ASIC Code of Conduct Policy.pdf

PEOPLE & DEVELOPMENT
Code of Conduct Policy

2014

About this policy
This policy describes the APS Code of Conduct and outlines ASIC's
procedures for handling suspected and determined breaches of the Code of
Conduct.

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CODE OF CONDUCT POLICY

Policy ownership

The Employee Relations Manager is responsible for the development and implementation of this
policy.

Policy application

This policy applies to all APS employees and employees engaged under s. 120(3) of the ASIC Act,
including ongoing and non-ongoing team members.

Policy application is subject to adoption by the Senior Executive Leader, People & Development.

Policy approval

This policy has been reviewed and approved by the following parties on the following dates:

Version
Reviewer
Comments
Approved
Date
1.3
Helen O'Loughlin

Approved
3 July 2014

Version history

Version
Details of changes
Date
1.3
Reflect amendments to the APS Code of Conduct to
1 July 2014
align with the Public Governance, Performance &
Accountability Act 2013

Policy distribution

This policy has been distributed to the following parties on the following dates:

Version
Date
Distribution List
1.0
July 2013
National Consultative
Committee
1.1
20 January 2014
ASIC Staff and National
Consultative Committee
1.3
1 July 2014
Employee Relations Manager

Policy location

This policy is published on myASIC, People & Development.

Australian Securities and Investments Commission

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CODE OF CONDUCT POLICY
A
What the policy is about?
1
The Australian Public Service (APS) Code of Conduct (the Code) provides the
standards of behaviour that are expected of Australian Public Service (APS) employees.
This policy outlines the procedures for handling suspected and determined breaches of
the Code.

Further guidance

Further information on the APS Values, APS Employment Principles and
sanctions under the Code is available at www.apsc.gov.au

A glossary of key terms is provided on page 16 of this policy.

Austr alian Securities and Investments Commission
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CODE OF CONDUCT POLICY
B
Standards of conduct
2
The Code sets out the standards of conduct required of team members in ASIC. The
Code requires that team members must:
APS Code of Conduct
  Behave honestly and with integrity in connection with APS
employment
  Act with care and diligence in connection with APS employment
  When acting in connection with APS employment, must treat
everyone with respect and courtesy, and without harassment
  When acting in connection with APS employment, comply with all
applicable Australian laws
  Comply with any lawful and reasonable direction given by someone
in the employee’s Agency who has authority to give the direction
  Maintain appropriate confidentiality about dealings that the employee
has with any Minister or Minister’s member of staff
  Take reasonable steps to avoid any conflict of interest (real or
apparent) in connection with the employee's APS employment and
disclose details of any material personal interest of the employee in
connection with the employee's APS employment
  Use Commonwealth resources in a proper manner and for a proper
purpose
  Not provide false or misleading information in response to a request
for information that is made for official purposes in connection with
the employee’s APS employment
  Not  improperly use inside information or the employee's duties,
status, power or authority:
a.  to gain, or seek to gain, a benefit or an advantage for the
employee or any other person, or
b.  to cause, or seek to cause, detriment to the employee's
Agency, the Commonwealth or any other person
  At all times behave in a way that upholds
a.  the APS Values and APS Employment Principles, and
b.  the integrity and good reputation of ASIC and the APS
  While on duty overseas, at all time behave in a way that upholds the
reputation of Australia
  Comply with any other conduct requirement that is prescribed by the
regulations
Australian Securities and Investments Commission
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CODE OF CONDUCT POLICY
  Before being engaged as an APS employee, must not have:
a.  Knowingly provided false or misleading information to
another APS employee, or to a person acting on behalf of
the Commonwealth; or
b.  Wilfully failed to disclose to another APS employee, or to a
person acting on behalf of the Commonwealth, information
that the person knew, or ought to have reasonably known,
was relevant; or
c.  Otherwise failed to have behaved with honestly and with
integrity
in connection with their engagement as an APS employee

