Chapter 2: The APS Conduct Framework

2.1. Trust is at the heart of public service. In Australia’s democratic system, the government is trusted to represent the community and act in its best interests, and is accountable to it at elections. The APS, in turn, is trusted to serve the public good by advising the elected government and implementing its policies professionally and impartially.

2.2. To earn the trust of the community, the government, and the parliament, the APS and its employees are required to meet high standards of integrity and conduct. For the APS as an institution, these are expressed in the Values and Employment Principles; for individual employees, they are also distilled in the elements of the Code. Among other things, the Code requires employees at all times to behave in a way that upholds the Values and Employment Principles, and the good reputation of their agency and the APS.

2.3. Together, the Values, Employment Principles, and Code make up the APS conduct framework. They set a consistent high standard of performance and behaviour for each public servant, every agency, and the entire institution of the APS.

The APS Values

2.4. The Values are set out in s.10 of the PS Act. They articulate the identity of the APS as an institution, and form the building blocks of a professional and trustworthy public service.

2.5. The Commissioner’s Directions (ss.13–17) explain the scope and application of the Values. These provisions set out what is required of each employee, having regard to their duties and responsibilities, in upholding each of the Values.

2.6. Among other things, these requirements include the following under the ‘Ethical’ Value (s.14 of the Commissioner’s Directions), which are especially relevant to the consideration, reporting, and management of employee conduct matters:

• acting in a way that models and promotes the highest standard of ethical behaviour
• having the courage to address difficult issues
• acting in a way that is right and proper, as well as technically and legally correct or preferable
• reporting and addressing misconduct and other unacceptable behaviour by public servants in a fair, timely, and effective way.

APS Employment Principles

2.7. The Employment Principles are set out in s.10A of the PS Act. They are a statement of standards for the APS as an employer, and provide for employment arrangements that are fair and transparent, and workplaces that are diverse, inclusive, and safe.

Effective performance

2.8. Among other things, the Employment Principles require effective performance from each employee (s.10A(1)(d) of the PS Act). The Commissioner’s Directions set out the obligations of employees, supervisors, and agency heads in achieving effective performance (ss.51, 50, and 49 respectively). These provisions recognise that behaviour and performance are closely linked, and make clear that the way in which employees and agencies work is just as important as what they deliver.

2.9. The provisions relating to employees and supervisors include behavioural elements, and those relating to agency heads include establishing clear expectations and fair processes to enable effective performance by employees.

2.10. Where an employee has engaged in behaviour that raises concerns about their performance or their conduct, s.52 of the Commissioner’s Directions requires agency heads to have regard to standards and guidance issued by the Commissioner if they are considering a misconduct investigation in relation to the matter.

A fair system of review

2.11. The Employment Principles also provide that the APS makes fair employment decisions with a fair system of review (s.10A(1)(a) of the PS Act). Section 33 of the PS Act provides for employees to seek review of actions and decisions relating to their employment, including the right to seek independent review by the MPC of a breach determination or a sanction decision they believe to be unfair, unreasonable, or otherwise flawed.

The APS Code of Conduct

2.12. The Code is set out in s.13 of the PS Act and regulation 2.1 of the PS Regulations.

2.13. The Code provides specific behavioural requirements for all employees. In complying with these requirements, employees demonstrate that they as individuals can be trusted to act in the public interest.

Who is bound by the Code?

All APS employees engaged under the PS Act

2.14. This includes ongoing and non-ongoing employees, SES employees, and heads of overseas missions (ss.7, 13, and 39 of the PS Act). It generally does not apply to locally engaged employees in overseas missions—these employees may seek advice from their head of mission about applicable conduct requirements if in doubt.

2.15. In addition:

• The Code extends to behaviour when applying for employment in the APS
  Under s.15(2A) of the PS Act, an employee can be found to have breached the Code if they provided false or misleading information, wilfully failed to disclose relevant information, or otherwise failed to act with honesty and integrity in connection with their engagement.
• Former employees can be found to have breached the Code
  APS agencies may investigate the conduct of an individual who is no longer an employee, and determine a breach, if the conduct took place when the person was an APS employee.

