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A right to silence

A recent decision of the Merit Protection Commissioner (MPC) considered the relationship between criminal prosecutions, Code of Conduct investigations and providing procedural fairness.

An employee was investigated by their agency for a suspected breach of the Code of Conduct for behaviours including the unauthorised publication of Commonwealth material. The employee was prosecuted simultaneously under section 70(1) of the Crimes Act.

When agencies investigate their employees for a suspected breach of the Code of Conduct they are required to provide procedural fairness. This includes providing a reasonable opportunity for an employee to respond to the allegations against them.

In this case, when given an opportunity to respond to misconduct allegations, the employee sought permission to do so after the criminal matter was finalised, in order to preserve their right to silence. The employee later pleaded guilty before the Court.

The agency subsequently determined that the employee had breached the Code of Conduct without giving another opportunity to respond to the allegations.

The Merit Protection Commissioner considered that this amounted to a failure to provide the employee with a fair hearing. The agency should have provided the employee with a further opportunity to respond to the misconduct allegations, in circumstances where the employee was no longer constrained by a desire to preserve their right to silence. The agency agreed with the Commissioner’s decision and set aside its determination.