Home
› Personal behaviour
› Reporting suspected breaches of the Code of Conduct › Managing suspected breaches of the Code of Conduct
Managing suspected breaches of the Code of Conduct
This section examines data on the number of finalised investigations into suspected breaches of the Code by agencies in 2004–05 and how such suspected breaches were managed.
Last year’s report contained a summary of the findings of an evaluation conducted by the Commission of the management of suspected breaches of the Code. The Commission acknowledged the desirability of providing agencies with further guidance, and noted that a good practice guide drawing on the findings of the evaluation would be published in 2005. Work on this good practice guide progressed during the year but, as other priorities intervened, it will not be published until 2006.
Levels of investigation
The agency survey sought information about the number of employees who were the subject of formal investigations into suspected breaches of the Code finalised during 2004–05.
During 2004–05, 45 agencies finalised investigations6 into the behaviour of 865 employees suspected of breaching the Code, compared to 48 agencies and 1083 employees in 2003–04. Investigations were finalised in 17% of small agencies, 69% of medium agencies and all large agencies. This result by agency size was similar to that in 2003–04.
Over the last two years the percentage of employees investigated who were found to have breached the Code has remained steady at 63%.
The overall decrease in the number of finalised investigations should be viewed with caution as it is unknown how many cases commenced this year and are still to be finalised (20% of the cases finalised this year commenced prior to 2004–05).
There continues to be a large variation amongst agencies, not explained by agency size, in the proportion of employees subject to investigations into suspected breaches of the Code.
Seven large agencies reported fewer than three investigations for every 1000 employees (ASIC, BoM, FaCS, Finance, Health, DEH, DoTARS) compared to 10 large agencies in 2003–04. CRS, DEST and DIMIA were the only three large agencies to report more than 10 investigations per 1000 employees—DIMIA and CSA both reported more than 20 in 2003–04.
Of the employees investigated for a suspected breach, 68% were from five agencies (Centrelink, ATO, Defence, DIMIA and ComSuper). The inclusion of ComSuper in the five agencies with the highest number of employees investigated is unusual for a medium agency—ComSuper has advised that this was the result of one particular suspected breach where the subsequent investigation identified some degree of involvement of other employees.
Nature of reported breaches
Table 6.4 sets out the frequency with which particular elements of the Code were suspected of being breached in the formal investigations finalised during 2004–05 and the number of agencies that reported having finalised at least one formal investigation involving a suspected breach of that element of the Code.
Table 6.4: Elements of the Code suspected of being breached in investigations finalised during 2004–05
| Element of the Code | No. of employees investigated for a suspected breach of this element | Percentage of cases where a breach was found | No. of agencies with finalised investigations |
| An APS employee must: | |||
| at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS (s.13(11)) | 421 | 58 | 29 |
| comply with any lawful and reasonable direction given by someone in the employee’s agency who has authority to give the direction (s.13(5)) | 378 | 69 | 25 |
| use Commonwealth resources in a proper manner (s.13(8)) | 360 | 58 | 31 |
| when acting in the course of APS employment, treat everyone with respect and courtesy, and without harassment (s.13(3)) | 284 | 49 | 35 |
| behave honestly and with integrity in the course of APS employment (s.13(1)) | 254 | 59 | 33 |
| act with care and diligence in the course of APS employment (s.13(2)) | 128 | 73 | 22 |
| disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment (s.13(7)) | 118 | 77 | 15 |
| when acting in the course of APS employment, comply with all applicable Australian laws (s.13(4)) | 105 | 71 | 17 |
| not make improper use of: inside information, or the employee’s duties, status, power or authority; in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person (s.13(10)) | 63 | 57 | 17 |
| not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment (s.13(9)) | 39 | 54 | 12 |
| not disclose certain information without authority (information communicated in confidence or where disclosure could be prejudicial to the effective working of government (s.13(13) and Regulation 2.1—but see the discussion of the Reg 2.1 amendments later in this chapter)7 | 6 | 33 | 4 |
| while on duty overseas, at all times behave in a way that upholds the good reputation of Australia (s.13(12)) | 5 | 60 | 3 |
| maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff (s.13(6)) | 1 | 100 | 1 |
Note: While agencies were asked for data on employees that were the subject of formal investigations, and were specifically asked not to include data on initial investigations that did not proceed to formal misconduct procedures, it is possible that some agencies may have provided information on elements of the Code that were suspected of being breached in both formal and informal investigations.
Source: Agency survey
While there has been a decrease in the number of employees investigated for suspected breaches of the Code in 2004–05, there has been an increase in the average number of suspected breaches investigated per employee. In 2004–05, 865 employees involved in finalised investigations were investigated for a total of 2162 suspected breaches of elements of the Code representing an average of 2.5 elements of the Code suspected of having been breached by each employee investigated. This compares with 1.8 elements per employee in 2003–04; there was no comparable data from 2002–03.
The increase in the average number of elements of the Code suspected of being breached by employees investigated may not be significant. One event can clearly lead to a suspected breach of more than one element of the Code and an increase could represent a change in an agency’s practice to investigate every possible breach of the Code arising from the facts of the case, not just the one originally brought to the agency’s attention.
The element of the Code that was suspected of being breached by the highest number of employees overall was s. 13(11) of the Act—‘an APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS’. Investigations into possible breaches of s. 13(11) were finalised in three per cent of small agencies (one agency), 42% of medium agencies and 81% of large agencies. The increased use of this element of the Code in 2004–05 (26% more employees investigated for a suspected breach than in 2003–04) may in part reflect its greater use in combination with other elements as noted above.
