ASSESSMENT OF COMPLAINT TO MERIT PROTECTION COMMISSIONER FROM
BACKGROUND
1. I was engaged by the Merit Protection Commissioner (
MPC) on 9 October 2024 to
undertake an assessment of a complaint the MPC received
The complaint from
alleged breaches of the APS Code of Conduct
I was engaged to undertake the assessment of the complaint, as
the MPC
.
1
2. I was engaged to undertake this assessment on the basis of my experience in
administrative and public law and in complaint investigations, including Code of Conduct
investigations. I have previously held the statutory roles of Commonwealth Ombudsman,
NSW Ombudsman (Acting), Australian Information Commissioner, Integrity Commissioner
for the Australian Commission of Law Enforcement Integrity, and ACT Integrity
Commissioner (Acting). I am currently an Emeritus Professor at the Australian National
University.
3. For the record I note I have had
contact
. I do not believe that contact creates a conflict of interest concern for this
present task. The office of the MPC has agreed with my assessment.
4. As I explain below at para [16], an assessment of a Code of Conduct complaint differs
from a full investigation of the complaint. The purpose of the initial assessment is to
examine the complaint allegations and supporting material and advise whether a full
investigation should be undertaken. The view I have reached (summarised below at para
[76] is that some but not all the elements of this complaint require a more formal
investigation
5. Soon after receiving this assignment I
. It
transpired this was due to a misunderstanding, as it was thought I had already commenced
a full investigation. I explained I was currently undertaking an assessment ‘on the papers’,
and we did not discuss the substance of the complaint.
THE COMPLAINT
6.
engaged in conduct that, on seven
occasions, breached multiple provisions of the Code of Conduct. In all, the complaint
alleges there were 33 breaches of eight Code of Conduct provisions. A summary of those
eight provisions and the alleged breaches are listed in an Appendix to this report.
7.
1
Public Service Act 1999 (Cth) ss 49(3),
72B.
1
8.
9.
10.
11.
A couple of allegations relate to actions that
may have been taken by others,
This distinction is noted below where relevant.
UNDERTAKING AN ASSESSMENT OF A CODE OF CONDUCT BREACH
12. There are four aspects of an assessment that I wil note at the outset.
13. First, the
14. A jurisdictional limitation arising in this case is
the conduct’ and whether it ‘falls outside expected standards
’: [4.25]. The response to an
alleged Code of Conduct breach should, overall, be proportionate.
FIRST ALLEGED BREACH:
The alleged breach
20.
21.
23.
had undergone a procedural fairness process with potential y affected
persons and finalised the
report.
thought
comments were
inconsistent with
role as ‘an impartial official’.
further complains that ‘Given
demonstrated bias,
24.
alleges breach of four Code of Conduct standards (see Appendix).
Assessment of the alleged breach
25.
has in essence made two breach al egations against
that breached the Code of Conduct
(described below as ‘the first limb’ of
this allegation)
that breached the Code of Conduct between
by not recusing
from participation in the Code of Conduct investigation (‘the second limb’).
26. The first limb falls beyond the
6 ‘
4
Consequently, as explained above (para [15]),
should be advised that this
complaint is more appropriately directed to the Secretary of the Department of the Prime
Minister and Cabinet.
27. The second limb raises the issue of whether
, was in a conflict of interest position that
ignored. The thrust of
the allegation is that the
from participating in
the process that led to an adverse Code of Conduct finding being reached against
28. This limb of the allegation rests on the assumption that the
played an active
role in reaching the Code of Conduct finding against
It is not fully clear what
role the
in fact played, either from the
. On one reading of those
documents the
set up a process that was at arm’s length, to investigate
and reach findings regarding the conduct of
29. If those are the facts, the apprehended bias principle would not directly apply in the
standard way. Essentially, that principle looks at the conduct of the decision maker, and in
particular, whether a fair-minded lay observer, acquainted with the known facts, might
reasonably apprehend that the decision maker has not brought a fair and impartial mind
to making the relevant decision. It is possible that the decision maker in this instance was
solely the
30. Accordingly, I think it necessary to examine further the role, if any, played by the
For example – what were the terms of
did play an active role, it would then be necessary to
examine whether the
had an effect on the
process of a kind that gave rise to a reasonable apprehension of bias in the decision
making process.
31. My view is that those issues could suitably be examined by a formal inquiry under s
The two Code of Conduct standards that seem to be
most relevant to this line of inquiry are s 13(1) (behave honestly and with integrity) and s
13(10) (not improperly use the officer’s power or authority to cause detriment to any
person).
