4.1
This chapter explores the evidence presented to the inquiry by a wide range of stakeholders as to what elements proposed standards or codes of conduct for the Australian Parliament should include. This chapter will discuss:
goals and purposes of codes of conduct;
coverage of codes—what workplaces and work will be covered;
the provisions of codes—what standards should be set;
the intersection with parliamentary privilege; and,
how codes should be enacted.
4.2
In analysing the evidence to this inquiry, it is important to note that codes of conduct can encompass a wide range of behaviours, expectations and standards to meet the needs of the particular industry, profession or workplace. The focus of the Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (Set the Standard report) and this inquiry is to:
… ensure that Commonwealth parliamentary workplaces (CPWs) are safe and respectful and that the nation’s Parliament reflects best practice in the prevention and handling of bullying, sexual harassment and sexual assault.
4.3
For these reasons, the following chapter refers to codes of conduct when referring in general to such codes and uses the terms Behaviour Codes and Behaviour Standards when discussing the proposals for the Australian Parliament.
Goals and purposes of codes
4.4
Codes of conduct generally have three purposes in relation to workplace behaviour. Firstly, they articulate the standards of interpersonal conduct and integrity expected in a particular workplace. They can also express the goals for positive behaviours such as valuing diversity and inclusion.
4.5
Secondly, codes of conduct capture existing legal obligations, rights and responsibilities under anti-discrimination and workplace safety laws. Codes often simplify the language of these legal obligations so they are more easily understood by everyone in the workplace. This purpose is outlined in the Set the Standard report, which argues that setting standards of conduct helps ‘workplaces to meet existing legal obligations under work health and safety and anti-discrimination laws.’
4.6
The final key purpose of a code of conduct is to provide a firm basis for internal human resources functions, by enabling them to take action to ensure the first two purposes are being met in the workplace. A clearly articulated code of conduct means the employing entity can more easily take action—though a range of informal and formal mechanisms—without having to use external mechanisms such as courts to enforce compliance with existing laws, which can be counterproductive to the goal of achieving a safe and respectful workplace.
4.7
The Department of Employment and Workplace Relations submitted:
Codes of conduct can inform people in the workplace of their obligations under workplace and work health and safety laws in a clear and accessible format. Codes of conduct can also include other matters that go beyond statutory requirements to outline best practice approaches and standards of behaviour to establish safe and respectful workplaces.
4.8
As Ms Kate Jenkins, Sex Discrimination Commissioner pointed out to the committee:
The purpose of the code itself is that it's almost an education and a bringing-together of the expectations to make sure there are clear standards and to empower people who want to object to have the ability or basis on which to object.
4.9
As such, one of the key recommendations of the Set the Standard report was to establish clear standards of behaviour for parliamentary workplaces through proposed behaviour standards and codes:
The lack of clear standards leads to confusion about expected behaviour and also contributes to the normalisation of misconduct. The Commission heard about a culture of misconduct being normalised and of people being unwilling to intervene or speak out. Some participants described a culture in which individuals responsible for misconduct are an ‘open secret’ that ‘everyone knows’ about, but nobody does anything to address.
4.10
Another recommendation of the Set the Standard report was to support the effectiveness of the proposed codes with robust reporting mechanisms:
Some people described feeling that the only options were to tolerate the misconduct or leave, rather than expecting that the misconduct could be addressed. Many also described the negative personal and career consequences that they experienced as a result of making a complaint.
4.11
Finally, to ensure that standards setting and appropriate reporting were able to achieve change, the Set the Standard report recommended a range of sanctions where an investigation found breaches of those standards:
Establishing clear and proportionate consequences for behavioural misconduct is clearly established best practice.
…
Accountability through sanctions demonstrates to the public that parliamentarians and their staff are responsible for their conduct. Breaches of a relevant Code of Conduct without the accountability of sanctions may simply serve to highlight misconduct and also highlight the lack of corresponding accountability.
Three codes to cover parliamentary work and workplaces
4.12
The Set the Standard report recommended three codes be developed: one each for Parliamentarians and their staff, and another for ‘all activity within the parliamentary precincts’, because ‘[a]ccounts of misconduct shared with the Commission was not limited to political offices’.
Table 4.1: Elements for inclusion in behaviour codes and standards
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Legal requirements: an obligation to comply with all applicable workplace laws—including laws that prohibit bullying, sexual harassment, sexual assault, workplace discrimination, and victimisation
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Legal requirements: the need to comply with laws that prohibit bullying, sexual harassment, sexual assault and workplace discrimination
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Other matters that help to establish safe and respectful workplaces, such as:
general obligations to treat people with respect and to act professionally
the influence of power and authority
the valuing of diversity and that harassment of a person in the workplace on the basis of race, age, sex, sexuality, gender identity, disability, or religion will not be tolerated
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Other matters that help to establish safe and respectful workplaces, including:
the contribution that everyone makes to a safe and respectful environment in the parliamentary precinct
the influence of power and authority
the valuing of diversity and that harassment of a person in the parliamentary precincts on
the basis of race, age, sex, sexuality, gender identity, disability, or religion will not be tolerated
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a responsibility for witnesses of misconduct to report it.
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Source: Set the Standard report, pp. 223–225.
4.13
The Set the Standard report further recommended the parliamentarian and staff codes should include:
Compliance obligations, including:
an obligation to comply with the Standards of Conduct for the Parliamentary Precincts
an obligation to comply with workplace policies established by the Office of Parliamentarian Staffing and Culture.
…
The Codes of Conduct should also detail the support required for implementation. The Codes should provide:
for participation in relevant education and professional development
responsibilities for witnesses of misconduct to report it
a duty to cooperate with investigations and comply with sanctions imposed
a duty to maintain the confidentiality of the complaint process, unless authorised by the proposed IPSC [Independent Parliamentary Standards Commission] (or otherwise required by law) to share or release information
that a vexatious complaint or a complaint made in bad faith may itself be a breach of the Code of Conduct
that any attempt to intimidate or victimise a reporter/complainant or to lobby, influence or intimidate the IPSC (its office-holders, staff or contractors) will be treated as a serious and aggravated breach of the Code of Conduct
that a breach of the Code, including a breach of the sanctions, may be treated by the relevant [chamber] as a contempt.
