Ethics and integrity

In a recent report, the Organisation for Economic Co-operation and Development (OECD)¹ highlighted the importance of open and inclusive policy-making to sustain public trust in government. It noted that today’s more educated public is judging governments on the degree to which government decision-making processes live up to democratic principles as well as their ability to deliver tangible, effective outcomes for society.

While open and inclusive policymaking is critical to sustaining public trust in government, it is only part of the story. Also necessary are professional interactions with citizens in delivery of services, and integration or ‘hardwiring’ of professional standards of public servants, that is, the Australian Public Service (APS) Values, into everything the APS does. The APS Values and Code of Conduct define the APS operating ethos and the standards of behaviour expected of every APS employee.

This chapter examines progress in implementing measures to support the government’s approach to an accountable and transparent APS and reinvigorating the Westminster tradition. It also reports on how the APS is managing within this framework and supporting employees to uphold the APS Values through ethical decision-making.

APS contribution to trust in government

Available data suggests that Australia performs well in terms of perceptions of the quality and independence of its public administration.

For example, according to the World Bank’s Governance Matters rankings of 2009, Australia ranked in the 97th percentile for the Government Effectiveness indicator (which measures the quality of public services, the capacity of the civil service and its independence from political pressures, and the quality of policy formulation). Only 3% of countries scored better. Australia ranked equally with Canada and performed better than the United Kingdom (94), the United States (93) and New Zealand (95). Countries with higher rankings included Singapore (100), Denmark (100), Sweden (99), Switzerland (99), Finland (98) and Norway (98).

As well, Transparency International’s Corruption Perceptions Index 2008 ranked Australia equal ninth (with Canada) with a score of 8.7. Denmark, Sweden and New Zealand lead the table with a score of 9.3. This index ranks countries in terms of the degree to which corruption is perceived to exist among public officials and politicians.

While these indicators relate to Australian governments generally, rather than the Commonwealth alone, they are encouraging. However, the Prime Minister, when delivering the ‘John Paterson Oration’ on 3 September 2009, indicated that more effort is required to improve Australia’s standing.² The government’s vision for the APS is to make it the best public service in the world. To achieve this goal the Prime Minister said the APS must, among other things, maintain a culture of honesty, impartiality and fairness, with a focus on retaining public trust. The Prime Minister’s statement builds on an earlier address to heads of agencies and the SES when he emphasised the importance of reinvigorating the Westminster tradition of an independent public service, building a professional public service committed to excellence, and strengthening the integrity and accountability of government.³

A number of initiatives aimed at meeting the government’s integrity agenda have been implemented. These have included new Standards of Ministerial Ethics, codes of conduct for both ministerial advisers, and lobbyists, new guidelines for government campaign advertising, the first annual report relating to people employed under the Members of Parliament (Staff) Act 1984, policy guidelines on public servants’ participation in public information campaigns, merit-based selection for agency heads and statutory office holders, and amendments to the Freedom of Information Act 1982 and the Archives Act 1983 to remove the power to issue conclusive certificates. The government has also progressed further reform to freedom of information laws and has committed to developing Commonwealth public interest disclosure legislation this year.

Strengthening accountability and transparency—Legislative review

At the heart of the reforms signalled by the government is a determination to improve access by members of the public to the machinery of public administration. This has involved an extensive program of review of the legislation governing these matters, including privacy, freedom of information, whistleblowing and secrecy.

Privacy laws

In August 2008, the Australian Law Reform Commission (ALRC) delivered its final report, For Your Information: Australian Privacy Law and Practice, containing 295 recommendations designed to improve Australia’s privacy framework.⁴ Given the large number of recommendations, the government has announced a two-stage response.

The first stage of the government’s response was released on 14 October 2009, and commits to the rationalisation and simplification of privacy obligations through the establishment of a single streamlined set of binding Privacy Principles for handling personal information in Commonwealth agencies and relevant businesses. Other commitments include the strengthening of the Privacy Commissioner’s powers, reforms to health information and credit reporting regulations and improving education about the impact on privacy by new technologies. The second stage will consider recommendations relating to removal of exemptions, data breach notices and statutory cause of action.

Freedom of information reform

In 2008 the government announced its intention to reform the Freedom of Information Act 1982 (FOI Act), to be implemented through two stages of reform.

The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009, amongst other reforms, repeals the power, in the Freedom of Information Act 1982 and the Archives Act 1983, to issue conclusive certificates. Conclusive certificates allowed a Minister to refuse access to documents despite an Administrative Appeals Tribunal (AAT) decision that the documents be released. Where a conclusive certificate applied, the AAT’s jurisdiction was limited to determining if reasonable grounds exist for the exemption claim.

The 2009 Act allows the AAT to undertake full merits review of a decision to claim an exemption. It also introduced special protections for the handling of national security and other sensitive information in AAT proceedings in the context of requests for access under the Freedom of Information and Archives Acts, and made amendments to procedures for notifying third parties of AAT proceedings, in certain FOI matters.

The government has also released exposure drafts for the Freedom of Information Amendment (Reform) Bill 2009 and the Information Commissioner Bill 2009,⁵ which aim, among other things, to expand the scope of documents discoverable under the FOI Act. The draft legislation proposes structural reforms, including creating a new Office of the Information Commissioner to provide a platform for system-wide information policy development across government.

