Key points

• The Parliamentary Workplace Support Service Bill 2023 (PWSS Bill) would establish a statutory Parliamentary Workplace Support Service (the statutory PWSS) with an accompanying Advisory Board and Consultative Committee. Functions would include those currently performed by the existing non-statutory PWSS and the Ministerial and Parliamentary Services Division of the Department of Finance. The statutory PWSS would provide human resources services for parliamentarians and persons employed under the Members of Parliament (Staff) Act 1984 (MOP(S) employees), and other services and arrangements to support positive cultural change across Commonwealth parliamentary workplaces.
• The Parliamentary Workplace Support Service (Consequential Amendments and Transitional Provisions) Bill 2023 would provide for consequential amendments and transitional arrangements to support the PWSS Bill.
• The Members of Parliament (Staff) Amendment Bill 2023 (MOP(S) Bill) updates the framework for parliamentarians and office-holders to employ people on behalf of the Commonwealth. The Bill clarifies the roles, responsibilities and obligations of parliamentarians, office-holders and employees. The Bill introduces employment principles to guide respectful workplaces.
• The three Bills aim to implement recommendations of the Australian Human Rights Commission’s Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (Jenkins Report). The MOP(S) Bill also implements recommendations of the Review of the Members of Parliament (Staff) Act 1984.
• One of the outstanding and key recommendations of the Jenkins Report is the establishment of an Independent Parliamentary Standards Commission (IPSC) that will formalise and enforce codes of conduct for Parliamentarians and staff – legislation is required to establish the IPSC. Minister for Finance, Katy Gallagher has indicated that the IPSC will be ‘more difficult to land in legislation’ owing to the need to secure agreement on provisions for the sanctioning of parliamentarians.

Introductory Info

Date introduced: 4 September 2023
House: House of Representatives
Portfolio: Finance and Special Minister of State
Commencement: Various dates as set out in the body of this Bills Digest

Introduction

This Bills Digest covers issues for:

• Parliamentary Workplace Support Service Bill 2023 (PWSS Bill)
• Parliamentary Workplace Support Service (Consequential Amendments and Transitional Provisions) Bill 2023 (CATP Bill) and
• Members of Parliament (Staff) Amendment Bill 2023 (MOP(S) Bill).

The CATP and MOP(S) Bills are referred to in this Bills Digest as the related Bills.

The Digest first sets out the policy issues relating to the PWSS Bill and related Bills. For each of the Bills, specific background, key issues and proposed provisions are outlined and discussed.

The following is then considered for the PWSS and related Bills as a group: the policy positions of non-government parties and major interest groups; financial implications; committee matters; and human relations issues.

Purpose of the Bills

The purpose of the three Bills is to deliver commitments made in response to recommendations of the Jenkins Report, the 2021 report of the Independent Review into Commonwealth Parliamentary Workplaces conducted by former Sex Discrimination Commissioner, Kate Jenkins (the Jenkins Review).

Background to all Bills

The workplace culture of the Commonwealth Parliament became the focus of public attention in February 2021 following media reports of an alleged sexual assault in Parliament House in March 2019 and a number of other allegations of mistreatment of members of parliament and political and parliamentary staff.[1] In response to these events and the apparent failings in the institutional responses to them, the Government initiated the Foster and Jenkins Reviews. The latter review was in turn the genesis of a review of the Members of Parliament (Staff) Act 1984 (MOP(S) Act).

Foster review

Prime Minister Morrison announced on 16 February 2021 that he had asked the Deputy Secretary of the Department of the Prime Minister and Cabinet, Ms Stephanie Foster, to undertake a review of procedures and processes relating to serious incidents in the parliamentary workplace (the Foster Review), with a focus on immediate, practical steps that could be taken to better support those affected by workplace incidents.[2]

Early in this review, Ms Foster identified an immediate need to establish a ‘24/7, independent, confidential and trauma-informed phone support line for all staff and parliamentarians’.[3] A Parliamentary Support Line was established to meet this need on 2 March 2021.[4]

Following consultations with a range of experts, relevant organisations and current and former MOP(S) employees, Ms Foster provided her final report, Review of the Parliamentary Workplace: Responding to Serious Incidents (the Foster Report) to the Prime Minister on 24 May 2021.[5] The Foster Report found that the current arrangements under which human resource (HR) support functions were distributed between employing parliamentarians, MOP(S) employees and the Department of Finance (Finance) were not adequate to address serious workplace incidents.[6] In addition to the ‘absence of readily accessible, timely, independent, trauma-informed services and response mechanisms’, which had already been partly addressed through the establishment of the support line, the Foster Report also found two other areas for immediate action:

• the establishment of a ‘trusted, independent complaints mechanism able to deliver proportionate consequences for misconduct’ and
• the delivery of ‘tailored, face to face education and support for parliamentarians and their staff in preventing, identifying and responding to serious incidents in the workplace’.[7]

Establishment of the Parliamentary Workplace Support Service

The Foster Report recommended that the proposed ‘independent complaints mechanism’ be established under the Parliamentary Service Act 1999 as a function of the Parliamentary Service Commissioner (PS Commissioner), and that it be overseen by the Presiding Officers of the House of Representatives and the Senate to ensure its independence from the Executive and from employing parliamentarians. The Foster Report recommended that the mechanism should initially be available to MOP(S) Act staff and parliamentarians in relation to incidents occurring since the 2019 election.[8] This suggested approach was implemented by the Presiding Officers by making the Parliamentary Service Amendment (Independent Parliamentary Workplace Complaints Mechanism) Determination 2021 on 23 September 2021, with the new body, known as the Parliamentary Workplace Support Service (PWSS), beginning operations on the same day.[9]

The PS Commissioner is currently responsible for ensuring the PWSS fulfills the following functions:

• reviewing, and making recommendations in relation to, complaints about serious incidents involving MOP(S) employees, parliamentarians, or both, in the course of their work
• providing support to current or former Commonwealth parliamentary workplace participants in relation to such serious incidents and other matters relating to work health and safety in the course[10]
• providing for education of Commonwealth parliamentary workplace participants about the PWSS, serious incidents and misconduct involving MOP(S) employees, parliamentarians, or both, in the course of their work.[11]

In cases where a complaint is upheld following a review, the PS Commissioner is to receive a report of the review. If the report makes recommendations to a parliamentarian, the PS Commissioner is to engage with the parliamentarian on implementing those recommendations. If recommendations made to a parliamentarian are not implemented, the PS Commissioner is to refer the report to the relevant Presiding Officer, in accordance with procedures agreed by the relevant House.[12]

Resolutions concerning non-cooperation with PWSS reviews

The House of Representatives and the Senate agreed to parallel motions on 18 and 19 October 2021 respectively, noting the establishment of the PWSS and setting out a process by which each House would deal with cases where the Commissioner makes a written report to a Presiding Officer that a parliamentarian has not cooperated with a review by the PWSS or has not acted on the recommendations of such a review.[13]

The resolutions require the relevant Presiding Officer to confidentially refer such reports to the relevant privileges committee, which must consider the report in private session, confer with the PS Commissioner in seeking additional information for its report, and make one of the following recommendations to the relevant Chamber (and may not make any other recommendations):

• that a member or senator cooperate with a review conducted under the Independent Parliamentary Workplace Complaints Mechanism;
• that a member or senator act on the recommendations in a review conducted under the Independent Parliamentary Workplace Complaints Mechanism; or
• that no further action be taken by the House or the Senate.

Any parliamentarian who, without reasonable excuse, fails to comply with the recommendation of a report by the privileges committee that has been adopted by the House or Senate shall be guilty of a serious contempt and shall be dealt with by the House or Senate accordingly. The question of whether a contempt has been committed must be referred to the relevant privileges committee in either the House or Senate for inquiry and report.

The Parliamentary Service Commissioner Report 2021–22 states that the PWSS managed 121 complaints in the reporting period but did not commission any workplace reviews.[14]

Jenkins Review and Report

On 5 March 2021, the Government announced that an independent review of Commonwealth Parliamentary workplaces would be conducted by the Sex Discrimination Commissioner, Kate Jenkins.[15] In making this announcement Senator Birmingham noted that he had ‘consulted extensively with both current and former staff of Members of Parliament, with the Presiding Officers of the Parliament, with experts in matters of sexual harassment and sexual assault, and with representatives from the Opposition, the Greens, other minor parties and Independent Members of Parliament and Senators’.[16]

In contrast to the Foster Review, which focused on identifying immediate reforms, Commissioner Jenkins was tasked with conducting a systematic review of Commonwealth parliamentary workplaces and setting out ‘findings and recommendations with a focus on constructive measures to achieve best practice in the prevention and handling of workplace bullying, sexual harassment and sexual assault.’[17]

Consultations, findings and recommendations

The Jenkins Report was released on 30 November 2021.[18] The Jenkins Review’s methodology included ‘face-to-face, online and telephone interviews, written submissions, an online survey, targeted focus groups, review of relevant data, legislation, policies, and processes, as well as review and analysis of domestic and international research.’[19]

The online survey, which was completed by 23 per cent of all people then working in Commonwealth parliamentary workplaces, provided the following data about the parliamentary workforce:

• 37 per cent had experienced some form of bullying.
• 33 per cent had experienced some form of sexual harassment.
• 1 per cent had experienced some form of actual or attempted sexual assault (noting this estimate was based on a small number of responses).
• 51 per cent had experienced at least one incident of bullying, harassment or actual or attempted sexual assault in a Commonwealth parliamentary workplace.
• 77 per cent had experienced, witnessed or heard about bullying, sexual harassment and/or actual or attempted sexual assault in Commonwealth parliamentary workplaces.[20]

The Jenkins Report identified a number of systemic drivers and institution-specific risk factors associated with bullying, sexual harassment and sexual assault in Commonwealth parliamentary workplaces, including:

• Significant power imbalances between employees.
• Underrepresentation of women in senior roles and a lack of diversity more broadly.
• A lack of accountability and appropriate consequences for those engaging in misconduct and limited recourse for those who have experienced bullying, sexual assault or sexual harassment.
• A lack of clear standards of behaviour in some Commonwealth parliamentary workplaces and inconsistent enforcement of standards.
• Some leaders in Commonwealth parliamentary workplaces either being directly responsible for misconduct themselves, or lacking the skills necessary to effectively prevent or discourage misconduct by others.
• Workplace dynamics—including political loyalties and interests, intense media and public scrutiny and fears over job security—that lead to a reluctance to report or properly address misconduct.
• Conditions of work—including high levels of pressure, travel, poor work/life balance and alcohol consumption—create environments in which bullying, sexual harassment and sexual assault are more likely to occur.
• Employment structures, particularly for those employed under the MOP(S) Act, that lead to high levels of insecurity, which in turn discourages employees from raising concerns about bullying, sexual harassment and sexual assault.[21]

The Jenkins Report made 28 recommendations intended to make improvements to Commonwealth parliamentary workplaces in five areas:

1. leadership
2. diversity, equality and inclusion
3. systems to support performance
4. standards, reporting and accountability and
5. safety and wellbeing.[22]

The process of responding to these 28 recommendations has been shaped by recommendation 2, which proposed that a parliamentary leadership taskforce, chaired by an independent expert and overseen by the Presiding Officers, be established to oversee the implementation of the remaining recommendations. This body was established on 3 February 2022 and comprises an independent expert chair, three Government representatives, three Opposition representatives, one Australian Greens representative and one independent parliamentarian.[23] The Leadership Taskforce publishes regular updates on the status of progress against each of the recommendations made by the Jenkins Report.[24]

Recommendations 11 to 19 of the Jenkins Report are directed at supporting a ‘professionalised and high-performance workplace with robust people and culture systems and processes.’[25] These recommendations relate to the establishment of a new ‘Office of Parliamentarian Staffing and Culture’ and setting out its proposed functions, as well as several amendments to, and a review of, the MOP(S) Act.[26]

Recommendations related to the Office of Parliamentarian Staffing and Culture

Recommendation 11 proposes that a new Office of Parliamentarian Staffing and Culture (OPSC) be established to provide HR support to parliamentarians and MOP(S) employees that is centralised, accountable to Parliament and capable of enforcing standards. The body would also be designed to support HR and administrative functions in relation to policy development, training, advice and support, and education.[27] The Jenkins Report describes the body as follows:

The Commission proposes that the OPSC be an independent and non-partisan institution similarly structured to the Parliamentary Budget Office. The OPSC would be accountable to the Parliament, and will have an authorising environment that enables enforcement of standards through the proposed Independent Parliamentary Standards Commission… The OPSC would be physically located in Parliament House; be headed by a statutory officer, with legislative provision made for the employment of staff; and it would report de-identified data annually to the Presiding Officers. Issues of misconduct and noncompliance would be referred to the Independent Parliamentary Standards Commission.

The OPSC would drive cultural transformation by providing support to parliamentarians and professionalising the workforce through standardised policies, processes and programs in relation to recruitment, induction, performance management, professional development and career pathways. The OPSC would also deliver best practice, mandatory respectful workplace behaviour training and people management training.[28]

Recommendations 12 to 16 and recommendation 19 relate to proposed functions of the OPSC, including:

• Establishment of standards and processes to professionalise management practices for MOP(S) employees (recommendation 12).
• Development of a professional development program for MOP(S) employees (Recommendation 13).
• Ensuring that people working in Commonwealth parliamentary workplaces have the necessary skills to prevent and respond to misconduct (recommendation 14).
• Development and communication of processes and guidance materials on termination of employment of MOP(S) employees (recommendation 15).
• Provision of support to parliamentarians in meeting their legal obligations in relation to the termination of MOP(S) employees (recommendation 16).
• Development, in cooperation with the Parliamentary Leadership Taskforce, of a monitoring and public reporting framework in relation to prevention of and responses to bullying, sexual harassment and sexual assault in Commonwealth parliamentary workplaces (recommendation 19).[29]

As part of a series of recommendations directed at improving diversity, equality and inclusion in parliamentary workplaces, the report also proposes under recommendation 7 that the OPSC have a function, shared with the Department of the Senate and the Department of the House of Representatives, of tabling an annual report detailing diversity characteristics of parliamentarians and MOP(S) Act staff.[30]

As noted in the latest Parliamentary Leadership Taskforce Implementation Tracker, while some preliminary work has been undertaken by either the Department of Finance or the current PWSS, the substantive implementation of these recommendations will be a responsibility of the proposed new body.[31]

The PWSS Bill and the CATP Bill are intended to establish the proposed OPSC, and to enable it to implement recommendations 7, 12–16 and 19. Notably, the Bills propose to:

• call the new body the PWSS, rather than the OPSC
• make the complaints handling function carried out by the existing PWSS a function of the new PWSS, rather than a function of the Independent Parliamentary Standards Commission (IPSC), a separate statutory body proposed by the Jenkins Report

The status of the proposal to establish an IPSC is discussed further below.

Recommendations related to the MOP(S) Act

Recommendations 17 and 18 of the Jenkins Report address the MOP(S) Act. Recommendation 17 proposes that the MOP(S) Act be amended to require a notice of termination of employment to specify the ground or grounds that are relied on for the termination, and to clarify the application of other workplace and anti-discrimination legislation to staff employed under the MOP(S) Act.[32] This recommendation arose from the findings of the Jenkins Report that there appeared to be limited appreciation across Commonwealth parliamentary workplaces that the ‘protections of the Fair Work Act (relevantly the unfair dismissal and general protections provisions) apply to MOP(S) Act employees, and have the effect of imposing requirements on parliamentarians in relation to the circumstances in, and process by, which they can lawfully dismiss their staff.’[33] The recommendation was implemented through the passage of the Parliamentary Workplace Reform (Set the Standard Measures No. 1) Act 2022 in February 2022.

