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

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

I, Jenni Pain, Chief People Officer of the Australian Financial Security Authority (‘the Agency’), establish these procedures under subsection 15(3) of the Public Service Act 1999 (‘the Act’). These procedures commence on the date signed.

These procedures supersede the previous procedures, dated June 2015, made for the Agency under subsection 15(3) of the Act.
Signed: Jenni Pain
Date: 19 April 2024

1.  Application of procedures

2. These procedures must be applied in determining:
   1. whether a person who is an Australian Public Service (APS) employee in the Agency, or who is a former APS employee who was employed in the Agency at the time of the suspected misconduct, has breached the APS Code of Conduct (the Code) in section 13 of the Act.
   2. any sanction to be imposed on an APS employee in the Agency who has been found under these procedures to have breached the Code.
3. 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.
4. These procedures are made publicly available on the Agency’s website in accordance with section 15(7) of the Act.

5. Breach decision-maker

6. The role of the breach decision-maker is to determine in writing whether a breach of the Code has occurred.
7. The Agency Chief Executive or their delegate will appoint a decision-maker to make a determination under these procedures. These procedures do not prevent the Chief Executive from appointing themselves as the breach decision-maker.
8. The breach decision-maker may undertake the investigation or seek the assistance of an investigator. The investigator may investigate the alleged breach, gather evidence and make a report of recommended findings to the breach decision-maker.

9. Sanction delegate

10. 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 will be a person holding a delegation of the powers under the Act to impose sanctions.
11. These procedures do not prevent the breach decision-maker from being the sanction delegate in the same matter.

12. Suspension delegate

13. The delegate determining whether an employee should be suspended from duties is referred to in these procedures as the suspension delegate and will hold a delegation of powers and functions under section 28 of the Act and section 14 of the Public Service Regulations 2023 (the Regulations).
14. Where suspension from duties is being considered, appointing a separate delegate from the breach decision-maker is preferable.

15. Breach decision-maker and sanction delegate to be independent and unbiased

16. The breach decision-maker and the sanction delegate must be, and must appear to be, independent and unbiased.
17. The breach decision-maker and the sanction delegate must advise the Agency 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.

18. Decision to commence investigation

19. As soon as practicable after a suspected breach of the Code has been identified, the Chief Executive or their delegate 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.
20. Once a decision is made to formally investigate the suspected breach under these procedures, the Chief Executive or their delegate will appoint a breach decision-maker to make a determination under these procedures.

21. Reassignment of duties or suspension from duty

22. A current APS employee who is under investigation for a suspected breach of the Code may be:
    
    1. reassigned to alternative duties, either for a temporary period or on an ongoing basis, under section 25 of the PS Act
    2. suspended from duty by the suspension delegate under section 28 of the PS Act and section 14 of the PS Regulations.
23. To remove any doubt, this clause also applies to SES employees.
24. In reassigning duties of a current APS employee who is under investigation, the suspension delegate will:
    
    1. notify the current APS employee who is under investigation of the proposal; and
    2. give the person reasonable opportunity (usually, 7 calendar days) to respond before any decision to suspend is taken.
25. Sometimes urgent action may be required that will not allow for notification and response outlined at subclause 17. In such cases, the suspension delegate may invite the current APS employee who is under investigation to comment after the decision has been made. Depending on their response, the suspension delegate has the flexibility to consider alternative arrangements, including suspension.
26. In suspending a current APS employee who is under investigation, the suspension delegate will:
    
    1. notify the current APS employee, in writing, of the preliminary intention to suspend them, and the reasons for this proposal; and
    2. give the person reasonable opportunity to respond (usually, 7 calendar days) before any decision to suspend is taken.
27. Sometimes urgent action may be required that will not allow for notification and response outlined at subclause 19. In such cases, the suspension delegate may invite the current APS employee who is under investigation to comment after the decision has been made.

28. The breach determination process

29. The process for determining whether a current or former APS employee in the Agency has breached the Code must be carried out with as little formality, and with as much expedition, as a proper consideration of the matter allows.
30. The process must be consistent with the principles of procedural fairness.
31. A determination may not be made in relation to a suspected breach of the Code by a person unless reasonable steps have been taken to;
    1. 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
    2. give the person a reasonable opportunity to make a statement in relation to the suspected breach.
32. The statement referred to in 23.2 above may be a written or oral statement and must be provided within 7 calendar days or any longer period that is allowed by the decision-maker.
33. 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.
34. For the purpose of determining whether a current or former APS employee in the Agency has breached the Code, a formal hearing is not required.

35. Sanctions

36. The process for imposing a sanction must be consistent with the principles of procedural fairness.
37. If a determination is made that an APS employee in the Agency has breached the Code, a sanction may not be imposed on the employee unless reasonable steps have been taken to;
    1. inform the employee of:
       
       1. the determination that has been made; and
       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
    2.  give the employee a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration.
38. The statement may be a written or oral statement and must be provided within 7 calendar days or any longer period that is allowed by the sanction delegate.

39. Record of determination and sanction

40. If a determination is made in relation to a suspected breach of the Code by a person who is, or was, an APS employee in the Agency, a written record must be made of:
    1. the suspected breach; and
    2. the determination; and
    3. any sanctions imposed as a result of a determination that the APS employee breached the Code; and
    4. if a statement of reasons was given to the person regarding the determination in relation to suspected breach of the Code, or, in the case of an employee, regarding the sanction decision, that statement of reasons or those statements of reasons.

41. Procedure when an employee seeks to move to another Agency during an investigation

42. This clause applies if:
    1. an APS employee in the Agency is suspected of having breached the Code of Conduct; and
    2. reasonable steps have been taken to formally advise the APS employee of the suspected breach in accordance with clause 28; and
    3.  a decision is made to promote an APS employee and the matter to which the suspected breach relates has not yet been resolved before the employee moves to take up the promotion; or
    4. a decision has been made, apart from these procedures, that would result in the movement of the employee under section 26 of the Act to another Agency.
43. Unless the original Agency Head and the new Agency Head agree otherwise, the movement (including on promotion) will generally be deferred until the matter is resolved.
44. For this clause, the matter is taken to be resolved when:
    1. a determination is made as to whether the APS employee has breached the Code of Conduct; or
    2. it is decided that such a determination is not necessary.
45. Where an APS employee moves to another APS agency after the determination of a breach but before the imposition of a sanction, a sanction delegate in the gaining agency may impose a sanction in accordance with that agency’s section 15(3) procedures.

46. Additional procedural requirement for Senior Executive Service Employees

47. If a Senior Executive Service (SES) employee in an Agency is suspected of breaching the Code, the Chief Executive or their delegate must:
    1. consult with the Public Service Commissioner on the process for determining whether the SES employee has breached the Code; and
    2. if considering imposing a sanction – consult with the Commissioner before imposing the sanction.