3.1
In undertaking this inquiry, the committee has reviewed existing practice in Australian and similar Westminster-style parliaments around the world. This has been a very useful exercise as there are many different approaches taken to codify workplace conduct. Some codes are aspirational and identify desired appropriate conduct, while others focus on identifying prohibited conduct that attracts sanctions. Others use a mix of both approaches. Likewise, there are differing approaches to reporting, investigating and imposing sanctions for breaches of codes. In addition, some codes are applicable to all parliamentarians, whilst others only bind ministers. Equally for staff, some parliaments have codes for all staff of parliamentarians, whilst some only have codes for ministers’ staff. In some parliaments, staff have strict codes of conduct but the parliamentarians or ministers they work for do not.
3.2
The committee acknowledges that each style of codifying workplace conduct is worthy of consideration in the process of developing new codes of conduct for the Commonwealth Parliamentary Workplaces (CPWs).
3.3
This chapter focuses primarily on codes of conduct (codes) for state and territory parliaments in addition to some international examples, specifically, New Zealand, the United Kingdom (UK), Canada and Scotland. The chapter will present a broad overview of other codes and their characteristics, before summarising the key elements of parliamentarian codes, staff codes and enforcement mechanisms across the jurisdictions. This chapter is not exhaustive and focuses on a select number of codes.
Broad overview of other codes
Workplace behaviour versus integrity
3.4
There is a broad assumption that the Australian Parliament is the only parliament in Australia that has no code of conduct for parliamentarians and their staff. However, the committee notes that simply having a code of conduct does not necessarily mean that workplace misconduct such as bullying, harassment or discrimination is addressed within that code. Many codes are solely focused on democracy and corruption issues such as conflicts of interest, post‑parliament employment and the need to respect differing views.
3.5
The discussion below of these differing approaches to codes of conduct has focussed on codes that specifically address workplace conduct, as this is the issue at the heart of the recommendations of the Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces, the foremost being code of conduct provisions related to bullying, harassment (including sexual harassment) and discrimination.
Provisions – aspirational or prohibitive
3.6
There are many different approaches taken to codify workplace conduct. Some codes are aspirational and identify desired appropriate conduct, while others focus on identifying prohibited conduct that attracts sanctions. Others use a mix of both approaches. Likewise, there are differing approaches to reporting, investigating and sanctions for breaches of codes.
Scope
3.7
Some parliaments have codes of conduct applicable to all parliamentarians, while some are only binding for ministers. Likewise for staff, some parliaments have codes of conduct for all parliamentarian staff, while some only have codes for ministers’ staff. In some parliaments, staff have strict codes of conduct but the parliamentarians or ministers they work for do not.
Parliamentarian codes
State and territory codes of conduct
3.8
There are no provisions related to bullying, harassment, or discrimination in codes of conduct for members of the parliaments of the Northern Territory, Western Australia, Victoria or South Australia. The South Australian Parliament conducted an inquiry into a code of conduct for parliamentarians which included such provisions, but to date this has not been enacted. However, there is a code for South Australian ministers which is described below.
3.9
While the Victorian Parliament lacks any bullying, harassment, or discrimination provisions regarding parliamentarians’ behaviour, notably the codes of conduct for their staff include lengthy behavioural provisions (see later section for staff below).
3.10
Appendix 6 provides a table comparing the various elements of codes of conduct used in various parliaments in Australia and internationally.
New South Wales (NSW)— parliamentarians
3.11
The NSW Members’ Code of Conduct contains a brief aspirational statement of behaviour and then specifically mentions bullying and harassment. As far as complying with existing laws, it only refers to sexual harassment laws:
10. Treatment of staff and others
A Member must treat their staff and each other and all those working for Parliament in the course of their parliamentary duties and activities with dignity, courtesy and respect, and free from any behaviour that amounts to bullying, harassment or sexual harassment.
Commentary
Section 22(b) of the Anti-Discrimination Act 1977 makes it unlawful for a member to sexually harass a workplace participant or another member in the workplace, or for a workplace participant to sexually harass a member.
3.12
There is also a Ministerial Code of Conduct, which addresses integrity issues, but does not address workplace behaviours.
