Introductory Info

Date of introduction: 2024-08-21

 

House introduced in: House of Representatives

Portfolio: Finance

Commencement: Schedule 1, Part 1 will commence the day after Royal Assent. Schedule 1, Part 2 and Schedule 2 will commence on a day fixed by Proclamation or if they have not commenced within the period of 6 months beginning on the day the Bill receives the Royal Assent, they would commence on the day after the end of that period.

Purpose of the Bill

The purpose of the Parliamentary Workplace Support Service Amendment (Independent Parliamentary Standards Commission) Bill 2024 (the Bill) is to amend the Parliamentary Workplace Support Service Act 2023 (PWSS Act) and five other Acts to establish an Independent Parliamentary Standards Commission (IPSC). IPSC Commissioners would investigate allegations of breaches of Behaviour Codes agreed by both Houses of the Parliament and certain earlier misconduct by parliamentarians, staffers and certain others connected to Commonwealth parliamentary workplaces.

The Bill primarily responds to recommendation 22 of the Independent Review into Commonwealth Parliamentary Workplaces conducted by former Sex Discrimination Commissioner, Kate Jenkins (the Jenkins Review).

Background

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 parliamentarians and political and parliamentary staff.

In response to these events and the apparent failings in the institutional responses to them, the Coalition Government initiated three review processes: the Foster Review of procedures and processes relating to serious incidents in the parliamentary workplace; the Jenkins Review referred to above; and a review of the Members of Parliament (Staff) Act 1984 (MOPS Act).

Consistent with the Jenkins Report’s recommendation 2, a Parliamentary Leadership Taskforce (PLT) was established in February 2022 to oversee the implementation of recommendations. The PLT publishes ad hoc and annual updates on the status of progress against recommendations made by the Jenkins Report.

Information provided in Senate estimates hearings indicates that the Government informed the PLT of the principles it had followed when drafting the Bill (p. 12), and also consulted the PLT and its staff consultation group on draft legislation prior to introducing the Bill (p. 27).

Addressing a number of review recommendations for which legislation was necessary, in September 2023 the Parliament passed a package of three Bills. The PWSS Act established a legislated Parliamentary Workplace Support Service (PWSS) to replace the previous PWSS established administratively. The Members of Parliament (Staff) Amendment Act 2023 and the Parliamentary Workplace Support Service (Consequential Amendments and Transitional Provisions) Act 2023 aligned a number of Acts (notably the MOPS Act) with the PWSS Act. For a detailed discussion of the three reviews and the three Bills, see a Parliamentary Library Bills Digest, Parliamentary Workplace Support Service Bill 2023 [and two associated Bills].

The Jenkins Report also recommended:

• 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 draft ‘Behaviour standards and codes’ developed by the Joint Select Committee on Parliamentary Standards in February 2023 (House of Representatives and Senate).

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:

1. 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)
2. operate a fair, independent, confidential and transparent system to receive disclosures, as well as handle informal and formal complaints and appeals about misconduct
3. make findings about misconduct
4. make recommendations on sanctions (in relation to parliamentarians, staff and others as relevant under the Standards of Conduct in the Parliamentary Precincts)
5. apply sanctions for a breach of the Code of Conduct for Parliamentarians where such sanctions do not interfere with the functions of the Parliament.

In May 2024 Budget Paper no. 2 (p 100) provided ‘$3.8 million in 2024–25 to the [PWSS] for initial funding to establish the IPSC from 1 October 2024, subject to the passage of legislation’ and stated that ‘the Government will consider future funding for the IPSC after the legislation to establish the IPSC has been settled’.

Committee consideration

At the time of writing, the Bill had not been referred to a committee for inquiry and report. The Senate Selection of Bills Committee noted in Report No. 9 of 2024 that it had deferred consideration of whether to recommend referring the Bill to a committee until its next meeting.

Policy position of non-government parties/independents

Following the introduction of the Bill, the Deputy Leader of the Opposition and Shadow Minister for Women, Sussan Ley, indicated that she would study the final form of the legislation and the Opposition would not reach a position until it had been subjected to shadow cabinet and party room consideration. Ms Ley also indicated that the decision on the timing of the Bill’s introduction and the proposed commencement date of 1 October 2024 have not been endorsed by the Opposition.

