Appendix 2: Elements of the APS Code of Conduct
2.1. The Australian Public Service (APS) Code of Conduct (the Code) is set out in section 13 of the Public Service Act 1999 (the PS Act). The Code has 13 elements, set out in subsections 13(1)–13(13) of the PS Act.
2.2. This appendix provides guidance on the interpretation and application of each element of the Code to assist decision-makers and others involved in the misconduct process.
2.3. The terms used in the Code are generally given their ordinary meaning. Decision-makers may rely on sources such as the Macquarie Dictionary for authority on definitions of terms used in the Code—for example, ‘honestly’, ‘diligence’, ‘courtesy’, ‘improperly’, etc.
Connection with employment
2.4. Some elements of the Code explicitly apply in connection with APS employment; others apply at all times. In the remaining elements a connection with APS employment is implied. Connection with employment is discussed in detail in paragraphs 2.24 - 2.29 of this guide.
2.5. The standard of behaviour expected of APS employees is an objective one. This means that the question of whether particular conduct is in breach of the Code is not determined by the subjective standard of the particular employee who has engaged in the conduct.
2.6. An employee’s genuine belief that the action they took was proper is not relevant to a decision about whether that action was in breach of the Code. For example, an employee may genuinely have intended to compliment a colleague by remarking on their physical appearance, but such behaviour may not meet the objective standard of ‘respect and courtesy, and without harassment’ required by the Code.
Intent or motive
2.7. A determination that a person has breached the Code does not generally require intent. More information is in paragraphs 4.13 – 4.14 of this guide. However, there are some exceptions. These are discussed below.
2.8. Some elements of the Code contain several obligations. For example, s.13(1) of the PS Act requires APS employees to behave honestly and with integrity in connection with APS employment. An employee is required to uphold all obligations of each element of the Code in order to comply with the Code.
2.9. It is not necessary to find that an employee has breached every obligation within an element in order to make a determination that the Code has been breached. For example, an employee can be found to have failed to behave with integrity, and therefore be in breach of s.13(1), without also being found to have behaved without honesty.
2.10. There is some overlap between different elements of the Code and between obligations in the same section of the Code. For example, not taking reasonable steps to avoid a conflict of interest could also be a lack of care and diligence. Behaving dishonestly may also be a lack of integrity. It is generally unnecessary to determine the degree of overlap; a breach of one obligation is a breach of the Code.
2.11. Where multiple elements are in play it is appropriate to consider the allegation against each element separately to the extent needed. A breach of one element does not in itself mean any other element has been breached. For example, the fact that a person has acted without care and diligence does not mean they cannot have acted with integrity.
Guidance on the elements of the Code—s.13 of the PS Act
13(1) An APS employee must behave honestly and with integrity in connection with APS employment
2.12. Behaving honestly and with integrity involves concepts such as ‘truthfulness’, ‘sincerity’ and ‘frankness’. Integrity at the individual level involves a ‘soundness of moral principle and character’ (Macquarie Concise Dictionary).
2.13. Failure to act honestly includes deliberate behaviour that the employee knows to be wrong. However, employees may make honest mistakes without breaching this element of the Code. Such action will usually be better dealt with through management action such as training or counselling. In more serious cases, it may be dealt with as a potential breach of s.13(2) of the PS Act if the behaviour in the circumstances appears to indicate a lack of care and diligence. In some cases, however, behaviour that is not engaged in deliberately may nonetheless indicate a lack of integrity, and should be considered as a potential breach of s.13(1).
13(2) An APS employee must act with care and diligence in connection with APS employment
2.14. Care and diligence have their ordinary meanings of ‘serious attention and solicitude to work’ and ‘earnest effort to accomplish what is undertaken’ (Macquarie Concise Dictionary). The standard of care and diligence required is objective and can be assessed by applying the standard of a ‘reasonable person’ in the same circumstances as the APS employee. The level of care and diligence required of senior managers responsible for the delivery of a program of work may be higher than that of other employees delivering single elements of that program.
