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Appendix 5 - Elements of the APS Code of Conduct

1.1 Introduction

1.1.1 This appendix provides guidance on the elements of the Australian Public Service (APS) Code of Conduct (the Code). It has been developed to assist decision-makers, and others involved in handling misconduct matters, better understand the application of the Code.

1.1.2 The Code in s13 of the Public Service Act 1999 (PS Act) has 13 subsections, or elements, some of which contain several obligations. For example, s13(3) requires APS employees, when acting in connection with APS employment, to treat everyone with respect and courtesy, and without harassment.

1.1.3 When interpreting the Code, as a general rule each obligation in the Code is given its ordinary meaning. Decision-makers may rely on authorities such as the Macquarie Dictionary for definitions.

1.1.4 Further advice on the application of the Code is provided in Part I Section 3.5 of this guide. This includes, in particular, the meaning of the terms 'in connection with' and 'at all times'.

1.1.5 Other publications also provide information on the Code including:

  1. the APS Values and Code in practice: A guide to official conduct for APS employees and agency heads.58
  2. Chapter 1 of the Australian Public Service Commissioner's Directions 2013 (the Directions) provides information on the application and scope of the Values.

1.2 Standard

1.2.1 The standard of behaviour expected of APS employees is an objective one:

The propriety of the actions expected of an employee should be assessed by reference to the standard of conduct expected of a public servant, having regard principally to the expectations of the public.59

1.2.2 The question of whether particular conduct breached the Code is not determined by the subjective standard of the particular employee. The fact that an employee genuinely believed that the action he or she took was proper is not relevant to the decision about whether that action was in breach of the Code. For example, an employee may genuinely believe that he or she was justified in using defamatory and hurtful language about a colleague, but such behaviour may not meet the objective standard of respect and courtesy in the Code.

1.3 Intent or motive

1.3.1 A determination that a person has breached the Code does not generally require intent. A person being investigated for misconduct may still be found to have breached the Code if they, for example, acted without care or without diligence, whether or not they meant to. The Code does not use words such as 'wilful' or 'reckless' or 'negligent' to qualify the behaviour involved. Proven behaviour contrary to the particular section of the Code may suffice as evidence of a breach of the Code. Generally, it not necessary to establish motive or personal gain to find a breach of the Code.

1.3.2 There are some exceptions. These are set out later in this appendix.

1.3.3 While intent, motive, or personal gain may not be required to establish a breach of the Code, they may be considered when deciding whether to investigate a matter under an agency's s 15(3) procedures or making a decision about sanction. For example, knowingly acting in breach of the Code would generally be considered more serious than a one-off careless act.

1.4 Multiple obligations

1.4.1 Some elements of the Code contain several obligations. For example, s13(1) of the PS Act requires APS employees to behave honestly and with integrity, in connection with APS employment. An employee is required to uphold all obligations of each element of the Code to comply with the Code.

1.4.2 In such cases, it is not necessary to find that an employee breached every obligation within an element in order to make a determination that the Code has been breached. For example, an employee can be found to have failed to have behaved with integrity, and therefore been in breach of s13(1), without also being found to have behaved without honesty. This applies to other elements of the Code with multiple obligations; care and diligence, respect and courtesy and without harassment etc.60

1.4.3 Section 13(11) requires APS employees at all times to uphold the Values and the Employment Principles. A failure by an APS employee to uphold any single obligation of the Values and Employment Principles may also be a breach of the Code.

1.5 Overlapping concepts

1.5.1 There is some overlap between different elements of the Code and between obligations in the same section of the Code. For example, not taking reasonable steps to avoid a conflict of interest could also be a lack of care and diligence. Behaving dishonestly may also be a lack of integrity.

1.5.2 It is generally unnecessary to determine the degree of overlap; a breach of one obligation is a breach of the Code.

1.5.3 Where multiple elements are in play it is appropriate to consider the allegation against each element separately to the extent needed. A breach of one element does not necessarily say anything about the other(s). For example, the fact that a person acts without care and diligence does not mean they cannot have acted with integrity.

2. Section 13—guidance on the scope or application of the elements of the Code

13(1) An APS employee must behave honestly and with integrity in connection with APS employment

2.1 Behaving honestly and with integrity involves concepts such as 'truthfulness', 'sincerity' and 'frankness'. Integrity involves a 'soundness of moral principle and character'. 61

2.2 Failure to act honestly includes deliberate behaviour that the employee knows to be wrong. However, employees may make honest mistakes without breaching this element of the Code. Such action will usually be better dealt with through performance management such as training or counselling. In more serious cases, it may be dealt with as a potential breach of s13(2) of the PS Act.