Two backbench Coalition members have indicated they do not support the Bill or consider it problematic. Garth Hamilton stated that he would not vote for the Bill on the grounds that it will be politicised and that ‘democracy will be diluted’, while Keith Pitt suggested the legislation would make attracting candidates for political office more difficult and is unnecessary given existing accountability measures. Senator Matt Canavan was reported as stating the IPSC would invite ‘frivolous and vexatious complaints’.

Senator Larissa Waters has indicated that the Australian Greens ‘want to see the commission be established quickly, without further delay’, noting that the Jenkins Report had originally proposed a much earlier implementation date. However, Senator Waters also noted that the Greens had unsuccessfully argued for stronger sanctions to be included in the Bill and criticised the proposed approach to misconduct by ministers.

Senator Lidia Thorpe has similarly expressed her general support for the proposed IPSC but questioned the severity of the proposed sanctions and raised concerns that the confidentiality arrangements may prevent the public disclosure of misconduct.

Senator David Pocock indicated he may propose an amendment to remove the Prime Minister’s power to determine the number of personal staff parliamentarians can employ.

Several independent crossbench members have raised concerns about the scope of conduct that may be investigated. Ms Steggall, Ms Spender, Ms Tink and Dr Scamps have criticised the inability of the IPSC to investigate conduct that forms part of parliamentary proceedings, including misconduct in the chambers. Ms Tink has suggested she is interested in determining whether direct mail campaigns that are ‘disrespectful, inflammatory or propagate misinformation’ will fall within the remit of the IPSC. Ms Sharkie thought the IPSC was a ‘great idea’ in principle but wished to make sure it would not be ‘politicised and used as a weapon’.

Key issues and provisions

The Bill consists of 2 schedules. Schedule 1 has two parts:

• Part 1 contains amendment to the PWSS Act.
• Part 2 comprises amendments to a number of other Acts.
• Schedule 2 comprises application and transitional provisions, particularly in relation to complaints under review and not dealt with before commencement.

The objectives of the Bill and core elements of how the proposed IPSC would operate are expressed in the simplified outline clauses (new sections 24A, 36A and 59A of the PWSS Act, at items 41, 45 and 3, respectively of Schedule 1 to the Bill). The following discussion of the Bill focuses on provisions that may be of particular interest.

Parliamentary Joint Committee on Parliamentary Standards

Item 3, Schedule 1, Part 1 will insert a new Part 6A into the PWSS Act requiring the appointment of a Parliamentary Joint Committee on Parliamentary Standards (PJCPS) as soon as practicable after the commencement of each Parliament. The functions of the PJCPS would include:

• considering recommendations made by the Minister for the appointment of IPSC Commissioners
• reviewing Behaviour Codes at least once each Parliament
• monitoring and reporting to the Parliament on the performance of the IPSC or its Commissioners (new section 59G).

The PJCPS will not be authorised to direct the activities of the IPSC or a Commissioner, investigate a conduct issue, reconsider decisions, review incomplete investigations, nor give or seek advice or information about a particular person or conduct issue.

The PJCPS would comprise 6 members of the House of Representatives and 6 senators, with 3 Government members, 2 Opposition members and 1 crossbench member being nominated from each chamber (new section 59B). The Chair of the PJCPS is to be elected by the committee but must be a member of the Government. The Chair will be able to exercise both a deliberative vote and, in the case of a tied vote, a casting vote (new section 59C). This arrangement would enable Government committee members to prevail in cases where all members are in attendance and government and non-government members are on opposite sides of a vote.

The Explanatory Memorandum (pp 40–41) states the proposed composition is ‘broadly consistent’ with the committee structure recommended by the Jenkins Report. However, the Jenkins Report (p 223) also proposed that a joint committee for parliamentary standards should ‘have arrangements in place for the position of Chair to be rotated.’

Independent Parliamentary Standards Commission

Item 41, Schedule 1, Part 2 would insert new Part 2A into the PWSS Act to establish, as part of the existing statutory PWSS, an Independent Parliamentary Standards Commission (IPSC) consisting of Commissioners, and persons made available by the PWSS’ CEO to assist the IPSC to perform its functions.

The IPSC would consist of at least 7 but not more than 9 Commissioners, including the Chair. At least 4 Commissioners must be women (new section 36B). A Commissioner (including the Chair Commissioner) will be appointed by the Governor-General on the recommendation of the Minister. Before making such a recommendation the Minister must be satisfied that one or more of the following apply:

• the person is enrolled as a legal practitioner and has been enrolled for at least 5 years,
• the person is a former Commonwealth judicial officer,
• the person is a former judge of the Supreme Court of a State or Territory,
• the person has skills, knowledge or experience in investigating workplace misconduct.

