Procedures for Determining Breaches of the APS Code of Conduct
1. Application of procedures
These procedures must be complied with in determining whether an APS employee has breached the APS Code of Conduct (Code) set out in section 13 of the Public Service Act 1999 (Act), and the sanction (if any) that is to be imposed on an APS employee who is found to have breached the Code. 1
Unless the contrary intention appears, a reference to an APS employee includes a reference to a former APS employee who is suspected of having breached the Code while an employee in the Department.
In these procedures, a reference to a breach of the Code by a person includes a reference to a person engaging in conduct set out in subsection 15 2A) of the Act in connection with their engagement as an APS employee.
The requirements set out in these procedures apply only in relation to suspected breaches of the Code by an APS employee, in respect of which a determination is to be made. Not all suspected breaches of the Code may need to be dealt with by way of a determination. In particular circumstances, another way of dealing with a suspected breach of the Code may be more appropriate.
2. Selection of Breach Decision Maker
The person who determines whether an APS employee has breached the Code (Breach Decision Maker) is to be selected by a departmental employee who, from time to time, holds or performs the duties of the following positions:
- Deputy Secretary;
- First Assistant Secretary, People and Service Delivery Division; or
- Assistant Secretary, People Services Branch.
All reasonable steps must be taken to ensure that the Breach Decision Maker is, and appears to be, independent and unbiased. In particular, a person cannot determine whether an APS employee has breached the Code if that person has previously made a report in relation to any of the matters suspected of constituting a breach by the APS employee of the Code.
3. Determination process to be informal
The process for determining whether an APS employee has breached the Code must be carried out with as little formality and as much expedition as a proper consideration of the matter allows.
4. Information to be given to APS employee before determination is made
A determination must not be made in relation to a suspected breach of the Code by an APS employee, unless reasonable steps have been taken to:
- inform the APS employee of:
- the details of the suspected breach (including any subsequent variation of those details); and
- the sanctions that may be imposed on the APS employee under the Act; and
- give the APS employee a reasonable opportunity to make an oral or written statement in relation to the suspected breach within seven days or any longer period approved by the Breach Decision Maker.
An APS employee who does not make a statement in relation to the suspected breach is not, for that reason alone, to be taken to have admitted to committing the suspected breach.
5. Making a determination
If the Breach Decision Maker determines that an APS employee has breached the Code, the Breach Decision Maker must make a written record in accordance with section 9 of these procedures and provide the employee with a statement of reasons.
The level of satisfaction required for determining that an APS employee has breached the Code is "on the balance of probabilities". That is, whether it is more probable than not that the breach occurred.2
6. Action that may be taken if a breach is found to have occurred
If a Breach Decision Maker determines that an APS employee has breached the Code, the APS employee may be counselled or a sanction may be imposed on the APS employee in accordance with section 15 of the Act.
Where a former APS employee is suspected of having breached the Code whilst they were an employee of the Department, and a determination is made that the former APS employee breached the Code, a sanction cannot be imposed.
The person who is to decide what, if any, sanction is to be imposed on an APS employee who is found to have breached the Code must hold a delegation of the power to impose sanctions under the Act (Sanction Delegate).
The Secretary must take reasonable steps to ensure that the Sanction Delegate is and appears to be, independent and unbiased.
7. Information to be given to APS employee before sanction is imposed
A sanction may not be imposed unless reasonable steps have been taken to:
- inform the employee of:
- the determination; and
- the sanction or sanctions that are under consideration; and
- the factors that are under consideration in determining any sanction to be imposed; and
- give the APS employee a reasonable opportunity to make an oral or written statement in relation to sanctions under consideration within 7 days or any longer period as approved by the Sanction Delegate.
8. Imposing a sanction
If an APS employee is found to have breached the Code, the Sanction Delegate may impose the following sanctions:
- Termination of employment
- Reduction in classification
- Re-assignment of duties
- Reduction in salary
- Deductions from salary, by way of fine but the deduction must not be more than 2% of the APS employee’s annual salary
- A reprimand
If a sanction is imposed on the APS employee, the APS employee must be given a written statement setting out the reasons for the decision to impose the sanction.
9. Record of determination and sanction
If a determination is made in relation to a suspected breach of the Code by an APS employee, a written record must be made of:
- the suspected breach;
- the determination;
- any sanctions imposed as a result of the determination that the APS employee breached the Code; and
- if a statement of reasons was given to the APS employee, the statement of reasons.
Note: The Archives Act 1983 and the Privacy Act 1988 apply to a record made under this clause.
10. Advice to Complainants
Advice to complainants about the outcomes of investigations into alleged breaches of the Code will be consistent with the requirements of the Privacy Act 1988 and be in accordance with any guidance from the Australian Public Service Commission.
11. Moving to another Department during the investigation
Where a decision has been made that would result in the movement of an ongoing APS employee under section 26 of the Act to another Agency (including on promotion) and:
- the APS employee is suspected of having breached the Code; and
- the APS employee has been informed of the suspected breach and any sanctions that may be imposed; and
- the matter has not yet been resolved,
the movement (including on promotion) will not take effect until the matter is resolved, unless the original Agency Head and the new Agency Head agree otherwise.
The matter is taken to be resolved when a determination is made or it is decided that a determination is not necessary.