The government intends that the final Bills will be introduced later in 2009, coming into effect from January 2010.

In anticipation of these reforms, Senator the Hon. John Faulkner, the then Special Minister of State, wrote to departmental secretaries and heads of agencies in April 2009 asking them to take a lead role in facilitating the government’s policy objective of enhancing a culture of disclosure. This includes making it clear to FOI decision-makers that the starting point for considering FOI requests should be a presumption in favour of giving access to documents.

Review of whistleblowing measures

On 10 July 2008, the Attorney-General, the Hon. Robert McClelland MP, on behalf of Senator Faulkner, asked the House of Representatives Standing Committee on Legal and Constitutional Affairs (the Committee) to inquire into and report on whistleblowing protections within the Australian Government public sector. The Committee tabled its report, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector, in the House of Representatives on 25 February 2009.

The recommendations in the report reflect the Committee’s views on the primary legislative priorities to support open and accountable government. The main recommendations in the Committee’s report include that:

• new legislation be introduced to broaden the existing arrangement to a systematic scheme of whistleblower protection covering a range of employees and other people working in the Australian Government public sector
• the scheme protect disclosures about serious matters relating to official misconduct involving a public interest matter, illegal activity, corruption, maladministration, breach of public trust, scientific misconduct, waste of public funds, dangers to public health and safety, and dangers to the environment
• available protections include protection against detrimental action in the workplace and immunity from criminal and civil liability, including other actions such as defamation and breach of confidence
• the scheme comprise a two-stage process of internal and external reporting with the Commonwealth Ombudsman to oversee its administration
• the Public Service Commissioner and the Merit Protection Commissioner have the authority to receive, investigate and refer public interest disclosures.⁶

The government is preparing a response to the Committee’s recommendations for release before the end of 2009.

Review of secrecy laws

On 5 August 2008, the government asked the ALRC to inquire into and report on options for ensuring a consistent approach across government to protecting Commonwealth information, balanced against maintaining an open and accountable government by providing appropriate access to information.⁷

The ALRC released a community consultation paper in December 2008 identifying 507 secrecy provisions scattered across 175 pieces of legislation, including 358 distinct secrecy offences carrying a wide variety of criminal penalties.

Taking into account submissions received, the ALRC released a discussion paper in June 2009 that makes 65 proposals for reform, including proposals to:

• repeal section 70 of the Crimes Act 1914 (which creates a criminal offence applicable to current and former Commonwealth officers who breach a duty not to disclose information) and replace it with a general secrecy offence in the Criminal Code
• amend Public Service Regulation 2.1 (which places a duty on APS employees not to disclose certain official information).

The ALRC is expected to release its report in October 2009.

Strengthening accountability and transparency— working with the Executive

Improving transparency and accountability to the public is one element of the government’s integrity agenda. Matching this, there have also been reforms in the way the government and the APS work together.

The primary role of the APS is to serve the government of the day within the law and in a way that upholds the APS Values and Code of Conduct. Specific elements of the Values and Code of Conduct deal with this relationship, including the requirement to be apolitical, impartial and openly accountable within the framework of ministerial responsibility to the government and the parliament; as well as being responsive to the government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the government’s policies and programs.

Standards of ministerial ethics

The Prime Minister issued a revised set of Standards of Ministerial Ethics in December 2007. The Standards outline the behaviour expected of Ministers and guide the interaction between Ministers and public servants.

This year’s survey of APS employees asked them to rate their level of familiarity with the Standards of Ministerial Ethics. A large proportion of EL and SES employees (47%) indicated they had heard of, but were not familiar with, the Standards. Only 11% of EL and SES employees reported familiarity with the Standards, and an additional large proportion (40%) indicated they had not heard of the Standards.

Of those EL and SES employees who have direct contact with Ministers and/or ministerial advisers, only 21% were familiar with the Standards of Ministerial Ethics; 55% indicated they had heard of, but were not familiar with, the Standards. Taken together, the figures suggest that a greater effort to increase awareness of the Standards would be helpful in supporting APS employees.

Code of Conduct for ministerial staff

Effective government relies on professional relationships between APS agencies and ministerial offices. As a matter of practice, the contact that most APS employees have with Ministers’ offices will be with ministerial advisers—who are not public servants.

Given the important role of ministerial advisers in working with government, Senator Faulkner tabled the Code of Conduct for Ministerial Staff (the Code) in the Senate on 26 June 2008 (to take effect on 1 July 2008).⁸

The Code sets out the standards of personal integrity, professionalism and behaviour expected of ministerial employees. It also outlines the expected relationship between ministerial advisers and public servants. The Code applies to ministerial employees employed under the Members of Parliament (Staff) Act 1984, including the personal and electorate office employees of Ministers as well as consultants engaged by Ministers.

A large proportion of EL and SES employees (49%) indicated they had heard of, but were not familiar with, the Code of Conduct for Ministerial Staff. Only 11% of EL and SES employees were familiar with the Code, with an additional large proportion (38%) indicating they had not heard of it.

Of those EL and SES employees who have direct contact with Ministers and/or ministerial advisers, only 25% were familiar with the Code; 55% indicated they had heard of, but were not familiar with, the Code.

Although those who have direct contact with Ministers and/or ministerial advisers have a higher-level awareness, the figures suggest an overall need for greater effort to increase awareness of the Code. An understanding of respective roles and responsibilities would help ensure an effective and productive working relationship between the APS and the government.