4.14
For the Standards of Conduct for the Parliamentary Precincts (Behaviour Standards), the Set the Standard report recommended looking to the United Kingdom (UK) Parliamentary Behaviour Code ‘given that it has simple, high-level statements that can be publicly displayed.’
Coverage
4.15
The Set the Standard report recommended different types of coverage for the different codes, as to what workplaces or types of work will be covered by the codes and standards. The recommendation was that coverage of the Behaviour Codes for parliamentarians and staff would be defined by activity (work), while the coverage for Behaviour Standards would be defined by location (workplace).
4.16
However, the Set the Standard report also recommended that the Behaviour Codes include a requirement that parliamentarians and staff must adhere to the Standards of Conduct. This means that for those people, the Behaviour Standards would apply to anywhere they are undertaking their official role or employment (to be defined further below) such as in electorate offices, not just the parliamentary precincts.
Activity-specific scope
4.17
In recognition that the work of parliamentarians and their staff can occur in many different locations, the Set the Standard report recommended broad coverage for their Behaviour Codes:
The Codes should apply to parliamentarians and staff in the course of their official role/employment and to any conduct that may bring the relevant [chamber] into disrepute. Further, each of the Codes should apply to conduct engaged in by any means, including in-person, via phone or text message, online or via social media.
4.18
Many submitters agreed that codes for parliamentarians and staff should have a broad scope to ensure that all activity is covered because the work of parliamentarians ‘takes place online, through telecommunications, and in a range of physical environments: in Parliament; at electorate offices; at community, party/candidate and business events’. The Australian Muslim Advocacy Network stressed the need for social media to be included, providing examples of racial vilification by parliamentarians via social media.
4.19
Emeritus Professor Marian Sawer of the Global Institute for Women’s Leadership (GIWL) argued that abuse on social media is a two-way problem, with many parliamentarians and their staff being subject to a ‘torrent of online abuse’ and suggested that the eSafety Commissioner should provide training in online workplace safety to Parliamentarians and staff.
Location-specific scope
4.20
The Behaviour Standards were recommended to be a location-specific code that would be applicable to ‘all activity within the parliamentary precincts’. This would mean that the Standards of Conduct would apply to any person who enters the location.
4.21
While no definition of parliamentary precincts was included in the Set the Standard report, the Parliamentary Precincts Act 1988 defines the precinct as Parliament House of Australia, including the surrounding land inside Capital Circle.
4.22
There were some concerns expressed about this approach because unsafe work practices can occur in any parliamentary workplace, including from external professionals or constituents. It was argued that if the Behaviour Standards can improve workplace safety for staff who may be subject to poor behaviour from these external people, then it should apply to all parliamentary offices, not just Parliament House.
4.23
The Community and Public Service Union (CPSU) stressed the need for support for people working in electorate offices and pointed out that those staff often have significantly less knowledge of work health and safety training and supports that are available to them.
4.24
Comcare also highlighted the lack of understanding about the existing obligations of employing parliamentarians to ensure that workplaces for their staff—such as electorate offices—are safe and respectful. This includes the obligation to address the psychosocial health hazards of unsafe visitors. This issue is discussed in detail in the later section on work health and safety obligations.
4.25
Some of these concerns were addressed through other recommendations of the Set the Standard report that clarify the work, health and safety obligations of employing parliamentarians. However, the committee believes while expanding the Behaviour Standards to all CPWs such as electorate offices would not increase the level of protection for staff, it would shine a much-needed spotlight on those existing safety and other obligations.
4.26
Accordingly, as outlined in chapter five, the committee believes the Behaviour Standards for the parliamentary precincts should be expanded to cover all CPWs. This means that any people who enter those locations, including visitors, lobbyists, journalists and others are bound by the Behaviour Standards.
4.27
The following sections discuss the three objectives of codes of conduct: setting standards of behaviour, highlighting existing obligations set down in relevant laws, and finally to establish a framework of workplace action for misconduct.
Objective one: Standards of behaviour
4.28
The committee heard from many witnesses that codes of conduct are important mechanisms to set a general standard of professional and respectful behaviour to all people in all circumstances:
The codes should cover respectful workplace behaviours; treating others with respect and without harassment; providing a safe working environment; respect and value for diversity and inclusion; as well as a prohibition on bullying, sexual harassment and workplace discrimination.
4.29
Fair Agenda told the committee that creating cultural change in parliament would be supported by ‘enunciating clear and consistent values that everyone understands and upholds’. Emeritus Professor Marian Sawer of GIWL agreed, stating ‘there is great benefit in having a concise statement of the values and practices around a safe parliamentary workplace’.
4.30
Many witnesses and submitters stressed the need to include high level statements around simple standards such as professional, respectful, courteous behaviour in the workplace.
4.31
Ms Claressa Surtees, Clerk of the House of Representatives, told the committee:
I think that the basic issue is understanding that everybody deserves to be treated with respect in a workplace, and that it's a professional environment. I do think it's a matter of shifting perception, perhaps, of the appropriateness of the way people might deal with one another.
4.32
Ms Natalie Barr, Chief Operations Officer, GIWL advised the inclusion of these standards can be very simple:
It's just: be respectful, be professional, and don't harass and bully people. There are some really clear things that you can put there that just set that cultural frame.
4.33
The issue of how codes of conduct could encourage and champion diversity in the workplace was also raised. Professor Tim Soutphommasane, former Race Discrimination Commissioner appearing in a private capacity, told the committee that ‘having a robust code of conduct that pays serious attention to diversity, equality and inclusion may help in ensuring that the parliament, over time, will be more representative and reflective of the Australian society that it serves’.
4.34
There was also a great deal of discussion around the difference between diversity of people and diversity of viewpoints. Submitters and witnesses stressed the need to ensure that Codes of Conduct also championed a requirement to respect diverse viewpoints. The President of the Senate, Senator the Hon. Sue Lines, articulated the importance of respecting the diverse views of parliamentarians who represent their electorates:
Over my time in the Senate, we have had people with diverse views, but they do represent the Australian people. If we are going to continue to attract senators who represent the broadest spectrum of views, they too need to represent those views in a respectful way. Just because a senator doesn't have the sorts of values that I might subscribe to doesn't mean that they should be treated less respectfully than another senator whose views I might align with. All views need to be treated respectfully, but they need to be put respectfully, and I think it's the latter that we struggle with in the Senate.