Recommendation 18 proposed that a comprehensive review of the operation and effectiveness of the MOP(S) Act should be undertaken by the Australian Government to ‘ensure consistency with modern employment frameworks.’ Although the operation and effectiveness of the MOP(S) Act fell outside the scope of the Jenkins Review, the Jenkins Report did find that the MOP(S) Act employment framework limits ‘the ability of the Commonwealth to maintain safe and respectful workplaces’.[34] In particular it found that ‘As an employment instrument, [the MOP(S) Act] magnifies power imbalances and job insecurity and creates a complex and confusing employment relationship, where multiple parties hold employer and other legal obligations to staff.’[35]

In response to this recommendation, the Department of the Prime Minister and Cabinet commenced a review of the MOP(S) Act in February 2022 (the MOP(S) Act Review). The findings and recommendations of its report are discussed below.[36]

Outstanding recommendations regarding the establishment of an Independent Parliamentary Standards Commission

In addition to the recommendations discussed above, which were intended to deliver improved human resources support to parliamentary workplaces, including through the establishment of the OPSC, the Jenkins Report also made a series of recommendations intended to ‘establish a clear and effective system of standards, reporting and accountability for behavioural misconduct.’[37]

The two primary recommendations directed at achieving this outcome were:

• the establishment of clear and consistent standards of conduct via the adoption by both Houses of Parliament of codes of conduct for parliamentarians, parliamentarians’ staff, and the parliamentary precincts (recommendation 21)
• the establishment of an Independent Parliamentary Standards Commission (IPSC) to receive, investigate and make findings in relation to complaints of misconduct (recommendation 22).

The Parliament addressed the first of these recommendations by endorsing the draft ‘Behaviour standards and codes’ developed by the Joint Select Committee on Parliamentary Standards in February 2023.[38]

With respect to the second recommendation, the Jenkins Report recommended that the proposed IPSC would exercise powers delegated to it by the Parliament and should:

(a)  incorporate the new Parliamentary Workplace Support Service, including its advisory and support functions (and applying more broadly to misconduct covered by the Codes of Conduct)

(b) operate a fair, independent, confidential and transparent system to receive disclosures, as well as handle informal and formal complaints and appeals about misconduct

(c)  make findings about misconduct

(d) make recommendations on sanctions (in relation to parliamentarians, staff and others as relevant under the Standards of Conduct in the Parliamentary Precincts)

(e)  apply sanctions for a breach of the Code of Conduct for Parliamentarians where such sanctions do not interfere with the functions of the Parliament.[39]

This recommendation has not yet been addressed and is not addressed by the Bills. However, the Government has recently stated that it remains committed to working with parliamentarians to establish the IPSC.[40]

Review of the Members of Parliament (Staff) Act 1984 (Cth)

In response to recommendation 18 of the Jenkins Report, the Prime Minister commissioned the MOP(S) Act Review on 10 February 2022.[41] The focus of the MOP(S) Act Review was to identify changes that would ensure employment arrangements for parliamentarians and their staff are able to ‘support a professional, high-performing, safe and respectful workplace’ and to ‘prevent bullying, harassment, sexual harassment and sexual assault and address its impacts according to best practice’.[42] The MOP(S) Act Review was tasked with specifically considering:

• the recruitment of MOP(S) Act staff, including transparency of arrangements, the use of merit-based recruitment, and pre-engagement checks
• procedural fairness for the terms, conditions, and termination of employees and employers under the MOP(S) Act
• the responsibilities, expectations, and accountability of MOP(S) employees
• appropriate public reporting and accountability of the administration of the MOP(S) Act.[43]

The MOP(S) Act Review proceeded by inviting public submissions, interviewing stakeholders and surveying current and former parliamentarians and MOP(S) employees.[44]

Findings and recommendations

The report of the MOP(S) Act Review (the MOP(S) Report) was publicly released on 7 October 2022 and included 15 recommendations. The Government agreed in principle with all 15 recommendations and undertook to work with the Parliamentary Leadership Taskforce on their implementation.[45] The MOP(S) Act Review considered a range of alternative employment models used in other Australian and international jurisdictions, but concluded:

…the existing model of parliamentarian as employer should be retained, supported by a clear articulation in the Act of their duties as employers. This should be complemented by also setting out in the Act the role of the Prime Minister (or delegate) in setting terms and conditions; and the OPSC in providing support and advice. To support consistent outcomes across the system, the Review considers that the OPSC, once established, should be empowered to support better and more coordinated practices within offices, including through requiring training and reporting on the administration of the Act.[46]

The MOP(S) Report recommended amendments to the MOP(S) Act to simplify its structure and reduce duplication (recommendation 1), as well as amendments to modernise the Act by including an objects clause and amending provisions relating to superannuation and consultants (recommendation 5).

The MOP(S) Report also proposed amendments intended to improve the transparency of the employment framework, including to:

• Require annual reporting of staffing allocations (recommendation 4).
• Require that terms and conditions of employment be published, except where this would identify individuals, and make provision for the continuity of employment where a seat becomes vacant, including between the dissolution of Parliament and the declaration of the polls (recommendation 6).

With respect to recruitment and termination practices, as well as the obligations of parliamentarians and their staff in the workplace, the MOP(S) Report recommended the MOP(S) Act be amended to:

• Clarify employment roles by setting out the specific duties of parliamentarians, the OPSC, and the Prime Minister (recommendation 2).
• Require parliamentarians to recruit staff against specified position descriptions and assess the capacity of candidates to fulfill the prescribed role (recommendation 7).
• Require parliamentarians to notify the OPSC when non-MOP(S) Act employees commence work in their office—for example, interns and volunteers (recommendation 8).
• Include employment principles that set out expectations with respect to workplace behaviour (recommendation 9)
• Set out the obligations of parliamentarians to provide safe and respectful workplaces, make recruitment decisions based on an assessment of capability, and to provide procedural fairness when terminating employment (recommendation 10).
• Set out the obligations of employees to contribute to maintaining safe and respectful workplaces, comply with applicable codes of conduct, and exercise delegations in accordance with legal obligations (recommendation 11).
• Set out requirements for termination processes that would improve certainty and fairness, including requirements to consult the OPSC on best practice prior to effecting a termination, providing parliamentarians with suspension powers and allowing the OPSC to suspend employment in cases of immediate risk, including on the advice of the IPSC (recommendation 13).
• Amend automatic termination provisions to improve clarity and job security (recommendation 14).

The MOP(S) Report recommended the OPSC support the implementation of several of the recommendations listed above through the development of policies and guidance material, and also proposed the OPSC:

• Undertake a review of factors affecting workloads in parliamentarians’ offices, particularly electorate offices, to allow an evidence-based consideration of office and staff resourcing and to recommend principles that should considered by the Prime Minister in determining staffing allocations (recommendation 3).
• Collect ‘diversity’ data, as recommended by the Jenkins Report, to enable transparent annual reporting on the MOP(S) Act employment framework (recommendation 12).[47]

Finally, the MOP(S) Report recommended that the effectiveness of the MOP(S) Act be reviewed within five years of the proposed amendments being made (recommendation 15).

The MOP(S) Bill responds to these recommendations.

Current Parliamentary Workplace Support Service

A function of the Parliamentary Service Commissioner,[48] the current Parliamentary Workplace Support Service (the existing PWSS) was established in September 2021. The Parliamentary Service Amendment (Independent Parliamentary Workplace Complaints Mechanism) Determination 2021 amended the Parliamentary Service Determination 2013 to enable the PWSS to provide support, and formal review of workplace misconduct, to MOP(S) employees and parliamentarians. A subsequent amendment in April 2022 through the Parliamentary Service Amendment (Independent Parliamentary Workplace Complaints Mechanism) Determination 2022 allowed the existing PWSS to provide support to a broader range of Commonwealth parliamentary workplace participants, being employees of parliamentary departments, COMCAR drivers whose duties relate to a Commonwealth parliamentary workplace participant, and ‘any other person who works in a Commonwealth parliamentary workplace’, which includes, for example, volunteers and unpaid interns.[49]

These amendments to the Parliamentary Service Determination 2013 addressed the Jenkins Report’s recommendations 11 and 20, which related to the proposed OPSC (established as the PWSS), and the expansion the PWSS’ remit to include all Commonwealth parliamentary workplace participants.

Parliamentary Workplace Support Service Bill 2023

Purpose of the Bill

The purpose of the Parliamentary Workplace Support Service Bill 2023 (PWSS Bill) is to establish the PWSS as a statutory non-corporate Commonwealth entity (NCE) and a listed entity for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) (clause 12).

Integrating the existing PWSS and some functions currently performed by the Department of Finance, the statutory PWSS would be responsible for a range of functions that relate to current and former Commonwealth parliamentary workplace participants as detailed below under the heading ‘Functions’.

Structure of the Bill

The PWSS Bill comprises eight parts:

• Part 1 includes a simplified outline, the object, definitions, and commencement provisions
• Part 2 establishes the PWSS and its functions, and its obligations in relation to reports, and action against parliamentarians for certain non-compliance
• Part 3 establishes the Chief Executive Officer (CEO) and arrangements for the CEO’s appointment and terms and conditions
• Part 4 outlines arrangements for staff, including consultants
• Part 5 establishes the PWSS Advisory Board and its procedures, including membership and members’ terms and conditions
• Part 6 establishes the PWSS Consultative Committee and its functions and membership
• Part 7 outlines information sharing arrangements, for example, between the PWSS and other Commonwealth entities, and in relation to requesting information from parliamentarians and MOP(S) employees and
• Part 8 comprises miscellaneous matters, being: providing for the making of rules; providing that the Minister must cause a review of the Act and the PWSS rules to be commenced within one year after the commencement of the first session of each Parliament; and establishing that the provisions of the Bill would not affect the powers, privileges and immunities of the members of each House of the Parliament, or of each House of the Parliament and their committees and joint committees.

Commencement

The whole of this Act commences on the earlier of proclamation or the first day of the first calendar month to start after the end of the 6-month period after Royal Assent.

Key provisions and issues

The essential objectives of the PWSS Bill, and key aspects of how it would operate, are clearly and succinctly expressed in the objects clause (clause 3) and various simplified outline clauses (clauses 4, 11, 25, 37, 41, 56, 60 and 66). In addition, the Explanatory Memorandum is informative and detailed and is also clearly expressed.

As two informative resources are available, the following discussion of the PWSS Bill takes a middle path by focusing on provisions that may be of particular interest because, for example, they comprise key concepts, or because there are novel aspects to the provisions.

Establishment of the PWSS

Commonwealth entities: Options for organisational structures

To deliver a service or execute a function, governments may decide that a suitable entity already exists, or that a new entity should be created. There may be various reasons for establishing a specialist entity rather than administering the program through an existing department or agency. For a new entity, options include, but are not limited to, establishing a new department, a committee, a company or a statutory agency (established by or under an Act of Parliament, with a name that may include ‘commission’ or ‘corporation’).

The Department of Finance (Finance) provides guidance on these options, and classifies Commonwealth entities into 13 categories.[50] Intended as a summary of Finance guidance, a Parliamentary Library Quick Guide outlines the 13 categories and provides examples of each category.[51] A Finance webpage provides a more detailed discussion of the key characteristics of each category.

PWSS: Organisational structure

Subclauses 12(1) and 12(3) establish the PWSS as a statutory, Budget-funded non-corporate Commonwealth entity (NCE) that is also a listed entity for the purposes of the PGPA Act (category 1.1 in the Quick Guide table). This means the PWSS will be part of the Commonwealth, rather than separate legal entity.[52] The establishment of the PWSS in this form appears to be consistent with:

• principles outlined by Finance guidance in relation to distinctive characteristics of each category of entity structure
• the establishment of a comparable entity in 2017, the Independent Parliamentary Expenses Authority (IPEA), which also performs functions relate to parliamentarians and their employees.

Although the IPEA and the proposed PWSS have distinct purposes and functions, in terms of organisational structure they will be similar in some key aspects. Both are statutory listed entities, with a Chief Executive Officer (CEO) who is the accountable authority under the PGPA Act (paragraph 12(3)(b)), and staff employed under the Public Service Act 1999 (clause 38). Certain categories of people (for example, officers and employees of ‘agencies’ (within the meaning of the Public Service Act) and authorities of the Commonwealth) may assist in the performance of functions (clause 39). However, in some key respects the PWSS will differ from the IPEA.

Chief Executive Officer (CEO)

In addition to its CEO and staff, the IPEA has up to five members who constitute the Authority. The Authority is responsible for the statutory functions of the Authority, and the CEO is responsible for the day-to-day management of the finances, staff and operations of the Authority. The Authority may give written directions to the CEO about the performance of the CEO’s functions, and the CEO must comply with such a direction.[53]

In contrast, as outlined by the Explanatory Memorandum, clause 28 provides that:

the [PWSS] CEO would have complete discretion in performing their functions and exercising their powers under this Bill. The CEO would not be subject to direction from anyone in doing so, including the government of the day, the PWSS Advisory Board or the PWSS Consultative Committee.[54]

However, as discussed below, this ‘complete discretion’ is tempered somewhat by the Advisory Board’s role in approving or rejecting proposed mandatory policies, procedures and programs (paragraph 43(1)(b) and subsection 44(1)).

Advisory Board: a ‘Consultative parliamentary body’

The Jenkins Report anticipated the establishment of a ‘consultative parliamentary body’:

This body should be representative of the Parliament and include membership from each political party, as well as proportionate representation from independent members of the Parliament. … The structure of the consultative parliamentary body could take several forms, such as a joint committee of the parliament, or an advisory board with functions established under the MOP(S) Act.[55] [emphasis added]

In a departure from a single, parliamentary body envisaged by the Jenkins Report, the PWSS Bill would implement two adjuncts to the PWSS:

• a non-parliamentary Advisory Board comprising a former judicial officer, and other appointees with expertise or experience in: parliamentary workplaces; human resources, work health and safety or industrial relations; and public administration or corporate governance (clauses 45 and 46)
• a Consultative Committee comprising equal numbers of parliamentarians and MOP(S) employees, plus two independent members, one of whom will be the Chair (clause 59).

Membership, role and functions of the PWSS Advisory Board

Clause 42 establishes the PWSS Advisory Board. The part-time members of the Advisory Board will be appointed by the Minister by written instrument (clause 46) for individual terms of up to 5 years and can be reappointed (clause 47). The Advisory Board:

• will consist of a Chair and at least three and not more than four other members and
• at least one member of the PWSS Advisory Board must be a former Commonwealth judicial officer or a former judge of the Supreme Court of a state or territory (clause 45).

The Minister must be satisfied that an appointee has skills, knowledge or experience in one or more of the areas noted earlier. The Minister must also ‘have regard to’ the desirability of ensuring there is a balance of these skills on the Advisory Board (clause 46). Before making appointments to the Advisory Board the Minister must consult within the Parliament:

Subclause 46(5) provides that, before the Minister appoints a person as Chair or as a member of the PWSS Advisory Board, the Minister must consult with the Leader of each Parliamentary party that does not form part of the Government and that has at least five members who are senators or members of the House of Representatives. The Minister may also consult with such other parliamentarians as the Minister considers appropriate.[56] [emphasis added]

Notably, at least two members of the Advisory Board must be women (subclause 45(2)). Specifying a particular requirement for the appointment of women appears to be a novel provision. In contrast, proposed subsection 8(4) of the Infrastructure Act 2008, at item 22 of Schedule 1 to the Infrastructure Australia Amendment (Independent Review) Bill 2023 (which at the time of writing is still under consideration by the Senate) provides that the Minister may ‘tak[e] affirmative action in relation to the appointment of women to positions’ on the three-person governing body of Infrastructure Australia.

