Download AFMA Reporting Breaches of the Code of Conduct

Reporting Breaches of the Code of
Conduct Procedure
July 2013
Contents
1.
Background to Procedures ............................................................................................................................. 3
2.
Scope.............................................................................................................................................................. 3
3.
Reporting Breaches ........................................................................................................................................ 3
3.1
Internal....................................................................................................................................................... 3
3.2
External ..................................................................................................................................................... 4
4.
Whistleblowing Reports................................................................................................................................. 4
4.1
What is a Whistleblower Report? .............................................................................................................. 4
4.2
Making a Whistleblower Report................................................................................................................ 5
4.3
Investigation of Whistleblower Reports .................................................................................................... 6
4.4
Outcome of Whistleblower Reports .......................................................................................................... 6
4.5
Protection for Whistleblowers ................................................................................................................... 7
5.
Authorised Disclosure .................................................................................................................................... 7
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1.
Background to Procedures
The Public Service Act 1999 (s.16) establishes a legal framework within which allegations of
breaches of the APS Code of Conduct can be raised. The Act provides for such allegations to
be raised with: the Australian Public Service Commissioner; the Merit Protection
Commissioner; or the Agency Head or a person authorised by the Agency Head.
The Public Service Regulations 1999 and the Australian Public Service Commissioner’s
Directions 2013 require an agency head to establish procedures for dealing with such reports
of misconduct.
2.
Scope
The Public Service Commissioner's Directions 2013 require that the APS demonstrates
leadership, is trustworthy, and acts with integrity in all that it does by “reporting and
addressing misconduct and other unacceptable behaviour by public servants in a fair, timely
and effective way".
In the Australian Public Service (the APS) employees have special obligations by virtue of
the APS Code of Conduct (the Code), the APS Values (the Values) and the APS Employment
Principles. The Code, the Values and Employment Principles establish that:
 Impartial - the APS is apolitical and provides the Government with advice that is
frank, honest, timely and based on the best available evidence (s. 10(5)).
 Ethical- an APS employee must behave honestly and with integrity in the connection
of APS employment (section 13(1)).
 An APS employee must at all times behave in a way that upholds the Values and
Employment Principles and the integrity and good reputation an employee’s agency
and of the APS (s. 13(11)).
AFMA considers that the provisions of the Code, the Values and the Employment Principles
impose a reporting obligation on all APS employees with regard to suspected breaches of the
Code. In some circumstances it could be a breach of the Code for an employee does not to
report a suspected breach.
3.
3.1
Reporting Breaches
Internal
An APS employee may make a report of a possible breach of the Code of Conduct either
verbally, in writing or by e-mail. The report should provide full details of the alleged breach
to the extent known by the employee.
An employee may make a report to the Chief Executive Officer (CEO) or to a person
authorised by the CEO. Persons within AFMA authorised by the CEO to receive disclosures
are the:
 General Manager, Corporate Services Branch
 Members of the Executive
 Senior Manager, Human Resources Section
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Where appropriate, minor matters should be firstly raised with relevant section managers.
The appropriateness of raising the matter with the Human Resources (HR Section) or a
member of the Harassment Contact Officer network should also be considered.
The Senior Manager, Human Resources or the General Manager, Corporate Services will
determine the nature of the investigation to be undertaken.
3.2
External
If an employee considers the matter to be of such sensitivity that he/she feels unable or
unwilling to report it within AFMA, a report can be made directly to the Australian Public
Service Commissioner (the Commissioner) (or to a person authorised by the Commissioner)
or to the Merit Protection Commissioner (MPC) (or to a person authorised by the MPC).
When a report is made to the Commissioner or the MPC (or to a person authorised by one of
the Commissioners to receive reports), the relevant Commissioner or authorised person must
accept the report if they consider it would be inappropriate for the report to be made to their
agency head, or if the report has already been made to their agency head and is not satisfied
with the outcome (including the agency head’s decision to decline or discontinue inquiry into
the report).
The Commissioner or MPC must inquire into a report unless they reasonably believe there
are grounds on which to decline or discontinue inquiry.
