Appendix 1: Statutory office holders and the APS Code of Conduct
1.1. This appendix 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, to the extent that they supervise APS employees or have a day-to-day working relationship with APS employees.
1.2. 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 Regulations details the statutory office holders to whom the Code does and does not apply.
Statutory office holders bound by the Code
1.3. 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.
1.4. 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 office holder otherwise comes into contact with APS employees on a day-to-day working basis.
1.5. This means, among other things, that statutory office holders, in their dealings with the APS employees with whom they work, are required to meet the same standards of respect and courtesy as APS employees. 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
1.6. Regulation 2.2 of the PS Regulations provides that certain statutory office holders are not bound by the Code. These include agency heads, judicial officers, members of the Defence Force, and members of certain other bodies listed in regulation 2.2(2)(c) of the PS Regulations.
Code does not apply if inconsistent with statutory functions
1.8. 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.
1.9. 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. These arrangements preserve the independence of statutory office holders.
Managing suspected misconduct by statutory office holders
1.10. 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 setting out conduct obligations for statutory office holders that are separate from the arrangements in s.14 of the PS Act.
1.11. The Australian Public Service Commissioner (the Commissioner) has the function of inquiring into suspected breaches of the Code by statutory office holders, and determining whether the statutory office holder has breached the Code (regulation 6.1A of the PS Regulations). While the Commissioner is able to determine that a statutory office holder has breached the Code, the Commissioner is unable to impose a sanction. However, the Commissioner may make recommendations about the matter.
1.12. 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.