DFAT Code of Conduct for Overseas Service

Introduction

1.1 Employees of the Department of Foreign Affairs and Trade (‘the Department’) travelling overseas on official business, including those on long-term postings, are required to provide an undertaking that they will comply with the Code of Conduct for Overseas Service (‘the Code’), which is underpinned by the Australian Public Service (APS) Code of Conduct. The Code provides guidance to Employees on their obligations under Section 13(12) of the Public Service Act 1999, which states that: ‘An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia’. 

1.2 All APS employees, because they serve the Government and the community at large, assume a position of trust together with ethical obligations. Australians have a right to expect from their representatives overseas a wholehearted and scrupulous commitment to the highest standards of behaviour. APS employees overseas are required to comply with the applicable laws of Australia and with all applicable regulations, directions and guidelines relating to their official and personal conduct.

1.3 The Code provides guidelines for Employees’ behaviour overseas, both personal and professional. In conducting themselves overseas, Employees are expected to use their good judgment and common sense. If any Employee is in any doubt about aspects of the Code or unsure about how to proceed, they are encouraged to seek guidance from senior colleagues or from the Conduct and Ethics Unit (CEU). Staff may also wish to consult the Australian Public Service Commission’s 2003 publication, APS Values and Code of Conduct in Practice: A guide to official conduct for APS employees and agency heads, which is available on the Commission’s website.

1.4 In the Code the term ‘Employee’ means an APS employee under the Public Service Act 1999. The Code applies to Employees on long-term postings, including Heads of Mission, those who are overseas on short-term missions and visits and those on leave without pay. It applies to Employees who are temporarily attached to non-APS bodies such as international organisations, foreign government agencies, non-government organisations and private-sector corporations.

1.5 The Code does not apply to honorary consuls and their staff, or to locally-engaged staff (LES) at Australian diplomatic or consular missions.  Honorary consuls and their staff are expected to observe the provisions in the Guidelines for Australian Honorary Consuls contained in the Consular Handbook. Separate guidelines on conduct for locally-engaged staff are issued under the authority of the Head of Mission in each location.

1.6 Breaches of the Code are regarded as a breach of Section 13(12) of the Public Service Act 1999 and will be handled in accordance with departmental procedures for handling breaches of the APS Code of Conduct. All management actions taken to address conduct issues in accordance with the Code will be subject to the normal requirements of procedural fairness.

Upholding Australia's Reputation

2.1 APS employees working overseas are seen as representatives of Australia, not only in the performance of their official functions but also in the manner in which they conduct themselves as private individuals. Regardless of their formal roles or responsibilities, their visibility and status as foreign officials means that their actions will be subject to a greater degree of scrutiny and public interest than they would be at home, and that an adverse perception of those actions may have an impact on Australia's reputation. Furthermore, Australian officials abroad may face dilemmas in the area of conduct and ethics which do not arise in Australia, in a range of social, cultural, financial or personal settings.

2.2  Employees who are on duty overseas have a duty to act at all times in a manner which upholds the good reputation of Australia, and which contributes to the good reputation of the Department and any Australian mission with which they are associated. The duty to uphold the good reputation of Australia is fundamental, and underlies the approach to particular principles of conduct overseas elaborated under the sub-headings below.  Members of an Employee’s household are also expected to uphold Australia’s reputation overseas.

Respect for the Law

3.1     In accordance with the ViennaConventions on diplomatic and consular relations, an Employee overseas must respect the law of the country to which he or she is posted, or in which he or she is travelling. An Employee mustcomply with any lawful and reasonable directions, and take into account any guidance issued by the Department and the Head of Mission, concerning the operation of local laws and regulations. Such directions and guidance will be of special relevance where there is a major difference between the requirements of local law and the law applying in Australia. Employees must give particular attention to laws and directions concerning bank accounts, currency dealings, purchase and disposal of motor vehicles and traffic infringements. Employees should also make arrangements to clear all outstanding locally incurred financial debts prior to completing their posting.

3.2     An Employee overseas must inform the Head of Mission as soon as practicable if the Employee, or a member of his or her household, comes to the notice of the local law enforcement authorities, except in matters of minor traffic infringements. Where the Employee is not attached to an Australian mission, he or she must also inform the Department. Where there appears to be a breach of local law, excluding minor traffic infringements, the Head of Mission should inform the Department immediately. These requirements will apply in all cases, including where the Employee may, but for diplomatic or consular status, have been charged with an offence.

3.3   Amendments to the Crimes (Overseas) Act 1964 extend the scope of the Act to apply extraterritorially to Australian diplomatic and consular employees (and their family members) serving overseas who have immunity from prosecution under local law. As a result, an Employee (or family member) who has committed a crime overseas could, in certain circumstances, be prosecuted in Australia rather than under local law. An Australian prosecution could only be commenced where: a similar crime exists in Australia; the person’s immunity from local jurisdiction has not been waived by the Minister for Foreign Affairs; and the Attorney-General (following consultation with the Minister for Foreign Affairs) has provided consent. The legislation also contains safeguards to ensure that individuals do not face prosecution for the same crime both overseas and in Australia. The amendments came into effect on 1 July 2003.