In addition, the Minister must be satisfied that the selection process was merit based and included public advertising of the position (new subsection 36E(2)). Appointment periods must not exceed five years. Commissioners will hold office on a part time basis (new subsection 36E(8)).

The IPSC’s key functions would include assisting the Commissioners in the performance of their functions and developing and publishing guidance (which must include the importance of early reporting to the police of relevant conduct that may constitute an offence) (new sections 24BA and 24BB). Although the CEO of the PWSS will be accountable for the management of the IPSC, new section 36D clarifies that Commissioners will not be subject to direction in relation to the performance or exercise of their functions or powers.

On the distinct roles of the Commissioners and the IPSC, the Explanatory Memorandum observes (pp. 80 and 173) that:

 [A] majority of the functions and powers under this Bill are conferred upon the Commissioners, rather than upon the IPSC itself. Such powers and functions must be exercised personally, and are not delegable. [A] Commissioner may be supported by IPSC staff in performing their functions. As such, while the Commissioner themselves must conduct an interview with a respondent, an IPSC staff member could assist in taking notes or providing other secretariat support. [emphasis added]

The CEO of the PWSS, the Commissioners, staff and consultants etc will have immunity from liability in civil proceedings for anything they do ‘in good faith’ in the performance of their functions, powers and duties under the legislation (new section 40C).

Secrecy provisions

Item 22, Schedule 1, Part 2 amends section 5 of the PWSS Act to insert a definition of an ‘entrusted person’. An entrusted person would be the CEO of the PWSS, an IPSC Commissioner, a person assisting the IPSC or a related consultant.

Except for specific exceptions, it would be an offence for current or former entrusted persons to make a record of, or disclose, any information they obtained in the course of performing their duties. The maximum penalty would be imprisonment for 6 months or 30 penalty units (currently $9,390), or both (new section 24FK).

General exceptions include those necessary for the IPSC to operate such as making records or disclosures for purposes connected with functions and powers under the legislation (new section 24FL) or as required or authorised by law (new section 24FN). Other exceptions are more specific such as making records or disclosures:

• related to conduct which may constitute a ‘serious offence’ against another person (defined at item 24 of Schedule 1 as assault or sexual assault, or any other offence prescribed in the PWSS rules) allowing for disclosures to law enforcement with the potential victim’s consent, for compliance with mandatory reporting obligations and for referrals to the PWSS (new section 24FM)
• where the person reasonably believes it is necessary to ‘lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety’ (new section 24FO)
• where the information has already been lawfully made available to the public (new section 24FP)
• to the employer of a complainant or respondent where the complainant has consented to the disclosure (new subsection 24FR(1))
• to the employer of a complainant or respondent where the person is satisfied that the information is relevant to a duty or obligation of the employer under a work health and safety law (new subsection 24FR(2)).

Handling of conduct issues

Key definitions

The Bill draws on the existing definitions in section 5 of the PWSS Act to classify how different persons will be treated. The broadest category of ‘Commonwealth parliamentary workplace participant’ is divided into ‘core participants’ and ‘non-core participants’.

Currently a ‘core participant’ means a parliamentarian, a person employed under the MOPS Act (a MOPS employee), a Parliamentary Service employee, an APS employee whose predominant place of work is in a Commonwealth parliamentary workplace (such as a Departmental Liaison Officer), a COMCAR driver or a ‘designated worker’ (such as a volunteer).

Item 20 of Schedule 1, Part 2 would expand this definition to include the Secretary of a Parliamentary Department, the Parliamentary Librarian as well as Agency Heads or Australian Federal Police (AFP) appointees whose predominant place of work is a Commonwealth parliamentary workplace.

A ‘non-core participant’ will continue to mean a person (not a core participant) who performs work (whether or not paid work) predominantly in a Commonwealth parliamentary workplace. This may include members of the Federal Parliamentary Press Gallery and service workers, such as café workers at privately-owned cafés on parliamentary premises.

