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 Ethics, Integrity and Professional Standards Section (conduct@dfat.gov.au) if they require clarification on the contents of this Manual or 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 12 of this Manual. Procedures for reporting alleged misconduct are set out in Chapter 11 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 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 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 12 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.

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:

1. termination of employment
2. reduction in classification
3. re-assignment of duties
4. reduction in salary
5. deductions from salary, by way of fine (regulation 2.3(2) of the Public Service Regulations 1999limits fines to no more than two percent of the employee's annual salary)
6. a reprimand.

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 11 of this Manual and further information is detailed in the Department's Anti-bullying, Harassment and Discrimination policy which is available on the DFAT intranet.

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 the Public 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 Sexual harassment is unwelcome conduct of a sexual nature that a reasonable person anticipates could possibly make the recipient feel offended, humiliated and/or intimidated. Sexual harassment is unlawful regardless of the sex, sexual orientation or gender identity of the parties.

The Department takes allegations of sexual harassment seriously and will take prompt action to address allegations and to support staff who report instances of harassment. A-based officers, LES and contractors who experience sexual harassment should report it as soon as possible to any of the following authorised internal departmental persons:

• their supervisor or manager
• HOM/HOP in cases of alleged misconduct at posts
• CPO PPD
• The Secretary
• the Ethics, Integrity and Professional Standards Section (EES) via conduct@dfat.gov.au.

An external mechanism for reporting sexual harassment is via the Sex Discrimination Commissioner at the Australian Human Rights Commission.

Sexual harassment can take various forms. Some examples of behaviour that may be sexual harassment include:

• unwelcome touching, hugging or kissing
• inappropriate staring or leering
• sexually suggestive comments or jokes
• unwanted invitations to go out on dates
• sexually explicit emails, text messages or comments on social media networks.

For further information on sexual harassment and support options, please refer to the department’s Policy. A Sexual Harassment Manager’s Guide is also available to assist managers in handling reports of sexual harassment.

9.2.4 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 lodgment of a formal grievance and associated investigation under the APS or LES Code of Conduct and other relevant legislation.

9.2.5 Where mediation and counselling may be effective, cases of harassment, bullying or discrimination may be referred for professional support. Depending on their nature and severity, alleged harassment, bullying or discrimination may be subject directly to procedures set out in Chapter 12 of this Manual for managing alleged misconduct.

9.2.6 All staff have access to support through the Staff and Family Support Office (SFO) and the Employee Assistance Program (EAP).

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:

• theft;
• obtaining property, a financial advantage or any other benefit by deception;
• causing a loss, or avoiding or creating a liability by deception;
• providing false or misleading information to the Commonwealth, or failing to provide information where there is an obligation to do so;
• making, using or possessing forged or falsified documents;
• bribery, corruption or abuse of office;
• unlawful use of Commonwealth computers, vehicles, telephones and other property or services;
• relevant bankruptcy offences; and
• any offences of a like nature to those listed in case study below.

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

• hacking into, or interfering with a Commonwealth computer system;
• using fraudulent tertiary qualifications to gain employment or a promotion with a Commonwealth agency;
• claiming hours on a timesheet that have not been worked;
• using Commonwealth systems to gain access to other systems without authority; and
• charging the Commonwealth for goods or services that are incomplete or not delivered.

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.

Fraud as 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 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 11 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:

• living above his or her means;
• gambling, alcohol or drug abuse;
• personality change;
• fraternising with suppliers;
• interchanging private and official money;
• poor financial record keeping;
• resistance to inquiries about funds;
• declining promotion or transfer; or
• reluctance to take leave.

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:

• fraud risk controls (checks, systems controls and audit measures);
• fraud prevention training (through a range of training courses); and
• prompt and fair investigation of fraud allegations.

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 11 of this Manual.

Bribery of a Commonwealth Public Official

9.4.4 It is an offence for a Commonwealth public official to dishonestly 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 benefit to someone, with the intention of influencing a public official in the exercise of their duties. 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 benefit can be any advantage (it does not have to be financial or proprietary) 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, a fine of up $2.1 million, or both (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 criminalise 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 (Criminal Code Act 1995 section 70). The offence is drafted to prevent persons escaping its operation 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 advantage. This offence is punishable by a maximum of 10 years’ imprisonment and/or a fine of up to $1.8 million for individuals and $18 million for companies.

9.4.9 The Transnational Crime Section of the department's Legal Division can provide staff with more detailed advice on bribery issues.