With regard to the role of the Advisory Board, the Explanatory Memorandum notes that:

It is intended that the PWSS Advisory Board would be a strategic advisory, rather than an operational, entity. The purpose of the PWSS Advisory Board would be to provide strategic guidance to the CEO of the PWSS in relation to the objectives of the PWSS, drawing upon the subject matter expertise of the members of the PWSS Advisory Board. … Subclause 43(3) provides that the PWSS Advisory Board may give advice on its own initiative or at the request of the CEO of the PWSS. … Paragraph 43(2)(a) clarifies that it is not a function of the PWSS Advisory Board to direct the activities of the PWSS. … Paragraph 43(2)(b) clarifies that it is not a function of the PWSS Advisory Board to give or seek advice or information about, or in relation to, a particular person or case.[57] [emphasis added]

Consistent with the above observations, paragraph 43(1)(a) provides that the Advisory Board’s functions include a broad and non-specific provision for ‘advising the CEO in relation to the performance of the functions of the PWSS or CEO’.

However, paragraph 43(1)(b) provides for a very specific role in relation to some proposals initiated by the CEO. As outlined in the next section, this function appears to be at odds with the stated intention that the Board has a strictly advisory role.

Approving or rejecting proposed mandatory polices, procedures and programs

The CEO may determine by legislative instrument that particular policies and procedures (subclause 17(5)) or specified education or training programs (subclause 18(2)) are mandatory.[58] However, before the CEO can determine that the policies, procedures or programs are mandatory, the CEO must have referred them to the Advisory Board (paragraphs 17(6)(b) and 18(5)(b)).

The Advisory Board must ‘consider’ (paragraph 43(1)(b)) and ‘approve or reject’ (subclause 44(1)) the CEO’s proposals for policies, procedures or programs to be mandatory. The rationale in the Explanatory Memorandum is that:

Requiring the PWSS Advisory Board to approve or reject these mandatory proposals provides assurance that these policies, procedures, programs and requirements are effective and reflect best practice, in light of the subject matter expertise of the members of the Advisory Board. In addition, given that a parliamentarian’s failure to comply with mandatory education or training program requirements may result in details of that failure being included in a public report under clause 23, and failure to comply with mandatory policies or procedures or education or training program requirements would result in notification of the Leader of a parliamentarian’s political party under clause 24 (provided the parliamentarian is a member of a Parliamentary party), approval by the PWSS Advisory Board would provide a level of assurance that the requirements determined by the CEO are reasonable and appropriate.[59] [emphasis added]

The Advisory Board’s veto power on this matter qualifies the Explanatory Memorandum’s assertion that ‘the CEO would have complete discretion in performing their functions and exercising their powers under this Bill’.[60] It also establishes that, in relation to mandatory policies, procedures or programs, the Board’s role is not advisory but is effectively a decision-making role.

Operation of the Advisory Board

The Bill does not specify how the Advisory Board should operate. For example, the Bill does not canvas the frequency of meetings, quorum, voting, the conduct of meetings or minutes.

Clause 69 provides that the Minister may make rules on a range of matters, including matters relating to the operation of the Advisory Board (clause 55). The Explanatory Memorandum states:

It is appropriate for procedures of the PWSS Advisory Board to be included in subordinate legislation in order to provide for flexibility and adaptability. Matters relating to the operation of the PWSS Advisory Board may include, for example, the holding of meetings, presiding at meetings, quorum, voting, the conduct of meetings and minutes.[61]

Subclause 55(2) provides that if no relevant rules are in force the Advisory Board ‘may operate in the way it determines’.

This approach contrasts with legislation to establish another advisory body, the National Archives of Australia Advisory Council. Section 17 of the Archives Act 1983 sets out basic information about the how the Advisory Council should operate:

(1)  The Council shall hold such meetings as are necessary for the performance of its functions.

(2)  The Chair may at any time convene a meeting of the Council.

(3)   The Chair shall, on receipt of a request in writing signed by 2 other members of the Council, convene a meeting of the Council.

(4)   At a meeting of the Council a majority of the members of the Council for the time being holding office constitute a quorum. …

(9)   Questions arising at a meeting of the Council shall be determined by a majority of the votes of the members present and voting.

(10) The member presiding at a meeting of the Council has a deliberative vote and, in the event of an equality of votes, also has a casting vote. [emphasis added]

Consultative Committee

As noted above, the Jenkins Report anticipated the establishment of a ‘consultative parliamentary body’ but the PWSS Bill would implement two adjuncts to the PWSS: a non-parliamentary Advisory Board discussed above; and a Consultative Committee.

Some parameters around appointments are specified in the Bill. However, clause 69 provides that the Minister may, by legislative instrument, make rules on a range of matters, and subclause 59(2) provides that substantive and detailed arrangements for appointments to and the operation of the Consultative Committee may be made in rules. Parameters that will be statutory are discussed first.

Independent members of the Consultative Committee

Subclause 59(1) provides that there must be two ‘independent’ members of the Consultative Committee, one of whom will be the Chair. Clause 5 and subclause 59(1) define ‘independent’ as ‘not a parliamentarian or a MOP(S) employee’. Subclause 59(3) further provides that the person making the appointment must also ‘have regard’ to a potential appointee’s independence from: parliamentarians; MOP(S) employees; registered political parties; and the PWSS and the PWSS Advisory Board.

In terms of the appointees’ positive attributes, the PWSS Bill is silent. However, the Explanatory Memorandum notes that:

It is intended the Chair and the other independent member would be independent experts, who may bring expertise in governance or other relevant subject matter … [A]n independent member as Chair of the PWSS Consultative Committee would ensure that the position of Chair is filled by an individual that is apolitical and can promote the views of parliamentarians and MOP(S) employees equally and impartially. The additional independent member is intended to bring particular subject matter expertise to the PWSS Consultative Committee in order to support the PWSS Consultative Committee to discuss relevant matters and consider proposed policies.[62] [emphasis added]

However, apart from governance, the Explanatory Memorandum is silent on ‘relevant’ or ‘particular’ subject matter, and on what would constitute sufficient experience or expertise. Presumably, these aspects could be specified in the rules, as would the remuneration of independent members (paragraph 59(2)(e)). This contrasts with the requirements for appointment to the Advisory Board under clause 46.

Parliamentarians and MOP(S) employees representation on the Consultative Committee

Subclause 59(1) requires that the Committee must include an equal number of parliamentarians and MOP(S) employees. The Explanatory Memorandum notes that they will participate on a voluntary basis.[63] Subclause 59(4) provides that the rules must require the person making appointment to ‘have regard’ to the desirability of ensuring that the Consultative Committee comprises members of different genders, and that appointees represent the views of the Government, non-Government parties, and independents.

Size of the Consultative Committee

The PWSS Bill is silent on the size of the Committee. Presumably, this would be specified in the rules, along with details about: the operation and procedures of the committee; terms of appointment; and arrangements for resignation, leave of absence and deputies (subclause 59(2)).

The person making appointments to the Consultative Committee

Subclauses 59(3) and (4) refer to ‘the person making the appointment’ under the rules. The wording suggests that ‘the person making the appointment’ need not be the Minister. Possible alternatives to the Minister, to be specified in the rules, could include: the CEO; the Presiding Officers; a committee of the Parliament; or a committee/panel of party leaders (or their delegates), with or without the participation of independent parliamentarians.

Key issue: scope of matters left to the rules

The rules will address almost all aspects of how the Committee is constituted and operates (as per the range of matters listed in subclause 59(2)), and stakeholders will include, by necessity, a wide range of Government and non-Government parliamentarians and MOP(S) staff.

Subclause 59(5) provides that, before making rules relating to appointments, and the operation and procedures of the Committee (subclause 59(2)), the Minister must consult the CEO on the proposed rules. It is possible that the Minister and/or the CEO might choose, on an informal basis, to consult more widely about the rules before they are promulgated.[64]

Alternatively, it could be argued that the possibility of informal consultation with stakeholders is not sufficient, and that specifying some degree of formal and structured consultation would contribute to the devising of rules that have demonstrated support and confidence among parliamentarians and MOP(S) employees.

Definitions

Clause 5 sets out definitions relevant to the Bill as a whole, and other definitions are explained in the context of the clause to which they are relevant. Five key definitions are outlined below: Commonwealth parliamentary workplace, core participant, designated worker, non-core participant and relevant conduct.

Commonwealth parliamentary workplace

A Commonwealth parliamentary workplace is defined as:

1. a place in the precincts (within the meaning of the Parliamentary Precincts Act 1988)
2. premises provided or paid for under the Parliamentary Business Resources Act 2017
3. any other place where a Commonwealth parliamentary workplace participant performs duties as a Commonwealth parliamentary workplace participant.

This includes Parliament House, but is ‘intended to be interpreted broadly to include any other place where Commonwealth parliamentary workplace participants perform their duties’, which would include:

the premises of Departments of State or other Commonwealth entities … Commonwealth Parliament Offices, which are located in the capital city of each state and the Northern Territory, parliamentarians’ electorate, mobile or satellite offices, official establishments (including The Lodge in Canberra and Kirribilli House in Sydney), or the offices of Ministers or other office-holders … places where a participant is working remotely, such as when they are working from home, privately leased office facilities or within a car (such as in relation to a COMCAR driver).[65]

Core participant

A core participant is defined as:

• a parliamentarian
• a MOP(S) employee
• a Parliamentary Service employee
• an APS employee whose predominant place of work as an APS employee is a place covered by paragraph (a) or (b) of the definition of Commonwealth parliamentary workplace
• a person employed by the Commonwealth as a driver to provide the car-with-driver transport service known as COMCAR, to the extent the person’s duties relate to parliamentarians, or
• a designated worker.

Designated worker

As noted by the Explanatory Memorandum the definition of a designated worker is intended to ‘capture volunteers, interns and other workers’ who:

• provide support to parliamentarians predominantly at a Commonwealth parliamentary workplace and
• who are not otherwise captured by the definition of core participant.[66]

The Explanatory Memorandum notes that this would include, for example, Australian Federal Police (AFP) officers working at Australian Parliament House or other Commonwealth parliamentary workplaces, such as official establishments, as AFP officers are not APS employees and therefore would not otherwise be captured by this definition. However, the Explanatory Memorandum clarifies that it is intended that the definition of a designated worker would not ‘cover volunteers who provide assistance to a parliamentarian to campaign across their electorate’.[67]

Non-core participant

A non-core participant is defined as a person, other than core participant, who performs work (whether paid or not) predominantly at places within the parliamentary precincts (such as Parliament House) or premises provided or paid for under the Parliamentary Business Resources Act 2017. As noted by the Explanatory Memorandum:

This definition is intended to include, for example, journalists who predominantly perform work at Australian Parliament House, such as in the Federal Parliamentary Press Gallery, or service workers, such as café workers, at privately owned cafés on Commonwealth premises. It would not cover, however, individuals who visit Australian Parliament House on an ad hoc or intermittent basis to perform work.[68]

Relevant conduct

Relevant conduct is conduct engaged in by a person that consists of any of the following:

• sexual assault
• assault
• sexual harassment
• harassment
• another person being bullied at work (within the meaning of the Fair Work Act 2009)
• unreasonable behaviour towards another person that creates a risk to work health or safety
• conduct that breaches a code of conduct, or a part of a code of conduct, that is prescribed by the PWSS rules.

The Explanatory Memorandum notes that ‘it is intended that relevant conduct may include both a pattern of behaviour as well as a single incident of behaviour’ and ‘it is not necessary for conduct to meet particular thresholds of seriousness to fall within paragraphs (a) to (g) of this definition’.[69]

Functions

The statutory PWSS would bring together a range of functions:

• functions currently performed by the existing PWSS under the Parliamentary Service Determination 2013
• functions currently performed by the Ministerial and Parliamentary Services (MaPS) Division of Finance and
• functions recommended by the Jenkins Report and the Review of the Members of Parliament (Staff) Act 1984 (Cth) (the MOP(S) Report).[70]

Clause 13 list the following functions:

• human resources (clause 14)
• support services in relation to alleged relevant conduct (clause 15)
• complaint resolution (clause 16)
• policy development (clause 17)
• education and training (clause 18)
• reviewing complaints made about alleged relevant conduct (clause 19)
• prepare and publish certain reports (clauses 22, 23 and 24)
• monitor, review and evaluate matters covered by paragraphs 22(2)(a) to (f), which include: gender and diversity characteristics of parliamentarians and MOP(S) employees; and gender equality in relation to remuneration for parliamentarians and MOP(S) employees
• provide support for the Advisory Board and the Consultative Committee, and assist the CEO in the performance of the CEO’s functions (clause 13)
• do anything incidental to, or conducive to, the performance of the above functions, and perform other functions as are conferred on the PWSS (clause 13) (the Explanatory Memorandum suggests functions possibly conferred by the MOP(S) Act).[71]

A note under clause 13 provides that ‘this subsection does not prevent another Commonwealth entity from performing a function that falls within the functions of the PWSS (including its human resources functions)’. The Explanatory Memorandum notes that, after the statutory PWSS has been established:

other Commonwealth entities would continue to deliver key services to Commonwealth parliamentary workplace participants, including parliamentarians and MOP(S) employees … For example, the Department of Finance would continue to administer payroll services for MOP(S) employees …[72]

Human resources functions (clause 14)

Providing a further clarification of the note under clause 13 referred to above, in relation to clause 14 the Explanatory Memorandum observes that:

Human resources services provided by the PWSS would not include certain matters, which would remain the responsibility of the Department of Finance. In particular, the Department of Finance would retain responsibility for Enterprise Agreement negotiations for MOP(S) employees [and] payroll administration for MOP(S) employees.[73]

Having clarified the intended limitations regarding the human resources functions to be performed by the PWSS, the Explanatory Memorandum observes that ‘other Commonwealth parliamentary workplace participants, such as APS and Parliamentary Service employees, are able to access human resources support from their relevant agency’.[74] In that context, the PWSS aims to perform that role for parliamentarians and MOP(S) employees (paragraphs 14(a) to (d)). In particular, the PWSS will advise and assist:

• current and former parliamentarians in relation to their employment of MOP(S) employees or their engagement of designated workers (paragraph 14(a)), and in connection with their obligations under policies and procedures determined by the PWSS under clause 17 (subparagraph 14(b)(i)), and codes of conduct relating to parliamentarians that are prescribed by the PWSS rules (subparagraph 14(b)(ii))
• current and former MOP(S) employees in connection with their employment as MOP(S) employees (paragraph 14(c)), and in connection with their obligations under policies and procedures determined by the PWSS under clause 17 (subparagraph 14(c)(i)), and codes of conduct relating to MOP(S) employees that are prescribed by the PWSS rules (subparagraph 14(c)(ii)) and
• current and former designated workers in connection with their engagement as designated workers, including in connection with their obligations under policies and procedures determined by the PWSS under clause 17 (paragraph 14(d)).

