Code of conduct procedures

Procedures for determining breaches of the APS Code of Conduct and for determining sanction

  1. Application of procedures
  2. Availability of procedures
  3. Breach decision maker and sanction delegate
  4. Person or persons making breach determination and imposing any sanction to be independent and unbiased
  5. The determination process
  6. Sanctions
  7. Record of determination and sanction
  8. Procedure when an ongoing employee is to move to another agency

1. Application of procedures

These procedures apply in determining whether a person who is an APS employee in AUSTRAC, or who is a former APS employee who was employed in AUSTRAC at the time of the suspected misconduct, has breached the APS Code of Conduct (‘Code of Conduct’) in section 13 of the Public Service Act 1999 ('PS Act').

These procedures apply in determining any sanction to be imposed on an APS employee in AUSTRAC who has been found to have breached the Code of Conduct.

These procedures, as they apply to determining whether there has been a breach of the Code of Conduct, apply to any suspected breach of the Code of Conduct except for one in respect of which a decision had been made before 1 July 2013 to begin an investigation to determine whether there had been a breach of the Code of Conduct.

These procedures, as they apply to determining any sanction for breach of the Code of Conduct, apply where a sanction decision is under consideration on or after 1 July 2013.

In these procedures, a reference to a breach of the Code of Conduct by a person includes a reference to a person engaging in conduct set out in subsection 15 (2A) of the PS Act in connection with their engagement as an APS employee.

Note: Not all suspected breaches of the Code of Conduct need to be dealt with by way of determination under these procedures. In particular circumstances, another way of dealing with a suspected breach of the Code of Conduct may be more appropriate, including performance management.

2. Availability of procedures

As provided for in subsection 15 (7) of the PS Act, these procedures are publicly available on the AUSTRAC website.

3. Breach decision maker and sanction delegate

As soon as practicable after a suspected breach of the Code of Conduct has been identified and the CEO, or their delegate, has decided to deal with the suspected breach under these procedures, the CEO or their delegate will appoint a decision maker ('the breach decision maker') to make a determination under these procedures.

Note: The Australian Public Service Commissioner's Directions 2022 provide that where the conduct of an APS employee raises concerns that relate both to effective performance and possible breaches of the Code of Conduct, the Agency Head must, before making a decision to commence formal misconduct action, have regard to any relevant standards and guidance issued by the Australian Public Service Commissioner.

The role of the breach decision maker is to determine in writing whether a breach of the Code of Conduct has occurred.

The breach decision maker may seek the assistance of an investigator with matters including investigating the alleged breach, gathering evidence and making a report of recommended factual findings to the breach decision maker.

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 of Conduct must hold a delegation of the power under the PS Act to impose sanctions ('the sanction delegate').

These procedures do not prevent the breach decision maker from being the sanction delegate in the same matter.

Note: Any delegation of powers under the PS Act that is proposed to be made to a person who is not an APS employee must be approved in writing in advance by the Australian Public Service Commissioner. This is required by subsection 78 (8) of the PS Act. This would include delegation of the power under subsection 15 (1) to impose a sanction.

Note: Appointment as a breach decision maker under these procedures does not empower the breach decision maker to make a decision regarding sanction. Only the CEO or a person who has been delegated the power under section 15 of the PS Act and related powers, such as under section 29 of the PS Act, may make a sanction decision.

4. Person or persons making breach determination and imposing any sanction to be independent and unbiased

The breach decision maker and the sanction delegate must be, and must appear to be, independent and unbiased.

The breach decision maker and the sanction delegate must advise the CEO in writing if they consider that they may not be independent and unbiased or if they consider that they may reasonably be perceived not to be independent and unbiased, for example if they are a witness in the matter.

5. The determination process

The process for determining whether a person who is, or was, an APS employee in AUSTRAC has breached the Code of Conduct must be carried out with as little formality, and with as much expedition, as a proper consideration of the matter allows.

The process must be consistent with the principles of procedural fairness.

