Chapter 10: Reporting Alleged Misconduct and Criminal Offences
This chapter sets out how to report alleged misconduct and criminal offences (including Australian exterritorial offences) in the department, elsewhere in the APS and by third parties. It also outlines the department's policy on whistleblowing.
Staff should contact the Conduct and Ethics Unit (email@example.com) if they require clarification of the contents of this Manual or if they are uncertain about the ethical implications of a proposed course of action.
10.1 Reporting Alleged Misconduct in DFAT
What do I need to do?
- Report alleged misconduct in the department directly to CEU
- Or else, report it directly to other authorised persons - including HOM/HOP, FAS CMD or your A-based supervisor.
Refer any reports of alleged misconduct directly to CEU, HOM/HOP or FAS CMD.
10.1.1 There is always close public scrutiny of the work of the department in Australia and overseas. This places an obligation on all staff members (APS employees, LES employees and contractors) to maintain the highest standards of conduct and ethical behaviour. The department has been able to maintain high standards as a result of its workplace culture, which does not tolerate misconduct or unethical behaviour. All staff members (APS employees, LES employees and contractors) therefore have a responsibility to report alleged misconduct in the department promptly, should it occur.
10.1.2 It is important that reports of alleged misconduct in the department are made discreetly and directed only to authorised persons. This is to ensure that:
- any person against whom allegations of misconduct are made is treated fairly through procedures set out in Chapter 11 of this Manual and has his or her privacy protected;
- any person reporting the alleged misconduct is protected under the department's policy on "whistleblowing", set out in section 10.2 of this Manual;
- confidentiality is maintained and no unauthorised disclosure of official or personal information occurs in reporting the alleged misconduct.
10.1.3 The APS Code of Conduct and the standard LES Code of Conduct require staff to behave honestly and with integrity. The department may decline to assess or investigate an allegation of misconduct which is clearly frivolous, false or malicious, or where the matter has already been the subject of a proper examination. Making knowingly frivolous, false or malicious allegations of misconduct has the potential to undermine trust and morale in the workplace. Disciplinary action under the relevant Code of Conduct may be taken against staff found to have made allegations of misconduct which are knowingly frivolous, false or malicious.
To Whom Should I Report Alleged Misconduct?
10.1.4 APS employees, LES employees and contractors in the department should report alleged misconduct in the department directly to the Conduct and Ethics Unit (CEU) – by "staff-in-confidence" e-mail to firstname.lastname@example.org, by telephone on ext 9202 or ext 1519, or in person at N2.501-2 in the R G Casey Building. Where alleged misconduct may also constitute criminal or other unlawful behaviour, CEU may refer the matter to relevant law enforcement authorities for assessment and possible investigation and prosecution. Staff can be assured that any information provided to CEU in good faith will be treated confidentially in accordance with relevant Commonwealth legislation.
10.1.5 If for any reason it is not possible to report the alleged misconduct directly to CEU, staff should direct allegations of misconduct to other authorised persons in the department.
10.1.6 Authorised persons in the department for reporting alleged misconduct by an APS employee, LES employee or a contractor in the department are:
- HOM/HOP only in cases of alleged misconduct at the relevant post;
- FAS CMD;
- the Secretary;
- Workplace Diversity Unit (WDU) only in cases of alleged harassment, bullying or discrimination;
- A-based manager / supervisor (who must refer the report directly to one of the above, usually CEU).
To ensure appropriate protection of information provided, any allegations of misconduct should generally be made to these persons in the first instance by "staff-in-confidence" e-mail.
10.1.7 In addition, section 16 of the Public Service Act 1999provides that APS employees may report alleged misconduct of an APS employee in the department to:
- the Australian Public Service Commissioner or persons authorised by the Australian Public Service Commissioner; or
- the Merit Protection Commissioner or persons authorised by the Merit Protection Service Commissioner.
10.1.8 APS employees, LES employees and contractors may also report alleged criminal or other unlawful behaviour in the department to relevant Australian law enforcement authorities.
10.2 Whistleblowing in DFAT
What do I need to do?
