PROCEDURES FOR SUSPECTED BREACHES OF THE APS CODE OF CONDUCT
Purpose
The purpose of these procedures is to:

outline the process how alleged and/or suspected breaches of the Australian Public
Service (APS) Code of Conduct by employees and former employees of the Department of
the Environment (the Department) will be handled

explain the rights of an employee or former employee who may be the subject of an
allegation and/or may be suspected to have breached the APS Code of Conduct
Relationship to other Department of the Environment Policies
To obtain a full picture of your responsibilities and rights under the Department’s Conduct and
Ethical Behaviour Framework, these procedures should be read in conjunction with Chief
Executive Instructions (CEI’s) and other related Policy documents available on the Code of
Conduct and Ethics Intranet page including:

Code of Conduct Guidelines

Workplace Respect Policy

Allegations of Fraud & Criminal Behaviour by Departmental Employees

Public Interest Disclosure Procedures
Legislative Requirements
This policy constitutes the procedures required by subsection 15(3) of the Public Service Act
1999 (the Act) for determining whether an APS Department of the Environment employee, or a
person who was an APS Department of the Environment employee at the time of the alleged
or suspected misconduct, has breached the APS Code of Conduct (Code of Conduct) as set
out in section 13 of the Act.
Subsection 15(4) of the Act provides that these procedures must comply with basic procedural
requirements set out in Chapter 6 of the Australian Public Service Commissioner's Directions
2013 (Commissioner’s Directions) and must have due regard to procedural fairness.
The Commissioner’s Directions also require that the process must be carried out with as little
formality and as much expedition as a proper consideration of the matter allows. They also
require that the person who determines whether an APS employee, or former employee, has
breached the Code of Conduct and who imposes a sanction must be, and must appear to be,
independent and unbiased.
Procedural Fairness
Section 15(4) of the Act requires the agency procedures to have due regard to procedural
fairness. In the context of decisions associated with suspected misconduct, procedural
fairness generally requires that an employee suspected of breaching the Code of Conduct
must:

be informed of the details of the possible breach and the sanctions that may be
imposed

be given a reasonable opportunity to properly respond and put their case before any
decision is made (the ‘hearing’ rule)

the decision maker must act without bias or an appearance of bias (the ‘bias’ rule)

there must be facts or information to support adverse findings (the ‘evidence’ rule).
Application
These procedures apply to all current Department of the Environment APS ongoing and nonongoing employees. This includes all part time, casual, irregular and intermittent employees
who are employed with the department under section 22 of the Public Service Act 1999.
These procedures also apply to former APS Department of the Environment employees who
are alleged or suspected to have breached the Code of Conduct while they were an APS
Department of the Environment employee.
These procedures also apply to a person who engages in conduct set out in subsection 15(2A)
of the Act before being engaged by the Department as an APS employee.
Unless the contrary intention appears, a reference in these procedures to an employee
includes a reference to a former employee who is alleged or suspected of having breached the
Code of Conduct while a Department employee.
The sanction procedures set out below how a Delegate may impose a sanction under
subsection 15(1) of the Act do not apply to former departmental employees.
Authorisations
The persons who occupy the following departmental positions are authorised by the Agency
Head to make determinations as to whether a Department employee has breached the Code
of Conduct:





Deputy Secretaries
First Assistant Secretaries
Assistant Secretary - People Strategies Branch (the Primary Delegate)
Assistant Secretary – Business Services Branch
General Manager - Australian Antarctic Division.
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Delegations
Subsection 15(1) of the Act empowers an Agency Head to impose sanctions on an APS
employee in the Agency who is found to have breached the Code of Conduct as set out in
section 13 of the Act.
The persons who occupy the above listed positions also hold the Delegation to exercise the
Agency Head's powers under subsection 15(1) of the Act to impose sanctions on a current
Department employee who is determined in accordance with these procedures to have
breached the Code of Conduct.
Sanctions cannot be imposed upon a former APS Department employee.
Workplace Behaviour and Conduct Unit
The Workplace Behaviour and Conduct Unit (WBCU):