SECOND ALLEGED BREACH: MISUSE OF AN OFFICIAL POSITION FOR PERSONAL
GAIN
The alleged breach
32. A week before
comment
to signal to the Government that
would be a suitable appointee to the vacancy, since
the Government was using
5
33.
alleges breach of five Code of Conduct standards (see Appendix).
Assessment of the alleged breach
34. This allegation is primarily about a comment
35. In my view this allegation does not fall within the jurisdiction of the MPC
to inquire into an alleged breach of the Code of Conduct by
should be advised that this complaint can instead be directed to the Secretary
of the Department of the Prime Minister and Cabinet.
THIRD ALLEGED BREACH: CAUSING AN
INQUIRY TO BE COMMENCED
The alleged breach
36. There was an evolving legislative history following
.
37. The
report endorsed the principle that
38. The
noted that the Public Service Act had been amended in 2013 to
introduce s 41B to empower agencies to determine alleged breaches of the Code by
former APS employees.
39.
40.
8
6
wil foreshadow retrospective legislation and advise people to arrange their affairs on that
basis (for example, budget proposals). Nevertheless, there is a separate issue of whether
it is appropriate for
51. Accordingly, I recommend below that the delegate of the Merit Protection Commissioner
conduct or authorise an
. This inquiry could
appropriately be undertaken by reference to the five Code of Conduct standards
nominated by
referred to in para [49].
FOURTH ALLEGED BREACH: REQUIRING A RESPONSE TO AN INACCURATE AND
OPPRESSIVE DRAFT STATEMENT
The alleged breach
52. As noted above,
o ‘contained a hypothetical sanction, emotive language and allegations that were not
supported by the Final Determination of
o ‘the articulation of the findings was also not consistent with the Final
Determinations of
o ‘there was initially no disclosure that serious allegations had been found to be NOT
substantiated’
o ‘attribute[d] greater blame and culpability to
than was justified by the
terms of the Final Determination, seeking to support
public position in
53.
alleges this exercise was ‘wholly oppressive and constituted harassment’
and caused
‘significant additional legal expense’ and ‘significant economic
detriment and mental anguish’.
asserts that five Code of Conduct standards were
breached.
Assessment of the alleged breach
54. This allegation must be approached from the standpoint that a customary outcome of a
procedural fairness process is that draft findings wil be altered and corrected. This may
reveal nothing more than that the procedural fairness process served a constructive
purpose in allowing prior comment by a person against draft adverse findings. That person
may, regrettably, be put to legal expense and emotional upset during the process.
9
55. Consequently, the mere fact that a report or a finding has been changed substantially as
a result of a procedural fairness process is not itself evidence that the initial draft was
professionally inadequate. Nor is it evidence in itself that the person responsible for the
initial draft acted, for example, dishonestly and without integrity and diligence.
56. The only way to take this allegation forward is,
, to examine
and compare the initial and final versions of the document and the correspondence
passing between
. The focus of
this analysis would be upon whether (selecting three only of the Code standards) there is
evidence
behaved dishonestly and without integrity (s 13(1)), failed to
act with care and diligence (s 13(2)), or failed to treat others with respect and courtesy and
without harassment (s 13(3)).
FIFTH ALLEGED BREACH: RELEASING
THAT WAS INACCURATE AND
DAMAGING
The alleged breach
57.
makes two allegations about
The first is that It misrepresented the Final determination
58.
said that
59. The second allegation is that
was
brief and misleading. It did not, for example,
sought to vilify them and was disrespectful to their
right to raise this issue.
60.
adds that these two inaccuracies constituted a breach of s
, such as the details of a Code of Conduct investigation.
further alleges this constitutes a breach of five Code of Conduct standards.
Assessment of the alleged breach
61. The first allegation (misrepresenting
finding) can appropriately be
examined in
by examining the
report and the
correspondence between
. Given that
is alleging a deliberate falsehood by
the appropriate Code standards
to examine in this inquiry are failure to act honestly and with integrity (s 13(1)), harassment
(s 13(3)), and failure to uphold APS Values (s 13(11)).
10
62. In my view the second allegation (misrepresenting the
history) does not warrant
further inquiry
The report of t
provides a fuller though not complete explanation of the legislative history.
