This chapter defines what constitutes misconduct – including failure to comply with codes of conduct and other lawful and reasonable directions; criminal and other unlawful behaviour; harassment, bullying and discrimination; fraud; and accepting or offering bribes.

Employees should contact the Ethics, Integrity and Professional Standards Section (EES) via conduct@dfat.gov.au if they require clarification on the contents of this Manual or they are uncertain about the ethical implications of a proposed course of action.

9.1 Misconduct

9.1.1 Misconduct refers to any action or behaviour determined to be in breach of the APS Values or Employment Principles, the APS Code of Conduct, the LES Code of Conduct in place at a post or the DFAT Code of Conduct for Overseas Service. To ensure procedural fairness and the presumption of innocence, any such action or behaviour must be referred to as alleged misconduct until a determination is made in accordance with procedures set out in Chapter 12 of this Manual. Procedures for reporting alleged misconduct are set out in Chapter 11 of this Manual.

9.1.2 In broad terms, an APS employee or a contractor who does not comply with an element of the APS Values or Employment Principles, the APS Code of Conduct or the DFAT Overseas Code of Conduct can be determined to have committed misconduct. The same principle applies to LES employees whose conduct does not comply with an element of the LES Code of Conduct in place at their post.

9.1.3 Misconduct can vary from serious (e.g. fraud, theft, sexual harassment and leaking classified information) to less serious (e.g. a single, uncharacteristic angry outburst)

Failure to Comply with Lawful and Reasonable Directions

9.1.4 The APS Code of Conduct and the LES Code of Conduct require employees to comply with any lawful and reasonable direction given by someone in the Department or post with authority to give the direction. Accordingly, failure to comply with Departmental policies (including the directions in this Manual, in other Departmental manuals and in Administrative Circulars) may constitute misconduct. Failure to comply with lawful and reasonable directions of supervisors, superiors or others in authority may also constitute misconduct.

Criminal and Other Unlawful Behaviour

9.1.5 The APS Code of Conduct requires employees to comply with Australian laws. The standard LES Code of Conduct and the DFAT Code of Conduct for Overseas Service require employees to comply with local law and applicable Australian laws overseas. Accordingly, criminal and other unlawful behaviour by employee in connection with official duty may constitute misconduct.

9.1.6 Criminal and other unlawful behaviour by employees in private and outside official duty may also constitute misconduct. The APS Code of Conduct requires employees at all times to uphold the good reputation of the APS and (while on duty overseas) to behave in a way that upholds the good reputation of Australia. The LES Code of Conduct requires LES employees at all times to uphold the good reputation of Australia and their post.

9.1.7 Where a employee has, or is alleged to have, engaged in criminal or other unlawful behaviour, the Department may implement procedures set out in Chapter 12 of this Manual for managing alleged misconduct. The Department may do so in addition to any normal criminal investigations and proceedings by relevant law enforcement authorities outside the Department.

Sanctions for Misconduct

9.1.8 The sanctions which may be imposed on an APS employee determined to have breached the APS Code of Conduct or the DFAT Overseas Code of Conduct for Overseas Service are set out in section 15(1) of the Public Service Act 1999. They include:

1. Termination of employment.
2. Reduction in classification.
3. Re-assignment of duties.
4. Reduction in salary.
5. Deductions from salary, by way of fine (regulation 2.3(2) of the Public Service Regulations 1999 limits fines to no more than two percent of the employee's annual salary)
6. A reprimand.

9.1.9 The sanctions which may be imposed on LES employees determined to have breached the LES Code of Conduct in place at their post are subject to the conditions of service at the post and should be considered in the context of local employment law. They may include reprimand or termination of employment.

9.1.10 Misconduct by contractors will be handled through provisions of their contracts. This could include reprimand or termination of contract.

9.2 Harassment, Bullying and Discrimination

9.2.1 The APS Code of Conduct requires APS employees, when acting in connection with APS employment, to treat everyone with respect and courtesy, and without harassment (section 13(3) of the Public Service Act 1999). Contractors must behave similarly in accordance with the provisions of their contracts. The standard LES Code of Conduct requires LES employees to treat members of the public and colleagues with respect and courtesy, and without coercion or harassment of any kind.

Bullying, harassment, sexual harassment and discrimination are unacceptable in the workplace. Unacceptable behaviour in the workplace is conduct at work or connected to work that is offensive, belittling, abusive or threatening to another person, and creates, or has the potential to create, risks to DFAT or to the physical and/or psychosocial health and safety of others.

