Code of conduct: the elephant in the room

By Verona Burgess

June 27, 2018

New desk chairs wrapped with bubble wrap in executive office

Australia has seen far more serious and concerning investigations against senior officials, but few are quite as politically sensitive as the one that left the acting Merit Protection Commissioner to make the best of a bad situation. Verona Burgess on the elephant in the room.

The trouble with elephants in the room is that they don’t just go away of their own accord.

One of the biggest that is wandering around the Australian Public Service is the code-of-conduct inquiry into the Public Service Commissioner, John Lloyd.

As reported, the former acting Merit Protection Commissioner, Mark Davidson, bowed to the inevitable just before the new commissioner, Linda Waugh, took up her position on Monday this week.

Five months after receiving the complaint about Lloyd, Davidson notified the two presiding officers of the Parliament on June 14 that there would, indeed, be a code-of-conduct inquiry.

It was stable-door stuff because on June 4, Lloyd had announced he was resigning, to finish on August 8. He has repeatedly maintained that he did nothing wrong in his office email communications with a former colleague and friend, the Institute of Public Affairs’ John Roskham; others, obviously, beg to differ.

Davidson told an extra Senate finance and public administration estimates hearing on June 21 (whose chair, Liberal MP James Paterson, is another IPA alumnus) that the inquiry would likely lapse if not completed before Lloyd departed. Let’s really hope that does not happen.

Even when given an out, most public servants face the music

Average public servants might well ask whether the same kind of beneficial timeline might apply in their own cases. The answer is yes in some cases and no in others because internal disciplinary wheels have a habit of grinding excruciatingly slowly, particularly when convenient, and it’s easier for agencies if the employee jumps ship.

Yet only a minority do. According to the 2016-17 State of the Service report, the process was discontinued in 1.3% of code-of-conduct investigations because the employees had resigned. And in 14.6 % of cases where a breach was found, no sanction was applied because the employee resigned prior to the sanction decision.

The report doesn’t have numbers for people who resign after a complaint is made but before an investigation is initiated.

By far the most breaches were of the requirement to “at all times behave in a way that upholds the APS Values and APS Employment Principles”.  In 2016-17 there were 454 investigations, with 403 breaches found. The previous year there were 543 investigations and 472 breaches.

Next was the requirement to “behave honestly and with integrity” (333 investigations and 287 breaches in 2016-17, down from 427 investigations and 355 breaches in 2015-16.

Third was the requirement to “act with care and diligence” (287 investigations and 262 breaches in 2016-17; down from 388 investigations and 356 breaches in 2015-16).

The most common sanction was a reprimand (in 76.29% of cases), followed by a reduction in salary (44.85%); deduction from salary (22.91%); termination of employment (18.3%); reassignment of duties (5.67%) and reduction in classification (also 5.67%).

Wise minds hold the reins of Lloyd case

Labor and the unions would like to see Lloyd’s blood on the floor but that is obviously not going to happen, whatever the outcome.

That’s not to say Davidson has acted improperly. Indeed, he seems to have made the best of a bad situation.

First, he did the right thing in seeking external impartial advice once a new Merit Protection Commissioner had not been appointed by March (former commissioner Annwyn Godwin having left in December).

The former mandarin whose advice he sought turns out to have been the highly respected former secretary of the Attorney-General’s Department, Robert Cornall – so a good choice.

And the person who has agreed to conduct the inquiry is former Information Commissioner and Commonwealth Ombudsman, John McMillan, who is impeccably credentialled.

McMillan, after finishing as Information Commissioner, did a two-year stint as Acting NSW Ombudsman (there’s an upper statutory age limit of 65 for the NSW Ombudsman).

That is where Waugh, as a deputy Ombudsman, led the gruelling Operation Prospect investigation into the NSW Police Force, the NSW Crime Commission and the NSW Police Integrity Commission.

The investigation, whose multi-volume report was tabled in the NSW parliament in December, 2016, began in October, 2012 under former NSW Ombudsman Bruce Barbour and finished under McMillan. It was the largest investigation ever undertaken by an ombudsman in Australia. Let’s not imagine for one minute that Waugh is not up to the task of Merit Protection Commissioner.

In comparison with that searing experience, this investigation is very small beer. Nonetheless, its political sensitivity is extremely high – hence the elephant.


It will soon be time to farewell the mother of invention, aka the Director-General of IP Australia, Patricia Kelly. Applications for her job – surely one of the most interesting in the Australian Public Service – closed on Sunday; she will retire in August and make no mistake, this is a big loss for the APS. Not only has she developed and transformed the agency in the digital era (check it out if you don’t believe us at – it has a great website) but she has been right at the heart of the innovation policy agenda ever since she was a deputy secretary in Industry. She will be a hard act to follow.

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