Documents relating to sanctions for breaches of Code of Conduct

This request has been withdrawn by the person who made it. There may be an explanation in the correspondence below.

Dear Merit Protection Commissioner,

CONTEXT OF REQUEST

I refer to an article published in The Australian on 8 February 2022. The name of article was Untried lawyers score key positions.

In that article, it was noted that Kate McMullan of the APSC had conducted an investigation and found that:

a) admission as a legal practitioner had been listed as an essential requirement for a registrar role in the Federal Court;
b) a selection committee had not considered this essential requirement when it hired a female candidate to fill the registrar role;
c) the female candidate "was selected over a field of candidates all of whom did have this work related quality."

It has since come to light that:

a) the role in question was an NCF Registrar role in the Federal Court (https://www.righttoknow.org.au/request/u...
b) the role was advertised in Public Service Gazette PS38 of 2016 with a vacancy number of NN10690165 (https://www.righttoknow.org.au/request/u...
c) the candidate selected was Caitlin Wu (https://www.righttoknow.org.au/request/u...
d) Ms Wu's promotion notice was published in Public Service Gazette PS49 of 2016 with a promotion number of NN10698155 (https://www.righttoknow.org.au/request/u...
e) Ms Wu was promoted from an APS4 position into an Executive Level 1 position (https://www.righttoknow.org.au/request/u...
f) the selection panel consisted of Sia Lagos, David Pringle and Andrea Jarratt (https://www.righttoknow.org.au/request/u...
g) Sia Lagos, the current CEO and Principal Registrar of the Federal Court, was the chairperson of the selection panel (https://www.righttoknow.org.au/request/u...
h) Sia Lagos was the Agency Head's delegate for the selection process (https://www.righttoknow.org.au/request/u... and
i) Sia Lagos endorsed the recommendation of the selection panel in her capacity as the Agency Head's delegate on 2 December 2016 (https://www.righttoknow.org.au/request/u...).

A public interest disclosure was made, among other things, about the selection process that saw Ms Wu promoted to the NCF Registrar role to the Commonwealth Ombudsman in 2020. On 11 May 2020 the Commonwealth Ombudsman allocated the public interest disclosure to the Australian Public Service Commission (https://www.righttoknow.org.au/request/r...). In the allocation letter, which had a reference of PID-2020-400006, and which was addressed to Peter Woolcott, the Australian Public Service Commissioner, the author of the letter stated:

"It is the responsibility of your agency to determine how this matter will be handled from this point. However we note that this allocation decision has been made with reference to the broad powers available to consider the matter by virtue of an allocation under the PID Act and under the Public Service Act 1999 (PS Act) (in particular s 41(2)(o))." (https://www.righttoknow.org.au/request/r...).

Section 41(2)(o) of the Public Service Act 1999 provides:

the Commissioner's functions include the following:

(o) to inquire, subject to the regulations, into public interest disclosures (within the meaning of the Public Interest Disclosure Act 2013), to the extent that the disclosures relate to alleged breaches of the Code of Conduct.

The disclosure related to alleged breaches of the Code of Conduct. The Office of the Commonwealth Ombudsman thought the public interest disclosure was of such a nature that it needed to be allocated to an agency other than the home agency, the Federal Court. That is an extraordinary allocation because when deciding to allocate a public interest disclosure to an agency, the authorised officer who has received the disclosure must have regard to the principle that an agency should not handle the disclosure unless some or all of the disclosable conduct with which the information may be concerned relates to the agency (PID Act, s 43(3)(a)(i)).

The public interest disclosure was investigated by Kate McMullan, the Acting Assistant Commissioner, Integrity, Performance and Employment Policy in the Australian Public Service Commission, and the Australian Public Service Commissioner's delegate under the PID Act (https://www.righttoknow.org.au/request/o...). Ms McMullan finalised her report on 9 December 2020 (https://www.righttoknow.org.au/request/o...).

According to her PID report, Ms McMullan made the following findings:

a) "on the balance of probabilities that the recruitment process that ultimately led to the FCSA promoting Ms Wu into this position did not comply with the APS Employment Principles under subsection 10A(2) of the PS Act ..." (https://www.righttoknow.org.au/request/w... and
b) "the relevant employment practices of the FCSA were therefore in contravention of section 10A of the PS Act, and that disclosable conduct, within the meaning of item 1 of the table in subsection 29(1) of the PID Act, has therefore been engaged ... on the basis that the relevant employment practice in relation to the engagement of Ms Wu was conducted in contravention of the PS Act, being a Commonwealth law." (https://www.righttoknow.org.au/request/w...).

