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Integrity and fairness
Operation of the Code of Conduct
The Code of Conduct sets out the standards of behaviour required of APS employees. An employee whose conduct does not meet the standard of one or more elements of the Code can be found to have breached the Code.
In March 2007, the Commission released a good practice guide, Handling Misconduct: A human resources practitioner’s guide to the reporting and handling of suspected and determined breaches of the APS Code of Conduct.3 This good practice guide was developed as a consequence of a Commission evaluation of agencies’ management of suspected Code breaches, and aims to assist HR practitioners in agencies to review and improve their guidance material and procedures for reporting and dealing with suspected, and determined, breaches of the Code.
Reporting suspected breaches of the Code
Agencies use a range of measures to identify suspected breaches of the Code. Employees were most likely to be investigated for a suspected breach of the Code as a result of their agency’s compliance or monitoring system (39% of investigations). Conduct identified by supervisors and/or managers accounted for 23% of investigations and conduct identified by work colleagues accounted for 21%. The proportion of investigations initiated by complaints from members of the public or stakeholders has remained relatively stable at 10%. Investigations that arose from other sources fell from 10% in 2005–06 to 4% this year.
Agencies need to be proactive in providing, and promoting, mechanisms for the reporting of suspected misconduct by the public and APS employees. Internal reporting of suspected misconduct is vital to the integrity of the APS.
There is a generally high level of awareness among APS employees about how to report suspected breaches of the Code. This year, 79% of employees indicated that they had been made aware by their current agency that they can report a suspected breach of the Code to an authorised person in their agency—a slight increase on last year.
Most employees have also been made aware of their rights to protection if they do report misconduct. Seventy-eight per cent of those employees who were made aware of how to report suspected breaches of the Code had also been made aware that if they report a suspected breach of the Code to an authorised person they are provided with protection from victimisation and discrimination.
The proportion of employees who reported that in the last 12 months they had witnessed a serious breach of the Code has remained relatively stable at 9%.4 However, despite a high rate of awareness about how to report, only 60% of employees who indicated that they had witnessed a serious breach of the Code had reported the suspected breach.
Employee comments on why they had not reported a breach of the Code included the following:
…managers do not view reporting a breach as ‘career enhancing’.
Did not report for fear of reprisal.
If you report this, you then get people offside, especially if it is someone higher than yourself in the ‘food chain’. A reporting system that is totally anonymous should be created.
Did not report the breach to the APS Code of Conduct because I was aware the person was already under investigation.
Incidents were reported by other…[work units].
Some of the comments suggest that the relatively high rate of non-reporting is at least partly explained by incidents having already been reported or identified by management through other means. Nevertheless, the results suggest that there is potential for agencies to put further effort into promoting employees’ responsibility to report misconduct and into creating a culture where employees who report misconduct feel protected.
Whistleblower reports
Section 16 of the Public Service Act 1999 prohibits the victimisation of, or discrimination against, an APS employee because the employee has reported a breach or an alleged breach of the Code of Conduct to a person authorised to receive the report. Regulation 2.4 of the Public Service Regulations 1999 (the Regulations) provides a framework for agencies to develop processes for dealing with such whistleblower reports.
Most agencies (88%) have established procedures for dealing with whistleblower reports, as required by the Regulations. However, one medium agency reported that it had no procedures in place, and three medium agencies and seven small agencies reported that whistleblower procedures were being developed. Five of these agencies had also reported in last year’s agency survey that whistleblower procedures were being developed.
The number of employees investigated as a result of a report made under their agency’s whistleblower procedures (10 agencies investigating 21 employees) was lower than in the previous two years. This represented 2% of misconduct investigations and compares to 3% in 2005–06 and 4% in 2004–05.
People authorised to receive reports
There continues to be a wide variation in who is authorised to receive whistleblower reports within agencies (see Table 6.4). Eighteen per cent of agencies rely solely on the agency head and have not authorised other people to receive reports—this has not changed over the last three years.