2.15. Things done carelessly or without appropriate attention, i.e. without diligence, might be dealt with as a performance issue, through training, or through counselling—or might be dealt with as a breach of the Code, particularly for more serious examples. The relevant decision-maker will need to decide which option best meets the circumstances—see Chapter 4: ‘When behaviour doesn’t meet expectations—preliminary considerations’ of this guide.
2.16. Once it has been decided that a Code investigation is warranted, the breach decision-maker can then consider whether the conduct was careless or lacked diligence. It is not, however, enough for the breach decision-maker merely to come to a view that it would have been preferable to deal with the matter in question differently. A difference of opinion on how a matter should have been handled does not necessarily mean that the matter was handled without appropriate care or diligence. The question will be what a reasonably careful and diligent employee in the same position should have done in all the relevant circumstances. This may include, for example, a consideration of whether the employee’s conduct was consistent with any professional standards that might apply in that role, in addition to those under the Code, Values, and Employment Principles.
2.17. In some cases, the personal attributes of the employee may be relevant to whether they have acted with care and diligence. For example:
- an employee who has received training in a specialist skill may be expected to exercise that skill. A person who was known not to have those skills could not reasonably be expected to exercise them
- an employee with many years of relevant experience might reasonably be expected to discharge their duties more effectively than an employee who had no previous directly relevant experience.
13(3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment
2.18. The terms ‘respect’ and ‘courtesy’ have their ordinary meanings: ‘esteem felt or shown’; ‘excellence of manners or behaviour; politeness’ (Macquarie Concise Dictionary). Workplace harassment entails offensive, belittling, or threatening behaviour directed at an individual or group. The behaviour is unwelcome, unsolicited, usually unreciprocated, and often repeated. The use of the word ‘treat’ does not require direct communication with a particular person, or that the behaviour is directed at a particular person.
2.19. The requirement to treat everyone with respect and courtesy, and without harassment, is an objective one. The subjective opinion of a complainant that behaviour is disrespectful, discourteous, or harassing does not establish that a behaviour is in breach of s.13(3). Similarly, a breach of this element does not require that the person who was the subject of the behaviour be offended by it—or even aware of it. The question is whether a reasonable person observing the behaviour would consider that the behaviour in question met the standard of the Code.
2.20. It may be necessary to consider patterns and overall behaviour when looking at allegations of disrespect, discourtesy, or harassment. Individual actions may not appear to be very significant but, taken in conjunction with other actions, might reveal a pattern of behaviour.
2.21. Care should be taken with general allegations of disrespect, discourtesy, or harassment, such as vague claims of ‘passive aggressive’ behaviour or feelings of being undermined. Allegations of this sort may be a description of the complainant’s subjective response to the person they are complaining about. For a breach of the Code to be determined, it is necessary to identify specific incidents and events that can be assessed objectively.
2.22. In addition, a lack of such specificity in allegations of misconduct will make it more difficult to ensure that the person who is the subject of those allegations is able to respond to them in a fair and meaningful way. If an agency is taking into consideration a pattern of behaviour, that pattern has to be linked to observable incidents that are capable of being proven as misconduct.
2.23. ‘Respectful’ is one of the APS Values. It requires employees to respect all people, including their rights and their heritage. Further information on the application of this Value can be found in section 15 of the Australian Public Service Commissioner’s Directions 2022 (Commissioner’s Directions).
13(4) An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws
2.24. This element of the Code can arise where a person, in connection with their APS employment, does not comply with laws such as work health and safety legislation, financial legislation, or criminal law. It may also arise where an agency’s work is governed by specific legislation. For the purposes of s.13(4), Australian laws include any Commonwealth, State, or Territory legislation, and any instruments made under such legislation.
2.25. Not all Australian laws will be relevant for the purpose of s.13(4). Only those laws which establish a particular standard of individual conduct will be relevant. For example, laws regarding banking regulation are not laws an individual can breach. By contrast, a law requiring an individual to lodge a tax return is a law which imposes a particular standard of conduct on individuals.
