2.1
As noted in the previous chapter, the issues of misconduct, workplace bullying, harassment, sexual harassment and sexual assault in the Australian Parliament have been the subject of considerable public attention over recent years.
2.2
The increased focus on inappropriate behaviour in Parliament House has also drawn attention to the inadequacies of the current frameworks which are intended to regulate the conduct of those who work in Commonwealth Parliamentary Workplaces (CPWs)—including members of parliament and their staff, ministers and their staff and parliamentary support staff.
2.3
Proposals for a Commonwealth parliamentary code of conduct have been considered since 1975. However, the issues of concern today are not the same as those emphasised half a century ago. The focus of proposed codes of conduct has evolved from dealing with conflicts of interest, to broader ethical regimes, to the current explicit attention on bullying and harassment.
2.4
There are various codes which apply to ministers, ministerial staff and parliamentary support staff in other parliaments. For example, Australia’s state and territory parliaments have codes of conduct, as do a number of overseas parliaments, including the United Kingdom, Canada and New Zealand. However, under current arrangements, members of the Commonwealth Parliament are not subject to a code of conduct.
2.5
Since 2020, discussion around these issues has been informed by several major inquiries:
the Australian Human Rights Commission’s Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Respect@Work review);
the Department of the Prime Minister and Cabinet’s Review of the Parliamentary Workplace: Responding to Serious Incidents (Review of the Parliamentary Workplace 2021);
the Australian Human Rights Commission’s Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces, (Set the Standard report); and
the Department of the Prime Minister and Cabinet’s Review of the Members of Parliament (Staff) Act 1984 (Cth) (MoP(S) Act Review).
2.6
The following chapter provides a summary of these inquiries and reviews, including their findings and recommendations.
2.7
In addition to being the subject of much discussion and debate, the findings of these inquiries form the basis for the committee’s consideration of the issues it has been tasked with examining. They also underpin the committee’s work in relation to drafting three codes of conduct: one for all those who work in or visit CPWs, one for parliamentarians and another for the staff of parliamentarians.
Human Rights Commission—Respect@Work review (2018)
2.8
There was a growing debate in 2018 around bullying and sexual harassment in the workplace, and an increasing momentum for the #MeToo movement. At the same time, there was an increasing recognition of just how pervasive sexual harassment in the workplace is—both in Australian workplaces and in an international context.
2.9
Increased consideration of these issues also led to a collective acknowledgement of the enormous harm caused by sexual harassment in the workplace. In addition to the social, emotional and psychological harm caused by sexual harassment, there was an increasing recognition of the resulting financial harm and the cost to the economy, in terms of both lost productivity and staff turnover.
2.10
In June 2018, the Sex Discrimination Commissioner, Ms Kate Jenkins, and the then Minister for Women, the Hon. Kelly O’Dwyer MP, announced the National Inquiry into Sexual Harassment in Australian Workplaces. The Terms of Reference for the Australian Human Rights Commission’s (AHRC) inquiry included undertaking a review, reporting on workplace sexual harassment, and making recommendations in relation to:
its prevalence, nature and reporting in Australian workplaces;
its drivers, including risk factors for particular population groups or in different workplace settings;
the current legal framework;
existing measures to address it and examples of good practice; and
its impacts on individuals and businesses, including its economic impact.
2.11
The AHRC received 460 submissions. Submissions were provided by business groups, government departments and agencies, community groups and individuals (a number of whom had been impacted by sexual harassment). More than 600 individuals participated in 60 consultations in all capital cities and several regional locations. Three roundtables and numerous meetings were also held with stakeholders.
2.12
The Respect@Work review was tabled in the House of Representatives on 5 March 2022, and noted that:
Overwhelmingly, the Commission heard that the current system for addressing workplace sexual harassment in Australia is complex and confusing for victims and employers to understand and navigate. It also places a heavy burden on individuals to make a complaint.
Yet most people who experience sexual harassment never report it. They fear the impact that complaining will have on their reputation, career prospects and relationships within their community or industry.
2.13
The report found that other inequalities also play a pivotal role in driving sexual harassment, with some people experiencing intersecting forms of discrimination that can increase their risk of sexual harassment and make it harder for them to report it (for example, Aboriginal and Torres Strait Islander peoples, people with a disability, LGBTQI+ people and people of culturally and linguistically diverse backgrounds).
2.14
The AHRC also reported that evidence to the inquiry had pointed to the need to shift from a ‘reactive, complaints based approach’ to one ‘which requires positive actions from employers and is more focused on prevention’.
2.15
In presenting the report, the Sex Discrimination Commissioner stated that:
The current legal and regulatory system is simply no longer fit for purpose. In this report, I have recommended a new model that improves the coordination, consistency and clarity between the anti-discrimination, employment and work health and safety legislative schemes.
2.16
The AHRC’s new model: is based around seven domains, is victim-centred, practical, adaptable for business of all sizes and in all industries, and designed to minimise harm to workers. The AHRC argued the new model would support workplaces to better prevent and respond to sexual harassment.
2.17
In addition to the proposed new framework—which identified new ways for government, employers and the community to deal with the problem of sexual harassment—the suite of 55 recommendations also highlighted the importance of developing prevention strategies. The AHRC also stressed the need to improve the way all sectors respond to sexual harassment in the workplace, and emphasised the importance of strong leadership and the use of innovation to address these complex issues.
Government response
2.18
In April 2021, the Morrison Government responded to the Respect@Work Review by releasing A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces, which outlined a number of measures and reforms, including:
the creation of the Respect@Work implementation taskforce to deliver legislative and regulatory reform;
simplifying and strengthening the legal framework, existing rights and obligations for employees and employers; and
supporting greater coordination between agencies and services to ensure workers and employers have access to consistent information.
2.19
The Morrison Government’s response also placed an emphasis on preventative measures, acknowledging more can be done to prevent sexual harassment in the first place. To support preventative action at the national level, the Government also committed to:
delivering education and training programs across a range of sectors;
supporting targeted research and evidence development on prevention strategies; and
enhancing data collection and evidence gathering mechanisms.