The most commonly nominated people authorised to receive whistleblower reports continue to be the head of corporate services, the HR manager and all SES. A small proportion of agencies have authorised all line managers, or employees in specialist conduct units.
| Categories of ‘authorised’ persons | Agencies reporting each category (%) |
|---|---|
| Head of corporate services | 56 |
| HR manager | 43 |
| All SES employees | 30 |
| Agency head only person | 18 |
| All line managers | 9 |
| Employees in a specialist conduct unit | 8 |
| SES Band 2s and 3s | 7 |
| Source: Agency survey | |
The concentration of the ‘authorised person’ in a limited range of senior people in most agencies is consistent with the Australian Public Service Commissioner’s (the Commissioner’s) advice that agencies limit the number of authorised people, so that making a whistleblower report is a choice that is consciously made by employees. The small number of agencies who have authorised all line managers to receive reports may wish to reconsider this approach in light of the Commissioner’s recommendation.
Whistleblower referrals to the Australian Public Service Commissioner or the Merit Protection Commissioner
In circumstances where it is not appropriate for an agency head to deal with a whistleblower report by an APS employee, or where the whistleblower is not satisfied with the outcome of the investigation by the agency, the whistleblower may refer the report to the Australian Public Service Commissioner or the Merit Protection Commissioner.
| Carried over from 2005–06 | Received | Not accepted | Under consideration | Finalised | |
|---|---|---|---|---|---|
| Merit Protection Commissioner | 2 | 10 | 10 | 1 | 1 |
| Australian Public Service Commissioner | 2 | 21 | 15 | 5 | 3 |
| Source: Merit Protection Commissioner | |||||
As Table 6.5 indicates, the Merit Protection Commissioner received 10 whistleblower reports during 2006–07, five more than in 2005–06. Two reports were on hand at the start of the financial year. Ten reports were not accepted—six were out of jurisdiction and in four cases the Merit Protection Commissioner considered that the relevant matters could more appropriately be considered by the relevant agency head, at least in the first instance. One report provided insufficient evidence to justify a full inquiry. The remaining report was still being considered at the end of the financial year. Issues raised included alleged bullying and harassment, and conflict of interest.
The Australian Public Service Commissioner received 21 whistleblower reports in 2006–07, four more than in 2005–06. In all, 15 of these reports did not meet the criteria for investigation by the Australian Public Service Commissioner. Advice was provided to nine private citizens on the appropriate ways in which their concerns could be addressed, by referral either to the relevant agency head or to other administrative review bodies such as the Office of the Commonwealth Ombudsman.
Three APS employees were advised that, unless it was inappropriate for the agency head to deal with a particular matter, or where the whistleblower was not satisfied with the outcome of the investigation by the agency, they should direct their allegations to the relevant agency head. Three anonymous reports were referred to the relevant agency head for action in accordance with the agency’s whistleblower procedures.
Of the remaining six reports on hand, four met the criteria for investigation by the Australian Public Service Commissioner. Three of these investigations, two of which involved one whistleblower, were not finalised at the end of the reporting period. Matters raised in the reports ranged from concerns about management of recruitment processes and non-approval of leave, to allegations of victimisation, bullying and harassment.
The Australian Public Service Commissioner finalised the investigation of three whistleblower reports during 2006–07. One was received during the year and involved alleged misconduct by several persons, including an agency head. It was found that there was no evidence to support the allegations.
The other two, which were on hand at the end of the previous reporting period, concerned the conduct of the Merit Protection Commissioner. In both cases, the Australian Public Service Commissioner concluded that there was no evidence to support the allegations of inappropriate behaviour by the Merit Protection Commissioner, and that the allegations reflected the employees’ disappointment with the outcome of their applications in relation to other matters.
Managing suspected breaches of the Code of Conduct
The way in which agencies manage investigations of suspected breaches of the Code can have an important influence on APS employee and public perceptions of integrity and fairness within the APS. A sanction for misconduct can be imposed only where there has been a determination of the breach of the Code made in accordance with the procedures established by the agency head in accordance with s.15(3) of the Act.
An agency’s procedures can be supplemented by more detailed guidance material, including guidance on setting an appropriate sanction. One significant advantage of supplementing procedures by more detailed guidance material is that it is clear which are the mandatory procedures that are legally binding, as distinct from other material that only has the status of guidance.
