Reference

Last updated: 6 May 2009
FROM AUSTRALIAN PUBLIC SERVICE COMMISSION

Chapter 1: The APS—Defined by Values

The proclamation of the Public Service Act in 1999 reflected the culmination of two decades of public sector reform.
The devolution of employment powers to agency heads was designed to facilitate a more responsive, flexible and performance-focused Service. The APS Values form the enduring framework that defines the Australian Public Service, rather than rules and processes set by a central employer.
The principles of good public administration, embodied in the APS Values, lie at the heart of the democratic process and the confidence the public has in the way public servants exercise authority when meeting government objectives. Good public administration is a protection not only against inefficiency and poor performance, but also against fraud, corruption, inequity, inability to conduct business confidently and infringement of human rights.
The APS Values and Code are not simply aspirational statements of intent. They are mandatory. A breach of the Code of Conduct can result in sanctions, ranging from a reprimand to termination of employment. All APS employees are required to uphold the Values and comply with the Code. Failure to do so may attract sanctions. Agency heads (and the Senior Executive Service) are required also to promote the Values. The Public Service Commissioner is empowered to evaluate the extent to which agencies incorporate and uphold the Values and the adequacy of systems and procedures to ensure compliance with the Code.
See full text http://www.apsc.gov.au/values/conductguidelines3.htm
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APS Values and Code of Conduct in practice
Section 2: Relationship with the public
Chapter 6: Working with the public
Relevant Values and elements of the Code of Conduct

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APS Values
•The APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public.
APS Code of Conduct
•An APS employee must behave honestly and with integrity in the course of APS employment.
•An APS employee must act with care and diligence in the course of APS employment.
•An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.
•An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws.

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APS employees must treat the public with respect and courtesy, and without harassment.  They should provide reasonable assistance and help the public to understand their entitlements and obligations.  But being responsive does not mean public servants can ignore the law or provide a benefit to which a person is not entitled.  APS employees must administer the law fairly and equitably and provide responsive, efficient and effective services.

Fair decision making
Compliance with the law is a fundamental requirement of good decision making. The APS functions within an administrative law framework to ensure, among other things, that individuals and groups within the community receive fair and equitable treatment. One of the aims of this framework is to ensure that administrative decisions are correct, in the sense that they are made according to the law (and any guidelines and directions deriving from it), and preferable, in the sense that the best decision is made on the facts if there is a range of outcomes that are lawfully correct. Decision makers should also be able to demonstrate that their decisions are 'fair and reasonable' in the circumstances19, that the powers they exercise are properly authorised and used appropriately, that procedural fairness has been observed and they are able to provide reasons to explain and justify their decisions, ensuring fairness, transparency, consistency and accountability.

This administrative law framework, which applies across all sectors of employment, includes the:

•Racial Discrimination Act 1975
•Sex Discrimination Act 1984
•Disability Discrimination Act 1992
•Human Rights and Equal Opportunity Commission Act 1986
•Age Discrimination Act 2004
In addition, APS Agencies generally are subject to the:

•Freedom of Information Act 1982
•Privacy Act 1988
•Administrative Appeals Tribunal Act 1975
•Administrative Decisions (Judicial Review) Act 1977
•Ombudsman Act 1976
Matters dealt with can be subject to the scrutiny of the Ombudsman and the Australian Human Rights Commission, the Privacy Commissioner, the Federal Court and the Administrative Appeals Tribunal. Decision makers should also have regard to case law and may need, in certain circumstances, to have regard to a number of international conventions.

Acting according to the law
The law can be complex. The work of some public servants may be subject to many different acts, regulations, statutory directions, and so on. Nevertheless, employees should ensure they know about and understand the laws that apply to them. When exercising statutory authority, they should take care that legislation authorises the decision, they have authority to make the decision and they understand any procedures that are required by law in making the decision. If the action taken or decision made does not meet these tests, it may be invalid. This will be particularly important if a person is aggrieved by the decision and seeks to have the decision reviewed. This could occur before the Administrative Appeals Tribunal, the Federal Court, the Ombudsman or a specialist review body in the portfolio concerned.

Properly exercising powers
One of the ways in which APS employees contribute to the proper functioning of government is by exercising discretion, both in the management of programmes and in deciding individual cases. These decisions may affect the rights and entitlements of people in the community or other APS employees.

When making decisions, APS employees must act in accordance with the law, including the APS Values and Code of Conduct, and with any government policy and decisions. If a conflict arises between government policy, agency guidelines and the law, the law prevails (see Green v Daniels (1997) 51 ALJR 463). When a decision involves expenditure of public money, a public servant working with the Commonwealth itself must ensure they comply with the requirements of the Financial Management and Accountability Act 1997. An APS employee working in a separate legal and financial entity must ensure that expenditure decisions comply with the legislation applicable to that body as well as the Commonwealth Authorities and Corporations Act 1997.

