Commissioner Overturns Code of Conduct Decision
The Merit Protection Commissioner set aside a finding after an investigator relied on personal information unrelated to the case.
Updated on Nov. 6, 2026 in Human Resources
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The Merit Protection Commissioner overturned a code of conduct decision after finding the investigator used personal information unrelated to the investigation without the employee's knowledge or opportunity to respond. The ruling is one of 27 code of conduct decisions set aside or varied across 68 reviews in 2025-26.
Why it matters
The findings point to procedural failures in how Australian Public Service agencies conduct misconduct investigations, which can affect employees' rights and the fairness of workplace outcomes. The rising rate of overturned decisions raises questions about the quality and consistency of agency decision-making.
Of 68 code of conduct reviews completed in 2025-26, 27 decisions were set aside or varied, a rate of 40 per cent up from 33 per cent in 2021-22. Defence had six decisions overturned, the Tax Office three, and the Department of Finance and the Department of Employment and Workplace Relations two each.
The players
Merit Protection Commissioner
The independent statutory office that reviews Australian Public Service employment decisions, including code of conduct outcomes.
Department of Defence
The Australian federal department responsible for the defence portfolio, which had the most code of conduct decisions overturned in 2025-26.
Australian Taxation Office
The federal agency responsible for administering the Australian tax system, which had three code of conduct decisions overturned in 2025-26.
The details
The investigator relied on personal information about the employee that was unrelated to the investigation and did not make the employee aware it was being considered or give them a chance to respond. The Commissioner found this created the appearance of bias, with evidence suggesting the delegate had formed a negative view of the employee on that basis.
Timeline
2021-22: Overturn or variation rate for Merit Protection Commissioner decisions stood at 33 per cent.
2025-26: 27 of 68 code of conduct decisions were set aside or varied.
28 October 2025: The annual report referencing the investigation was published.
Human Resources Framework
Code of conduct investigations in the Australian Public Service are governed by the Public Service Act 1999, and the Merit Protection Commissioner's review role provides an external check on agency decisions. The rising overturn rate reported for 2025-26 suggests that scrutiny of those investigations is intensifying.
Australian Public Service employees facing code of conduct investigations are entitled to be made aware of information being considered and to respond to it before a decision is made. Employees who believe a decision was procedurally unfair may be able to seek review through the Merit Protection Commissioner.
The takeaway
Procedural fairness in misconduct investigations is central to the legitimacy of public sector decisions, and independent review remains an important safeguard. Employees and managers alike benefit from understanding that using irrelevant personal information can undermine an otherwise sound outcome.
Further reading
For broader context on workplace disciplinary processes, see Human Resources coverage across Australia.
Source note: This article includes information reported by The Canberra Times.
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