9.2.2 Workplace bullying occurs when a person or group of people repeatedly behave unreasonably towards another worker or group of works, and the behaviour creates a risk to health and safety. Example of bullying include, but are not limited to:

• Repeated demeaning remarks or including sarcasm, ridicule, insults, abuse or unjustified criticism or complaints.
• Intimidating or threatening physical behaviour such as standing over someone whilst talking aggressively towards them or aggressive gestures such as pointing a finger in the person's face; or
• Online abuse including via social media that uses offensive language or graphics that is intended to frighten, humiliate or degrade.

9.2.3 Harassment is any form of unwanted, offensive, humiliating or intimidating behaviour by a person or group of persons directed towards another person. Harassment can be a single act. Repeated instances of harassment may also amount to bullying. Examples of harassment include, but are not limited to:

• Inappropriate and/or derogatory comments or jokes bases on an attribute such as a person's gender, race, age or disability
• Asking intrusive questions about someone's personal life, including their sex life, requiring a person to engage in degrading conduct or tasks based on an attribute such as a persons' gender, race, age, sexual orientation, gender identity or disability.

9.2.4 Sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated. Sexual harassment doesn't have to be repeated or continuous. It can be a one-off incident or a broader pattern of behaviour. Examples of sexual harassment include but are not limited to:

• Unwelcome touching, hugging or kissing.
• Sexually suggestive behaviour such as leering or staring or offensive gestures
• unwanted invitations to go out on dates
• Sexually explicit emails, text messages, other messenger services, or posts on social media networking sites.

9.2.5 Discrimination happens when a person, or group of people, is treated less favourable than another person or group because of their background or certain personal characteristics, where those characteristics are protected by law. Discrimination on the basis of a person's:

• Race, including colour, descent, national or ethnic origin or immigrant status.
• Sex, pregnancy or marital and relationship status, breastfeeding, family responsibilities.
• Age, covering young people and older people.
• Disability
• Sexual orientation, gender identity or intersex status.

9.2.6 The Department takes allegations of unacceptable workplace behaviour seriously and will take prompt action to address allegations and to support employees who report instances of unacceptable workplace behaviour. A-based officers, LES and contractors who experience unacceptable workplace behaviour should report it as soon as possible to any of the following authorised internal Departmental persons:

• Your manager/supervisor (either direct or indirect).
• The HOM/HOP or SAO for DFAT employees posted or travelling overseas and LES.
• Safe Space: safespace@dfat.gov.au or +61 2 6178 4688. For out of hour emergencies contact +61 481 093 402 (also available on WhatsApp.).  
• The Ethics, Integrity and Professional Standards Section (EES) via the online Reporting Suspected Internal Misconduct Form or conduct@dfat.gov.au; and
• A Work Health and Safety incident report, including in relation to psychosocial hazards, can be submitted to the Employee Health and Safety Section (EHS) incident management system.

Further procedures for reporting unacceptable behaviour are set out in Chapter 11 of this Manual and further information is detailed in the Department's Unacceptable Workplace Behaviour Policy.

Where mediation and counselling may be effective, cases of unacceptable workplace behaviour may be referred for professional support. Depending on their nature and severity, alleged unacceptable workplace behaviour may be subject directly to procedures set out in Chapter 12 of this Manual for managing alleged misconduct.

All employees have access to support through the Staff and Family Support Office (SFO), the Employee Assistance Program (EAP) and Safe Space.

9.3 Fraud and Corruption

9.3.1 The Commonwealth Fraud and Corruption Control Frameworkdefines fraud as 'Dishonestly obtaining (including attempting to obtain) a gain or benefit, or causing a loss or risk of loss, by deception or other means' This definition covers a range of actions including:

• Theft.
• Obtaining property, a financial advantage or any other benefit by deception.
• Causing a loss or avoiding or creating a liability.
• Providing false or misleading information to the Commonwealth or failing to provide information where there is an obligation to do so.
• Making, using or possessing forged or falsified documents.
• Bribery, corruption or abuse of office; or
• Any offences of a like nature to those listed in the case studies below.