There has been considerable improvement over time in perceptions of the relationship between APS employees and ministers and their offices. This year, the employee survey asked SES and EL employees whether, in the past 12 months, they had faced a challenge in balancing the need to be apolitical, impartial and professional, responsive to government and openly accountable in dealing with Ministers and/or Ministers’ offices. Twenty-four per cent of SES and EL employees admitted being faced with this challenge—around the same level as last year but considerably lower than the 41% agreement in the 2003–04 and 2004–05 surveys.

The percentage of agencies that reported having agreed written procedures in place for resolving employees’ concerns that may arise about the nature of requests from ministerial offices declined from 22% in 2007–08 to 19% this year. Agencies need to ensure employees are aware of the frameworks that govern contact with Ministers’ offices, and ensure procedures are in place that support employees in maintaining the correct relationship with Ministers and their offices.

Lobbyists register and Lobbying Code of Conduct

From 1 July 2008, any lobbyist who wishes to contact a government representative for the purpose of lobbying must be registered on the Register of Lobbyists (introduced in May 2008) and must agree to comply with the requirements of the Lobbying Code of Conduct (May 2008). The register lists 270 entities and 651 individual lobbyists (at 30 June 2009) and is a public document.⁹

The public expects lobbying to be carried out ethically and transparently, and that government representatives who are approached by lobbyists can establish whose interests they represent in order to make informed judgments about the outcome they are seeking to achieve. While in many cases it will be Ministers or ministerial advisers who are approached by lobbyists, public servants are likely to be responsible for advising Ministers on the response to such approaches and may also be approached directly.

The Code and Register are important elements of the government’s integrity framework and APS employees working in relevant roles should ensure they understand how they operate.

A large proportion of EL and SES employees indicated they had heard of, but were not familiar with, the Register of Lobbyists (39%) and the Lobbying Code of Conduct (37%). Only 11% of EL and SES employees were familiar with the Register and only 10% were familiar with the Code. An additional large proportion indicated they had not heard of the Register (49%) or the Code (51%).

Of those EL and SES employees who had direct contact with Ministers and/or ministerial advisers, only 24% were familiar with the Register of Lobbyists, with 48% indicating they had heard of, but were not familiar with the Register. Similarly, only 22% of EL and SES employees who had direct contact with Ministers and/or ministerial advisers were familiar with the Lobbying Code of Conduct; 46% indicated they had heard of, but were not familiar with, the Code.

The results suggest a need for a greater effort to increase awareness of the Register and the Code, particularly for APS employees who have direct contact with Ministers and ministerial advisers, noting however that the Register and the Code have not long been operational.

Strengthening accountability and transparency—Support to agencies

During 2009, APS agencies received additional support to help them ensure their actions are consistent within the APS ethical framework and delivery of government services is fair and proper; and to help APS employees understand their responsibilities.

Ethics Advisory Service

The Ethics Advisory Service (EAS) commenced operation on 6 May 2009 and is managed by the Commission. It includes a telephone and email advice service, available to all APS employees, including SES and agency heads; and a website, a communications program involving hard copy and online ethics education and other tools, and a network of agency Ethics Contact Officers.¹⁰

As part of its responsibilities, the EAS is required to collect and analyse data from the telephone and email advice service and report annually to parliament on management of the APS Values and the Code of Conduct, including any emerging ethical issues and challenges.

While it is too early to identify any particular ethical trends or issues it is, nevertheless, worth noting that experience to date shows:

• a rough correlation between size of agency and volume of calls
• ethical issues raised tended to focus on workplace relationships, including perceptions of bullying and harassment
• less than 10% of callers chose to be anonymous, indicating a high degree of trust in the integrity of the EAS.

Next year’s State of the Service report is expected to provide more detailed analysis on the ethical health of the APS. It is expected that the Ethics Contact Officer Network will also be a useful source of information on emerging ethical issues and concerns.

Soon after the launch of the EAS, in September 2009 the Merit Protection Commissioner released a new publication, Ethical Decision Making, drawing from monographs she had given on the subject. The publication builds on the Commission’s established REFLECT decision-making model and provides APS employees with straightforward advice to help them recognise when they are in an ethically difficult position and how to navigate their way through.

Ethical consistency in service delivery

The Australian National Audit Office has started a cross-portfolio audit to assess the extent that Australian Government agencies ensure external service providers are made aware of the APS Values and Code of Conduct.

This initiative reflects the fact that non-public servants (such as commercial companies and the not-for-profit sector) are increasingly providing services to public sector agencies and, on behalf of APS agencies, government services to the public.

The audit report is expected to be tabled in 2010.

Embedding the APS Values and Code of Conduct

The APS Values are set out in section 10(1) of the Public Service Act 1999 (the Act) and the APS Code of Conduct in section 13. Agency heads are bound by the Code and obliged to promote the Values (s. 12). The indicators of the APS capacity to live up to these Values are:

• leadership
• employee perceptions of ethics and integrity
• agency systems and processes.

Leadership

The Act places a particular obligation on SES employees to promote, by personal example, the Values and compliance with the Code of Conduct. It is an obligation that recognises that senior leaders have a unique role in their agencies, and that employees are likely to take cues about acceptable behaviour from their managers’ actions and decisions.