Often an individual APS employee may be the only person fully aware of the wide range of factors relevant to a judgement about the local management of a programme or a decision about an individual case. In these circumstances, particularly careful judgement must be exercised.

APS employees should be aware of their obligations under the AD(JR) Act. Section 6 (2) of the Act identifies a number of improper uses of powers that should be avoided. When making a decision under an enactment, decision makers, including public servants, must not:

•take account of an irrelevant consideration in exercising a power
•fail to take account of a relevant consideration in exercising a power
•exercise a power for purposes other than that for which it was conferred
•exercise a discretionary power in bad faith
•exercise a discretionary power at the direction of another person
•exercise a discretionary power in accordance with a rule or policy without regard to the merits of the particular case
•exercise a power that is so unreasonable that no reasonable person could have so exercised the power
•exercise a power in such a way that the result is uncertain, or
•exercise a power in a way that constitutes abuse of power.
Other useful references include:

•Legal Practice Briefing No. 74—Delegations, authorisations and the Carltona principle, issued by the Australian Government Solicitor, which examines the nature of powers of delegation and authority, and sets out the relevant principles.

Establishing the facts

APS employees are expected to take all reasonable steps to ensure that decisions are based on fact. In some cases there will be a legal requirement that certain conditions be met before a particular decision can be made. In these circumstances employees should ensure that there is sufficient evidence that the condition has been met and that the evidence is correct.

It should be noted that the Information Privacy Principles in the Privacy Act require that the collection of personal information is fair and lawful and as far as is reasonably possible, is kept accurate, up-to-date and complete.

The Freedom of Information Act allows a person to have incorrect or misleading personal information corrected.

Sensitive use of intrusive powers
Some agencies have legal powers of entry, search and seizure, or powers to compel people to produce documents or attend as witnesses. APS employees who have these powers must take the utmost care to ensure that they are not using them unnecessarily or arbitrarily. They should also take particular care to behave with sensitivity and minimise the intrusion caused. Special care should also be taken to ensure fairness in the use of information obtained.

Procedural fairness
Procedural fairness requires public servants to make reasonable, fair, just and transparent decisions. The three principles of procedural fairness are the hearing rule, the bias rule and the evidence rule. These principles require that:

•a person whose interests will be adversely affected by a decision is given an opportunity to be heard and to hear the case against them
•the decision is made by the decision-maker without bias or the appearance of bias
•there must be facts or information to support findings.
The application of procedural fairness may vary, depending on the particular case or statute.

Explaining the reasons for decisions
The responsibility to make fair and equitable decisions is complemented by an expectation that APS employees will be reasonable and consider only the merits of the case in making decisions. These responsibilities are supported by section 13 of the AD(JR) Act which enables an aggrieved person to request a written statement explaining the basis and reasons for a decision made under an enactment (subject to various exemptions). Also, section 25D of the Acts Interpretation Act 1901 (AI Act) provides that where written reasons are required by an Act, the instrument giving the reasons must set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. A written record of decisions should be kept. The facts and evidence should be systematically recorded and should support the decision.

Providing good service
Service charters set out the standards of customer service and conduct that the public can expect from an agency. APS employees should ensure they read and understand their obligations under the relevant service charter. Charters may include commitments relating to processing times or to correspondence turnaround times. The reputation of the agency may be adversely affected if employees are not aware of, and do not make every effort to meet, such commitments. Measuring performance against the charter is essential if it is to be taken seriously and have practical impact. Feedback from customers about an agency's service charter also helps to ensure its currency and effectiveness.

Other avenues through which the quality of service an agency provides can be assessed include audits carried out by the Australian National Audit Office, matters raised with the Ombudsman or the Australian Human Rights Commission, inquiries by parliamentary committees, the Public Service Commissioner's State of the Service Report, customer complaint mechanisms put in place by individual agencies, client surveys and correspondence. All of these are valuable ways of finding out what people think of the work of the APS and should be used positively by APS employees.

Being prompt
The government and the community expect prompt and high-quality service from APS employees. It is important that their work contributes to maintaining these high standards.

Various pieces of legislation provide powers for investigating delays in the decisions of APS employees. The AD(JR) Act offers redress to people affected by delays in making decisions or the failure to make decisions. The Ombudsman Act 1976 provides for the investigation of delays by APS employees in making decisions that affect members of the public.