Table 6.5 identifies the number of employees investigated for particular types of misconduct and the number of agencies that reported having finalised at least one formal investigation for misconduct of that type. By far, the two most common types of misconduct were improper use of the Internet and/or email and improper access to personal information. With the exception of improper use of the Internet and/or email (65%), large agencies accounted for between 82% and 100% of employees investigated for the different types of misconduct.
Table 6.5: Number of employees by types of misconduct in investigations finalised during 2004–05
| Type of misconduct | No. of employees investigated for this type of misconduct | Percentage of cases where a breach was found | No. of agencies with finalised investigations |
| Improper use of Internet/email | 294 | 58 | 23 |
| Improper access to personal information (e.g. browsing) | 140 | 83 | 9 |
| Harassment and/or bullying | 85 | 49 | 19 |
| Inappropriate behaviour of employees (other than harassment or bullying) during working hours (e.g. treating clients or stakeholders disrespectfully) | 72 | 60 | 19 |
| Conflict of interest | 71 | 73 | 16 |
| Improper use of resources other than Internet/email (e.g. vehicles) | 64 | 75 | 16 |
| Improper use of position status (e.g. abuse of power, exceeding delegations) | 39 | 56 | 14 |
| Fraud other than theft (e.g. identity fraud) | 31 | 52 | 8 |
| Theft | 24 | 71 | 12 |
| Private behaviour of employees (e.g. at social functions outside working hours) | 13 | 62 | 8 |
| Unauthorised disclosure of information (e.g. leaks) | 11 | 73 | 9 |
| Misuse of drugs or alcohol | 4 | 50 | 4 |
Note: An individual employee may be counted against more than one type of misconduct.
Source: Agency survey
The above data suggests that misconduct in areas where the investigation of the suspected breach relies more on physical evidence (e.g. computer records or actions identified through routine audit practices) than on opinion or observation is more likely to result in a finding that the Code has been breached. The Commission’s research as part of its report, ‘Managing Suspected Breaches of the Code of Conduct’, also suggests that another factor influencing the likelihood of a finding that the Code was breached is the different practices in agencies as to the amount of evidence required before commencing an investigation. As noted in last year’s report, some agencies delay commencing a formal investigation until a preliminary investigation has been conducted whereas other agencies routinely commence formal investigations as soon as they are notified of a suspected breach.
Data from 2003–04 is not directly comparable with 2004–05 data, as this year’s agency survey sought details on the numbers of employees who were investigated for a particular type of misconduct, whereas last year’s survey only asked agencies to report on the subject matter of investigations finalised.
Outcomes of finalised investigations
Table 6.6 shows the outcomes of investigations into suspected breaches of the Code finalised by agencies during 2004–05.
Table 6.6: Outcomes of finalised investigations into suspected breaches of the Code (in order of severity), 2004–05
| Outcome | No. of employees affected (a) | No. of agencies that reported the outcome |
| Termination of employment | 70 | 18 |
| Reduction in classification | 50 | 14 |
| Reduction in salary | 49 | 15 |
| Reassignment of duties | 23 | 13 |
| Deduction from salary by way of a fine | 192 | 18 |
| Reprimand | 257 | 32 |
| No breach found | 229 | 25 |
| Breach found but no sanction imposed | 12 | 8 |
| Investigation discontinued because of resignation of employee under investigation | 91 | 16 |
| Investigation discontinued but employee counselled | 13 | 6 |
| Other | 27 | 12 |
(a) An employee may be counted against more than one outcome.
Note: While agencies were asked for data on employees who were the subject of formal investigations, and were specifically asked not to include data on initial investigations that did not proceed to formal misconduct procedures, it is possible that some agencies may have provided information on elements of the Code that were suspected of being breached in both formal and informal investigations.
Source: Agency survey
In 91 cases (11%), the formal investigation into a suspected breach of the Code was discontinued when the employee under investigation resigned from the APS. There has been no change to the resignation rate in such circumstances since 2003–04.
The employment of 70 employees from 18 agencies was terminated as a consequence of misconduct investigations finalised during 2004–05. Seven medium agencies each terminated the employment of one employee and the remaining terminations occurred in 11 large agencies. Defence, Centrelink and ATO accounted for nearly two-thirds (64%) of terminations. Reductions in classification occurred in three medium agencies and 11 large agencies with two thirds of the reductions reported in Centrelink, ATO and Defence. Fifteen agencies reduced the salary of 49 employees—Centrelink and ATO accounted for 65% of the salary reductions. The most common ‘other’ outcome reported in 15 cases was counselling of an employee found to have breached the Code.
The last two State of the Service reports have noted variation between large agencies in the extent of their use of ‘high impact’ sanctions. High impact sanctions are those that have the greatest impact on employees—termination of employment, reduction in classification and reduction in salary.
The data from this year’s survey, calculated as a proportion of the total number of sanctions imposed by each of the 21 large agencies (ranging from 2 to 239), is consistent with previous findings. The imposition of the ‘high impact’ varied between 0% and 50% of total sanctions imposed amongst large agencies. ‘High impact’ sanctions were not used in five large agencies and were greater than a third of total sanctions in two large agencies.
6 ‘The agency survey provided the following guidance on what was meant by ‘investigation’—‘This includes all investigations conducted under an agency’s procedures established under section 15(3) of the Public Service Act 1999 for handling suspected breaches of the Code. It does not include initial investigations that do not proceed to misconduct procedures established under section 15(3) of the Public Service Act 1999. It does not include the outcomes of reviews of actions under section 33 of the Public Service Act 1999’.
7 The survey question did not distinguish between the two versions of PS Regulation 2.1 that were in force for different periods during 2004–05. Table 6.4 includes the version of the regulation that was in place during the period between 23 December 2004 and 16 June 2005.