- Report alleged misconduct only to authorised persons
- Protect whistleblowers in accordance with relevant legislation and these procedures
- Ensure that records at post containing the identity of a whistleblower at post are retained securely and exclusively by HOM/HOP
10.2.1 The department recognises the legitimacy of whistleblowing. The spirit and intent of the department's whistleblowing policy is to assist and protect staff (APS employees, LES employees and contractors) who are acting in good faith when reporting alleged misconduct. Provisions for procedural fairness and natural justice for staff who are the subject of whistleblower reports are set out in Chapter 11 of this Manual.
What is Whistleblowing?
10.2.2 Whistleblowing is providing information to authorised persons about actual or alleged unlawful, negligent or improper conduct within an organisation. In the department, a whistleblower is an APS employee, an LES employee or a contractor who provides, in good faith and through authorised departmental or other official channels, information about alleged unlawful, negligent or improper conduct relating to the operation of the department in Australia or overseas, including
- an offence under an Act of Parliament, including the Crimes Act 1914 or the Public Service Act 1999; or
- theft, mismanagement or waste of Commonwealth funds; or
- fraudulent use, misuse or abuse of Commonwealth property or equipment; or
- a breach of the APS Code of Conduct, the DFAT Code of Conduct for Overseas Service or the applicable LES Code of Conduct; or
- practices resulting in danger to occupational or public health and safety.
These examples are not intended to be all-inclusive.
10.2.3 Whistleblowing is not a complaint or disagreement about government policy. Nor should it be confused with a request for a review of employment actions(formerly known as "grievances"). Whistleblowing does not mean leaking or making unauthorised disclosures – for example, where a staff member raises concerns about alleged misconduct directly with the media. Whistleblowing reports must be made to the authorised departmental or other official persons set out in section 10.1.6-10.1.7 of this Manual. Leaking or making other unauthorised public disclosures may constitute a breach of the Crimes Act 1914, as well as the APS Code of Conduct or the applicable LES Code of Conduct – see section 7.1 of this Manual.
10.2.4 A whistleblower may elect to make an anonymous report. However, those responsible for assessing whistleblower reports frequently need to seek additional information from whistleblowers before deciding whether to recommend a formal investigation. This becomes more difficult in the case of an anonymous report.
Protection for Whistleblowers
10.2.5 Section 16 of the Public Service Act 1999 provides protection to APS employees who are whistleblowers. It states that "a person performing functions in or for an Agency must not victimise, or discriminate against, an APS employee because the APS employee has reported breaches (or alleged breaches)" of the APS Code of Conduct to the authorised departmental or other official persons set out in sections 10.1.6-10.1.7 of this Manual.
10.2.6 In addition to this protection provided to APS employees, a range of Commonwealth legislation protects APS employees, LES employees and contractors who are whistleblowers:
- a whistleblower's identity is "personal information" for the purposes of the Privacy Act 1988, and disclosure of personal information without an individual's consent is permitted only under certain strictly defined circumstances;
- a whistleblower's identity is also protected under the Freedom of Information Act 1982, which exempts from disclosure documents which would involve a breach of confidence or would have an adverse effect the operations of a department;
- Section 340 of the Fair Work Act 2009 protects employees from "adverse actions" being taken against them in relation to "workplace rights", which includes making a complaint or inquiry;
- the Occupational Health and Safety (Commonwealth Employment) Act 1991 contains a similar provision protecting employees who report a matter concerning the health, safety or welfare of employees at work.
Local law may provide additional protections for LES employees who are whistleblowers.
10.2.7 The identity of a whistleblower will only be passed in the department to those who have a direct need to know for the purposes of assessing, investigating and/or making a determination about the reported matter. CEU will advise a whistleblower whether an investigation is to be conducted. In cases where several employees provide information about the same incident, each whistleblower will be advised independently. The Australian Public Service Commission advises that in some cases, where the identity of the person reporting the misconduct is a key part of the accused employee knowing the case against him or her, the identity of the reporting employee may need to be disclosed. Before this is done, however, the reporting employee should be advised of the disclosure and encouraged to report any behaviours that he or she regards as retaliatory.
10.2.8 A whistleblower's identity is not to appear on records held outside CEU, or in cases of whistleblowing at post, outside CEU and the office of HOM/HOP. Security measures are in place within CEU to support these arrangements. HOMs/HOPs must have in place security measures within their offices to support these arrangements.
10.2.9 These protections apply to family members of whistleblowers who are employees of or contractors in the department.