Support function (clause 15)

Under clause 15 the PWSS will provide support services to current and former Commonwealth parliamentary workplace participants in relation to alleged ‘relevant conduct’ (as defined at clause 5). The Jenkins Report described this function as ‘pathway 1’.[75]

The Explanatory Memorandum notes that support services under this clause may include early intervention services, and trauma-informed information, advice and support provided in relation to alleged relevant conduct.[76]

A table included in subclause 15(2) sets out the categories to whom, and the circumstances in which, the PWSS can provide support. The PWSS would be able to provide support services under this clause to both current and former Commonwealth parliamentary workplace participants. The Explanatory Memorandum notes that ‘as this subclause applies to alleged misconduct, there is no need for an individual to prove, to a civil or criminal standard, that particular relevant conduct occurred in order to access the PWSS’s support services’.[77]

Complaint resolution function (clause 16)

A noted by the Explanatory Memorandum, the provisions in clause 16 are intended to ‘provide an opportunity for Commonwealth parliamentary workplace participants to resolve complaints … regarding certain alleged relevant conduct … in an informal and quick manner facilitated by the PWSS’.[78] A table included in subclause 16(2) sets out the categories to whom, and the circumstances in which, the PWSS can provide complaint resolution services. Under subclause 16(2) the PWSS may provide services to both:

• one or more current or former Commonwealth parliamentary workplace participants who are alleged to have engaged in the relevant conduct (the first party), and
• one or more current or former Commonwealth parliamentary workplace participants who are affected by the alleged relevant conduct (the second party).

In relation to allegations about former Commonwealth parliamentary workplace participants, the Explanatory Memorandum states:

Commonwealth parliamentary workplace participants would not be excluded from accessing complaint resolution services if the person they alleged had engaged in the conduct had since left a Commonwealth parliamentary workplace.

The PWSS would have a discretion as to whether to provide complaint resolution services in any given instance, and what services should be provided. This recognises that the services that may be appropriately offered and provided would vary depending on the circumstances of each case. In particular, the practicality of providing complaint resolution services could be limited where one or more parties involved are former Commonwealth parliamentary workplace participants.[79]

With regard to participants’ cooperation with the PWSS’ role:

the PWSS may seek information for the purposes of providing its complaint resolution service. [However] the PWSS will not be able to require Commonwealth parliamentary workplace participants, other than parliamentarians (clause 64 of the Bill refers), to provide information for the purposes of the PWSS’s complaint resolution service. For example, the PWSS may request a MOP(S) employee who has agreed to participate in a complaint resolution service to provide information to support the provision of that service, however the PWSS would not be able to require the MOP(S) employee to provide that information.[80] [emphasis added]

Requests for information from parliamentarians (clause 64) and from MOP(S) employees (clause 65) are discussed in more detail below.

Policy development function (clause 17)

The Explanatory Memorandum notes that Finance will maintain responsibility for the enterprise agreement that applies to MOP(S) employees (which includes terms and conditions of employment, such as in relation to remuneration, allowances and leave matters). The PWSS would be able to determine policies and procedures to support the development of a professionalised Commonwealth parliamentary workforce such as:

• standardised recruitment practices
• professional development
• performance management, and work health and safety.[81]

Further, the Explanatory Memorandum states that the ability of the CEO of the PWSS to:

determine that certain policies or procedures are mandatory would allow the CEO to require compliance with essential policies and procedures, promoting standardisation and consistency across Commonwealth parliamentary workplaces.[82]

To some extent, the policy development function outlined below seeks to establish for Commonwealth parliamentary workplace participants a role similar to that which already exists in the APS. For example, the Australian Public Service Commissioner can issue directions under the Public Service Act 1999. However, the policy development function approval process outlined below is far more onerous than that which applies to the Public Service Commissioner’s directions.

Subclause 17(4) provides that a parliamentarian ‘must comply with a requirement of a mandatory policy or procedure that applies to the parliamentarian’. A consultation requirement in the Bill aims to:

ensure that proposed mandatory policies or procedures are best practice, fit-for-purpose, effective and appropriately adapted to the unique circumstances of Commonwealth parliamentary workplaces. In addition, given the consequences that apply to non-compliance for parliamentarians under subclause 17(4), approval by the PWSS Advisory Board would provide a level of assurance that the requirements determined by the CEO are reasonable and appropriate.[83]

For this reason, subclause 17(6) requires that before the CEO determines a mandatory policy or procedure:

• the CEO must consult the PWSS Consultative Committee about the proposed mandatory policy or procedure and
• the CEO must have referred the proposed mandatory policy or procedure to the PWSS Advisory Board under clause 44 and
• one of the following must have occurred:
  • the PWSS Advisory Board was taken to have approved the proposed mandatory policy or procedure under subsection (4) of that section;
  • the PWSS Advisory Board has notified the CEO that it has decided to approve the proposed mandatory policy or procedure.

This process was discussed above in passing, in relation to the role of the Advisory Board, concluding with the observation that the Advisory Board’s effective veto power on this matter qualifies the Explanatory Memorandum’s assertion that ‘the CEO would have complete discretion in performing their functions and exercising their powers under this Bill’.[84] It also establishes that, in relation to mandatory policies, procedures or programs, the Board’s role is not advisory: it is effectively a decision-making role.

If, after progressing through the approval process, a policy or procedure is determined by the CEO to be mandatory, subclause 17(5) provides that this must be done by legislative instrument, which as the Explanatory Memorandum notes means:

…mandatory policies or procedures determined under this clause would be subject to disallowance. This would allow for appropriate parliamentary scrutiny of mandatory policies and procedures, noting the application of these policies and procedures to parliamentarians and the consequences of non compliance.[85]

Education and training function (clause 18)

The Explanatory Memorandum expects that, under the education and training function (clause 18):

the PWSS would be able to develop, provide and arrange education or training to support the development of a professionalised, safe and respectful Commonwealth parliamentary workforce. For example, under this subclause, the PWSS could provide or arrange for the provision of induction programs, safe and respectful workplace training, learning and professional development programs, sexual harassment training, people management training and WHS training.[86]

However, with regard to mandatory education or training, the same multi-stage approval process outlined in relation to the policy development function would also apply.

Review function (clause 19)

The review function under clause 19 is distinct from the relatively informal complaint resolution mechanism intended by clause 16 (discussed above). The Jenkins Report intended that the clause 19 review function would be performed by an IPSC, rather than the OPSC, which has been implemented as the PWSS.

The OPSC and IPSC would work in complementary ways but are separated to ensure that there is no connection between human resources advice and decision-making and the complaints, investigations and sanctions process. At its simplest, the OPSC would provide the ‘people and culture’ function, including policies, advice and guidance, while the IPSC would provide the accountability and enforcement function for non-compliance and misconduct (equivalent to an internal workplace disciplinary process).[87] [emphasis added]

Minister Gallagher has foreshadowed that further consultation across the Parliament is necessary before an IPSC can be established.[88] In this context, the clause 19 review function is a carry-over of the existing PWSS’s review function under the Parliamentary Service Determination. The Explanatory Memorandum observes that:

This is intended to be an interim function. It is envisaged that the PWSS would continue to carry out this function until the proposed establishment of the Independent Parliamentary Standards Commission (in response to recommendation 22 of the Set the Standard Report [Jenkins Report]). The Report describes the proposed Commission’s ‘formal complaint, investigation and enforcement’ function as ‘pathway 3’.[89]

A table in subclause 19(2) sets out the circumstances in which the PWSS may review a complaint made to the PWSS about alleged relevant conduct:

• engaged in by one or more current or former Commonwealth parliamentary workplace participants (the first party)
• that affects one or more current or former Commonwealth parliamentary workplace participants (the second party).[90]

As a Commonwealth parliamentary workplace participant is defined as including core participants and non-core participants, the review function of the PWSS is broad. In this regard, the review function proposed under clause 19 expands on that currently undertaken by the existing PWSS:

In addition to applying to parliamentarians and MOP(S) employees, the statutory PWSS would be able to undertake reviews where the relevant conduct concerns complaints by a Parliamentary Service employee and where the relevant conduct is engaged in by a non-core participant and affects a parliamentarian, MOP(S) employee or a Parliamentary Service employee.[91]

As subclause 19(2) provides that the PWSS may review a complaint:

the PWSS may decline to undertake a review if the relevant alleged conduct were being considered through other mechanisms, such as through a civil process (such as conciliation through the Australian Human Rights Commission) or a criminal investigation. Where the alleged relevant conduct is criminal, it is intended the PWSS would have appropriate support and referral procedures in place.[92]

Reports of reviews (clause 19)

If, following a review under subclause 19(2), the PWSS upholds a complaint, subclause 19(3) provides that the PWSS must prepare a report of the review.

A report prepared under this section is intended to provide a record of the PWSS’s review and any recommendations. Consistent with the existing PWSS’s policies and procedures, it is intended that the statutory PWSS would provide a copy of the report, as appropriate, to the complainant, respondent and, to the extent the respondent is not a parliamentarian, to their employer.[93]

The PWSS may make recommendations in relation to the alleged relevant conduct (paragraph 19(1)(b)).

The types of recommendations are not prescribed. It is intended that any recommendation would be commensurate to any finding of relevant misconduct. Recommendations may include, for example, recommendations that individuals undertake particular training, apologise, or that they be terminated (in the case of a staff member). Recommendations under this clause may be directed at the individual respondent or at other parties, such as to the respondent’s employer.[94]

Where a report includes a recommendation for a parliamentarian, such a recommendation could relate to a parliamentarian as a respondent to a complaint, or as an employer of a MOP(S) employee. If a report under subclause 19(3) includes a recommendation for a parliamentarian, the PWSS must engage with the parliamentarian in relation to implementing the recommendation ((subclause 19(4)).

This may include, for example, engaging with the parliamentarian to support them to undertake particular training or to support discussions regarding the suspension or termination of one of their employees. … The PWSS would have no power to compel or directly impose a sanction upon a parliamentarian under this clause.[95] [emphasis added]

If a recommendation made to a parliamentarian is not implemented, subclause 19(5) provides that the PWSS must give a copy of the report to the relevant Presiding Officer in accordance with any procedure that has been determined by the Senate or the House of Representatives, as the case requires.[96]

The note under subclause 19(6) provides that the PWSS must have regard to certain matters before disclosing information obtained in the course of performing its functions under this clause. Subclause 61(6) provides that before disclosing such information to another Commonwealth entity or an individual who holds a relevant office or appointment, the PWSS must have regard to whether the disclosure would be likely to result in harm to an individual to whom the information relates (other than mere damage to the individual’s reputation).[97]

Reports by the PWSS (clause 22)

Subclause 22(9) provides that reports produced under this section must not include personal information, but this is subject to the provisions of clause 23, which deals with the inclusion of details of certain non-compliance by parliamentarians in public reports (discussed below).

Subclause 22(8) notes that, consistent with section 46 of the PGPA Act, each financial year the CEO, as the accountable authority of the PWSS, must prepare an annual report that includes the PWSS’s annual performance statements and financial statements. In addition, clause 22 provides for additional mandatory annual reports (subclause 22(2)) and discretionary reports (subclause 22(1)).

From 2007–2008 until 2012–2013 the Department of Finance published an annual report on MOP(S) staffing.[98] Resuming and expanding on that earlier non-statutory arrangement, subclause 22(2) would require the PWSS to prepare a report at least once each financial year that contains information about:

• gender and ‘diversity’ characteristics (see discussion below) of parliamentarians and MOP(S) employees
• gender equality in relation to remuneration for parliamentarians and MOP(S) employees
• the employment of persons under the MOP(S) Act and the engagement of designated workers
• progress in the prevention of, and responses to, alleged relevant conduct that is engaged in:
  • in the course of a core participant performing duties as a core participant; or
  • at places covered by paragraph (a) or (b) of the definition of Commonwealth parliamentary workplace
• the culture and performance of workplaces covered by paragraph (a) or (b) of the definition of Commonwealth parliamentary workplace, and
• work health and safety matters connected with the duties of parliamentarians, MOP(S) employees and designated workers.

Key issue: what is meant by ‘diversity’?

As noted earlier, the Jenkins Report made recommendations intended to make improvements to Commonwealth parliamentary workplaces in relation to diversity.[99] This included a specific recommendation that included the production and tabling of an annual report detailing ‘diversity characteristics’ of parliamentarians and MOP(S) Act staff.[100]

The Bill does not define or give any indications of what is meant by ‘diversity characteristics’ that are to be reported by the PWSS under paragraph 22(2)(a). Likewise, the Explanatory Memorandum does not illuminate the intended meaning of ‘diversity characteristics’ to be captured, recorded, and reported by the PWSS. In this regard, the Jenkins Report, whilst not recommending a specific set of diversity characteristics that should be recorded and reported, did note the narrow and limited range of characteristics frequently captured by existing diversity and inclusion metrics used by the Commonwealth.[101]

Crucially, the Jenkins Report, when outlining common elements of best practice regarding measuring and reporting diversity characteristics noted that ‘new standards for measurement of diversity and inclusion are emerging’ and cited two key models: the Diversity Council's cultural diversity workforce reporting tool and the Australian Workplace Equality Index (AWEI) from Pride in Diversity.

The Diversity Council's cultural diversity workforce reporting tool is a broad tool designed to capture data that enables ‘a more detailed understanding’ of a workforce. To achieve this, the Jenkins Report noted that this tool proposed five key priority measures, namely:

1. Aboriginal and/or Torres Strait Islander background
2. cultural background
3. language spoken
4. country of birth and
5. religion and global experience.[102]

The AWEI differs in that it is ‘an established national benchmark’ that focuses on measuring ‘LGBTIQ+ workplace inclusion’.[103]

Rules and transitional arrangements relating to PWSS Reports

The PWSS rules may prescribe details about a matter mentioned in paragraphs 22(2)(a) to (f) that must or must not be included in a mandatory report (subclause 22(3)).

Transitional arrangements will allow sufficient time for the PWSS’ first reports to contain ‘more meaningful information’. Item 6 of Schedule 2 of the CATP Bill provides that:

• paragraphs 22(2)(a), (b), (c), (e) and (f) would apply in relation to financial years starting on or after 1 July 2024 and
• paragraph 22(2)(d) would apply in relation to financial years starting on or after 1 July 2025.[104]

The Explanatory Memorandum anticipates some matters that may be the focus of discretionary reports under subclause 22(1):

For example, the PWSS could undertake reviews or in-depth work into matters relating to its functions, such as systemic cultural reviews within Commonwealth parliamentary workplaces [and] review of resourcing of parliamentarian offices, as recommended in the MOP(S) Act Review. In accordance with the MOP(S) Act Review’s recommendation, this would include a review of the factors affecting workloads, particularly in electorate offices, including support systems and processes, and external factors such as the adequacy of government services and electorate composition, to inform an evidence-based consideration of office and staffing resources.[105]

Including details of certain non-compliance by parliamentarians in a public report (clause 23)

Subclause 23(1) provides that clause 23 is applicable if a parliamentarian:

• fails to comply with a request for information under subsection 64(1) within the period specified in the request; or
• fails to comply with a provision of the MOP(S) Act that requires the parliamentarian to consult with the PWSS before terminating the employment of a MOP(S) employee; or
• fails to comply with a requirement determined under paragraph 18(2)(b) (completion of mandatory training or education program) that applies to the parliamentarian.

In the above circumstances, the CEO may determine that the PWSS will include details about the non-compliance in a public report (subclause 23(2)). This may include the name of the parliamentarian and other details as determined by the CEO.

Under subclause 23(4) in considering whether details should be included in a public report, the CEO may have regard to any relevant matter and must have regard to the following:

• the nature of the failure and the circumstances in which it occurred;
• the reason (if any) given by the parliamentarian for the failure;
• any previous failure by the parliamentarian of a kind covered by subclause 23(1);
• the consequences of the failure;
• if the failure relates to a person other than the parliamentarian—whether the inclusion of the details would identify the other person;
• any submissions made under subclauses 23(5) or 23(7) in relation to the failure (discussed below).

