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Appendix 4 - The Australian Public Service Code of Conduct and the Public Governance, Performance and Accountability Act

1. Introduction

1.1 The Public Governance, Performance and Accountability Act 2013 (PGPA Act) is the primary piece of legislation governing financial resource management in the Commonwealth. The PGPA Act supports the efficient, effective, economical and ethical use of Commonwealth resources and is administered within
the Finance portfolio. More information about the PGPA Act can be found on the Department of Finance website.

1.2 This appendix provides information on the connection between the PGPA Act, particularly the duties of officials, and the Australian Public Service Code of Conduct (the Code).

2. General duties of officials and the Code of Conduct

2.1 Sections 25 to 29 of the PGPA Act set out the following general duties of officials:

  • to act with care and diligence
  • to act honestly, in good faith and for a proper purpose
  • to not use their official position or information improperly, including to obtain a benefit or cause harm
  • to disclose material personal interests.

2.2 These duties are similar to elements of the Code. Generally, if an employee upholds the Code they will also be complying with the general duties of officials. Appendix 5 Elements of the Australian Public Service Code of Conduct of this guide provides more information on the connection between the Code and relevant sections of the PGPA Act. Further information on the general duties of officials can be found in the Department of Finance Resource Management Guide
No. 203 General duties of officials.57

3. Comparison of the Code of Conduct and the PGPA Act

3.3 Below is a table comparing relevant elements of the Code with the general duties of officials in the PGPA Act.

General duties of officials in the PGPA Act compared to the relevant elements of the Code of Conduct
PGPA Act Code of Conduct
Section 25 Duty of care and diligence
  1. An official of a Commonwealth entity must exercise his or her powers, perform his or her functions and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if the person:
    1. were an official of a Commonwealth entity in the Commonwealth entity's circumstances; and
    2. occupied the position held by, and had the sameresponsibilities within the Commonwealth entity as, the official.
  2. The rules may prescribe circumstances in which the requirements of subsection (1) are taken to be met.
Section 13(2)

An APS employee must act with care and diligence in connection with APS employment
Section 26 Duty to act honestly, in good faith and for proper purpose

An official of a Commonwealth entity must exercise his or her powers, perform his or her functions and discharge his or her duties honestly, in good faith and for a proper purpose.
Section 13(1)

An APS employee must behave honestly and with integrity in connection with APS employment

Section 13(8)

An APS employee must use Commonwealth resources in a proper manner and for a proper purpose
Section 27 Duty in relation to use of position

An official of a Commonwealth entity must not improperly use his or her position:
  1. to gain, or seek to gain, a benefit or an advantage for himself or herself or any other person; or
  2. to cause, or seek to cause, detriment to the entity, the Commonwealth or any other person.
Section 13(10)

An APS employee must not improperly use inside information or the employee's duties, status, power or authority:
  1. to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or
  2. to cause, or seek to cause, detriment to the employee's Agency, the Commonwealth or any other person.
Section 28 Duty in relation to use of information

A person who obtains information because they are an official of a Commonwealth entity must not improperly use the information:
  1. to gain, or seek to gain, a benefit or an advantage for himself or herself or any other person; or
  2. to cause, or seek to cause, detriment to the Commonwealth entity, the Commonwealth or any other person.
Section 13(10)

An APS employee must not improperly use inside information or the employee's duties, status, power or authority:
  1. to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or
  2. to cause, or seek to cause, detriment to the employee's Agency, the Commonwealth or any other person.
Section 29 Duty to disclose interests
  1. An official of a Commonwealth entity who has a material personal interest that relates to the affairs of the entity must disclose details of the interest.
  2. The rules may do the following
    1. prescribe circumstances in which subsection (1) does not apply;
    2. prescribe how and when an interest must be disclosed;
    3. prescribe the consequences of disclosing aninterest (for example, that the official must not participate at a meetingabout a matter or vote on the matter).
Section 13(7) An APS employee must:
  1. take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee's APS employment; and
  2. disclose details of any material personal interest of the employee in connection with the employee's APS employment.

4. Transitional matters

4.1 The PGPA came into effect on 1 July 2014. The Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 amended both the PGPA Act, before it came into effect, and the Public Service Act 1999 (PS Act) to align the relevant elements of the Code and the duties of officials. Transitional
provisions provide that

  1. For the purposes of s13(7) of the PS Act, the obligation to disclose a material personal interest, and to take reasonable steps to avoid any real or apparent conflict of interest, will apply regardless of whether that interest, or that conflict of interest, arose before or after commencement.
  2. For the purposes of s13(8) of the PS Act, the obligation to use Commonwealth resources for a proper purpose applies to uses of resources after commencement.
  3. The amendments to s13(10) of the PS Act, apply to
    1. uses by APS employees occurring after commencement of information obtained before and after commencement and
    2. uses by APS employees of their duties, status, power or authority after commencement.

4.2 Whether an employee has breached the Code or not will be determined having regard to the requirements of the Code at the time of the suspected act of misconduct.


Footnotes

57 www.finance.gov.au/resource-management/accountability/officials