Queensland— parliamentarians
3.13
The Queensland Code of Ethical Standards includes an aspirational provision regarding general standards of behaviour towards others, and refers to legal obligations that are further outlined in human resources policy documents. The code also refers members to where they can seek advice:
6. RESPECT FOR PERSONS
Members should treat members of the public, officers and employees of the Parliamentary Service and other public officials with courtesy, honesty and fairness, and with proper regard for their rights, obligations cultural differences, safety, health and welfare. Members should not use abusive, obscene or threatening language (either oral or written) or behaviour towards any officer, employee or member of the public.
6.1.1 Electorate office staff
The Parliamentary Service employs electorate office staff on the recommendation of Members. Parliamentary Service policies and procedures outline the requirements of employers/supervisors in regard to human resource issues, including employment discrimination, sexual harassment, workplace harassment and workplace health and safety.
The Clerk of the Parliament and Human Resource Services are available to assist Members with any questions regarding the application of relevant policies, guidelines and legislation in these areas.
Tasmania— parliamentarians and ministers
3.14
Tasmania has a combined code of conduct handbook for parliamentarians and their staff. While parliamentarians’ staff have provisions related to bullying, harassment and discrimination they must comply with (see staff section below), parliamentarians do not. The Code of Conduct for Ministers does include such provisions, but the wording is ambiguous and the guidance indicates the provision is aimed at the treatment of members of the public, not staff:
Respect for Persons
Ministers must not only act lawfully but also in a manner that withstands the closest public scrutiny.
Ministers are committed to ensuring and enabling for both women and men a safe, respectful and inclusive environment that is free from discrimination, harassment, sexual harassment and bullying, and that they are respected and valued and treated as equals in both public and private life.
Ministers are to value diversity and work respectfully with people of different cultures, ages, ethnicities, religions, abilities, and sexual orientations and identities.
South Australia—ministers
3.15
South Australia does not have a code of conduct for all members, relying only on the Ministerial Code of Conduct. This code prohibits sexual harassment and discrimination, and aligns those behaviours as being inconsistent with the dignity of the Parliament—but is silent on the dignity of the victims of sexual harassment or discrimination.
2.2 Responsibility for Conduct
Ministers must ensure that their personal conduct is consistent with the dignity, reputation and integrity of Parliament. Ministers must not engage in sexual harassment or in other forms of discriminatory behaviour (defined as discrimination based on one of the protected attributes in the Equal Opportunity Act 1984; that is, age, race, disability, sex, gender identity, sexual orientation, or caring responsibilities).
Australian Capital Territory (ACT)— parliamentarians
3.16
The ACT Code of Conduct is the only Australian code that explicitly discusses parliamentarians’ role as employers:
(17) In their capacity as an employer on behalf of the Territory under the Legislative Assembly (Members’ Staff) Act 1989:
(a) familiarise themselves and comply with the terms and conditions on which their personal staff are engaged and with all applicable policies and practices (including those related to occupational health and safety, discrimination, harassment and bullying, equal employment opportunity and use of information technology);
(b) not employ a family member as defined in that Act;
(c) take all reasonable steps to ensure that, as far as practicable, their personal staff are mindful of the Member’s commitment to this Code of Conduct, and assist the Member to comply with this Code of Conduct; and
(d) not seek to require or encourage their personal staff to engage in any conduct that may amount to a breach of any code of conduct applicable to those staff from time to time.
(18) In all their dealings with staff of the Assembly, staff of other Members and members of the ACT Public Sector:
(a) extend professional courtesy and respect;
(b) act consistently with accepted workplace conduct standards; and
(c) recognise the unique position of impartiality and the obligations of public sector officials, including members of the ACT Public Service.