The Explanatory Memorandum provides a hypothetical example:

For example, if a parliamentarian does not complete a mandatory training program provided online, but had been travelling to a remote area with limited internet access and had made attempts to complete the training program, the CEO may determine not to report the parliamentarian’s non-compliance. However, if a parliamentarian had failed to complete that training program despite being given multiple opportunities to do so, the CEO may determine to report that non-compliance.[106]

Before the CEO makes a determination, subclause 23(5) provides that the CEO must give the relevant parliamentarian a written notice stating that the CEO is proposing for the PWSS to include details of the failure in a public report. The parliamentarian must be invited to make submissions to the CEO in relation to the proposal.

Following the making of a determination by the CEO under subclause 23(2), subclauses 23(6) and (7) provide that the CEO must give the parliamentarian and any other person captured by subclause 23(7) a written notice informing them of the CEO’s decision on the proposal. This notification is intended to occur prior to the publication of the relevant report. This notification would ensure that the parliamentarian and any other affected person is informed of the outcome of the CEO’s consideration before details of the non-compliance are published, and would provide a record of the decision.[107]

If the parliamentarian is a member of a Parliamentary party, the CEO must inform the Leader of that party of the CEO’s determination (subclause 23(3)) prior to the public report being given to the Minister for tabling under subclause 22(5).

Notifying parliamentary Leaders of certain non-compliance (clause 24)

Under clause 24 the CEO must inform the Leader of a Parliamentary party if a parliamentarian who is a member of their party:

• fails to comply with a request for information under subsection 64(1) within the period specified in the request; or
• fails to comply with a provision of the MOP(S) Act that requires the parliamentarian to consult with the PWSS before terminating the employment of a MOP(S) employee; or
• fails to comply with a requirement of a mandatory policy or procedure that applies to the parliamentarian; or
• fails to comply with a requirement determined under paragraph 18(2)(b) (completion of mandatory training or education program) that applies to the parliamentarian.

Requesting information from parliamentarians (clause 64)

Subclause 64(1) provides that the PWSS may request in writing that a parliamentarian give the PWSS, within a specified period, specified information. Subclause 64(6) clarifies that this does not limit the power of the PWSS to request information from ‘any other person’ which, according to the Explanatory Memorandum, may include a former parliamentarian.[108]

Information requested may include personal information, which has the same meaning as in the Privacy Act 1988.[109] With regard to the scope of matters in a request, paragraph 64(1)(a) provides that the PWSS may request the following information in relation to a person who is or was a MOP(S) employee employed by, or a designated worker engaged by, the parliamentarian:

• the person’s name
• whether the person is or was a MOP(S) employee or a designated worker
• matters relating to when, and the circumstances in which, the person was employed as a MOP(S) employee or engaged as a designated worker, or
• matters relating to when, and the circumstances in which, the person ceased to be employed as a MOP(S) employee or engaged as a designated worker.

As to the possible purposes of requests, paragraph 64(1)(b) refers to work health and safety matters arising in connection with the duties of parliamentarians or of MOP(S) employees, and paragraph 64(1)(c) refers to information that is reasonably necessary for the purpose of providing a service under clause 16 (that is, the complaint resolution function) to a person who is, or was, a MOP(S) employee employed by, or a designated worker engaged by, the parliamentarian. The Explanatory Memorandum notes that information sought may include, for example, the date and nature of an incident, and relevant parties and witnesses.[110]

However, subclause 64(2) provides that paragraph 64(1)(c) (that is, a request relating to the complaint resolution function) does not apply if the alleged relevant conduct was engaged in by the parliamentarian. The Explanatory Memorandum does not elaborate on the reason for this.

The period for compliance specified in the PWSS’ request for information must be ‘reasonable in the circumstances’ (subclause 64(3)). The Explanatory Memorandum notes that ‘what is reasonable in the circumstances may depend upon factors such as the nature and volume of information requested’[111] which will afford respondents some latitude and flexibility. However, subclause 64(5) provides that, unless doing so would constitute an offence against a law of the Commonwealth, a parliamentarian must comply with a request under this clause within the specified period.

Subclause 64(4) provides that a PWSS request must include details about the potential consequences for a failure to comply with a request, which are that:

• under clause 23 the CEO may determine that the PWSS will include in a public report details of certain non-compliance by parliamentarians (for example failure to comply under subclause 64(1)) and
• under clause 24 the CEO must inform the Leader of a Parliamentary party of certain non-compliance by parliamentarians who are members of their party (for example failure to comply under subclause 64(1)).

Requesting information from MOP(S) employees (clause 65)

Subclause 65(1) provides that the PWSS may request in writing that a MOP(S) employee give the PWSS, within a specified period, specified information that relates to any of the functions or powers of the PWSS or any of the functions or powers of the CEO. A request for information may include personal information.

The period for compliance specified in the PWSS’ request for information must be ‘reasonable in the circumstances’ (subclause 65(2)). The Explanatory Memorandum notes that ‘what is reasonable in the circumstances may depend upon factors such as the nature and volume of information requested’.[112] Subclause 65(3) provides that, unless doing so would constitute an offence against a law of the Commonwealth, a MOP(S) employee may comply with a request under this clause within the specified period and may comply with any other request by the PWSS for information (including personal information). The Explanatory Memorandum provides:

The PWSS will not be able to require Commonwealth parliamentary workplace participants, other than parliamentarians (clause 64 of the Bill refers), to provide information for the purposes of the PWSS’s complaint resolution service. For example, the PWSS may request a MOPS employee who has agreed to participate in a complaint resolution service to provide information to support the provision of that service, however the PWSS would not be able to require the MOPS employee to provide that information.[113]

A note to subclause 65(3) states that this subclause will operate as an authorisation for the purposes of the Privacy Act, meaning that a MOP(S) employee will not breach that Act by providing personal information in response to a request from the PWSS.

‘May comply’ and time periods that are ‘reasonable in the circumstances’ will afford respondents considerable latitude and flexibility, which may affect the timeliness or completeness of responses to PWSS requests. The Explanatory Memorandum notes that, in contrast to certain non-compliance by parliamentarians (subclause 64(5)), the Bill does not enable the CEO to report on non-compliance by MOP(S) employees.[114]

Subclause 65(4) clarifies that this does not limit the power of the PWSS to request information from ‘any other person’ which, according to the Explanatory Memorandum, may include a former MOP(S) employee.[115] There appears to be no limitation on when the PWSS may request information, for example, how long after MOP(S) employment has concluded.

Rules (clause 69)

Clause 69 provides that the Minister may make rules prescribing matters required or permitted by the Bill to be prescribed by the PWSS rules, or necessary or convenient to be prescribed for carrying out or giving effect to the Bill. The Explanatory Memorandum notes the following matters and provisions that may be dealt with in the rules:

1. codes of conduct (clauses 5, 14, 18)
2. details of a matter that must or must not be included in a public report under clause 22 (subclause 22(3))
3. remuneration and allowances to be paid to the CEO (clause 31) or members of the PWSS Advisory Board (clause 49)
4. matters relating to the operation of the PWSS Advisory Board (clause 55)
5. provision for or in relation to the PWSS Consultative Committee (clause 59), or
6. a Commonwealth entity, office or appointment under the law of the Commonwealth for the purposes of giving information to the PWSS for certain reports (clause 62).[116]

Review (clause 68)

The Minister must cause a review of the Bill and the PWSS rules to be commenced within one year after the commencement of the first session of each Parliament that commences after the Bill commences (subclause 68(1)), and must table a copy of the report in each House of the Parliament (subclause 68(3)).

Information sharing between the PWSS and other Commonwealth entities etc. (clause 61)

Clause 61 allows the PWSS and other Commonwealth entities or relevant individuals to share information that is required to support their statutory obligations.

Giving information to PWSS for certain reports (clause 62)

Clause 62 enables the PWSS to request certain information for the purposes of preparing its mandatory annual report under subclause 22(2).

CEO may make arrangements for sharing information (clause 63)

Clause 63 enables the CEO to make arrangements for sharing information with certain Commonwealth entities and individuals holding Commonwealth offices or appointments.

Parliamentary Workplace Support Service (Consequential Amendments and Transitional Provisions) Bill 2023

Purpose of the CATP Bill

The Parliamentary Workplace Support Service (Consequential Amendments and Transitional Provisions) Bill 2023 (CATP Bill) would provide for consequential amendments and transitional arrangements to support the PWSS Bill.

Structure of the CATP Bill

The CATP Bill comprises two schedules:

• Schedule 1 comprises consequential amendments to the Archives Act 1983, the Freedom of Information Act 1982 (FOI Act) and the Parliamentary Service Determination 2013
• Schedule 2 comprises application and transitional provisions to ensure that the new statutory PWSS can continue to deal with matters currently dealt with by the existing PWSS.

Commencement

Sections 1 to 3 commence on Royal Assent.

Schedules 1 and 2 at the same time as the PWSS Bill commences. However, the provisions do not commence at all if that Bill does not commence.

Key provisions and issues: amendments to the Archives Act and Freedom of Information Act

Amendments to the Archives Act 1983

The Explanatory Memorandum to the CATP Bill notes that, under the Archives Act 1983 (the legislation that governs access to Commonwealth archival records), the majority of archival records enter the open access period 21 years after the year in which they were created. However, the Explanatory Memorandum notes some exceptions. Census information and some records of Royal Commissions, and records of the Jenkins inquiry that resulted in the Jenkins Report do not enter the open access period until 99 years after the year in which they were created (the 99-year rule).[117] This exemption (in section 22C of the Archives Act) ensures the confidentiality of submissions and evidence to the Jenkins Review.

It is not clear that non-administrative documents of the existing PWSS are currently subject to the 99-year rule.

Items 1 to 7 of Schedule 1 would amend sections 3 and 22C of the Archives Act 1983 with the effect that documents relating to the administration of the statutory PWSS, the PWSS Advisory Board, and the PWSS Consultative Committee would enter the open access period 21 years after the year in which they were created, and documents that do not relate to the administration of those bodies would be subject to the 99-year rule. This is intended to ensure that people who work in Commonwealth parliamentary workplaces ‘are not discouraged from accessing PWSS services, or from providing full and frank information to the PWSS’ because of concerns that information may become available during their lifetime.[118]

With regard to non-administrative documents of the existing PWSS, item 2 would amend section 3 of the Archives Act to insert a definition of a ‘PWSS document’ and note that a PWSS document includes a non-administrative document transferred to the statutory PWSS under item 4 of Schedule 2 of the CATP Bill (discussed below). Items 5 and 6 amend section 22C to establish that a PWSS document would be subject to the 99-year rule. The transfer arrangements would appear to ensure that non-administrative documents of the existing PWSS will become subject to the 99-year rule.

Item 7 would amend subsection 22C(3) to provide that subsection 3(7) and section 56 of the Archives Act do not apply to a PWSS document. The effect of item 7 is to exempt PWSS documents from arrangements that may be approved by the Prime Minister to provide accelerated or special access that would foreshorten the 99-year rule.

Amendments to the Freedom of Information Act 1982

The Explanatory Memorandum notes that the intention in relation to amendments to the FOI Act is similar to that outlined in relation to the Archives Act:

it will be important that people who work in Commonwealth parliamentary workplaces are not discouraged from accessing PWSS services, or from providing full and frank information to the PWSS, because they are concerned that information related to their experiences could be released under the FOI Act.[119]

The FOI Act contains provisions under which FOI decision-makers may withhold from release all or part of some documents. However, the Explanatory Memorandum notes that:

the conditional nature of the exemptions likely to be able to be relied upon by the PWSS, its Advisory Board, its Consultative Committee, and those who hold their documents, would not provide the necessary level of reassurance that information provided to the PWSS will not be released under the FOI Act in any circumstances.[120]

In this context, item 8 would insert proposed subsection 7(2AAA) to the FOI Act, with the effect of excluding the PWSS, the PWSS Advisory Board, and the PWSS Consultative Committee from the definition of an ‘prescribed authority’ in section 4 of the FOI Act. As a result, there would not be a legally enforceable right to obtain access to those entities’ documents under subsection 11(1) of the FOI Act.[121] This is a more expansive exemption than that which applies to the Independent Parliamentary Expenses Authority (IPEA) through its inclusion in a list of agencies exempt in respect of particular documents (Schedule 2, Part II, Division 1 of the FOI Act).

To address the effect of item 8 on the operation of FOI access at other agencies, item 9 would insert two proposed subsections into the FOI Act. Proposed subsection 7(2DC) would exempt a Minister and an agency from the operation of the FOI Act in relation to a document brought into existence by the PWSS, the PWSS Advisory Board or the PWSS Consultative Committee, and a document given to or received by one of those bodies in connection with the performance of the relevant body’s functions. Conversely, under proposed subsection 7(2DD) a Minister and an agency ‘would not be exempt from the operation of the FOI Act in relation to a document created solely in relation to its own functions, and subsequently provided to the PWSS in connection with the PWSS’s functions’.[122]

With regard to the Privacy Act 1988, the Explanatory Memorandum notes that the PWSS, the PWSS Advisory Board and the PWSS Consultative Committee would each be an ‘APP entity’ for the purposes of the Australian Privacy Principles (APPs). Consequently, an individual ‘will be able to seek access under Australian Privacy Principle 12 to personal information held about himself or herself from the PWSS, the PWSS Advisory Board and the PWSS Consultative Committee’.[123]

Items 10 and 11 Repeal of clauses in the Parliamentary Service Determination 2013

Item 10 would repeal the Parliamentary Service Determination’s clause 112B, which established the existing non-statutory PWSS. Item 11 would repeal five definitions in the dictionary in Schedule 1 of the Determination. Specifically, terms such as ‘Commonwealth parliamentary workplace’ only appear in clause 112B, and are no longer required.[124]

Schedule 2: Application and transitional provisions

Schedule 2 comprises application and transitional provisions to ensure that the new statutory PWSS can continue to deal with matters currently dealt with by the existing PWSS. In summary, the effects of the items in Schedule 2 are:

• complaint processes commenced with the existing PWSS can be continued (items 2 and 3)
• records can be transferred (item 4) and their current confidentiality status maintained (item 5)
• item 7 provides that information use and disclosure arrangements in Part 7 of the PWSS Bill would be applicable on or after commencement, regardless of whether the information was obtained or disclosed before, on or after the commencement
• item 6 sets out a staged approach to the implementation of reporting requirements in subclause 22(2) of the PWSS Bill.

Item 2 provides that the statutory PWSS may perform functions under clauses 15, 16 or 19 of the PWSS Bill regardless of whether alleged relevant conduct occurs before, on or after commencement. Item 3 enables the transfer to the statutory PWSS of complaints made to the existing PWSS.

Item 4 provides for the transfer of relevant records to the statutory PWSS from the APSC and the Department of Finance (that is, records and documents that were given to, received by, or brought into existence by those entities for the dominant purpose of the performance of a function that the PWSS would perform). Item 5 provides for the maintenance of confidentiality in relation to confidential information given to the existing PWSS.

Item 6 sets out a staged approach to the implementation of subclause 22(2) of the PWSS Bill, which provides that:

the PWSS must, at least once each financial year, prepare a report relating to a range of matters, including diversity characteristics of parliamentarians and MOP(S) employees, gender representation of parliamentarians across specific roles, and progress in the prevention of, and responses to, alleged relevant conduct.[125]

Item 6 of Schedule 2 of the CATP Bill provides that:

• paragraphs 22(2)(a), (b), (c), (e) and (f) would apply in relation to financial years starting on or after 1 July 2024 and
• paragraph 22(2)(d) (which requires reporting on progress in the prevention of, and responses to, certain alleged relevant conduct) would apply in relation to financial years starting on or after 1 July 2025.