Consistency is key
4.35
While the Set the Standard report acknowledged the need for more than one code of conduct, reflecting the unique roles and responsibilities of different CPW participants, it also cautioned that standards of behaviour must be consistent between the codes to ensure all participants have a shared understanding of what is expected of them.
4.36
Proposed parliamentary Behaviour Standards and Behaviour Codes will also intersect with other existing codes and standards, including the Parliamentary Service Code of Conduct and the Australian Public Service Conduct Framework. There was strong consensus that the parliamentary Behaviour Codes and Behaviour Standards should, to the greatest extent possible, be consistent with other relevant codes and standards. This ensures that shared and common expectations extend to all parties who may interact or engage with a CPW.
4.37
The majority of behavioural expectations are common across parliamentary, public and private sector workplaces. Aligning the parliamentary Behaviour Codes and Behaviour Standards with other codes and standards is therefore a source of additional assurance that the parliament is in line with contemporary expectations.
4.38
Consistency is of additional practical importance for certain CPW participants who are already subject to a behavioural code or standard, such as employees of the three parliamentary departments. The committee received unanimous evidence that parliamentary Behaviour Codes must not impose any contradictory or conflicting obligations on these employees. The committee was also urged to consider how roles and processes would be defined to avoid creating gaps or overlap.
Objective two: highlighting existing obligations
4.39
The Set the Standard report recommended the standards and codes include reference to ‘an obligation to comply with all applicable workplace laws—including laws that prohibit bullying, sexual harassment, sexual assault, workplace discrimination, and victimisation’.
4.40
These laws are discussed at length in section 3.2 of the Set the Standard report:
Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act)
Age Discrimination Act 2004 (Cth) (Age Discrimination Act)
Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act)
Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act)
Australian Human Rights Commission Act 1986 (Cth) (Australian Human Rights Commission Act).
Combined, these Acts set out a range of obligations and protections that contribute to safe and respectful workplaces. They do so by making sexual harassment in the workplace unlawful and by prohibiting discrimination in employment on the basis of a range of protected attributes.
4.41
The Set the Standard report further highlighted the Fair Work Act 2009 also protects people from being bullied or sexually harassed in the workplace, as well as the Work Health and Safety Act 2011 (WHS Act) which imposes ‘a primary duty on a “person conducting a business or undertaking” (PCBU) to ensure the health and safety of workers at work in their business or undertaking, so far as is reasonably practicable’:
‘Health’ in the work health and safety context includes physical and psychological health and captures risks that are likely to arise from behaviours that may constitute workplace bullying, sexual harassment and sexual assault.
4.42
Throughout the inquiry, a clear expectation emerged that parliamentary Behaviour Codes at a minimum, incorporate and highlight these existing legal rights and obligations. As Ms Jenkins observed:
Obviously the codes will have provisions saying that all staff are expected to comply with the laws, and that would include the sexual harassment laws and the discrimination laws that all do in fact apply.
4.43
There were differing views on the preferred form of such provisions. Some witnesses proposed that the codes might cross-reference the relevant laws, while others recommended that their contents be replicated more substantively. Professor Beth Gaze, a discrimination law expert appearing in a private capacity, suggested the inclusion of text ‘that actually describes to people, in fairly plain language, what's legally prohibited, so what their legal obligations are’.
Consolidation, not duplication
4.44
Requiring compliance with applicable laws is intended to consolidate, rather than duplicate, those laws. It may also provide greater opportunities to monitor and enforce compliance, which is addressed later in this chapter.
4.45
The Set the Standard report identified that unclear and inconsistent standards of behaviour are risk factors contributing to the prevalence of bullying, harassment and assault in CPWs. The committee heard that even where behaviour is clearly prohibited by existing laws, there is confusion about whether and to what extent those laws apply to CPWs.
4.46
This was supported by evidence from current and former CPW employees, one of whom told the committee:
Things have been allowed to happen that have not been consistent with workplace laws and practices—harassment and bullying in particular. Having something that's explicit, that allows everybody to understand what the expectations are … I think is really important.
4.47
In this context, parliamentary Behaviour Codes of Conduct would be a useful mechanism to synthesise and collate the full suite of existing legislative requirements and make clear that they apply to CPWs in the same way as any other Australian workplace. Ms Jenkins confirmed that this is a well‑established function of similar codes in other spheres:
… codes of conduct in corporates and over time are collections of what are in fact laws and policies that usually already apply. Workers can find it really complicated … The practice over time has been for codes to be used as sort of a central place that brings together all of those things and tells workers, but also tells everyone, what's expected.
Work health and safety obligations
4.48
Comcare, in its submission and in evidence at a hearing, stressed the pre‑existing duties of employing parliamentarians and other duty holders under the Work Health and Safety Act 2011 (WHS Act) to ensure that the psychological and physical health and safety of staff is not put at risk:
Psychosocial hazards in the workplace can arise from or in relation to the design or management of work, the working environment, and from workplace interactions and behaviours. Psychosocial hazards that may arise at work include bullying and harassment. This includes sexual harassment, violence and aggression.
4.49
Comcare recommended ‘that codes of conduct include a clear articulation of all the duty holders and their respective duties in parliamentary workplaces including those who have due diligence obligations under the WHS Act’.
4.50
Comcare informed the committee that:
Depending on the enforcement mechanisms associated with the code, if any—and the [Set the Standard report] referred to some potential models—it may be that there is capacity for a code of conduct to correct inaction, if there is inaction, in a workplace where a parliamentarian, for example, has not taken action in relation to health and safety risks in the workplace.
Work Health and Safety Act amendments
4.51
The need to improve WHS Act knowledge and implementation was also the basis of two additional recommendations of the Set the Standard report. Recommendation 17 of the Set the Standard report was that the Australian Government clarify that the WHS Act applies to a Member, Senator or officer in their capacity as employers of staff. These amendments were enacted on 15 February 2022. Recommendation 25 tasked the Implementation Group with improving knowledge, capacity and action in relation to WHS obligations in CPWs.