2.26. Some of the applicable laws, for the purposes of s.13(4), are criminal laws. A person who has breached a law which is a criminal law can be tried by a court and found guilty of a criminal offence. Only a court can make a decision that a person is guilty of a criminal offence. However, this does not prevent a breach decision-maker in an agency from making a finding that a person has engaged in behaviour that is inconsistent with a criminal offence provision. This may include findings relating to relatively minor matters (for example, stealing stationery from the workplace).
2.27. In these circumstances, a breach decision-maker is not making a finding of criminal guilt and is not bound by the laws relating to evidence. Further, the burden of proof on a breach decision-maker is that they be satisfied ‘on the balance of probabilities’. In a criminal prosecution, the burden of proof must generally be discharged ‘beyond reasonable doubt’.
2.28. The specific offence provision will generally define the physical and fault elements of an offence, such as whether there was the necessary level of intent. The breach decision-maker will need to satisfy themselves about the employee’s conduct in that context. In cases of doubt, agencies are encouraged to seek legal advice.
2.29. Care should be exercised before deciding to investigate an APS employee for suspected breach of this element of the Code. The fact that a person has been charged with a criminal offence and is awaiting trial does not prevent an agency from investigating an employee for breach of this element. However, there may be circumstances where the investigation may prejudice the outcome of criminal proceedings.
2.30. Where a court has recorded a conviction or otherwise determined criminal guilt a breach decision-maker can have regard to this in determining whether the employee breached s.13(4). Equally, the fact that a person has been convicted of a criminal offence does not mean that the person is automatically in breach of s.13(4). A decision-maker proposing to take into account a criminal conviction must provide the individual with a reasonable opportunity to comment before doing so.
13(5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction
2.31. This element of the Code contains a number of limbs in relation to the giving of a direction, all of which must be met before a breach of the element can be determined. This section should be read in conjunction with paragraphs 5.31 – 5.37 of this guide.
Clarity of the direction
2.32. A direction needs to be tightly drafted, using the language of command throughout, and specify exactly what actions should and should not be taken. It is appropriate to use language that is clear and directive, and that which provides the employee with no discretion in relation to their behaviour.
2.33. A general policy or guideline is not a direction for the purposes of the Code. Where a policy document is intended to be a direction from an agency head, the document should be written using the language of command, and specify that it is a direction for the purposes of the PS Act.
2.34. A direction also needs to be clear in its terms and capable of being complied with. A direction to ‘behave appropriately’, for example, may be difficult to comply with and enforce as it is not clear what is meant by the term.
Reasonableness of the direction
2.35. A direction must be both lawful and reasonable. Whether it is reasonable will depend upon all the circumstances.
2.36. A reasonable direction has been described as one with the object of securing proper values to be required of a public servant, and, in particular, the maintenance of public confidence in the integrity of the public service and public servants. A reasonable direction needs to be proportionate to the end to be achieved.
2.37. Using that test, directions concerning private behaviour may be reasonable, but the circumstances would be critical. For example, directing an employee not to contact a co-worker at work and outside work, including using private telephone, email, or social media, may be reasonable to protect that other employee’s health and safety. Generally, directions aimed at private conduct with no apparent connection with the employee’s work would not be reasonable.
Authority to give the direction
2.38. Section 13(5) of the PS Act implies a power to give directions. Therefore, a supervisor has implied authority to direct subordinate staff and an employee with functional responsibility for a particular matter generally has implied authority to give directions relevant to that matter.
13(6) An APS employee must maintain appropriate confidentiality about dealings that the employee has with a Minister or Minister’s member of staff
2.39. APS employees who deal with Ministers or with Ministers’ offices may be privy to sensitive information in the course of their employment. APS employees must treat any such dealings with appropriate confidentiality. The phrase ‘appropriate confidentiality’ allows for disclosure to whomever else within the APS or the government might have a proper need to know.
2.40. The Commission’s publication, APS Values and Code of Conduct in practice, provides guidance on working with the Government and the Parliament, and on managing official information.