The transitional arrangements are to allow sufficient time for the PWSS’ first reports to contain ‘more meaningful information’.[126]

With regard to the use and disclosure of information by the statutory PWSS, item 7 provides that:

Part 7 of the PWSS Bill, which would establish information sharing arrangements in order to support the PWSS and the CEO to carry out their functions, would apply in relation to the use and disclosure of information by a person on or after the commencement of this item, whether the information was obtained by, or disclosed to, the person before, on or after that commencement.[127]

Members of Parliament (Staff) Amendment Bill 2023

Purpose of the MOP(S) Bill

The Members of Parliament (Staff) Amendment Bill 2023 (MOP(S) Bill) amends the Members of Parliament (Staff) Act 1984 (MOP(S) Act) to establish a new framework for parliamentarians and office-holders to employ people on behalf of the Commonwealth. The Bill implements recommendations of the Review of the Members of Parliament Staff Act 1984 (MOP(S) Report) to modernise the Act by simplifying the provisions and providing greater clarity of the rights and obligations of employees and employing individuals.

Structure of the MOP(S) Bill

The MOP(S) Bill comprises a preliminary section (which provides commencement dates) and four schedules:

• Schedule 1 provides the main amendments to the MOP(S) Act, which:
  • insert a simplified outline and objects provision, and insert new definitions
  • set out employment principles, and describe roles and responsibilities in relation to the employment provisions
  • insert new employment arrangements
• Schedule 2 sets out the amendments to the MOP(S) Act relating to the PWSS Bill
• Schedule 3 sets out application and transitional provisions
• Schedule 4 sets out consequential amendments:
  • Part 1 sets out amendments to 17 acts that commence at the same time as Schedule 1.
  • Part 2 sets out amendments to the National Reconstruction Fund Corporation Act 2023, which as at the time of writing this Digest had not yet commenced.

Commencement

Sections 1-3 commence on Royal Assent. Schedules 1 and 3 and Part 1 of Schedule 4 will commence on the 28th day after Royal Assent. Schedule 2 will commence immediately after Schedule 1 or immediately after the commencement of the PWSS Bill—whichever is later. Part 2 of Schedule 4 will commence on the later of the 28th day after Royal Assent or immediately after the commencement of the National Reconstruction Fund Corporation Act 2023.

Background: the MOP(S) Act 1984

The MOP(S) Act is the legislative basis for the employment by parliamentarians of staff to work in their electorate and parliamentary offices. Staff are engaged on behalf of the Commonwealth, but are selected by, and are responsible to, their employing Parliamentarian. The MOP(S) Act is administered by the Department of Finance. The Ministerial and Parliamentary Services (MaPS) in Finance oversees the provision of non-travel related expenses and services to Parliamentarians and their respective employees.

The employment terms and conditions of MOP(S) Act staff are established by ministerial determination in accordance with the Prime Minister’s authority and under the enterprise agreement-making provisions of the Fair Work Act 2009 (FW Act). The Commonwealth Members of Parliament Staff Enterprise Agreement 2020–23 (Enterprise Agreement) sets the employment terms and conditions for all electorate staff and personal staff, including senior staff. A written employment agreement between the parties is required and is submitted to the MaPS prior to commencement of employment.[128]

The substantive provisions of the MOP(S) Act relate respectively to employment of Ministerial consultants (Part II), employment of staff by senators and members holding an office within the Parliament (Part III), and employment of staff by senators and members generally (Part IV).

The working relationship between members of Parliament and their staff is different to other public sector employees.[129]

The employment arrangements under the MOP(S) Act are flexible and give the Prime Minister considerable control over conditions of employment.[130]

This control operates, however, within the constraints of industrial laws, federal anti-discrimination laws and enterprise agreements. The flexibility in the MOP(S) Act reflects the partisan nature of political office.

Following recommendations of the Jenkins Report, the MOP(S) Act was amended in 2022 to provide that reasons for termination of employment must be given in writing and to clarify that the existing legislative requirements, such as the FW Act, apply to the termination of employment of MOP(S) employees.[131]

The inherent tension between providing greater clarity in the employment arrangements coupled with maintaining a level of discretion for the parliamentarian about who they employ was raised during the consultation process of the MOP(S) Act Review.[132]

The MOP(S) Report found that the key recurring themes were accessibility and effectiveness of HR support; recruitment practices; staffing allocations; workload/hours; termination (including resignation); culture and conflict in the workplace; handling of complaints; training; accountability; and the employment framework.[133] The MOP(S) Act Review recommended some requirements be placed on parliamentarians as employers as a means of countering the power imbalance in parliamentary offices. These include:

• recruiting staff against position descriptions and justifying their appointments
• consulting the independent HR body before terminating staff employment as a way of slowing down the process
• establishing employment principles in the Act.[134]

The MOP(S) Act has been criticised as ‘not mandating professional employment practices, nor including a code of conduct or specific prohibition on sexual harassment and bullying that would bind staff and parliamentarians as employers. Parliament itself has no specific powers in the MOP(S) Act, and there are no formal oversight mechanisms’.[135] The Bill, in implementing various recommendations of the Jenkins Report and MOP(S) Report (discussed below), goes some way in addressing a number of these issues.

Background: Jenkins Report and MOP(S) Report

The MOP(S) Bill, like provisions of the PWSS Bill, implements recommendations of the Jenkins Report and the 2022 MOP(S) Report.[136]

The MOP(S) Report analysed comparable jurisdictions, both nationally and overseas, as a means of exploring the best practice options for approaches to the employment of staff by members of Parliament.

The Bill implements 11 of the 15 recommendations of the MOP(S) Report (see the discussion above about the MOP(S) Act). Appendix A provides a list of recommendations and their status.

A number of submissions to the MOP(S) Act Review commented on the MOP(S) Act as being no longer fit for purpose in terms of supporting a professional workplace or providing a strong regulatory framework for the employment of political staff. They pointed to problems in the Act about confusion of authority and lack of powers.[137]

The Bill provides the most radical overhaul of the legislation since its commencement. Special Minister of State, Don Farrell noted that the Bill aimed to simplify the legislation covering the employment of staff of Members of Parliament asserting ‘Our amendments will modernise the Act, improve transparency and support cultural change in our parliamentary workplaces.’[138]

A notable feature of the Bill is the role that the PWSS will play in the employment arrangements by providing advice and guidance on a range of HR matters. The requirement for parliamentarians and office-holders to inform and consult with the PWSS is written into the MOP(S) Act by amendments to sections 10, 16 and 18.[139]

The MOP(S) Bill 2023

The Bill re organises the Act by repealing current Parts II (Ministerial consultants), III (Staff of office-holders) and IV (Staff of Senators and Members) and replacing them with proposed Parts II (Principles, roles and responsibilities) and III (Employment arrangements). The Bill streamlines the Act removing the duplication of provisions currently operating under Parts II and Part III, refocusing the legislation on the employment arrangements rather than the employer. The aim to is to provide greater clarity to the different roles and responsibilities and provide enhanced transparency.[140]

The Bill omits redundant references to superannuation and ministerial consultants in the MOP(S) Act. References to Senators and Members of the House of Representatives in the Act have been replaced by parliamentarian (defined by item 5 of Schedule 1 as a senator or member of the House of Representatives). The Bill retains many of the current provisions albeit in modified forms.

Table 1: Mapping current provisions in the MOP(S) Act to the MOP(S) Bill

MOP(S) Act	MOP(S) Bill	Matter
13(1), 20(1)	11(1), 11(2), 11(3)	Employment of electorate employees and personal employees
13(2), 20(2)	12	Power to employ only in accordance with arrangements approved by the PM
14, 21	13(1)	Terms and conditions of employment
16(1)–(2B), 23(1), 23(1A)	14	Automatic termination
16(5), 23(4)	14(4), 15	PM may vary terms and conditions of automatic termination; defer automatic determinations
16(3)–(3A), 23(2)–(2A)	16	Termination by notice
16(4), 23(3)	17	Resignation

Source: compiled by the Parliamentary Library from information in the Explanatory Memorandum.

The Bill continues the power of the Prime Minister to allocate staff numbers and determine the terms and conditions for staff employment. This may raise concern from the independents and minor party members who have been critical of the Prime Minister’s discretion on personal employees and who have called for change.[141] However the MOP(S) Report recommends that the PWSS undertake a review of the resourcing of parliamentarian offices, which should ‘recommend principles to be considered by the Prime Minister in determining staffing allocations’ (recommendation 3).[142]

The Bill does not introduce a Code of Conduct for Parliamentarians’ Staff (recommendation 21 of the Jenkins Report). This recommendation may be implemented via the establishment of the IPSC which has yet to be legislated. Currently there is only a code of conduct for ministerial staff.

The Bill provides a modest increase in transparency via the publication of data and annual reporting by the PWSS. Some determinations by the Prime Minister are notifiable instruments (proposed subsection 13(2) of the MOP(S) Act, inserted by item 13 of Schedule 1) and legislative instruments (proposed subsection 15(1) of the MOP(S) Act, inserted by item 13 of Schedule 1), thereby becoming public.

Key provisions and issues: employment arrangements

Schedule 1 item 1 inserts proposed section 2A introducing the objects of the MOP(S) Act which were not previously articulated. The proposed objects are:

(a)   to establish a framework for employing people to assist parliamentarians and office-holders that supports a safe, respectful and accountable workplace;

(b)   to set out certain rights and obligations of employees;

(c)   to set out certain other powers, functions and responsibilities in relation to employment under this Act.

Proposed section 3AA, at item 11, defines an employing individual as the parliamentarian or office-holder who, on behalf of the Commonwealth, employs a person under proposed section 11 (discussed below).

Item 13 of Schedule 1 to the Bill repeals current Parts II, III and IV of the MOP(S) Act (discussed above) and replaces them with proposed Parts II and III.

Proposed Part II deals with principles, roles and responsibilities and consists of proposed sections 5 to 9. Proposed Part III deals with employment arrangements and consists of proposed sections 10 to 18.

Proposed section 6 introduces employment principles that set the framework for a safe and respectful workplace. The principles are drawn from recommendations of the Jenkins Report, the MOP(S) Review and existing principles set out in the Public Service Act 1999 and the Parliamentary Services Act 1999.[143] It provides that the workplace for people employed under the MOP(S) Act:

(a) is safe and free from all forms of bullying and harassment; and

(b) is free from discrimination and fosters diversity; and

(c) is one in which decisions relating to employment are based on capability; and

(d) is one in which parliamentarians, office-holders and employees foster a culture of professionalism and integrity; and

(e) requires effective performance from each employee against expectations defined by the parliamentarian or office-holder; and

(f)  supports the training and professional development of all employees (including those with managerial responsibilities); and

(g) facilitates consultation with employees about matters that affect the workplace.

The employment principles are part of the endeavour to professionalise parliamentarians’ offices. Employment principles are intended to articulate the intentions of the recommendations of the Jenkins Report and act as a legislative basis and guidepost for policies and guidance produced under the MOP(S) Act framework for a workplace that is safe and free from bullying and harassment, fosters diversity, supports training and so on.[144]

Proposed section 7 clarifies that parliamentarians and office-holders are responsible for the day-to-day management of their employees including making decisions on recruitment and termination or suspension. This partially implements recommendation 2 of the MOP(S) Report.[145]

The Jenkins Report noted that the division of employer responsibility between Finance and parliamentarians is not always clear and can result in confusion about responsibility for services and supports and also act as a barrier to safe and respectful workplaces.[146]

In regard to recruitment and reflecting proposed employment principle (c) as set out above, the MOP(S) Bill specifies that, before employing a person, a parliamentarian or office-holder must assess whether the person is capable of performing the role (proposed subsection 8(3)). The MOP(S) Report discussed the value and disadvantages of introducing ‘merit’ recruitment, as provided in the Public Service Act 1999.[147] The MOP(S) Report concluded that it is reasonable for decisions on recruitment for MOP(S) employees to rest not only upon the technical ability of an individual but also:

• their political capital and acumen and
• their track record of trustworthiness to a political party or independent member.[148]

However, it acknowledges the role of the PWSS in providing advice on the recruitment process. The Explanatory Memorandum notes that there is no legislated consequences for failure to comply with this requirement.[149]

Schedule 2 item 2 formalises the role of the PWSS by adding a note to section 7 that embeds the role of the PWSS in providing functions relating to employment under the MOP(S) Act.

Proposed sections 8 and 9 spell out the responsibilities of employing individuals and employees and explicitly state that they have obligations under specified Australian laws such as the Fair Work Act, the Work Health and Safety Act 2011 and federal anti-discrimination legislation.[150] As the Explanatory Memorandum notes the provision aims to highlight the obligations on parliamentarians and office-holders to act consistently with these laws.[151]

Key issue: discrimination on the basis of political opinion

Under the Fair Work Act an employer must not take ‘adverse action’ against an employee (for example, terminating their employment) or prospective employee (for example, refusing to employ them) because of various protected attributes, relevantly including political opinion.[152] However, this prohibition does not apply where adverse action is taken because of ‘the inherent requirements of the particular position concerned’.[153] The MOP(S) Report noted:

• the historical expectation that, in relation to ministerial staff, there was a perceived need ‘for ministers to have assistance in key projects from people who shared the government’s values and objectives as opposed to apolitical public servants’[154]
• ‘Flexibility was expressly built into the MOP(S) Act to allow parliamentarians to hire staff to meet the “volatile and partisan nature of political office”’[155]
• current recruitment practices for MOP(S) employees reflects ‘the desire for assurance about a candidate’s trustworthiness and their awareness of priorities based on their association with a political party’[156] and
• ‘Loyalty is the biggest thing you look for’ [when recruiting MOP(S) employees].[157]

Whilst not explored in this digest, there have long been concerns about the difficulty posed by certain (generally non-commercial) employers seeking to rely upon the ‘inherent requirements’ defence in other ‘values based’ employment contexts.[158]

Given the political nature of employment under the MOP(S) Act and the value placed on political loyalty and acumen, and the desire to have MOP(S) employees that share the values and objectives of their employing parliamentarian, the application of the prohibition against taking adverse action against MOP(S) employees and prospective MOP(S) employees on the basis of political opinion may prove problematic.

This could potentially be addressed by clarifying whether or not sharing, or acting in a manner consistent with, a political opinion of an employing parliamentarian is or is not an inherent requirement for certain types of MOP(S) employees for the purposes of the FW Act.

Key issue: categories of employment and termination of employment

Proposed section 11 provides parliamentarians and office-holders the authority to employ people to assist them to carry out their duties. Under the MOP(S) Act there are currently 2 categories of employees—electorate and personal employees, but the Bill proposes to increase this to 3 categories: Electorate employees (proposed subsection 11(1)), Personal employees (Ministerial) (proposed subsection 11(2)) and personal employees (non-Ministerial) (proposed subsection 11(3)). This implements recommendation 1 of the MOP(S) Report.[159]

Proposed section 14 provides a useful table setting out events that trigger an automatic termination. Automatic terminations are common in two situations: the period after an election, and when ministerial arrangements are revised with the result that the role of the employing parliamentarian is affected.[160] The Bill clarifies that electorate staff are not terminated when the employing individual loses their entitlement to personal staff (that is, loses an office-holder position). The Bill allows for the Prime Minister to make determinations by legislative instrument to clarify specific circumstances in which a triggering event for automatic termination of staff of office holders is taken to occur, or taken not to occur (proposed subsection 14(4)).