2.3 This element of the Code aligns with the duties in s26 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act). Adherence to the Code will ordinarily meet the requirements of s26 of the PGPA Act.

13(2) An APS employee must act with care and diligence in connection with APS employment

2.4 Care and diligence have their ordinary dictionary meanings of 'serious attention and solicitude to work' and 'earnest effort to accomplish what is undertaken'.62 The standard of care and diligence required is objective and can be assessed by applying the standard of a 'reasonable person' in the same circumstances as the APS employee. The level of care and diligence required of senior managers responsible for the delivery of a program of work may be higher than that of other employees delivering single elements of that program.

2.5 Things done carelessly or without appropriate attention, i.e. without diligence, might be dealt with as a performance issue, through training, or counselling but might also be dealt with as a breach of the Code, particularly for more serious examples. The relevant decision-maker will need to decide which option best meets the circumstances—see Relationship between misconduct and performance management processes in Part II, Section 5.1 of this guide.

2.6 Once it has been decided that a Code investigation is warranted, the breach decision-maker can then consider whether the conduct was careless or lacked diligence. It is not, however, enough for the breach decision-maker merely to come to a view that it would have been preferable to deal with the matter in question differently. A difference of opinion on how a matter should have been handled does not necessarily mean that the matter was handled without appropriate care or diligence. The question will be what a reasonably careful and diligent employee in the same position should have done in all the relevant circumstances. This may include, for example, a consideration of whether the employee's conduct was consistent with any professional standards that might apply in that role in addition to those under the Code and Values.

2.7 In some cases, the personal attributes of the employee may be relevant to whether they have acted with care and diligence. For example:

  1. an employee who has received training in a specialist skill may be expected to exercise those skills. A person who was known not to have those skills could not reasonably be expected to exercise them;
  2. an employee with many years' of relevant experience might reasonably be expected to discharge their duties more effectively than an employee who had no previous directly relevant experience.

2.8 This element of the Code aligns broadly with the duty of care and diligence under s25 of the PGPA Act. Adherence to the Code will ordinarily meet the requirements of s25 of the PGPA Act.

13(3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment

2.9 There are three obligations within this section of the Code—respect, courtesy and no harassment.

2.10 The Values also require APS employees to be respectful. Having regard to the employee's duties and responsibilities, employees are expected to respect all people, including their rights and their heritage. Further information on the application of this Value can be found in clause 1.4 of the Directions.

2.11 The requirement to treat everyone with respect and courtesy, and without harassment, is an objective one. The subjective opinion of the person alleging disrespect, discourtesy, bullying or harassing behaviour does not establish the fact of behaviour in breach of s13(3). Similarly, a breach of the element does not require that the relevant employee be offended by the behaviour, or even aware of it. The question is whether a reasonable person observing the behaviour would consider that the behaviour in question met the standard of the Code.

2.12 The use of the word 'treat' does not require direct communication with, or that the behaviour is directed at, a particular person. There are definitions of the word 'treat' that are less direct—'to deal with in speech' is one.

2.13 It may be necessary to consider patterns and overall behaviour when looking at allegations of bullying and/or harassment. Individual actions may not appear to be very significant but, taken in conjunction with other actions, might reveal a pattern of bullying or harassing behaviour.

2.14 Care should be taken with general allegations of bullying and harassment, such as vague claims of 'passive aggressive' behaviour or feelings of being undermined. Allegations of this sort may be a description of the complainant's subjective response to the person they are complaining about. For a breach of the Code to be determined, it is necessary to identify specific incidents and events that can be objectively assessed. In addition, a lack of such specificity in allegations of misconduct will make it more difficult to ensure that the person who is the subject of those allegations is able to respond to them in a fair and meaningful way. If an agency is taking into consideration a pattern of behaviour, that pattern of behaviour has to be linked to observable incidents that are capable of being proven as misconduct.

13(4) An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws.

2.15 This element of the Code will most commonly arise in agencies where the work is governed by legislation, or will involve broader laws such as work, health and safety legislation, financial legislation, and the criminal law. For the purposes of s13(4), Australian laws include any Commonwealth, State or Territory legislation and any instruments made under such legislation.

2.16 Not all Australian laws will be relevant for the purpose of s13(4). Only those laws which establish a particular standard of individual conduct will be relevant. For example, a law which requires a corporation to submit a tax return is not a law that an individual person can breach. By contrast, a law requiring an individual to lodge a tax return is a law which imposes a particular standard of conduct on individuals.