This year’s employee survey asked employees whether they agree that, in their experience, the most senior managers in their agencies act in accordance with the APS Values. Seventy- seven per cent agreed, while another 12% neither agreed nor disagreed, and only 7% disagreed. This compares favourably with responses of 63%, 19% and 16%, respectively, when this question was first asked in 2003.

Employee perceptions of ethics and integrity

Staff perceptions of standards of ethics and integrity in the APS are high. In 2008–09:

• 72% of employees agreed their agency operates with a high level of integrity
• 82% of employees agreed people in their work groups treat each other with respect
• 78% of employees agreed their manager demonstrates honesty and integrity
• 71% of employees agreed people in their agency manage conflicts of interest effectively.

These results are similar to, or marginally higher, than previous years. The only notable exception is perceptions of employee management of conflicts of interest, which has seen a marked improvement from 63% since 2006–07. This may reflect the additional emphasis on this issue after the Commission issued revised policy guidelines on declarations of personal interests in June 2007.

Agency systems and processes

Agencies have a responsibility to ensure the right systems and processes are in place to support their employees in ethical decision-making. Table 8.1 shows that during 2008–09 agencies used a range of programs that include a focus on explaining the Values to new, or new to the role, employees.

Table 8.1: Programmes used to explain APS Values to employees, 2008–09

Activity	Agencies using it for all new employees %	Agencies using it for employees new to APS %	Agencies using it for other purposes %
Source: Agency survey
APS online induction programme (run by the Commission)	30	8	18
Another type of induction programme	56	7	14
SES orientation programme (run by the Commission)	27	8	18

Agencies reported a strong emphasis on induction; 57% of agencies reported running agency-specific induction for all employees new to the agency, and 29% reported running the APS online induction program.

APS employees also need a good understanding of the Code of Conduct, how it applies to their responsibilities, and how suspected misconduct can be identified and reported.

Table 8.2 shows agency use of mechanisms to promote awareness among employees about how they can report suspected misconduct (including harassment and bullying) during 2008–09 compared with 2007–08.

There has been a steady improvement in agency commitment to raising awareness of and promoting the Code of Conduct, although small agencies tended to be less active in this area. An overall decline in the number of formal sessions on how the Values and Code of Conduct should operate in practice is, however, evident. Practical discussions about how the ethical framework should operate in different work situations are relatively difficult to conduct but are important to understanding and applying it. While noting that agencies were not asked to report on informal sessions (such as discussions at workgroup meetings of ethical issues using tools such as the Ethics Advisory Service’s vodcasts), the data in this chapter shows that there is scope for improvement in this area.

Table 8.2: mechanisms used to promote awareness of ways to report suspected misconduct,

Table 8.2: Mechanisms used to promote awareness of ways to report suspected misconduct, 2007–08 and 2008–09

Activity	Agencies using measure		Agencies developing measure
	2007–08 %	2008–09 %	2007–08 %	2008–09 %
Source: Agency survey
Awareness training as part of induction/orientation	91	95	6	2
Online training/information on intranet	83	87	8	4
Use of promotional material	66	70	4	3
Sessions on how the Values and Code of Conduct should operate in practice	73	58	8	11
Other	44	57	2	2

Nevertheless, employee survey returns indicate that agency programs and initiatives are effectively raising awareness. Ninety-two per cent of employees surveyed reported being familiar with the APS Values and 93% reported familiarity with the APS Code of Conduct. These results are similar to those reported in previous years and, while they indicate knowledge of the Values and the Code of Conduct, that knowledge does not necessarily translate into behaviour.

Monitoring the ethical health of the APS

An ethical framework can only be effective if it is appropriately monitored and enforced. This requires processes and systems to identify suspected misconduct, investigate it effectively and fairly, and impose appropriate sanctions.

Breaches of the APS Code of Conduct

Section 15(3) of the Public Service Act 1999 requires agency heads to establish procedures, having due regard to procedural fairness, for determining if an employee has breached the APS Code of Conduct.

Levels of investigation

In 2008–09, 851 employees were the subject of finalised investigations of suspected breaches, compared to 1,019 employees in 2007–08 and 945 in 2006–07. Sixty-one per cent of employees (521) who were investigated were found to have breached the Code of Conduct, a decline from 66% last year and 70% in 2006–07.¹¹

There is, again, considerable variation between agencies.¹²

Overall, the level of reported misconduct in the APS continues to be low, with only about 3.22 employees in every 1,000 being found to have breached the Code, a substantial decline compared to 4.18 in every 1,000 in the previous year. Agencies use various measures to identify suspected breaches (see Table 8.3).

Table 8.3: Measures agencies used to identify suspected breaches of the APS Code of Conduct, 2007–08 and 2008–09

Measure	Investigations 2007–08 %	Investigations 2008–09 %
Source: Agency survey
Conduct identified by an agency’s compliance or monitoring system	23	31
Conduct identified by supervisors or managers	24	27
Conduct identified by colleague	38	22
Complaints initiated by members of the public or stakeholders	9	12
Other	5	6

The main changes shown in Table 8.3 are the increases in percentage of investigations undertaken as a result of conduct identified by agency compliance systems or by supervisors or managers, but this is not indicative of an underlying trend across the APS. Rather, it appears to reflect targeted investigations of a particular type in large agencies. This year, for example, a large number of suspected breaches involving improper use of the Internet or email have been detected as a result of upgraded monitoring systems in one large agency.

