Chapter 1: Introduction
1.1. This guide is intended to assist Australian Public Service (APS) agencies to respond effectively and proportionately to employee conduct that does not meet expectations, consistent with the purpose of the APS conduct framework to maintain public confidence in the integrity of the APS.
1.2. It provides guidance on assessing the nature and seriousness of behavioural concerns to inform agency responses that address the specific conduct, seek to prevent recurrence, and uphold or restore public confidence in the agency or APS.
1.3. The guide also supports agencies to use data to improve their processes and practices in addressing conduct matters, and to identify and address systemic issues, with the aim of sustaining workplace cultures that operate within the highest professional and ethical standards.
1.4. This guide is structured as follows:
- Chapter 2 sets out the APS conduct framework—the Values, Employment Principles, and Code.
- Chapter 3 provides guidance on raising behavioural concerns and reporting suspected misconduct, and on the role of complainants.
- Chapter 4 provides a framework for preliminary consideration of behavioural concerns to help agencies assess the seriousness of an incident and decide on a proportionate response.
- Chapter 5 sets out options for agencies to manage less serious matters outside the misconduct process, having regard to the nature of the issue to be addressed.
- Chapter 6 sets out the legislative basis for misconduct action and key roles in a misconduct process.
- Chapter 7 sets out initial considerations in a misconduct process, including decisions about assigning different duties or suspending an employee, deciding the scope of an investigation, drafting allegations, and issuing a notice of investigation.
- Chapter 8 provides guidance on the investigative process and determining a breach, including gathering and evaluating evidence, procedural fairness obligations, and recording and advising of a determination.
- Chapter 9 sets out the available sanctions and the factors to be considered in making a sanction decision.
- Chapter 10 provides guidance on misconduct action that can intersect with other considerations, including criminal matters, employee movement or separation, Machinery of Government changes, and probation.
- Chapter 11 sets out review rights for employees and former employees found to have breached the Code.
- Chapter 12 provides guidance on requirements for recordkeeping and managing information relating to misconduct, including retention periods, access to records, and considering prior misconduct in selection processes.
- Chapter 13 provides guidance on using conduct data to improve agency processes, identify systemic issues, and support a culture of integrity.
Abbreviations and terminology
1.5. The following abbreviations for common terms are used throughout this guide:
‘APS’ The Australian Public Service
‘Code’ The APS Code of Conduct set out in s.13 of the PS Act
‘Commission’ The Australian Public Service Commission
‘Commissioner’ The Australian Public Service Commissioner
‘Employment Principles’ The APS Employment Principles set out in s.10A of the PS Act
‘MPC’ The Merit Protection Commissioner
‘SES’ The Senior Executive Service
‘Values’ The APS Values set out in s.10 of the PS Act
1.6. The following abbreviations are used for legislation frequently referred to in this guide:
‘ADJR Act’ The Administrative Decisions (Judicial Review) Act 1977
‘Archives Act’ The Archives Act 1983
‘Commissioner’s Directions’ The Australian Public Service Commissioner’s Directions 2022
‘Fair Work Act’ The Fair Work Act 2009
‘FOI Act’ The Freedom of Information Act 1982
‘Privacy Act’ The Privacy Act 1988
‘PGPA Act’ The Public Governance, Performance and Accountability Act 2013
‘PID Act’ The Public Interest Disclosure Act 2013
‘PS Act’ The Public Service Act 1999
‘PS Regulations’ The Public Service Regulations 1999
‘WHS Act’ The Work Health and Safety Act 2011
1.7. Terms used in this guide have the same meanings as set out in the PS Act (s.7) and subordinate legislation. Where the legislation does not define specific terms, they have the following meanings:
‘Alleged misconduct’ A circumstance where a person has been notified that they are the subject of an investigation under agency s.15(3) procedures to determine whether they have breached the Code. (Distinct from suspected misconduct.)
‘APS conduct framework’ The combined conduct requirements in the Values, Employment Principles, and Code.
