'Questionable legality': four key changes for SA's public servants


September 14, 2015

The South Australian government has introduced a new Public Sector Code of Conduct. Many public servants will recall the previous versions of similar documents, for example the blue book that existed under the Public Sector Management Act 1995, and in more recent times, the purple book that was published under the current Public Sector Act 2009 AKA “the old code”. This new iteration, with a questionable and presumably Mondrian inspired multi-coloured cover, is the government’s latest and current pronouncement on the basic standards to be observed by those in the public service.

The code of conduct applies to all SA state government employees. A breach of the code can give rise to a liability to disciplinary action.

So, what are the differences between the old and new codes of conduct? Well, not much. The changes between the two versions are largely cosmetic, with some subtle although potentially controversial changes.

Surprisingly the new version, at 16 pages, comes in some eight pages less than the previous version. Given that most copies will be distributed electronically in most government agencies, the consolidation is probably attributable to a concerted effort to produce a more accessible document rather than concerns about government printing costs. The layout and order of the code is slightly changed, but not in any substantive way. The obligatory motherhood statements about efficiency, accountability and democracy have been rephrased but not in any manner than impacts on the part of the document that has the real work to do, being the specific standards expected of public sector employees.

The new code is expanded in four specific ways that may impact on public servants:

  1. The old code prohibited unauthorised public comment when employees were acting in an “official capacity”. In the new code, the reference to “official capacity” has been dropped, and the definition of public comment expanded to specifically include use of social media. The new code appears to envisage that it covers private off-duty activity on social media such as Facebook and Twitter. The justification of this expansion is said to be the supposedly new ubiquitous nature of social media. However, the extent to which the new code can legitimately interfere with off-duty behaviour is a fertile ground for debate. There is a complex jurisprudence about the extent to which an employer, including a public sector employer, can intrude on employee’s private lives. Although the legality of the new code is questionable (in my opinion), risk management principles would suggest it has been and will always be a risky practice to engage in offensive or harassing behavior on social media for many reasons not limited to potential disciplinary action.
  2. The prohibition on disclosing information without proper authorisation has been expanded to include accessing information other than in the proper course of an employee’s duties or with proper authorisation. The effect of this change for most public servants is likely to be minimal, given that improper access to information is usually grounds for disciplinary action as a breach of agency or local policies or procedures.
  3. The need for approval for secondary (ie outside) employment has been extended to all employees, not just full time employees.
  4. The new code purports to impose an obligation on witnesses to potential misconduct to assist in investigations. An example of the obligation might be, for example, submitting to an interview. The Commissioner for Public Employment, Erma Ranieri, is of the view this change simply states the common law that applies anyway. Whether the legality of this new explicit obligation is upheld by the courts is a matter to be determined, although I suspect a test case might be some time off given that employees still retain the privilege against self-incrimination of misconduct, and therefore employees in the firing line will still have the option of declining to answer questions put to them in reliance on the privilege. Whether to exercise the privilege is always a difficult case by case decision, and would usually not greatly trouble a witness who is not the subject of the investigation.

The reasons why the government saw a need for a new code of conduct have not been explained. However, the changes are more of cosmetic procedure rather than an invasive operation. That said, facelifts don’t always work out the way the technician intends, and some of the changes in the new code may be up for debate.

First published at TindalGaskBentley Lawyers blog.

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