In addition to the Code of Conduct, employees are required except
in the course of their duties as an APS employee or with the Agency
Head's express authority, not to give or disclose, directly or
indirectly, any information about public business or anything of which
the employee has official knowledge.
Australian Securities and Investments Commission
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CODE OF CONDUCT POLICY
C
Application
3
The procedures outlined in Part D apply only in relation to a suspected breach of the
Code by an APS employee or employee employed under s.120(3) of the ASIC Act
(team member), or a former APS employee or former employee employed under s.
120(3) of the ASIC Act (former team member), in respect of which a determination is to
be made.
The procedures must be complied with to determine whether a team member, or a
former team member, has breached the Code.
4
Not all suspected breaches of the Code may need to be dealt with by way of a
determination. In particular circumstances, another way of dealing with a suspected
breach of the Code may be more appropriate. This could include using the performance
management system or using alternative forms of dispute resolution (such as mediation
or counselling).

Australian Securities and Investments Commission
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CODE OF CONDUCT POLICY
D
Procedure for determining a breach
5
The Public Service Act 1999 (the PS Act) requires that an Agency Head must establish
procedures to determine a breach of the Code and that these procedures must be in
accordance with the Public Service Commissioner's Directions 2013.
6
Under sub-section 120(2)(b) of the Australian Securities and Investments Commission
Act 2001, the Chairperson of the Australian Securities and Investments Commission
has conferred on him or her the powers of a Statutory Agency Head.
The following procedures establish the requirements under subsection 15(3) of the PS
Act and will be handled in a timely, systematic and effective manner and consistent with
procedural fairness requirements.
Selection of decision maker
7
To determine whether a team member has breached the Code, a decision-maker may
be selected by the Chairperson or the Senior Executive Leader, People & Development.
The person selected must be, and appear to be, independent and unbiased.
The selected decision-maker may determine whether there has been a breach of the
Code or may nominate someone else to assist with examining the matter (an
investigator). The person nominated to assist the decision maker may be an ASIC team
member or an external party.
The tasks undertaken by the investigator in examining an alleged misconduct matter
may be wide ranging but must not encompass making a finding on whether or not the
Code has been breached, or recommending what sanction should be imposed. These
matters are to be determined by the decision-maker.
Determination process to be informal
8
The process for determining whether a team member has breached the Code must be
carried out with as little formality and as much expedition as a proper consideration of
the matter allows.
Formal hearing not required
9
For the purpose of determining whether a team member in ASIC has breached the
Code, a formal hearing is not required.
Information to be given to team member before a
determination is made
10
Before a determination is made in relation to a suspected breach of the Code, the team
member must be informed of:
a)
The details of the suspected breach of the Code (including any variation of those
details), with enough detail to allow the team member to adequately respond, and
b)
The sanctions that may be imposed on the team member under subsection 15 (1)
of the PS Act (including any limitations on that power contained in regulations
made for the purposes of subsection 15(2) of the PS Act).
Australian Securities and Investments Commission
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CODE OF CONDUCT POLICY
Team member right to make a submission
11
The team member:
a)
Must be given a reasonable opportunity to make a submission in relation to the
suspected breach within seven days or any longer period as is reasonable as
determined by the decision maker.
b)
May elect to make an oral statement or written submission or a combination of
both.
c)
May seek assistance from other persons, including a union or employee
representative, in making his or her statement or submission.
d)
May seek an extension of time for the making of their statement or submission. In
deciding whether or not to grant an extension, the decision maker must take into
account the need to be fair to the team member and the requirement in section 8
of these procedures that the matter be dealt with expeditiously.
e)
Who does not make a statement or submission in relation to the suspected
breach is not, for that reason only, to be taken to have admitted committing the
suspected breach.
Determining whether a breach has occurred
12
In determining whether or not the Code has been breached, the decision-maker should
undertake such inquiries as are considered necessary, and reach a conclusion with as
little formality and as much expedition as a proper consideration of the matter allows.
Sanctions under the PS Act
13
If a determination is made that the team member has breached the Code, the following
sanctions under section 15 of the PS Act may be imposed:

a reprimand

deductions from salary, by way of a fine of not more than 2% of the team
member's annual salary

reduction in classification

re-assignment of duties

reduction in salary, or

termination of employment.
14
A decision can be made that other remedial action may be appropriate, including a
warning, training, development or counselling.
15
The purpose of imposing a sanction is not to punish the team member, but to ensure
adherence to the Code.
Australian Securities and Investments Commission
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CODE OF CONDUCT POLICY
Informing team member before a sanction is imposed
16
Where no breach of the Code is found to have occurred, the team member will be
informed accordingly as soon as possible, and given a copy of the record of the basis
for that decision.
17
If a determination is made that the team member has breached the Code, the team
member must be informed of the determination, the sanction or sanctions and the
factors that are under consideration in determining any sanction to be imposed. The
Archives Act 1983 and the Privacy Act 1988 apply to a record made under this section.
18
The team member must be given the opportunity to make a further submission as to
why the proposed sanction should not proceed (including any mitigating circumstances).
19
Where the team member makes further submissions as to why the sanction should not
proceed, the decision maker must consider these submissions and make a decision as
to whether or not to impose the sanction. The decision maker must inform the team
member in writing of this decision as soon as practicable.
Merit Protection Commissioner review
20
The Merit Protection Commissioner, at the request of the Chairperson and with the
agreement of the affected team member or former team member, may inquire and
determine whether a team member or a former team member has breached the Code of
Conduct (PS Act Section 50A).
The affected team member will have no right of review under the Regulations of the
Merit Protection Commissioner's determination as the investigation would be conducted
by an expert body independent of the team member's agency. The outcome of any such
determination may still be subject to judicial review.
The procedures to be followed by the Merit Protection Commissioner in making such a
determination are provided for in Regulation 7.10. The Merit Protection Commissioner is
able to charge a fee for this function, and it will be delivered on a fee-for-service basis.

Australian Public Service Commissioner review

21
The Australian Public Service Commissioner (APS Commissioner) may inquire into and
determine whether a team member or a former team member has breached the Code of
Conduct if:

a)
the Chairman or the Prime Minister requests the APS Commissioner to do so;
and
b)
the APS Commissioner considers it would be appropriate to do so.
The APS Commissioner may exercise the same powers as the Chairman may exercise
in determining whether an APS employee, or a former APS employee, in the Agency
has breached the Code of Conduct.

Australian Securities and Investments Commission
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CODE OF CONDUCT POLICY
Procedure when an team member is to move to another
Agency during an investigation
22
If:
a)
an ongoing team member in ASIC is suspected of having beached the Code; and
b)
the team member has been informed of the matters; and
c)
the matter has not yet been resolved; and
d)
a decision has been made, separate to this investigation, would result in the
movement of that team member to another Agency (under section 26 of the PS
Act).
unless the ASIC Chairman and the new Agency Head agree otherwise,  movement
(including on promotion) does not take effect until the matter is resolved. The matter is
taken to be resolved when a determination has been made or it is decided that a
determination is not necessary.
Australian Securities and Investments Commission
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CODE OF CONDUCT POLICY
E
Rights
Team member suspected of misconduct
23
The identity of the team member who has been accused of misconduct, and the detail
of the allegations, will be kept confidential as far as possible and managed on a 'need to
know' basis, consistent with the requirements of the Privacy Act 1988.
24
Although a team member is generally bound to answer fair and reasonable questions
relating to their activities as an APS employee, an team member suspected of
misconduct cannot be lawfully directed to answer questions relating to the matter where
this could incriminate them. The PS Act framework, including the duty to obey lawful
and reasonable directions, does not remove the common law privilege against self
incrimination.
Whistleblowing provisions and reporting of misconduct
25
The Public Interest Disclosure Act 2013 (PID Act) provides protection for team members
who make whistleblower reports of suspected misconduct.
The PID Act aims to:

encourage and facilitate disclosure of information by public officials about
suspected wrongdoing in the public sector

ensure that public officials who make public interest disclosures are supported and
protected from adverse consequences, and

ensure that disclosures by public officials are properly investigated and dealt with.
The Commonwealth Ombudsman is responsible for promoting awareness and
understanding of the PID Act and more information on this Act can be found on the
Ombudsman’s website at www.ombudsman.gov.au.
Further information may be found in ASIC's Public Interest Disclosures (Whistleblowing)
Policy and Procedures.

Australian Securities and Investments Commission
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CODE OF CONDUCT POLICY
F
Review of actions
26
An APS employee, with the exception of a Senior Executive Service (SES) employee,
who has been found to have breached the Code and who wish to challenge either the
determination that a breach has occurred or the sanction imposed (except in the case of
termination of employment), may lodge an application for a Review of Actions under
Division 5.3 of the Regulations. A decision to suspend a team member during an
investigation can also be the subject of a review. More information is available in the
ASIC Review of Actions Policy.
27
Termination of employment can only be reviewed under the provisions in the Fair Work
Act 2009.

Australian Securities and Investments Commission
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CODE OF CONDUCT POLICY
Annexure A: APS Values
The APS Values are as follows:

Committed to service: The APS is professional, objective, innovative and
efficient, and works collaboratively to achieve the best results for the
Australian community and the Government.

Ethical: The APS demonstrates leadership, is trustworthy, and acts with
integrity, in all that it does.

Respectful: The APS respects all people, including their rights and their
heritage.

Accountable: The APS is open and accountable to the Australian
community under the law and within the framework of Ministerial
responsibility.

Impartial: The APS is apolitical and provides the Government with advice
that is frank, honest, timely and based on the best available evidence.

Australian Securities and Investments Commission
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CODE OF CONDUCT POLICY
Annexure B: APS Employment Principles
The APS is a career-based public service that:
a.
makes fair employment decisions with a fair system of review
b.
recognises that the usual basis for engagement is as an ongoing APS employee
c.
makes decisions relating to engagement and promotion that are based on merit
d.
requires effective performance from each employee
e.
provides flexible, safe and rewarding workplaces where communication,
consultation, cooperation and input from employees on matters that affect their
workplaces are valued
f.
provides workplaces that are free from discrimination, patronage and favouritism,
and
g.
recognises the diversity of the Australian community and fosters diversity in the
workplace.

Australian Securities and Investments Commission
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CODE OF CONDUCT POLICY
Key terms
Term
Meaning in this policy
ASIC Act
Australian Securities and Investments Commission
Act 2001
Australian law
a)
any Act, or any instrument made under an Act;
or
b)
any law of a State or Territory, including any
instrument made under such a law.
Chairperson
ASIC Agency Head.
Code
The APS Code of Conduct as defined under the
Public Service Act 1999.
Material personal
To be 'material', the personal interest of the team
interest
member must be a type that can give rise to a
conflict of interest or a perception of a conflict of
interest. A material personal interest, or a conflict of
interest, can arise out of a work, private or social
context.
PS Act
Public Service Act 1999
Team member
An APS employee and an employee employed
under s. 120(3) of the ASIC Act, either ongoing or
non-ongoing and including employees on probation.

Australian Securities and Investments Commission
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CODE OF CONDUCT POLICY
Related information
ASIC Review of Actions Policy
Public Governance, Performance & Accountability Act
2013
Public Interest Disclosure Act 2013
Public Interest Disclosures (Whistleblowing) Policy
Public Service Act 1999
Public Service Regulations 1999
Public Service Commissioner's Directions 2013

Australian Securities and Investments Commission
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