Despite making those findings, Ms McMullan thought that the most appropriate response to Sia Lagos, David Pringle and Andrea Jarratt deliberately selecting an unmeritorious candidate ahead of meritorious candidates who met the essential selection criteria for the role was:

"I recommend that FCSA staff be provided with guidance and/or training about the APS Employment Principles prior to undertaking any recruitment action, to prevent further incidents of this nature.

I also recommend that relevant FCSA staff familiarise themselves with the APS Code of Conduct, and in particular subparagraph 13(11)(a) of the Public Service Act 1999, which states, relevantly, that employees must at all times behave in a way that upholds the APS Employment Principles."

Marco Spaccavento, the Assistant Commissioner, Workplace Relations at the Australian Public Service Commission has established that Ms McMullan did not comply with procedures established under subsection 15(3) of the Public Service Act 1999 when conducting the investigation into the alleged breaches of the Code of Conduct, even though that is an essential requirement of conducting investigations relating to alleged breaches of the Code of Conduct under paragraph 53(5)(b) of the PID Act (the reason the Commonwealth Ombudsman allocated the PID to the APSC was that the allegations related to contraventions of the Code of Conduct).

The following propositions apply in relation to the Code of Conduct and Code of Conduct investigations:

I) the test for establishing whether an employee has breached the Code of Conduct is an objective one (https://www.mpc.gov.au/case-summaries/ap...
II) the propriety of the actions of a public servant should be assessed by reference to the standard of conduct expected of a public servant, having regard principally to the expectations of the public (Bercove v Hermes (No 3) (1983) 51 ALR 109, 117 - 120);
III) that senior executive service (SES) employees model and promote the APS Values, the APS Employment Principles and compliance with the Code (Public Service Act 1999 s 35(5);
IV) the appropriate sanction in any case will be the sanction that the decision-maker considers meets the object of imposing a misconduct sanction, which is not to punish or exact retribution but to maintain and protect the integrity and reputation of the APS and ensure adherence to proper standards of conduct (Commissioner of Taxation v Day (2008) 236 CLR 163 at [34]–[35]; McManus v Scott-Charlton (1996) 70 FCR 16 at 24–25);
V) Members of the Australian Public Service are enjoined by the Public Service Act (s 13) to act with care and diligence and to behave with honesty and integrity. This is indicative of what throughout the whole period of the public administration of the laws of the Commonwealth has been the ethos of an apolitical public service which is skilled and efficient in serving the national interest (Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146 at [55]);
VI) consistent with the significance of the APS as a constituent part of the system of representative and responsible government, the APS Code of Conduct regime is properly directed to maintaining and protecting an apolitical and professional public service that is skilled and efficient in serving the national interest (Comcare v Banerji (2019) 267 CLR 373 generally);
VII) The APS Code of Conduct regime is in the nature of a civil penalty regime directed at deterring conduct in breach of the Code and thus maintaining and protecting the public and constitutional purposes served by the APS (Comcare v Banerji (2019) 267 CLR 373 at [40]-[44]);
VIII) the purpose of the misconduct regime under the PS Act is protective (rather than punitive) – that is, the regime is intended to protect the public, maintain proper standards of conduct by APS employees and protect the reputation of the APS (Bragg v Secretary, Department of Employment, Education and Training [1996] FCA 476);
IX) in assessing the appropriate sanction (if any), it is necessary to consider the nature and gravity of the misconduct, the need for both specific and general deterrence (to deter any future misconduct by the specific employee and by employees generally) and the personal circumstances of the employee (Comcare v Banerji (2019) 267 CLR 373 at [40]-[45]);
X) As a matter of law, that discretion must be exercised reasonably and, therefore, according to the nature and gravity of the subject contravention. As with other civil penalties, the essence of the task is to put a price on the contravention sufficiently high to deter repetition by the contravenor and others who might be tempted to contravene, but bearing in mind that a penalty of dismissal must not be “harsh, unjust or unreasonable”. Unquestionably, there are cases of breach of s 13(11) that are so serious in the damage done to the integrity and good reputation of the APS that the only appropriate penalty is termination of employment … (Comcare v Banerji (2019) 267 CLR 373 at [40]);

It has been established that Sia Lagos, David Pringle and Andrea Jarratt also constituted the selection committee that selected Murray Belcher as the SES 1 National Judicial Registrar & District Registrar - QLD (https://www.righttoknow.org.au/request/d...), even though he was not allocated an SES1 classification pursuant to rule 6 of the Public Service Classification Rules (https://www.righttoknow.org.au/request/m...), and even though Justice Greenwood went on the record in The Australian to criticise Warwick Soden and Sia Lagos for their roles in denying Mr Belcher lawful promotion to the senior executive service of the APS (Top judge warned of registrar overhaul, published on page 7 of the The Australian on 10 February 2022; https://www.reddit.com/r/auslaw/comments...).