provides assistance to managers and employees with concerns raised about the
workplace conduct and behaviour of Department employees and supports the
Department's legal and ethical standards of conduct

conducts preliminary inquiries and assessments of allegations made about the
conduct and behaviour of Department employees and makes recommendations to
the Director, Capability and Performance Section (CPS) and the Primary Delegate
about any further action that may be required in the circumstances

closely liaises with all areas of the Department and other Commonwealth agencies
including the Australian Public Service Commission and the Merit Protection
Commissioner, about APS Code of Conduct and ethical behaviour issues

provides education, guidance and advice to Department employees and managers on
the APS Code of Conduct and Fraud awareness initiatives to promote integrity in the
performance of employees duties, in departmental processes and procedures and in
the use of the Department’s resources and Information and Communications
Technology (ICT) systems

reports on trends and systemic policy, process and/or procedural deficiencies
identified during investigations to positively assist with the Department’s strategic
direction.
Responsibilities & Preliminary Inquiries
WBCU staff have responsibility for making initial inquiries into and assessing allegations
received by the department about suspected breaches of the Code of Conduct by Department
employees.
When allegations of suspected breaches of the Code of Conduct are received, WBCU staff will
in most cases undertake discreet and confidential preliminary inquiries into the matter to
assess the issues raised and make recommendations to the Director CPS as to any further
action that may be required or appropriate in the circumstances.
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Initial preliminary inquiries are in most cases essential to enable a thorough and informed
assessment of the issues with a view to establishing whether the allegations may be frivolous
and/or vexatious and/or lacking in substance or merit, or if further action may be required
either through less formal administrative action/mechanisms or through a formal Code of
Conduct investigation process under these procedures.
It is important for employees to be aware that an allegation made that an employee is
suspected to have breached the Code of Conduct, does not automatically or necessarily mean
that a formal Code of Conduct investigation process under these procedures is required or will
be conducted. In many cases less formal management action such as counselling, further
training and development and/or other people management practices may be adopted where
considered appropriate to the circumstances to address and resolve the matter.
Examples include cases where the suspected breach is considered to be more minor in
nature, in cases where the employee admits to the behaviour of concern and/or admits that
their behaviour fell short of the Department’s conduct and ethical behaviour expectations and
the APS Code of Conduct.
Formal Code of Conduct Investigation Process
Where the Director CPS considers that the circumstances of a particular matter warrants the
commencement of a formal Code of Conduct investigation process under these procedures
the matter will be referred to the Primary Delegate for consideration of the commencement of
a formal Code of Conduct investigation process. Where the Primary Delegate determines that
a formal Code of Conduct investigation process is required an Investigator will be appointed by
the Primary Delegate to conduct the formal Code of Conduct investigation process. The
Investigator may be an external consultant or another APS employee.
Where the Primary Delegate considers that it would not be appropriate for them to make the
decision that a particular matter warrants the commencement of a formal Code of Conduct
investigation process, the Primary Delegate will refer the matter to another Authorised
Delegate for their consideration and decision.
In those circumstances, where another Authorised Delegate makes the decision that the
matter warrants the commencement of a formal Code of Conduct investigation process, the
Primary Delegate will remain responsible for appointing an Investigator. However, where the
Primary Delegate considers it would also not be appropriate in the circumstances for them to
do so the Primary Delegate may refer the matter to another Authorised Delegate to appoint an
Investigator.
During the formal investigation process the Investigator will provide a Code of Conduct Notice
to the employee subject of the allegations setting out:

an outline of the matters which have given rise to concern

the subsections of the Code of Conduct that may have been breached if the
allegations were found by a Delegate to be substantiated

the sanctions specified in subsection 15(1) of the Act

an indication of the next steps which will be taken in accordance with these
procedures and who will be taking them
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
advice on the opportunity to participate in an electronically recorded interview with the
Investigator to discuss the matter, should the employee wish to do so

