Government and legislative reform
During 2013–14, I met the Minister for the Public Service and Integrity and, following the federal election in September 2013, the Minister Assisting the Prime Minister for the Public Service and their respective staff to discuss issues of relevance to my functions.
In last year's report I discussed my involvement in the development of APS employment-related legislation. This year the focus has been on the implementation and embedding of legislative change.
On 1 July 2013 the amendments to the PS Act and Regulations came into effect. There are two important changes affecting the functions of my office:
- The Merit Protection Commissioner now has the authority to inquire into and determine whether an APS employee, or former employee, has breached the Code of Conduct, if requested to do so by an agency head and with the consent of the employee.
- Agency heads are now able to determine whether former APS employees have breached the Code of Conduct and, if so, these former employees have a right of review of that decision.
Policies and guidelines, supporting documents and the website were updated to reflect the changes and the new functions of the Merit Protection Commissioner. I have issued procedures for investigating alleged breaches of the Code of Conduct, and work was undertaken on developing a template for arrangements with agencies and an information sheet that will enable informed consent by APS employees or former employees.
In addition, an amendment was made to regulation 5.32 to clarify that an agency head, when acting on a recommendation from the Merit Protection Commissioner, must make a determination of misconduct using the agency head's procedures made under section 15(3) of the PS Act (see Box M2). This amendment was necessary to clarify some uncertainty that arose with a particular case. The use of mandatory procedures ensures transparency and provides certainty for employees about the process that will be followed before any adverse finding is made.
The parliament passed the Public Interest Disclosure Act 2013 (the PID Act), which came into effect on 15 January 2014. The PID scheme has resulted in repeal of the whistleblower scheme in the APS. I was consulted on the development of the PID Act and have worked with the Commonwealth Ombudsman, the Inspector-General of Intelligence and Security and the Commissioner in implementing the changes.
Box M2: Legislative change—amendment to regulation 5.32
An amendment to regulation 5.32 was included in the Public Service Amendment (Public Interest Disclosure and Other Matters) Regulation 2013. The amendment took effect on 17 December 2013.
Reasons for the amendment
The policy principles underpinning the Code of Conduct framework operate on the premise that an agency must follow its section 15(3) procedures when making a determination of a breach of the Code of Conduct and a sanction.
Regulation 5.32 requires an agency head, on receipt of a recommendation from the Merit Protection Commissioner, to consider the recommendation and to make a decision.
A recent review of action case raised the possibility that an agency head could respond to a recommendation from the Merit Protection Commissioner to set aside or vary a decision, by making a determination of a breach of the Code of Conduct without reference to the agency section 15(3) procedures. This created a risk that agencies could follow a process that was inconsistent with the policy intent of the legislation.
The amendment to regulation 5.32 applies to decisions made by agencies following a recommendation made by the Merit Protection Commissioner after reviewing a determination of a breach of the Code of Conduct and/or any sanctions that may be imposed. It requires agency heads to follow procedures established under section 15(3) of the PS Act if they wish to make a decision about a breach or sanction that is different from their original decision or the recommendation of the Merit Protection Commissioner.
This ensures transparency and certainty for APS employees (and former APS employees) about the way such decisions will be made and the procedures that must be followed in making them.
When acting as Deputy Commissioner in July and August 2013, I was involved in the deputy secretaries' group working on the development of the Public Governance, Performance and Accountability Act 2013 (the PGPA Act), which came into effect on 1 July 2014. As Merit Protection Commissioner I have a continuing interest in the implementation of the PGPA Act and how a failure to act in accordance with duties imposed by the PGPA Act may translate into potential breaches of the Code of Conduct.
Changes to the Privacy Act 1988 came into effect in March 2014. My staff undertook substantial work to ensure that the changes were incorporated into policies and procedures and that these were documented. This involved a systematic review of my functions against the new Australian Privacy Principles (APPs) and this resulted in changes to practices, including consideration of privacy issues as part of review case discussions. The work has improved the understanding and capability of the review team and my fee-for-service team when it comes to dealing with privacy issues.
One of the principles of the review scheme is to resolve employee concerns about employment decisions in a fair and transparent way. It involves allowing employees to have their say and they bring a wide range of personal information to the table. The changes to privacy legislation have highlighted the complexities of weighing competing considerations of privacy and transparency and the challenges of applying the APPs to Commonwealth employment.
The Australian Information Commissioner published a decisionthat has influenced how I consider the release of information under the Freedom of Information Act 1982 (the FOI Act) relating to applicants for promotion reviews. In December 2012, my authorised FOI decision-maker made a decision to give an unsuccessful applicant for a promotion access to information about the successful candidate's claims for promotion, as a consequence of an application under the FOI Act. The person whose information was disclosed sought review by the Information Commissioner of the decision. My authorised FOI decision-maker made her decision guided by long-standing case law which held that there was greater public interest in demonstrating the openness and fairness of a selection process than in protecting the personal information of candidates in this type of circumstance.
The Information Commissioner concluded that it would be unreasonable to release much of the successful promotee's personal information that had been collected for the purpose of the recruitment exercise. In this case, the Information Commissioner put less weight on the public interest considerations of fairness and transparency of APS selection processes. He noted that the current case law (which dates from the 1980s) did not take into account the strong framework for protection of personal information that has developed since that time and the widespread use of modern communications technology that makes dissemination of personal information easier. I welcomed the decision as it provided a contemporary view of the balance between openness and personal privacy in APS recruitment processes, and clarified the issues for consideration.