Statement from Deputy Commissioner
'I, Alison Stott, Deputy Commissioner, ATO People, establish these procedures under subsection 15(3) of the Public Service Act 1999 (the Act).
These procedures are effective as of the date of signature and replace all previous procedures.'
Alison Stott, Deputy Commissioner ATO People
Date: 15 July 2025
Application
These procedures apply in determining:
- whether a current Australian Taxation Office (ATO) employee or former ATO employee who was employed in the in the ATO at the time of the suspected misconduct, has breached the APS Code of Conduct (the Code) in section 13 of the Act; and
- any sanctions to be imposed on a ATO employee, in accordance with subsection 15(1), where a breach of the Code has been determined.
These procedures apply in relation to a suspected breach of the Code by an ATO employee, a former ATO employee, or the actions of an employee prior to commencing with the ATO in respect of which a determination is to be made.
Not all suspected breaches of the Code may need to be dealt with by way of a determination. In particular circumstances, another way of addressing a suspected breach of the Code may be more appropriate.
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.
In these procedures, powers afforded to the Agency Head under legislation (for example, powers to suspend or reassign duties or determine a breach) may be delegated to other employees of the ATO. For information about delegations, this procedure should be read along with the ATO’s delegations and authorisations instruments.
Availability of procedures
These procedures are publicly available on the ATO's website in accordance with subsection 15(7) of the Act.
Breach decision-maker
The role of the breach decision-makers to determine in writing whether a breach of the Code has occurred.
These procedures don't prevent the Agency Head, or a person listed at subclause 7.1 of these procedures, from appointing themselves as the breach decision-maker.
The breach decision-maker may undertake the investigation, or seek the assistance of an investigator, who may be external to the ATO. The investigator may investigate the alleged breach, gather evidence and make a report of recommended findings to the breach decision-maker.
Sanction delegate
The delegate determining whether a sanction should be imposed for any breach of the Code is referred to in these procedures as the sanction delegate and will hold a delegation of the power under subsection 15(1) of the Act.
These procedures don't prevent the breach decision-maker from being the sanction delegate in the same matter.
Suspension delegate
The delegate determining whether an employee should be suspended from duties is referred to in these procedures as the suspension delegate and will hold a delegation of the powers and functions under section 28 of the PS Act and section 14 of the Public Service Regulations 2023 (the Regulations).
Where suspension from duties is being considered, appointing a separate suspension delegate from the breach decision-maker is preferable.
Breach decision-maker, suspension, and sanction delegates to be independent and unbiased
The Agency Head or that employee taking action under subclause 7.1 will take reasonable steps to ensure that the person who determines:
- The person who determines whether a current or former APS employee in the ATO has breached the Code is, and appears to be, independent and unbiased; and
- The person who determines any sanction to be imposed is, and appears to be, independent and unbiased.
The breach decision-maker and the sanction delegate must advise the Agency Head or that employee taking action under subclause 7.1 in writing if they consider that they may not be independent or unbiased or if they consider that they may reasonably be perceived not be independent or unbiased; for example, if they are a witness in the matter.
Initiate formal misconduct action and appoint a decision maker
As soon as practicable after a suspected breach of the Code has been identified, the Agency Head or one of the following ATO employees will consider if it is appropriate for a preliminary assessment to be conducted, to assess whether the suspected breach of the Code should be formally investigated under these procedures:
- Chief Operating Officer
- Chief Information Officer
- Any Second Commissioner
- Deputy Commissioner, ATO People
- Deputy Commissioner & Chief General Counsel
- Any Assistant Commissioner, ATO People
- Director, Working Well
Once a decision is made to formally investigate the suspected breach, the Commissioner or that employee taking action under subclause 7.1 will appoint a breach decision-maker to make a determination under these procedures.
Reassignment of duties or suspension from duty
A current ATO employee who is under investigation for suspected breach of the Code may be:
- reassigned to alternative duties, either for a temporary period or on an ongoing basis, under section 25 of the Act, and/or
- suspended from duty by the suspension delegate under section 28 of the Act and
section 14 of the Regulations.
The employee must be provided with a reasonable opportunity (usually 7 calendar days) to make a statement regarding the reassignment of duties or suspension from duty.
To remove any doubt, this clause also applies to Senior Executive Service (SES) employees.
The breach determination process
The process for determining whether a current or former ATO employee has breached the Code must be carried out with as little formality, and as much expedition, as a proper consideration of the matter allows.
The process must be consistent with the principles of procedural fairness.