2.20
The 55 recommendations contained in the Respect@Work Review were either agreed to (in full, in-principle, or in-part) or noted. To give effect to a number of these commitments, the Morrison Government proposed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. This legislation was passed into law in September 2021.
2.21
A Senate committee inquiring into the then Government’s bill noted at the time that:
In the 2021–22 Budget, the government provided more than $20.5 million to implement the Roadmap for Respect and respond to key recommendations of the report. This was in addition to the $2.1 million provided as part of the 2020 Women’s Economic Security Statement to fund the establishment of the Respect@Work Council and to implement eight other recommendations from the report.
2.22
Following its election in May 2022, the Albanese Government reiterated its commitment to implementing, in full, the recommendations contained in the Respect@Work review. The new Government also announced that the implementation of the recommendations would be a key part of its agenda.
2.23
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect at Work Bill) was introduced into the House of Representatives on 27 September 2022. The legislation was introduced as a means to place a positive duty on employers to, as far as possible, take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation. It would also give the AHRC new powers to enforce that positive duty and ensure that employers are meeting their obligations.
2.24
The AHRC noted, at the time, that the Respect at Work Bill represented the implementation of seven of the remaining legislative recommendations of the Respect@Work review, and suggested that:
The introduction of these reforms in the Sex Discrimination Act 1984 specifically focused on sex discrimination and sexual harassment provides an invaluable pilot for broader reforms that are needed across all areas of federal discrimination law.
2.25
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 was introduced into the House of Representatives on 27 October 2022. The bill introduced amendments to the Fair Work Act 2009. The amendments proposed include the prohibition of sexual harassment under Australian workplace relations laws. The intention of these amendments is to make it clear that sexual harassment is a serious workplace issue. They will also provide an additional pathway for affected workers to obtain quick and effective assistance from the Fair Work Commission.
Respect@Work Council
2.26
The Respect@Work Council was established in March 2021, in response to a key recommendation of the Respect@Work review. The Council is chaired by the Sex Discrimination Commissioner, Ms Kate Jenkins, and brings together leaders from key government regulators and policy makers responsible for sexual harassment policies and complaints to improve coordination, consistency and clarity across existing workplace, safety and human rights legal and regulatory frameworks. The Council has oversight of more than 20 of the Respect@Work review recommendations.
2.27
Since its establishment, the Council has held eight meetings: 19 March 2021, 2 May 2021, 16 July 2021, 17 September 2021, 19 November 2021, 18 February 2022, 1 July 2022 and 19 August 2022. The Council also held a forum in Sydney on 7 July 2022 to discuss progress and achievements to date and to discuss future priorities.
2.28
The Council provides advice and guidance to support the implementation of the recommendations, including those relating to:
data collection and research;
education and training resources;
guidance materials and resources; and
Review of the Parliamentary Workplace 2021
2.29
On 16 February 2021, then Prime Minister, the Hon. Scott Morrison MP, requested that Ms Stephanie Foster PSM, then Deputy Secretary of the Department of the Prime Minister and Cabinet, conduct a review of the parliamentary workplace. The request for the inquiry followed reports (made public on 15 February 2021) of an alleged sexual assault in a ministerial office in March 2019.
2.30
Ms Foster was tasked with conducting a review into the procedures and processes involved in identifying, reporting and responding to serious incidents that occur during parliamentary employment. The Prime Minister also asked that the review provide recommendations on how to ensure independence from the employer in such processes, empowerment to victims, and timely, effective and ongoing services and support.
2.31
Specifically, the following terms of reference were provided for the review:
(a)
the process and procedures involved in identifying and reporting a serious incident that occurs as part of parliamentary employment;
(b)
steps that can be taken to ensure the processes of reporting and responses to serious incidents are able to be made independent from the employer;
(c)
recommendations on how to ensure that all reporting and responses to serious incidents are driven by a principle of providing empowerment to the victims; and
(d)
recommendations on how to ensure that the services and support that are provided to the victims are timely, effective and ongoing.
2.32
Ms Foster’s review focused largely on the processes and procedures which relate specifically to parliamentarians and staff who are employed, and operate, under the Members of Parliament (Staff) Act 1984 (MoP(S) Act), in all parliamentary workplaces.
2.33
The Review of the Parliamentary Workplace: Responding to Serious Incidents (Review of the Parliamentary Workplace 2021) published its report in July 2021. In providing her report, Ms Foster pointed to the complicated nature of the parliamentary workplace, noting that:
While the review has, as requested, considered best practice in other sectors, this is a workplace like no other, with its unique industrial arrangements, its pace, intensity and complexity, and the fundamentally political nature of its business. The review acknowledges that this complexity will require a comprehensive and nuanced response over time, and the Jenkins’ Review will address longer term cultural and systemic issues.
2.34
Given the circumstances, the Review of the Parliamentary Workplace 2021 consciously focused its recommendations on things that could be done in the short term, to meet (in advance of Commissioner Jenkins’ report) the most immediate areas of need. The recommendations that came out of the review can be summarised as follows:
the current procedures and processes are not designed or able to respond appropriately to serious incidents in the parliamentary workplace, particularly to sexual assault;
the most significant gap is the absence of readily accessible, timely, independent, trauma-informed services and response mechanisms; and
immediate action needs to be taken to establish a trusted, independent complaints mechanism able to deliver proportionate consequences for misconduct, as well as tailored, face-to-face education and support for parliamentarians and their staff (in preventing, identifying and responding to serious incidents in the workplace).
2.35
These findings formed the basis for the ten recommendations contained in the Review of the Parliamentary Workplace 2021.