2.17 Some of the applicable laws, for the purposes of s13(4), are criminal laws. A person who has breached a law which is a criminal law can be tried by a court and found guilty of a criminal offence. Only a court can make a decision that a person is guilty of a criminal offence. However, this does not prevent a breach decision-maker in an agency from making a finding that a person has not complied with a criminal offence provision.

2.18 In these circumstances, a breach decision-maker is not making a finding of criminal guilt and is not bound by the laws relating to evidence. Further, the burden of proof on a breach decision-maker is generally that he or she be satisfied 'on the balance of probabilities'. In a criminal prosecution, the burden of proof must generally be discharged 'beyond reasonable doubt'.

2.19 The specific offence provision will generally define the physical and fault elements of an offence, such as whether there was the necessary level of intent. The breach decision-maker will need to satisfy himself or herself about the employee's conduct in that context. In cases of doubt, agencies are encouraged to seek legal advice.

2.20 Care should be exercised before deciding to investigate an APS employee for suspected breach of this element of the Code. The fact that a person has been charged with a criminal offence and is awaiting trial does not prevent an agency from investigating an employee for breach of this element. However, there may be circumstances where the investigation may prejudice the outcome of criminal proceedings.63

2.21 Where a court has recorded a conviction or otherwise determined criminal guilt a breach decision-maker can have regard to this in determining whether the employee breached s 13(4). Equally, the fact that a person has been convicted of a criminal offence does not mean that the person is automatically in breach of s13(4). A decision-maker proposing to take into account a criminal conviction must provide the individual with a reasonable opportunity to comment before doing so.

13(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

2.22 This element of the Code contains a number of limbs in relation to the giving of a direction, all of which must be met before a breach of the element can be determined.

Clarity of the direction

2.23 A direction needs to be 'tightly drafted, using the language of command throughout, and specify exactly what actions should and should not be taken'.64 A direction also needs to be internally consistent. It is appropriate to use language that is clear and directive and that provides the employee with no discretion in relation to their behaviour.

2.24 A general policy or guideline is not a direction for the purposes of the Code. Where a policy document is intended to be a direction from an agency head the document should be written using the language of command and to specify that it is a direction for the purposes of the PS Act.

2.25 A direction also needs to be clear in its terms and capable of being complied with. A direction to 'behave appropriately', for example, may be difficult to comply with and enforce as it is not clear what is meant by the term.

Reasonableness of the direction

2.26 The direction must be both lawful and reasonable. Whether it is reasonable will depend upon all the circumstances.

2.27 A reasonable direction has been described as one with the object of 'securing proper values to be required of a public servant…and in particular, the maintenance of public confidence in the integrity of the public service and public servants'.65 A reasonable direction needs to be proportionate to the end to be achieved.

2.28 Using that test, directions concerning private behaviour may be reasonable, but the circumstances would be critical. For example, directing an employee not to contact a co-worker at work and outside work, including using private telephone or email or social media, may be reasonable to protect that other employee's health and safety. Generally, directions aimed at private conduct with no apparent connection with the employee's work would not be reasonable.

Authority to give the direction

2.29 While there is no provision of the PS Act that expressly authorises the giving of directions, s13(5) of the PS Act recognises that there is an implied power to give directions.66 Therefore, a supervisor has implied authority to direct subordinate staff and an employee with functional responsibility for a particular matter generally has implied authority to give directions relevant to that matter.67

13(6) An APS employee must maintain appropriate confidentiality about dealings that the employee has with a Minister or Minister's member of staff

2.30 APS employees who deal with Ministers or with Ministers' offices may be privy to sensitive information in the course of their employment. APS employees must treat any such dealings with appropriate confidentiality. The phrase 'appropriate confidentiality' allows for disclosure to whomever else within the APS and the Government might have a proper need to know.

2.31 The APSC publication APS Values and Code in practice: A guide to official conduct for APS employees and agency heads provides guidance on working with the Government and the Parliament, and on managing official information.

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

2.32 A conflict of interest, including a material personal interest, can arise out of a work, private or social context. It might arise due to an APS employee's private share holdings, or those of their immediate family, other personal interests, acceptance of a gift, benefit or hospitality, cultural obligations, political activities or personal relationships. It can also arise through outside work—paid or voluntary.

2.33 To be 'material' a personal interest needs to be of a type that can give rise to a real or apparent conflict of interest. Personal interests do not give rise to a conflict of interest unless there is a real or sensible possibility of conflict and not simply a remote or theoretical possibility of conflict. If no reasonable person could draw a connection between the employee's personal interest and their duties, then the personal interest is not 'material'.