advice on the employee’s entitlement to have a support person of their choice present
during the interview

advice on the opportunity to provide a written statement to the Investigator about the
suspected breaches of the APS Code of Conduct, should the employee wish to do so.
The employee does not have to respond, either in writing or orally, to the Code of Conduct
Notice, participate in an interview or provide a written statement if the employee does not wish
to do so.
The employee is entitled to have a person of their choice, such as a supervisor, another
colleague, or a union or legal representative, present during any interview about the
allegations if they wish to. However, this person’s role is restricted to be one of support only
and they will not be entitled to participate in the interview or advocate for the employee during
the interview. The employee’s support person cannot be a person who is or may be either a
potential witness, or is otherwise involved, in any of the matters subject of the interview or the
investigation process.
If the details of the suspected breaches of the Code of Conduct vary during the formal Code of
Conduct investigation process under these procedures, the employee will be informed of the
variation of those details in writing by the Investigator.
Upon completion of all necessary inquiries the Investigator must form an opinion/view whether
the employee has, or has not, breached the APS Code of Conduct and must submit a written
investigation report about the matters to a Delegate.
The opinions/views presented in the investigation report, on whether a breach of the APS
Code of Conduct has or has not occurred, must be reached through applying a 'balance of
probabilities' test.
The Delegate’s Role
A Delegate of the Secretary for Code of Conduct matters, as described in the Authorisations
section above, has the authority to determine whether an employee has or has not breached
the Code of Conduct and if so, what sanction/s, if any, should be imposed.
The Delegate who determines whether an employee, or former employee, has breached the
Code of Conduct and who imposes a sanction must be, and must appear to be, independent
and unbiased.
The Delegate must make a written determination whether or not an employee has breached
the Code of Conduct. The Delegate may also form the view that the matter is not serious
enough to warrant any further action, that less formal action is appropriate in the
circumstances or that there is no substance to the allegation.
In all cases a final determination must not be made by a Delegate in relation to a suspected
breach of the Code of Conduct by an APS employee, or former employee, or impose a
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sanction on an employee, unless reasonable steps have been taken to inform the employee,
or former employee, of the details of the suspected breach and, in the case of a current
employee, the sanctions that may be imposed.
No Breach Determined
After receiving an investigation report from the Investigator, if the Delegate forms the view that
the employee has not breached the Code of Conduct the Delegate will inform the employee in
writing of the determination and the process will be finalised and closed.
Preliminary Views
If the Delegate forms a preliminary view that the employee has breached the Code of
Conduct, the Delegate must provide the employee with a copy of the investigation report, and
any attachments to the report, as well as written advice of the Delegate’s preliminary views on
breaches of the Code of Conduct and any sanctions being considered by the Delegate.
The Delegate’s written advice on preliminary views must also set out the factors that are under
consideration in determining any sanctions to be imposed.
The Delegate’s written advice on preliminary views must also provide the employee with an
opportunity to make written submissions to the Delegate, should the employee wish to do so,
about the investigation report and the Delegate’s preliminary views on breach and sanction.
The timeframe provided to an employee to make written submissions to the Delegate will be a
period of 7 days, or any longer period agreed to by the Delegate.
Final Determinations
Following the timeframe provided to the employee to make written submissions, and after
considering any submissions received from the employee, the Delegate must make final
determinations if the employee has or has not breached the Code of Conduct. If the Delegate
determines the employee has breached the Code of Conduct, the Delegate must also make a
decision on the imposition of sanctions in respect of the determined breaches of the Code of
Conduct, or about any other less formal action if considered appropriate to the particular
circumstances of the matter.
The standard of proof used by the Delegate in determining whether a breach of the APS Code
of Conduct has or has not occurred is the ‘balance of probabilities’ civil standard of proof. This
means that the Delegate must be satisfied that a breach is more probable than not. This civil
standard of proof differs from the criminal standard of proof which is ‘beyond reasonable
doubt’.
The Delegate must provide the employee with written advice on the final determination on
breaches of the Code of Conduct and any final determinations made on the imposition of
sanctions. Final determinations on breaches of the Code of Conduct and final determinations
on the imposition of sanction/s may be made by the same Delegate or may be separated and
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made by two individual Delegates if considered appropriate to the circumstances of the
particular matter.
Workplace Conduct and Behaviour History
The employee’s APS employment history, including any records of previous informal or formal
counselling and/or workplace conduct and behaviour issues may be examined as part of the
assessment process of considering and determining appropriate sanctions to be imposed or
any other less formal administrative management action to be taken.
Suspension from Duties
The Public Service Regulations 1999 provide that an Agency Head may suspend an APS
employee if, on reasonable grounds, the Agency Head believes:

