Under the Public Service Act 1999 (the PS Act), agency heads are responsible for upholding and promoting the APS Values (the Values). Senior Executive Service (SES) employees are required to promote the Values by personal example and other appropriate means, and APS employees are required to uphold the Values.The Values together with the APS Code of Conduct (the Code) form the statutory foundation underpinning the conduct of all APS employees.
The legislation does not refer to ‘misconduct’. The term ‘misconduct’ is used in this guide as a convenient and readily understood label for conduct that breaches the Code. Any actions or behaviours must be referred to as suspected misconduct until a decision is made in accordance with established agency procedures that misconduct has occurred.
Section 10(1) of the PS Act contains the Values which form the framework for good public administration and, together with section 13 and Regulation 2.1 of the Public Service Regulations 1999 (the Regulations), sets out the standards of conduct required of APS employees. The relevant legislative provisions in the PS Act (including the Values and the Code), the Public Service Commissioner's Directions 1999 (the Directions) and the Regulations are included in Appendix 1.
The Code applies to:
- all APS employees (i.e. ongoing and non-ongoing employees and heads of overseas missions). It does not apply to locally engaged employees in overseas missions. (section 7, section 13, section 39, section 74 of the PS Act)
- all agency heads, including secretaries of departments, heads of executive agencies and heads of statutory agencies (section 14(1) of the PS Act)
- certain statutory office holders (sections 14(2) and (3) of the PS Act and Regulation 2.2).
Section 15(3) of the PS Act requires agency heads to develop procedures for determining whether an employee in their agency has breached the Code. This legislative requirement is supported by the Directions and the Regulations. If an employee is found to have breached the Code, an agency head may impose sanctions (section 15(1) of the PS Act).
The procedures must comply with the basic procedural requirements contained in the Directions (section 15(3)(a) of the PS Act) and must have due regard to procedural fairness(section 15(3)(b) of the PS Act) as the decisions made during the processes can be subject to administrative and judicial review. It is important, therefore, that anyone given responsibility for the various stages of the process—the investigation of the misconduct, the determination of whether there has been a breach of the Code and the setting of an appropriate sanction—understand the legal requirements of the processes and their obligations to all parties.
It is preferable for agency procedures to include a statement about how the person who determines whether a breach has occurred is to be selected or otherwise identified. An agency head may nominate any person to make that selection, but the procedures must clearly identify one person or position who can select a decision maker in each case.
Agency heads must take reasonable steps to ensure that every employee in their agency has ready access to the documents that set out the procedures (section 15(5) of the PS Act).
The Directions (Chapter 5) set out the basic procedural requirements with which an agency must comply in its procedures for determining whether an APS employee has breached the Code. These provisions include that:
- before any determination about whether or not an APS employee has breached the Code is made, the employee must be informed of the details of the suspected breach (including any variation of those details) and the range of sanctions that may be imposed. The employee must also be given reasonable opportunity to make a statement in relation to the suspected breach (Clause 5.2 of the Directions).
- the process for determining whether an APS employee has breached the Code must be carried out with as little formality and as much expedition as a proper consideration of the matter allows (Clause 5.3 of the Directions).
- reasonable steps must be taken to ensure that the person who determines whether an employee has breached the Code is, and appears to be, independent and unbiased (Clause 5.4 of the Directions)
- after a determination in relation to a suspected breach of the Code has been made, a written record stating whether the employee has been found to have breached the Code must be prepared (Clause 5.5 of the Directions). The Archives Act 1983 and the Privacy Act 1988 apply to records of this kind. Where the written record is to form the basis of a statement specifying the grounds for termination of employment (as required by section29(2) of the PS Act), the statement must also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based (section 25D of the Acts Interpretation Act 1901).
The PS Act and Directions contain requirements for the procedures about determining whether an APS employee has breached the Code and the PS Act provides for the range of sanctions that may be applied. There are no direct provisions covering the process of determining an appropriate sanction. In determining a sanction general administrative law standards apply, including procedural fairness, and decisions are subject to administrative and judicial review.
Where an employee changes status (from non-ongoing to ongoing, or vice versa) or moves to a different agency, the applicable procedures are those that apply to the employee's status or agency at the time when the process for determining the breach is commenced (or recommenced if an investigation had been underway in the old agency).
The APS whistleblowing scheme is provided for in the PS Act and the Regulations.
Section 16 of the PS Act prohibits the victimisation of, or discrimination against an APS employee who reports a breach or alleged breach of the Code to an agency head, the Public Service Commissioner, the Merit Protection Commissioner or a person authorised by them. Regulation 2.4 requires agency heads to establish procedures for dealing with such reports. Clause 2.5(1)(d) of the Directions provides that an agency head must put in place measures directed at ensuring that APS employees are aware of the procedures, and are encouraged to make reports in appropriate circumstances.