4.52
Comcare noted that these two Set the Standard report recommendations would contribute to making WHS Act responsibilities clearer to employing parliamentarians:
The amendments to sections 4 and 247 of the WHS Act make it clear that ‘parliamentarians are ‘officers’ for the purpose of [the WHS] Act in respect of the business or undertaking of the Commonwealth constituted by the provision by the Commonwealth of support for the functioning of the Parliament.’ They must exercise ‘due diligence’ to ensure the Commonwealth’s compliance with the WHS Act. This is an important step in clarifying who is responsible for the work health and safety duties under the WHS Act. Moreover, these amendments make it possible to hold parliamentarians accountable for WHS failings.
Members of Parliament (Staff) Act amendments
4.53
This issue of WHS Act duties and who has responsibility to ensure workplace safety was also touched upon in the recent review of the Members of Parliament (Staff) Act 1984 (MoP(S) Act review) by the Department of the Prime Minister and Cabinet (PMC):
We heard about two key issues in relation to the employment model. The first was confusion about who the ‘employer’ actually was, and the second was about who held what accountabilities in the employment relationship. This is also evident in the findings of Set the Standard which highlighted a confusing employment relationship, where multiple parties hold employer and other legal obligations to staff.
4.54
PMC recommended amendments to the MoP(S) Act to clarify the expectations of parliamentarians as employers to:
provide a safe and respectful workplace; and
adhere to obligations under anti-discrimination laws; and
adhere to obligations under WHS laws; and
make accountable recruitment and promotion decisions based on an assessment of capability; and
provide procedural fairness in termination by meeting obligations in the MoP(S) and Fair Work Acts.
4.55
A range of amendments to the MoP(S) Act were proposed:
Recommendation 2—Employer duties
The MoP(S) Act should provide greater clarity over employment roles and responsibilities by setting out the specific duties of parliamentarians, the OPSC and the Prime Minister, and include an express power to delegate. The OPSC should have powers to require specified training, and report on the administration of the Act.
Recommendation 8 – Work health and safety of non-MoP(S) workers
Visibility and protection of non-MoP(S) Act workers should be increased by requiring parliamentarians to notify the OPSC when any person not engaged under the MoP(S) Act commences working in their office (e.g. volunteers and interns).
Recommendation 10 – Parliamentarian obligations
The MoP(S) Act should list the requirements of a parliamentarian as employer, including to: provide a safe and respectful workplace; make recruitment decisions based on an assessment of capability and provide procedural fairness in termination.
Recommendation 11 – Employee obligations
The MoP(S) Act should list the requirements of an employee including to: contribute to a safe and respectful workplace; act in accordance with any applicable codes of conduct; and exercise delegations in accordance with legal obligations.
4.56
The Australian Government has agreed in principle to all the recommendations of the MoP(S) Act review.
4.57
The MoP(S) Act review found recurring themes in the July 2021 Review of the Parliamentary Workplace: Responding to Serious Incidents and Set the Standard reviews and noted that a range of overlapping reforms are being conducted simultaneously. PMC noted that changes proposed by the MoP(S) Act review are intended to complement those other reforms, in particular the work of this committee to develop Behaviour Standards and Codes for parliamentary workplaces.
The Review acknowledges that codes of conduct for all Commonwealth parliamentary workplaces are being considered by the Joint Select Committee. While it is likely that some expectations will be set out in these codes of conduct, what we heard from contributors about the perceived ‘lawlessness’ of the MoP(S) Act employment landscape suggests that there is merit in amending the Act to clearly signpost the existing legislative obligations that apply to MoP(S) Act employees and parliamentarians. Recommendation 11 is not intended to create new obligations but reinforce existing obligations.
4.58
The MoP(S) Act review further advised that ‘[p]arliamentarians and their staff undertaking these functions should be supported to develop their management skills through training, and direct support from the [Office of Parliamentarian Staffing and Culture]’.
4.59
Comcare echoed the call for training on Behaviour Codes and safe and respectful workplaces, noting that providing such training is itself a requirement of the WHS Act.
Discrimination and harassment
4.60
Discrimination and harassment were a key focus of discussions in submissions and at hearings, which are already prohibited via a range of other specific laws, as outlined above.
4.61
However, as outlined at the start of this chapter, codes of conduct can be useful in drawing people’s attention to unlawful behaviour such as discrimination and harassment and can also provide people with clear and concise definitions. This provides clear standards setting so people understand what behaviours are prohibited, but also enables victims of harassment and discrimination to understand their rights and then helps embolden them to take action to assert their rights.
4.62
Codes of conduct and their associated structures and support services also allow for more accessible options for affected people to raise their concerns within the workplace, instead of using mechanisms such as courts or the Fair Work Commission, which are difficult to navigate and have significant entry barriers.
4.63
The committee found there was a strong consensus that proposed Behaviour Standards and Codes should explicitly prohibit sexual harassment and assault, bullying, discrimination and harassment. There was also strong agreement that, where possible, codes should provide high-level behaviour setting and be easy to understand.
4.64
The Set the Standard report proposed that discrimination provisions should mention race, religion, age, sex, sexuality, gender identity and disability.
4.65
Conversely, a research paper later provided by the AHRC to guide the committee in developing the discrimination provisions advises that a provision on discrimination could remain high level with no forms explicitly mentioned but details be explained in supporting policy:
Table 4.2: Potential standards—AHRC
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2. Bullying, sexual harassment, sexual assault and workplace discrimination will not be tolerated.
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Further information and definitions can be set out in a guide/ policy accompanying the standards. A supporting document could expand further to explain that discrimination of a person in the parliamentary precincts on the basis of race, age, sex, sexuality, gender identity, disability, age, or religion will not be tolerated.
UK Behaviour Code states that behaviour will not be tolerated -defines terms 'sexual misconduct' and 'bullying and harassment' in other policies.
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Source: Sex Discrimination Commissioner, Answers to Questions on Notice, public hearing, 19 September 2022, (received 28 September 2022), p. 94.
4.66
As outlined in chapter three, while many similar parliaments have codes of conduct, of the seven Australian and four overseas parliamentary codes reviewed, only one of those codes referred to specific forms of discrimination. The approach taken in all other cases was to prohibit any form of discrimination and provide definitions and examples in guidance documents or underlying additional policies.
4.67
The committee notes that the UK independent Parliamentary Commissioner for Standards of the British House of Commons gave evidence to the Committee that references to specific forms of discrimination should be included in codes of conduct and that she would consider this as part of the review of the UK behaviour code.