Pre-Code and Post-Code conduct

A Behaviour Code (as defined in new section 24AC) will be:

• a code or standard of behaviour for persons in Commonwealth parliamentary workplaces that is approved by a resolution of both Houses of the Parliament;
• a determination, under the Members of Parliament (Staff) Act 1984 (MOPS Act), that MOPS employees must comply with a code or standard of behaviour as a term and condition of employment.

The ‘Code commencement day’ will be when both are in force.

Pre-Code conduct which could be investigated by the IPSC would be limited to types of ‘relevant conduct’ (defined at section 5 of the PWSS) which currently may be addressed under the existing PWSS review function. This includes sexual assault, assault, sexual harassment, harassment, bullying at work (within the meaning of the Fair Work Act 2009) and ‘unreasonable behaviour towards another person that creates a risk to work health or safety’ (new subsection 24AB(1)). Further, it would be limited to where:

• parliamentarians and MOPS employees engage in conduct which affected another parliamentarian, MOPS employee or Parliamentary Service employee in the performance of their duties, or
• non-core participants engaged in conduct which affected a parliamentarian, MOPS employee or Parliamentary Service employee in the performance of their duties and in the parliamentary precinct.

Post-Code conduct which could be investigated by the IPSC would cover conduct engaged in after the Code commencement date by a Commonwealth parliamentary workplace participant which constitutes or involves a breach of a Behaviour Code and either:

• affects a Commonwealth parliamentary workplace participant or
• does not directly affect another person.

However, due to provisions on when Commissioners must not decide to investigate (in new section 24CH discussed below) only parliamentarians, MOPS employees, non-core participants and designated workers may be a respondent in an IPSC process. Further, designated workers (such as volunteers) may only be respondents in relation to post-Code conduct.

Complaints and conduct issue referrals

The Explanatory Memorandum (p 5) includes a table summary of who may be a complainant and who may be respondent.

Persons who can make conduct complaints to the IPSC can be divided into:

• parliamentarians, MOPS employees, Parliamentary Service employees and senior parliamentary officials who can make complaints about both pre-Code and post-Code conduct; and
• other Commonwealth parliamentary workplace participants who can only make complaints about post-Code conduct.

The IPSC can receive a ‘conduct complaint’ from a person who was or is affected by the alleged conduct or a ‘conduct issue referral’ (under new sections 24CA and 24CB) from:

• parliamentarians where the complainant or respondent is employed by the parliamentarian, or their predominant place of work is at an office provided to the parliamentarian
• the Presiding Officers concerning members of the House over which they preside
• the Leaders of Parliamentary parties if the respondent is or was a parliamentarian who is or was a member of their party at the time of the conduct
• the CEO of the PWSS or a PWSS staff member who has been delegated the conduct issue referral power.

Complaints and referrals to the IPSC must be made in writing and include details of the conduct issue, any relevant evidence and the contact details of the complainant or referrer (new subsections 24C(4) and 24CC(1)). The IPSC could not investigate conduct issues which arise from anonymous statements, but these conduct issues could be referred to the PWSS in some circumstances (new sections 24CB and 24CE).

Commencing investigations

The Chair Commissioner must assign an investigating Commissioner (IC) to deal with conduct complaints and conduct issue referrals (new paragraph 24CD(1)(a)). The Chair Commissioner may assign themselves to deal with a conduct issue that they become aware of in any other way (other than through an anonymous statement) (new paragraph 24CD(1)(b)). The Explanatory Memorandum (p 89) describes this as an ‘own-motion power’. ICs must deal with a conduct issue by investigating the issue, taking no action, or no further action or in certain circumstances referring the issue to the PWSS, to an Agency Head or under a relevant law (new sections 24CI, 24CJ and 24CK).

New section 24CH outlines when conduct issues can be investigated by ICs.

An IC may decide to investigate a conduct issue only if ‘satisfied on reasonable grounds that there is sufficient evidence or information to justify doing so’. ICs must also have ‘consent to investigate’ from the complainant (except where it was a conduct issue referral for which there is no complainant) unless ‘reasonably satisfied that a serious risk to work health or safety arises, or could arise, from the conduct concerned’.

An IC must decide not to investigate a conduct issue:

• where both the complainant and respondent (at the time of conduct) were non-core participants
• where at the time of the conduct the respondent was an APS employee who is not a MOPS employee, Parliamentary Service employee, an Agency Head, the Secretary of a Parliamentary Department, the Parliamentary Librarian or an AFP appointee
• where the conduct formed part of the ‘proceedings of Parliament’ or
• the conduct may constitute a serious offence against a person and the person does not consent to the investigation.