International—New Zealand
3.17
The Speaker of the New Zealand Parliament has released a statement of behavioural expectations that was developed in consultation with all political parties, but the statement is not codified and is therefore not enforceable for members of Parliament. Conversely, there are enforceable bullying, harassment and discrimination provisions within a code of conduct for members’ staff (outlined later in this chapter). The statement Upholding the Mana of Pāremata Aotearoa, includes the following points:
Show that bullying and harassment, including sexual harassment, are unacceptable
Act respectfully and professionally
Foster an environment where people feel safe and valued
Encourage diverse perspectives, and the free and frank expressions of views
Behave fairly and genuinely, treating others the way we would like to be treated
Use our position of power or influence to help others, and avoid harm
Speak up if we observe unacceptable behaviour
International—United Kingdom (UK)
3.18
The UK approach is to have a single Behaviour Code that applies to everyone who works in or visits the UK Parliament. To explicitly ensure the Behaviour Code applies to members, it is embedded into a broader Code of Conduct for Members of Parliament and is supported by a detailed Guide to the Rules relating to the Conduct of Members. The Behaviour Code includes:
Whether you are a visitor or working in Parliament at Westminster or elsewhere, there are clear guidelines in place on how you should be treated, and how you should treat others:
Respect and value everyone – bullying, harassment and sexual misconduct are not tolerated
Recognise your power, influence or authority and don’t abuse them
Think about how your behaviour affects others and strive to understand their perspective
Act professionally towards others
Ensure Parliament meets the highest ethical standards of integrity, courtesy and mutual respect
Speak up about any unacceptable behaviour you see
International—Canada
3.19
The Members of the House of Commons Workplace Harassment and Violence Prevention Policy is a document that provides both comprehensive definitions of what constitutes harassment and violence, as well as outlines the complaints resolution process. The document does not include a simplified code of conduct that clearly outlines expected or prohibited behaviours.
3.20
Additionally, Canada has enacted a lengthy code of conduct to address sexual harassment between members, which includes a detailed and codified reporting and investigation process. The code is designed to:
(a) create an environment at the House of Commons that allows all Members to excel in their public duties and functions and that is free of sexual harassment;
(b) encourage reporting, by Members, of instances of sexual harassment;
(c) establish a resolution process that is complainant-driven and that the complainant can bring to an end at any point
International—Scotland
3.21
The Scottish Parliament uses a longer Code of Conduct for Members of the Scottish Parliament, which includes only minor inclusion of the following bullying, harassment and discrimination provisions:
Section 7: [Member of the Scottish Parliament] MSPs’ general conduct
5. Members must treat the following individuals with courtesy and respect:
parliamentary staff (including contractors providing services to the Parliament);
their own staff and the staff of other MSPs.
6. Members must not behave in a manner towards those individuals in 7.5 or any individuals they are in contact with in their capacity as MSPs that involves bullying, harassment (including sexual harassment) or any other inappropriate behaviour.
3.22
Conversely, the Scottish Parliament developed a code of conduct that was applicable to all devolved public bodies, such as boards for public health, education, and justice institutions. This code of conduct goes significantly further than the code of conduct Scottish parliamentarians set for themselves. Relevant bullying, harassment and discrimination provisions for public bodies include:
Respect and Courtesy
3.1 I will treat everyone with courtesy and respect. This includes in person, in writing, at meetings, when I am online and when I am using social media.
3.2 I will not discriminate unlawfully on the basis of race, age, sex, sexual orientation, gender reassignment, disability, religion or belief, marital status or pregnancy/maternity; I will advance equality of opportunity and seek to foster good relations between different people.
3.3 I will not engage in any conduct that could amount to bullying or harassment (which includes sexual harassment). I accept that such conduct is completely unacceptable and will be considered to be a breach of this Code.
3.4 I accept that disrespect, bullying and harassment can be:
(b)
part of a cumulative course of conduct; or
(c)
a pattern of behaviour.
3.5 I understand that how, and in what context, I exhibit certain behaviours can be as important as what I communicate, given that disrespect, bullying and harassment can be physical, verbal and non-verbal conduct.
3.6 I accept that it is my responsibility to understand what constitutes bullying and harassment and I will utilise resources, including the Standards Commission’s guidance and advice notes, my public body’s policies and training material (where appropriate) to ensure that my knowledge and understanding is up to date.
Enforcement approaches in other jurisdictions
State and territory enforcement
3.23
In Australian state or territory parliaments, breaches ‘of these codes of conduct are generally matters to be dealt with by the relevant parliamentary chamber under established procedures for dealing with matters of privilege’. The following sections outline enforcement provisions of relevant parliaments, where they exist.
ACT code of conduct
3.24
The ACT Legislative Assembly outlines the standards of behaviour and the process by which a complaint is made and handled in its code of conduct:
(19) Only make a complaint about the compliance of another Member with this Code of Conduct where they believe there are reasonable grounds to suspect non-compliance and not make any such complaint that is frivolous or vexatious or only for political advantage.