On the other hand, Table 8.3 shows a decline in both the relative percentage and absolute number of suspected breaches identified by colleagues—the actual number of cases of suspected misconduct declined from 392 in 2007–08 to just 190 in 2008–09; that is, a drop of more than half, although this was strongly influenced by a large decline in cases in one agency. See further discussion in ‘Reporting suspected misconduct’ below.

Nature of reported breaches

Table 8.4 shows the breaches of each element of the Code in terms of the number of employees investigated. For the last three years the same five elements of the Code (i.e. the top five in Table 8.4) have been identified as most commonly breached, although in slightly varying order. For the past five years the element suspected of being breached by the highest number of employees has been section 13(11) of the Act, namely: ‘An employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS’. This is perhaps not surprising, given that it is a very broad element of the Code compared to others and encompasses all of the Values.

Table 8.4: Elements of the Code suspected of being breached in investigations finalised during 2008–09

Element of the Code	Employees investigated for a suspected breach of this element No.	Cases where a breach was found %	Agencies with finalised investigations No.
Source: Agency survey
An employee must:
at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS	349	59	26
comply with any lawful and reasonable direction given by someone in the employee’s agency	338	68	23
behave honestly and with integrity in the course of APS employment	285	56	24
use Commonwealth resources in a proper manner	274	69	23
when acting in the course of APS employment, treat everyone with respect and courtesy, and without harassment	251	43	29
act with care and diligence in the course of APS employment	194	58	19
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	109	35	15
when acting in the course of APS employment, comply with all applicable Australian laws	99	71	13
disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment	87	62	9
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	51	61	14
while on duty overseas, at all times behave in a way that upholds the good reputation of Australia	9	11	3
comply with any other conduct requirement that is prescribed by the regulations	3	0	3
maintain appropriate confidentiality about dealings that the employee has with any minister or minister’s member of staff	1	100	1

Table 8.5 draws out some of the detail of the types of behaviour that have resulted in Code of Conduct investigations, by types of misconduct. As with the last two years, the highest incidence of investigations was for improper use of the Internet or email. In this reporting period, just under one half of the investigations on this issue were undertaken by one agency.

Table 8.5: Number of employees, by types of misconduct, in investigations finalised during 2008–09

Type of misconduct	Employees investigated for this type of misconduct No.	Cases where a breach was found %	Agencies with finalised investigations No.
Source: Agency survey
Improper use of the Internet or email	202	68	20
Inappropriate behaviour (other than harassment/bullying) of employees during working hours	190	42	23
Harassment and bullying	120	48	23
Improper access to personal information (browsing)	100	72	6
Improper use of position status (e.g. abuse of power, exceeding delegation)	94	28	12
Fraud other than theft (e.g. identity fraud)	54	52	11
Conflict of interest	48	42	9
Improper use of resources other than internet/email (e.g. vehicles)	38	55	13
Theft	31	48	9
Private behaviour of employees (e.g. at social functions outside working hours)	24	54	10
Unauthorised disclosure of information (leaks)	10	30	5
Misuse of alcohol or drugs	3	67	3

Tables 8.4 and 8.5 suggest the following trends:

• Misconduct in the APS in 2008–09, as in previous years, has tended to be in the nature of isolated incidents of bad behaviour and bad judgement by individual APS employees rather than indicative of any underlying systemic issues. The available evidence indicates that behaviour that is criminal or corrupt (within the ordinary meaning of those terms) is very uncommon.
• There has been a noticeable decline over the last few years in the ratio of investigations to breaches found. For example, the ratio of investigations to breaches for failure to comply with any lawful and reasonable direction given by someone in the employee’s agency who has authority to give the direction dropped from 84% in 2005–06 to 68% this year.

The second trend needs further investigation. The results may be evidence of a decline in investigatory standards, but they could also be the result of a greater determination in some agencies, reflecting their particular probity concerns, to formally investigate any incident that could involve suspected misconduct. The Commission’s Ethics Advisory Service will be following this up with agencies, including through the Ethics Contact Officer Network, to determine the reason for the decline and any remedial action that may be needed.

Outcomes of finalised investigations

Table 8.6 shows the sanctions agencies imposed where a determination was made that an employee had breached the Code.

Table 8.6: Outcomes of investigations into suspected breaches of the Code finalised in 2008–09

Outcomes	No of employees affected	No of agencies that reported the outcome
Source: Agency survey
Reprimand	223	28
Deduction from salary by way of fine	163	21
Investigation discontinued because of resignation of employee under investigation	131	17
Employee counselled	110	22
Reduction in salary	62	10
Termination of employment	46	13
Breach found but no sanction imposed	26	10
Reduction in classification	21	7
Reassignment of duties	17	9
Other	44	10

As in the last three years, the most common sanctions applied to employees were a reprimand or a deduction from salary by way of a fine, representing 61% of all sanctions imposed, slightly up from last year’s 54%. High impact sanctions—reduction in salary, reduction in classification, and termination of employment—accounted for 20% of all sanctions, down from 26% in 2007–08. Terminations of employment comprised 7% of all sanctions, down from 10% in 2007–08. The Department of Defence and the Australian Taxation Office together accounted for 61% of terminations.

