Chapter 9: What is Misconduct?

This chapter defines what constitutes misconduct - including failure to comply with codes of conduct and other lawful and reasonable directions; criminal and other unlawful behaviour; harassment, bullying and discrimination; fraud; and accepting or offering bribes.

Staff should contact the Conduct and Ethics Unit (conduct@dfat.gov.au) if they require clarification on the contents of this Manual or if they are uncertain about the ethical implications of a proposed course of action.

9.1 Misconduct

9.1.1 Misconduct refers to any action or behaviour determined to be in breach of the APS Values or Employment Principles, the APS Code of Conduct, the LES Code of Conduct in place at a post or the DFAT Code of Conduct for Overseas Service. To ensure procedural fairness and the presumption of innocence, any such action or behaviour must be referred to as alleged misconduct until a determination is made in accordance with procedures set out in Chapter 11 of this Manual. Procedures for reporting alleged misconduct are set out in Chapter 10 of this Manual.

9.1.2 In broad terms, an APS employee or a contractor whose conduct does not comply with an element of the APS Values or Employment Principles, the APS Code of Conduct or the DFAT Overseas Code of Conduct can be determined to have committed misconduct. The same principle applies to LES employees whose conduct does not comply with an element of the LES Code of Conduct in place at their post.

9.1.3 Misconduct can vary from serious (e.g. large scale fraud, theft, sexual harassment and leaking classified information) to less serious (e.g. a single, uncharacteristic angry outburst or use of the agency e-mail system to send an inappropriate and potentially offensive non-work related e-mail to friends).

Failure to Comply with Lawful and Reasonable Directions

9.1.4 The APS Code of Conduct and the standard LES Code of Conduct require staff to comply with any lawful and reasonable direction given by someone in the department or post with authority to give the direction. Accordingly, failure to comply with departmental policies (including the directions in this Manual, in other departmental manuals and in Administrative Circulars) may constitute misconduct. Failure to comply with the lawful and reasonable directions of supervisors, superiors or others in authority may also constitute misconduct.

Criminal and Other Unlawful Behaviour

9.1.5 The APS Code of Conduct requires staff to comply with Australian laws. The standard LES Code of Conduct and the DFAT Code of Conduct for Overseas Service require staff to comply with local law and applicable Australian laws overseas. Accordingly, criminal and other unlawful behaviour by staff in connection with official duty may constitute misconduct.

9.1.6 Criminal and other unlawful behaviour by staff in private and outside official duty may also constitute misconduct. The APS Code of Conduct requires staff at all times to uphold the good reputation of the APS and (while on duty overseas) to behave in a way that upholds the good reputation of Australia. The standard LES Code of Conduct requires LES employees at all times to uphold the good reputation of Australia and their post.

9.1.7 Where a staff member has, or is alleged to have, engaged in criminal or other unlawful behaviour, the department may implement procedures set out in Chapter 11 of this Manual for managing alleged misconduct. The department may do so in addition to any normal criminal investigations and proceedings by relevant law enforcement authorities outside the department.

Case Study — Misconduct and Criminal Behaviour

Following an official embassy function I drove a mission vehicle home and I may have been over the legal alcohol limit. Is this a breach of the APS Code of Conduct or the DFAT Code of Conduct for Overseas Service?

If you break the local law while overseas on posting, this may not just be a criminal offence but would also likely be a breach of the APS Code and the Overseas Code. The standard of behaviour expected by you while serving overseas is very high. You are required to behave in a way that upholds the good reputation of Australia at all times (even after official work hours).

If you were caught by local authorities driving over the legal alcohol limit, you must inform your HOM/HOP as soon as practicable and your HOM/HOP must inform the department immediately. You should also be aware that if you have committed a crime overseas, you could in some cases be prosecuted in Australia rather than under local law.

If the same situation occurred in your home state while you were driving a private vehicle, it would be a criminal matter, but it may also represent a breach of the APS Code if your actions damaged the reputation of the APS. You should also be aware that breach of any Australian laws may additionally affect your suitability for a security clearance.

Sanctions for Misconduct

9.1.8 The sanctions which may be imposed on an APS employee determined to have breached the APS Code of Conduct or the DFAT Overseas Code of Conduct are set out in section 15(1) of the Public Service Act 1999. They include:

9.1.9 The sanctions which may be imposed on LES employees determined to have breached the LES Code of Conduct in place at their post are subject to the conditions of service at the post and should be considered in the context of local employment law. They may include reprimand or termination of employment.