9.3.2 Corruption is defined broadly as any conduct that does or could compromise the integrity, accountability, or probity of public administration. Pursuant to the NACC Act, this includes:

• Any conduct of any person (whether a public official or not) that adversely affects, or that could adversely affect, either directly or indirectly:
  • the honest or impartial exercise of any public official's powers as a public official, or
  • the honest or impartial performance of any public official's functions or duties as a public official.
• Any conduct of a public official that constitutes or involves a breach of public trust.
• Any conduct of a public official that constitutes, involves, or is engaged in for the purpose of abuse of the person's office as a public official; and
• Any conduct of a public official, or former public official, that constitutes or involves the misuse of information or documents acquired in the person's capacity as a public official.

9.3.3 Fraud and corruption often overlap as both involve dishonest or illegal behaviour to gain an unfair advantage or benefit, or cause loss. However, fraud involves deception to make a gain or cause a loss (for example, provision of false information to obtain a payment). Whereas corruption involves the abuse or misuse of power or position (for example, soliciting bribes, or nepotism). Therefore, corrupt conduct can include breaches of the code of conduct, as well as elements of both fraud and corruption.

9.3.4 The 'benefits' referred to in the definition of fraud can be either tangible or intangible. Examples include:

• Using fraudulently qualifications to gain employment or a promotion with a Commonwealth agency.
• Claiming hours on a timesheet that have not been worked.
• Using Commonwealth systems to gain access to other systems without authority
• Charging the Commonwealth for goods or services that are incomplete or not delivered.

9.3.5 Fraud can include using work-based internet for private gain; claiming a travel allowance for meals when they were provided as part of a conference package; or inaccurately entering leave plans. While these may constitute small amounts of money, overall, they can represent a large loss to the Department and an abuse of taxpayer money. Fraud diminishes the Department's resources, reduces public confidence in the Department, damages the Government's reputation in Australia and overseas, and can contribute to a loss in employee morale.

Fraud as Criminal Behaviour and Misconduct

9.3.6 Fraud against the Commonwealth may constitute criminal behaviour. An APS employee or contractor who commits fraud against the Commonwealth may be guilty of an offence under the Criminal Code Act 1995. LES who commit fraud against the Commonwealth may be guilty of an offence under the relevant local law.

9.3.7 The APS Code of Conduct requires employees to comply with Australian laws. The LES Code of Conduct and the DFAT Code of Conduct for Overseas Service require employees to comply with local laws overseas, so fraud against the Commonwealth may also constitute misconduct. Where an employee has or is alleged to have committed fraud, the Department may implement procedures set out in Chapter 11 of this Manual for managing alleged misconduct. The Department may do so in addition to any normal criminal investigations and proceedings by relevant law enforcement authorities outside the Department.

How do I identify fraud?

9.3.8 The Department has comprehensive set of control measures to limit the incidences of fraud and to enable detection. However, all APS employees, LES and contractors have a responsibility to report and identify fraud when it occurs. If an employee displays the following patterns of behaviour, it may indicate that they are involved in fraudulent activity:

• Living above financial means.
• Gambling, alcohol or drug abuse.
• Personality change.
• Socialising with suppliers.
• Poor record keeping.
• Resistance to inquiries about work or funds
• Declining promotion or transfer; and
• Reluctance to take leave.

If you are unsure about something you may be aware of, or have witnessed, the Ethics Advisory Service is available to all APS employees, including Agency Heads and SES employees, who wish to discuss and seek advice on ethical issues that occur in the workplace. The APSC does this by providing options, considerations, and strategies to help APS employees work through ethical issues and dilemmas, and to assist them to make sound judgements and choices.

Some examples of matters the Ethics Advisory Service can advise on include:

• Considerations in identifying, disclosing, and managing conflicts of interest.
• Balancing employees' rights as citizens with their obligations as public servants
• Options that may be available to assist employees in addressing a workplace grievance or reporting a suspected breach of the Code of Conduct
• Considerations for agencies in responding to inappropriate behaviour.

Please note, that this is an advisory service only, the APSC do not provide any avenue for reporting, handling, investigating, or resolving complaints or allegations of misconduct (unless the matter falls within the remit of the Commissioner's statutory functions).

The Ethics Advisory Service can be reached via:

• Phone: 02 6202 3737
• Email: ethics@apsc.gov.au

Fraud and Corruption Control in DFAT

9.3.9 DFAT is committed to continuing to mature our integrity culture. A positive integrity culture is vital to prevent and detect misconduct, fraud and corruption. It can also foster psychological safety, improve employee wellbeing and engagement, and enhance workforce productivity and performance.