2.36
Recommendation 4 of the review, which refers to the need for an independent complaints mechanism, is of significance to the committee’s inquiry. The recommendation states that:
An independent complaints mechanism for serious incidents, including allegations of assault, sexual assault, sexual harassment, and serious and systemic bullying or harassment, should be established under the Parliamentary Service Act 1999 as a function of the Parliamentary Service Commissioner (PCS), with oversight by the Presiding Officers of the House of Representatives and the Senate. This will ensure independence from the Executive and the employer and enable proportionate consequences for complaints that are upheld, respecting the sovereignty of Parliament. It should include a Serious Incident Team (SIT) comprising a group of highly skilled case officers with a mixture of expertise in trauma-informed support and administrative law to:
receive reports of serious incidents or patterns of behaviour causing serious harm;
provide immediate and ongoing trauma-informed support, and advice on options;
triage according to the client’s needs and preferences, within a graduated system of escalation;
facilitate the resolution of issues at the local level;
appoint independent experts, to be engaged as required, to review reports of serious incidents and advise on appropriate responses; and
provide referrals to police (for criminal allegations), an independent reviewer (for serious but not criminal allegations), the Department of Finance (for administrative and less serious issues), or specialised support services, in accordance with the wishes of the complainant.
Parliamentary Workplace Support Service
2.37
Following the release of the Review of the Parliamentary Workplace 2021, the then Minister for Finance, Senator the Hon. Simon Birmingham, announced the establishment of the Parliamentary Workplace Support Service (PWSS), which included a new independent workplace complaints mechanism. Each chamber of Parliament later agreed to procedures relating to the mechanism.
2.38
A later Senate Procedural Bulletin said of the Senate resolution:
The resolution provides an avenue for the Privileges Committee to receive and consider reports from the [Parliamentary Service] commissioner finding that a senator has not cooperated with a review under the complaints mechanism or acted on its recommendations. The resolution explicitly provides that a senator who fails to comply with the committee’s recommendations may be found guilty of a serious contempt.
Human Rights Commission—Set the Standard review
2.39
On 5 March 2021, the Independent Review into Commonwealth Parliamentary Workplaces (Set the Standard review) was established by the Morrison Government, with support from both the Opposition and across the Parliament. In establishing the review, the Prime Minister announced that the inquiry would be led by the Sex Discrimination Commissioner, Ms Kate Jenkins.
2.40
As part of its inquiry, the Set the Standard review was tasked with making recommendations which would ensure that CPWs are safe and respectful and that the national Parliament reflects best practice in the prevention and handling of bullying, sexual harassment and sexual assault.
Objectives
2.41
The Set the Standard review was tasked with inquiring into systemic issues that either promote or impede safe and respectful workplaces, with the following objectives:
understand the experiences and expectations of current and former staff of Commonwealth parliamentarians, current and former Commonwealth parliamentarians, and staff working within the Parliament of Australia with respect to ensuring a safe and respectful workplace;
consider best practice in enabling safe and respectful parliamentary workplaces, including national and international approaches;
examine the adequacy, effectiveness, independence, resourcing, and awareness of current supports to enable a safe and respectful workplace, especially as they relate to preventing and responding to workplace bullying, sexual harassment and sexual assault;
consider drivers of workplace bullying, sexual harassment and sexual assault in these workplaces, current response and reporting mechanisms; and legislative, structural, cultural, or other barriers to reporting;
assess the extent to which current legislation, policies, processes and practices promote or impede safe and respectful workplaces, including the operation of the MoP(S) Act; and
set 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.
Findings
2.42
The final report of the Set the Standard review Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (Set the Standard report) was released on 30 November 2021, after receiving evidence from:
1723 individual contributions;
33 organisational contributions;
302 written submissions; and
Misconduct in Commonwealth Parliamentary Workplaces
2.43
The Set the Standard review received evidence that CPWs were frequently not safe places to work. The review received evidence of workplace bullying, sexual harassment and sexual assault, with many respondents arguing that misconduct in CPWs was ‘largely driven by power imbalances, gender inequity and exclusion and a lack of accountability’. It was noted that, of the 935 people who responded to the Set the Standard survey:
37 per cent had experienced bullying;
38 per cent had experienced sexual harassment; and
1 per cent had experienced sexual assault (either actual or attempted).
2.44
Survey respondents included both past and present CPW employees. There may be as many as several thousand people working in all CPWs in any given week.
Experiences of misconduct— respondents’ demographics
2.45
The Set the Standard report found that, in terms of those who indicated they had experienced misconduct in CPWs, there were several demographics which appeared to be more vulnerable.
2.46
Of those who responded to the survey, women, for example, were found to be more likely to have experienced bullying (42 per cent compared to 32 per cent of men); sexual harassment (40 per cent compared to 26 per cent of men); and actual (or attempted) sexual assault. Female parliamentarians were also more likely to have experienced sexual harassment (63 per cent compared to 24 per cent of male parliamentarians and 39 per cent of women nationally).
2.47
Those who identify as LGBTQI+ were found to be more likely to experience sexual harassment (53 per cent compared to 31 per cent of people who identified as heterosexual or 29 per cent of people who preferred not to say).
2.48
Staff employed under the MoP(S) Act were found to have experienced the highest rates of bullying and the highest rates of actual (or attempted) sexual assault. MoP(S) Act staff also experienced comparatively high levels of sexual harassment.
2.49
The Set the Standard report referenced multiple examples of discrimination experienced by First Nations people, people of colour, people with disability and LGBTQI+ people. These experiences included daily exclusion and micro-aggressions, bullying, role segregation and a lack of psychological safety. Participants shared that identifying as different from the norm in these workplaces is inherently unsafe.
2.50
The report also found that the under-representation in CPWs of First Nations people, people from culturally and linguistically diverse backgrounds, LGBTQI+ people and people with disability, as parliamentarians and in other roles across these workplaces, is linked to systemic inequality and lack of power. The lack of diverse representation creates a conducive context for bullying, sexual harassment and sexual assault and contributes to greater risk of workplace harm for under-represented groups.
The impacts of misconduct
2.51
The Set the Standard report noted that misconduct in CPWs has a high cost: for individuals, for workplaces and for the Parliament itself.
2.52
The report observed that when there is misconduct in any workplace, individuals experience the highest level of harm: both personally and professionally. Experiences of bullying and sexual harassment can negatively affect both the physical and mental health of individuals. They can also have an impact on careers and financial security, with individuals facing increased barriers to career advancement, being more likely to leave their role in an organisation, and experiencing repeated interruptions to their ability to earn an income.