The report notes, for example, that ‘as the inquiries progressed, and in response to
submissions made by
it became apparent that the
63. Though that explanation is not as full as
would have liked, I do not believe it
vilified
or was disrespectful to
. Further, I have
recommended above that
examine whether a Code breach occurred
in commencing an investigation when
This is the more substantive issue, and is likely to effectively address
64. In summary, I recommend that an inquiry be conducted
.
The inquiry should examine if there has been a breach of any of the three Code of Conduct
standards noted in para [61]. I do not think it is necessary to take up separately
issue.
SIXTH ALLEGED BREACH: DISCRIMINATION ON THE GROUND OF
The alleged breach
65.
out that
identified
. It did not identify
– who
was engaged in
of the same kind that led to the adverse findings
against
66.
comments that
is not aware of
situation – whether, for
example,
was referred by
, whether his conduct
was investigated by
but without any adverse finding being reached, or
whether an adverse finding was reached by
but not disclosed by the
67.
alleges that the decision to disclose
, and this was a form of
discrimination.
asserts ‘there is no other
reasonable conclusion’.
alleges a breach of five Code of Conduct standards.
Assessment of the alleged breach
68. The facts provided by
11
Assessment of the alleged breach
74. In my view this allegation does not warrant separate inquiry
is effectively disputing the merits of the review process undertaken by the I
is, of course, quite entitled to do that in any
number of forums – including, for example, judicial review of the findings. However, a Code
of Conduct inquiry
is not, in my view, the appropriate forum or pathway
for pursuing the disagreement and grievance that
feels with the merits or
substance of the findings against
75. Indirectly,
complaint raises a question about the relationship between the
I have recommended above that
inquiry be conducted to examine this issue further. Nevertheless,
criticism of the findings or reasoning adopted by
would not, without more,
constitute evidence of a Code of Conduct breach by
SUMMARY OF RECOMMENDATIONS
76. I recommend that the delegate of the Merit Protection Commissioner conduct or authorise
an inquiry under
into the following issues that bear
upon
allegations against the
whether
participated in the process that led to an adverse Code of
Conduct finding being reached against
in a way that constituted a
conflict of interest on
part, in breach of s 13(1) or s 13(10) (see
paras [27]-[31])
whether it was appropriate for the
to
commence an investigation into
conduct
, having regard to s 13(1), s
13(2), s 13(8), s 13(10) and s 13(11) (para [51])
whether the
breached s 13(1), s 13(2) or s
13(3) in
was invited to comment (para [56])
whether the
having
regard to s 13(1), s 13(3) and s 13(11) (para [64])
that
was treated unfavourably, on the basis of
, compared to the
way
was treated, in breach of s 13(4) (para [70])
77. I recommend that the delegate of the Merit Protection Commissioner advise
that the Merit Protection Commissioner does not have jurisdiction
of the
Public Service Act to conduct an inquiry into the two allegations identified in this report as
‘first alleged breach, first limb’ and ‘second alleged breach’.
could be advised
that the Secretary of the Department of the Prime Minister and Cabinet may have
jurisdiction to investigate those two allegations. (paras [26], [35])
13
APPENDIX: THE CODE OF CONDUCT PROVISIONS CITED IN
COMPLAINT
The following is a brief summary of the Code of Conduct provisions in s 13 of the Public
Service Act cited in
complaint and the breaches that she alleged occurred in
relation to each standard
1. 13(1): ‘must behave honestly and with integrity’
first alleged breach:
second alleged breach: misuse of an official position for personal gain
third alleged breach: causing
inquiry to be commenced
fourth alleged breach: requiring a response to an inaccurate and oppressive draft
statement
fifth alleged breach: releasing
that was inaccurate and damaging
sixth alleged breach: discrimination on the ground of
seventh alleged breach: allowing personal view to colour the findings
2. 13(2): ‘act with care and diligence’
first alleged breach:
second alleged breach: misuse of an official position for personal gain
third alleged breach: causing
inquiry to be commenced
fourth alleged breach: requiring a response to an inaccurate and oppressive draft
statement
fifth alleged breach: releasing
that was inaccurate and damaging
sixth alleged breach: discrimination on the ground of
seventh alleged breach: allowing personal view to colour the findings
3. 13(3): ‘must treat everyone with respect and courtesy, and without harassment’
fourth alleged breach: requiring a response to an inaccurate and oppressive draft