Levels of investigation
This year, 945 employees were subject to finalised investigations into suspected breaches of the Code of Conduct (compared to 1,491 in 2005–06 and 865 in 2004–05). Seventy per cent of employees (665) who were investigated were found to have breached the Code—a decline from 76% (1,140) last year, but higher than the 63% of employees found to have breached the Code in previous years. The large volume of investigations in 2005–06 was largely due to investigations by Centrelink resulting from the introduction of a strengthened ICT system to monitor employees accessing client records inappropriately.
Agencies are continuing to use enhanced ICT monitoring to ensure compliance with the Code. In July 2007, DAFF announced that over 100 of its employees were subject to investigation regarding breaches of the Code, for abusing the Department’s ICT system. The investigations have not had a marked impact on this year’s figures because the investigations, while significant, have not been on the same scale as Centrelink’s investigations and not all investigations had been completed at the end of 2006–07. DAFF has taken a number of steps to address the issues it identified, including the introduction of a zero tolerance policy in relation to the inappropriate use of ICT and enhanced ethics training for new and current employees. The experience of DAFF reinforces the need for all agencies to ensure they have appropriate educative and compliance mechanisms in place to ensure their employees uphold the Values and behave in accordance with the Code.
There continues to be a large variation between agencies in the proportion of employees subject to investigations into suspected breaches of the Code. In 2006–07, of the large agencies, eight reported fewer than three investigations per 1,000 employees (ASIC, BoM, DEW, DITR, DOTARS, FaCSIA, Finance and Health). Two large agencies reported more than 10 investigations per 1,000 employees (CSA and DIAC)—CSA reported more than 25 investigations per 1,000 employees. AGD and DFAT reported no investigations.
Previous evaluation work by the Commission suggests there is a range of factors that explain this variation, including the nature of the work of different organisations, and the fact that some agencies are relatively quick to initiate formal investigations into reported breaches of the Code, whereas others will only do so after some form of quite detailed preliminary investigation indicates that a formal determination that the employee has breached the Code is a likely result.
Nature of reported breaches
Table 6.6 sets out the frequency with which particular elements of the Code were suspected of being breached in the formal investigations finalised in 2006–07 and the number of agencies that reported having finalised at least one formal investigation involving a suspected breach of that element of the Code.
There continues to be variation in the extent to which employees are investigated for suspected breaches of the different elements of the Code. The element that was suspected of being breached by the highest number of employees overall was the same as last year, namely s.13(11) of the 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’. There has, however, been a substantial reduction in the number of employees (in many cases falls of over 500) investigated against most elements. This reflects the impact the action taken by Centrelink to address the improper use of customer records had on these results in 2005–06.
| Element of the Code | No. of employees investigated for a suspected breach of this element (Number) | Percentage of cases where a breach was found (%) | No. of agencies with finalised investigations (Number) |
|---|---|---|---|
| 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 (s.13(11)) | 435 | 79 | 35 |
| comply with any lawful and reasonable direction given by someone in the employee’s agency who has authority to give the direction (s.13(5)) | 421 | 81 | 27 |
| behave honestly and with integrity in the course of APS employment (s.13(1)) | 373 | 70 | 32 |
| use Commonwealth resources in a proper manner (s.13(8)) | 358 | 74 | 33 |
| when acting in the course of APS employment, treat everyone with respect and courtesy, and without harassment (s.13(3)) | 226 | 63 | 36 |
| act with care and diligence in the course of APS employment (s.13(2)) | 208 | 84 | 23 |
| disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment (s.13(7)) | 161 | 75 | 10 |
| when acting in the course of APS employment, comply with all applicable Australian laws (s.13(4)) | 133 | 79 | 19 |
| 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 (s.13(10)) | 79 | 53 | 14 |
| 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 (s.13(9)) | 60 | 60 | 13 |
| not disclose certain information without authority (s.13(13) and Regulation 2.1)(a) | 6 | 67 | 5 |
| while on duty overseas, at all times behave in a way that upholds the good reputation of Australia (s.13(12)) | 3 | 67 | 2 |
| maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff (s.13(6)) | 1 | 0 | 1 |
(a) An amended version of Public Service Regulation 2.1 came into effect on 15 July 2006. Note: Agencies were asked for data on employees who were the subject of formal investigations, and were specifically asked not to include data on initial investigations that did not proceed to formal misconduct procedures. However, it is possible that some agencies may have provided information on elements of the Code that were suspected of being breached in both formal and informal investigations. Source: Agency survey |
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This year, the 945 employees involved in finalised investigations were investigated against a total of 2,464 suspected breaches of elements of the Code (some of these suspected breaches are likely to involve the same action which may have breached more than one element of the Code). This represents an average of 2.6 elements of the Code suspected of having been breached by each employee investigated, a decrease from four elements in 2005–06, but in line with the 2.5 elements in 2004–05. Centrelink accounted for the relatively large average in the number of elements in 2005–06.
