Review of breaches of APS Code of Conduct
Merit Protection Commissioner
The Merit Protection Commissioner is an independent statutory office holder whose functions include conducting reviews of employment-related decisions and other actions affecting individual Australian Public Service (APS) employees and, in some circumstances, former employees.
The Merit Protection Commissioner is assisted by staff of the Australian Public Service Commission (the Commission).
Independent review by the Merit Protection Commissioner is a cost-effective way of resolving employment disputes and reduces the risk, and costs, of legal challenge. It also encourages accountability and promotes better and more consistent employment decision-making in the context of a devolved and principles-based employment framework.
The reasons provided for review recommendations assist employees to understand and accept outcomes and encourage the restoration of productive workplaces.
Breaches of APS Code of Conduct
The Code of Conduct, together with the APS Values and Employment Principles, set out the standards of personal behaviour expected of APS employees and provide the public with confidence in the way public servants exercise authority when meeting government objectives.
If, after an investigation by their agency, an employee is found to have breached the Code, a sanction, ranging from a reprimand to termination of employment, may be imposed. Agencies may also make a determination that a former employee has breached the Code of Conduct, for behaviours the former employee engaged in while an APS employee.
Review of Code breaches and sanctions
Generally reviews of employment actions and decisions are undertaken first by the agency (primary review) with the right of a secondary review by the Merit Protection Commissioner (see the brochure Review of Actions).
In the case of findings relating to Code of Conduct breaches,and the sanctions imposed as a result of those findings, the legislation provides for employees, and former employees, to apply for review directly to the Merit Protection Commissioner.
An employee may be suspended from duty while their agency investigates whether or not they have breached the Code of Conduct. An application to review a decision to suspend an employee from duty must be made in the first instance to the employee’s agency head. The Merit Protection Commissioner is able to conduct a secondary review once the matter has been considered by the agency.
A decision to terminate an employee’s employment as a sanction for breaching the Code is reviewable by the Fair Work Commission not the Merit Protection Commissioner.
Making an application for review does not prevent an agency from proceeding with an action, or implementing a decision, that is subject to a review application.
Who is eligible?
APS employees, with the exception of the Senior Executive Service (SES), are eligible to apply for review of a decision that they have breached the Code of Conduct and for any sanctions imposed for that breach. A former non-SES employee may also seek a review of a determination that they have breached the Code of Conduct.[1] The review procedures are the same for an APS employee and a former employee.
Time limits for review applications
Employees investigated for suspected misconduct may face two decisions—a decision that they have breached the Code of Conduct and decision to impose a sanction. An employee needs to make a separate application for review of each decision.
The application for review of the breach determination must be made within 60 days of the agency determining that an employee has breached the Code. The application for review of the sanction decision must be made within 60 days of the imposition of the sanction.[2]
Employees are advised not to wait until the sanction has been imposed before applying for review of the breach determination. Where the sanction decision-making is delayed, this can result in the employee being out of time to make an application for review of the breach decision. This significantly limits the scope of the review conducted by the Merit Protection Commissioner.
Former employees have 60 days from the date of the breach determination to make an application for review by the Merit Protection Commissioner.
If an application is received outside the 60 day timeframe it will only be reviewed if the Merit Protection Commissioner considers there are exceptional circumstances to explain why the applicant failed to make the application for review within time.[3]
How to apply for review?
An application for review to the Merit Protection Commissioner should be addressed to the Review Team (See Further information)
All applications to the Merit Protection Commissioner must:
- be made in writing (there are forms available on the Commission website)
- state why the review is sought
- if a particular outcome is sought, indicate the outcome sought.
How will theapplication for review be handled?
Reviews conducted by the Merit Protection Commissioner are required to have due regard to procedural fairness, be conducted in private and be finished as quickly, and with as little formality, as a proper consideration of the matter allows. The Merit Protection Commissioner’s Privacy Policy is available on the Commission’s website.
Staff assisting the Commissioner will acknowledge the application, advise the applicant whether it has been accepted and ask the agency for copies of all relevant papers. The agency will be asked to provide the applicant with a copy of the material provided to the Merit Protection Commissioner.
In some cases, the review may be conducted solely by an examination of the papers.
Where necessary, the reviewer may make further enquiries by seeking additional information from the agency and by interviewing the applicant and/or other persons. Interviews will be conducted over the telephone.
While an applicant is welcome to have a person support them they are not able to be represented by another person. If an applicant wishes to have representation, they need to make a formal request to the Merit Protection Commissioner stating the reasons.
The review will address:
- whether the agency’s procedures for determining breaches of the Code of Conduct comply with Chapter 6 of the Australian Public Service Commissioner’s Directions (in broad terms, this requires agenciesto observe procedural fairness)
- whether the agency substantially complied with those procedures and with the requirements of procedural fairness
- whether there is enough evidence that the applicant committed the act or acts
- if there is, whether the act or acts amounted to a breach of the Code of Conduct
- if they did, whether the sanction imposed on the applicant was appropriate in the circumstances (APS employee only).
Outcome of the review
The Merit Protection Commissioner can make recommendations to the agency head about whether or not the applicant has engaged in misconduct and (in the case of APS employees) whether the sanction imposed was the appropriate sanction. The Merit Protection Commissioner cannot impose an outcome or decision on the agency.
When the review is finished the applicant will be advised of the result and the Merit Protection Commissioner’s recommendation. This will usually be in the form of a written report which states the reasons for the recommendation.
The Merit Protection Commissioner may recommend that the agency confirm its original decision. On the other hand, if the Merit Protection Commissioner considers that the decision under review was in some way unreasonable or inappropriate, the recommendation may be that the agency:
- set aside the decision and consider whether the relevant process should be re-done, before another delegate
- vary the decision
- change its procedures.
Recommendations to vary or set aside an agency decision are not made lightly. Such recommendations usually reflect either substantial procedural flaws, which mean the outcome was likely to have been unfair to the employee, or a fuller consideration of the evidence and the employee’s case.
The Merit Protection Commissioner expects agencies to accept review recommendations. However, if the Merit Protection Commissioner is not satisfied with the agency’s response to a recommendation, the Commissioner may report the matter to the relevant Minister, the Prime Minister or the Parliament.
What if the review applicant is still not satisfied?
An applicant has no further right of administrative review under the Act or the Regulations. To take the matter further, they would need to apply to a court for judicial review, under the general law or the Administrative Decisions (Judicial Review) Act 1977. In such cases, it would be prudent to seek independent legal advice.
Further information
Further information is available at:
The email address for the review team is .
Contact details for the review team can be found at:
[1] Division 7.3 of the Public Service Regulations 1999 (the Regulations)
[2] Regulation 5.23(4)
[3] See Regulation 5.23(5)