Fact sheet: Making a breach determination
The process of determining a breach of the APS Code of Conduct (Code) requires the decision-maker to decide, after weighing the evidence, whether or not the person under investigation has on the balance of probabilities done what they were alleged to have done, and then to decide, as a consequence, whether or not the person has breached a particular element or elements of the Code.
When a different person has undertaken the investigation, the breach decision‑maker remains responsible for the decision. The decision-maker needs, separately and independently, to consider the evidence where an investigator has made a recommendation about whether a breach of the Code has occurred. The decision-maker must then reach their own conclusions both on the findings of fact and about breach.
In determining which elements of the Code have been breached, it is important to focus on the elements most relevant to the behaviour. A targeted approach is consistent with the premise that misconduct action in the APS has a corrective function.
It is easier to explain to a person found to have breached the Code that their conduct was inappropriate if the elements of the Code are relevant to the misconduct.
The person is also more likely to change their behaviour in the future if they have a clear understanding of the link between their conduct and the breach. Where more than one element of the Code has been breached, each element will need to be considered separately in the final decision.
If evidence does not support a finding of a breach, the decision-maker can either terminate the decision-making process, or, alternatively, finalise the decision-making-process with a determination that the employee has not breached the Code.
The person under investigation should be advised of the outcome.
Preparing a record of the determination
Under s.63 of the Australian Public Service Commissioner’s Directions 2022 (the Commissioner’s Directions), a written record must be made of the breach determination.
Agency procedures under s.15(3) of the Public Service Act 1999 (PS Act) may prescribe the form of such a written record, though they are not required to do so.
As a matter of good practice, a record of a breach determination should generally include:
- a summary of the evidence considered by the decision-maker
- where the decision-maker also considered a recommendation from an investigator, the decision-maker’s response to the recommendation, including reasons for accepting or not accepting the investigator’s recommendation. The investigator’s report could be attached to avoid the need to reproduce the detail of the report in the decision record
- findings of fact about what the person under investigation has done or not done. The findings need to be as specific as possible, and, wherever possible, linked to specific events
- a decision as to whether what happened amounts to misconduct, and, if so, which element(s) of the Code were breached
- the reasons for reaching these conclusions.
Advising the person under investigation of the breach determination
Under s.60 of the Commissioner’s Directions, an employee found to have breached the Code must be informed of the breach determination, the sanctions(s) under consideration, and the factors under consideration in determining the sanction, before any sanction can be imposed.
It is good practice to provide this information in writing.
Where a former employee is found to have breached the Code, agencies should take reasonable steps to inform them in writing of the breach determination and their review rights.
As a matter of good practice, a letter to the person under investigation should generally also:
- enclose a copy of the breach determination record, and, if appropriate, the investigation report
- for an employee, provide information about the process for making a sanction decision
- notify the employee or former employee of the right to seek review of the determination under s.33 of the PS Act.