Other legislation of relevance to handling suspected misconduct or misconduct includes the:
- Administrative Decisions (Judicial Review) Act 1977
- Freedom of Information Act 1982
- Occupational Health and Safety (Commonwealth Employment) Act 1988
- Privacy Act 1988
- Workplace Relations Act 1996.
Taking action in cases of suspected misconduct is primarily aimed at protecting the integrity of the APS and thereby maintaining public confidence in public administration, rather than aiming to ‘punish’ the employee per se. Sanctions are intended to be proportionate to the nature of the breach, to be a deterrent to others and confirm that misconduct is not tolerated in the agency.
An agency's section 15(3) procedures to deal with misconduct and associated guidance material should be fair and reasonable, striking an appropriate balance between the interests of employees, the agency and the public.
It is advisable that the procedures for determining whether there has been a breach of the Code are kept relatively brief and be limited essentially to the requirements of the PS Act and the Directions.
Agencies need to emphasise to managers and delegates, the importance of complying with the agency procedures. As they are a legal instrument, failure to comply will leave the agency exposed to legal risk. In reviewing their procedures, agencies should make them as flexible as possible while still meeting the legislative requirements. This will help minimise the risk that investigators or delegates may later be found to have breached the agency's section 15(3) procedures.
Agencies may also wish to consider including provisions in the procedures which deal with the issues such as:
- different processes for different categories of employees (e.g. ongoing and non-ongoing employees)
- an abbreviated procedure in cases where the employee admits to breaching the Code.
The procedures can be supplemented by more detailed guidance material (along the lines of the advice provided in this guide) including guidance on setting an appropriate sanction.
The procedures could form an attachment to the guidance material. Suggested procedures can be found at Appendix 2 to this guide. An option for implementing these procedures is provided in the flowchart in Figure 1 included at the start of Part 2 of this guide.
Agencies should ensure that the wording of the guidance material avoids words that appear to be imposing mandatory requirements in addition to those required by the statutory framework when that is not intended (e.g. using ‘must’).
One significant advantage of having only brief procedures supplemented by more detailed guidance material is that if a case is challenged (in the Australian Industrial Relations Commission (AIRC) or the Federal Court, for example) it is then clear which are the mandatory procedures that are legally binding, as distinct from other material that has the status of guidance.
Not all cases of suspected misconduct need to be dealt with by a formal investigation to determine whether a breach of the Code has occurred. Misconduct action is part of a range of people management practices that agencies should have in place to encourage high quality performance.
Within the legislative framework agencies have adopted a variety of models for facilitating the reporting of misconduct, protecting whistleblowers and handling misconduct and suspected misconduct. The models vary particularly in the degree to which the processes are centralised or devolved. There is no single model that would suit the circumstances of all agencies. The material in this guide can be adapted to a range of models.
The PS Act uses specific terminology to describe staffing activities. The terms used in the booklet have the following meanings:
- ‘assignment of duties’ refers to the action of the agency head in determining the duties of an employee (section 25)—section 25 also allows an agency head from time to time to determine the place or places where the duties are to be performed. (A related action is the ‘reassignment of duties’ which is one of the sanctions available under section 15).
- ‘lower classification’ refers to a classification which is in a lower APS Group in Schedule 1 of the Public Service Classification Rules 2000 than the one held by the employee.
- ‘misconduct’ is a generic term which refers to an action or behaviour by an APS employee who is determined to have breached the APS Code of Conduct. Prior to such a determination, the action or behaviour is referred to as suspected misconduct.
- ‘misconduct action’ refers to those processes, in relation to an individual, an agency carries out following the agency procedures established under section 15(3) of the PS Act and Chapter 5 of the Public Service Commissioner's Directions 1999.
- ‘movement’ refers to a move of an ongoing employee between agencies (section 26).
- ‘non-ongoing employee’ is an employee who is engaged for either a specified term or for the duration of a specified task or for duties that are irregular or intermittent as mentioned in sections 22(2)(b) and (c) of the PS Act.
- ‘ongoing employee’ is an APS employee engaged in accordance with section 22(2)(a) of the PS Act.
- ‘promotion’ means the ongoing assignment of duties to an ongoing employee at a higher classification than the one held by the employee (Direction 4.6). A promotion will also involve a ‘movement’ if the promotion is to another agency.
- ‘sanction’ refers to an action taken by an agency head from a range of possible sanctions set out in section 15(1) of the PS Act, in response to a finding that an employee in the agency who is found under the agency procedures to have breached the APS Code of Conduct.
- ‘section 15(3) procedures’ refer to the procedures established by the agency head in accordance with section 15(3) of the PS Act for determining whether an APS employee in the agency has breached the Code. In this guide they may also be referred to as agency misconduct procedures or misconduct procedures.
- ‘whistleblowing’ is a generic term which refers to an APS employee making a report of breaches or alleged breaches of the Code to an authorised person as set out in section 16 of the PS Act.
3 The Freedom of Information Act 1982 would also apply.