13(7) An APS employee must:
- take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee’s APS employment; and
- disclose details of any material personal interest of the employee in connection with the employee’s APS employment
2.41. A conflict of interest, including a material personal interest, can arise out of a work, private, or social context. It might arise due to an APS employee’s private shareholdings, or those of their immediate family, other personal interests, acceptance of a gift, benefit, or hospitality, cultural obligations, political activities, or personal relationships. It can also arise through outside work—paid or voluntary.
2.42. To be ‘material’ a personal interest needs to be of a type that can give rise to a real or apparent conflict of interest. Personal interests do not give rise to a conflict of interest unless there is a real or sensible possibility of conflict and not simply a remote or theoretical possibility of conflict. If no reasonable person could draw a connection between the employee’s personal interest and their duties, then the personal interest is not ‘material’.
2.43. Once a material personal interest is identified, the employee must disclose that interest. If an employee is in a position to, or perceived to be in a position to, influence an outcome or a decision then that person needs to take reasonable steps to avoid that conflict of interest.
2.44. APS Values and Code of Conduct in practice provides detailed guidance on conflicts of interest.
13(8) An APS employee must use Commonwealth resources in a proper manner and for a proper purpose
2.45. ‘Commonwealth resources’ is a broad term, and includes money, goods, services, vehicles, office equipment, official records, office premises, telephones or other telecommunication devices, and computers. It also includes the salary costs of APS employees.
2.46. Most agencies have policies advising their employees on the appropriate use of Commonwealth resources. It is not appropriate for Commonwealth resources to be used for private gain. However, subject to agency policies, it is reasonable for APS employees to have limited private use of office equipment—for example, reasonable and necessary telephone or email communication with family. Inappropriate use of an agency’s ICT resources at work or out of office hours is covered by this section of the Code.
2.47. Damage to Commonwealth resources, however caused, can come within this section, but each case will need to be considered carefully on its merits before deciding that misconduct action is appropriate and proportionate in the circumstances. More information is in Chapter 4 of this guide: ‘When behaviour doesn't meet expectations: preliminary considerations’.
13(9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment
2.48. APS employees are required to provide responsive, efficient, and effective services consistent with the APS Values, Employment Principles and associated Directions. Requests for information for official purposes may be made by members of the public, businesses, members of the media, other jurisdictions (national or international), members of Parliament, other Commonwealth agencies, by the employee’s agency or another APS agency, or by work colleagues.
2.49. The information provided by APS employees in connection with their APS employment should not be misleading, and should be appropriate to the request being made. An objective consideration of the information given and the circumstances in which it was given is necessary to determine whether the information was misleading. That a person receiving the information was misled does not make the information misleading in and of itself.
2.50. This element of the Code applies to requests for information made for official purposes in connection with an employee’s APS employment. This is broader than requests for information that an employee may receive as part of their duties, and includes requests for information that relate to their own employment, such as information relevant to the job, applications for promotion, or to leave applications.
13(10) An APS employee must not improperly use inside information or the employee’s duties, status, power or authority:
- to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or
- to cause, or seek to cause, detriment to the employee’s Agency, the Commonwealth or any other person
2.51.A breach of this element could occur if, for example, an APS employee gains, or seeks to gain, an advantage for themselves, a friend, family member, or associate. It can also occur if a senior officer in a supervisory role uses their status to gain favours from a member of their team or other junior staff. The benefit or advantage is not defined and is not limited to financial gain.
2.52. Whether or not any person actually obtained a benefit from the employee’s actions does not determine whether the behaviour is in breach of this element of the Code. This element can be breached if the employee merely sought a benefit or advantage. Similarly, actual detriment to the agency, the Commonwealth, or another person does not have to have occurred for a breach to be found.
2.53. Inside information could include any official information which is not public. For example, it could include confidential information the employee has access to as a consequence of their employment, or information that was provided on the basis that it was to be used only for a specific purpose. There may also be other agency-specific legislation limiting the use of information.
2.54. Whether a use is improper will depend on the circumstances of each case. It is appropriate, generally, to assess the case by considering whether a reasonable person would, having regard to any relevant agency guidance, form the view that the use was improper. Employees of the APS are expected to undertake their duties in the public interest. On that basis, deciding whether a use was improper would have regard to the nature of the benefit or advantage they were attempting to gain, or the detriment they were attempting to cause.