Options for calling out discrimination
4.68
Echoing the differing views on discrimination provisions discussed above, there was also significant variance in recommendations from witnesses and submitters to the inquiry on how Behaviour Standards and Codes should treat provisions against discrimination.
4.69
The first position was that discrimination provisions should not list specific forms of discrimination as this means some forms of discrimination will be left off the list, leaving those people feeling even more marginalised.
4.70
The alternative position was that discrimination provisions should include a list of specific forms of discrimination to ensure they are clearly prohibited. Adding to the complexity, the committee often heard both sides of the argument being presented by the same witness.
4.71
Regardless of how types of discrimination are described in the Behaviour Codes and Standards, there was broad consensus that there should be longer descriptions and examples of discrimination in supporting guides and policies, particularly forms of discrimination that are experienced regularly in CPWs. This issue is discussed later in this chapter.
High level provisions
4.72
The committee heard concerns that choosing which forms of discrimination to be expressly called out can be a fraught process:
I thought back to my law days, to the principle ‘expressio unius est exclusion alterius’, which is a lawyerly Latin way of saying ‘If you give a list of specific things, it’s to be assumed the things not listed aren’t covered.’ It had occurred to me that, if we were doing a list of discriminatory categories 20 years ago, we probably wouldn’t have had the rights of transgender people in the forefront of our minds … I wondered whether a broader prohibition on discriminatory conduct might not be preferable to listing particular categories.
4.73
Professor Gaze highlighted that calling out various forms of discrimination and intersectionality needed to be done with care:
My preferred method would be to reinforce that everyone is equally of value and entitled to be treated with courtesy and respect, and then to address discrimination, victimisation and intersectionality in more detail.
The primary idea of equal value for everyone can be expressed quite succinctly:
Every person should be equally respected and treated with courtesy and integrity.
4.74
Ms Barr of the GIWL stated that a need to act with fairness would cover ‘broader types of discrimination, encouraging diversity and things like that’. Ms Barr further noted the dangers of calling out some but not all forms of discrimination:
I think once you do start to add specific elements then you do get other areas wanting to be called out as well, such as things around disability and things like that. I guess it's a judgement call as to what you do want to include.
I think the bullying and sexual harassment is really explicitly pulled out in all the codes of conduct internationally and so, following the [Set the Standard report] and the scale of that issue, I think it is definitely important to pull that one out and call that one out.
4.75
Emeritus Professor Marian Sawer also advised that ‘new forms of discrimination are being identified over time and we don't want this to become outdated too quickly.’
The case for naming certain forms of discrimination
4.76
Professor Tim Soutphommasane provided the following advice:
… the default should be that you name the different forms of discrimination you want to combat … If the parliament, in its formulation of a document that seeks to embody its aspirations, cannot bring itself to name such things, then I think that could be sending an unfortunate message, unintended or otherwise.
4.77
Professor Tim Soutphommasane also told the committee there is a power in naming forms of discrimination in codes of conduct and advised:
There should be special attention given to ensuring that, if the parliament does wish to create a safe and respectful workplace, a strong message is sent that this encompasses the full range of discrimination and harassment that may occur. An obvious starting point in thinking through what the range of dimensions could involve would be, of course, existing Commonwealth legislation and what's covered under the various antidiscrimination laws that we currently have. Our current Commonwealth legislation does cover discrimination based on sex, race, disability and age, and, in my view, those at the very least need to be explicitly named and covered.
4.78
As outlined later in this section, the full range of discrimination and harassment involves around 28 different types of protected attributes.
4.79
When asked whether discrimination provisions should be general or name specific forms, the Human Rights Law Centre told the committee that ‘I think “all forms of discriminatory abuse” is some of the language that we have used’ but also told the committee that:
… we support explicit inclusion of what we call some of the isms. We acknowledge there is a difficulty that there's an inherent value judgement in what is included and what is not included, but starting from the basis of racism, ableism, transphobia and sexism, in light of a lot of what’s been happening over the last few months in parliament, we think is a very good place to start. The code can be updated as it goes as other forms of discrimination come to the fore.
4.80
However, while many witnesses recommended that a behaviour standards regime should name particular types of discrimination, there was often a lack of clarity as to exactly how they believed these should be captured in documentation: should it be in the text of the codes and standards, or should it be in the supporting materials and guidance documents.
4.81
Fair Agenda told the committee that ‘we do very much advocate that the committee should include in its code specific mention of issues of intersectionality, such as racism, transphobia, homophobia and ableist slurs or comments’. They then went on to explain that ‘that this should be kept at a high level within the code and then there can be supporting policies that underpin this and define this and they can also be updated, given that some of these issues, in particular around the queer community, are constantly evolving in our understanding in terms of what could be seen as respectful and inclusive’.
4.82
A number of witnesses preferred an approach of explicitly naming forms of discrimination.
4.83
Within this latter group, there was considerable disagreement on which forms of discrimination should be included, with suggestions such as discrimination on the basis of gender, race, disability, carer responsibilities or sole-parent status or discrimination that was homophobic or transphobic. Some also argued that forms of disadvantage that are not subject to discrimination law should also be covered by the Behaviour Codes and Standards, such as health status or spatial or geographic discrimination. Other related issues that were raised to be included were negatively racialised communities and racialised sexual harassment.
Discrimination—further definitions
4.84
The Australian Human Rights Commission (AHRC) provides a range of guides to different forms of discrimination. A description of discrimination is given as:
Federal discrimination laws protect people from discrimination on the basis of their:
race, including colour, national or ethnic origin or immigrant status
sex, pregnancy or marital status and breastfeeding
sexual orientation, gender identity and intersex status.
4.85
The AHRC further defines discrimination in private and public sector employment as also including:
impairment, mental, intellectual, psychiatric and physical disability
race, colour, nationality, national extraction
or imputation of the above.
4.86
The Fair Work Act 2009 also prohibits workplace discrimination for:
family or carer’s responsibilities
Intersectionality
4.87
The impacts of intersectionality were discussed, whereby a person who encompasses multiple forms of protected attributes can face multiple forms of discrimination, with compounding effects.
4.88
Professor Gaze noted that while intersectionality should be highlighted, it must be done ‘without suggesting that people with those characteristics are disempowered’ and any wording ‘should negate any unthinking tendency to devalue a person from a diverse or intersectional background’.
