41BInquiry into alleged breach of Code of Conduct by APS employee or former APS employee

#### 41B Inquiry into alleged breach of Code of Conduct by APS employee or former APS employee Request for inquiry (1) The Commissioner may, for the purposes of paragraph 41(2)(n), inquire into and determine whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct if: (a) the Agency Head or the Prime Minister requests the Commissioner to do so; and (b) the Commissioner considers it would be appropriate to do so. (2) The Prime Minister may make a request under paragraph (1)(a) in relation to an alleged breach of the Code of Conduct of which the Prime Minister has become aware as a result of, or in the course of, a systems review or a special review. Procedures for inquiry (3) The Commissioner must establish written procedures for inquiring into and determining whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct (including by engaging in conduct referred to in subsection 15(2A)). The procedures: (a) must comply with basic procedural requirements prescribed by the regulations; and (b) must have due regard to procedural fairness. (4) In addition, and without affecting subsection (3), the procedures may be different for: (a) different categories of APS employees or former APS employees; or (b) APS employees, or former APS employees, who: (i) have been convicted of an offence against a Commonwealth, State or Territory law in respect of conduct that is alleged to constitute a breach of the Code of Conduct; or (ii) have been found to have committed such an offence but no conviction is recorded. (5) The Commissioner must ensure that the procedures established under subsection (3) are made publicly available. (6) Procedures established under subsection (3) are not legislative instruments. Commissioner’s powers (7) For the purposes of inquiring into and determining whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct, the Commissioner may exercise the same powers as the Agency Head may exercise in determining whether an APS employee, or a former APS employee, in the Agency has breached the Code of Conduct. Report on results of inquiry (8) The Commissioner must report on the results of an inquiry and determination under this section (including an inquiry that is discontinued) in relation to an APS employee, or a former APS employee, in an Agency to: (a) the Agency Head; and (b) if the Prime Minister requested the inquiry—the Prime Minister. Recommendation of sanctions (9) If: (a) the Commissioner finds that an APS employee in an Agency has breached the Code of Conduct; and (b) the Commissioner is requested to recommend sanctions in respect of the breach by: (i) the Agency Head; or (ii) if the Prime Minister requested the inquiry—the Prime Minister; the Commissioner may recommend any of the sanctions referred to in subsection 15(1). > Note: A sanction referred to in subsection 15(1) would be imposed on the APS employee by the Agency Head, not by the Commissioner. Discontinuation of inquiry (10) The regulations may prescribe circumstances in which the Commissioner may discontinue an inquiry under this section.