1.1These procedures must be complied with in determining whether an APS employee has breached the Code of Conduct (the Code) set out in section 13 of the Public Service Act 1999 (PS Act), and in determining what, if any, sanction is to be imposed on an APS employee who has breached the Code of Conduct.

1.2These procedures apply in relation to a suspected breach of the Code by an APS employee, a former APS employee or the actions of an employee prior to commencing with the ANAO as set out in subsection 15(2A) of the PS Act, in respect of which a determination is to be made.

1.3The Auditor-General, Deputy Auditor-General or the Chief Operating Officer, can decide whether or not to deal with a suspected breach of the Code of Conduct under these procedures or whether to deal with a suspected breach another way.

1.4Where the conduct of an APS employee raises concerns that relate both to effective performance and to possible breaches of the Code of Conduct, the Auditor-General, Deputy Auditor-General or the Chief Operating Officer must, before making a decision to initiate an inquiry under these procedures, have regard to any relevant standards and guidance issued by the Australian Public Service Commissioner.

2.1These procedures are made publicly available on the ANAO website in accordance with subsection 15(7) of the PS Act.

3.1As soon as practicable after a suspected breach of the Code has been identified and the Auditor-General, or authorised delegate, has decided to deal with the suspected breach under these procedures, the Auditor-General, or authorised delegate, will appoint a decision-maker to make a determination under these procedures.

3.2The role of the breach decision-maker is to determine in writing whether a breach of the Code has occurred.

3.3The 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.

3.4The delegate determining whether a sanction should be imposed for any breach of the Code is referred to in these procedures as the sanction delegate and will hold a delegation of the power under subsection 15(1) of the PS Act.

3.5These procedures do not prevent the breach decision-maker from being the sanction delegate in the same matter.

3.6The 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 the powers and functions under section 14 of the Public Service Regulations 2023.

3.7Where suspension from duties is being considered, appointing a separate delegate from the breach decision-maker is preferable.

4.1SES employees have additional obligations under the PS Act to promote APS Values, the APS Employment Principles and compliance with the Code of Conduct by personal example and other appropriate means.

4.2When dealing with a suspected breach of the Code by an SES employee, these additional obligations should be considered as well as the greater impact of the conduct of SES employees on the public confidence of the APS.

4.3In accordance with section 64 of the Australian Public Service Commissioner’s Directions 2022, if a current ANAO SES employee is suspected of breaching the Code, the AuditorGeneral (or delegate) must consult with the APS Commissioner, or a delegate of the APS Commissioner for the purposes of this requirement:

4.3.1on the process for determining whether the SES employee has breached the Code and;

4.3.2if considering imposing a sanction, before imposing the sanction.

4.4The APS Commissioner’s role is advisory and is not a formal decision-making role.

5.1The breach decision-maker and the sanction delegate must be and must appear to be independent and unbiased.

5.2The breach decision-maker and the sanction delegate must advise the Auditor-General 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.

6.1The process for determining whether a current or former APS employee has breached the Code must be carried out with as little formality and as much expedition as a proper consideration of the matter allows. A formal hearing is not required.

Decision to commence investigation

6.2As soon as practicable after a suspected breach of the Code has been identified, the Auditor-General, or one of the following ANAO employees, will consider if it appropriate for a preliminary assessment to be conducted to assess whether the suspected breach of the Code should be formally investigated under these procedures:

6.2.1Deputy Auditor-General

6.2.2Chief Operating Officer

6.2.3Chief People Officer

6.3Once a decision is made to formally investigate the suspected breach under these procedures, the Auditor-General or authorised delegate will appoint a decision-maker (the ‘breach decision-maker’) to make a determination under these procedures.

Breach determination process

6.4The process must be consistent with the principles of procedural fairness.

6.5A determination may not be made in relation to a suspected breach of the Code by a current or former ANAO employee unless reasonable steps have been taken to:

6.5.1inform the employee/former employee of:

6.5.1.1the details of the suspected breach of the Code (including any subsequent variation of those details); and

6.5.1.2where the person is a current APS employee in the ANAO, the sanctions that may be imposed on them under subsection 15(1) of the Act;

6.5.2give the employee/former employee a reasonable opportunity to make a written or oral statement, or provide further evidence in relation to the suspected breach, within 7 calendar days, or any longer period that is allowed by the breach decision-maker.

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 that are suspected to have been breached.

6.6A 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.

Variation in investigation

6.7If during the course of an investigation it becomes evident that there is a material variation in the nature or extent of the alleged breach notified to the employee, the employee must be notified in writing of the variation and any variation in the range of sanctions that may be imposed if the employee is found to have breached the Code.

6.8The employee must be provided with a reasonable opportunity, usually 7 calendar days, to make a further statement or provide further evidence before a determination is made.

7.1A current APS employee who is under investigation for a suspected breach of the Code may be:

7.1.1reassigned to alternative duties, either for a temporary period or on an ongoing basis, under section 25 of the PS Act

7.1.2suspended from duty by the suspension delegate under section 28 of the PS Act and section 14 of the PS Regulations.

7.2To remove any doubt, this clause also applies to SES employees.

7.3In reassigning duties of a current APS employee who is under investigation, the suspension delegate will:

7.3.1notify the current APS employee who is under investigation of the proposal; and

7.3.2give the person reasonable opportunity (usually, 7 calendar days) to respond before any decision to suspend is taken.

7.4Sometimes urgent action may be required that will not allow for notification and response outlined at subclause 7.3. 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.

7.5In suspending a current APS employee who is under investigation, the suspension delegate will:

7.5.1notify the current APS employee, in writing, of the ANAO’s preliminary intention to suspend them, and the reasons for this proposal; and

7.5.2give the person reasonable opportunity to respond (usually, 7 calendar days) before any decision to suspend is taken.

7.6Sometimes urgent action may be required that will not allow for notification and response outlined at subclause 7.5. In such cases, the suspension delegate may invite the current APS employee who is under investigation to comment after the decision has been made.

8.1The sanction process must be consistent with the principles of procedural fairness.

8.2If a determination is made that a current APS employee in the ANAO has breached the Code, a sanction may not be imposed on employee in the ANAO unless reasonable steps have been taken to:

8.2.1inform the employee of:

8.2.1.1the determination that has been made; and

8.2.1.2the sanction or sanctions that are under consideration in accordance with subsection 15(1) of the PS Act; and

8.2.1.3the factors that are under consideration in determining any sanction to be imposed; and

8.2.2give the employee a reasonable opportunity to make a written or oral statement in relation to the sanction or sanctions under consideration within 7 calendar days, or any longer period as is allowed by the sanction delegate.

9.1If a determination is made in relation to a suspected breach of the Code by a current or former APS employee in the ANAO, a written record must be made of:

9.1.1the suspected breach; and

9.1.2the determination regarding breach; and

9.1.3in the case of current APS employee in the ANAO, any sanctions imposed as a result of a determination that the employee breached the Code; and

9.2If a statement of reasons was given to the employee or former employee regarding the determination or the sanctions — that statement of reasons.

9.3Records relating to misconduct should not be placed on the employee’s personal file but kept of a separate misconduct file.