Purpose of the Bill

The purpose of the Commonwealth Workplace Protection Orders Bill 2024 (the Bill) is to establish a workplace protection order (WPO) scheme, in order to provide legal protections for Commonwealth workplaces and workers and deter acts of violence and other harmful behaviours by members of the public. In so doing, the Bill implements recommendation 17 of the Services Australia Security Risk Management Review (the Ashton Review).

Structure of the Bill

The Bill consists of 4 parts:

• Part 1 defines certain key terms and clarifies certain jurisdictional and other matters relevant to the Bill.
• Part 2 contains the main substantive provisions of the WPO scheme, including:
  • making interim, urgent interim, final and consent orders
  • specifying the content of WPOs
  • providing for the varying or revoking of WPOs and
  • providing it is an offence to contravene a WPO.
• Part 3 deals with matters including jurisdiction and other matters relating to court proceedings and information management.
• Part 4 concerns miscellaneous matters, including providing for delegation of decision-making and for a review of the operation of the proposed legislation.

Background

Incidents against Commonwealth workers

According to the Government, as of October 2023 there were more than 170,000 Commonwealth public servants and 100,000 of those are operational staff who work in places like Services Australia, the Australian Taxation Office, passport offices, airports and the Australian Electoral Commission (AEC).

According to the Explanatory Memorandum, the Bill responds to significant workplace health and safety risks to Commonwealth workers and workplaces, noting that between July 2023 and June 2024, there were 1,692 serious incidents across Services Australia’s face-to-face service channel (p. 2, paragraph [1]).

In a submission to the previous Senate Inquiry into the Criminal Code Amendment (Protecting Commonwealth Frontline Workers) Bill 2024, Services Australia stated that frontline workers are ‘regularly’ subject to incidents of customer aggression (p. 4). The AEC’s submission highlighted that the security environment for workers had ‘deteriorated’ in recent times (p. 2). The Community and Public Sector Union’s (CPSU) submission indicated that incidents had increased in frequency and intensity since the Covid-19 Pandemic (p. 5).

Other sources, such as Safe Work Australia’s report on Workplace and work-related violence and aggression in Australia (2024), indicate there has been an increase in workers’ compensation claims for being assaulted and for exposure to workplace violence over recent years. According to the Australian Federal Police, reported threats to Australian federal parliamentarians have increased significantly in 2023–24.

Security Risk Management Review

Following a serious security incident at a Services Australia centre, the Minister for Government Services, Bill Shorten, announced the Services Australia Security Risk Management Review in May 2023. A former Chief Commissioner of Victoria Police, Mr Graham Ashton, led the review.

The Ashton Review issued key findings and recommendations in July 2023 (the full contents of the report do not appear to be publicly available). It found that Services Australia has a strong service ethos which results in a strong service culture; however, it was important to ensure that the service culture ‘does not impede on security and safety practices’ (p. 3). In that context, the Ashton Review made 44 recommendations, including relevantly:

Recommendation 17

The current ACT Workplace Protection Order provisions should be adopted for use by the Commonwealth as a staff protection mechanism nationwide.

In the limited accompanying comments, the Ashton Review observed that a WPO scheme ‘would remove the need for staff to take out orders individually’ (p. 4).

In a Ministerial Statement of 19 October 2023, Minister Shorten informed the Parliament that the Government would act on all 44 recommendations. With reference to the WPO proposal, Mr Shorten observed:

There is currently a loophole whereby in most jurisdictions an individual who works at Services Australia and who is the victim of aggression or violence has to take out an apprehended violence order against the perpetrator in their own name, so the individual worker has to pursue the application. This is obviously a retraumatising experience for the victim, not to mention the unfair administrative burden it places on them. This work would scope reforms that would allow the agency to take out the intervention order in relation to the workplace.

Certain recommendations have already been progressed. In July, the Parliament passed the Criminal Code Amendment (Protecting Commonwealth Frontline Workers) Bill 2024, which strengthened protections for Commonwealth frontline workers by amending existing offences in the Criminal Code Act 1995 (Criminal Code), implementing recommendation 18 of the Ashton Review. For further information on these reforms, see the Bills Digest.

Existing laws and schemes

There are existing laws that may be relevant to incidents involving violence directed at Commonwealth workplaces or workers. For example, subsection 147.1 of the Criminal Code creates the offence of causing harm to a Commonwealth public official. Commonwealth workers could also potentially apply for a protection order under state or territory legislation; however, apart from in the ACT, this would need to be in their own name.

The Bill is modelled on the WPO scheme in the Personal Violence Act 2016 (ACT), which established a system of protection for those who fear or experience personal violence (other than from a family member), including workplace violence. In summary, under section 13 an employer may apply to the Magistrates Court for a WPO for an ‘affected person’, which is defined in the Dictionary. The Court has discretion as to conditions for the WPO (section 32), but must ensure the conditions are the least restrictive possible (section 29). Conduct contravening a WPO is an offence (section 35).