Where the Commissioner or MPC has inquired into a report they must let the person whom
made the report know the outcome (including whether they propose to decline or discontinue
inquiry into the report), and must inform the relevant agency head of the outcome. The
Commissioners will have regard to privacy considerations in deciding the level of detail that
will be provided about the outcome of an inquiry.
The Commissioner or MPC must also consider, having regard to all the circumstances,
whether to give the person about whom the report has been made an opportunity to be heard
in relation to the report.
4.
Whistleblowing Reports
Whistleblowing in the APS context is the reporting by an APS employee of an alleged breach
of the Code of Conduct to a person authorised to receive such a report.
The whistleblowing framework operates as a two-tier system that is the majority of reports
are considered at the agency level in the first circumstance. A report may then be made to the
Commissioner or MPC if the whistleblower is dissatisfied with the outcome of their report
within the agency. There may be circumstances where an APS employee witnesses an
employee from another agency engaging in suspected misconduct. In these cases it may be
more appropriate for a whistleblower to make their report to another agency head.
4.1
What is a Whistleblower Report?
Whistleblowing disclosures may include reports of:
 fraud, corruption or other criminal behaviour
 waste, misuse or mismanagement of AFMA resources
 practices resulting in danger to public health or safety
 harassment of AFMA staff or clients
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 conflict of interest
 the use of, or disclosure of, information obtained in connection of an employee’s
employment for his/her own benefit or advantage
 other actions that would amount to a breach of the Code.
Generally disclosures that amount to complaints against a government or
departmental/agency policy or complaints or grievances seeking a review of an
administrative decision are not considered to be whistleblowing.
4.2
Making a Whistleblower Report
An APS employee may make a whistleblower report verbally, in writing or e-mail.
The report should provide full details of the alleged breach to the extent known by the
employee. The person to whom the report is made should, where possible, acknowledge
receipt of the report.
The person about whom a whistleblower report has been made will have the opportunity to
make a statement (orally and/or in writing) about their views of the matter, before any
adverse findings or any recommendations are made. This opportunity would be withheld only
in exceptional circumstances. In accordance with the general principles of procedural
fairness, the opportunity to be heard must be provided to a person whose direct interests are
likely to be affected adversely by the findings of an administrative inquiry.
In addition, the person alleged to have breached the Code, the agency head may consider
whether to provide that opportunity to any other person whose interests may be adversely
affected by the outcome of an inquiry. For example, if in the course of conducting a
whistleblowing inquiry it becomes apparent that another person may be complicit in the
alleged misconduct, and the inquiry proposes to make findings that are adverse to that person,
then that person would be given the opportunity to be heard before any findings or
recommendations are made.
In most cases, the whistleblower would not be given the opportunity to be heard, as their role
is essentially that of informant and witness. Cases may arise, in which findings or
recommendations may be made that have an adverse effect on the whistleblower’s direct
interests—for example, if the whistleblower is believed to be complicit in the alleged
misconduct, or is otherwise suspected of behaving improperly in relation to the matter under
inquiry. Generally in these cases, and consistent with the principles of procedural fairness, the
whistleblower would be given the opportunity to be heard before any decision was made
concerning possible action on that matter. The whistleblower’s interest in the outcome of
their report would not normally be considered a direct interest for the purposes of providing
the opportunity to be heard.
There may be circumstances where an agency head may choose not to provide an opportunity
to be heard to the person against whom allegations have been made for example:
 a whistleblower report has been made that alleges misconduct by an APS employee,
and
 the report is found to be without substance and an inquiry is not pursued, and
 advising the employee of the report made against them may seriously disrupt
workplace harmony, or may affect adversely the health of that employee to a serious
degree.
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However, it is expected that in most cases the opportunity to be heard will be provided to the
person against whom allegations have been made.
4.3
Investigation of Whistleblower Reports
When a whistleblower report is made to the CEO or to an authorised person, they (or another
person authorised to receive whistleblower reports, the decision maker) will accept the report
and consider the report so as to determine whether there is sufficient evidence to justify an
investigation.
At the time of receiving a whistleblower report the whistleblower will be advised of the
probation on discrimination or victimisation (s. 16(1)) of the Act and will inform the
whistleblower of the proper channels for reporting such behaviours if they occur. If concerns
are raised about the risk of such behaviours these concerns will be discussed and addressed
having regard to all the circumstances.