2.53
The report also noted the significant opportunity costs associated with misconduct in the workplace. These include impacts on both the performance and the productivity of organisations. A report completed for the Respect@Work review estimated, for example, that in 2018, workplace sexual harassment cost the Australian economy $3.8 billion. In addition to lost productivity, this figure includes absenteeism, presenteeism, staff turnover and manager time. In 2010, the Productivity Commission estimated the cost to the Australian economy of bullying to be between $6 and $36 billion annually.
2.54
The damage to the standing of the Australian Parliament was also raised as a concern by the Set the Standard report. Noting that minimum workplace standards have been set by the Parliament—through laws such as the Sex Discrimination Act 1984, the Fair Work Act 2009, and the Work Health and Safety Act 2011—the report observed that:
These laws specify—for the community broadly and other Australian workplaces—the standard of conduct and how organisations and individuals should respond to incidents of misconduct when they happen.
Trust is lost in the institution of Parliament when CPWs do not meet the same minimum standards that are now expected of the rest of the Australian population—whether that be in their workplaces, community groups, sporting clubs or other contexts.
Overview of recommendations
2.55
One of the key outcomes of the Set the Standard report was the recommendation that Parliament implement a system of higher standards, reporting and accountability for CPWs. It was proposed that this system should have an ‘overarching goal’ to maintain the ‘reputation and authority of the Parliament, and support its effectiveness’ through:
clearly articulated workplace standards;
an effective mechanism for reporting and complaints; and
independent investigations and sanctioning of misconduct to ensure accountability.
2.56
As well as addressing the impacts of misconduct, it is anticipated that the introduction of processes to minimise misconduct in CPWs will:
assist in the attraction and retention of high performing staff in CPWs;
assist in the high performance of parliamentary workplaces;
increase the diversity of CPWs; and
lead to better democratic representation and decision-making outcomes.
Framework for Action
2.57
To take advantage of the momentum for change, the Set the Standard report presented a Framework for Action which, it was argued:
… sets out a clear path to ensure that CPWs are safe and respectful, uphold the standing of the Parliament, and are a worthy reflection of the community that they serve.
2.58
Based on specific risk factors, and underlying drivers, the Set the Standard report proposed five ‘key shifts’ to support the transition of CPWs to safer and more respectful work environments. These can be summarised as follows:
Outcome: Leaders prioritise a safe and respectful culture, set clear expectations and model safe and respectful behaviour.
Recommendations 1 to 4 include a statement of acknowledgement and the strengthening of individual leadership.
Principle 2: Diversity, equity and inclusion
Outcome: CPWs are diverse and inclusive and everyone experiences respectful behaviour as the baseline standard.
Recommendations 5 to 10 include measures to advance gender diversity in CPWs and promote everyday respect in the parliamentary chambers.
Outcome: People working in CPWs are clear about their roles and responsibilities and consistent and standardised systems, processes and advice exist to support performance.
Recommendations 11 to 19 include the establishment of new human resource functions to support parliamentarians in their employer responsibilities. They also include ‘best practice’ training for people working in CPWs.
Principle 4: Accountability
Outcome: Clear and consistent standards of behaviour are in place; it is safe to make a report; complaints are addressed; and people are held accountable, including through visible consequences for misconduct.
Recommendations 20 to 24 include recommendations for codes in CPWs and the establishment of a new, independent parliamentary standards commission to administer misconduct processes.
Principle 5: Safety and wellbeing
Outcome: People are physically and psychologically well and feel safe and supported in CPWs.
Recommendations 25 to 28 include the implementation of policies related to alcohol use in CPWs and the establishment of a new parliamentary health and wellbeing service.
Department of the Prime Minister and Cabinet— Review of the Members of Parliament (Staff) Act 1984
2.59
In July 2021, the Review of the Parliamentary Workplace 2021 noted that there was no clearly articulated standard of conduct; for parliamentarians who are not ministers, or staff employed under the MoP(S) Act who are not ministerial staff.
2.60
In November 2021, the Set the Standard report also noted that the MoP(S) Act employment framework, ‘in which parliamentarians and the Department of Finance both hold employer responsibilities on behalf of the Commonwealth, can sometimes lead to a lack of clarity’. It was argued, for example, that—in terms of taking action to prevent or address unsafe workplace practices—it is currently difficult to determine where the authority is situated. Jenkins noted that the current situation is seen by some ‘as a barrier to safe and respectful workplaces’.
2.61
Recommendation 18 of the Set the Standard report called for the Australian Government to ‘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’.
2.62
In February 2022, in response to the Set the Standard report recommendations, the then Prime Minister, the Hon. Scott Morrison MP, commissioned a review of the MoP(S) Act (MoP(S) Act review). The review, to be undertaken by the Department of the Prime Minister and Cabinet, was asked to:
… identify legislative, policy or other changes or initiatives necessary to ensure the employment arrangements of parliamentarians and their staff are fit for purpose to support a professional, high-performing, safe and respectful workplace for all parliamentarians and their staff; and prevent bullying, harassment, sexual harassment and sexual assault and address its impacts according to best practice.
2.63
The MoP(S) Act review received 47 written submissions and 388 survey responses. It also conducted more than 70 interviews and stakeholder engagements. Evidence was provided by current and former MoP(S) Act employees, parliamentarians, academics, unions, parliamentary departments, Government departments and agencies and state and international jurisdictions.
2.64
The scope of the MoP(S) Act review included:
the recruitment of MoP(S) Act staff, including the 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) Act staff; and
appropriate public reporting and accountability of the administration of the MoP(S) Act.
2.65
The MoP(S) Act review findings, which were released in October 2022, recommended amendments to the MoP(S) Act which were closely aligned to the implementation of other Set the Standard report recommendations. Specifically, several of the recommendations anticipated the establishment of an entity responsible for workplace policies nominally called the Office of Parliamentarian Staffing and Culture (OPSC). The Set the Standard report had recommended the establishment of the OPSC: to provide centralised human resources support and advice to parliamentarians and their staff, and to drive cultural change within the Parliament.