2.34 Once a material personal interest is identified, the employee must disclose that interest. If an employee is in a position to, or perceived to be in a position to, influence an outcome or a decision then that person needs to take reasonable steps to avoid that conflict of interest.

2.35 This element of the Code aligns with the duty to disclose interests under s29 of the PGPA Act. Adherence to the Code and the agency's policy and procedures for disclosing and managing conflicts of interest will ordinarily meet the requirements of s29 of the PGPA Act.

13(8) An APS employee must use Commonwealth resources in a proper manner and for a proper purpose

2.36 'Commonwealth resources' is a broad term and includes money, goods, services, vehicles, office equipment, official records, office premises, telephones or other telecommunication devices and computers. It also includes the salary costs of APS employees.

2.37 Most agencies have policies advising their employees on the appropriate use of Commonwealth resources. It is not appropriate for Commonwealth resources to be used for private gain. However, subject to agency policies, it is reasonable for APS employees to have limited private use of office equipment, for example reasonable and necessary telephone or email communication with family. Inappropriate use of an agency's ICT resources at work or out of office hours is covered by this section of the Code.

2.38 Damage to Commonwealth resources, however caused, can come within this section but each case will need to be considered carefully on its merits before deciding that misconduct action is appropriate.

2.39 The PGPA Act also requires APS employees to manage or use public resources in a proper manner. Adherence to the Code will ordinarily meet the requirements of s26 of the PGPA Act.

13(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

2.40 APS employees are required to provide responsive, efficient and effective services consistent with the APS Values, Employment Principles and associated Directions. Requests for information for official purposes may be made by members of the public, businesses, members of the media, other jurisdictions—national and international, members of Parliament, other Commonwealth agencies, by the employee's agency or another APS agency, or by work colleagues.

2.41 The information provided by APS employees in connection with their APS employment should not be misleading and should be appropriate to the request being made. An objective consideration of the information given and the circumstances in which it was given is necessary to determine whether the information was misleading. That a person receiving the information was misled does not make the information misleading in and of itself.

2.42 This element of the Code applies to requests for information made for official purposes in connection with an employee's APS employment. This is broader than requests for information that an employee may receive as part of their duties, and includes requests for information that relate to their own employment, such as information relevant to the job, applications for promotion, or to leave applications.

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

2.43 A breach of this element could occur if, for example, an APS employee gains, or seeks to gain an advantage for themselves, a friend, family member or associate. It can also occur if a senior officer in a supervisory role uses their status to gain favours from a member of their team or other junior staff. The benefit or advantage is not defined and is not limited to financial gain.

2.44 Whether or not any person actually obtained a benefit from the employee's actions does not determine whether the behaviour is in breach of this element of the Code. This element can be breached if the employee merely sought a benefit or advantage. Similarly, actual detriment to the agency, Commonwealth or other person does not have to have occurred for a breach to be found.

2.45 Inside information could include any official information which is not public. For example, it could include confidential information the employee has access to as a consequence of their employment or information that was provided on the basis that it was to be used only for a specific purpose. There may also be other agency specific legislation limiting the use of information.

2.46 Whether a use is improper, or not, will depend on the circumstances of each case. It is appropriate, generally, to assess the case by considering whether a reasonable person would, having regard to any relevant agency guidance, form the view that the use was improper. Employees of the APS are expected to undertake their duties in the public interest. On that basis, deciding whether a use was improper would have regard to the nature of the benefit or advantage they were attempting to gain, or the detriment they were attempting to cause.

2.47 The phrases 'seek to gain' a benefit and 'seek to cause' detriment indicate that the employee's conduct was intentional. In considering behaviour against this element of the Code, agencies will need to be able to establish that the employee acted with some degree of intention to achieve the gain or cause the detriment.

2.48 This element of the Code aligns with the duty in ss27 and 28 of the PGPA Act of an official not to use their position or information or improper purpose.68 Adherence to the Code will ordinarily meet the requirements of ss27 and 28 of the PGPA Act.

13(11) An APS employee must at all times behave in a way that upholds:

  1. the APS Values and APS Employment Principles; and

  2. the integrity and good reputation of the employee's Agency and the APS

2.49 This element of the Code applies to an APS employee's behaviour 'at all times'. It may be breached by an APS employee outside normal work hours and at non-work premises. There is no explicit requirement in the section that the suspected conduct of the employee must be connected to their APS employment. In practice, however, determining that an action breaches the Code will generally require some degree of connection to the employee's employment.