4.89
Harmony Alliance concurred, advising that ‘developing the Code through an intersectional lens can be a solution to facilitate equity of access, experience and outcomes for women in all their diversity.’
Objective three: an appropriate enforcement regime
4.90
The Set the Standard report provided extensive detail on the recommended structures that would underpin codes of conduct. These are outlined in detail in chapter two, but the key recommendations for the supporting framework were:
A separation of policy, training and advisory functions and the investigation function.
The reporting frameworks should be trauma-informed with a range of informal and formal reporting pathways and must remain confidential.
Investigation frameworks must be impartial and independent and follow rules of procedural fairness.
Commissioners should be appointed via a transparent, merits-based process that appoints people with appropriate expertise and seniority.
While investigations must be undertaken with confidentiality, there should be transparency about overall IPSC operations with regular reporting.
An obligation for parliamentarians to act on allegations of staff misconduct.
4.91
Further, the Set the Standard report recommended obligations for all individuals to comply with the supporting framework:
Must comply with codes of conduct and report misconduct when witnessed.
Must comply with all workplace policies and training requirements, including mandatory respectful workplace behaviour training and people management training.
Duty to cooperate with investigations and sanctions, maintain confidentiality during investigations, not victimise a complainant and not make vexatious complaints.
Parliamentarians have an additional duty to act on allegations of misconduct by staff and implement recommendations of the IPSC.
4.92
Broad support was expressed by witnesses and submitters for the investigation and sanction framework recommended and outlined in the Set the Standard report.
4.93
Clear evidence was received about the importance of transparency in the framework to ensure community trust that the standards were being appropriately upheld. Fair Agenda recommended that the IPSC findings should be made public ‘so that there is clarity for the public on what sanctions have been recommended, whether or not those are then implemented by the parliament’.
4.94
Ms Kerri Hartland, Independent Chair of the Parliamentary Leadership Taskforce told the committee:
We want to provide the transparency to show that the performance is improving, in terms of safe and respectful workplaces, but it would never be envisaged to provide information that would be able to identify either individual workplaces, and certainly not individuals.
4.95
Ms Barr of GIWL pointed out that transparency can play an important role in individual cases as well:
And transparency is, in and of itself, a sanction as well. Having that public sense of saying, 'Actually, we're going to look at what you did and is that appropriate,' and having that strong public accountability is, I think, a sanction and a consequence in and of itself.
4.96
Ms Megan Motto, Chief Executive Officer of the Governance Institute of Australia (GIA) stressed the need for transparency in the establishment of the IPSC and its ongoing resourcing:
The first is that the way the commission is set up needs to be demonstrably independent—that is, that a transparent merit-based selection process is established for the appointments to the commission, made on a non-partisan joint committee. They should be fixed-term appointments that are not going to be subject to the whims of changing parliaments, and they should be transparent and merit based. And, as I said, that adequate funding be granted through the parliament to perform not just through the budget-setting agenda but agreed through the parliament so that, once again, it's not something that can be shifted with the political winds of change. There needs to be adequate funding for performance functions and resourcing.
Guidance documents
4.97
The committee heard from a range of stakeholders that the Behaviour Codes and Standards would need to be further supported by guides to help people understand their rights and obligations, preferably with case studies, and there was also a need for a range of workplace policies on specific issues such as sexual harassment or achieving diversity.
4.98
Ms Rosemary Ryan, Political Director of the CPSU told the committee:
[T]he code of conduct needs to be high level but it should also have supporting documentation. When we've been talking to our members about the code of conduct they have made clear the need for it to say that there shouldn't be discrimination against any group and that there are supporting definitions in relation to racism and race based harassment.
4.99
Professor Gaze highlighted the need for simplicity in the codes, as well as supporting advisory documents:
Perhaps it's better to have a code that's quite clear and fairly brief, and maybe which just refers to a safe workplace and no sexual harassment, sexual assault or discrimination. Then you can have a document that can be referred to if people want more clarification, so that they can go to something that actually gives them an outline. You want to give people some guidance; you don't really want to leave them by saying, 'Well, go and read the legislation.'
Training
4.100
Ongoing training was highlighted as a key part of improving behaviour standards.
4.101
Ms Megan Motto of GIA discussed the importance of training for people who are engaging in people management as a secondary part of their role:
The other issue around leadership is that you have to support leaders on this journey, because many people—particularly on the politics side of the parliament—put their hand up for job A, and then they find themselves in job A, but they've also got jobs B, C, D and E. Managing large teams is a real skill set, and not all of our parliamentarians would come from large organisational backgrounds where they are given the leadership training and the tools to support their education so that they know how to get the best out of their teams and how to proactively manage their teams for diversity and inclusion goals. So, we would also support that, alongside the code, we have to think about the right training not just so that we know when to recognise and how to deal with incidents of misbehaviour, for example, but how to create the culture that supports good behaviour in the first place.
4.102
Ms Barr noted the need for additional training so that people were more aware of their existing obligations under work health and safety laws.
4.103
Working Women’s Centre SA agreed with a need for training and endorsed the Set the Standard report recommendation for mandatory best practice training for respectful workplace behaviour and people management. Some witnesses also supported a need for mandatory training on anti-racism and First Nations cultural awareness.
4.104
The need for such training to be mandatory was recommended by a number of other organisations and individuals, such as GIWL, Fair Agenda and the Accountability Round Table.
4.105
Comcare outlined that it does provides training on a number of these issues, including training sessions on:
Presentation: Due diligence;
Presentation: Due diligence and promoting a safety culture;
Workshop: A supervisor’s Work Health responsibilities;
Presentation: Bullying and harassment;
Presentation: WHS Act overview; and
eLearn course: Workplace sexual harassment: An overview for employers and managers.
4.106
There is currently a low take up of this training due to a lack of knowledge of its availability. Improved awareness-raising among parliamentarians and staff would lift the take-up rate of Comcare training.
4.107
However, the CPSU stressed that training on sensitive subjects needs to be conducted in a safe manner:
We have had a lot of concerned feedback about the safe and respectful workplaces training that I think was first provided last year and again provided more recently. It's not trauma-informed—best of intentions but getting a group of staff members into training and then asking them to do things like rank the severity of different examples given to them in terms of how serious that sexual harassment or bullying might be is not a trauma-informed approach. It can be quite harmful.
