Introduction
1.1 Employees of the Department of Foreign Affairs and Trade ('the Department') travelling overseas on official business, including those on long-term postings, must comply with the DFAT Code of Conduct for Overseas Service ('the Code'), which is underpinned by the Australian Public Service (APS) Code of Conduct. The Code provides guidance to employees on their obligations under Section 13(12) of the Public Service Act 1999, which states that: "An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia."
1.2 All APS employees, because they serve the Government and the community at large, assume a position of trust together with ethical obligations. Australians have a right to expect from their representatives overseas a wholehearted and scrupulous commitment to the highest standards of behaviour. APS employees overseas are required to comply with the applicable laws of Australia and with all applicable regulations, directions and guidelines relating to their official and personal conduct.
1.3 The Code provides guidelines for employees' behaviour overseas, both personal and professional. In conducting themselves overseas, employees are expected to use their good judgment and common sense. If any employee is in any doubt about aspects of the Code or unsure about how to proceed, they are encouraged to seek guidance from senior colleagues or from the Ethics, Integrity and Professional Standards Section (EES). Employees may also wish to consult the Australian Public Service Commission's website for a range of topical publications.
1.4 In the Code the term "employee" means an APS employee under the Public Service Act 1999. The Code applies to employees on long-term postings, including Heads of Mission (HOM), those who are overseas on short-term missions and visits and those on leave without pay. It applies to employees who are temporarily attached to non-APS bodies such as international organisations, foreign government agencies, non-government organisations and private-sector corporations.
1.5 The Code does not apply to honorary consuls and their employees, or LES at Australian diplomatic or consular missions. Honorary consuls and their employees are expected to observe the provisions in the Guidelines for Australian Honorary Consuls contained in Chapter 3 of the Consular Handbook. Separate guidelines on conduct for LES are issued under the authority of the Head of Mission (HOM) in each location.
1.6 Breaches of the Code are regarded as a breach of Section 13(12) of the Public Service Act 1999 and will be handled in accordance with Departmental procedures for handling breaches of the APS Code of Conduct. All management actions taken to address conduct issues in accordance with the Code will be subject to the normal requirements of procedural fairness.
Upholding Australia's Reputation
2.1 APS employees working overseas are seen as representatives of Australia, not only in the performance of their official functions but also in the manner in which they conduct themselves as private individuals. Regardless of their formal roles or responsibilities, their visibility and status as foreign officials means that their actions will be subject to a greater degree of scrutiny and public interest than they would be at home, and that an adverse perception of those actions may have an impact on Australia's reputation. Furthermore, Australian officials abroad may face ethical dilemmas which do not normally arise in Australia, in a range of social, cultural, financial or personal settings.
2.2 Employees who are on duty overseas have a duty to act at all times in a manner which upholds the good reputation of Australia, and which contributes to the good reputation of the Department and any Australian mission with which they are associated. The duty to uphold the good reputation of Australia is fundamental, and extends to members of an employee's household, who are also expected to uphold Australia's reputation overseas.
Respect for the Law
3.1 In accordance with the Vienna Conventions on diplomatic and consular relations, an employee overseas must respect the law of the country to which they are posted, or in which they are travelling. An employee must comply with any lawful and reasonable directions, and consider any guidance issued by the Department and the HOM, concerning the operation of local laws and regulations. Such directions and guidance will be of special particular relevance where there is a major difference between the requirements of local law and the law applying in Australia. Employees must give particular attention to laws and directions concerning bank accounts, currency dealings, purchase and disposal of motor vehicles and traffic infringements. Employees should make arrangements to clear all outstanding locally incurred financial debts prior to completing their posting.
3.2 An employee overseas must inform the HOM as soon as practicable if the employee, or a member of their household, comes to the notice of the local law enforcement authorities, except in matters of minor traffic infringements. Where the employee is not attached to an Australian mission, he or she must also inform the Department via conduct@dfat.gov.au. Where there appears to be a breach of local law, excluding minor traffic infringements, the HOM should inform the Department immediately via conduct@dfat.gov.au. These requirements will apply in all cases, including where the employee may, but for diplomatic or consular status, have been charged with an offence.
3.3 Amendments to the Crimes (Overseas) Act 1964 extend the scope of the Act to apply extraterritorially to Australian diplomatic and consular employees (and their family members) serving overseas who have immunity from prosecution under local law. As a result, an employee (or family member) who has committed a crime overseas could, in certain circumstances, be prosecuted in Australia rather than under local law. An Australian prosecution could only be commenced where: a similar crime exists in Australia; the person's immunity from local jurisdiction has not been waived by the Minister for Foreign Affairs; and the Attorney-General (following consultation with the Minister for Foreign Affairs) has provided consent. The legislation also contains safeguards to ensure that individuals do not face prosecution for the same crime both overseas and in Australia. The amendments came into effect on 1 July 2003.