Improper use of Internet/email and improper access to personal information were the two most common subjects of misconduct investigations (see Table 6.7), with Centrelink, ATO, CSA and Customs having most investigations in these areas. The third most common subject of misconduct investigations, inappropriate behaviour of employees (other than harassment or bullying) during working hours (e.g. treating clients or stakeholders disrespectfully), has increased substantially over the last three years, from 72 investigations in 2004–05 to a total of 165 in 2006–07. Centrelink, DIAC and ATO account for half of these investigations. Other areas of increase since 2004–05 include unauthorised disclosure of information (e.g. leaks)—127% higher, theft—67% higher, and fraud other than theft (e.g. identity fraud)—45% higher.
| Type of misconduct | No. of employees(a) investigated for this type of misconduct (Number) | Percentage of cases where a breach was found (%) | No. of agencies with finalised investigations (Number) |
|---|---|---|---|
| Improper use of Internet/email | 286 | 77 | 24 |
| Improper access to personal information (e.g. browsing) | 202 | 76 | 9 |
| Inappropriate behaviour of employees (other than harassment or bullying) during working hours (e.g. treating clients or stakeholders disrespectfully) | 165 | 66 | 27 |
| Harassment and/or bullying | 76 | 63 | 24 |
| Improper use of resources other than Internet/email (e.g. vehicles) | 75 | 73 | 20 |
| Conflict of interest | 69 | 54 | 8 |
| Improper use of position status (e.g. abuse of power, exceeding delegations) | 50 | 52 | 14 |
| Fraud other than theft (e.g. identity fraud) | 45 | 60 | 12 |
| Theft | 40 | 73 | 13 |
| Unauthorised disclosure of information (e.g. leaks) | 25 | 64 | 12 |
| Private behaviour of employees (e.g. at social functions outside working hours) | 16 | 63 | 9 |
| Misuse of drugs or alcohol | 8 | 50 | 3 |
(a) An individual employee may be counted against more than one type of misconduct. Note: Agencies were asked for data on employees who were the subject of formal investigations, and were specifically asked not to include data on initial investigations that did not proceed to formal misconduct procedures. However, it is possible that some agencies may have provided information on elements of the Code that were suspected of being breached in both formal and informal investigations. Source: Agency survey |
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Consistent with previous years’ findings, Table 6.7 suggests that misconduct in areas where investigations of the suspected breach relies on physical evidence (e.g. computer records or actions identified through routine audit practices) rather than on opinion or observation is more likely to result in a finding that the Code was breached. Previous evaluation work by the Commission suggests that different practices by agencies also influence the likelihood of a finding that the Code was breached. As noted above, some agencies delay commencing a formal investigation until a preliminary investigation has been conducted, whereas other agencies routinely commence formal investigations as soon as they are notified of a suspected breach.
Outcomes of finalised investigations
There is a variety of sanctions that agencies can impose on an employee who is determined to have breached the Code. Table 6.8 shows the outcomes of investigations into suspected breaches of the Code finalised in agencies in 2006–07.
