Catching the code breakers
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Catching the code breakers

Government agencies must take special care to treat staff who allegedly breach the code of conduct with procedural fairness, John Wilson writes.

One of the changes to the Public Service Act 1999 that took effect on July 1 concerns the procedures for determining whether its code of conduct has been breached and, if so, what sanction, if any, is to be imposed. The act was amended to require agency heads to establish procedures for determining:

  • whether an Australian Public Service employee, or a former APS employee, in the agency has breached the code; and
  • the sanction to be applied to an employee found to have breached the code.

The amendment enabling a determination that a former APS employee has breached the code is significant. Until now, the act has not allowed a breach of the code to be found against a former APS employee. It was, therefore, always open to an APS employee charged with a breach of the code to resign in order to remove the risk that they might be found, as distinct from merely alleged, to have breached the code and have that on their service record. Indeed, an APS employee simply apprehending the possibility of being charged with a breach could resign to remove the risk of actually being charged in the first place. Those risks can no longer be removed by resigning. It remains the case, however, that a sanction can't be imposed on a former APS employee found to have breached the code.

Beware prejudgement ... Staff charged with a breach have a right to see all relevant documents.

Beware prejudgement ... Staff charged with a breach have a right to see all relevant documents.Credit:Rob Homer

The act was also amended to say that such procedures must comply with the procedural requirements of the public service commissioner's directions and have due regard to procedural fairness. The directions now provide that a determination can't be made in relation to a suspected breach of the code by an APS employee (or former employee) unless reasonable steps have been taken to inform the person of the details of the suspected breach and, in the case of an APS employee, the sanctions that may be imposed.

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The directions also say a sanction can't be imposed on an APS employee found to have breached the code unless: (a) reasonable steps have been taken to inform them of the determination, the factors under consideration in determining any sanction, and the sanctions under consideration; and (b) they have been given a reasonable opportunity to make a statement in relation to the possible sanctions.

Employment Matters dinkus for Public Sector Informant.   WebDinkName_EmploymentMatters353x160.jpg

Employment Matters dinkus for Public Sector Informant. WebDinkName_EmploymentMatters353x160.jpg

And they also now say that, where a decision has been made for an APS employee to move to another agency, but the employee has been told they are suspected of breaching the code and of the sanctions that may be imposed, the employee must stay in their current agency until the matter is resolved - unless the current agency head and the new agency head agree otherwise.

The Public Service Commission says: ''These changes aim to improve the effectiveness of the procedures for handling misconduct in the APS, while at the same time safeguarding the rights of APS employees. The current framework for handling misconduct is essentially sound, and the amendments will clarify and strengthen it further in key areas.''

People involved with alleged breaches of the code - be they those deciding whether to charge a current or former employee, those investigating charges, those charged with alleged breaches, or their respective representatives - need to be aware of, and work in accordance with, the new amendments and procedures.

That includes, as the commission points out, having proper regard to safeguarding the rights of employees charged with breaches. The obligation to have due regard to procedural fairness means just that - particularly in relation to the direction that reasonable steps be taken to inform the person of the details of the suspected breach.

In Kioa v West, the High Court held that a person whose rights or interests are likely to be affected by an administrative decision should be given an opportunity to be heard before the decision is made. That raises the question as to what is necessary to discharge that obligation in the context of a charge under the APS code - particularly in relation to the ''details'' (or ''particulars'') of the alleged breach or breaches that must be given to the charged employee.

The NSW Supreme Court's Justice Hunt put it succinctly in a public service disciplinary context in Etherton v Public Service Board of NSW: ''the officer who has been charged is, in my view, entitled to proper particulars of the charge against him''.

Indeed, all those involved in addressing breaches of the code under the new amendments and procedures would do well to read Etherton. In that case, the NSW Public Service Board contended it was sufficient compliance with the obligation to give ''details'' of the charges to simply describe the allegations against the officer in a broad way and to give him all the documents said to contain matters that went to the allegations.

Hunt swiftly dispelled that contention. He described it as a ''somewhat cavalier attitude'' which was ''quite wrong'': the officer was entitled to particulars of the specific acts or omissions relied upon to establish the truth of the charge against him. The words ''specific acts or omissions'' are to be emphasised, as is evident in this passage from Hunt's judgment:

An APS employee simply apprehending the possibility of being charged with breaching the code could resign to remove the risk of being charged in the first place.

It is only by knowing precisely the basis upon which the board has charged the plaintiff that he can properly prepare … And it is only with such knowledge that both he and the board (or its delegate) can determine what material is relevant to the case made against him and thus admissible in evidence.

… there are hundreds of pages which complain about such things as:

(I) personality clashes and professional conflicts within the plaintiff's district office in relation to which the plaintiff is said to have taken ''no positive steps'';

(ii) a ''lack of credibility'' within the plaintiff's district office by outside agencies who, it is said, have learnt to bypass the service if possible because of a ''general omission of quality service''; and

(iii) a ''distrust'' by officers of one hospital in the ''confidence'' of the plaintiff.

There are lots of other similar examples. The plaintiff could not possibly know how to meet such insubstantial and non-specific material. At some time during the course of this disciplinary inquiry, someone who is responsible for presenting the case against the plaintiff is going to have to settle down and do the hard work which is necessary to work out from this mass of material precisely what that case is. It is quite wrong for the prosecutor to put a mass of material into evidence and only then, when it is all in, select from that mass of material that which looks to have come out worse for the officer charged.

In short, those putting and investigating charges under the new amendments must, in order to comply with the procedural fairness requirements of the procedures and the directions, do far more than merely state the allegations in a broad, general and discursive manner, and provide the charged APS employee, or former employee, with the documents relevant to the allegations.

John Wilson is the managing legal director of Bradley Allen Love Lawyers.

john.wilson@bradleyallenlove.com.au

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