Section 9: Reporting suspected misconduct

9.1 Summary

9.1.1 Most public servants meet the standards set out in the Australian Public Service (APS) Values, Employment Principles and Code of Conduct (the Code). Sometimes, however, APS employees do not act in a way that is consistent with expectations.

9.1.2 Managers and supervisors are often best placed to observe any indicators of behaviour inconsistent with the Code. They are also key to setting an ethical tone in their teams and building the trust that is necessary for employees to report their suspicions or concerns.

9.1.3 APS employees discharge their duties most effectively where the environment in which they operate has clear and robust internal accountability arrangements and a strong culture of personal and organisational integrity.

9.1.4 APS employees have a responsibility to report misconduct, and not to turn a blind eye to unacceptable behaviour. How they should report misconduct will depend on the circumstances. More serious misconduct should normally be reported and dealt with in a more serious and more formal way. In some cases, especially those involving relatively minor matters, it may be most appropriate to raise the matter directly with the employee concerned in the first instance. This will be a matter of judgement. If in doubt employees should discuss the matter with their manager or someone in authority in their agency.

9.2 Obligation to report

9.2.1 Clause 1.3(f) of the Australian Public Service Commissioner's Directions 2013 (the Directions) require all APS employees, having regard to their duties and responsibilities, to report and address misconduct and other unacceptable behaviour by public servants in a fair, timely and effective way. Failure to report suspected misconduct may itself warrant consideration as a potential breach of the Code.

9.2.2 Employees may also have reporting obligations under their agency's fraud control guidelines and other agency instructions. An agency's arrangements under the Work Health and Safety Act 2011 may require employees to report safety issues or hazards including workplace bullying.

9.3 Making a report

9.3.1 Usually, an employee who observes something they believe may amount to misconduct, including criminal behaviour, should report it within the agency. The agency may need to report an incident of criminal behaviour to the appropriate law enforcement body. There may be circumstances where, even after the employee has reported an incident of criminal behaviour to their agency, that employee has an obligation to report the incident to the appropriate law enforcement agency. If in doubt about whether to report the matter, for example to the relevant police authority, employees may contact that authority, seek further advice from their agency or seek advice from the Australian Public Service Commission's Ethics Advisory Service.

9.3.2 In most cases it will be appropriate for an employee to bring suspected misconduct to the attention of their line manager in the first instance. If the line manager is involved in the matter, the report can be made to another senior employee or to nominated points of contact—these arrangements are generally set out in agency policies and procedures for reporting misconduct.

9.3.3 A report made to a supervisor, authorised officer [21] or agency head may also be a disclosure under the Public Interest Disclosure Act 2013 (PID Act). The PID Act recognises the concern some employees may have that they will be victimised or discriminated against for reporting suspected misconduct. It provides legislative protection for disclosers and sets out agencies' responsibilities in this regard. Further information about the PID Act is available on the Commonwealth Ombudsman's website.

9.3.4 When making a report an employee must ensure they uphold the APS Values, the Code, and all privacy and non-disclosure law—see also Section 4: Managing information. An employee should avoid discussing the matter after lodging the report other than where it is necessary for the report to be considered or investigated.

9.3.5 A report of suspected misconduct may contain allegations that are misconceived, without substance, or vexatious. Where there are concerns about the way, or the circumstances, in which a particular employee has reported misconduct, the report may in itself constitute a breach of the Code.

9.3.6 Employees who report suspected misconduct outside the PID Act are legally protected from discrimination or victimisation. Retaliatory action taken against someone who in good faith has reported suspected misconduct could be a potential breach of a number of elements of the Code, including the requirements to:

1. behave with integrity in connection with employment
2. comply with all applicable Australian laws
3. treat everyone with respect, courtesy and without harassment.

9.3.7 In general, these protections also extend to witnesses in misconduct cases.

9.3.8 It is often necessary to reveal the identity of the complainant or a witness in order to provide the person under investigation with the information they need to respond fully to the allegations. Even if the agency considers it is not necessary to reveal identities of complainants and witnesses during the course of its own investigation, the identities may be revealed on review by the Merit Protection Commissioner, the Fair Work Commission, in related criminal proceedings, or in the context of a legal challenge to the decision.

Misconduct affecting an employee personally

9.3.9 It is open to an employee to apply to their agency head, and in some circumstances to the Merit Protection Commissioner, for a review under section 33 of the Public Service Act 1999 (PS Act) of an action relating to their employment. Under the PS Act, an action includes a failure to act. An employee may apply for a review of a failure to act on a report of misconduct they have made into alleged behaviour that affects them personally. Time limits apply to the making of applications. Further information is available from the Merit Protection Commissioner's website.

9.4 Reporting suspected misconduct by an employee in another agency

9.4.1 An employee may witness suspected misconduct by an employee in another APS agency. In such cases, reports may be made to the agency head of the person suspected of misconduct who will then decide whether to investigate the matter.

9.4.2 The report may also be able to be made as a public interest disclosure under the PID Act. The Commonwealth Ombudsman can provide information about how to make a disclosure in these circumstances.

9.5 Reporting integrity risks and suspected misconduct that relates to an employee's engagement

9.5.1 Prospective employees must disclose any information about them that may indicate a heightened integrity risk, including prior misconduct. See Section 3: Relationships in the workplace for more information about honesty in recruitment.

9.5.2 An employee who becomes aware that another APS employee has behaved dishonestly or failed to act with integrity in connection with their engagement should report this as suspected misconduct. Section 15(2A) of the PS Act allows action to be taken in relation to APS employees who have, before engagement, provided false or misleading information, or otherwise failed to act with honesty or integrity in connection with their employment.

9.6 Reporting suspected misconduct by a former employee

9.6.1 Agencies may decide to continue, or initiate, an investigation into suspected misconduct of a former employee. A finding of breach of the Code may be made after an employee has separated from the APS. In deciding whether to pursue a matter, agency heads may consider factors such as the availability of evidence; the scope for giving the former employee an opportunity to comment on the case against them; the costs associated with any investigation; and the risks of damage to the reputation of the agency or APS if the matter is not investigated.

9.6.2 A report of suspected misconduct by a former employee may also attract the responsibilities and protections of the PID Act.

9.7 What will happen to a report of suspected misconduct?

9.7.1 How a matter will be investigated will depend on the circumstances. The procedures made under section 15(3) of the PS Act by individual agencies relating to handling misconduct are generally available on agency websites. Information about the investigation process can be found in the Australian Public Service Commission's guidance on Handling Misconduct.

Agency policies and procedures

1. Agencies are encouraged to provide and promote mechanisms for reporting suspected misconduct.
2. Agencies may have more than one way for their employees to report suspected misconduct because of the complexity of their operations or to manage particular types of suspected misconduct. Employees may be more comfortable reporting concerns if they can do so relatively informally and have the option of discussing their concerns with the person to whom they are reporting.

Footnotes

[21] An authorised officer appointed under the Public Interest Disclosure Act 2013.