10.2.10 Consistent with the measures outlined above, the department will protect a whistleblower from disciplinary action or harassment, provided the whistleblower has not knowingly made a frivolous, false or malicious report. If a whistleblower can show grounds for believing that he or she is likely to suffer reprisal and if the department and the whistleblower agree that the only way of removing the threat of reprisal may be to relocate the whistleblower, this will be done where operationally practicable.
10.2.11 Protections provided to whistleblowers do not preclude the investigation of an allegation or counter-allegation made against the whistleblower. This is irrespective of whether the allegation is related to the original report made by the whistleblower.
10.2.12 Where the department has declined to investigate a whistleblower report either because it considers the report to be frivolous, vexatious or malicious or because there is insufficient evidence to justify an investigation, or where, following the department's investigation of a whistleblower report the whistleblower is not satisfied with the outcome of the investigation, the whistleblower may refer the report to the Public Service Commissioner, a person authorised by the Public Service Commissioner, the Merit Protection Commissioner, or a person authorised by the Merit Protection Commissioner.
External Investigations and Protecting Whistleblowers
10.2.13 Should the department consider it necessary, an investigation arising from a whistleblower's report may be referred to another agency (such the Australian Public Service Commission or Australian law enforcement authorities). In such circumstances, the department will impress upon the agency concerned its desire to preserve the confidentiality of the source of the information to the maximum degree possible. Staff should be aware that if a whistleblower is a key witness in a contested prosecution, it is likely that his or her identity will become a matter of public record.
10.2.14 Should an external agency take control of an investigation, the department will continue to provide whistleblower protections as set out in sections 10.2.5-10.2.11 of this Manual.
Public Disclosure of Whistleblower Information
10.2.15 As is the case with any official information to which staff have access, the unauthorised public disclosure (directly or indirectly) of a whistleblower's report or identity may constitute a breach of section 70 of the Crimes Act 1914, as well as the APS Code of Conduct or the applicable LES Code of Conduct.
10.2.16 The department may choose to publicise aspects of a particular case – once it has been resolved – with a view to quashing rumours and deterring future inappropriate conduct. This option would be pursued only if the whistleblower and the department agree. In such situations, the department would protect the privacy of all involved.
Frivolous, False or Malicious Allegations
10.2.17 The APS Code of Conduct and the standard LES Code of Conduct require staff to behave honestly and with integrity. The department may decline to assess or investigate an allegation of misconduct which is clearly frivolous, false or malicious, or where the matter has already been the subject of a proper examination. Making knowingly frivolous, false or malicious allegations of misconduct has the potential to undermine trust and morale in the workplace. Disciplinary action under the relevant Code of Conduct may be taken against staff found to have made allegations of misconduct which are knowingly frivolous, false or malicious.
10.2.18 However, where a whistleblower has genuinely misconstrued events and has made an allegation in good faith and on reasonable grounds, or where the allegation appears justified but cannot be proved on the balance of probability, the allegation would not be regarded as knowingly false, frivolous or malicious. No action under the relevant Code of Conduct would be considered against the whistleblower. In such situations, the department would provide whistleblower protections as set out in sections 10.2.5-10.2.11 of this Manual.
10.3 How to Report Alleged Misconduct by Employees of Other APS Agencies
What do I need to do?
- In Australia, report alleged misconduct to CEU
- Overseas, report alleged misconduct to HOM/HOP.
- Pass reports to CEU for referral to relevant APS agency
- Pending possible investigation by that agency, document any direction to relevant staff regarding their actions and behaviour.
10.3.1APS employees, LES employees and contractors have a responsibility to report alleged misconduct by employees or contractors of other APS agencies.
10.3.2 In Australia, APS employees and contractors should report the alleged misconduct to CEU for referral to the relevant APS agency for possible investigation. They should do so in the first instance by "staff-in-confidence" e-mail at email@example.com, by telephone on ext 9202 or ext 1519, or in person at N2.501-2 in the R G Casey Building.
10.3.3 At post, APS employees, LES employees and contractors should report the alleged misconduct to HOM/HOP. HOM/HOP should then pass the information to CEU for referral to the relevant APS agency for possible investigation. HOM/HOP should do so in the first instance by "staff-in-confidence" e-mail at firstname.lastname@example.org, by telephone on ext 9202 or ext 1519, or in person at N2.501-2 in the R G Casey Building. In the case of alleged misconduct by a non-DFAT LES, DFAT may assist the relevant agency, where necessary and on a cost recovery basis, to manage the alleged misconduct. DFAT's procedures for managing alleged misconduct, as set out in section 11.2 of this Manual, would apply.