‘Assignment of duties’ The action of an agency head, under s.25 of the PS Act, in determining the duties of an employee and the place or places where the duties are to be performed. The power to assign duties under s.25 of the PS Act can be used as a management action as needed. Assignment of duties is distinct from ‘re-assignment of duties’, which is one of the sanctions available under s.15(1) of the PS Act.
‘Breach’ A failure to comply with the Code, as determined in accordance with an agency’s s.15(3) procedures.
‘Breach decision-maker’ The person appointed or authorised under an agency’s s.15(3) procedures to determine whether or not an APS employee or former employee has breached the Code.
‘Determination’ A decision made by the breach decision-maker under an agency’s s.15(3) procedures about whether an APS employee or former employee has been found to have breached the Code.
‘Employee’ A person employed under the PS Act. Used interchangeably with ‘APS employee’ as defined in s.7 of the PS Act.
‘Ethics Advisory Service’ The Commission’s Ethics Advisory Service, which provides information, policy advice, and guidance on the application of the APS conduct framework, and on options, considerations, and strategies to help APS employees and agencies work through ethical issues and dilemmas and make sound choices.
‘Former employee’ A person who was, but is no longer, an APS employee; a person who has separated from the APS.
‘Human Resources’ or ‘HR’ A broad term used to refer to an agency’s people management, corporate management, conduct, or integrity areas or practitioners.
‘Misconduct’ Conduct by a person while an APS employee that is determined under an agency’s s.15(3) procedures to be in breach of the Code. Before such a determination is made, the conduct is referred to as ‘suspected misconduct’ or ‘alleged misconduct’.
‘Misconduct action’ Also ‘misconduct process’. Refers to the range of processes and decisions that an agency carries out consistent with its s.15(3) procedures.
‘Misconduct investigation’ An investigation of an alleged breach of the Code in accordance with agency s.15(3) procedures.
‘Movement’ A voluntary move of an ongoing employee between agencies under s.26 of the PS Act.
‘Must’ Used where an action is a requirement in the PS Act, PS Regulations, Commissioner’s Directions, or another law.
‘Person under investigation’ An employee or former employee who is the subject of a misconduct process.
‘Public interest disclosure’ A disclosure made under the PID Act.
‘Section 15(3) procedures’ Also ‘s.15(3) procedures’. The procedures established by an agency head in accordance with s.15(3) of the PS Act for determining whether an employee or former employee in the agency has breached the Code, and the sanction, if any, that is to be imposed on an employee where a breach of the Code has been determined.
‘Sanction’ One of the actions set out in s.15(1) of the PS Act.
‘Sanction decision-maker’ A person to whom an agency head has delegated their power to impose a sanction under s.15(1) of the PS Act.
‘Should’ Indicates good practice.
‘Suspected misconduct’ A circumstance where there is a concern that a person may have behaved in a way that is not consistent with the Code, but no investigation has commenced. (Distinct from ‘alleged misconduct’.)
‘Suspension’ The action of standing an employee down from their duties while a misconduct process takes place, as set out in s.28 of the PS Act and regulation 3.10 of the PS Regulations.
‘Suspension decision-maker’ A person to whom an agency head has delegated their power under s.28 of the PS Act and regulation 3.10 of the PS Regulations to decide whether an employee should be suspended from duty.
1.8. Further information on the APS conduct framework is available from the Ethics Advisory Service on 02 6202 3737 and email@example.com.
Legal advice on the PS Act
1.9. Agencies are asked to contact the Legal Services Team in the Commission at firstname.lastname@example.org when obtaining legal advice on the PS Act.
1.10. This is consistent with agencies’ obligations under clause 10 of the Legal Services Directions 2017, which include consulting on the request for advice, consulting on the finalised advice, and providing a copy of the advice.
1.11. The Commission has used its best endeavours to ensure the accuracy of the material at the time of writing, and will update the document from time to time. However, the Commission is unable to guarantee that this guide is complete, correct and up-to-date, or that it is relevant to the particular circumstances of any matter. Agencies may wish to consider obtaining legal advice before making a decision if they are uncertain of their obligations.