Item 24, Schedule 1, Part 2 will insert a definition of ‘serious offence’ as an offence ‘involving assault or sexual assault’ or any other offence prescribed in the PWSS rules.

An IC may decide not to investigate a conduct issue:

• where the IC is satisfied that the complaint or referral is ‘frivolous, vexatious, misconceived or lacking in substance or was not made in good faith’
• where the IC does not have consent to investigate and is ‘satisfied that it is unreasonable to continue the investigation, taking into account the progress of the investigation and fairness between the persons affected by the investigation’
• the IC is satisfied that the conduct concerned would be more appropriately (or is or already has been) dealt with through other avenues such as the PWSS complaint resolution function or another law of the Commonwealth or a State or Territory
• where the conduct concerned is, or has been, the subject of criminal or civil proceedings (including any preliminary investigations or action that might lead to these proceedings)
• if the respondent is a non-core participant and the IC is satisfied that the issue would be more appropriately dealt with by the respondent’s employer
• where the IC is satisfied it is inappropriate or impracticable for the issue to be investigated ‘for any other reason’.

Written notices of decisions to investigate

ICs must take ‘reasonable steps’ to give written notices regarding a decision to investigate to the respondent, the respondent’s employer (in some circumstances) as well as the complainant or referrer (depending on the how the conduct issue was raised).

‘Reasonable steps’ must also be taken by ICs to given written notices where a decision not to investigate has been made including to the complainant and referrer (depending on how the conduct issue was raised) as well as the respondent ‘if the [IC] has previously made the respondent aware of a matter relating to the issue’ and any other person previously given a notice. In both cases, the written notice must include the reasons for the decision (new section 24CL).

Conduct of investigations

Under new section 24CO, ICs will have a broad discretion to investigate conduct issues in such manner as they ‘think fit’ but must:

• complete the investigation as quickly as the requirements of the legislation and proper consideration of the conduct issue permits and
• observe the requirements of procedural fairness when conducting the investigation.

Respondents who are current parliamentarians or MOPS employees will be required to cooperate with the persons performing functions or exercising powers in relation to investigations (new section 24CP). Failure to cooperate may also constitute a breach of a Behaviour Code. The term ‘cooperate’ is not defined in the Bill or the PWSS Act.

Where the respondent to an investigation is not a parliamentarian, IC’s will have the capacity to recommend that the respondent’s employer suspend the respondent ‘for a period of no longer than 30 days’ (new section 24CQ).

Decision-makers and draft reports

Where the respondent is a current or former parliamentarian, the Chair Commissioner must constitute a ‘parliamentarian decision panel’ consisting of the IC and 2 other Commissioners (new section 24CS). For other respondents the decision-maker will be the IC.

The decision-maker must prepare a draft report which includes preliminary findings, a summary of evidence and, where relevant, proposed recommendations and sanctions. Where there is a preliminary finding of a serious breach by a current parliamentarian this could include a proposed referral to the relevant Privileges Committee. A parliamentarian decision panel may request that the IC obtain ‘obtain such other evidence or material about the conduct issue as the panel requires’ for the draft report.

The decision-maker must give persons who are the subject of critical preliminary findings or proposed sanctions, recommendations or referrals ‘a statement setting out the preliminary finding or proposal’ and ‘a reasonable opportunity to respond to the preliminary finding or proposal’ (new section 24CV).

This ‘opportunity to respond’ appears limited to the preliminary finding or proposal and does not provide an opportunity for the respondent to comment on the complete draft report. The decision-maker may, where they ‘consider it appropriate to do so’ give a copy of the draft report to the respondent or the complainant but must exclude any information ‘that the decision-maker is satisfied is sensitive information’ (new section 24CW).

Item 24, Schedule 1, Part 2 will insert a definition of ‘sensitive information’ which will include disclosures which ‘would involve unreasonably disclosing a person’s personal information’.

An IC or decision-maker may facilitate the making of an apology by the respondent in some circumstances (and where both parties consent). The making of an apology would not be an admission of fault or liability or admissible in civil proceedings, but may be taken into account by the decision-maker (new section 24CX).

Decisions and sanctions

Following the responses given on the draft report (if any), the decision-maker must decide whether they are satisfied ‘on the balance of probabilities’ that the respondent has engaged in the relevant conduct (new section 24CY).