the employee has, or may have breached the Code of Conduct

suspension is in the public, or the Agency’s, interest.
A Delegate of the Secretary may give consideration to suspending an employee from duties,
with or without remuneration or temporarily transferring the employee to another area of the
Department, either prior to or after the commencement of a formal Code of Conduct
investigation process.
Confidentiality
The Privacy Act 1988 and the Information Privacy Principles (IPP) regulate access to and the
use and disclosure of personal information.
Personal information is defined in section 6 of the Privacy Act 1988 as: ‘information or an
opinion…about an individual…whose identity is apparent, or can reasonably be ascertained,
from the information or opinion’.
During the course of preliminary inquiries, or formal investigations, into allegations of potential
or suspected breaches of the APS Code of Conduct, or after inquiries/investigations are
completed, personal information about an employee subject of an allegation may, where
necessary, appropriate and reasonable, be disclosed to others (in accordance with IPP 2),
including:

other Commonwealth agencies and bodies who may have been involved in the
matter, such as the Commonwealth Ombudsman and the Office of the Privacy
Commissioner

an APS agency where the employee moves or seeks to move in the future.
During the course of preliminary inquiries, or formal investigations, into allegations of potential
or suspected breaches of the APS Code of Conduct, or after inquiries/investigations are
completed, in accordance with the principles of procedural fairness, the employee may be
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provided with personal information about an individual who is a party to the investigation
including the evidence and/or information the individual has provided. These individuals may
include the complainant and any witnesses to the matter.
Prior to disclosing any information about the outcomes of Code of Conduct inquiries and/or
investigations, the Department will have due regard to the Privacy Act 1988, the Public Interest
Disclosure Act 2013 and Australian Public Service Commission (APSC) Circular No 2008/3:
Providing information on Code of Conduct investigation outcomes to complainants to
determine whether any personal information can be disclosed and in what circumstances.
General information which contains no personal information may routinely be disclosed to
others where the Department considers it necessary, appropriate and reasonable to do so.
If a departmental employee:

becomes the subject of an allegation of a potential breach of the APS Code of
Conduct and leaves the Department’s employment before a determination is made
whether or not the employee has breached the APS Code of Conduct

is found by a Delegate to have breached the APS Code of Conduct and subsequently
leaves the Department’s employment, whether a sanction is imposed or not

is found by a Delegate to have breached the APS Code of Conduct and leaves the
Department’s employment before a decision about imposing a sanction is made
information about the allegation or determined breach of the APS Code of Conduct may be
disclosed by the Department to any prospective or new APS agency employing the former
Department of the Environment employee.
It is the usual practice of the Department to pass such information to another APS agency
where the Department believes that the information might be relevant to employment related
decisions which might need to be considered or made by the other APS agency, including:

recruitment decisions

decisions as to whether or not the employee has breached the APS Code of Conduct
and whether or not the employee should be sanctioned for any breach that is
determined

