Procedures for determining breaches of the Code of Conduct and for determining sanctions

Under the Public Service Act 1999 (the Act), our Section 15(3) procedures help to determine breaches of the Australian Public Service (APS) Code of Conduct, and possible sanctions that may apply to an APS employee in the Attorney-General’s Department, or a former employee during the time of the suspected misconduct. We make these procedures publicly available on our website, which is required by section 15(7) of the Act.

Procedures for determining breaches of the Code of Conduct and for determining sanctions

I, Katherine Jones PSM, Secretary of the Attorney-General’s Department (‘the Department’), establish these procedures under subsection 15 (3) of the Public Service Act 1999 (‘the Act’).

These procedures commence on the date they are made.
Signed by: Katherine Jones PSM 
Date: 7 July 2024

1. Application of procedures

• 1.1. These procedures apply in determining whether a person who is an employee in the department, or who is a former employee who was employed at the department at the time of the suspected misconduct, has breached the Australian Public Service (APS) Code of Conduct (the Code), in section 13 of the Act.
• 1.2. These procedures also apply in determining any sanction to be imposed on an APS employee in the department who is found to have breached the Code.
• 1.3. These procedures do not apply in instances where an investigation into a suspected breach of the Code commenced prior to their commencement. In this circumstance, the former procedures dated 1 July 2015 apply.
• 1.4. 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 section 15(2A) of the Act in connection with their engagement as an APS employee.
• 1.5. As provided for in subsection 15(7) of the Act, these procedures are publicly available on the Attorney-General’s Department’s website.

2. Consideration of suspected breaches and the appointment of a breach decision maker

• 2.1. As soon as practicable after a suspected breach of the Code has been identified, the Secretary or one of the following departmental employees:

  • Chief Operating Officer
  • the Australian Government Solicitor
  • a Deputy Secretary
  • Chief People and Strategy Officer
  • Assistant Secretary, Human Resources Branch
  • Director, Performance and Wellbeing 

  will consider if it is appropriate for a preliminary assessment to be conducted to assess whether the suspected breach of the Code should be formally investigated under these procedures.

  2.2. Once a decision is made to formally investigate the suspected breach under these procedures the Secretary or employee detailed at 2.1, will appoint a person (‘the breach decision maker’) to make a determination under these procedures.

• 2.3. The breach decision maker must be, and must appear to be, independent and unbiased, have an open mind about the matters under investigation, and weigh the evidence fairly and dispassionately.
• 2.4. These procedures do not prevent the Secretary, or a person listed at clause 2.1, from appointing themselves as the breach decision maker.

3. The breach determination process

• 3.1. The process for determining whether a person has breached the Code must be carried out with as little formality, and with as much expedition, as proper consideration of the matter allows.
• 3.2. The process for determining a breach must have due regard to procedural fairness.
• 3.3. A determination will not be made in relation to a suspected breach of the Code by a person unless reasonable steps have been taken to:
  • inform the person of:
    
    1. the details of the suspected breach of the Code (including any subsequent variation of those details; and
    2. where the person is an APS employee – the sanctions that may be imposed on them under subsection 15(1) of the Act; and
  • give the person a reasonable opportunity to make a statement in relation to the suspected breach and ensure the decision-maker gives proper consideration to the person’s statement and response to the evidence.

4. The sanction delegate

• 4.1. The Secretary or their delegate (‘the sanction decision maker’) has the power to impose a sanction in relation to a breach of the Code.
• 4.2. The sanction decision maker must be, and must appear to be, independent and unbiased.

5. The sanction determination process

• 5.1. If a determination is made that an APS employee in the department has breached the Code, a sanction cannot be imposed on the employee unless reasonable steps have been taken to:
  • inform the employee of:
    
    1. the determination that has been made
    2. the sanction or sanctions that are under consideration; and
    3. the factors that are under consideration in determining any sanction to be imposed; and
• give the employee a reasonable opportunity to make a statement in relation to the sanctions under consideration.
• 5.2. A sanction cannot be imposed on a former employee.

6. Record of determination and sanctions

• 6.1. If a determination in relation to a suspected breach of the Code is made, a written record must be made of:
  • the suspected breach; and
  • the determination; and
  • where the person is an APS employee – any sanctions imposed as a result of the determination that the employee breached the Code; and
  • if a statement of reasons was given to the person – the statement of reasons.

7. Suspension or reassignment of duties

• 7.1. A current APS employee in the department who is under investigation for a suspected breach of the Code may be:
  • reassigned to alternative duties, either for a temporary period or on an ongoing basis, under section 25 of the Act
  • suspended from duty under section 28 of the Act and section 14 of the Public Service Regulations 2023.
• 7.2. Employees may be suspended, with or without remuneration, where the Secretary or their delegate (‘the suspension decision maker’) believes on reasonable grounds, that an employee may have breached the Code and where suspension is in the public interest or the department’s interest.
• 7.3. The suspension decision maker is required to review the suspension at regular intervals.
• 7.4. If the suspension is to be without remuneration, the period without remuneration must not be more than 30 days unless exceptional circumstances apply.
• 7.5. A suspension decision maker may make necessary inquires to decide whether suspension is appropriate in the circumstances.

8. Additional procedural requirements for SES employees

• 8.1. If a SES employee is suspected of breaching the Code, the Secretary must:
  • consult with the APS Commissioner on the process for determining whether the employee has breached the Code; and
  • if considering imposing a sanction – consult with the APS Commissioner before imposing the sanction.

9. Procedures when an ongoing employee is to move to another Agency during an investigation

• 9.1. This clause applies if:
  • an ongoing employee in the department is suspected of having breached the Code; and
  • the employee has been informed of the matters mentioned in clause 3.3(a); and
  • the matter has not been resolved; and
  • a decision has been made that, apart from this clause, would result in the movement of the employee under section 26 of the Act to another Agency (including on promotion).
• 9.2. Unless the Secretary and the Agency Head agree otherwise, the movement (including on promotion) does not take effect until the matter is resolved.
• 9.3. For this clause, the matter is taken to be resolved when:
  • a determination is made as mentioned in clause 3.3; or
  • the Secretary decides that a determination is not necessary.

10. Contact and support

• 10.1. Performance and Wellbeing provides advice and assistance about employee conduct within the department.
• 10.2. For further assistance, contact via email at hr.assist@ag.gov.au, or phone, (02) 6141 6111 (option 2), and indicate you are seeking advice on employee conduct matters.