The evidence tends to suggest that Sia Lagos, David Pringle and Andrea Jarratt are repeat offenders when it comes to misconduct relating to employment decisions. It is clear that Kate McMullan considered the allegations relating to Murray Belcher's selection (https://www.righttoknow.org.au/request/r...), which is also under a cloud.

So Sia Lagos, David Pringle, and Andrea Jarratt select an unmeritorious candidate for a Registrar position in the Federal Court, Sia Lagos approves the selection committee's recommendation that this unmeritorious candidate be selected ahead of other candidates, all of whom had met essential requirement of having been admitted to the Supreme Court of a State or Territory, and the appropriate response was a training exercise for the staff of the Federal Court Statutory Agency.

How can Ms McMullan's response to the findings of fact that she made be considered adequate in the light of I - X above?

FOI REQUEST

Under the FOI Act I request access to any and all of documents in the control of the Merit Protection Commissioner, or in the control of staff assisting her, that has not been published on www.mpc.gov.au and relates to sanction decisions for contraventions of the Code of Conduct set out in the Public Service Act 1999 (Cth).

You may send the documents to me by return email.

Yours faithfully,

raphael

Banwell, Kirsteen,

2 Attachments

OFFICIAL

Hello Raphael,

 

I refer to your email to the Australian Public Service Commission (APSC)
on 29 June 2022, requesting information under the Freedom of Information
Act 1982.

 

The majority of your email raises issues about the alleged actions of an
employee of the APSC and those are matters for that agency and not this
office.

 

I can advise the MPC has accepted a transfer from the APSC of those
aspects of your request that relate to information in the control of the
MPC.

 

I am writing to acknowledge receipt of your request and to advise that
your request is currently being assessed.

 

Please do not hesitate to contact me if you have any questions about this
decision.

 

 

Regards

 

Kirsteen Banwell

Director, Strategy & Projects

 

Merit Protection Commissioner

PO Box 20636 World Square Post Office, SYDNEY NSW 2002

T: 02 8239 5353 w: http://www.mpc.gov.au

[1]MPC logo_Colour

 

 

 

show quoted sections

Banwell, Kirsteen,

3 Attachments

OFFICIAL: Sensitive

Dear Raphael,

 

Thank you for your request for information under the Freedom of
Information act 1982.

 

Please find attached my response to your request and reasons for the
proposed decision.  

 

If you have any queries or questions please do not hesitate to contact me.

 

Regards,

 

 

Kirsteen Banwell

Director, Strategy & Projects

 

Merit Protection Commissioner

PO Box 20636 World Square Post Office, SYDNEY NSW 2002

T: 02 8239 5353 w: http://www.mpc.gov.au

[1]MPC logo_Colour

 

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Dear Ms Banwell,

Thank you for your letter.

In the light of what you have stated, I would like to revise my FOI request.

FOI REQUEST

Under the FOI Act I request access to any and all of documents in the control of the Merit Protection Commissioner, or in the control of staff assisting her, that have not been published on www.mpc.gov.au and are:

a) administrative documents, which were relevant during 1 January 2020 – 29 June 2022; and/or
b) operational documents not published on the Department's website, and which were relevant during 1 January 2020 – 29 June 2022,

on how sanction decisions for contraventions of the Code of Conduct, set out in the Public Service Act 1999 (Cth), were or are or should be applied.

To clarify, I am not asking you for any documents that record actual sanction decisions against Commonwealth employees. The scope of administrative and/or operational documents should be understood to extend to manuals, guidelines, procedures, checklists, circulars and other documents that set out how sanction decisions for contraventions of the Code of Conduct were, or are, or should be, applied by sanction decision makers in the course of a Code of Conduct investigation.

You may send the documents to me by return email.

Yours sincerely,

raphael

Banwell, Kirsteen,

2 Attachments

OFFICIAL

Dear Raphael,

 

Thanks for your clarification email received on Monday 25/07/2022.  If I
understand your request correctly, you are looking for the manuals,
guidelines, procedures or checklists that a decision maker can use to make
a sanction decision. I hope the information provided below is helpful.

 

It is important to note that there is no prescribed formula for deciding a
sanction. In every case, the decision maker is required to exercise their
own judgement, based on the unique individual circumstances of the case
and in accordance with the principles of good administrative decision
making. However, there should be a degree of consistency within an agency
on the sanctions imposed for the same type of misconduct.  It is also
important to understand that any sanction imposed can only be one that is
permitted under the Public Service Act 1999. The list of available
sanctions is in section 15(1). An agency cannot impose any other penalty
on an employee as a sanction for misconduct.

