Code of Conduct inquiries by the Merit Protection Commissioner

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Code of Conduct inquiry by the Merit Protection Commissioner: information for current and former employees

Why has the Merit Protection Commissioner been asked to conduct this inquiry?

Your agency head (or former agency head) has asked the Merit Protection Commissioner to inquire into and determine whether you have breached the APS Code of Conduct.

The Merit Protection Commissioner is able to do this under Section 50A of the Public Service Act 1999.

Why am I being asked to give consent?

The Merit Protection Commissioner can only undertake the inquiry if you give your consent in writing.

It is important that you understand your rights and options before you give your consent.

In particular non-SES employees need to be aware of the effect of giving consent on your right to a review of the decision.

What if I don’t give consent?

Your agency may still conduct its own inquiry of the allegations about your behaviour.

If your agency conducts its own inquiry, the inquiry will be under your agency head's procedures for investigating and determining a breach of the Code of Conduct.

What does this mean for my review rights?

If the Merit Protection Commissioner conducts an inquiry and makes a decision you cannot seek review of that decision under the Public Service Act 1999.

There are other review or dispute resolution bodies that have jurisdiction about workplace issues. These include the Fair Work Commission and the Australian Human Rights Commission.

The Merit Protection Commissioner will not make a decision about a sanction. Your agency head decides what sanction, if any, will be imposed.

If you are a non-SES employee, you can apply to the Merit Protection Commissioner for a review of your agency's sanction decision.

Who will conduct the inquiry?

The Merit Protection Commissioner appoints an inquiry officer to conduct a fair and impartial inquiry.

The inquiry officer has a thorough knowledge of the relevant law and procedures.

The Merit Protection Commissioner (or delegate) considers the evidence gathered in the Inquiry and decides whether or not you have breached the Code of Conduct.

How will the inquiry be conducted?

The Merit Protection Commissioner has established APS procedures and Parliamentary Service procedures to:

  • conduct an inquiry and
  • decide whether an employee or former employee has breached the Code of Conduct.

What decision will the Merit Protection Commissioner make?

The Merit Protection Commissioner (or delegate):

  • decides whether or not you have breached the Code of Conduct—your agency will be bound by the decision.
  • does not make any decision or recommendation about sanction if you are found to have breached the Code of Conduct.

If your agency makes a decision about sanction, an existing non-SES employee retains a right to apply to the Merit Protection Commissioner for review of a sanction decision.

In this situation, the Merit Protection Commissioner ensures that staff involved in reviewing any sanction resulting from a breach finding by her (or her delegate), has not been involved in the inquiry.

Can an individual appeal a decision?

The Public Service Act Regulations exclude such decisions from review (Schedule 1 Item 4A).

  • An employee or former employee must give informed consent before the Merit Protection Commissioner undertakes the inquiry.
  • If the Merit Protection Commissioner conducts an inquiry and makes a determination, the employee cannot ask the Merit Protection Commissioner to review the decision.
  • However any non-SES sanction decision made by the agency can be reviewed by the Merit Protection Commissioner under the Public Service Regulations.

If you are an employee or former employee, you have a right to apply to a court for judicial review of a Code of Conduct decision made by a decision maker.

In this case, that would be the decision of the Merit Protection Commissioner (or delegate).

Applications for judicial review generally concern technical questions of law, rather than the details of evidence considered in the decision.

I want more information about a Code of Conduct Inquiry?

Please contact the Merit Protection Commissioner Business manager.

Tel: (02) 8239 5317

Email: MPCbusiness@apsc.gov.au.

Further general information is available at the MPC resources page.

Code of Conduct inquiries by the Merit Protection Commissioner: information for agencies

Why use the Merit Protection Commissioner to undertake a Code of Conduct inquiry?

There are many reasons why an agency head may ask the Merit Protection Commissioner to conduct an inquiry, including:

  • requiring the Merit Protection Commissioner's expert knowledge of the APS and the Act
  • ensuring an impartial and credible inquiry and procedurally fair decision and
  • managing agency workload issues or sensitive, complex or contentious cases.

Who conducts an inquiry?

The Merit Protection Commissioner appoints an inquiry officer to conduct a fair and impartial inquiry.

Inquiry officers have extensive experience in making administrative decisions and/or senior Public Service management experience.

Before the inquiry, the person alleged to have breached the Code of Conduct can raise concerns about the inquiry officer.

The Merit Protection Commissioner (or delegate) considers the evidence gathered in the inquiry and decides whether or not the employee (or former employee) has breached the Code of Conduct.

How can the agency be sure about the standard of the inquiry?

Inquiry officers have:

  • a thorough knowledge of the relevant law and procedures
  • been thoroughly assessed by the Merit Protection Commissioner for their demonstrated track record as a senior decision maker.

Inquiry officers are supported by senior Merit Protection Commissioner staff. These staff have significant experience and subject matter expertise concerning the APS Code of Conduct.

Is there a procurement process to use this service?

No, an agency does not need a procurement process to use this service.

Exemption 2 from Division 2 of the Commonwealth Procurement Rules applies to this service. This enables entities to source such services directly from the Merit Protection Commissioner.

What is the role of the agency?

The agency has 3 main roles to play:

  • facilitate a prompt and efficient inquiry by providing contact details for the individual (and any witnesses), documents and other evidence.
  • provide information on the agency's policy framework, its guidance to staff on proper conduct and its operating environment.
    This includes the agency's risk consideration for particular types of conduct, such as corruption, privacy, bullying and harassment.
  • pay for the cost of the inquiry.

How will the inquiry be conducted?

The Merit Protection Commissioner has established procedures for conducting an inquiry and making a decision about whether an employee or former employee has breached the Code of Conduct.

What decision will the Merit Protection Commissioner (or delegate) considers

The Merit Protection Commissioner (or delegate) decides whether or not the person has breached the Code of Conduct—the agency will be bound by the decision.

 The Merit Protection Commissioner (or delegate):

  • does not decide or make a recommendation about sanction if the person is found to have breached the Code of Conduct.   
    This is because an existing non-SES employee retains a right to apply to the Merit Protection Commissioner for review of a sanction decision
  • ensures staff involved in reviewing any sanction resulting from a breach finding have not been involved in the inquiry.

Can an individual appeal a Merit Protection Commissioner (or delegate) decision

The Public Service Act regulations exclude such decisions from review (Schedule 1 Item 4A).

An employee or former employee must give informed consent before the Merit Protection Commissioner undertakes the inquiry.

If the Merit Protection Commissioner conducts an inquiry and makes a determination, the employee cannot ask the Merit Protection Commissioner to review the decision.

However any sanction decision made by the agency for a non-SES employee can be reviewed by the Merit Protection Commissioner under the Public Service Regulations.

If you are an employee or former employee, you have a right to apply to a court for judicial review of a Code of Conduct decision made by a decision maker. In this case, that would be the decision of the Merit Protection Commissioner (or delegate).

Applications for judicial review generally concern technical questions of law, rather than the details of evidence considered in the decision.

I want more information about a Code of Conduct Inquiry?

Please contact the Merit Protection Commissioner Business manager.

Tel: (02) 8239 5317

Email: MPCbusiness@apsc.gov.au.

Further general information is available at the MPC resources page.