In 2008–09, 131 employees who were the subject of a misconduct investigation resigned before the investigation was completed. This compared with 162 employees in 2007–08.

The imposition of sanctions is a matter for individual agencies. As previous reports have explained, variations in the number and level of sanctions tend to reflect individual agency practice which is, in turn, a product of the nature of the agency’s work, and the probity expectations of its stakeholders.

Assurance mechanisms

A key element in ensuring the integrity of the processes for handling suspected breaches of the Code is the scope for independent review allowing the merits of the decision affecting the employee to be tested. The Public Service Regulations 1999 give non-SES employees the right to seek a review by the Merit Protection Commissioner of a determination that they have breached the Code and/or the sanction imposed for the breach (other than a sanction of termination of employment).

This year, the Merit Protection Commissioner completed 26 reviews of this type. Of these, the Commissioner recommended to the relevant agency head that 16 decisions be confirmed, nine varied, and one set aside.¹³

Whistleblowing reports

The current APS whistleblowing scheme is provided for in section 16 of the Act, which prohibits the victimisation of, or discrimination against, an APS employee who has reported a suspected breach of the Code of Conduct to a person authorised to receive the report. Regulation 2.4 of the Public Service Regulations requires agencies to develop procedures for dealing with whistleblowing reports.

Ninety-four per cent of agencies have now established procedures for dealing with whistleblower reports as required by Regulation 2.4, compared with 89% last year. All large agencies now have processes in place.

Despite Regulation 2.4 being promulgated in 1999, some agencies report not having procedures in place. The Commission is contacting these agencies in order to determine the reasons for their lack of compliance.

The number of employees investigated for suspected misconduct as a result of a whistleblower report remained low (six agencies investigated nine employees) and comprised about 1% of all employees investigated for suspected misconduct, a decline from 3% in 2005–06.

There is a range of possible explanations for the low incidence of reporting under the scheme, including:

• matters are often reported and dealt with under other mechanisms, such as the review of action framework
• some agencies may not be aware of the availability of the scheme or it may not be well understood or promoted within such agencies.

This issue, particularly the willingness by individual employees to report suspected misconduct, is discussed in more detail in ‘Common and emerging ethical issues’.

Where it is not appropriate for an agency head to deal with a whistleblower report, or where the whistleblower is not satisfied with the outcome of the agency investigation, the whistleblower may refer the report to the Australian Public Service Commissioner or the Merit Protection Commissioner.¹⁴

Review of employment actions

The Act establishes a review of action scheme and allows employees who are not SES employees to seek redress when they believe an action taken relating to their employment was either unfair or unreasonable. In addition to resolving employee concerns with employment decisions and actions, agency heads can use the scheme to identify areas where APS Values relating to workplace relationships are not being applied as well as they could be.

The scheme is premised on applications for review being lodged with the head of the employee’s agency in the first instance. If an employee is not satisfied with the outcome they can refer the matter to the Merit Protection Commissioner.

In 2008–09, 41% of agencies reported receiving at least one application for a primary review of an employment decision, compared to 43% in 2007–08. Applications continue to be concentrated in large agencies.

There was a change from previous years in the subject matter of applications for review finalised by agencies in 2008–09.¹⁵ The percentage of agencies with finalised applications about discrimination, harassment or bullying increased from 30% in 2007–08 to 51% in 2008–09. The frequency of other subject matters was similar to last year. Fifty-one per cent of agencies finalised applications about performance feedback/assessment, and 49% finalised applications about access to leave and other conditions. Applications regarding procedural issues relating to selection exercises were finalised in 49% of agencies and inappropriate behaviour in the workplace were finalised by 16% of agencies. It is difficult to draw strong conclusions about these year-to-year variations, as most employee grievances are resolved without the need for a formal review. Nevertheless, if formal applications for review are representative of all employee grievances, some agencies need to review their strategies for promoting a workplace culture free from discrimination, bullying or harassment to ensure they reflect best practice.

In 2008–09, the Merit Protection Commissioner completed 58 applications for this type of review (i.e. excluding Code of Conduct reviews and reviews of promotion decisions). Of these, two resulted in recommendations to vary or set aside decisions. While this number might appear low, a recommendation from the Merit Protection Commissioner to set aside an agency decision is made only where there has been a material procedural breach, or where the decision is unfair and unreasonable in all the circumstances. The Merit Protection Commissioner’s role goes beyond that of a reviewer and includes working with agencies and employees to maintain productive and harmonious working environments. This can involve suggesting improvements to agency policies and practices or helping employees understand and accept reasons for decisions about matters that affect their employment.

Employee confidence

The degree of confidence employees reported in the processes for resolving grievances in their agencies has improved slightly, but remains low. This year, 44% of employees agreed they had confidence in these processes, up from 41% last year. Thirty-six per cent could neither agree nor disagree, down from 38% last year. These figures have fluctuated over the years— only 34% of employees reported having confidence in these processes in 2004–05. The   slight improvement in employee confidence in agency processes is surprising given the reported decline in the training provided; this suggests that other factors have contributed to strengthening that confidence.¹⁶ The Commission will continue to monitor this issue.

Common and emerging ethical issues

The ethical framework under which the APS operates covers a range of interrelated issues and areas. The following issues are highlighted because agencies have an ongoing interest in them or because they involve emerging ethical challenges in a changing environment.