2.66
While the MoP(S) Act review concluded that the framework of the MoP(S) Act was broadly appropriate, it also found that:
the primary problems (and the identified gaps) largely relate to human resource capability within offices, the human resource advice and support available to parliamentarians and employees, and accountability mechanisms; and
the Act should be modernised by including an objects clause to reflect the purposes of the Act, and by amending provisions relating to superannuation and consultants to better reflect contemporary settings.
2.67
To address the identified gaps in the MoP(S) Act framework, the review made 15 recommendations, including recommendations in relation to:
Updating the Act to re-categorise MoP(S) employees in accordance with how they are grouped in practice (for example, personal staff of ministers and other parliamentarians, and electorate staff).
Adopting overarching employment principles in the Act (to articulate the desired organisational culture for MoP(S) Act employment, and the inclusion of parliamentarian and employee obligations.
A review of the factors affecting workloads (particularly in electorate offices). The review would include an examination of support systems and processes and external factors (such as the adequacy of government services and electorate composition).
A requirement for parliamentarians to recruit suitable candidates against position descriptions (to drive positive cultural change and greater professionalisation of the MoP(S) workplace).
An increased level of transparency and accountability.
2.68
The Government has indicated that it supports—in principle—all the recommendations made in the MoP(S) Act review. The Government has also signalled its intention to work with the Parliamentary Leadership Taskforce (PLT) and across the Parliament, to ensure that both the MoP(S) Act employment framework, and the workplace reflects the high standards expected by staff of CPWs and the Australian community.
Implementation of the Set the Standard report recommendations
Parliamentary Leadership Taskforce
2.69
Consistent with Recommendation 2 of the Set the Standard report, the Parliamentary Leadership Taskforce (PLT)—a cross-party steering group—was established to oversee the implementation of Jenkins’ recommendations in a coordinated and non-partisan way. In addition to embedding institutional leadership, the PLT has been tasked with reviewing progress against the Set the Standard report’s recommended timeframes and directing priorities for implementation.
2.70
The Independent Expert Chair, Ms Kerri Hartland, and the PLT are supported by a secretariat. The secretariat is, in turn, supported by an Implementation Group which collaborates, coordinates, monitors and assists with the implementation of recommendations. The Group also consults with relevant experts and individuals as required.
Membership of the Parliamentary Leadership Taskforce
2.71
In the 47th Parliament, the membership of the PLT is:
Ms Kerri Hartland, Independent Chair
Ms Sharon Claydon MP, Deputy Speaker and Chair, JSC on Parliamentary Standards
Senator Perin Davey, Deputy Leader of the National Party, Shadow Minister for Water, Shadow Minister for Emergency Management
Senator the Hon. Don Farrell, Special Minister of State, Minister for Trade and Tourism
Senator the Hon. Katy Gallagher, Minister for Finance, Minister for Women and Minister for the Public Service
Senator the Hon. Jane Hume, Shadow Minister for the Public Service, Shadow Minister for Finance and Shadow Special Minister of State
The Hon Sussan Ley MP, Deputy Leader of the Opposition, Shadow Minister for Women, Shadow Minister for Industry Skills and Training and Shadow Minister for Small and Family Business
Ms Zali Steggall MP, member for Warringah
Senator Larissa Waters, Leader of the Australian Greens in the Senate
2.72
The PLT meets regularly, and the Chair provides statements following each Taskforce meeting which are published on-line. A progress report against each of the 28 Recommendations is also made available following meetings and a refreshed version of an ‘Implementation Tracker’ is made available on-line.
2.73
To date, a number of the Set the Standard report’s recommendations have been completed, or are well progressed, including:
A Statement of Acknowledgement to Parliament—which was delivered on 8 February 2022.
The Parliamentary Leadership Taskforce and the Implementation Group were established in February 2022.
The Joint Select Committee on Parliamentary Standards was first established in the 46th Parliament on 14 February 2022 and re-appointed in the 47th parliament on 26 July 2022.
The Parliamentary Workplace Reform (Set the Standard Measures No. 1) Bill passed on 15 February 2022—the purpose of the bill is to provide additional protections to the staff of parliamentarians.
The Department of Parliamentary Services (DPS) was funded in the 2022–23 Budget to undertake a feasibility study of the Parliamentary Health and Wellbeing Service.
2.74
The PWSS has also been expanded, with support services now available to all CPW participants. The PWSS independent workplace review and resolution mechanism—which is available to current and former parliamentarians and MoP(S) Act employees—is now able to review all complaints of bullying, assault, sexual assault, harassment, sexual harassment, and unreasonable workplace conduct that amounts to a risk to work health and safety.
2.75
A digital platform has been established to receive anonymous complaints, and additional information is available about the handling of anonymous and bystander reports. The platform includes a mechanism whereby a reporter can choose to use a pseudonym and is given the option to provide contact details (if they would like follow-up support from a PWSS case coordinator).
2.76
The Set the Standard report also recommended a comprehensive review of the MoP(S) Act. As noted earlier in this chapter, the findings of this Review were published in October 2022.
2.77
Early priorities identified by the PLT included a new induction package for incoming parliamentarians and their staff following the 2022 election and the establishment of the Office of Parliamentarian Staffing and Culture (OPSC).
Induction Package
2.78
As part of a proposal to expand knowledge, build skills, and support an increased understanding of workplace requirements and responsibilities (particularly for those new to a CPW), an increased level of training is being provided. A recent progress report from the PLT noted that:
An Induction Guide is available on the Ministerial and Parliamentary Services website.
A refreshed induction program for new parliamentarians – focused on employment policies and laws, including the Fair Work Act 2009, WHS obligations, diversity and inclusion, office structure and staffing – has been developed. (Existing parliamentarians will be able to opt into a refresher style program).
A new induction program for MoP(S) Act employees – focused on understanding workplace behaviours and responsibilities, employment arrangements, the WHS Act, and available workplace support options – has been developed and is available.
‘Safe and Respectful Workplace’ training is continuing for new parliamentarians and their staff, and a refresher is being developed for returning parliamentarians and staff.
Comcare’s ‘Due Diligence’ training – which provides information about roles and responsibilities in relation to WHS laws and the WHS Act – is available for parliamentarians.
