Procedures for determining breaches of the Code of Conduct and for determining sanctions

Procedures for determining breaches of the Code of Conduct and for determining sanctions

I, John Cahill, as Agency Head of the National Blood Authority (NBA), establish these procedures under subsection 15(3) of the Public Service Act 1999 (the PS Act). 

These procedures commence on 28 July 2025. 

These procedures supersede previous procedures made for the NBA under subsection 15(3) of the PS Act.

John Cahill
General Manager of the NBA
 

Introduction

1. In accordance with section 15(3) of the Act, the Agency Head of the National Blood Authority (the Agency), has established procedures for determining whether an Australian Public Service (APS) employee, or former employee, in the Agency has breached the Code of Conduct (the Code) and for determining sanctions.
    

Application of procedures

2. These procedures apply in determining:
   a. whether a person who is an APS employee in the Agency, or who is a former APS employee who was employed in the Agency at the time of the suspected misconduct, has breached the Code set out in section 13 of the Act, and
   b. any sanction to be imposed on an APS employee in the Agency who has been found to have breached the Code.
3. In these procedures, a reference to a breach of the Code by a person includes a reference to a person engaging in conduct set out in subsection 15(2A) of the Act in connection with their engagement as an APS employee.
4. The Australian Public Service Commission’s Handling Misconduct – a human resource manager’s guide(Opens in a new tab/window) may provide useful guidance when considering a misconduct issue.
5. Not all suspected breaches of the Code need to be dealt with by way of determination under these procedures. In particular circumstances, another way of dealing with a suspected breach of the Code may be more appropriate, including performance management.

Breach decision-maker and sanction delegate

6. As soon as practicable after a suspected breach of the Code has been identified, the General Manager will consider if it is appropriate for a preliminary assessment to be conducted to assess whether the suspected breach of the Code should be formally investigated under these procedures.
7. Once a decision is made to formally investigate the suspected breach under these procedures, the General Manager will appoint a decision-maker (the ‘breach decision-maker’) to make a determination under these procedures.
8. The role of the breach decision-maker is to determine whether a breach of the Code has occurred.
9. The breach decision-maker may undertake the investigation or seek the assistance of an investigator. The investigator may investigate the alleged breach, gather evidence and make a report of recommended findings of fact to the breach decision-maker.
10. If during the course of an investigation it becomes evident that there is a material variation in the nature or extent of the alleged breach notified to the employee, the employee must be notified in writing of the variation and any variation in the range of sanctions that may be imposed if the employee is found to have breached the Code of Conduct.
11. The employee must be provided with a reasonable opportunity (usually, 7 calendar days) to make a further statement or provide further evidence before a determination is made.
12. If a breach is determined to have occurred, the General Manager should appoint a sanction delegate. The sanction delegate decides what, if any, sanction is to be imposed on an APS employee who is found to have breached the Code. Sanctions cannot be imposed on former APS employees. The sanction delegate will be a person holding a delegation of the power to impose sanctions under the Act.
13. These procedures do not prevent the breach decision-maker from being the sanction delegate in the same matter.
14. Any delegation of powers under the Act that is proposed to be made to a person who is not an APS employee must be approved in writing in advance by the Australian Public Service Commissioner. This is required by subsection 78(8) of the Act. This would include delegation of the power under subsection 15(1) to impose a sanction.
     

Person or persons making breach determination and imposing any sanction to be independent and unbiased

15. The breach decision-maker and the sanction delegate must be, and must appear to be, independent and unbiased.
16. The breach decision-maker and the sanction delegate must advise the General Manager in writing if they consider that they may not be independent and unbiased or if they consider that they may reasonably be perceived not to be independent and unbiased; for example, if they are a witness in the matter.
     

The determination process

17. The process for determining whether a person who is, or was, an APS employee in the Agency has breached the Code must be carried out with as little formality, and with as much expedition, as a proper consideration of the matter allows.
18. The breach decision maker and the sanction delegate must have regard to the Australian Public Service Commission’s publication, ‘Handling Misconduct: A human resource manager’s guide’(Opens in a new tab/window) in making the determination in relation to a breach and the decision in relation to sanction.
19. The process must be consistent with the principles of procedural fairness.
20. A determination may not be made in relation to a suspected breach of the Code by a person unless reasonable steps have been taken to:
    a. inform the person of the details of the suspected breach of the Code (including any subsequent variation of those details)
    b. where the person is an APS employee, inform the person of the sanctions that may be imposed on them under subsection 15 (1) of the Act, and
    c.   give the person a reasonable opportunity to make a statement in relation to the suspected breach.
21. The statement may be a written or oral statement and should be provided within 7 calendar days, or any longer period that is allowed by the breach decision-maker.
22. A person who does not make a statement in relation to the suspected breach is not, for that reason alone, to be taken to have admitted to committing the suspected breach.
23. For the purpose of determining whether a person who is, or was, an APS employee in the Agency has breached the Code, a formal hearing is not required.
24. The breach decision-maker or an investigator assisting the breach decision-maker, where they consider in all the circumstances that the request is reasonable, must agree to a request made by the person who is suspected of breaching the Code to have a support person present in a meeting or interview they conduct.
     

Sanctions

25. The process for imposing a sanction must be consistent with the principles of procedural fairness.
26. If a determination is made that an APS employee in the NBA has breached the Code, a sanction may not be imposed on the employee unless reasonable steps have been taken to inform the employee of:
    1. the determination that has been made; and
    2. the sanction or sanctions that are under consideration; and
    3. the factors that are under consideration in determining any sanction to be imposed; and
    4. give the employee a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration.
27. The statement may be a written or oral statement and should be provided within 7 calendar days or any longer period that is allowed by the sanction delegate.
     

Record of determination and sanction

28. If a determination is made in relation to a suspected breach of the Code by a person who is, or was, an APS employee in the Authority, a written record must be made of:
    1. the suspected breach; and
    2. the determination; and
    3. any sanctions imposed as a result of a determination that the employee has breached the Code; and
    4. if a statement of reasons was given to the person regarding the determination in relation to suspected breach of the Code, or, in the case of an employee, regarding the sanction decision, that statement of reasons or those statements of reasons.
       
        

Additional procedural requirement for current Senior Executive employees

29. If a current Senior Executive Service (SES) employee in the Agency is suspected of breaching the Code, the General Manager, or a person delegated or authorised by the General Manager, must comply with the requirements at section 64 of the Australian Public Service Commissioner's Directions 2022 (Directions) to consult, with the APS Commissioner, or a delegate of the APS Commissioner for the purposes of this requirement:
    a. on the process for determining whether the employee has breached the Code; and
    b. if considering imposing a sanction, before imposing the sanction.

Procedure when an ongoing employee is to move to another agency

30. The Australian Public Service Commissioner’s Directions 2022 places restrictions on the movement of an APS employee who is suspected of having breached the Code. If the matters that relate to the suspected breach have not been resolved, a move can only take effect if agreed by the General Manager and the new Agency Head.