Where decision-makers are satisfied that respondents have engaged in the relevant conduct, there would be considerable discretion in making decisions concerning recommendations, sanctions or referring serious breach findings. A note under new subsection 24CY(1) clarifies that decision-makers are not required to make a recommendation, impose a sanction or make a referral ‘even if the decision-maker is satisfied that the respondent engaged in the relevant conduct’. New subsection 24CY(2) sets out that decision-makers may only do so if ‘satisfied that doing so is necessary to promote appropriate conduct in Commonwealth parliamentary workplaces’.

The Explanatory Memorandum (p 9–10) indicates that Commissioners or panels ‘could take into account a range of considerations when determining a proportionate sanction’ such as the ‘nature and seriousness’ of the breach or whether the misconduct was ‘uncharacteristic’. However, these considerations are not set out in the provisions of the Bill.

The Explanatory Memorandum (p 9) includes a table summary of possible sanctions for parliamentarians, MOPs employees and other parliamentary workplace participants.

Where the respondent is not a current or former parliamentarian the decision-maker may make a range of recommendations.

If the respondent is a MOPS employee, recommendations could include that the respondent’s employer:

• give the respondent a written reprimand
• require the respondent to undertake training or professional development
• re-assign the respondent’s duties, if reasonably practicable
• deduct from the respondent’s salary a fine not exceeding 2% of their annual salary
• terminate the respondent’s employment (new paragraph 24CY(4)(a)).

The Bill includes amendments to the MOPS Act to require parliamentarians and officeholders to take actions regarding MOPS employees where there has been a recommendation made by an IPSC Commissioner (item 13, Schedule 1, Part 2).

Where the respondent is a former MOPS employee, the decision-maker may recommend that the respondent’s former employer give the respondent a written reprimand (new paragraph 24CY(4)(c)).

If the respondent is a non-core participant, the Commissioner may recommend a Presiding Officer restrict or remove access to the parliamentary precincts. As ‘non-core participants’ by definition work predominantly within this area, this recommendation could have significant employment implications for the person (new paragraph 24CY(4)(b)). The decision-maker may also recommend the respondent’s employer take ‘any action that the decision-maker considers appropriate, taking into account the seriousness of the conduct concerned’ (new paragraph 24CY(4)(d)).

Where the respondent is a current or former parliamentarian, the parliamentarian decision panel may decide to impose sanctions including:

• a written reprimand
• a requirement that the respondent undertake training or professional development
• a requirement that the respondent enter into an agreement with the IPSC about the respondent’s future behaviour (new subsection 24CY(5)).

Further, a ‘serious breach finding’ against a current parliamentarian may be referred to the Privileges Committee of the relevant House. A detailed definition or threshold for a ‘serious breach finding’ is not included in the Bill or the PWSS Act.

New section 24CZ provides that decision-makers must prepare final reports on investigations and sets out the various recipients of copies of the final report including where this may be delayed by review processes (discussed below).

Review of decisions

The Bill provides for an internal process for respondents to apply for the review of decisions, recommendations, sanctions or referrals. The Explanatory Memorandum notes (pp 118-119) that individuals would not ‘have an additional right to merits review by an external tribunal, such as the Administrative Appeals Tribunal’ but could seek ‘... judicial review of relevant IPSC decisions under the Administrative Decisions (Judicial Review) Act 1977...’.

Applications for review must be made within 28 days of receipt of the final report but this period may be extended on application where the Chair Commissioner considers there are ‘reasonable grounds’. Following receipt of an application for review, the Chair Commissioner must constitute a review panel of 3 Commissioners which do not include any Commissioner who made or was involved in the original decision. The review panel may affirm, vary or set aside a decision and make a decision in substitution for, the original decision (new section 24DD).

As with the investigation, where a current parliamentarian or MOPS employee is the respondent, they would have a requirement to cooperate with those undertaking the review (new section 24DG).

Serious breach findings and parliamentary sanctions

Item 22, Schedule 1, Part 2 will insert a definition of ‘parliamentary sanction’ into section 5 of the PWSS Act. In relation to a parliamentarian this will mean:

• the suspension of the member for a period of no more than the maximum period for which a member of that House may be suspended under the standing orders of that House
• the discharge of the member from a committee of one or both Houses of the Parliament
• a deduction from the parliamentarian’s annual base salary, by way of fine, of an amount that is more than 2%, but less than 5%, of that salary.