Office of Parliamentarian Staffing and Culture
2.79
At its meeting on 12 September 2022, the PLT discussed a proposal for consultation with MoP(S) Act employees regarding the design and framework of the OPSC. It was noted that, once established, the OPSC will provide a centralised people and culture function for parliamentarians and MoP(S) Act employees. The Taskforce noted that ‘consultation with staff is essential to ensure that the proposed OPSC will effectively service their needs and encourage consideration of the best possible approach to support staff’.
2.80
Consultation sessions with current MoP(S) Act staff, conducted by the Department of the Prime Minister and Cabinet, were held during September 2022. The hour-long, small group sessions were held on a party basis for both parliamentary and electorate office staff.
2.81
The feedback provided by staff on the establishment of the OPSC, suggested that any new human resources support function must:
have strong leadership; and
include clear accountability mechanisms which involve staff.
Set the Standard report—proposal for codes of conduct
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Underpinning the committee’s inquiry has been the Set the Standard report, particularly its recommendations for establishing clear and consistent standards of conduct in CPWs. A central focus of the committee’s inquiry has been the Set the Standard report’s recommendation for the development of codes of conduct, which sit within an appropriate administrative framework.
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Before providing a more detailed outline of Jenkins’ recommended codes of conduct, it is important to acknowledge the existing Commonwealth laws which prohibit bullying, harassment and sexual assault in all Australian workplaces – including CPWs. These laws, which operate alongside a range of state and territory legal frameworks, also provide external mechanisms for dealing with breaches.
Existing legislative and regulatory framework
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The following section provides a brief overview of the Commonwealth’s legal framework. This framework governs workplace conduct, particularly in relation to parliamentary workplaces.
Sex Discrimination Act 1984—this Act was amended by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021. This amendment was made to clarify that the Sex Discrimination Act 1984 extends to parliamentarians and people employed or engaged under the MoP(S) Act.
Age Discrimination Act 2004—the Parliamentary Workplace Reform (Set the Standard Measures No. 1) Act 2022 (Workplace Reform Act) amended the Age Discrimination Act 2004 to clarify that the Act applies to MoP(S) Act employees. Unlike the Sex Discrimination Act 1984, parliamentarians are excluded in the definition of a ‘Commonwealth employee’.
Disability Discrimination Act 1992—as with the Age Discrimination Act, the Disability Discrimination Act 1992 was also amended by the Parliamentary Workplace Reform (Set the Standard Measures No. 1) Act 2022 to confirm its application to MoP(S) Act employees.
Racial Discrimination Act 1975—the Set the Standard report noted that the Racial Discrimination Act 1975 ‘includes a broad prohibition of racial discrimination in public life and it does not include a definition of Commonwealth employee’.
Fair Work Act 2009—the Set the Standard report noted that those employed under the MoP(S) Act, Australian Parliamentary Service and Public Service Acts, contractors, trainees, interns and volunteers working in a parliamentary workplace can apply for an order to stop bullying or sexual harassment through the Fair Work Commission’s anti-bullying and anti-sexual harassment jurisdiction.
Work Health and Safety Act 2011—the Parliamentary Workplace Reform (Set the Standard Measures No. 1) Act 2022 (Workplace Reform Act) amended the Work Health and Safety Act 2011 (WHS Act) to clarify that parliamentarians owe duties under the WHS Act.
Codes of conduct
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The implementation of consistent codes of conduct is at the centre of the Set the Standard report’s proposed system of standards, reporting and accountability for CPWs. As previously noted, the Set the Standard report recommended that, to establish clear and consistent standards of conduct the Parliament should establish a parliamentary committee to oversee standards and accountability, and draft:
a code for parliamentarians;
a code for parliamentarians’ staff; and
standards of conduct for parliamentary precincts.
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The Set the Standard report recommended that the codes for parliamentarians and parliamentary precincts should be implemented within 12 months, and be incorporated in the Standing Orders of both chambers of Parliament. It was recommended that the code for parliamentarians’ staff be incorporated in the MoP(S) Act, also within 12 months.
Rationale for a code
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Jenkins intended that the proposed codes for CPWs would ‘address gaps’ which review participants highlighted as ‘major concerns’. These included:
a lack of clear and consistent standards—for parliamentarians and their staff; and
a lack of confidence in reporting and accountability—which create barriers to disclosing misconduct in CPWs due to:
a lack of clarity in relation to the process for making a disclosure;
a lack of confidence that a disclosure would be handled appropriately; and
a lack of confidence that the disclosure would result in any potential consequences.
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The Set the Standard report argued that it was best practice to set clear workplace standards in parliaments and in other workplaces by implementing policies or codes. It was also argued that a lack of clear standards ‘lays the groundwork for misconduct’.
Inconsistent use of codes
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The Set the Standard report described the use of codes in CPWs as inconsistent. In summary, it was noted that:
parliamentarians are not regulated by a code in the exercise of their duties and functions (including in their role as employers);
the MoP(S) Act does not mandate employment and behavioural principles or accountability mechanisms and MoP(S) Act employees do not operate under a code, departmental structure or legislated employment values;
departmental and parliamentary staff are subject to legislated codes which establish workplace behavioural and conduct obligations; and
other CPW users—for example, journalists and contractors—may be subject to codes, or other behavioural standards, depending on the provisions of their employment agreements.
Proposed content of codes
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The Set the Standard report made several proposals related to the content of the codes for CPWs, based on the cultural issues identified as affecting CPWs, however the review also noted that the ‘detailed content’ of the codes was principally a matter for the parliamentary committee to consider.
Codes for parliamentarians and parliamentarians’ staff
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The Set the Standard report proposed the following minimum core elements be included in the codes for both parliamentarians and parliamentarians’ staff:
legal requirements—including workplace law obligations which prohibit discrimination, bullying, sexual harassment and sexual assault;
factors to establish a safe and respectful workplace—including obligations to treat people with respect, to act professionally and to value diversity; and
compliance obligations—including obligations to comply with the parliamentary precincts code and workplace policies established by the proposed Office of Parliamentarian Staff and Culture (OPSC).