10.3.4 Pending possible investigation by the relevant APS agency, HOMs/HOPs reserve the right under the Prime Minister's Directive on the Guidelines for the Management of the Australian Government Presence Overseas (see Administrative Circular P1030) to make directions regarding the actions and behaviour of relevant staff at post to ensure that the reputation of the post and the Australia Government is maintained. In doing so, HOMs/HOPs should consult FAS CMD and should document any directions made in this regard.
10.4 Responsibility to Report Alleged Criminal Offences by Third Parties
What do I need to do?
- In Australia, e-mail information about alleged offences to DFAT's Sanctions and Transnational Crime Section (STC/ILD)
- Overseas, report information about alleged offences to HOM/HOP.
- Cable information to STC/ILD in consultation with any AFP Liaison Officer at post.
10.4.1 APS employees, LES employees and contractors should follow the procedures set out in sections 10.1-10.3 of this Manual for reporting alleged misconduct and criminal behaviour by staff of the department and other APS agencies.
10.4.2 APS employees, LES employees and contractors also have a responsibility to report certain alleged criminal offences by third parties. They must ensure that where they become aware of information which they reasonably suspect relates to the commission of a serious criminal offence under Australian law by third parties, they report it to the appropriate Australian authorities.
10.4.3 Australia's criminal law applies to certain serious offences committed overseas by Australian citizens, permanent residents or companies. These Australian extraterritorial offences include, but are not limited to, those associated with:
- corruption (such as bribery of foreign public officials);
- transnational organised crime (such as drug trafficking, money laundering, people smuggling and trafficking in persons);
- child sex tourism;
- terrorism (such as participation in terrorist acts, membership of a terrorist organisation, providing support to a terrorist organisation or financing terrorism);
- breach of United Nations Security Council Sanctions;
- actions contrary to international peace and security (such as war crimes, crimes against humanity, genocide, proliferation of weapons of mass destruction (WMD) and foreign incursions and recruitment).
10.4.4 APS employees, LES employees and contractors who become aware of information which could reasonably be suspected to relate to an extraterritorial offence under Australian law must observe the following procedures:
- in Canberra and State/Territory Offices: report the matter by e-mail marked "legal-in-confidence" to Director, Sanctions and Transnational Crime Section (STC), copied to the Senior Legal Adviser;
- at post: report the matter immediately to HOM/HOP; HOM/HOP must then refer all information relating to the matter to Canberra (attention Director STC copied to the Senior Legal Adviser) by HOM/HOP-approved "legal-in-confidence" cable; at posts with accredited Australian Federal Police Liaison Officers (AFPLO), HOM/HOP may wish to consult the AFPLO before the report is cabled to Canberra.
10.4.5 The department has no investigatory or law enforcement role in relation to Australian extraterritorial offences. It is the responsibility of AFP and other Australian law enforcement authorities to conduct investigations into credible allegations. Departmental staff have a responsibility to report allegations, but under no circumstances should they seek to investigate the allegations of Australian extraterritorial offences themselves.
10.4.6 The existence of information suggesting that an Australian may have committed an Australian extraterritorial offence does not diminish that Australian's entitlement to appropriate consular assistance. The provision of consular assistance to Australian clients does not extend to protecting them from the consequences of actions that are prohibited under Australian (or local) law. Consular clients must be made aware that, as allowed for under the Privacy Act 1988, any information provided to the department will be disclosed to the AFP where the disclosure is reasonably necessary for the enforcement of a criminal law or of a law imposing a pecuniary penalty. There is no concept of "consular client confidentiality" with respect to admissions of possible criminal conduct made by a consular client. Information which relates to an extraterritorial offence must be reported in accordance with section 10.4.4 above. Chapters 11 and 12 of the Consular Handbook provide useful guidance in this respect.
10.4.7 Further information is available in Administrative Circular N543/09 – Australian Extraterritorial Offences and the Responsibility to Report, and from Sanctions and Transnational Crime Section (STC).