Note: Procedural fairness generally requires that:

  • the person suspected of breaching the Code of Conduct is informed of the case against them (i.e. any material that is before the decision maker that is adverse to the person or their interests and that is credible, relevant and significant)
  • the person is provided with a reasonable opportunity to respond and put their case, in accordance with these procedures, before any decision is made on breach or sanction
  • the decision maker acts without bias or an appearance of bias
  • there is logically probative evidence to support the making, on the balance of probabilities, of adverse findings.

    A determination may not be made in relation to a suspected breach of the Code of Conduct by a person unless reasonable steps have been taken to:

    • a) inform the person of: (i) the details of the suspected breach of the Code of Conduct (including any subsequent variation of those details) and (ii) where the person is an APS employee, the sanctions that may be imposed on them under subsection 15 (1) of the PS Act
    • b) give the person a reasonable opportunity to make a written statement, or provide further evidence in relation to the suspected breach, within seven calendar days or any longer period that is allowed.

    Note: This clause is designed to ensure that by the time the breach decision maker comes to make a determination, reasonable steps have been taken for the person suspected of breach to be informed of the case against them. It will generally also be good practice to give the person notice at an early stage in the process of a summary of the details of the suspected breach that are available at that time and notice of the elements of the Code of Conduct that are suspected to have been breached.

    Note: The breach decision maker may decide to give the person the opportunity to make both a written and an oral statement.

    A person 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.

    For the purpose of determining whether a person who is, or was, an APS employee in AUSTRAC has breached the Code of Conduct, a formal hearing is not required.

    The breach decision maker (or the person assisting the breach decision maker, if any) where they consider in all the circumstances that the request is reasonable, must agree to a request made by the person who is suspected of breaching the Code of Conduct to have a support person present in a meeting or interview they conduct.

    6. Sanctions

    The process for deciding on sanction must be consistent with the principles of procedural fairness.

    If a determination is made that an APS employee in AUSTRAC has breached the Code of Conduct, a sanction may not be imposed on the employee unless reasonable steps have been taken to:

    • a) inform the employee of: (i) the determination that has been made, (ii) the sanction or sanctions that are under consideration, (iii) the factors that are under consideration in determining any sanction to be imposed
    • b) give the employee a reasonable opportunity to make a written statement in relation to the sanction or sanctions under consideration within seven calendar days, or any longer period that is allowed by the sanction delegate.
    Note: The sanction delegate may decide to give the employee the opportunity to make both a written and an oral statement.

    7. Record of determination and sanction

    If a determination in relation to a suspected breach of the Code of Conduct by a person who is, or was, an APS employee in AUSTRAC is made, a written record must be made of:

    • a) the suspected breach
    • b) the determination
    • c) where the person is an APS employee, any sanctions imposed as a result of a determination that the employee has breached the Code of Conduct
    • d) if a statement of reasons was given to the person regarding the determination in relation to suspected breach of the Code of Conduct, or, in the case of an employee, regarding the sanction decision, that statement of reasons or those statements of reasons.
    Note: The Archives Act 1983 and the Privacy Act 1988 apply to agency records.

    8. Procedure when an ongoing employee moves to another agency

    This clause applies if:

    • a) a person who is an ongoing APS employee in AUSTRAC is suspected of having breached the Code of Conduct
    • b) the employee has been informed of the matters mentioned in section five
    • c) the matter has not yet been resolved
    • d) a decision has been made that, apart from this clause, the employee would move to another agency in accordance with section 26 of the PS Act (including on promotion).

    Unless the CEO and the new Agency Head agree otherwise, the movement (including on promotion) does not take effect until the matter is resolved.

    For the purpose of this clause the matter is taken to be resolved when:

    • a) a determination in relation to suspected breach of the Code of Conduct is made in accordance with these procedures, or
    • b) the CEO decides that a determination is not necessary.

    These procedures are current and have been in place since 1 July 2013.

    The content on this website is general and is not legal advice. Before you make a decision or take a particular action based on the content on this website, you should check its accuracy, completeness, currency and relevance for your purposes. You may wish to seek independent professional advice.

    Last updated: 19 Jan 2024
    Page ID: 773

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