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It was also proposed that the codes include provisions to support the efficacy of the codes’ implementation and operation, including:
training and professional development;
responsibilities for witnesses to report incidents;
a duty to comply with investigations and sanctions;
a duty to maintain confidentiality of complaints;
determining that vexatious or bad faith complaints are a breach of the code; and
determining that attempts to intimidate or victimise those who make a report, complainants or investigating staff is a serious breach of the code.
Alcohol use
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The Set the Standard report addressed the linkage between alcohol use and misconduct in CPWs. Recommendation 28 in the Review referred specifically to alcohol policies and stated that the Implementation Group should:
(a)
develop and implement consistent and comprehensive alcohol policies across Commonwealth parliamentary workplaces with a view to restricting availability in line with work health and safety obligations, and the principle of harm minimisation
(b)
support implementation of these policies through measures including:
(i)
incorporating clear expectations and standards around the use of alcohol within respective Codes of Conduct for parliamentarians and Member of Parliament (Staff) Act employees
(ii)
provision of support and a proactive focus on wellbeing and safety
(iii)
provision of education, training and awareness raising opportunities
(iv)
provision and encouragement of opportunities for networking; and engagement that do not involve alcohol.
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The Set the Standard report acknowledged that one of the dominant themes identified during its inquiry, and raised repeatedly by participants, was the pervasiveness of alcohol and a culture of drinking in some CPWs. In considering the linkage between alcohol use and misconduct in CPWs, the Set the Standard report proposed that alcohol use policies for CPWs be supported by provisions in the codes of conduct that set clear expectations on alcohol use in work environments.
Standards for parliamentary precincts
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The standards of conduct for parliamentary precincts are recommended to include provisions for common standards that outline the shared legal and other obligations of all CPW users, with a view to making the parliamentary precincts safe and respectful. This includes parliamentarians, staff, contractors, interns and volunteers, members of the Parliamentary Press Gallery and precinct visitors.
Code administration
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A new ‘people and employment model’ was proposed to improve standards, reporting and accountability in CPWs. The model included provisions for entities which would, in varying capacities, support and administer the codes of conduct. This would include mechanisms for disclosure, enforcement and sanctioning of misconduct. The new entities proposed by Jenkins in this model included:
an Independent Parliamentary Standards Commission (IPSC);
an Office of Parliamentarian Staffing and Culture (OPSC); and
a consultative parliamentary body.
Independent Parliamentary Standards Commission (IPSC)
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Recommendation 22 of the Set the Standard report proposed the establishment of the IPSC within 12 months to ensure that there are independent and consistent responses to reports of misconduct in CPWs and to operate a fair, independent and confidential system for receiving disclosures of code breaches.
Key functions
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The key functions of the proposed IPSC would include:
the operation of the Parliamentary Workplace Support Service (PWSS): including its advisory and support services that apply to misconduct under the codes;
administering a misconduct disclosure mechanism to handle informal and formal complaints and appeals about misconduct;
making findings about misconduct and making recommendations for sanctions (for instances of alleged misconduct under each of the proposed codes); and
applying sanctions where there has been a breach of the code of conduct for parliamentarians and where such sanctions do not interfere with the functions of the Parliament.
Delegated powers
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It was recommended by the Set the Standard report that the IPSC be empowered to investigate breaches of the codes, and apply or recommend sanctions, using powers delegated to the IPSC by the Parliament. It was also proposed that:
evidence gathered by the IPSC in its investigations into alleged code breaches be covered by parliamentary immunities; and
autonomy be given to the IPSC so it is not subject to direction from the Parliament and would have discretion to ensure any sanctions are proportionate.
Appointment of the Commissioner
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It was proposed that the Independent Parliamentary Standards Commissioner be appointed for a non-renewable, five-year term (on the recommendation of the Joint Standing Committee on Parliamentary Standards) and that the committee’s appointment process be transparent, advertised and merit-based with consideration given to legal qualifications and experience.
Office of Parliamentarian Staffing and Culture
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Recommendation 11 of the Set the Standard report proposed the establishment of an independent and non-partisan entity, similarly structured to the Parliamentary Budget Office (PBO). The entity—nominally referred to as the OPSC—would support parliamentarians and work to professionalise the workforce. It would be accountable to the Parliament, and exist in an authorising environment which enables the enforcement of standards through the proposed ISPC. It was argued that improvements to CPWs would be supported by a combination of standardised policies, processes and programs (in relation to recruitment) induction; performance management; professional development and career pathways. It would also deliver best practice, mandatory respectful workplace behaviour training and people management training.
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A key focus of the new entity would also be to centralise human resources support for parliamentarians and MoP(S) Act employees. This would include the policy development and training functions that support the implementation of the proposed codes.
Consultative parliamentary body
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The Set the Standard report also proposed the establishment of a consultative parliamentary body to provide guidance to, and make requests of, the new entity, as well as to make recommendations to the Presiding Officers (on the advice of the new entity).
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It was envisaged that the consultative body would be representative of the Parliament, and include membership from each political party, as well as proportionate representation from independent members of the Parliament. It would also make provision for the appointment of ‘lay members’ (people from outside the Parliament who are able to provide subject matter expertise to the body in areas such as staffing, organisational behaviour and sexual harassment.
Separation of human resources and complaints functions
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The model proposed by the Set the Standard report for the OPSC specified that it would have no role in investigating complaints of misconduct, and argued that it was critical to ensure that there is a structural separation of human resources functions administered by the OPSC, and the complaints handling processes administered by the IPSC.
Referral powers
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It was also recommended that the OPSC have the legislative power to refer code of conduct related matters to the IPSC for consideration in instances where those matters cannot be resolved by the OPSC. It was further proposed that, as a priority, the OPSC develop clear criteria for the circumstances in which a referral to the IPSC will be made in relation to a potential code breach.