Under the 2024 Remuneration Tribunal Determination the base salary for a federal parliamentarian is $233,660 (p. 2).

Where a serious breach finding has been referred to a Privileges Committee, the Privileges Committee must decide whether to recommend that the relevant House impose any parliamentary sanctions and any other sanction it considers ‘necessary to promote appropriate conduct in Commonwealth parliamentary workplaces’ (new section 24EB). New section 24EC provides that at any time after the House receives the recommendation it may impose the sanction or ‘any other sanction that the House considers necessary to promote appropriate conduct in Commonwealth parliamentary workplaces’.

Powers and protections

Information-gathering powers

Under new section 24F, where an IC or review panel has ‘reasonable grounds to believe that a person has information, or a document or thing’ relevant to a conduct issue they will be able to give a written notice to require the person to:

• give any such information
• produce any such document or thing or
• attend an interview including to make a statement or answer questions.

Persons will not be required to comply where the information, document or thing relates to the provision of a support service by the PWSS or where it would directly or indirectly reveal the identity of a journalist’s informant (new section 24FA).

Failure to comply with a notice would be an offence with a maximum penalty of 30 penalty units (currently $9,390). The offence would not apply if it was ‘not reasonably practicable’ to comply with the notice, but the evidential burden of raising this defence would be on the defendant (new section 24FB).

Where persons are required to attend interviews, the interview must be conducted in private but the interviewee may bring a support person (subject to approval) and a legal practitioner (new section 24FC).

New section 24FF clarifies that these powers do not abrogate the rights of persons to refuse to answer a question, give information, or produce a document on the grounds of self-incrimination or legal professional privilege.

Confidentiality notices and public statements

New section 24AE sets out the ‘responsible Commissioner or Commissioners’ who may issue confidentiality notices and publish public statements.

Confidentiality notices

Where there is information that related to ‘any process, or any action’ concerning a conduct issue which ‘was or is before the IPSC’ and not been ‘lawfully made available to the public’ a responsible Commissioner or Commissioners may give written confidentiality notices to persons. These confidentiality notices (new section 24FH) could impose conditions on the making of a record, and the disclosure, of specified information until a conduct issue is concluded, that are considered appropriate to:

• prevent prejudice to IPSC processes, the fair trial of any person, the impartial adjudication of a matter, or the proper enforcement of the law
• protect the identity of the complainant, respondent, any other person affected by the conduct issue or any person who has given or may give information in connection with the conduct issue
• prevent ‘unreasonable detriment’ to complainants, respondents or any other person affected by the conduct issue
• prevent the publication of ‘sensitive information’.

There would be a number of exceptions including where making a record or a disclosure would be required by law or to protect life and safety. There would also be exceptions for disclosures made to seek legal advice, support from the PWSS or medical treatment or to an approved support person (new section 24FI).

It would be an offence if a person engages in conduct which breaches a condition of a confidentiality notice. The maximum penalty would be imprisonment for 6 months or 30 penalty units (currently $9,390), or both (new section 24FJ).

Public statements

The processes of the IPSC are intended to be confidential but the Bill includes limited provision for a Commissioner or Commissioners to make public statements regarding conduct issues.

Under new section 24G, a responsible Commissioner or Commissioners may publish statements containing information about a conduct issue which ‘was or is before the IPSC’ when ‘any matter relating to the issue is already publicly available’ and where ‘satisfied that doing so’:

• would afford fairness to any person or
• is otherwise necessary to correct erroneous reporting.

Before including identifying information in public statements, the Commissioner or Commissioners must give notice to and invite the relevant person to make a submission on the proposal to include identifying information in the public statement (new section 24GC).

A public statement may also be made by the responsible Commissioner or Commissioners where a parliamentarian decision panel imposes a sanction on a parliamentarian in limited circumstances. These are where:

• another panel has previously made a finding that the parliamentarian has engaged in relevant conduct or
• the parliamentarian fails to comply with a sanction.

The Explanatory Memorandum (pp 156) indicates this is intended to allow public statements to be made ‘where a parliamentarian has engaged in repeated patterns of misbehaviour’ and to ‘promote implementation of IPSC sanctions’. This statement must include the identity of the parliamentarian and the parliamentarian must be given written notice the statement has been proposed (new section 24GA).