2.55. The phrases ‘seek to gain’ a benefit and ‘seek to cause’ detriment indicate that the employee’s conduct was intentional. In considering behaviour against this element of the Code, agencies will need to be able to establish that the employee acted with some degree of intention to achieve the gain or cause the detriment.
13(11) An APS employee must at all times behave in a way that upholds:
- the APS Values and APS Employment Principles; and
- the integrity and good reputation of the employee’s Agency and the APS
2.56. This element of the Code applies to an APS employee’s behaviour ‘at all times’. It may be breached by an APS employee outside normal work hours and at non-work premises. There is no explicit requirement in the section that the suspected conduct of the employee must be connected to their APS employment. In practice, however, determining that an action has breached the Code will generally require some degree of connection to the employee’s employment.
2.57. This element of the Code places a positive obligation on APS employees to behave in a way that maintains confidence in their ability to serve the government of the day professionally and does not undermine public confidence in their agency or the APS.
2.58. Because this element of the Code places a positive obligation on employees, it is not necessary to establish actual damage to the reputation of the agency or the APS in order to find that this section of the Code has been breached. A lack of damage may be relevant to a decision to start an investigation under an agency’s s.15(3) procedures, or relevant to mitigation when deciding a sanction.
2.59. Where an agency is alleging that an employee has breached s.13(11) of the Code for behaviour that fails to uphold the Values or the Employment Principles, it is necessary to identify which Values or Employment Principles are at issue.
2.60. The concept of integrity in this section of the Code is different to integrity in s.13(1). Under s.13(1), it is necessary to behave with integrity; here, an APS employee has to behave in a way that upholds the integrity of the employee’s agency and the APS. For example, an employee’s public agreement with critical comments made by a client about government policy may not be consistent with a requirement to behave in a way that upholds the integrity of their agency and the APS, in the sense of upholding their sound or unimpaired condition, but it may not in itself indicate that the public servant lacks integrity.
2.61. Part 2 of the Commissioner’s Directions provides directions on the scope and application of each of the Values.
2.62. Information on the relationship between private behaviour of a criminal nature and the Code is in Chapter 10: ‘Misconduct action and criminal matters’, of this guide.
13(12) An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia
2.63. The Code applies to APS employees on duty overseas at all times, encompassing the private behaviour of APS employees overseas. It is recognised that Australia expects the highest levels of professional and ethical behaviour by its representatives overseas. Given that employees serving overseas are particularly visible, inappropriate or unethical conduct in their private lives is likely to reflect negatively on the good reputation of Australia.
2.64. Most agencies with employees overseas have policies that articulate the responsibilities of those employees. If such policies do not exist, it is advisable for agencies to advise staff who travel and work overseas of their obligations under the Code and the agency’s expectations of their behaviour.
13(13) An APS employee must comply with any other conduct requirements prescribed by the regulations
2.65. To date, only one other conduct requirement has been prescribed under the Public Service Regulations 1999 (PS Regulations).
2.66. Regulation 2.1 of the PS Regulations imposes a duty on APS employees not to disclose certain information without authority. The duty applies to information communicated in confidence or where disclosure could be prejudicial to the effective working of government. Regulation 2.1(5) of the PS Regulations sets out circumstances where APS employees are not prevented from disclosing information.
2.67. The regulation is not designed to regulate the disclosure of official information comprehensively. It operates alongside other provisions and obligations, including agency-level directions and authorisations.
2.68. This regulation may constitute a relevant Commonwealth statutory duty for the purposes of s.122.4 of the Criminal Code Act 1995 (Criminal Code). That section makes it an offence for a current or former Commonwealth officer, which includes an APS employee or a contractor, from communicating information obtained by reason of being a Commonwealth officer, or otherwise being engaged to perform work for a Commonwealth entity, if there is a Commonwealth statutory duty not to disclose this information. A breach of s.122.4 of the Criminal Code carries a maximum penalty of two years’ imprisonment.