Proposed section 15, at item 13 of Schedule 1, allows the Prime Minister to direct that the employment of a specific person, or persons included in a specified class, whose employment would otherwise be terminated by proposed section 14, is taken not to have been terminated and to continue, or to have continued, until a specified date. If the determination relates to a class of people, the Prime Minister must make the determination by legislative instrument, which will be subject to disallowance by the Parliament. As set out in the table above, this replicates existing subsections 16(5) and 23(4) of the MOP(S) Act, but specifically provides for determinations to cover classes of people.[161]

Determinations the Prime Minister makes under proposed subsections 14(4) and 15(1) are legislative instruments as they relate to a class of person. These directions will be public and disallowable by the Parliament (recommendation 6A of the MOP(S) Report).[162]

Schedule 2 item 6 proposes to amend new section 15 after the commencement of the PWSS Bill to introduce arrangements for the CEO of the PWSS to act as an employer in certain circumstances, such as when an employer dies or ceases to be a parliamentarian (proposed subsection 15(5)). However, this does not include the power to terminate the person’s employment (proposed subsection 15(6)). This provision is consistent with the MOP(S) Report recommendation that provision be made for the continuity of employment and employer powers when a seat becomes vacant.[163]

Prime Minister’s powers and transparency

Proposed section 7, at item 13 of Schedule 1, partially implements recommendation 2 of the MOP(S) Report by providing ‘greater clarity over employment roles and responsibilities by setting out the specific duties of parliamentarians, the OPSC and the Prime Minister’.[164] As with the current MOP(S) Act, the MOP(S) Bill will provide the Prime Minister with the power to determine the kind of employees a parliamentarian may employ, approve arrangements and determine conditions that affect the engagement of staff, and determine the terms and conditions of employment.[165]

Under proposed section 4 (at item 12 of Schedule 1) the Prime Minister may determine that, having regard to the parliamentary duties of a parliamentarian, the parliamentarian may employ personal employees under proposed subsection 11(3). As set out in the note to proposed subsection 4(1), such a determination has the effect of making the parliamentarian an office-holder. This provision allows parliamentarians other than ministers, such as presiding officers, leaders of minor parties and independents to employ personal staff. A determination under subsection 4(1) would not meet the definition of a legislative instrument under the Legislation Act 2003, a position that is confirmed by proposed subsection 4(2). Accordingly, such a determination would not be published on the Federal Register of Legislation or subject to the parliamentary disallowance processes.

Under proposed subsection 12(2) the Prime Minister can approve employment arrangements and determine conditions that affect how parliamentarians and office-holders can exercise their powers to employ (including determining how many employees parliamentarians and office-holders may have). Proposed subsection 12(3) provides that such a determination is not a legislative instrument, again meaning that it would not be published on the Federal Register of Legislation or subject to the parliamentary disallowance processes.

Proposed section 13(2) provides that the Prime Minister may vary terms and conditions of employment of all or a class of employee. The determinations are to be made as notifiable instruments, a type of official notice which is registered and available on the publicly accessible Federal Register of Legislation. Such notices are ‘for notices that are likely to be of long-term public interest, but are not of legislative character or required to undergo Parliamentary scrutiny through disallowance or sunsetting’.[166] As set out in the Explanatory Memorandum:

Determinations setting out terms and conditions of MOPS employment are not required to be made public currently. In practice, the Department of Finance publishes determinations which do not identify individuals, and which have a broader application, on its website. Subsection 13(2) includes a minor change from the current Act to formalise this practice by specifying that determinations of terms of conditions that apply to groups of MOPS Act employees are notifiable instruments. Notifiable instruments are required to be published on the Federal Register of Legislation but are not disallowable by the parliament.[167]

Under proposed subsection 13(3) the Prime Minister may also vary the employment terms and conditions of a specified person, but such a determination is not required to be published, given that it relates to an individual.

The Bill provides in Schedule 3, item 7 and item 8 that determinations by the Prime Minister made under current subsections 14(3) and 21(3) of the MOP(S) Act (which relate to terms and conditions of employment) and subsections 16(5) and 23(4) (which defer the effect of an automatic termination of employment) must be published on the Finance website if they do not apply to a specific person. The Department of Finance currently publishes Determinations and directions on its website but there has been no requirement to do so.

The reporting required under the MOP(S) Act is currently very limited and only pertains to the use of Ministerial consultants under Part II.[168] The only other reporting relating to the MOP(S) Act is the tabling of data on personal employee positions in Senate Estimates as part of the consideration of Finance Outcome 3, and indirectly through Finance’s annual report.[169]

From 2007–2008 until 2012–2013 the Department of Finance published an annual report on data relating to MOP(S) staffing.[170] The MOP(S) Report found that a similar report would be useful and recommended that the PWSS take on this reporting function in addition to other reporting functions recommended by the Jenkins Report.[171]

Proposed section 30 of the MOP(S) Act, at item 14 of Schedule 1 to the Bill, allows for delegation of the Prime Minister’s functions or powers under the Act. In practice the Prime Minister’s powers are delegated to and exercised by the Special Minister of State on behalf of the Prime Minister, with the primary exception of the allocation of employee positions which remains the responsibility of the Prime Minister.[172] The provision allows for delegation to SES in the Department of the Prime Minister and Cabinet and within the Department of Finance. The Explanatory Memorandum states that the former is to manage staff employed to work at the Prime Minister’s official residences and the latter to allow for continuity of existing arrangements, such as approving MOP(S) staff to perform duties in alternative places of work or from home.[173]

Under proposed section 32 the Act must be reviewed within 5 years of the commencement of the amendments in Schedule 1 to the Bill, with the report to be tabled in Parliament.

Suspension of MOP(S) employees

Proposed section 18 of the MOP(S) Act, at item 13 of Schedule 1 to the Bill, introduces the ability for the employing individual to suspend a person employed under the Act for a period (not greater than 30 days at a time) (proposed subsection 18(2)). The suspension must be with pay unless there are exceptional circumstances (proposed subsection 18(4)). This will offer an alternative to termination of employment.

The MOP(S) Report recommended introducing suspensions to improve fairness and certainty of the termination processes and facilitate a proper process by providing time for the employing individual to consider whether a termination is warranted.[174]

To coincide with the commencement of the PWSS Bill, item 12 of Schedule 2 inserts proposed subsections 18(4A) and 18(4B), which provide that the employing individual is required to consult with the PWSS about whether exceptional circumstances exist before suspending an employee without pay and notify the PWSS before, or as soon as practicable after suspending a person from duties.

Schedule 2 also inserts proposed section 19 of the MOP(S) Act, which allows the CEO of the PWSS to suspend a MOP(S) employee where:

(a)   the CEO has informed the employing individual [that is, the parliamentarian or office-holder who employed the person on behalf of the Commonwealth] of the CEO’s concern that it might be appropriate to suspend the person, in order to mitigate a risk to:

           (i)    work health and safety; or

           (ii)   property; or

           (iii)  security; or

           (iv)  an investigation; and

(b)   the CEO has sought the employing individual’s views about the CEO’s concern; and

(c)   taking into account any views the employing individual expressed and any other action the employing individual has taken in relation to the concern, the CEO considers that it is appropriate to suspend the person from duties in order to mitigate a risk mentioned in paragraph (a); and

(d)   the employing individual agrees to the CEO suspending the person from duties.

The suspension must be for a period of no more than 30 days (although the CEO can suspend the person for a further period or periods) (proposed subsections 19(2) and (3)). The suspension must be with pay unless the CEO is satisfied that exceptional circumstances exist (proposed subsection 19(4)),

Proposed section 19 reflects recommendation 13C of the MOP(S) Report ‘with the modification that suspension decisions by the CEO will also require the agreement of the employing individual’.[175] The rationale behind this recommendation was set out as following in the MOP(S) report:

There are potential situations where the employing parliamentarian may choose not to suspend an employee, but the employee may pose an immediate risk to others, property, security or evidence in any ongoing investigations. In the event that the parliamentarian is not willing to act (either to suspend the employee or take another action to remedy the situation) and it becomes clear that there are immediate risks regarding the employee’s conduct, the OPSC could have the power to suspend the employee from the workplace. Such risks could be identified by the OPSC or raised by the IPSC.[176]

Schedule 3 Application and transitional provision

Schedule 3 provides for the continuation of staff currently employed under the MOP(S) Act. Items 4 to 9 provide for the continuation of determinations in effect under sections 12, 13(2), 14(3), 20(2) and 21(3) to continue as well as directions under subsections 16(5) and 23(4) and authorisations under section 32.

Item 10 outlines amendments to references in the Enterprise Agreement flowing from the proposed restructured MOP(S) Act.

Schedule 4 Consequential amendments

Section 13 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) allows reasons for decisions to which the Act applies to be obtained. Paragraph (y) of Schedule 2 to the ADJR Act provides that decisions relating to engaging, or terminating engagements of, consultants, or employing, or terminating the employment of, staff under the MOP(S) Act are exempt from section 13 of the ADJR Act, with the effect that reasons are not required to be provided. Item 1 of Schedule 4 to the MOP(S) Bill repeals and remakes paragraph (y) of Schedule 2 to the ADJR Act to continue to apply the exemption to the revised MOP(S) employment arrangements introduced by the Bill. The Explanatory Memorandum says this is in recognition of ‘the personal nature of MOP(S) employment, and the complexity likely to arise where meaningful reasons for suspension could require the disclosure of sensitive information and/or information provided in confidence’. The exemption from section 13 of the ADJR Act does not preclude MOP(S) employees seeking remedies via the Fair Work Commission and Australian Human Rights Commission.[177]

The MOP(S) Bill removes the redundant reference in paragraph (y) of Schedule 2 to the ADJR Act to engaging consultants but extends the exemption to cover decisions relating to suspension from duties, discussed above.

Schedule 4 amends 17 other Acts to reflect that persons will no longer be ‘engaged’ as consultants under the amended MOP(S) Act or amendments required owing to structural changes to the MOP(S) Act, such as staff previously employed under sections 13 and 20 of the Act now being employed under proposed section 11.

Policy position of non-government parties/independents

In introducing the Bills, the Assistant Minister referred to the role of representatives of the Parliament working together to get these structural reforms implemented. He noted the consultation process, which implies there is a high level of agreement on the Bills:

The amendments made by this bill are the product of extensive consultation with parliamentarians and staff across parliament, including through the Parliamentary Leadership Taskforce, its Staff Consultation Group and union representatives.[178]

Financial implications

The PWSS Bill Explanatory Memorandum states:

The Government has committed $51.7 million of new funding over four years from 2023-24 (and $12.4 million per year ongoing) to establish the PWSS as an independent statutory agency.[179]

The Government advises that the MOP(S) Bill has no financial impact.[180]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[181]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights had not considered the Bills.

Concluding comments

These Bills go a long way in implementing the spirit of the Jenkins Report. However, as noted above, some of the proposed processes for the PWSS are somewhat cumbersome in relation to such matters as approving or rejecting mandatory proposals. The CEO may determine a particular policy or program that is mandatory, which then must be considered and possibly vetoed by the Advisory Board. This process is in contrast to the Australian Public Service Commissioner who can make directions under the Public Service Act 1999 without such checks.

It could be argued that these processes are required to provide assurance when such matters occur within the parliamentary environment.

The Bills, which appear to have support across the Parliament, will be required to pass the Parliament in a timely way if the start date of 1 October 2023 for the PWSS is to be achieved.[182]

As noted, the Government has still to introduce legislation to establish the IPSC, which may require greater consultation and negotiation as it deals with codes of conduct and sanctioning of members of Parliament and staff.[183] However, the IPSC is integral to the reforms set out by the Jenkins Report to embed a safe and respectful parliamentary workplace culture.

Appendix A: Review recommendations that will be addressed by proposed legislative amendments