Harassment and bullying

The Code of Conduct requires that an APS employee, when acting in the course of APS employment, must treat everybody with respect and courtesy and without harassment.

Seventeen per cent of APS employees reported having been subject to harassment or bullying in the last 12 months. This figure is down from last year’s 19%, although higher than the 15% and 16% in the two preceding years, and appears to have been influenced by a significant reduction (of around one-third) in the responses from one large agency.

A degree of variation continues among agencies in the proportion of employees reporting having been subject to harassment and bullying in the past 12 months, ranging from 6% to 27%. In 10 agencies,¹⁷ 10% or fewer employees reported having been subject to harassment or bullying. On the other hand, more than 20% of employees in six large agencies reported experiencing bullying and harassment.

A higher proportion of women than men still believe they have been subject to harassment and bullying. The overall level of perceptions of harassment and bullying for both sexes declined from 21% for women and 16% for men in 2007–08, to 20% for women and 14% for men in 2008–09.

Another significant feature is that, although levels of experience of harassment and bullying tended to be higher in APS 1–6 and EL employees surveyed (17%), about one in eight SES employees (13%) also reported experiencing it, down from 16% last year but still high compared with 10% in 2006–07 and 7% in 2005–06.

The evidence suggests a change in who is likely to be responsible for bullying or harassment. This year, the percentage of employees who reported experiencing harassment by a supervisor declined from 42% to 35%, while the percentage of employees who reported experiencing it from someone more junior than them increased from 8% to 13%.

One other significant change in employee survey data in this area is the relative decline of employees who reported experiencing harassment or bullying by clients, which was identified as a major issue in 2007–08. This year the percentage of employees who experienced this type of bullying or harassment declined from 7% in 2007–08 to 4%.

Establishing the real extent of harassment or bullying in the APS remains a complex issue, particularly given the discrepancy between the number of employees who report experiencing it and the relatively small number of suspected cases that are actually investigated. This may be partly the result of confusion about what bullying or harassment actually involves. The Commission’s publication Respect: Promoting a Culture Free from Bullying and Harassment in the APS (revised and re-released in May 2009) emphasises the need to distinguish between bullying and harassment and legitimate management action. Activities such as the courteous expression of differences of opinion, providing constructive and courteous feedback, counselling or advice about work-related behaviour and performance are an important role of management and support a performance culture. Carried out properly, they do not amount to bullying or harassment.

Reporting suspected misconduct

As noted in 2007–08, internal reporting of suspected misconduct is vital to the integrity of the APS.

Table 8.3 indicates that conduct identified by colleagues remains one of the most common means of reporting suspected misconduct to agencies, although the percentage of suspected misconduct identified through reporting by colleagues has declined from 38% in 2007–08 to 22% this year.

Ten per cent of APS employees surveyed this year reported witnessing another APS employee engaging in behaviour they considered a serious breach of the Code of Conduct; a further 3% said they were not sure. This outcome is broadly consistent with that reported in earlier years. Of the employees who reported having seen a serious breach, 41% said they did not report it.

The open-ended comments employees provided to the survey presented a variety of reasons for not reporting including, in some cases, because the matter was resolved informally. However, four other reasons for non-reporting emerged from the comments, they were:

• Fear of upsetting workmates and colleagues: ‘because it would have strained relationships in the workplace’.
• The suspected misconduct did not directly involve the employee and they did not, therefore, consider it their responsibility to report it: ‘I didn’t think it was my role to report it. Something their supervisor needs to deal with.’
• Fear of retribution, particularly if the suspected misconduct involved senior managers. As one respondent put it: ‘career killer for me’.
• Doubt that any action would be taken: ‘senior leaders knew about it but decided to tolerate it’.

The duty of an APS employee to act with integrity and with the highest ethical standards imposes an obligation on all employees to report suspected misconduct.

This appears to be an issue for agencies to revisit when considering their own policies and procedures. They need to examine what they are doing to promote a workplace culture that encourages the proper reporting of misconduct, including the support they provide to employees who make reports.

Part of the solution to this might lie in better communicating how reports received are acted upon. This year, employees were asked for the first time whether, if they had reported suspected misconduct, they were satisfied with the outcome of the subsequent investigation. Fifty-three per cent of employees reported being dissatisfied with the outcome.

This figure should perhaps be no surprise. A review of management of Code of Conduct investigations the Commission conducted revealed that agencies believed they were constrained, by the Privacy Act 1988, from discussing investigation outcomes with the employee who lodged the complaint. The Commission has since issued guidance material (Circular 2008/3) addressing this issue directly and it may be that it will take some time to turn around the established perception.

Disclosure of information

Public Service Regulation 2.1, which is part of the APS Code of Conduct (section 13(13)), requires APS employees not to disclose information where ‘it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs’. It also forbids disclosure of confidential information.

The Regulation does allow some exceptions, including where the disclosure has been authorised by an agency head and where the information is already lawfully in the public domain.

Failure to comply with Regulation 2.1 is a breach of the APS Code of Conduct and may also be an offence under section 70 of the Crimes Act 1914. A breach of section 70 is punishable by up to two years’ imprisonment.

