1.1.1 The following explains the provisions in the Public Service Act 1999 (PS Act) and the Public Service Regulations 1999(PS Regulations) relating to certain statutory office holders and the Australian Public Service (APS) Code of Conduct (the Code). In broad terms, the Code applies to statutory office holders who are not agency heads, where they supervise APS employees or have a day to day working relationship with APS employees.
1.1.2 The Code applies to certain statutory office holders who are not excluded from the provision, 51 to the extent that they are engaging with APS employees as managers or colleagues. This means, for example, that statutory office holders working with APS employees are required to meet the same standards of respect and courtesy as APS managers and employees in their dealings with APS employees.
1.1.3 The arrangements preserve the independence of statutory office holders. The PS Regulations provide that in the event of a conflict between the requirements of the Code and the legislation under which the statutory office holder performs their statutory functions, the latter takes precedence.
1.1.4 The Australian Public Service Commissioner (the Commissioner) has a function of inquiring into allegations of breaches of the Code by statutory office holders. While the Commissioner is able to determine that a statutory office holder has breached the Code, the Commissioner is unable to impose a sanction.
1.2 Legislative framework
1.2.1 Section 14 of the PS Act provides that statutory office holders are bound by the Code to the extent prescribed by the PS Regulations. Regulation 2.2 of the PS Regulation details the statutory office holders to whom the Code does and does not apply.
Statutory office holders bound by the Code
1.2.2 The Code applies to statutory office holders who are:
- engaged, employed, or appointed under an Act, and
- assisted by, or have dealings with APS employees, in a supervisory capacity, or in another capacity related to the office holder's day-to-day working relationship with APS employees.
1.2.3 In this context, a statutory office holder having a 'day-to-day working relationship' with APS employees refers to circumstances in which an office holder and APS employees work together as colleagues or where the statutory office holder otherwise comes into contact with APS employees on a day-to-day working basis. An APS employee does not have to be in the same agency as the statutory office holder for the Code to apply.
Statutory office holders not bound by the Code
1.2.4 Regulation 2.2 of the PS Regulations excludes agency heads, judicial officers, members of the Defence Force and certain tribunal members listed in regulation 2.2(2)(c) of the PS Regulations from the statutory office holders covered by the Code.
Code does not apply if inconsistent with statutory functions
1.2.5 There may be times when the requirements of the Code, including the requirement to uphold the APS Values and Employment Principles, may not be consistent with a statutory office holder's functions, or may have the effect of compromising their statutory independence. In these circumstances, it is expected that the statutory office holder will adhere to the requirements of their primary legislation, rather than the Code. PS Regulation 2.2 provides that if there is an inconsistency between the requirements of the Code and another law relating to the statutory office holder's office or appointment, the statutory office holder's own legislation will take precedence.
1.3 Managing suspected of misconduct by statutory office holders
1.3.1 The legislation under which statutory office holders are appointed or hold office will usually contain provisions relating to the circumstances in which a statutory office holder may be removed from office. Some legislation includes provisions for disciplinary arrangements that are separate from the arrangements in s14 of the PS Act.
1.3.2 For the purposes of the arrangements established under s14 of the PS Act, the Commissioner has the function of inquiring into suspected breaches of the Code by statutory office holders, and determining whether or not the statutory office holder has breached the Code (regulation 6.1A of the PS Regulations).
1.3.3 Where it is suspected that a statutory office holder covered by the Code may have breached the Code in relation to their treatment of an APS employee, it is advisable to discuss the matter with the Australian Public Service Commission.
51 Regulation 2.2 of the PS Regulations excludes certain statutory office holders from coverage of the Code.