(20) Cooperate fully with any official inquiry that may be commenced in connection with their compliance with this Code of Conduct, or that of another Member.
(21) Within the first six months after an election for the Assembly, the Assembly shall reaffirm its commitment to the principles, obligations and aspirations of the code.
(22) Where a Member who had not voted on the most recent reaffirmation required under clause (21) is elected to the Assembly, that Member shall, before he or she makes an inaugural speech or otherwise participates in parliamentary processes, affirm that he or she will abide by the code.
(23) At the end of each Assembly the Code of Conduct shall be reviewed by a suitably qualified person, appointed by the Speaker, in consultation with the Standing Committee on Administration and Procedure.
ACT—Commissioner for Standards
3.25
The ACT Legislative Assembly has a Commissioner for Standards who is responsible for investigating complaints against parliamentarians:
A Commissioner for Standards is appointed by the Speaker, after consultation with the Chief Minister, the Leader of the Opposition and crossbench members, at the beginning of each Assembly. The Commissioner investigates complaints about breaches, by MLAs, of the Members’ Code of Conduct or the rules governing the registration or declaration of interests.
3.26
If matters are referred, the Commissioner may make recommendations to the Standing Committee on Administration and procedure who in turn makes recommendations to the Legislative Assembly for determination.
NSW
3.27
In NSW, any breaches and related sanctions are determined by investigation and resolution of the relevant House of Parliament.
South Australia, Tasmania and Victoria
3.28
In South Australia, Tasmania and Victoria breaches of the ministerial staff code of conduct are investigated by the Premier’s Office.
International enforcement
3.29
The below section outlines some examples of international enforcement mechanisms.
UK enforcement
3.30
The UK House of Commons established a Parliamentary Commissioner for Standards, who is responsible for investigating allegations of breaches of the certain rules of the universal code of conduct, as well as having oversight of investigations conducted under the Independent Complaints and Grievance Scheme. Where the Commissioner is unable to rectify bullying or harassment complaints using available sanctions, those cases can be referred to the Independent Expert Panel which is entirely independent of members of parliament.
Canada enforcement
3.31
Breaches of the Members of the House of Commons Workplace Harassment and Violence Prevention Policy are referred to the Chief Human Resources Officer who reports to the Board of Internal Economy, which is a committee of the Canadian Parliament that oversees parliamentary administrative and financial policies.
3.32
Breaches of the code of conduct regarding sexual harassment between members are referred to the Standing Committee on Procedure and House Affairs.
Scotland enforcement
3.33
Complaints in relation to a breach of the Code of Conduct for Members of the Scottish Parliament are investigated by the Commissioner for Ethical Standards in Public Life in Scotland.
Staff codes—parliamentarian and ministerial
3.34
As outlined earlier, there are many different approaches taken in developing codes of conduct for staff. Some parliaments have a code of conduct for all staff, and some only for ministerial staff. Again, having a code of conduct does not guarantee workplace conduct is included as many are focused only on issues such as confidentiality and conflicts of interest. The committee observes that there appear to be more bullying, harassment, or discrimination provisions specifically addressed at workplace behaviour in codes of conduct for staff than for parliamentarians in other jurisdictions.
NSW
3.35
Parliamentarians’ staff are bound by the NSW Members’ Staff Condition of Employment and the Code of Ethics and Conduct for NSW government sector employees, but neither code include any bullying, harassment and discrimination provisions.
Queensland—parliamentarians’ staff
3.36
The Public Service code of conduct and Parliamentary Service code of conduct applicable to all members staff have the same provisions for workplace conduct that are aspirational in style:
Demonstrate a high standard of workplace behaviour and personal conduct
We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.
We will:
- treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own
-ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
-ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
- ensure our private conduct maintains the integrity of the public service and our ability -to perform our duties, and
- comply with legislative and/or policy obligations to report employee criminal charges and convictions.
Queensland—ministerial staff
3.37
A separate code of conduct for ministerial staff identifies prohibited conduct as well as specific legal obligations. It is also one of the few codes that discuss cultural and race issues, albeit in an aspirational format rather than expressively prohibiting race discrimination:
Principle 1 – Acting honestly, fairly and in the public interest
… Required standards of conduct
-Ensure your conduct reflects our commitment to a workplace that is inclusive and free from harassment.
