering and contracting process.