The available evidence suggests that unauthorised disclosure of information is not common in the APS. In 2008–09, only 10 employees were investigated for suspected leaks and a breach of the Code of Conduct was found in only three cases. In practice, it appears that almost all public servants understand their professional obligations to maintain confidences and restricted material, and act appropriately.

It is not commonplace for public servants to meet with non-government parties to brief them on issues or policies, and it should never happen without the knowledge and consent of their agency head or Minister. By convention, requests for a briefing on a policy or program by non-government members of parliament are first forwarded to the relevant minister’s office for advice on handling.

On 3 July 2009, the Commission issued Circular 2009/4 reinforcing public servants’ responsibilities in managing official information and their interactions with the government and parliament. Among other things, the circular draws attention to relevant information in the Commissioner’s guidelines, APS Values and Code of Conduct in Practice: a Guide to Official Conduct for APS Employees and Agency Heads.

Government 2.0

The Australian Government, in common with governments overseas, is exploring how best to harness the power of the Internet to advance open, transparent government; and to work towards government that makes the best use of the skills and knowledge of citizens. In June 2009, the Hon. Lindsay Tanner, Minister for Finance and Deregulation, and Senator Faulkner jointly appointed a Government 2.0 Taskforce to examine and report on ways of achieving more open government.¹⁸

Web 2.0 extends the existing range of ways in which government and public servants communicate with the Australian public, from one-to-one conversations about citizens’ rights and responsibilities to more formal consultations with interested stakeholders on new policies or service delivery arrangements.

Good use of social media can help government understand, attract and respond to the needs and interests of particular audiences. It facilitates two-way communication with a potentially wider audience of community members with whom public servants can engage in developing policy and service delivery approaches and tap into ‘the wisdom of the crowd’.

There are particular challenges and risks involved in online communications. The ethical risks were captured by the then Australian Public Service Commissioner, Lynelle Briggs, in her February 2009 APS Leader to Leader address:

New communications systems—email, Facebook, YouTube, blogs— present a significant ethical challenge in several areas:

• It will be much trickier to manage perceptions of politicisation and of advocating government policies when public servants are in an online dialogue with the community, particularly when some input may need to be moderated by the public servant.
• The speed and breadth of online communication means that we can never be certain where it might end up or who might read it. A public servant might make a legitimate comment as a private citizen on some issue or other, and may find themselves on a website where these remarks are presented as official comment.
• It will also affect how we apply other key elements of the values, including the requirements to behave with respect and courtesy and without harassment, to protect confidentiality, to maintain accountability through recordkeeping, to make proper use of Commonwealth resources and to uphold the integrity and reputation of the APS. How we manage these and other values will take on another dimension when views can be spread very quickly and very widely through online media and can easily be subject to distortion and misrepresentation.¹⁹

The key to harnessing the opportunities and managing the risks of using Web 2.0 technologies is to provide enabling guidelines for APS employees, which give the maximum amount of flexibility while being consistent with the APS Values and Code of Conduct. The development of guidelines needs to include an appreciation of the practical issues facing agencies and individuals in this field and be regularly reviewed to reflect emerging issues.

The Commission, in conjunction with the Australian Government Information Management Office, developed interim online participation protocols in December 2008 (Commission Circular 2008/8). These protocols will be revised and new guidance released by the end of 2009.

Key chapter findings

Compared with other countries, available data suggests the APS performs well in terms of perceptions of the quality and independence of its public administration. The data also shows a public service that is used to working within a defined ethical framework. APS employees report a high level of awareness of the APS Values and Code of Conduct and, for the most part, are confident that both they and their colleagues at all levels act in a manner consistent with them.

Moreover, a key message from the data set out in this chapter is that misconduct in the APS is at very low levels. Only about three in a thousand APS employees were determined to have breached the Code last year. Misconduct is overwhelmingly characterised by acts of individual poor judgement rather than systemic misbehaviour, maladministration or corruption.

Agencies should not, however, be complacent. In particular, a large number of APS employees are reporting they are reluctant to report misconduct when they see it. Agencies need to look again at what they can do to encourage workplace cultures that support reporting misconduct as an element of good agency governance.

There is also the challenge of understanding and applying the ethical framework over a period of change and reform. Recognising that open, inclusive policy-making is crucial to sustaining public trust, the government has signalled its determination to strengthen public confidence in the APS as part of a larger commitment to an accountable, professional and transparent Commonwealth public sector.

The government has already implemented a revised set of Standards of Ministerial Ethics, codes of conduct for both ministerial advisers and lobbyists, and the Register of Lobbyists to strengthen the accountability of the executive and to clarify the roles and responsibilities of these key players. The data suggests agencies need to make a greater effort to increase awareness of these measures, even though many of the principles within them may be familiar to experienced public servants.

The reform process is also focussing on strengthening citizen involvement and improving access to information. To this end, the government has embarked on an extensive program of review of the legislation governing public administration, including privacy, freedom of information, whistleblowing and secrecy.

These changes, coupled with the pressures and opportunities arising from increased government engagement with citizens, and using new platforms such as Web 2.0 to support that engagement, will test the resilience of the values-based culture of the APS. Changing laws will not, in itself, achieve the government’s objectives. Reforms will need to be accompanied by genuine attitudinal change in the people who work with them so the new rules become real. This will provide another opportunity for public servants to show their commitment to being responsive to government while serving the public professionally.

NEXT » Management Advisory Committee agency achievements