statement
fifth alleged breach: releasing
that was inaccurate and damaging
sixth alleged breach: discrimination on the ground of
4. 13(4): must comply with all applicable Australian laws
sixth alleged breach: discrimination on the ground of
5. 13(7): take reasonable steps to avoid a conflict of interest
second alleged breach: misuse of an official position for personal gain
6. 13(7): must use Commonwealth resources in a proper manner and for a proper purpose
second alleged breach: misuse of an official position for personal gain
14
7. 13(10): ‘must not improperly use inside information or the employee’s duties, status, power
or authority’ to cause detriment to another person
first alleged breach:
second alleged breach: misuse of an official position for personal gain
third alleged breach: causing
inquiry to be commenced
fourth alleged breach: requiring a response to an inaccurate and oppressive draft
statement
fifth alleged breach: releasing
that was inaccurate and damaging
seventh alleged breach: allowing personal view to colour the findings
8. 13(11): act at all times to uphold APS Values and the integrity and good reputation of the
APS
first alleged breach:
second alleged breach: misuse of an official position for personal gain
third alleged breach: causing
inquiry to be commenced
fourth alleged breach: requiring a response to an inaccurate and oppressive draft
statement
fifth alleged breach: releasing
that was inaccurate and damaging
sixth alleged breach: discrimination on the ground of
seventh alleged breach: allowing personal view to colour the findings
15
REPORT TO MERIT PROTECTION COMMISSIONER:
REPORTER: Prof John McMillan AO
January 2025
1
TABLE OF CONTENTS
Executive summary
A. Background to this inquiry
B. The legislative framework for Code of Conduct inquiries
C. Conduct of Assessment and Inquiry
D. The matters complained about
E.
in the Code of Conduct inquiry process
F.
G. Consideration of the complaint allegations
Causing
inquiry into the complainant’s conduct to be commenced
Requiring the complainant to respond to an inaccurate and oppressive draft
statement
Releasing
that misrepresented the findings of the Supplementary
Reviewer
Discriminating against the complainant on the ground of
2
. There is a proper
explanation as to why the
This report is provided to the delegate of the Merit Protection Commissioner,
4
A.
BACKGROUND TO THIS INQUIRY
1. The Merit Protection Commissioner (
MPC) received a complaint from
alleging breaches of the APS Code of Conduct by
complaint alleged
engaged in conduct that, on seven occasions,
breached multiple provisions of the Code of Conduct. In all, the complaint alleged there
were 33 breaches of eight Code of Conduct provisions. Al the alleged breaches by
2. I was engaged by the MPC on 9 October 2024, under s 49(3) of the
Public Service Act
1999, to undertake an Assessment of
complaint. The purpose of the
Assessment was to recommend whether an inquiry should be conducted into any of the
complaint allegations
the Public Service Act
.
. The MPC delegated
her functions under the Public Service Act in connection with this complaint to Ms Justine
Saunders APM,1 to whom my Assessment was provided.
3. My Assessment recommended that five of the allegations in
complaint be
the subject of
inquiry, as regards 19 potential breaches of eight Code of
Conduct provisions. The delegate of the MPC accepted my recommendation. I was
subsequently engaged by the MPC on 2 December 2024 to conduct the inquiry. The basis
of my engagement was my experience in administrative and public law, in complaint
investigations, including Code of Conduct investigations, and as a former Commonwealth
Ombudsman and statutory officer. A summary of the 18 alleged breaches and seven Code
of Conduct provisions that I have examined in this inquiry are listed in an Appendix to this
report. As with the Assessment, this report is provided to the delegate of the MPC.
4. In accepting the request to conduct both the Assessment and the Inquiry I declared that I
had
contact with
. The office
of the MPC agreed with my assessment that this contact did not create a conflict of interest
concern for this inquiry task. My understanding is that
have raised any objection to my role.
B.
THE LEGISLATIVE FRAMEWORK FOR CODE OF CONDUCT INQUIRIES
5. This inquiry is conducted under
f the Public Service Act, which confers the
following function on the MPC:
6. This inquiry function is conferred on the MPC as an exception to the normal procedure
that the investigation of alleged breaches of the Code of Conduct by
1
Public Service Act 1999 (Cth) ss 49(3),
72B.
5
reaching the Code of Conduct findings against
24.
is possibly open to the interpretation that
played a role in accepting if not endorsing the adverse findings against
25.