decisions as to whether or not the employee should be sanctioned in relation to a
breach of the APS Code of Conduct.
Employee movement to another APS Agency
Where a decision has been made that would result in the movement of an employee under
section 26 of the Act to another Agency (including on promotion) and the employee suspected
of having breached the Code of Conduct has been provided with a Code of Conduct Notice by
the Investigator but the formal process under these procedures has not yet been completed,
the movement (including on promotion) will not take effect until the formal process under
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these procedures has been completed unless the Department Agency Head and the new
Agency Head agree otherwise.
The formal process under these procedures is taken to be completed when:

final written determinations are made by a Delegate about whether the employee has
or has not breached the Code of Conduct

after a Delegate has made final determinations on the imposition of sanctions in
respect of any determined breaches of the Code of Conduct, or about any other less
formal action considered appropriate to the particular circumstances of the matter.
Process Variations
These procedures are not intended to be restrictive or prevent the Primary Delegate from
adopting a more flexible and/or informal approach where the particular circumstances of an
individual matter may warrant variation from the above procedures.
In some circumstances variation to these procedures may provide a more expedient and less
formal mechanism to achieve an appropriate outcome and resolution to a breach or suspected
breach of the Code of Conduct by a current or former Department of the Environment
employee.
APSC guidance to Agencies in its publication Handling Misconduct: a summary guide to the
reporting and handling of suspected and determined breaches of the APS Code of Conduct
states that one of the first steps in the process of considering what action should be taken in
response to a potential breach of the APS Code of Conduct is the consideration of options
other than a formal process for handling misconduct.
APSC guidance recognises that it can be appropriate not to institute a formal Code of
Conduct investigation process even in situations where the alleged breaches of the APS
Code of Conduct may warrant some form of management response such as training or
counselling or other less formal administrative action.
Further supporting this is the Note to 6.1 of the Commissioner’s Directions 2013:
Note: The requirements set out in this Chapter and the procedures established under
subsection 15 (3) of the Act apply only in relation to a suspected breach of the Code of Conduct
by an APS employee in respect of which a determination may be made. Not all suspected
breaches of the Code of Conduct 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.
Need more advice?
More advice concerning these procedures and other workplace conflict and ethical dilemma
situations can be obtained by contacting the Workplace Behaviour and Conduct Unit on:

their 24Hr Hotline number: (02) 6274 1116
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
or via email to: behaviourandconduct@environment.gov.au

or by normal mail marked ‘Private and Confidential’ addressed to:
Workplace Behaviour and Conduct Unit
GPO Box 787
Canberra ACT 2601
These procedures for determining whether an APS Department of the Environment
employee, or former APS Department of the Environment employee, has breached the
APS Code of Conduct have been established by me in accordance with subsections
15(3) and 15(4) of the Public Service Act 1999 and Chapter 6 of the Australian Public
Service Commissioner’s Directions 2013. These procedures replace the previous
procedures established by me on 1 July 2013 which are hereby revoked, however the
previous procedures may continue to apply for transitional purposes.
Malcolm Thompson
Acting Secretary
Department of the Environment
January 2014
Revision History
Date
Version
10.12.2010
1.0
21.03.2011
18.04.2011
2.0
3.0
July 2011
26.9.2011
4.0
5.0
2.11.2011
5.0
3.11.2011
.6.2013
5.0
6.0
13.01.2014
7.0
Description
Document Creation & Draft for
consultation
Draft for DCC consultation
Draft for Intranet – all staff
consultation
Draft for Senior Executive review
Redraft for Senior Executive
review incorporating Deputy
Secretary’s comments
Final for Secretary’s approval
Final
Draft for Senior Executive
Review due to legislative
changes and PSS re-structure to
WBCU
Final due to PID Legislation
changes
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Approved
Carl Murphy
Carl Murphy
Carl Murphy
Carl Murphy
Michelle Wicks
Michelle Wicks/Malcolm
Thompson
Secretary – Dr Paul Grimes
Michelle Wicks
Malcolm Thompson