-Actively discourage any form of bullying, sexual harassment or unlawful discrimination. Refer to: Anti-Discrimination Act 1991, Human Rights Act 2019, Federal Human Rights legislation and the Discrimination, Bullying and Sexual Harassment in the Workplace policy.
-Avoid offensive, abusive and discriminatory language and behaviour.
-Treat all people with dignity, courtesy, honesty, fairness and respect at all times.
-Respect and be sensitive to an individual’s cultural and ethnic background.
Victoria—members’ staff
3.38
Parliamentary staff of the Victorian Parliament must abide by established Parliamentary Officers Values, followed by the ten-page Code of Conduct for Victorian Parliamentary Officers. The code of conduct includes a provision that staff must follow both ‘the spirit as well as the letter of the law’ and is one of the few codes that also mentions employment obligations of managers, referring staff to their legal obligations. It is notable that the Victorian codes of conduct for parliamentarians and ministers do not contain similar provisions.
Parliamentary Officers Values
(e) Respect – Parliamentary officers should demonstrate respect for Members of the Parliament, colleagues, other public officials and members of the Victorian community by –
(ii) ensuring freedom from discrimination, harassment and bullying
Parliamentary Officers Code of Conduct
6.2 Equity and diversity
Parliamentary officers follow the spirit as well as the letter of the law relating to discrimination, harassment, bullying and victimisation. Parliamentary officers create an environment that is free of discrimination, harassment and bullying.
Valuing and promoting diversity is an important element of demonstrating respect.
7.2 Managing staff
Managers and the relevant Department Head apply the parliamentary officer employment principles (Parliamentary Administration Act 2006, s. 6). They provide a safe, encouraging and supportive work environment that recognises and values diversity, abilities and contributions.
Victoria—ministerial staff
3.39
There is an additional Ministerial Staff: Misconduct Policy and Procedure which provides a definition of misconduct:
3. Which behaviour constitutes ‘misconduct’
3.1. The following are actions and conduct that may constitute misconduct or serious misconduct:
(i) sexual and other forms of harassment
…
(j) violence
(k) criminal offences
…
(o) being under the influence of alcohol or illegal substances
…
(s) conduct that causes serious and imminent risk to the health and safety of a person
(t) conduct that negatively impacts the reputation, integrity or working environment of the Government
Tasmania—parliamentarians’ staff
3.40
Conduct for Tasmanian parliamentary staff is included within the handbook for members. It contains only one relevant bullying, harassment and discrimination provision that appears directed at members of the public and is not explicitly linked to workplace conduct:
7.5 Conduct
MPS employees…are required to:
…
c. treat everyone with respect and without harassment, victimisation or discrimination
ACT—members’ staff
3.41
Similar to the Tasmanian approach above, the conduct required from ACT parliamentarian staff is aspirational and not linked to specific workplace conduct towards colleagues.
3. As part of their general obligations of employment, staff of Non-Executive Members are required to:
…
c) observe appropriate standards of behaviour at all times;
d) treat others with respect, courtesy and with proper regard for their human rights; and
e) support their employing member’s compliance with any code of conduct that applies to that member.
South Australia
3.42
There is no code of conduct for parliamentarians’ staff. The code of conduct for public servants also does not have any bullying, harassment and discrimination provisions, merely stating:
Public sector employees will not at any time act in a manner that a reasonable person would view as bringing them, the agency in which they work, the public sector, or Government into disrepute; or that is otherwise improper or disgraceful … Public sector employees will at all times treat other persons with respect and courtesy.
Northern Territory—members’ staff
3.43
Northern Territory parliamentarian staff are bound by the Code of Conduct for the Northern Territory Public Sector, which simply states they must:
… conduct themselves in a manner that demonstrates their commitment to an NTPS free from all forms of bullying, discrimination, sexual harassment and violence.
International—New Zealand
3.44
The Parliamentary Service Code of Conduct includes the following bullying, harassment and discrimination provisions:
avoid behaviour, including bullying and harassment (including sexual harassment) which might endanger or distress other employees or disrupt the workplace
not discriminate against, or harass, colleagues, customers or members of the public because of their gender, marital status, colour, race, ethical or national origins, employment status, disability, religious or ethical beliefs, age, family status, sexual orientation or political opinion.
3.45
As outlined earlier, there is no enforceable code of conduct for New Zealand parliamentarians themselves.