In accordance with s.15(3) of the Public Service Act 1999, the Chair, as the agency head of the ACMA, has established procedures for determining whether an ACMA employee or former employee, has breached the Code of Conduct, and for determining sanctions.
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Procedures for dealing with suspected breaches of the Code of Conduct
Intent and scope
- apply in determining whether an APS employee of the ACMA, or a former APS employee who was employed by the ACMA at the time of the suspected misconduct, has breached the APS Code of Conduct in section 13 of the Act
- apply in determining any sanction to be imposed on an APS employee of the ACMA who has been found to have breached the APS Code of Conduct
In these procedures, a reference to a breach of the APS Code of Conduct includes a person engaging in conduct set out in subsection 15(2A) of the PS Act in connection with their engagement as an ACMA employee.
Not all suspected breaches and breaches of the APS 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 APS Code of Conduct may be more appropriate including performance management. The Australian Public Service Commissioner’s Directions 2016 provide that where the conduct of an APS employee raises concerns that relate to both effective performance and possible breaches of the APS Code of Conduct, the Chair 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.
Availability of procedures
As provided for in subsection 15(7) of the PS Act, access to these procedures is publicly available through the ACMA website.
Breach decision maker and sanction delegate
As soon as practicable after a preliminary assessment has been conducted on a suspected breach of the APS Code of Conduct, and the Chair or delegate, has decided to deal with the suspected breach as a determination under the Procedures, the Chair or delegate will appoint a decision-maker (the breach decision-maker) to make a determination under these procedures.
The role of the breach decision-maker is to determine in writing whether a breach of the APS Code of Conduct has occurred.
A person may be appointed to assist the breach decision-maker 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 ACMA employee who is found to have breached the APS 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.
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 to the Australian Public Service Commissioner. This is required by subsection 78(8) of the PS Act. This includes delegation of the power under subsection 15(1) to impose a sanction.
Appointment as a breach decision-maker under these procedures does not empower the breach decision-maker to make a decision regarding a sanction. Only the Chair 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.
The breach decision-maker and the sanction delegate must have regard to the APSC Handling Misconduct publication in making the determination and the decision in relation to the sanction.
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 Chair 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.
The determination process
The process for determining whether a person who is, or was, an APS employee of the ACMA has breached the APS 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 which generally require that:
- the person suspected of breaching the APS 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 making, on the balance of probabilities, of adverse findings
A determination may not be made in relation to a suspected breach of the APS Code of Conduct by a person unless reasonable steps have been taken to:
- inform the employee of the details of the suspected breach (including any subsequent variation of those details)
- where the person is an APS employee, inform the employee the sanctions that may be imposed under subsection 15(1) of the PS Act
- give the employee 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
This provision 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 the breach to be informed of the case against them. It will generally be good practice to give the person notice at an early stage in the process a summary of the details of the suspected breach that are available at that time and notice of the elements of the APS Code of Conduct that are suspected to have been breached.
The breach decision-maker may decide to give the person the opportunity to make both a written and oral statement.
A person who does not make a statement in relation to a suspected breach is not, for that reason alone, to be taken to have admitted to committing a suspected breach.
For the purposes of determining whether a person who is, or was, an APS employee of the ACMA has breached the APS 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 of the circumstances that the request is reasonable, must agree to a request made by a person who is suspected of breaching the APS Code of Conduct to have a support person present in a meeting or interview they conduct.
In line with the PS Act section 15(1), the Chair may impose the following sanctions on an employee who is found to have breached the APS Code of Conduct:
- deductions from salary, by way of fine
- reduction in salary
- reassignment of duties
- reduction in classification
The process for determining whether an APS employee has breached the APS Code of Conduct must be consistent with the principles of procedural fairness.
If a determination is made that an APS employee has breached the APS Code of Conduct, a sanction may not be imposed unless reasonable steps have been taken to:
- inform the employee of the determination, the sanction(s) that are under consideration and the factors that are under consideration in determining any sanction to be imposed
- give the employee a reasonable opportunity to make a statement in relation to sanctions under consideration within seven calendar days, or any longer period that is allowed by the delegate
The sanction delegate may decide to give the employee the opportunity to make both a written and oral statement.
Record of determination and sanction
If a determination in relation to a suspected breach of the APS Code of Conduct by a person who is, or was, an APS employee of the ACMA is made, a written record must be made of:
- the suspected breach
- the determination
- where the person is an APS employee, any sanctions imposed as a result of a determination that the employee breached the APS Code of Conduct
- if a statement of reasons was given to the person regarding the determination in relation to a suspected breach of the APS Code of Conduct or, in the case of an employee regarding the sanction decision, that statement of reasons or those statements or reason
The Archives Act 1983 and the Privacy Act 1988 apply to ACMA records.
Procedure when an employee is to move to another agency during an investigation
This section applies if each of these apply:
- a person who is an ongoing APS employee in the ACMA is suspected of having breached the APS Code of Conduct, and that employee has been informed of the details of the matter
- the matter has not yet been resolved
- a decision has been made that, apart from this clause, would result in the movement of the employee under section 26 of the PS Act to another agency (including on promotion)
Unless the Chair 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 section, the matter is taken to be resolved when either:
- a determination in relation to a suspected breach of the APS Code of Conduct is made in accordance with these procedures or
- the Chair decides that a determination is not necessary