Procedures for determining breaches of the APS Code of Conduct

I, David Sharpe, acting in my capacity as Chief Executive Officer of the Australian Sports Anti-Doping Authority, establish these procedures under subsection 15(3) of the Public Service Act 1999 (‘the Act’).

These procedures commence on 26 November 2019.

David Sharpe APM OAM

Chief Executive Officer

 

1.    Application of procedures

1.1    These procedures apply in determining whether a person who is an Australian Public Service (APS) employee in the Australian Sports Anti-Doping Authority (ASADA), or who is a former APS employee who was employed at ASADA at the time of the suspected misconduct, has breached the            APS Code of Conduct (‘the Code’) in section 13 of the Act.

1.2    These procedures also apply in determining any sanction to be imposed on an APS employee at ASADA who has been found to have breached the Code.

1.3    These procedures, as they apply to determining whether there has been a breach of the Code, apply to any suspected breach of the Code except where a decision had been made, before 26 November 2019, to begin an investigation to determine whether there had been a breach of the             Code.

1.4    These procedures, as they apply to determining any sanction for breach of the Code, apply where a sanction decision is under consideration on or after 26 November 2019.

1.5    In these procedures, a reference to a breach of the Code by a person includes a reference to a person engaging in conduct set out in subsection 15(2A) of the Act in connection with their engagement as an APS employee.

2.    Availability of procedures

2.1    As provided for in subsection 15(5) of the Act, these procedures are publicly available on ASADA’s website.

 

3.    Breach decision-maker and sanction delegate

The delegate for selecting a decision maker (the ‘breach decision maker’) is the Chief Executive Officer.

3.1    As soon as practicable after a suspected breach of the Code has been identified and the Chief Financial Officer, Deputy CEO Legal Education and Corporate, Deputy CEO Operations or the Chief Executive Officer (CEO), has decided to deal with the suspected breach under these procedures, that person will appoint a decision-maker (‘the breach decision-maker’) to make a determination under these procedures.

3.2    The role of the breach decision-maker is to determine in writing whether a breach of the Code has occurred.

3.3    The breach decision-maker may undertake the investigation, or seek the assistance of an investigator. The investigator may investigate the alleged breach, gather evidence and make a report of recommended factual findings to the breach decision-maker.

3.4    The person who is to decide what, if any, sanction is to be imposed on an APS employee who is found to have breached the Code (‘the sanction delegate’) will be a person holding a delegation of the powers under the Act to impose sanctions.

3.5    These procedures do not prevent the breach decision-maker from being the sanction delegate in the same matter.

3.6    The breach decision maker and the sanction delegate must have regard to the Commission’s publication, ‘Handling Misconduct: A human resources manager’s guide’ in making the determination and the decision in relation to sanction.

4.    Person or persons making breach determination and imposing any sanction to be independent and unbiased

4.1    The breach decision-maker and the sanction delegate must be, and must appear to be, independent and unbiased.

4.2      The breach decision-maker and the sanction delegate must advise the CEO or the person authorised by the agency head to appoint the breach decision-maker in writing if they consider that they may not be independent and unbiased or if they consider that they may reasonably be perceived not to be independent and unbiased; for example, if they are a witness in the matter.

5.    The determination process

5.1    The process for determining whether a person who is, or was, an APS employee at ASADA has breached the Code must be carried out with as little formality, and with as much expedition, as a proper consideration of the matter allows.

5.2    The process must be consistent with the principles of procedural fairness.

5.3    A determination may not be made in relation to a suspected breach of the Code by a person unless reasonable steps have been taken to

    (a)    inform the person of:

        (i)    the details of the suspected breach of the Code, including any subsequent variation of those details; and

        (ii)    ​​​​​​​​​​where the person is an APS employee, the sanctions that may be imposed on them under subsection 15 (1) of the Act; and

    (b)    give the person a reasonable opportunity to make a statement in relation to the suspected breach.

5.4    The statement may be a written or oral statement and should be provided within 7 calendar days or any longer period that is allowed by the decision-maker.

5.5    A person who does not make a statement in relation to the suspected breach is not, for that reason alone, to be taken to have admitted to committing the suspected breach.

5.6    For the purpose of determining whether a person who is, or was, an APS employee at ASADA has breached the Code, a formal hearing is not required.

 

6.    Sanctions

6.1    The process for imposing a sanction must be consistent with the principles of procedural fairness.

6.2    If a determination is made that an APS employee at ASADA has breached the Code, a sanction may not be imposed on the employee unless reasonable steps have been taken to

    (a)    inform the employee of:

        (i)    ​​​​​​​​​​​​​​the determination that has been made; and

        (ii)    ​​​​​​​​​​​​​​the sanction or sanctions that are under consideration; and

        (iii)    ​​​​​​​​​​​​​​the factors that are under consideration in determining any sanction to be imposed; and

    (b)    give the employee a reasonable opportunity to make a written statement in relation to the sanction or sanctions under consideration.

6.3    The statement may be a written or oral statement and should be provided within 7 calendar days or any longer period that is allowed by the sanction delegate.

 

7.    Record of determination and sanction

7.1    If a determination is made in relation to a suspected breach of the Code by a person who is, or was, an APS employee at ASADA, a written record must be made of

    (a)    the suspected breach; and

    (b)    the determination; and

    (c)    any sanctions imposed as a result of a determination that the employee has breached the Code; and

    (d)    if a statement of reasons was given to the person regarding the determination in relation to suspected breach of the Code, or, in the case of an employee, regarding the sanction decision, that statement of reasons or those statements of reasons.