Cultural Sensitivity
4.1 Employees living and working overseas need to be culturally sensitive to the people of the host country and to be understanding of local customs, including those relating to personal behaviour.
4.2 An employee overseas must respect laws and customs which are protective of local cultural property. An employee must not purchase, export, or make arrangements in respect of the purchase or export of, any item of cultural property other than in accordance with local regulations, and with the knowledge and consent of the host authorities where this is required. The term "cultural property" includes any antiquity, artefact, document, work of art or other chattel which is of national, historical, scientific, literary or artistic importance, and also includes any property the sale or export of which is, or may be, subject to local regulation.
4.3 The APS and Australia have a reputation for integrity which must not be undercut by any perception that an employee might be influenced by bribes, gifts or other benefits. Subject to paragraph 4.4, an employee overseas and members of his or her household must not accept gifts, benefits or hospitality or advantages that are offered in connection with the employee's duties, status, power or authority.
4.4 Where refusal of a gift is likely to cause offence that could adversely affect Australia's interests, the employee may accept the gift but must promptly report it in accordance with Departmental procedures [see Chapter 6 of the Ethics, Integrity and Professional Standards Policy Manual] and advise the HOM. Gifts retained for any reason that are valued at or above AUD100 must be recorded in the Gifts and Benefits Register. Employees may retain gifts that meet the criteria as defined in the Gift Test and are approved for retention by the appropriate delegate. Gifts under AUD100 do not need to be reported or approved. Money, or items that can be used as money (gift cards, vouchers) must never be accepted as gifts.
Appropriate Personal Behaviour
5.1 An employee must not engage in behaviour at any time which is likely to adversely affect an employee's ability to perform his or her duties, or the ability of his or her mission to achieve its objectives, or which is likely to bring the mission or Australia into disrepute. Employees should be aware that sexual behaviour and use of alcohol and other substances are areas of particular sensitivity, where conduct may more easily be seen as offensive or be misinterpreted, and where particular attention to appropriate personal behaviour in the local context is therefore required. Where an employee, including a HOM, is in any doubt as to the applicability of this principle, he or she should seek advice from a supervisor and, if necessary, EES.
5.2 Where an employee is engaged in any personal relationship which might have any of the adverse effects set out in Para 5.1, he or she must inform the HOM and submit a Conflict-of-Interest Declaration. HOM must treat any information they receive in relation to such matters in accordance with the Privacy Act 1988.
5.3 Employees must comply with DFATs Child Protection Policy regarding age of consent. In accordance with the United Nations Convention on the Rights of the Child, ‘child' means every human being under the age of 18 unless under the law applicable to the child, majority is attained earlier. DFAT considers a child to be a person under the age of 18 years
5.4 An employee must not use, or be required to use, mission office facilities, employees or resources for the purpose of arranging or facilitating access to sex workers by any person, including visitors to the mission.
5.5 An employee's personal conduct towards his or her domestic employees and LES must not be exploitative or be such as to lead reasonably to a perception of exploitation. This provision also applies to members of an employee's household. If a sexual relationship occurs, the employee must inform the HOM or, in the case of a HOM, the Department's Chief People Officer (CPO).
Household Members
6.1 An employee must notify the HOM or, in the case of a HOM, the Department's CPO, if he or she is planning to change the composition of his or her household. A household includes the employee's family and other dependents as defined in DFAT's Human Resources Manual. This does not replace the employee's obligation, in conformity with the Security Instructions, to inform Diplomatic Security Branch of any change to their circumstances which may affect them or their security clearance.
6.2 Accompanying household members are not covered directly by the Code or subject to any obligations under the Public Service Act 1999 or Departmental directions in relation to conduct. It is nonetheless the case that because of their visibility and identity as part of an Australian official community, the actions of household members can have an impact on the reputation of Australia or of an Australian mission, and on the ability of employees to perform their duties.
6.3 An employee overseas must take all reasonable steps to ensure that members of his or her household are aware of local laws, culture and customs. In the event of behaviour by a household member which would breach paragraph 5.1 if committed by the employee, the employee must take all reasonable steps to ensure that the behaviour ceases. If the behaviour persists, the employee must consult HOM. In cases involving members of the HOM's household, HOM should consult with the Department's CPO. Incidents of such behaviour may, for operational reasons, require recall to Australia and possibly termination of the employee's posting. In such an event, no blame will attach to the employee by reason only of the behaviour of the member of his or her household.
Respect for Others and Tolerance of their Opinions
7.1 As in Australia, employees overseas have a duty to contribute to the effective functioning of the workplace by treating their colleagues and the public with respect. Even more than in Australia, this will require particular attention to the possibly very different cultural backgrounds, beliefs and opinions of the people encountered in the workplace and outside it. This principle is central to good relations with LES employee and domestic employees and is important to effective performance in all overseas environments.