26. The three witnesses to whom I spoke –
– confirmed in similar terms that
played no active, substantive or
decision-making role in the inquiry process. It was conducted entirely by
and other staff and advisers, and at no stage were
views offered or
sought on any of the issues under consideration. The findings of
were
recorded (as to
in an extensive report that explained on the title page that it
was the report of
. The report was prepared after a lengthy
process led by
in which
was informed of the
allegations against
consulted as regards evidence,
informed of preliminary findings and given an opportunity to make submissions. The
witnesses confirmed that, at no stage, was the evidence or tentative findings discussed
with
, or
approval sought.
added that
took
delegation seriously and independently conducted the inquiries, examined all evidence
and documents, and reached findings.
confirmed in similar terms that
acted independently throughout and made it clear to others that
exclusive attention was on the evidence, submissions and supplementary analysis.
27. There was a periodic meeting between
, roughly every 2-
4 weeks of about 30 minutes duration, to discuss matters such as the progress and
resourcing of
and the welfare of participants.
met with
on possibly four occasions for a similar discussion. There was discussion
in the final stages of the inquiry process of possible implications of the inquiry outcomes
for
, but no discussion of individuals who were the subject of inquiry.
was careful in all discussions with
9
On
The
G.
CONSIDERATION OF THE COMPLAINT ALLEGATIONS
Allegation:
The alleged breach
38. A month prior to
39.
41.
thought
comments were
inconsistent with his role as ‘an impartial official’.
further complains that ‘Given
demonstrated
,
should have recused
from any involvement in
11
12
47. Thirdly, I accept a point made in
submission that the comments
made
did not display
against
submitted that the
comments were appropriately made in
The comments were framed
generally, were aimed at multiple audiences, they did not refer to specific evidence or
individuals, and the comments were similar in nature to others made publicly at the time
by
and in legal proceedings.
Allegation: causing an
inquiry into the complainant’s conduct to be
commenced
The alleged breach
48.
complaint alludes to the
history outlined above in Section F, and
alleges the
knowingly commenced a code of conduct inquiry against
… without a
basis’.
complaint notes the following matters: the
doubt raised by
49.
alleges this train of events caused
‘to spend significant time and legal
expense to defend actions’, and caused
‘significant economic and
detriment’.
complains also that ‘Commonwealth resources expended on this
review were also not used in a proper manner and for a proper purpose’. In substance,
complaint is about both the commencement of the inquiry and its effective completion
before
50. Five Code of Conduct standards are potentially relevant to this complaint allegation: s
13(1), requiring officials to ‘behave honestly and with integrity’; s 13(2), requiring officials
to ‘act with care and diligence’; s 13(8), requiring officials to ‘use Commonwealth resources
in a proper manner and for a proper purpose’; s 13(10), requiring that an official ‘must not
improperly use inside information or the employee’s duties, status, power or authority’ to
cause detriment to another person; and s 13(11)(a) & (b), requiring officials at all times to
uphold APS Values and the integrity and good reputation of the APS.
Assessment of the alleged breach
51.
complaint allegation raises an important issue. It is axiomatic there must
be a
basis to undertake a Code of Conduct inquiry that can result in adverse
findings and consequences for a former APS employee. This point is underscored by the
52. The allied concern raised by
complaint is that the Commonwealth’s
attention was drawn to this issue
14 ‘
14
70.
alleges that, on what is publicly known,
disclosed an
adverse finding against
because
, commenting ‘there is no other
reasonable conclusion’. In
view this was a form of
discrimination.
71. Five Code of Conduct standards are potentially relevant to this complaint allegation: s
13(1), requiring officials to ‘behave honestly and with integrity’; s 13(2), requiring officials
to ‘act with care and diligence’; s 13(3), requiring officials to treat others ‘with respect and
courtesy, and without harassment’; s 13(4), requiring officials to comply with applicable
Australian laws; and s 13(11)(a) & (b), requiring officials at all times to uphold APS Values
and the integrity and good reputation of the APS.
Assessment of the alleged breach
72. ‘
73. The facts provided
in
complaint did not provide evidence of direct or
indirect
discrimination as so defined. This complaint allegation was nevertheless taken
forward for inquiry as
faced difficulty in substantiating
complaint because of the
lack of information publicly available. Accordingly, the allegation of
discrimination was
directly addressed in this inquiry by examination of documents and in interviews with the
74. On the basis of that examination I am satisfied that
was not singled out for
adverse treatment by
because
While there are limitations on what can be said in this report, I was satisfied that a sound
explanation is available as to why
would
also like to note that it would be at odds with
character to discriminate against a person
on the basis of
.
75. I have therefore reached the view that this complaint allegation is not sustained.
18