9.1.10 The sanctions which may be imposed on contractors determined to have breached the APS Code of Conduct or the DFAT Overseas Code of Conduct are subject to provisions of their contracts. They include reprimand or termination of contract.

9.2 Harassment, Bullying and Discrimination

9.2.1 Harassment, bullying and discrimination are unacceptable in the workplace. The department does not tolerate these kinds of behaviour, as they undermine morale and productivity and, if not dealt with, can harm the well-being and performance of individuals and work units. Procedures for reporting alleged harassment, bullying and discrimination are set out in Chapter 10 of this Manual.

9.2.2 The APS Code of Conduct requires APS employees, when acting in connection with APS employment, to treat everyone with respect and courtesy, and without harassment (section 13(3) of thePublic Service Act 1999). Contractors must behave similarly in accordance with the provisions of their contracts. The standard LES Code of Conduct requires LES employees to treat members of the public and colleagues with respect and courtesy, and without coercion or harassment of any kind.

9.2.3 Where harassment, bullying or discrimination occurs, the department will take prompt action to address the specific concerns of the affected employee. Outcomes may range from mediation between the parties to lodgement of a formal grievance and associated investigation under the APS or LES Code of Conduct and other relevant legislation.

9.2.4 Where mediation and counselling may be effective, cases of harassment, bullying or discrimination may be managed by the Workplace Diversity Unit (WDU) in CMD. Depending on their nature and severity, alleged harassment, bullying or discrimination may be subject directly to procedures set out in Chapter 11 of this Manual for managing alleged misconduct.

9.2.5 The department maintains a staff welfare network to support employee's health and well-being. The department's workplace harassment, bullying and discrimination policy is set out in the Human Resource Manual.

9.3 Fraud

9.3.1 The Commonwealth Government defines fraud as dishonestly obtaining a benefit by deception and other means. This definition covers a range of actions including:

Case Study — Fraud

I am an administrative officer at post and have not managed to complete the Examination of Public Monies Check (5.1.1) for five months. Could this be fraud?

No. This does not amount to fraud. However, if public monies are missing as a result of your actions, you may have to re-pay the missing funds to the department (see section 15 of the Financial Management and Accountability Act 1997 for more detail). Failure to complete the examination of Public Monies Check (5.1.1) may constitute a breach of the APS Code of Conduct. Under the APS Code, you must act with care and diligence in the course of your APS employment. Your failure to complete the Public Monies Check may be considered as a failure to comply with a lawful and reasonable direction (i.e. required procedure).

9.3.2 The benefits referred to can be either tangible or intangible. Examples include:

9.3.3 Fraud can include using work-based internet for private gain; claiming a travel allowance for meals when they were provided as part of a conference package; or inaccurately entering leave plans. While these may constitute small amounts of money, overall they can represent a large loss to the department and an abuse of taxpayer money. Fraud diminishes the department's resources, reduces public confidence in the department, damages the Government's reputation in Australia and overseas, and can contribute to a loss in staff morale.

Case Study — Fraud

I am a supervisor and have reason to believe one of my staff members has been taking leave but not recording it. Is this fraud?

If the employee is aware of the correct procedures for recording leave and has intentionally been dishonest in recording leave, he or she may be investigated for fraud. This may also constitute a breach of the APS Code of Conduct or the applicable LES Code of Conduct. It is important that all employees behave honestly and with integrity in the course of their employment.

Fraud as a Criminal Behaviour and Misconduct

9.3.4 Fraud against the Commonwealth is criminal behaviour. An APS employee or contractor who commits fraud against the Commonwealth may be guilty of an offence under the Crimes Act 1914. LES who commit fraud against the Commonwealth may be guilty of an offence under the relevant local law.

9.3.5 The APS Code of Conduct requires staff to comply with Australian laws. The standard LES Code of Conduct and the DFAT Code of Conduct for Overseas Service require staff to comply with local laws overseas. So fraud against the Commonwealth may also constitute misconduct. Where a staff member has or is alleged to have committed fraud, the department may implement procedures set out in Chapter 11 of this Manual for managing of alleged misconduct. The department may do so in addition to any normal criminal investigations and proceedings by relevant law enforcement authorities outside the department.