All APS agency heads

2.16. This includes secretaries of departments, heads of executive agencies, and heads of statutory agencies (s.14 of the PS Act).

Some statutory office holders

2.17. The Code applies to certain statutory office holders to the extent that they supervise or have a day-to-day working relationship with employees (s.14 of the PS Act and regulation 2.2 of the PS Regulations).

Additional obligations of SES and agency heads

2.18. In addition to their personal obligation to uphold the Values and Employment Principles, and comply with the Code, agency heads and SES employees have broader duties as role models and advocates of APS integrity.

• Agency heads are required to uphold and promote the Values and Employment Principles (s.12 of the PS Act).
• SES employees are required, by personal example and other appropriate means, to promote the Values and Employment Principles and compliance with the Code (s.35(3)(c) of the PS Act).

Conduct requirements for contractors

2.19. Individuals who perform work for the APS on a contractual basis are not APS employees under the PS Act, and are subject to the arrangements in their contracts. Agency s.15(3) procedures do not apply to contractors. It is open to agencies to embed specific conduct requirements in contracts, including requirements that are broadly equivalent to those of the Code, having regard to the nature of the work to be performed.

2.20. Agencies should ensure that contractors in roles that are equivalent to SES positions understand their ethical obligations, including the expectation to model and promote the highest standards of integrity in the unique context and operating environment of the APS. SES-equivalent contractors should be held to standards of behaviour similar to those set out in the Code.

2.21. If in doubt, agencies or contractors should seek their own legal advice on the application and enforcement of these standards.

Agency-specific conduct requirements

2.22. Some agencies choose to promote their own set of expected behaviours. For example, agencies may identify specific behavioural standards for employees based overseas, or in cases where the agency has both APS and non-APS employees.

2.23. These standards apply in addition to the Code, rather than replacing it. When an employee does not comply with an agency-based set of expected behaviours, the agency needs to be able to link the conduct in question to a particular element of the Code if it is to form the basis for misconduct action. For example, where an agency-based set of behaviours constitutes a lawful and reasonable direction by the agency head to all employees in the agency, an infringement can be enforced if it is a breach of s.13(5) of the PS Act.

Scope of the Code

2.24. Some elements of the Code explicitly apply ‘in connection with employment’; in others, a connection is implied; while still others apply ‘at all times’. There is a limit to the extent to which agencies can take action in response to employees’ private behaviour—a reasonable connection is needed between the behaviour and the employee’s APS employment.

In connection with APS employment

2.25. The term ‘in connection with employment’ is not confined to the performance of job-related tasks or other conduct in the course of employment. Employees are required to abide by the Code when engaged in activities outside work hours and away from the workplace where there is reasonable connection with their APS employment. This includes, for example, on work-related travel, during training, or at work social events such as Christmas parties.

At all times

2.26. APS employees are entitled to a private life. However, the Code may apply to behaviours that, on their face, appear to be largely private.

2.27. The term ‘at all times’ is used in s.13(11) and s.13(12) of the PS Act, and provides for broader application to conduct outside of work hours than most other elements of the Code.

2.28. Under s.13(11), employees must at all times uphold the Values and Employment Principles and behave in a way that upholds the integrity and good reputation of their agency and the APS. This means that APS employees’ behaviour outside work is subject to the Code to the extent that:

• it could reasonably be viewed as failing to uphold the integrity and good reputation of the employee’s agency or the APS, or
• it could reasonably call into question the employee’s capacity to comply with the Values and Employment Principles in their work—for example, their ability to be impartial or respectful.

2.29. Under s.13(12) of the PS Act, APS employees on duty overseas must at all times behave in a way that upholds the good reputation of Australia. An employee on duty overseas, who is on a posting or travelling for work purposes, is representing Australia and may be identifiable as an Australian Government employee even when not undertaking official duties. This means that a broad range of activities by an APS employee while overseas on duty may fall within the provisions of the Code.