Protected disclosures

Division 8 of new Part 2A of the PWSS Act (item 41 of Schedule 1) deals with protections and immunities for persons who make ‘protected disclosures’. A person makes a ‘protected disclosures’ (defined in new section 24H) where the person:

• makes a conduct complaint, conduct issue referral or gives information about a conduct issue to the IPSC, a Commissioner or the CEO of the PWSS
• gives information to a parliamentarian in relation to the making of conduct issue referral
• gives information or produces a document or thing to a Commission or review panel in compliance with a request or a notice to give information.

New section 24HA will create two offences for those who engage in conduct which results in a detriment or consists of or results in a threat to cause a detriment to another person because of a belief or suspicion that the person:

• has made a protected disclosure
• may have made a protected disclosure
• proposes to make a protected disclosure or
• could make a protected disclosure.

Item 22, Schedule 1, Part 2 will insert a broad definition of ‘detriment’.

The offences will not apply to reasonable administrative actions to protect the person from detriment (new subsection 24HA(4)).

The maximum penalty for both of these offences will be 2 years imprisonment or 120 penalty units (currently $37,560), or both.

A person who makes a protected disclosure will be immune from ‘any civil, criminal or administrative liability (including disciplinary action)’ and no contractual or other remedy or right may be enforced or exercised against the person on the basis of the disclosure (new section 24HB). However, these protections will not apply to liability for ‘knowingly making a disclosure that is false or misleading’ or to certain relevant offences (new subsection 24HC).

Other amendments

National Anti-Corruption Commission Act 2022

Section 45 of the National Anti-Corruption Commission Act 2022 (NACC Act) addresses a circumstance in which the NAC Commissioner is aware that a ‘Commonwealth integrity agency’ (designated in section 15 of the NACC Act) has previously concluded an investigation into a matter regarding the conduct of a public official. The NAC Commissioner may only commence an investigation into a corruption issue involving that conduct if satisfied it is in the public interest, taking into account factors such as the already concluded investigation by a Commonwealth integrity agency.

Item 14 of Schedule 1 would insert new paragraph 15(pb) into the NACC Act to add a Commissioner of the IPSC as a ‘Commonwealth integrity agency’ for the purpose of the NACC Act. The Explanatory Memorandum observes (p. 53) that this acknowledges that ‘investigations relating to the same or substantially similar matter may ... be a disproportionate response’.

Archives Act 1983 and Freedom of Information Act 1982

Item 5 would insert a new paragraph into the definition of ‘PWSS document’ in section 3 of  the Archives Act 1983 and item 6 would insert new paragraph 7(2AAA)(d) into the Freedom of Information Act 1982 (FOI Act). As noted by the Explanatory Memorandum (p 46), these amendments will ensure records of the IPSC are treated in the same manner as records of the PWSS for the purposes of the Archives Act and the FOI Act. For more on the treatment of PWSS records, see Parliamentary Workplace Support Service Bill 2023 [and two associated Bills] (pp 35-36).

Potential issues

The provisions of the Bill raise a number of potential issues. Further information on these topics may be included in the final Bill Digest. These issues include:

• the discretion granted to IPSC Commissioners to decide alleged conduct issues
• the breadth of post-Code conduct covered by the IPSC
• the procedural fairness of the proposed IPSC processes
• how the IPSC’s processes and powers will interact with parliamentary privilege
• possible constitutional issues with the IPSC’s powers.

Further reading

• Deirdre McKeown and Michael Sloane, Parliamentary codes of conduct: a review of recent developments, Research paper series, 2021–22, 4, 27–35.
• Michael Sloane, Cathy Madden and Philip Hamilton, Parliamentary Workplace Support Service Bill 2023 [and two associated Bills], Bills Digest, 15, 2023–24, 6–15.
• Marian Sawer and Maria Maley, Toxic parliaments: and what can be done about them—chapter 5 discusses overseas reforms.
• Ellie Florence and Annie Wright, Parliamentary Workplace Standards and Integrity Bill 2024, Bill Brief, 7, 2024—this brief describes a Victorian bill establishing the Parliamentary Workplace Standards and Integrity Commission and also provides a useful jurisdictional comparison of the approach of parliaments to standards issues at pp 27–32.
• Finn Baker, ‘Who regulates standards for MPs’, Institute for Government, 9 February 2024—provides an overview of the standards system in the UK House of Commons.