4.108
The CPSU went on to advise the importance of face-to-face training, particularly for electorate offices, where it is often most needed.
Other issues
Intersection with parliamentary privilege
4.109
The intersection of Behaviour Codes and parliamentary privilege is highly complex and was discussed in evidence to this inquiry. Two possible issues arose.
4.110
The first issue is whether or not the protection of parliamentary privilege means that the proposed Behaviour Standards and Codes would not apply to actions or words arising during protected parliamentary proceedings. Secondly, can the proposed IPSC make recommendations and impose sanctions where they might impact on future protected parliamentary proceedings.
4.111
Parliamentary privilege refers to the immunities and powers of the two chambers of Parliament that both allow for and protect the proper operation of parliamentary proceedings. There are two aspects of parliamentary privilege:
the privileges or immunities of the Senate and the House of Representatives, including the immunity of parliamentary privilege from impeachment and question in the courts; and
the powers of the two chambers of Parliament to ensure the integrity of their processes.
4.112
The former protects freedom of speech in parliamentary proceedings by providing an immunity to participants (such as parliamentarians, witnesses to committees and others) from civil or criminal actions in relation to their written or oral participation in parliamentary proceedings. The need for there to be protected speech in this forum ‘has long been regarded as absolutely essential if the Houses of Parliament are to be able to debate and to inquire utterly fearlessly for the public good’.
4.113
The second point emphasises that although parliamentary proceedings are exempt from outside sanction, that does not mean a participant is free from standards or repercussions for things they say or write. It means that the two chambers of Parliament are responsible for setting those standards, and imposing sanctions where standards have been breached.
4.114
The Set the Standard report identified parliamentary privilege as one of two factors contributing to the complexity of the current sources of standards and accountability for misconduct in CPWs.
4.115
Evidence to the inquiry indicated support for Behaviour Codes to apply to parliamentary proceedings. For example, President of the Senate, Senator the Hon Sue Lines, gave evidence that the presence of a clear set of standards would be helpful in managing behaviour in the chambers.
4.116
Mr Richard Pye, Clerk of the Senate, advised the committee that the Parliament is empowered under the Australian Constitution ‘to legislate for the powers, privileges and immunities of each of the Houses’. Therefore, should the Parliament decide to adopt a Behaviour Code for parliamentarians, including for which fines could be issued as a consequence for non‑compliance, it is within the power of the Parliament to do so. Mr Pye added:
If you want to empower a parliamentary standards commissioner to make findings and to recommend sanctions, including sanctions like being fined, being required to undertake mandatory training on appropriate conduct and being required to do these sorts of things, that's something that's within the power of the parliament to do.
The UK model
4.117
The Set the Standard report stated that the experience of other parliaments in implementing and enforcing codes of conduct ‘demonstrates that clear standards are achievable in the parliamentary context’. Fair Agenda and GIWL referred to the existing framework in the UK Parliament as one such example.
4.118
The UK Parliament is bicameral, and each chamber has a different way of ensuring the UK Behaviour Code is applicable to parliamentary proceedings. The first method re-defines what is considered formal parliamentary proceedings, thus placing misconduct outside the protection of parliamentary privilege. The second method is where the relevant chamber empowers an independent investigator who makes findings and recommends sanctions to be imposed by the chamber, and thus keeps the entire investigations and sanction regime within the protection of parliamentary privilege.
Conduct placed outside of privilege
4.119
In the House of Commons and its committees, formal parliamentary proceedings do not fall withing the scope of the Independent Complaints and Grievance Scheme (ICGS).
4.120
However, guidance from the ICGS states that while ‘freedom of speech in Parliament is a fundamental constitutional principle…it is possible to challenge its abuse’. It makes clear that not all events or interactions that take place in either the House or a committee are formal proceedings, including:
bullying or harassment of another person via whispering or passing notes; or
sexual misconduct in the form of unwanted touching of another Member, a clerk or other employee of the House, a witness or a visitor.
4.121
In addition, the ICGS notes that courses of action are available to address inappropriate words used in the course of formal proceedings, including that it is within the power of the Speaker or Deputy in the Chair in the chamber, or the Chair of a committee to intervene and take action either during or after proceedings.
Investigations conducted inside privilege
4.122
Similarly, the House of Lords Code of Conduct (House Code) explicitly states that bullying, harassment or sexual misconduct, including during parliamentary proceedings, is in breach of the Code.
4.123
Investigations into allegations of breaches of the House Code are investigated by the House of Lords Commissioner for Standards (of which there are two). The House of Lords informed the committee that the Commissioner for Standards is able to investigate a member’s conduct during parliamentary proceedings because ‘[w]hile parliamentary privilege prevents proceedings from being questioned outside Parliament, it does not prevent the House itself (including its officers) from examining conduct during proceedings’. However, the House Code provides that all investigations of allegations of this nature must recognise the constitutional principle of freedom of speech in parliamentary proceedings as a primary consideration.
The Set the Standard proposal
4.124
The Set the Standard report explains that its recommendations regarding the IPSC have ‘taken into account the particular context of the Parliament in recommending a system that is kept within final parliamentary authority’. Importantly, the Set the Standard report asserts that the powers of the IPSC ‘should be delegated from the Houses of Parliament’. It explains that by doing so, the IPSC’s investigations would not conflict with parliamentary privilege, which provides immunities against executive or judicial processes, because the scheme remains within the Parliament.
4.125
The Set the Standard report stresses that its recommendations regarding the proposed IPSC have ‘been informed by the constitutional principle that the Houses should maintain ultimate responsibility for the discipline of their Members’. It explains:
While an independent investigative and sanctions body is recommended, ultimate oversight is retained by the Parliament as follows:
the code and process is ultimately able to be revoked or amended by Parliament through its Standing Orders
the oversight of the proposed IPSC, including its reports, review and budget, is conducted by a Joint Standing Committee
complaints about conduct in a chamber are referred in the first instance to the relevant Presiding Officer
that any sanctions that may impinge on a parliamentarian’s capacity to perform their constitutional functions should be ultimately imposed by the relevant House and not the independent body.