 

Under 15(3) of the Public Service Act an APS agency is required to have
procedures to deal with alleged breaches of the code and sanction
decisions. The Commissioner’s Directions set out the basic procedural
requirements for determining a breach of the code and sanction decision.
In practice, a large number of APS agencies publish their own procedures
for determining code of conduct and sanction decisions on their website.
You can access the MPC procedures [1]here. I have also included some links
to other agencies procedures for you to review.  

 

APSC

[2]https://www.apsc.gov.au/about-us/what-we...

 

ATO

[3]https://www.ato.gov.au/About-ATO/Managin...

 

Defence

[4]https://www1.defence.gov.au/sites/defaul...

 

Another important guide for decision makers is the APSC’s [5]Handling
Misconduct, A human resource manager’s guide which sets out the wide range
of factors that can be taken into account when determining a sanction
decision. At Chapter 9: Sanctions you will find the basis of what makes a
fair, reasonable and lawful sanction decision. The chapter includes:

-          factors to be considered in deciding a sanction

-          considerations in imposing particular sanctions

-          recording the sanction decisions and advising the outcome

-          procedural fairness in the sanction decisions

-          other considerations.

 

There is also a [6]Fact Sheet as part of the guidance materials available
to decision makers.

 

For the sake of completeness, I have also included a section of the MPC’s
Review of Actions manual that deals with sanction decisions. It says:  

In all circumstances of the case, including any mitigating factors, was
the sanction imposed appropriate?

1.              The purpose of a sanction is not to punish the employee
but to protect the reputation of the APS and ensure proper standards of
behaviour. A sanction should provide a clear message to the relevant
employee that their behaviour was not acceptable and, subject to privacy
considerations, act as a deterrent to others. The sanction needs to be
proportionate to the misconduct in that context. Where a sanction is too
severe, it is likely to be seen as unfair by the employee concerned, and
others, and may be counterproductive. The sanction should focus on the
seriousness of what the employee has done.

2.              Handling Misconduct publication sets out a number of
matters which may be relevant in determining the level of a sanction. A
reviewer should refer to the discussion in Handling Misconduct when
weighing the factors relevant to sanction.

3.              It is also relevant to consider whether the sanction is
within the range of reasonable sanctions imposed in similar cases. These
need to be considered from the perspective of the employee’s
agency—breaches that impact on the core or legislative responsibilities of
an agency are likely to receive a higher sanction in that agency in
comparison to another agency where the matter may be considered a
peripheral breach. Consistency of sanctions within the agency is also a
consideration.

4.              It is also necessary to consider if the sanction imposed
is one that is allowable under the legislative framework. The list of
available sanctions is in section 15(1) of the Public Service Act. An
agency cannot impose any other penalty on an employee as a sanction for
misconduct. The MPC has set aside sanction decisions in the past because
the penalty imposed on the employee was not a sanction permitted by
section 15(1). In some cases, an agency may take management action with
respect to the employee for example require the employee to pay back a
debt. However, this is not a sanction and should not be expressed as such.

5.              Sanctions should be proportionate to the seriousness of
the misconduct engaged in and any adverse consequence/outcome of the
misconduct. With this in mind:

·         it is not inappropriate to impose more than one sanction (e.g. a
reprimand and a fine)—the ultimate issue is whether the total sanction is
proportionate to the misconduct

·         the number of breaches of the Code of Conduct applied to a
behaviour is not in itself a determining factor in the appropriateness of
the sanction (i.e. an applicant does not get a greater sanction simply
because he or she breached two elements of the Code as opposed to one)

·         multiple breaches arising from separate behaviour is also
subject to the same notion of the total sanction being proportionate to
the misconduct—the so called ‘totality principle’ requires that you look
at the overall effect of the separate sanctions.

6.              The MPC should take a reasonably consistent approach to
the issue of sanctions and reasoning with respect to the seriousness of
the behaviour.

 

In light of this information, please let me know if you are satisfied and
agree to formally withdraw your request under the FOI Act. Please feel
free to give me a call to discuss any of the above.   