There is an existing landscape of protection orders across state and territory jurisdictions prominently in the domestic violence context (the nomenclature varies, for example, Domestic Violence Orders (DVO) or Apprehended Violence Orders (AVO)). In October 2024, South Australia announced the possible establishment of a WPO scheme.

Some US jurisdictions have existing workplace protection order schemes, such as California, under the Code of Civil Procedure, § 527.8, which is being expanded.

Policy position of non-government parties/independents

At the time of writing no statements have been made by non-government parties or independents with respect to the Bill.

Key issues and provisions

Key definitions

‘Personal violence’

The capacity to apply for a WPO is enlivened where a person (the respondent) engages in ‘personal violence’. The definition of ‘personal violence’ is conduct that directly or indirectly causes or threatens to cause harm or a reasonable fear of harm to a ‘Commonwealth worker’ (due to their status as a ‘Commonwealth worker’) or any person at a ‘Commonwealth workplace’ (subclause 6(1)). The conduct or threat must also directly or indirectly interfere with the functioning of the Executive Government of the Commonwealth (subparagraph 6(1)(c)).

According to the Explanatory Memorandum, the definition of personal violence is intended to cover a wide range of conduct including physical violence, threats, coercion or intimidation (including verbal abuse), offensive or harassing behaviour (including sending abuse material over the internet), bullying and/or stalking (p. 20, paragraph [36]).

Commonwealth workers and workplaces

Clause 5 defines, amongst other things, a ‘Commonwealth worker’ as a person that carries out work in any capacity for the Commonwealth, including contractors, security guards, volunteers, and persons employed under the Members of Parliament (Staff) Act 1984.

A ‘Commonwealth workplace’ is any place where a Commonwealth worker ordinarily goes, or is likely to be, while carrying out their work; however, it does not include a place that is owned or occupied by a court of a state or territory (the Explanatory Memorandum notes the definition may include mobile service centres, mobile shopfronts, an emergency relief centre, or a work vehicle (p. 18, paragraph [17])).

Who can apply for a WPO

An application to a court for a WPO may be made by an ‘authorised person’, which is defined in clause 7 as either:

• the Chief Executive and Principal Registrar of the High Court
• the accountable authority or chief executive officer (however described) of a Commonwealth entity.

Under clause 46, an authorised person may delegate their functions or powers under the new legislation to an SES employee (or acting SES employee) or person holding, or acting in, an office or position that is equivalent to an SES employee.

The WPO scheme

Types of orders

An authorised person may apply for the following types of Commonwealth WPOs:

• an interim order (clause 13)
• an urgent interim order (clause 16)
• a final order (clause 19) or
• a consent order (clause 22).

The purpose of an urgent interim or interim WPO is where the circumstances require a WPO to be issued more quickly. The different application requirements reflect this, for example, an urgent interim order may be made via phone or other electronic means without the accompaniment of a final order application (subclause 16(1)), but also must include an explanation of the urgent circumstances (paragraph 16(2)(b)).

A consent order provides for the circumstances where both parties agree to the making of a WPO and its conditions; for example, it can be made by the court without proof or admission that the respondent has engaged in personal violence (paragraph 22(2)(a)).

Making a WPO

There are certain preconditions to a court making a WPO. For example, a court may make a final order under clause 20 if:

• an application for the order is made (under clause 19)
• the application has been served personally on the respondent and
• the court is satisfied on the balance of probabilities (clause 41) that
  • the respondent has engaged in personal violence in relation to a Commonwealth worker or individuals in a Commonwealth workplace
  •  there is a ‘real risk’ that the respondent will engage in further personal violence (in relation to the Commonwealth worker or workplace) if the WPO is not made
  • the WPO is ‘necessary or desirable’ to prevent the respondent from engaging in further personal violence.

There are also some overarching requirements, such as that a WPO cannot be made against a person who is under 14 years of aged (clause 32).

The requirements for a court to make an interim order (clause 14) or urgent interim order (clause 17) are similar, but reflect the circumstances of a more pressing application.

According to the Explanatory Memorandum, the term ‘necessary or desirable’ is intended to be sufficiently flexible to encompass circumstances that might justify a WPO, and reflects state and territory protection order legislation (p. 23, paragraph [53]).

A court must give reasons for a decision to make, vary or revoke a WPO (other than a consent order) as soon as practicable after making the decision (subclause 39(1)). In certain circumstances, the court must also explain the consequences of the order to the respondent (subclause 39(2)).