Cultural Sensitivity

4.1 Employees living and working overseas need to be culturally sensitive to the people of the host country and to be understanding of local customs, including those relating to personal behaviour.

4.2 An Employee overseas must respect laws and customs which are protective of local cultural property. An Employee must not purchase or export, or make arrangements in respect of the purchase or export of, any item of cultural property other than in accordance with local regulations, and with the knowledge and consent of the host authorities where this is required. The term ‘cultural property’ includes any antiquity, artefact, document, work of art or other chattel which is of national, historical, scientific, literary or artistic importance, and also includes any property the sale or export of which is, or may be, subject to local regulation.

4.3     The APS and Australia have a reputation for integrity which must not be undercut by any perception that an Employee might be influenced by bribes, gifts or other benefits. Subject to paragraph 4.4, an Employee overseas and members of his or her household must not accept gifts, benefits or hospitality or advantages that are offered in connection with the Employee's duties, status, power or authority. 

4.4   Where refusal of a gift is likely to give offence to an extent that could adversely affect Australia's interests, the Employee may accept the gift, but must promptly report it in accordance with Departmental procedures and advise the Head of Mission. The gift is regarded as the property of the Commonwealth until the Secretary's delegate determines its disposal. Gifts retained for any reason must be recorded in a register maintained for the purpose at the mission. Employees may retain gifts that exceed the value limits set for gifts from government or private sources subject to payment to the Department of the difference between the allowable limit and the wholesale value of the gift plus GST. An item classified as having little or no commercial value may be retained without the approval of the delegate, but the Employee must ensure that it falls within that classification as determined by the delegate. Money must never be accepted as a gift. 

Appropriate Personal Behaviour

5.1     An Employee must not engage in behaviour at any time which is likely to affect adversely an Employee's ability to perform his or her duties, or the ability of his or her mission to achieve its objectives, or which is likely to bring the mission or Australia into disrepute. In particular, Employees should be aware that sexual behaviour and use of alcohol and other substances are areas of particular sensitivity, where conduct may more easily be seen as offensive or be misinterpreted, and where particular attention to appropriate personal behaviour in the local context is therefore require. Where an Employee, including a Head of Mission, is in any doubt as to the applicability of this principle, he or she should seek advice from a supervisor and, if necessary, the CEU.

5.2   Where an Employee is engaged in any personal relationship which might have any of the adverse effects set out in Para 5.1, he or she must inform the Head of Mission. Heads of Mission must treat any information they receive in relation to such matters in accordance with the Privacy Act 1988, including, where appropriate, disclosure of information to FAS CMD.

5.3     An Employee must comply with the age of consent requirements specified for sexual activity in the law of the host country or the age of consent under the law of the Australian Capital Territory (16 years), whichever sets the greater age.

5.4     An Employee must not use, or be required to use, mission office facilities, staff or resources for the purpose of arranging or facilitating access to sex workers by any person, including visitors to the mission.

5.5     An Employee's personal conduct towards his or her domestic staff and locally-engaged staff must not be exploitative or be such as to lead reasonably to a perception of exploitation. This provision also applies to members of an Employee’s household. If a sexual relationship occurs, the Employee must inform the Head of Mission or, in the case of a Head of Mission, the FAS CMD.

Household Members

6.1     An Employee must notify the Head of Mission or, in the case of a Head of Mission, the FAS CMD, if he or she is planning to change the composition of his or her household. (A household includes the Employee's family and other dependants as defined in Volume Two of the Human Resources Manual). This does not replace the Employee's obligation, in conformity with the Security Instructions, to inform Diplomatic Security Branch of any change to their circumstances which may affect them or their security clearance.

6.2   Accompanying household members are not covered directly by the Code or subject to any obligations under the Public Service Act 1999 or Departmental directions in relation to conduct. It is nonetheless the case that because of their visibility and identifiability as part of an Australian official community, the actions of household members can have an impact on the reputation of Australia or of an Australian mission, and on the ability of Employees to perform their duties.

6.3     An Employee overseas must take all reasonable steps to ensure that members of his or her household are aware of local laws, culture and customs. In the event of behaviour by a household member which would breach paragraph 5.1 if committed by the Employee, the Employee must take all reasonable steps to ensure that the behaviour ceases. If the behaviour persists, the Employee must consult the Head of Mission. In cases involving members of the Head of Mission's household, Heads of Mission should consult with the FAS CMD. Incidents of such behaviour may, for operational reasons, require recall to Australia and possibly termination of the Employee's posting. In such an event, no blame will attach to the Employee by reason only of the behaviour of the member of his or her household.