 

Regards,

 

 

Kirsteen Banwell

Director, Strategy & Projects

 

Merit Protection Commissioner

PO Box 20636 World Square Post Office, SYDNEY NSW 2002

T: 02 8239 5353 w: http://www.mpc.gov.au

[7]MPC logo_Colour

 

______________________________________________________________________ 
IMPORTANT: This message, and any attachments to it, contains information 
that is confidential and may also be the subject of legal professional or 
other privilege. If you are not the intended recipient of this message,
you 
must not review, copy, disseminate or disclose its contents to any other 
party or take action in reliance of any material contained within it. If
you 
have received this message in error, please notify the sender immediately
by 
return email informing them of the mistake and delete all copies of the 
message from your computer system. 
______________________________________________________________________

References

Visible links
1. https://www.mpc.gov.au/sites/default/fil...
2. https://www.apsc.gov.au/about-us/what-we...
3. https://www.ato.gov.au/About-ATO/Managin...
4. https://www1.defence.gov.au/sites/defaul...
5. https://www.apsc.gov.au/circulars-guidan...
6. https://www.apsc.gov.au/fact-sheet/fact-...

Dear Ms Banwell,

Let me begin by thanking you for your professionalism. I have never dealt with a more competent FOI Officer.

Thank you for the explanations that you have provided. They are valuable.

One thing that I would like access to is an operational document that you have referred to in your response. You referred to the Merit Protection Commission's "Review of Actions" manual. I think all public servants, including sanction decision makers, would derive considerable benefit from having access to that manual.

Given how competently and professionally you have dealt with my FOI request, I would not want to cause you any unnecessary trouble but my preference would be to leave the request active until I get a timely response from you indicating whether you will or will not provide access to the "Review of Actions" manual.

Yours faithfully,

raphael

Banwell, Kirsteen,

2 Attachments

OFFICIAL

Dear Raphael

 

Thank you for your email of 3 August 2022.

 

I refer to your initial FOI request for information which was specifically
about material on the making of sanctions decisions in the APS. As you
have noted I provided you with information which includes information from
the MPC's own Review of Actions manual that relate to the review of
sanction decisions by her delegates. 

 

I also note your preference to leave your original FOI request 'active'
until you receive my advice on whether we will release the entire Review
of Actions manual. While I note your preference, I do not consider your
request for the entire MPC Review of Actions manual is in any way related
to your original FOI request.

 

In relation to your request for the manual you refer to it as an
'operational document'. I can advise that my preliminary view is that we
would not release a complete copy of the Review of Actions manual. 

 

In this regard I refer you to the definition of operational information in
section 8A(1) of the FOI Act as being information that assists an agency
to make decisions or recommendations ‘affecting members of the public’.
This means the definition does not extend to agency manuals and rules
relating to personnel management and staff conditions of employment.

 

These types of manuals and rules relate to employees in their employment
capacity and not as members of the public.  For the same reason the
definition of operational information does not extend to information by
way of manuals and rules held by the MPC relating to the review of
decisions about APS employees because the information relates to APS
employees in their employment capacity and not as members of the public
(see paragraph 13.100 of the FOI Guidelines at
[1]https://www.oaic.gov.au/freedom-of-infor...
). As such, the MPC is not required to publish it as part of our IPS
entry.

 

In light of the above would you now please advise me if the information I
have provided you satisfies your current FOI Request and whether you
withdraw your current FOI request. 

 

Please feel free to give me a call to discuss any of the above. 

 

Regards

 

 

Kirsteen Banwell

Director, Strategy & Projects

 

Merit Protection Commissioner

PO Box 20636 World Square Post Office, SYDNEY NSW 2002

T: 02 8239 5353 w: http://www.mpc.gov.au

[2]MPC logo_Colour

 

______________________________________________________________________ 
IMPORTANT: This message, and any attachments to it, contains information 
that is confidential and may also be the subject of legal professional or 
other privilege. If you are not the intended recipient of this message,
you 
must not review, copy, disseminate or disclose its contents to any other 
party or take action in reliance of any material contained within it. If
you 
have received this message in error, please notify the sender immediately
by 
return email informing them of the mistake and delete all copies of the 
message from your computer system. 
______________________________________________________________________

References

Visible links
1. https://www.oaic.gov.au/freedom-of-infor...

Dear Ms Banwell,

Thank you for your explanation.

Having considered your emails, I am at a loss to make sense of Ms McMullan's decision in the light of her findings. Despite finding that the APS employment principles has been contravened, her conclusion was:

"I recommend that FCSA staff be provided with guidance and/or training about the APS Employment Principles prior to undertaking any recruitment action, to prevent further incidents of this nature.

I also recommend that relevant FCSA staff familiarise themselves with the APS Code of Conduct, and in particular subparagraph 13(11)(a) of the Public Service Act 1999, which states, relevantly, that employees must at all times behave in a way that upholds the APS Employment Principles."

Your emails have been useful in as much as they have clarified, in my mind, what appears to be a glaring error in Ms McMullan's conclusion.

I formally withdraw my FOI request.

Yours sincerely,

raphael