Review of breaches of
APS Code of Conduct
Merit Protection Commissioner
The Merit Protection Commissioner is an independent
statutory office holder whose functions include conducting
reviews of employment-related decisions and other actions
affecting individual Australian Public Service (APS)
employees and, in some circumstances, former employees.
In the case of findings relating to Code of Conduct
breaches, and the sanctions imposed as a result of those
findings, the legislation provides for employees, and
former employees, to apply for review directly to the Merit
Protection Commissioner.
The Merit Protection Commissioner is assisted by staff of
the Australian Public Service Commission (the
Commission).
An employee may be suspended from duty while their
agency investigates whether or not they have breached the
Code of Conduct. An application to review a decision to
suspend an employee from duty must be made in the first
instance to the employee’s agency head. The Merit
Protection Commissioner is able to conduct a secondary
review once the matter has been considered by the agency.
Independent review by the Merit Protection Commissioner
is a cost-effective way of resolving employment disputes
and reduces the risk, and costs, of legal challenge. It also
encourages accountability and promotes better and more
consistent employment decision-making in the context of a
devolved and principles-based employment framework.
The reasons provided for review recommendations assist
employees to understand and accept outcomes and
encourage the restoration of productive workplaces.
A decision to terminate an employee’s employment as a
sanction for breaching the Code is reviewable by the Fair
Work Commission not the Merit Protection Commissioner.
Making an application for review does not prevent an
agency from proceeding with an action, or implementing a
decision, that is subject to a review application.
Breaches of APS Code of Conduct
The Code of Conduct, together with the APS Values and
Employment Principles, set out the standards of personal
behaviour expected of APS employees and provide the
public with confidence in the way public servants exercise
authority when meeting government objectives.
If, after an investigation by their agency, an employee is
found to have breached the Code, a sanction, ranging from
a reprimand to termination of employment, may be
imposed. Agencies may also make a determination that a
former employee has breached the Code of Conduct, for
behaviours the former employee engaged in while an APS
employee.
Review of Code breaches and sanctions
Generally reviews of employment actions and decisions
are undertaken first by the agency (primary review) with
the right of a secondary review by the Merit Protection
Commissioner (see the brochure Review of Actions).
Who is eligible?
APS employees, with the exception of the Senior
Executive Service (SES), are eligible to apply for review
of a decision that they have breached the Code of Conduct
and for any sanctions imposed for that breach. A former
non-SES employee may also seek a review of a
determination that they have breached the Code of
Conduct. 1 The review procedures are the same for an APS
employee and a former employee.
Time limits for review applications
Employees investigated for suspected misconduct may
face two decisions—a decision that they have breached the
Code of Conduct and decision to impose a sanction. An
employee needs to make a separate application for review
of each decision.
1
Division 7.3 of the Public Service Regulations 1999
(the Regulations)
Review of breaches of APS
Code of Conduct
Merit Protection Commissioner
The application for review of the breach determination
must be made within 60 days of the agency determining
that an employee has breached the Code. The application
for review of the sanction decision must be made within 60
days of the imposition of the sanction. 2
Employees are advised not to wait until the sanction has
been imposed before applying for review of the breach
determination. Where the sanction decision-making is
delayed, this can result in the employee being out of time
to make an application for review of the breach decision.
This significantly limits the scope of the review conducted
by the Merit Protection Commissioner.
Former employees have 60 days from the date of the
breach determination to make an application for review by
the Merit Protection Commissioner.
If an application is received outside the 60 day timeframe
it will only be reviewed if the Merit Protection
Commissioner considers there are exceptional
circumstances to explain why the applicant failed to make
the application for review within time. 3
How to apply for review?
An application for review to the Merit Protection
Commissioner should be addressed to the Review Team
(See Further information)
All applications to the Merit Protection Commissioner
must:

be made in writing (there are forms available on the
Commission website)

state why the review is sought

if a particular outcome is sought, indicate the outcome
sought.
2
Regulation 5.23(4)
3
See Regulation 5.23(5)
How will the application for review be
handled?
Reviews conducted by the Merit Protection Commissioner
are required to have due regard to procedural fairness, be
conducted in private and be finished as quickly, and with
as little formality, as a proper consideration of the matter
allows. The Merit Protection Commissioner’s Privacy
Policy is available on the Commission’s website.
Staff assisting the Commissioner will acknowledge the
application, advise the applicant whether it has been
accepted and ask the agency for copies of all relevant
papers. The agency will be asked to provide the applicant
with a copy of the material provided to the Merit
Protection Commissioner.
In some cases, the review may be conducted solely by an
examination of the papers.
Where necessary, the reviewer may make further enquiries
by seeking additional information from the agency and by
interviewing the applicant and/or other persons. Interviews
will be conducted over the telephone.
While an applicant is welcome to have a person support
them they are not able to be represented by another person.
If an applicant wishes to have representation, they need to
make a formal request to the Merit Protection
Commissioner stating the reasons.
The review will address:

whether the agency’s procedures for determining
breaches of the Code of Conduct comply with Chapter
6 of the Australian Public Service Commissioner’s
Directions (in broad terms, this requires agencies to
observe procedural fairness)

whether the agency substantially complied with those
procedures and with the requirements of procedural
fairness

whether there is enough evidence that the applicant
committed the act or acts
Review of breaches of APS
Code of Conduct
Merit Protection Commissioner

if there is, whether the act or acts amounted to a
breach of the Code of Conduct

if they did, whether the sanction imposed on the
applicant was appropriate in the circumstances (APS
employee only).
Outcome of the review
The Merit Protection Commissioner can make
recommendations to the agency head about whether or not
the applicant has engaged in misconduct and (in the case of
APS employees) whether the sanction imposed was the
appropriate sanction. The Merit Protection Commissioner
cannot impose an outcome or decision on the agency.
When the review is finished the applicant will be advised
of the result and the Merit Protection Commissioner’s
recommendation. This will usually be in the form of a
written report which states the reasons for the
recommendation.
The Merit Protection Commissioner may recommend that
the agency confirm its original decision. On the other hand,
if the Merit Protection Commissioner considers that the
decision under review was in some way unreasonable or
inappropriate, the recommendation may be that the agency:

set aside the decision and consider whether the
relevant process should be re-done, before another
delegate

vary the decision

change its procedures.
Recommendations to vary or set aside an agency decision
are not made lightly. Such recommendations usually
reflect either substantial procedural flaws, which mean the
outcome was likely to have been unfair to the employee, or
a fuller consideration of the evidence and the employee’s
case.
The Merit Protection Commissioner expects agencies to
accept review recommendations. However, if the Merit
Protection Commissioner is not satisfied with the agency’s
response to a recommendation, the Commissioner may
report the matter to the relevant Minister, the Prime
Minister or the Parliament.
What if the review applicant is still not
satisfied?
An applicant has no further right of administrative review
under the Act or the Regulations. To take the matter
further, they would need to apply to a court for judicial
review, under the general law or the Administrative
Decisions (Judicial Review) Act 1977. In such cases, it
would be prudent to seek independent legal advice.
Further information
Further information is available from the Commission’s
website at <www.apsc.gov.au>.
The email address for the review team is
review@apsc.gov.au. Contact details for the review team
can be found at <www.apsc.gov.au/contact/>.