Table 1: Jenkins Report review recommendations

Jenkins Report Recommendations, pp 22–26	Proposed legislative amendment/s
Recommendation 7: Measurement and public reporting The OPSC (see Recommendation 11), together with the Department of the Senate and Department of the House of Representatives, should table an annual report to the Parliament with the following information: (a) diversity characteristics of parliamentarians, including by party affiliation (where applicable), and gender representation across specific roles such as office-holders, ministerial portfolios and committee roles (Department of the Senate and Department of the House of Representatives) (b) diversity characteristics of Members of Parliament (Staff) Act employees, including analysis by party affiliation (where applicable), role, classification and pay scale (OPSC).	The Bill would also support implementation of recommendations 7 and 19 of the Set the Standard Report [Jenkins Report] … Source: PWSS Bill, Explanatory Memorandum, 4. Parliamentary Workplace Support Service Bill 2023, clause 22.
Recommendation 11: Office of Parliamentarian Staffing and Culture The Australian Government should establish an OPSC, within 12 months, to provide human resources support to parliamentarians and Members of Parliament (Staff) Act employees that is: (a) centralised and accountable to Parliament, with the enforcement of standards (b) designed to provide human resources support and administrative functions in the areas of policy development, training, advice and support, and education.	Parliamentary Workplace Support Service Bill 2023, clause 12.
Recommendation 12: Professionalising management practices for Members of Parliament (Staff) Act employees The OPSC (see Recommendation 11) should establish standards and processes to professionalise management practices for Members of Parliament (Staff) Act employees with the following priorities to foster a safe and respectful work environment: (a) guidance on office composition and staffing (b) merit-based recruitment with a focus on improving diversity (c) standardised induction for parliamentarians and Members of Parliament (Staff) Act employees to establish role clarity and expectations (d) performance management systems (e) management of misconduct (f) best practice respectful workplace behaviour policies that include referral pathways to the Independent Parliamentary Standards Commission.	The [PWSS] Bill would give effect to … recommendations [12, 13, 14, 15 and 16] by establishing the PWSS, and providing it with statutory functions commensurate to those recommended in the Set the Standard Report [Jenkins Report]. Source: PWSS Explanatory Memorandum, 3. Parliamentary Workplace Support Service Bill 2023, including clauses 13, 14, 17, and 18.
Recommendation 13: Professional development for Members of Parliament (Staff) Act employees The OPSC (see Recommendation 11) should develop a professional development program for Members of Parliament (Staff) Act employees including a: (a) framework of skills, competencies and capabilities linked to career pathways (b) structured learning and development program and informal and formal skills development opportunities.	The [PWSS] Bill would give effect to … recommendations [12, 13, 14, 15 and 16] by establishing the PWSS, and providing it with statutory functions commensurate to those recommended in the Set the Standard Report [Jenkins Report]. Source: PWSS Explanatory Memorandum, 3. Parliamentary Workplace Support Service Bill 2023, clause 18.
Recommendation 14: Best practice training To ensure that people working in Commonwealth parliamentary workplaces have the requisite knowledge and skills to prevent and respond to misconduct: (a) the OPSC (see Recommendation 11) should develop and deliver mandatory best practice training for parliamentarians and Members of Parliament (Staff) Act employees, to be conducted during induction and annually on: i. respectful workplace behaviour ii. relevant Codes of Conduct (b) the OPSC (see Recommendation 11) should develop and deliver best practice people management and inclusive leadership training for parliamentarians and senior Members of Parliament (Staff) Act employees (c) the parliamentary departments should review and implement mandatory best practice respectful workplace behaviour training.	The [PWSS] Bill would give effect to … recommendations [12, 13, 14, 15 and 16] by establishing the PWSS, and providing it with statutory functions commensurate to those recommended in the Set the Standard Report [Jenkins Report]. Source: PWSS Explanatory Memorandum, 3. Parliamentary Workplace Support Service Bill 2023, clause 18.
Recommendation 15: Guidance material in relation to termination of employment for Members of Parliament (Staff) Act employees The OPSC (see Recommendation 11) should create and communicate new guidance materials and processes in relation to termination of employment for Members of Parliament (Staff) Act employees. These should reflect the requirements of applicable legislation, including the Fair Work Act 2009 (Cth), and address the: (a) laws that apply to the termination of employment of Members of Parliament (Staff) Act employees (b) key categories of circumstances in, or reasons for, which Members of Parliament (Staff) Act employees may be dismissed, with specific guidance on when it may be lawful and appropriate to dismiss an employee based on ‘loss of trust or confidence’ (c) practical steps and processes that should be followed when effecting different categories of dismissals, in order to meet applicable legal requirements.	The [PWSS] Bill would give effect to … recommendations [12, 13, 14, 15 and 16] by establishing the PWSS, and providing it with statutory functions commensurate to those recommended in the Set the Standard Report [Jenkins Report]. Source: PWSS Explanatory Memorandum, 3. Parliamentary Workplace Support Service Bill 2023, including clauses 17 and 18. Members of Parliament (Staff) Amendment Bill 2023, items 8 and 9 of Schedule 2.
Recommendation 16: Fair termination of employment process for Members of Parliament (Staff) Act employees The OPSC (see Recommendation 11) should support parliamentarians to meet their legal obligations in relation to the termination of Members of Parliament (Staff) Act employees, by introducing the following process: (a) parliamentarians inform the OPSC promptly in writing or orally of any proposed dismissal before it is effected (b) the OPSC advises parliamentarians whether the proposed dismissal satisfies legal requirements, or identifies any deficiencies, and how to rectify these (Rectification Advice) (c) parliamentarians confirm in writing whether they will accept and implement any Rectification Advice (d) if a parliamentarian confirms that they will not accept and implement the Rectification Advice, or does not respond to the Rectification Advice, the OPSC should notify the relevant Presiding Officer and make a record of this.	The [PWSS] Bill would give effect to … recommendations [12, 13, 14, 15 and 16] by establishing the PWSS, and providing it with statutory functions commensurate to those recommended in the Set the Standard Report [Jenkins Report]. Source: PWSS Explanatory Memorandum, 3. [A]fter the commencement of the Parliamentary Workplace Support Service Act 2023 … Item 9 inserts two subsections at the end of new section 16 … Item 9 implements Recommendation 13A (termination) of the [MOP(S)] Review. It also reflects key features of Recommendation 16(a) of the Set the Standard Report [Jenkins Report] … Source: MOP(S) Explanatory Memorandum, 29, 31–32. Parliamentary Workplace Support Service Bill 2023, including clauses 17 and 18. Members of Parliament (Staff) Amendment Bill 2023, items 8 and 9 of Schedule 2.
Recommendation 17: Legislative amendments to Members of Parliament (Staff) Act 1984 (Cth) The Australian Government should ensure that the Members of Parliament (Staff) Act 1984 (Cth) is amended as follows: (a) sections 16(3) and 23(2) be amended to include that the written notice of termination must specify the reasons relied upon for making the termination decision. (b) for the avoidance of doubt and without limiting the application of other applicable laws, contracts or instruments, clarifying at the least, that a termination of employment under section 16(3) or section 23(2) is subject to and must comply with the requirements and provisions of: i. the Fair Work Act 2009 (Cth) including, but not limited to, the general protections provisions set out in Part 3-1 and the unfair dismissal provisions set out in Part 3-2 ii. relevant anti-discrimination legislation iii. the employee’s contract of employment (c) clarify that, for the avoidance of doubt, the Work Health and Safety Act 2011 (Cth) applies to a Member, Senator or officer in their capacity as employers of staff under the Members of Parliament (Staff) Act 1984 (Cth).	Members of Parliament (Staff) Amendment Bill 2023, including proposed sections 8 and 9 of the MOP(S) Act at item 13 of Schedule 1.   See also: Parliamentary Workplace Reform (Set the Standard Measures No. 1) Act 2022.
Recommendation 18: Comprehensive review of the Members of Parliament (Staff) Act 1984 (Cth) The Australian Government should undertake a comprehensive review of the operation and effectiveness of the Members of Parliament (Staff) Act 1984 (Cth) to ensure consistency with modern employment frameworks.	Fulfilled by Review of the Members of Parliament (Staff) Act 1984 (Cth): recommendation 18 of the Jenkins Report, Department of the Prime Minister and Cabinet, 2022.
Recommendation 19: Monitoring, evaluation and continuous improvement The OPSC, together with the Implementation Group (see Recommendation 2), should develop a shared monitoring and evaluation framework across Commonwealth parliamentary workplaces. This framework should ensure regular measurement and public reporting on key indicators to monitor progress in the prevention of and responses to bullying, sexual harassment and sexual assault.	The Bill would also support implementation of recommendations 7 and 19 of the Set the Standard Report [Jenkins Report] … Source: PWSS Explanatory Memorandum, 4. Parliamentary Workplace Support Service Bill 2023, including clause 22.
Recommendation 20: Expansion of the Parliamentary Workplace Support Service The Australian Government should expand, within three months, the scope of the new Parliamentary Workplace Support Service to: (a) make it available to all Commonwealth parliamentary workplace participants (b) include all allegations of bullying, sexual harassment and sexual assault (c) establish a clear pathway for anonymous reporting, including through a digital platform (d) publish additional information on what happens with anonymous and bystander disclosures (e) include historic complaints of bullying, sexual harassment and sexual assault and those relating to people who have left the workplace.	In accordance with the recommendations of the Review of the Parliamentary Workplace: Responding to Serious Incidents (the Foster Review), the existing PWSS was established as an independent parliamentary workplace complaints mechanism to provide support, and formal review of workplace misconduct, to MOP(S) employees and parliamentarians. The PWSS was subsequently expanded in April 2022 through the Parliamentary Service Amendment (Independent Parliamentary Workplace Complaints Mechanism) Determination 2022 to implement in part recommendation 20 of the Set the Standard Report [Jenkins Report], including to allow the PWSS to provide support to a broader range of Commonwealth parliamentary workplace participants. The statutory PWSS would assume the functions of the existing PWSS, including its local resolution, workplace review and support services. Source: PWSS Explanatory Memorandum, 4. Parliamentary Service Amendment (Independent Parliamentary Workplace Complaints Mechanism) Determination 2022.

 

Table 2: Review of the Members of Parliament (Staff) Act 1984 recommendations

Review of the Members of Parliament (Staff) Act 1984 Recommendations, pp 13–15	Proposed legislative amendment/s
Recommendation 1 – Employee categories The MOP(S) Act should be simplified by merging Parts III (Staff of office-holders) and IV (Staff of Senators and Members) into one part and reflecting three categories of MOP(S) employees: electorate employees; personal employees – ministerial; and personal employees – other.	Item 2 of Schedule 1 of the MOP(S) Bill inserts definitions in section 3 of the MOP(S) Act for ‘electorate employees’ and ‘employing individual’. Source: MOP(S) Explanatory Memorandum, 11. Members of Parliament (Staff) Amendment Bill 2023, including items 2, 7 and 13 of Schedule 1.
Recommendation 2 – Employer duties The MOP(S) Act should provide greater clarity over employment roles and responsibilities by setting out the specific duties of parliamentarians, the OPSC and the Prime Minister, and include an express power to delegate. The OPSC should have powers to require specified training, and report on the administration of the Act.	[T]he new section 7 … sets out the roles of the Prime Minister, parliamentarians and officeholders in the MOP(S) Act employment framework. [A]fter the commencement of the Parliamentary Workplace Support Service Act 2023 … a note after the new section 7 [would include] a description of the role of the PWSS and implement … part of Recommendation 2 (employer duties). Source: MOP(S) Explanatory Memorandum, 29. Members of Parliament (Staff) Amendment Bill 2023, including items 7 and 14 of Schedule 1 and item 15 of Schedule 2.
Recommendation 3 – Resourcing of parliamentarian offices The OPSC should undertake a review of the factors affecting workloads, particularly in electorate offices, including support systems and processes, and external factors such as the adequacy of government services and electorate composition, to inform an evidence-based consideration of office and staffing resources. The MOP(S) Report should recommend principles to be considered by the Prime Minister in determining staffing allocations.	Clause 22 [of the PWSS Bill would] enable the PWSS to prepare a report on its review of resourcing of parliamentarian offices, as recommended in the MOP(S) Act Review [MOP(S) Report]. Source: PWSS Explanatory Memorandum, 46–47. Parliamentary Workplace Support Service Bill 2023, including clause 22.
Recommendation 4 – Transparency of staffing allocations The MOP(S) Act should be amended to require the allocation of staff to be transparent through annual reporting arrangements.	Not in addressed in the Bills.
Recommendation 5 – Modernising the Act The MOP(S) Act should be modernised by including an objects clause to reflect the purposes of the Act, and amending provisions relating to superannuation and consultants to better reflect contemporary settings.	New section 2A refers to three objects and closely reflects the objects clause proposed by the Review [MOP(S) Report] (see p.62). Source: MOP(S) Explanatory Memorandum, 11. Members of Parliament (Staff) Amendment Bill 2023, items 1 and 13 of Schedule 1.
Recommendation 6 – Increase transparency for terms and conditions Transparency of employment arrangements should be enhanced by including in the MOP(S) Act: A. a requirement that determinations made under the MOP(S) Act about terms and conditions be published except in circumstances where individuals may reasonably be identified B. a provision for the continuity of employment and employer powers when a seat becomes vacant, including between the date of dissolution of parliament and the date a poll is declared.	[A] minor change in subsection 13(2) to make determinations notifiable instruments implements part of Recommendation 6A of the Review [MOP(S) Report] … Subclauses 7(1) and (2) preserve determinations made under subsections 14(3) and 21(3) of the MOPS Act. These determinations relate to the terms and conditions of employment of persons employed under the Act. Paragraph 7(2)(b) clarifies that the new designation of instruments as ‘notifiable’ will not have retrospective effect. Existing determinations (that do not apply to specified persons) made prior to these amendments to the Act will not be required to be registered as notifiable instruments. These existing determinations are already publicly available on the Department of Finance website. Subclause 7(3) will formalise the requirement for these determinations to be publicly available on this website Source: MOP(S) Explanatory Memorandum, 20, 37. Members of Parliament (Staff) Amendment Bill 2023, including proposed subsections 13(2) and proposed sections 14 and 15 of the MOP(S) Act at item 13 of Schedule 1 and item 7 of Schedule 3.
Recommendation 7 – Recruitment The MOP(S) Act should require parliamentarians to recruit staff against specified position descriptions and undertake an assessment of a candidate’s capacity to successfully perform the prescribed role. The OPSC should develop policies and guidance to support this, including consideration of the use of self-declarations and pre-engagement checks.	Subsection 8(3) introduces a new requirement on parliamentarians and office-holders to assess whether a person has the capability to perform a particular role before they are employed. This reflects Recommendation 7 of the Review [MOP(S) Report] Source: MOP(S) Explanatory Memorandum, 17. Members of Parliament (Staff) Amendment Bill 2023, proposed paragraph 6(c) and proposed subsection 8(3) of the MOP(S) Act at item 13 of Schedule 1.
Recommendation 8 – Work health and safety of non-MoP(S) workers Visibility and protection of non-MOP(S) Act workers should be increased by requiring parliamentarians to notify the OPSC when any person not engaged under the MOP(S) Act commences working in their office (e.g. volunteers and interns).	Not in addressed in the Bills.
Recommendation 9 – Employment principles The MOP(S) Act should be amended to include employment principles to professionalise the employment framework and provide legislative support to underpin broader implementation of the recommendations made in Set the Standard and this Review.	New section 6 sets out employment principles intended to shape workplace culture and articulate what MOPS Act employees, parliamentarians and the public can expect in the MOPS workplace. … The inclusion of employment principles implements Recommendation 9 of the Review [MOP(S) Report]. Source: MOP(S) Explanatory Memorandum, 15–16. Members of Parliament (Staff) Amendment Bill 2023, including proposed section 6 of the MOP(S) Act at item 13 of Schedule 1.
Recommendation 10 – Parliamentarian obligations The MOP(S) Act should list the requirements of a parliamentarian as employer, including to: provide a safe and respectful workplace; make recruitment decisions based on an assessment of capability and provide procedural fairness in termination.	New section 8 sets out certain responsibilities of parliamentarians and office-holders. It substantially implements Recommendations 7 (recruitment) and 10 (parliamentarian obligations) of the Review [MOP(S) Report]. Source: Source: MOP(S) Explanatory Memorandum, 17. Members of Parliament (Staff) Amendment Bill 2023, proposed section 8 of the MOP(S) Act at item 13 of Schedule 1.
Recommendation 11 – Employee obligations The MOP(S) Act should list the requirements of an employee including to: contribute to a safe and respectful workplace; act in accordance with any applicable codes of conduct; and exercise delegations in accordance with legal obligations.	New section 9 sets out certain responsibilities of MOPS Act employees. It substantially implements Recommendation 11 of the Review [MOP(S) Report] Source: MOP(S) Explanatory Memorandum, pp 29, 31‑32. Members of Parliament (Staff) Amendment Bill 2023, proposed section 9 of the MOP(S) Act at item 13 of Schedule 1.
Recommendation 12 – Annual reporting The OPSC should collect the information identified in Recommendations 7 and 19 of Set the Standard and any additional data required to provide a transparent account of the MoP(S) Act employment framework in its annual report to Parliament.	Parliamentary Workplace Support Service Bill 2023, clause 22.
Recommendation 13 – Termination The MOP(S) Act should be amended to improve the certainty and fairness of termination processes, including provisions that: A. a parliamentarian must consult the OPSC on best practice prior to effecting any termination B. the employing parliamentarian may suspend the employment of a MOP(S) Act employee C. the OPSC may suspend the employment of a MOP(S) Act employee in cases of immediate risk, including on advice from the Independent Parliamentary Standards Commission.	[A]fter the commencement of the Parliamentary Workplace Support Service Act 2023 … Item 9 inserts two subsections at the end of new section 16 … Item 9 implements Recommendation 13A (termination) of the [MOP(S)] Review. It also reflects key features of Recommendation 16(a) of the Set the Standard Report [Jenkins Report] Source: MOP(S) Explanatory Memorandum, 29, 31–32. Members of Parliament (Staff) Amendment Bill 2023, proposed sections 16 and 18 of the MOP(S) Act at item 13 of Schedule 1; and items 8, 9, and 11 to 14 of Schedule 2.
Recommendation 14 – Automatic termination provisions The automatic terminations provisions in the MOP(S) Act should be amended to improve job security and increase clarity for staff by: A. retaining the existing high level automatic terminations triggers, but allowing for determinations to clarify specific circumstances B. providing that automatic termination provisions for electorate staff employed under Part III only apply where the employing parliamentarian ceases to have a personal staffing allocation.	[C]onsistent with Recommendation 14A … new subsection 14(4) allows the Prime Minister to determine circumstances in which an event specified in table items (2), (3) or (4) is taken to occur or taken not to occur. [Implementing recommendation 14B] new subsection 14(1) includes a table setting out the events that will give rise to an automatic termination of a person’s employment under the MOP(S) Act. Source: MOP(S) Explanatory Memorandum, 21, 22. Members of Parliament (Staff) Amendment Bill 2023, proposed sections 14 and 15 of the MOP(S) Act at item 13 of Schedule 1.
Recommendation 15 – Five year review The MOP(S) Act should be reviewed for effectiveness, in the context of broader changes to the parliamentary workplace, within five years of the amendments to the Act.	New section 32 inserts a requirement for the Act to be reviewed within 5 years, but not before 3 years after this section commences. Source: MOP(S) Explanatory Memorandum, 28. Members of Parliament (Staff) Amendment Bill 2023, proposed section 32 of the MOP(S) Act at item 14 of Schedule 1.