9.3.6 Procedures for reporting alleged fraud are set out in Chapter 10 of this Manual.

How do I identify fraud?

9.3.7 Fraud is often hard to detect. The department has a comprehensive set of control measures to limit the incidences of fraud and to enable detection. However, all APS employees, LES employees and contractors have a responsibility to report and identify fraud when it occurs. If a staff member displays the following patterns of behaviour, it may indicate that he or she is involved in fraudulent activity:

Fraud Control in DFAT

9.3.8 With such a large network of offices, as well as complex resource and financial management systems, the department's risks and vulnerabilities are unique for a Commonwealth department. In particular, the department faces a number of challenges managing fraud risks overseas where language barriers and different legal and cultural environments can heighten the risks of fraud and obscure its detection.

9.3.9 Due to the complexity of DFAT's operating environment, the department has developed a comprehensive three-tiered approach to fraud control which consists of:

9.3.10 Further information on the department’s fraud control policy is contained in the DFAT Fraud Control Plan.

9.3.11 For comprehensive information on fraud control in the Commonwealth, see the Attorney General’s Department Fraud Control Page.

9.4 Bribery

9.4.1 The Australian Government works on a number of fronts to fight bribery and corruption in Australia and overseas. The department and its staff are committed to supporting better governance and legal systems abroad, as well as upholding Australia's reputation for transparency and integrity. The provision or acceptance of bribes by Commonwealth public officials (including APS employees, LES employees and contractors in the department) is prohibited under Commonwealth criminal law.

9.4.2 The APS Code of Conduct and the standard LES Code of Conduct also require that staff must not make improper use of their duties, status, power or authority in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person; they must in connection with their official duties comply with applicable Australian law; and they must not compromise the good reputation of the APS, their post and Australia. This includes by accepting bribes. Chapter 6 of this Manual provides detailed guidance on accepting gifts, benefits and hospitality.

9.4.3 Procedures for reporting alleged bribery are set out in Chapter 10 of this Manual.

Bribery of a Commonwealth Public Official

9.4.4 It is an offence for a Commonwealth public official to ask for, receive or obtain a bribe, or even to agree to ask for, receive or obtain a bribe. A bribe is defined as a dishonest benefit given in exchange for influence. It makes no difference to the offence whether the public official intends to exercise influence in return for the bribe, or merely creates the impression that he or she will do so. A bribe can be any advantage (it does not have to be money) and it does not have to advantage the Commonwealth public official personally (it can be for another person). The maximum penalty on conviction is 10 years' imprisonment (Criminal Code Act 1995, section 141).

9.4.5 It is also an offence where the benefit, while not specifically asked for, received or obtained in exchange for influence, would nevertheless tend to influence the Commonwealth public official. This is known as a "corrupting benefit", and carries a maximum penalty on conviction of 5 years' imprisonment (Criminal Code Act 1995, section 142).

9.4.6 Naturally, the person making the bribe or corrupting benefit also commits an offence, which is subject to the same respective penalties. In all of the above cases, it makes no difference to the offence whether it was committed in Australia or overseas.

Bribery of a Foreign Public Official

9.4.7 Australia is a party to the Organisation for Economic Cooperation and Development's (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption. Both of these Conventions oblige States Parties to establish the criminal offence of bribery of foreign public officials in international business transactions, and to make the offence extraterritorial.

9.4.8 It is therefore an offence for any person in Australia, or any Australian anywhere in the world, to provide, offer or promise a benefit to someone that is not legitimately due, in order to influence a foreign public official in the exercise of his or her duties, so as to obtain or retain business or a business advantage that is not legitimately due (Criminal Code Act 1995, section 70). The offence is drafted to prevent persons escaping the operation of the offence by using intermediaries. Thus, the person receiving the bribe does not have to be the foreign public official whose influence is sought; and the person paying the bribe does not have to be the person who obtains or retains the business or business or business advantage. This offence is punishable by a maximum of 10 years' imprisonment.

9.4.9 The Sanctions and Transnational Crime Section of the department’s International Legal Division can provide staff more detailed guidance on bribery issues. Further information on the Australian offence of bribery of foreign public officials can be found on the Attorney-General’s Department Bribery of foreign public officials page.