Content of a WPO

Subclause 24(1) sets out information that must be included in a WPO (such as the name of the respondent and the conditions). Importantly, paragraphs 24(1)(c)-(d) specify the WPO must include information on alternative procedures or arrangements where the WPO impacts on access to Commonwealth benefits or services or the capacity to engage in political communication.

Subclause 24(2) sets out that information identifying a person other than the respondent must not be included, except in certain circumstances. The Explanatory Memorandum explains that this is designed to protect the identity of Commonwealth workers (p. 31, paragraph [91]).

Clause 25 describes the scope of the conditions that may be contained in a WPO. A court may impose any conditions on the respondent that the court considers ‘necessary or desirable’ to:

• prevent the respondent from engaging in further personal violence (paragraph 25(1)(a)) and
• ensure the safety of a Commonwealth worker or of individuals present at a Commonwealth workplace (paragraph 25(1)(b)).

This could include conditions limiting the respondent’s ability to communicate with a Commonwealth worker or access a Commonwealth workplace (subclause 25(2)).

In considering what is ‘necessary and desirable’, the court must consider certain matters (subclause 25(3)), such as:

• any hardship that is likely to be caused to any person by the condition (paragraph 25(3)(b))
• whether the condition achieves the objects of the legislation while minimising restrictions on the rights and liberties of the respondent (paragraph 25(3)(h)).

Varying or revoking a WPO

The respondent or an authorised person may apply for a WPO to be varied or revoked under clause 26. There is a requirement for an authorised person to apply for the WPO to be revoked if the grounds on which it was made no longer exist (clause 27).

A court’s power to revoke or vary a WPO under clause 28 is subject to various conditions. In deciding whether to vary or revoke the order, the court must have regard to certain matters under subclause 28(4), which are similar to those that a court is required to consider when imposing a condition under a WPO (under subclause 25(3)).

Offence provision

It is an offence to contravene a condition of a WPO (clause 31). The maximum penalty is imprisonment for 2 years or 120 penalty units ($39,600), or both.

The maximum penalty is less than under the ACT legislation, which provides for a maximum penalty of 500 penalty units, imprisonment for 5 years or both where a person engages in conduct that contravenes the protection order (section 35).

The offence is subject to the extended geographical jurisdiction under section 15.3 of the Criminal Code (subclause 31(3)). The Explanatory Memorandum notes this recognises that Commonwealth workers face risks in workplaces overseas (for example, consular staff) and via phone or online (p. 35, paragraph [117]).

Balancing protections and rights

The Statement of Compatibility with Human Rights (contained in the Explanatory Memorandum) notes that the Bill engages, directly or indirectly, with a number of human rights (p. 8, paragraph [18]). The government states that the provisions of the Bill are intended to promote human rights to the extent that they strengthen the right to safe work conditions, while limiting rights and freedoms only where reasonable, necessary and proportionate. The provisions of the Bill engage with this at a number of points.

Access to benefits and services

At subparagraph 19(2)(b)(i) and paragraph 24(1)(c), if a condition proposed in an application for a WPO or a condition imposed by the WPO would prevent the respondent from accessing or obtaining Commonwealth benefits or services, the application or WPO must include information about how the respondent may continue to access or obtain the benefits or services, including alternative procedures or arrangements.

The Statement of Compatibility with Human Rights notes this might include information on the manner in which they can contact the Commonwealth service, or restrict the respondent to a particular method, such as via phone or attendance at an alternate location (p. 11, paragraph [42]).

Political communication

The High Court has recognised an implied freedom of political communication in the Constitution, which can only be limited by laws that are reasonably appropriate and adapted to serving a legitimate end in a manner in which is compatible with Australia's system of representative and responsible government. 

Where a condition imposed on the respondent by a WPO would prevent the respondent from contacting their electoral representative or otherwise engaging in political communication, both an application for a WPO and the WPO itself must specify alternative procedures or arrangements for how the respondent may do those things (subparagraph 19(2)(b)(ii) and paragraph 24(1)(d)).

Conditions

In considering whether a condition is ‘necessary and desirable’ under subclause 25(3), the court must consider certain matters that draw attention to the respective positions of the parties; for example, whether the condition achieves the Bill’s objects while minimising restrictions on the rights and liberties of the respondent (paragraph 25(3)(h)). Similarly, the court must have regard to the same matters when considering varying or revoking a WPO under subclause 28(4).

Concluding comments

If passed, the proposed legislation will provide an additional option to Commonwealth organisations to address and prevent violent and other unacceptable behaviours impacting workplaces. In this regard, the CPSU welcomed the Bill, stating:

The CPSU has been pleased to see this groundbreaking legislation introduced to prioritise worker safety as an integral part of public service delivery.

The task of balancing the protection of its employees at the workplace with ensuring that those entitled to benefits and services can access them is a potentially challenging one. While the Bill engages with this issue at various points, much will rest on how administrators and courts negotiate this in practice.