Meeting diverse needs
An awareness of, and sensitivity to, the diversity of the Australian community is important for the quality of advice, the quality of service provision and the appropriateness of decision making. It ensures different perspectives are brought to bear, and responsiveness to different client groups.

The Charter of Public Service in a Culturally Diverse Society, produced by the Department of Immigration and Citizenship, aims to ensure that Australian Government services meet the needs of people from diverse linguistic and cultural backgrounds so that they can participate fully in Australia's economic, social and cultural life. The charter includes a number of resources, including a Good Practice Guide for Culturally Responsive Government Services and information sheets. It is available from the Department’s website at http://www.immi.gov.au

APS employees should also make themselves familiar with any agency-specific instructions on dealing with the public.

Discrimination in the provision of services on the grounds of disability, sex, marital status, pregnancy, family responsibility, race, colour and national or ethnic origin is unlawful under the Disability Discrimination Act, the Sex Discrimination Act and the Racial Discrimination Act. Under these laws, APS employees are required to treat members of the public equitably regardless of factors such as sex, ethnic or national origin, race or disability.

Under the Human Rights and Equal Opportunity Commission Act, the President of the Australian Human Rights Commission has the function of investigating and conciliating complaints under the Racial Discrimination Act, the Sex Discrimination Act, the Age Discrimination Act and the Disability Discrimination Act. The Federal Court and Federal Magistrates Court have power to determine complaints that are not resolved at the conciliation stage, and their decisions are enforceable.

The Australian Human Rights Commission also has power to inquire into and report on complaints of other forms of discrimination covered by the HREOC Act. In such complaints, the Commission can recommend payment of damages or compensation but cannot make any binding determination. The Federal Court has no jurisdiction to determine such complaints, but can judicially review the Commission’s decisions.

Dealing with difficult people
From time to time, employees have to deal with difficult, even abusive or aggressive, customers or clients. Each agency should have guidelines to assist employees in these situations. If confronted with a difficult or abusive person, an employee should remain calm, positive and avoid taking unnecessary risks. If in doubt, they should consult a more experienced colleague. An employee should withdraw if they feel intimidated or threatened. The police should be contacted in extreme cases.

Standards of dress
As a general guide, the appearance and dress of APS employees should be in accordance with the standards appropriate to their duties and the people with whom they are dealing. Our obligation to behave in a way that upholds the good reputation of the APS and our professionalism suggests our dress should reflect pride in the Service and respect for those we deal with, particularly the public.

Some agencies have particular standards of dress for their employees. In addition, some employees may be required to wear uniforms or safety clothing. Where such standards are required, they must be complied with20.

Providing information or advice
In doing their work, APS employees are expected to exercise a duty of care21, that is, to exercise reasonable care, in giving information or advice. This principle applies equally in the case of written information or advice. When information and advice are sought and provided face to face, over the telephone, electronically or in writing, APS employees should bear in mind the following:

•APS employees have a duty to exercise reasonable skill and diligence to ensure that information and advice provided, upon which the recipients are likely to rely, are accurate.
•APS employees need to be sensitive to the use an enquirer may make of information or advice sought and the degree to which they may rely on that information or advice.
•The standard of care required will be related to the nature of the enquiry and the possible consequences that may arise from the provision of incorrect information or advice.
•When there are doubts about the reliability of the information, or the authority of the APS employee to provide advice, these should be made known to the enquirer.
•Where information or advice is being given on a matter that has not been finalised, the interim or conditional nature of the information or advice should be made clear.
•In some circumstances, it may be possible to indicate that, while all care is taken in providing the information or advice, no responsibility is accepted for any loss incurred as a result.
•In some circumstances, it may be relevant to suggest to enquirers that they should seek independent advice from appropriately qualified persons.
•If advice is provided verbally, it will usually be advisable to make a record of the advice given.
 

19 For example, the Superannuation Complaints Tribunal is required under section 37 of the Superannuation (Resolution of Complaints) Act 1993 to determine whether a decision was 'fair and reasonable in the circumstances'. The Federal Court decision in the case of Alcoa of Australia Retirement Plan Pty Ltd v Thompson [2002] FCA 256, concerning a complaint to the tribunal, includes discussion of the application of the fair and reasonable test

20 Agencies should take care to ensure that any dress codes are not discriminatory

21 The obligation that APS employees have in relation to duty of care was reinforced by a decision of the High Court in 1981 (L Shaddock and Associates v. The Council of the City of Parramatta), when it ruled that 'government instrumentalities may be liable in damages for the economic loss suffered by individuals acting on advice negligently given by officials of those instrumentalities'

See http://www.apsc.gov.au/values/conductguidelines8.htm