7.2 Employees overseas must respect the cultural background of colleagues in the workplace), It is unlawful to discriminate against or harass such persons or any other person because of their sex, marital status, ethnicity, age, sexual orientation, disability or religious beliefs, or upon any similar ground; and respect the privacy of individuals when dealing with personal information.
Integrity in the Use of Diplomatic and Consular Status and Privileges
8.1 Diplomatic or consular status and privileges are conferred on an employee overseas to facilitate the operation of the diplomatic or consular mission with which they are associated, and not for the personal benefit of the employee or members of the employee's household. Employees must act with integrity in relation to any privilege they may have (such as exemption under international law from the payment of taxes or duties) as a diplomatic or consular representative. Goods obtained without the payment of duty under privilege are for personal use only and must not be sold or used as payment of any kind to persons who do not have the relevant privilege. An employee must not be required to use diplomatic privileges in a manner that would undermine the integrity of those privileges.
8.2 Employees overseas must not seek either to invoke or to waive diplomatic or consular immunity, which is a matter for decision by the Minister for Foreign Affairs. Employees should be aware that consular immunity can exist but only in respect of consular acts.
8.3 It is important to note that employees and members of their households have no immunity in relation to any professional or commercial activity in which they may engage outside of their official functions. Where a member of his or her household is planning to engage in any private gainful occupation, an employee must consult the HOM, who may decide that the Department and/or the host government be consulted. Where a member of the HOM's household is planning to engage in any private gainful occupation, the HOM should consult with the Department's CPO.
8.4 Employees must take all reasonable steps to ensure that any activities by a member of his or her household who is carrying on a private gainful occupation do not give rise to a conflict or the perception of a conflict between the official duty of the employee and the private interest of either the person or a member of his or her household. For example, they must not use the mission's address as that of their place of business. In cases where the mission address is the sole address, household members should use a private PO Box for carrying on a private business.
Authority of the Head of Mission (HOM)
9.1 Employees overseas must comply with any lawful and reasonable directions issued by the HOM and must consult the HOM about any personal or professional issue that gives rise to concerns relating to the operation of the mission in accordance with paragraph 5.1. In the event of a difference between an employee and the HOM over the lawfulness or reasonableness of a direction, either may refer the matter to the Department's CPO for decision. Pending the CPO's decision, the employee is expected to comply with the written directions of the HOM.
9.2 An employee of a partner agency is subject to the overall management and control of their agency while overseas, but is subject to the direction of the HOM on any matters within that employee's area of responsibility that could affect Australia's bilateral relations with the host government, the administration of the mission or the good reputation of the mission or Australia in the host country.
9.3 In the event of any difference between a HOM and an employee of another agency, concerning the extent of the HOM's authority, either may request their employing agency to take up the matter with the employing agency of the other. Pending the resolution of any such differences by those agencies, the employee is expected to comply with the written directions of the HOM.
Implementation
10.1 An undertaking indicating knowledge of and willingness to comply with the Code is a condition of approval for travel overseas, whether on short or long-term assignment, for all employees.
10.2 Employees have an obligation to report alleged breaches of the Code to the HOM and, where appropriate, EES at conduct@dfat.gov.au. Reporting of apparent or alleged breaches may alternatively be made as ‘Public Interest Disclosure' to authorised officers under the Public Interest Disclosure Act 2013. Employees making a disclosure may be immune from criminal and civil liability or disciplinary action and may be subject to protection from reprisal. Employees can contact an authorised officer by email at PID@dfat.gov.au Employees should also consult relevant Departmental instructions on reporting breaches, for example, the 'Procedures for Handling Public Interest Disclosures'.
10.3 Where an employee becomes aware of serious criminal misconduct, by another Australian who is not an APS employee, the employee should report the matter to the HOM, who will, in turn, consider the most appropriate course of action, including reporting the matter to local law enforcement authorities or the Australian Federal Police. Employees should be aware of potential conflicts of interest where the person involved may subsequently become a consular client.
10.4 Any failure to comply with the Code will be handled in accordance with Departmental procedures for handling breaches of the APS Code of Conduct. In serious cases, an employee may, for operational reasons, be recalled to Australia pending the outcome of an investigation. Where an allegation relates to a HOM, a report must be made to EES via the online Reporting Suspected Misconduct Form, or by contacting or conduct@dfat.gov.au.
10.5 The making of an allegation which is found to be without substance, and which is knowingly false, vexatious or malicious may be treated as a breach of the APS Code of Conduct.
10.6 The Department may pass to the Australian Federal Police any information which it can reasonably be suspected relates to an offence under applicable Australian law.