Respect for Others and Tolerance of their Opinions

7.1     As in Australia, Employees overseas have a duty to contribute to the effective functioning of the workplace by treating their colleagues and the public with respect. Even more than in Australia, this will require particular attention to the possibly very different cultural backgrounds, beliefs and opinions of the people encountered in the workplace and outside it. This principle is central to good relations with locally-engaged staff and domestic staff, and is important to effective performance in all overseas environments.

7.2   Employees overseas must respect the cultural background of colleagues in the workplace (including locally-engaged staff), clients and domestic staff; not discriminate against, or harass such persons or any other person because of their sex, marital status, ethnicity, age, sexual orientation, disability or religious beliefs, or upon any similar ground; and respect the privacy of individuals when dealing with personal information.

Integrity in the Use of Diplomatic and Consular Status and Privileges

8.1   Diplomatic or consular status and privileges are conferred on an Employee overseas to facilitate the operation of the diplomaticor consular mission with which he or she is associated, and not for the personal benefit of the Employee or members ofthe Employee's household. An Employee must act with integrity in relation to any privilege he or she may have (such as exemption under international law from the payment of taxes or duties) as a diplomatic or consular representative. Goods obtained without the payment of duty under privilege are for personal use only, and must not be sold or used as payment of any kind to persons who do not have the relevant privilege. An Employee must not be required to use diplomatic privileges in a manner that would undermine the integrity of those privileges.

8.2   Employees overseas must not seek either to invoke or to waive diplomatic or consular immunity, which is a matter for decision by the Minister for Foreign Affairs. Employees should be aware that consular immunity can exist only in respect of consular acts.

8.3     It is important to note that Employees and members of their households have no immunity in relation to any professional or commercial activity in which they may engage outside of their official functions. Where a member of his or her household is planning to engage in any private gainful occupation, an Employee must consult the Head of Mission, who may decide that the Department and/or the host government be consulted. Where a member of the Head of Mission's household is planning to engage in any private gainful occupation, the Head of Mission should consult with the FAS CMD.

8.4 An Employee must take all reasonable steps to ensure that any activities by a member of his or her household who is carrying on a private gainful occupation do not give rise to a conflict or the perception of a conflict between the official duty of the Employee and the private interest of either the person or a member of his or her household. For example, they must not use the mission's address as that of their place of business. In cases where the mission address is the sole address, household members should use a private PO Box for carrying on a private business.

Authority of the Head of Mission

9.1     An Employee overseas must comply with any lawful and reasonable directions issued by the Head of Mission and must consult the Head of Mission about any personal or professional issue that gives rise to concerns relating to the operation of the mission in accordance with paragraph 5.1 above. In the event of a difference between an Employee and the Head of Mission over the lawfulness or reasonableness of a direction, either may refer the matter to the FAS CMD for decision. Pending the Department's decision, the Employee is expected to comply with the written directions of the Head of Mission.

9.2     An employee of an agency different to that employing the Head of Mission is subject to the overall management and control of his or her agency while overseas, but is subject to the direction of the Head of Mission on any matters within that employee's area of responsibility that could affect Australia's bilateral relations with the host government, the administration of the mission or the good reputation of the mission or Australia in the host country.

9.3     In the event of any difference between a Head of Mission and any such employee concerning the extent of the Head of Mission's authority, either may request their employing agency to take up the matter with the employing agency of the other. Pending the resolution of any such differences by those agencies, the employee is expected to comply with the written directions of the Head of Mission.

Implementation

10.1   An undertaking indicating knowledge of and willingness to comply with the Code is a condition of approval for travel overseas, whether on short or long-term assignment, for all Employees.

10.2  Employees have an obligation to report apparent or alleged breaches of the Code to the Head of Mission and, where appropriate, to the FAS CMD or, if they prefer, directly to the CEU. Employees who make or investigate reports will be protected from disciplinary action or harassment in accordance with Section 16 of the Public Service Act 1999. Employees should also consult relevant departmental instructions on reporting breaches.

10.3  Where an Employee becomes aware of serious criminal misconduct, by another Australian who is not an APS employee, the Employee should report the matter to the Head of Mission, who will, in turn, consider the most appropriate course of action, including reporting the matter to local law enforcement authorities or the Australian Federal Police. Employees should be aware of potential conflict of interest where the person involved may subsequently become a consular client. Chapter 12 of the Consular Handbook on managing child sex complaints provides useful guidance in this respect.

10.4   Any failure to comply with the Code will be handled in accordance with departmental procedures for handling breaches of the APS Code of Conduct. In serious cases, an Employee may, for operational reasons, be recalled to Australia pending the outcome of an investigation. This would not be disciplinary action. Where an allegation relates to a Head of Mission, a report must be made to the FAS CMD.

10.5   The making of an allegation which is found to be without substance and which is knowingly false, vexatious or malicious, may be treated as a breach of the APS Code of Conduct.

10.6   In accordance with longstanding practice, the Department will pass to the Australian Federal Police any information which it can reasonably be suspected relates to an offence under applicable Australian law.