The CEO or decision-maker may decline or discontinue a whistleblower report if the CEO or
decision-maker reasonably believes that there are grounds on which to decline or discontinue
an inquiry into the report in certain circumstances including:
 the whistleblower report would be dealt with more appropriately by different means;
for example: when other action is being undertaken under the Act or another
Commonwealth law.
 the whistleblower report is vexatious, frivolous, misconceived or lacking in substance;
or
 insufficient detail has been provided; and
 undertaking the inquiry would not otherwise be justified in all the circumstances.
Decision-makers may also decline or discontinue inquiry into reports that do not include
sufficient detail relevant to the allegations(s), such that the decision-maker is unable, on the
basis of the information provided, to make a reasonable decision or recommendation as to
whether a misconduct investigation should be started. Before exercising this discretion, the
decision-maker will ask the whistleblower to supply further relevant information, within a
reasonable timeframe, to substantiate the allegations.
The investigation of the alleged breach of the Code of Conduct undertaken under this
Procedure may conclude that there has been no such breach, or that the breach is of the nature
that some action other than formal consideration as misconduct would be appropriate. Where
the investigation concludes that there may have been an actual breach of the Code of
Conduct, and that alternative action is not appropriate, then the Senior Manager, Human
Resources, or General Manager, Corporate Services will initiate action under the AFMA
Procedures for Determining Breaches of the APS Code of Conduct to formally consider the
matter. Any proposed sanction/s must be discussed and must be approved by the CEO.
4.4
Outcome of Whistleblower Reports
AFMA will advise the whistleblower were there has been an enquiry into the whistleblower
report and the outcome. The scope of the information that is given about the outcome of the
report including the reasons for any decision will be a matter of judgement for the CEO. The
CEO will have regard to the circumstances of each case and taking into account the
requirements of the Privacy Act 1988.
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At a minimum, the whistleblower would be given enough information to be able to make an
informed decision about any further steps they may wish to take.
In particular:
 a whistleblower may make a report to the Commissioner or MPC if they are not
satisfied with the outcome of their report at the agency level. A whistleblower
therefore needs to be given enough information by the agency to be able to make an
informed choice as to whether to refer their report to one of the Commissioners, and
 the CEO may decline or discontinue an inquiry into a whistleblower report if (among
other things) they reasonably believe that the matter would be dealt with more
appropriately by different means. Such cases may include, for example, matters that
are better dealt with as reviews of action under section 33 of the Act. In these
circumstances, it would be appropriate for the CEO to inform the whistleblower of
their view so that the whistleblower could pursue the matter under that framework if
they wished.
The findings of any investigation will be dealt with as soon as practicable.
An employee making a whistleblower report is also required to act responsibly, fairly and
ethically in accordance with the Code, the Values and the Employment Principles. AFMA
may consider taking Code of Conduct action against an employee who makes a
whistleblower report which is not genuine or is made other than in good faith.
4.5
Protection for Whistleblowers
A person performing functions in or for an agency must not victimise or discriminate against
an employee who has made a whistleblower report to an authorised person, or who has
assisted in an investigation in response to an alleged breach of the Code.
Any victimisation or discrimination such as unfair treatment, harassment or retaliatory action
will be investigated as a suspected breach of the Code. AFMA encourages an employee who
has made a whistleblower report or assisted in an associated investigation, to report any
behaviour that they regard as retaliatory, to AFMA.
An employee’s employment must not be terminated for lodging a whistleblower report, or for
participating in proceedings against an employer once a whistleblower report has been lodged
5.
Authorised Disclosure
The reporting of alleged breaches of the APS Code of Conduct under this Procedure, to the
persons specified in Section 16 of the Act and authorised above, will be regarded as
authorised disclosure and hence would not be an offence under Section 70 of the Crimes Act
1914, nor a breach of the APS Code of Conduct.
The activity and obligations of the Australian Public Service Commissioner and the Merit
Protection Commissioner in relation to reports of misconduct made to them under Section 16
of the Public Service Act 1999 are specified in the Public Service Regulations.
Further information with regard to these Procedures can be obtained from the human
Resources Section.
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