4.126
Accordingly, the recommended enforcement of the Behaviour Code for parliamentarians is that breaches of the code in the chamber are first referred to the Presiding Officer, who may, if appropriate, refer matters to Privileges Committees or the IPSC. The IPSC could impose low-level sanctions on parliamentarians, but is unable to impose any sanction that could impact a parliamentarian’s constitutional functions. However, the IPSC could make recommendations for more serious sanctions, commensurate with a more serious breach of the Codes, to be imposed by the relevant chamber of parliament. The Presiding Officers would retain authority to rule on issues of misconduct in the chamber, but would also be empowered to refer matters to the IPSC.
4.127
Thus, the Set the Standard report largely replies on the second method used in the UK Parliament to ensure investigations and sanctions for a breach of any standards are not in conflict with parliamentary privilege.
Enacting the standards and codes
4.128
There are a number of ways that the Behaviour Standards and Codes can be enacted. The Set the Standard report recommended that the Behaviour Code for parliamentarians and the Standards of Conduct for parliamentary precincts be incorporated into standing orders, while the Behaviour Code for parliamentarians’ staff would be enacted in amendments to the MoP(S) Act.
4.129
Many submitters anticipated that, even if separate codes were to be enacted differently, all codes and standards would be reinforced by a singular structure of supporting material such as explanatory and guidance documents, HR policies, parliamentary procedures and training.
4.130
Some witnesses were troubled by the approach proposed in the Set the Standard report, in particular that only one of the three proposed codes—the staff code—would be legislated. One staff member warned the committee that this ‘might set a higher bar [for staff] than what might apply to parliamentarians’.
4.131
However, many of these discussions did not distinguish between the three codes, instead contemplating a single code of conduct for parliamentarians and staff.
4.132
There was some support for a legislated code. Reasons for this included signalling the importance of the issue, making clear that compliance is required and not optional, ensuring that the code cannot easily be withdrawn or amended.
4.133
In arguing that a parliamentary Behaviour Code should be legislated, Professor Andrew Podger pointed out that both the Public Service and Parliamentary Service codes of conduct are law. The committee notes that these codes refer to employees rather than elected parliamentarians. Others drew comparisons to regulation of behaviour in other sectors and contexts. For example, Dr Sophie Scamps MP noted that there are ‘lower professional standards in our Parliament which would be unacceptable in any other workplace in Australia’, including the strict regulatory standards she was required to meet as a doctor.
4.134
The committee understands that a legislated code may be seen to have drawbacks, including that behavioural standards would ultimately be determined by a single CPW cohort, that the code may be harder to revise and amend, and it may suggest disputes must be resolved within the legal system.
Consistency of enactment
4.135
As noted above, there was concern expressed in evidence to the inquiry and by some responses to the survey, that it was considered unfair if a Behaviour Code for staff was enacted in legislation while the similar code for parliamentarians was enacted via Standing Orders. It was considered that staff would be held to a higher standard than parliamentarians, and that Standing Orders can be more easily changed, as they only require a vote passing a single chamber of the parliament.
4.136
In explaining the decision to recommend the parliamentarian Behaviour Code be placed into standing orders, the Set the Standard report discussed the Westminster constitutional premise of parliamentary privilege, which is in essence that the parliament must remain ‘master of its own house’ by undertaking its own standards setting and discipline of members rather than external entities which can be subject to political or other interference:
Parliament has ultimate responsibility for discipline: The IPSC model has been informed by the constitutional principle that the [chambers] should maintain ultimate responsibility for the discipline of their Members. While an independent investigative and sanctions body is recommended, ultimate oversight is retained by the Parliament as follows:
the code and process is ultimately able to be revoked or amended by Parliament through its Standing Orders
the oversight of the proposed IPSC, including its reports, review and budget, is conducted by a Joint Standing Committee
complaints about conduct in a chamber are referred in the first instance to the relevant Presiding Officer
that any sanctions that may impinge on a parliamentarian’s capacity to perform their constitutional functions should be ultimately imposed by the relevant House and not the independent body.
4.137
However, it is relevant to note that the key workplace protections for staff in relation to employing parliamentarians not providing a safe and respectful workplace are not found within the proposed Behaviour Code. They are found in the employer obligations of the WHS Act—which were recently clarified as extending to parliamentarians’ staff—and the proposed amendments to the MoP(S) Act, both discussed earlier in this chapter.
Integrity issues
4.138
The committee’s consideration of behaviour and conduct in CPWs has run parallel to a broader public discussion about integrity in politics. This discussion was widely acknowledged in the evidence, but there were differing views on how, and whether, it should influence the development of codes of conduct.
4.139
One view put forward was that codes of conduct can and should be used to address broader ethical and integrity issues. Multiple submitters supported a need for codes of conduct to cover broader integrity issues. Submitters raised specific issues such as conflicts of interests, lobbying rules and cooling off periods for Ministers.
4.140
Another view was that these matters are more appropriately dealt with in other ways, and codes should not be diluted or too broad.
4.141
However, there was broad agreement that unacceptable behaviour can be both a symptom and cause of other types of misconduct, and in that sense, codes of conduct and other integrity standards are likely to be mutually reinforcing.
4.142
Many submitters also noted the connection between the work of an independent body established to administer the codes and the work of other integrity bodies, including a national anti-corruption commission.
4.143
As noted earlier in this chapter, the proposed Behaviour Standards and Codes have been drafted so they can be incorporated into a broader Code of Conduct that may include integrity and ethical obligations.
Concluding committee comment
4.144
The committee acknowledges the extraordinary efforts of submitters and witnesses in presenting their views and expertise to this inquiry. This is a subject that can raise difficult experiences for some, and is one on which everyone rightfully holds a strong view.
4.145
As this chapter has outlined, the committee has received sometimes significantly conflicting evidence and recommendations on a range of matters relating to codes of conduct for parliamentary workplaces. However, what is absolutely clear is that every witness, every submitter, every survey and focus group participant is passionate about our Parliament and is committed to making it a safe and respectful workplace for all. Everyone wants to arrive at the same destination but has a different view about the vehicle that will get us there.
4.146
What is critical in having these difficult conversations, is that we as a parliamentary community model the behaviours that the codes and standards will seek to require. We do this by ensuring that in the final discussions on behaviour codes and standards, we encourage and value diverse perspectives and recognise the free exchange of ideas.