Parliamentary oversight
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As noted previously, the Set the Standard report recommended the establishment of a Joint Standing Committee for Parliamentary Standards. It was proposed that this committee take responsibility for drafting codes of conduct for CPWs, parliamentarians and parliamentarians’ staff. It was also recommended that this committee remain in place to provide an oversight function and oversee both the standards and accountability framework, by:
overseeing the proposed IPSC and the PWSS, including its budget;
making decisions regarding appointments to the IPSC; and
overseeing the operations of the IPSC (by reviewing twice-yearly reports provided by the IPSC).
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The recommended structures proposed by the Set the Standard report are illustrated in the following diagram.
Set the Standard report—code enforcement
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The Set the Standard report made several proposals regarding the enforcement of standards of conduct under the codes, including in relation to disclosure, investigation and application of sanctions.
IPSC—disclosure pathways
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It was proposed that alleged breaches of the codes would be managed by the IPSC, in accordance with three disclosure pathways:
disclosure, advice and support—initial contact and disclosure could be made anonymously (including through a digital platform), the IPSC could track multiple reports against the same individual, and disclosure would inform human resources and workplace safety functions administered by the OPSC;
informal complaint—the IPSC would have the ability to facilitate a flexible outcome that addresses the complainant’s need, the respondent’s conduct, and systematic workplace outcomes; and
formal complaint, investigation and enforcement—the IPSC would have the power to decide whether to investigate or dismiss a complaint. The IPSC would also be able to:
investigate and make findings of misconduct;
(in the case of an employee) recommend sanctions to the employer;
(in the case of a parliamentarian) apply low-level sanctions or recommend more serious sanctions; and
provide a pathway for a sanction to be appealed to a panel of Commissioners.
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It was proposed that the IPSC would accept disclosures of alleged misconduct in relation to each of the proposed codes.
Historical complaints
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It was proposed that the IPSC would receive and investigate complaints from former members of the parliamentary community who have experienced bullying, sexual harassment and sexual assault in the past. A range of remedies would be available to complainants, including financial compensation, an apology or an acknowledgement of harm from their workplace. The IPSC may also apply sanctions where appropriate.
Criminal conduct
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It was proposed that the IPSC should be able to receive and investigate all reports of misconduct, including conduct that is potentially criminal in nature.
Conduct in the chambers
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It was proposed that, to protect political debate, allegations of misconduct on the floor of either chamber should be referred to the relevant Presiding Officer in the first instance, who may choose to make a referral to the IPSC.
Investigation protocols
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The Set the Standard report recommended that investigations (of alleged breaches of a code) undertaken by the IPSC be:
conducted with an awareness of power imbalances.
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When a complaint is received by the IPSC, which alleges that a parliamentarian has breached the code, the IPSC’s investigation process would be as follows:
a single commissioner handles the complaint—including to: make a decision about whether to investigate the complaint, potentially negotiate an outcome between the affected parties, and dismiss the complaint if found to be frivolous; and
a panel makes a decision—if an investigation has occurred, a small panel of Commissioners considers the investigation report and determines whether to: dismiss the complaint if not substantiated, uphold the complaint, apply a low-level sanction, or make a recommendation to the Parliament in relation to the application of a more serious sanction.
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The Set the Standard report indicated that the IPSC would generally conduct an investigation with the consent of the complainant. However, it was also recommended that the IPSC should have the power to commence an own-motion investigation where there is no complainant.
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Under the Jenkins model, complaints alleging that a parliamentarian’s staff member has breached the code would be investigated and potentially sanctioned, by a single IPSC Commissioner. It is also proposed that parliamentarians would be obligated to act on the recommendations of the IPSC in relation to staff misconduct matters.
Sanctions
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The Set the Standard report considered that establishing clear and proportionate consequences for behavioural misconduct is best practice. It was argued that it drives cultural change, provides a degree of deterrence and builds confidence in the complaints process. The Review emphasised that sanctions would demonstrate to the public that parliamentarians and their staff are responsible for their conduct. It was also argued that codes implemented without sanctions would highlight a perceived lack of accountability for misconduct and would likely diminish the reputation of the Parliament.
Sanctions for parliamentarians
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The Set the Standard report outlined proposed sanctions (for parliamentarians who have been found in breach of the code of conduct) as follows:
less serious sanctions – which may be applied directly by the IPSC, and which do not interfere with a parliamentarian’s duties, could include:
undertaking training, or entering into a behavioural agreement;
making a written apology to the complainant or the relevant chamber; or
being subject to a withdrawal of services and facilities and/or other personal restrictions
more serious sanctions – which the IPSC may recommend to the relevant chamber (to consider imposing on a parliamentarian) could include:
withdrawal of services and facilities and/or other personal restrictions that affect the core functions of a parliamentarian;
dismissal from a parliamentary committee;
withholding salary or allowances;
withholding budget for staff positions;
withholding of communication budget to the same value as any grievance payment made to a complainant; and
Sanctions for parliamentarians’ staff
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It is proposed that the IPSC would be empowered to make findings about whether there has been a breach of a code of conduct and make recommendations for actions and sanctions to the employer (the employing parliamentarian). Sanctions may include:
a requirement for an apology;
entering into a behavioural agreement;
limitations on the use of certain services and facilities; or
termination of employment (in serious cases).
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Under the Set the Standard report’s proposed code provisions, parliamentarians would be obligated to act on allegations of misconduct made in relation to their staff, and to implement recommendations by the IPSC in relation to staff misconduct.
Appeals pathway
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The Set the Standard report proposed that the IPSC would provide for a person (alleged to have breached a code of conduct) to have access to a mechanism for appealing a decision made by the IPSC (in relation to that matter).
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An application for an appeal would be considered by an alternatively constituted panel of Commissioners. The grounds for an appeal may include:
a flaw or flaws in the investigation or process followed by the initial decision-making panel;
a sanction that was imposed is considered to be unreasonable or disproportionate;
new and credible evidence has become available; or
other compelling circumstances.
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The following chapter provides an overview of the committee’s examination of codes of conduct developed and used in other Parliaments. This includes the codes of conduct in use in state and territory parliaments and in comparable overseas parliaments. In addition to providing a summary of the key features of these codes, it provides an overview of their legislative and regulatory context, including their investigative regimes, appeals processes and the sanctions contained in the codes.