2.50 This element of the Code places a positive obligation on APS employees to behave in a way that maintains confidence in their ability to serve the Government of the day professionally and does not undermine public confidence in their agency or the APS.

2.51 Because this element of the Code places a positive obligation on employees, it is not necessary to establish actual damage to the reputation of the agency or the APS in order to find that this section of the Code has been breached. A lack of damage may be relevant to a decision to start an investigation under an agency's s15(3) procedures or be relevant to mitigation when deciding a sanction.

2.52 Where an agency is alleging that an employee has breached s13(11) of the Code for behaviour that fails to uphold the Values and/or the Employment Principles, it is necessary to identify which Values or Employment Principles are at issue. It also necessary to advise the employee which Values or Employment Principles are at issue, and to give the employee an opportunity to respond, consistent with the agency's s15(3) procedures, prior to making a decision on breach.

2.53 The concept of integrity in this section of the Code is different to integrity in s13(1). Under s13(1), it is necessary to behave with integrity; here, an APS employee has to behave in a way that upholds the integrity of the employee's agency and the APS. For example, a public servant agreeing with critical comments made by a client about government policy may not be consistent with a requirement to behave in a way that upholds the integrity of their agency and the APS, in the sense of upholding their sound or unimpaired condition, but it may not in itself indicate that the public servant lacks integrity.

2.54 Information on the relationship between private behaviour of a criminal nature and the Code is in Part I, Section 3.7 of this guide Suspected Misconduct that may also be a criminal act.

13(12) An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia

2.55 The Code applies to APS employees on duty overseas at all times, encompassing the private behaviour of APS employees overseas. It is recognised that Australia expects the highest levels of professional and ethical behaviour by its representatives overseas. Given that employees serving overseas are particularly visible, inappropriate or unethical conduct in their private lives is likely to reflect negatively on the good reputation of Australia.

2.56 Most agencies with employees overseas have policies that articulate the responsibilities of those employees.69 If such policies do not exist, it is advisable for agencies to advise staff who travel and work overseas of their obligations under the Code and the agencies' expectations of behaviour.

13(13) An APS employee must comply with any other conduct requirements prescribed by the regulations

2.57 To date, only one other conduct requirement has been prescribed under the Public Service Regulations 1999 (PS Regulations).

2.58 Regulation 2.1 of the PS Regulations imposes a duty on an APS employee not to disclose certain information without authority. The duty applies to information communicated in confidence or where disclosure could be prejudicial to the effective working of government. Regulation 2.1(5) of the PS Regulations sets out circumstances where APS employees are not prevented from disclosing information.

2.59 The regulation is not designed to regulate the disclosure of official information comprehensively. It operates alongside other provisions and obligations, including agency-level directions and authorisations.

2.60 This regulation also notes that under s70 of the Crimes Act 1914 it is an offence for an APS employee to publish or communicate any fact or document which it is the employee's duty not to disclose. Section 70 also applies to former employees.


Footnotes

58 www.apsc.gov.au/publications-and-media/current-publications/aps-values-and-code-of-conduct-in-practice (under review)

59 Bercove v Hermes (1983) 74 FLR 315

60 See Rothfield v Australian Bureau of Statistics [PR 927240] AIRC (3 February 2003) where Senior Deputy President Lacy held that the provisions in s13(3) should be read disjunctively.

61 Macquarie Concise Dictionary

62 Macquarie Concise Dictionary

63 see section 3.7.9 of this guide for more information about this issue

64 Phillips v DAC (1994) 48 FCR 57

65 McManus v Scott-Charlton (1996) 140 ALR 625

66 It has been held that the source of the power to give a direction is the contract of employment, not statute. Thus the decision to give a direction is not a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies: Bayley v Osborne (1984) 4 FCR 141 at [33].

67 The Australian Government Solicitor's Legal briefing Number 104 Misconduct in the Australian Public Service provides further information on the scope of a direction and who can give a direction www.ags.gov.au/publications/legal-briefing/index.html

68 See Department of Finance Resource Management Guide No. 203 General Duties of Officials for further information.

69 The Department of Foreign Affairs and Trade has established guidelines and a code of conduct in this area that other agencies may wish to adapted to suit their needs – see dfat.gov.au/about-us/publications/Pages/dfat-code-of-conduct-for-overseas-service-2.aspx. APS Values and Code in practice: A guide to official conduct for APS employees and agency heads also provides some guidance.