| Outcome | No. of employees affected(a) | No. of agencies that reported the outcome |
|---|---|---|
| Reprimand | 293 | 29 |
| Deduction from salary by way of a fine | 208 | 17 |
| No breach found | 168 | 22 |
| Investigation discontinued because of resignation of employee under investigation | 146 | 17 |
| Termination of employment | 84 | 20 |
| Reduction in salary | 78 | 13 |
| Investigation discontinued but employee counselled | 77 | 20 |
| Reduction in classification | 34 | 12 |
| Breach found but no sanction imposed | 27 | 14 |
| Reassignment of duties | 26 | 11 |
| Other | 16 | 7 |
(a) An employee may be counted against more than one outcome. Note: Agencies were asked for data on employees who were the subject of formal investigations, and were specifically asked not to include data on initial investigations that did not proceed to formal misconduct procedures. However, it is possible that some agencies may have provided information on elements of the Code that were suspected of being breached in both formal and informal investigations. Source: Agency survey |
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The most common sanction applied to employees continues to be a reprimand, followed by a deduction from salary by way of a fine. Other high-impact sanctions—termination of employment, reduction in salary, or reduction in classification—are relatively less common.
During 2006–07, terminations were more evenly spread across the three largest agencies—Centrelink (24%), ATO (18%) and Defence (15%)—compared to last year when Centrelink accounted for 42% of terminations.
There continues to be variation between large agencies in the extent of their use of high-impact sanctions. The total number of sanctions imposed by large agencies ranged from one to 283. The results are consistent with previous years’ findings when Centrelink’s results for 2005–06 are removed. High-impact sanctions accounted for 17% of sanctions imposed. The imposition of high-impact sanctions varied between 0% and 36%. Although high-impact sanctions were not used in six large agencies, they accounted for more than one-third of sanctions in one large agency.
Previous evaluation work by the Commission has suggested that this variation reflects the nature of the work of different organisations, variations in approach to how suspected misconduct is dealt with (e.g. whether minor misconduct is dealt with through a formal investigation) and some agencies taking a strong line in relation to sanctions.
Assurance mechanisms
It is important for agencies to be confident that they have proper processes in place for handling suspected breaches of the Code. The integrity of these processes is a fundamental part of effective governance.
The Commission’s better practice guide, Handling Misconduct, suggests a large number of quality assurance mechanisms.5 These include: having a final checking process prior to a final determination being made; limiting the number of people in the agency with the delegation to determine a sanction to only a few people; and periodically conducting a file audit of a sample of misconduct files to evaluate if correct procedures and recordkeeping requirements are being followed.
Testing employee confidence is another important quality assurance mechanism.
There has been a considerable increase this year in the use of staff surveys, consultative mechanisms, or other mechanisms for collecting information on employees’ confidence that agency investigations into suspected breaches of the Code were conducted fairly and objectively. However, these are still being used only by a minority of agencies. Nearly one-third of agencies (31%) reported that they used at least one mechanism (18% in 2005–06). Fifteen per cent reported using staff surveys, and 13% reported using consultative mechanisms, up from 8% last year. Nine agencies reported using other mechanisms, including seeking feedback from employees subject to investigation, exit surveys, ethics committees and the use of external investigators.
Reviews related to Code of Conduct matters
The Regulations provide non-SES employees with a review right in relation to a determination that they breached the Code and/or the sanction imposed for a breach (other than termination decisions). An application for such a review is lodged directly with the Merit Protection Commissioner.
As highlighted by the Federal Magistrates Court decision in Walworth v. Merit Protection Commissioner & Anor [2007] FMCA (23 February 2007), it is generally desirable to strictly adhere to agency procedures for determining breaches of the Code. While not every failure to comply with the procedures will render a decision invalid, in the case of a substantial breach it is likely that the Merit Protection Commissioner would recommend that the relevant decision be reconsidered or, on judicial review, that a court would set it aside.
In 2006–07, the Merit Protection Commissioner received 35 applications for review. This represents a review rate of around 5% of finalised agency investigations where employees were found to have breached the Code.
During the year, 28 reviews were completed. In each of these reviews, the Merit Protection Commissioner made formal recommendations to the relevant agency head that the decision under review be either confirmed (15), varied (10) or set aside (3).
The small number of reviews and the diverse nature of the different cases mean that results are likely to vary from year to year.
3 Australian Public Service Commission 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, Commonwealth of Australia, Canberra <http//www.apsc.gov.au>
4 The employee survey gave the following examples of a serious breach: fraud, theft, misusing clients’ personal information, sexual harassment or leaking classified documentation.
5 Australian Public Service Commission 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, Commonwealth of Australia, Canberra, <http//www.apsc.gov.au>