9.3.10 Without a focus on integrity, we cannot achieve the outcomes that government and the public expect from DFAT. Australia's national and economic security relies on the Department achieving the highest levels of integrity. Our integrity journey is not a race, and there is no finish line. We must strive for a public sector that innately embodies integrity as part of everything we do.

9.3.11 Our ability to uphold integrity across DFAT's portfolio of responsibilities is continually challenged by real-world challenges and pressures. We must strive to ensure quality, lawful, evidence-based and defensible decision making at all times. However, we must also accept that individuals and systems are never perfect, and failures will inevitably occur. What matters is transparency and accountability around how decisions are made, taking considered and appropriate subsequent actions, and harnessing learnings to improve future outcomes where possible.

9.3.12 The DFAT Integrity Strategy 2024-26 (the Strategy) was informed by, and supports, the Louder Than Words [PDF] action plan which is being implemented across the APS with oversight by the APSC. The Integrity Good Practice Guide, released in November 2023 by the Department of Prime Minister and Cabinet, supports Departments to strengthen their integrity posture in alignment with this overarching agenda.

Reporting Fraud and Corruption

9.3.13 Reports of external fraud and corruption can be made through the Suspected or Detected Fraud/and or Corruption Referral Form. This includes reports from members of the public, DFAT employees, contractors and delivery partners. Reports of fraud and corruption relating to DFAT employees can be made via the Reporting Suspected Internal Misconduct Form or by contacting conduct@dfat.gov.au.

9.3.14 While the Department has arrangements in place to receive and manage corruption reports, anyone can voluntarily report corruption issues directly to the NACC. Further information can be found on the NACC's website. If you are not sure of what type of fraud or corruption it is, how to report, or are unable to make a referral using the online referral form, please contact the Counter Fraud and Anti-Corruption Section (FCS) via fraud.corruption@dfat.gov.au for further advice.

9.4 Bribery

9.4.1 The Australian Government works on a number of fronts to fight bribery and corruption in Australia and overseas. The Department and its employees are committed to supporting better governance and legal systems abroad, as well as upholding Australia's reputation for transparency and integrity. The provision or acceptance of bribes by Commonwealth public officials (including APS employees, LES employees and contractors in the Department) is prohibited under Commonwealth criminal law.

9.4.2 The APS Code of Conduct and the standard LES Code of Conduct also require that employees must not make improper use of their duties, status, power or authority in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person; they must in connection with their official duties comply with applicable Australian law; and they must not compromise the good reputation of the APS, their post and Australia. This includes by accepting bribes. Chapter 6 of this Manual provides detailed guidance on accepting gifts, benefits and hospitality.

Bribery of a Commonwealth Public Official

9.4.4 It is an offence to ask for, receive or obtain a bribe, or even to agree to ask for, receive or obtain a bribe. A bribe is defined as a benefit to someone, with the intention of influencing a public official in the exercise of their duties. It makes no difference to the offence whether the public official intends to exercise influence in return for the bribe or merely creates the impression that he or she will do so. A benefit can be any advantage (it does not have to be financial or proprietary) and it does not have to advantage the Commonwealth public official personally (it can be for another person).

9.4.5 It is also an offence where the benefit, would tend to influence the Commonwealth public official. This is known as a "corrupting benefit".

9.4.6 Naturally, the person making the bribe or corrupting benefit may also commit an offence, which is subject to the same respective penalties. In all of the above cases, it makes no difference to the offence whether it was committed in Australia or overseas.

Bribery of a Foreign Public Official

9.4.7 Australia is a party to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption. As a party State, Australia is required to criminalise the bribery of foreign public officials and implement a range of related measures to make this criminalisation effective.

9.4.8 It is  an offence for any person in Australia, or any Australian anywhere in the world, to provide, offer or promise a benefit to someone that is not legitimately due, in order to influence a foreign public official in the exercise of his or her duties, so as to obtain or retain business or a business advantage (Section 70 of the Criminal Code Act 1995). The offence prevents persons escaping its operation by using intermediaries. Thus, the person receiving the bribe does not have to be the foreign public official whose influence is sought; and the person paying the bribe does not have to be the person who obtains or retains the business or business advantage. This offence is punishable by a maximum of 10 years' imprisonment and/or a fine of up to $1.8 million for individuals and $18 million for companies.

9.4.9 The Transnational Crime Section (TNC) of the Department's Legal Division can provide more detailed advice on bribery issues.