A determination will not be made in relation to a suspected breach of the Code by a current or former ATO employee in the ATO unless reasonable steps have been taken to:
- inform the employee or former employee of:
- the details of the suspected breach (including any subsequent variation of those details); and
- in the case of a current employee in the ATO, the sanctions that may be imposed on the employee under subsection 15(1) of the PS Act; and
- give the employee or former employee a reasonable opportunity to make a statement in relation to each suspected breach (or subsequent variation to any initially suspected breach).
The may statement referred to at 9.3(b) may be a written or oral statement and is usually required to be provided within 7 calendar days, or any longer period that is allowed by the breach decision-maker.
Variation in investigation
If, during the course of an investigation, it becomes evident that there is a material variation in the nature or extent of the alleged breach notified to the employee or former employee, they must be notified in writing of the variation. Current ATO employees must also be notified of any variation in the range of sanctions that may be imposed if they are found to have breached the Code of Conduct.
The employee or former employee must be provided with a reasonable opportunity (usually 7 calendar days) to make a statement or provide further evidence before a determination is made.
Sanctions
The process for imposing a sanction must be consistent with the principles of procedural fairness.
If a determination is made that a current ATO employee in the ATO has breached the Code, a sanction will not be imposed on the employee unless reasonable steps have been taken to:
- inform the employee of:
- the determination of a breach of the Code; and
- the sanction or sanctions that are under consideration in accordance with subsection 15(1) of the PS Act; and
- the factors that are under consideration in determining any sanction to be imposed.
- give the employee a reasonable opportunity to make a statement in relation to each sanction/s under consideration.
The statement referred to at paragraph 11.2(b) may be a written or verbal statement, usually provided within 7 calendar days or any longer period that is allowed by the sanction delegate.
If a determination is made that a current ATO employee has breached the Code, one or more of the following sanctions may be imposed under section 15(1) of the PS Act:
- a reprimand
- deduction from salary, by way of a fine
- reduction in salary
- re-assignment of duties
- reduction in classification
- termination of employment.
The ATO cannot impose a sanction on a former ATO employee.
Record of determination and sanction
If a determination is made in relation to a suspected breach of the Code by a current or former ATO employee, a written record must be made of:
- the suspected breach
- the determination
- in the case of a current ATO employee in the ATO, any sanctions imposed as a result of the determination that the employee breached the Code; and
- if a statement of reasons was given to the employee or former employee regarding the determination in relation to a suspected breach of the Code, or, in the case of a current employee, regarding the sanction decision, that statement of reasons or those statements of reasons.
Note: The Archives Act 1983External Linkand the Privacy Act 1988External Link apply to a record made under this clause.
Additional procedural requirement for current Senior Executive Service employees
In accordance with the requirements at section 64 of the Australian Public Service Commissioner's Directions 2022 (Directions), if a current Senior Executive Service (SES) employee in the ATO is suspected of breaching the Code, the Agency Head of the ATO, or a delegate of the Agency Head, must consult with the APS Commissioner or a delegate of the Commissioner:
- on the process for determining whether the employee has breached the Code; and
- if considering imposing a sanction, before imposing the sanction.
Procedure when an employee seeks to move to another APS agency prior to or during an investigation
This clause applies if a current ATO employee seeks to move to another APS agency either prior to or after they have been formally notified that they are suspected of breaching the Code, and before the matter has been resolved.
Where an ATO employee seeks to move to another APS agency after they have been formally notified that they are suspected of breaching the Code but prior to the matter being resolved, any move between APS agencies will generally be deferred, under subsections 42A(1) and 46(5) of the Directions, until after a decision has been made about whether or not the employee has breached the Code, or it is decided that such a determination is not necessary.
Procedure when an employee moves to another APS agency prior to or during an investigation
This clause applies if a current ATO employee moves to another APS agency either prior to or after they have been formally notified that they are suspected of breaching the Code and before the matter has been resolved.
Where an employee moves to another APS agency prior to being notified that they are suspected of breaching the Code , it is open to the gaining Agency Head to use information and any assessment conducted by the original agency in undertaking a misconduct investigation. Regulation 9.2 of the Regulations allows the original agency to disclose information to the gaining agency where it is relevant to an agency head’s employer powers, including a misconduct investigation in the gaining agency.
Where an employee suspected of having breached the Code moves, with the agreement of agency heads, before the misconduct action is resolved, the gaining agency may initiate an investigation in accordance with its subsection 15(3) procedures.
Review of action
Where a determination has been made that a current or former non-SES employee has breached the Code, they may be eligible to seek review of the action under section 33 of the Act.
A review may also be sought in respect of a sanction decision, unless the sanction was termination of employment.
Applications for review should be made to the Merit Protection Commission directly within the statutory timeframe.