Introduction
5.1
The embodiment of Australia’s democracy—our national Parliament—is both driven by and upheld by the dedication of thousands of people who interact with it on a daily or weekly basis: elected members, staff, volunteers, media, constituents and many more. Yet the very place that makes laws to prevent and protect against bullying, harassment, discrimination or criminal action such as sexual assault, has failed to ensure that our own Commonwealth Parliamentary Workplaces (CPWs) are indeed safe and respectful places for all.
5.2
This inquiry was driven by incidents against people in the workplace, primarily female staff of parliamentarians. The Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (Set the Standard report) found that CPWs are sometimes not safe places to work and found that CPWs can also be unsafe for other groups beyond women, including First Nations people, people from culturally and linguistically diverse backgrounds, people with disability and LGBTQI+ people.
5.3
The Set the Standard report made a number of recommendations to ensure that CPWs are safe and respectful workplaces for everyone. A key recommendation was to ensure there are clearly documented standards of behaviour through codes of conduct and supporting mechanisms to enforce those standards.
5.4
The committee recognises there has long been public discussion around the need for codes of conduct for the Australian Parliament to set standards and expectations of integrity. While acknowledging those calls and recognising that integrity issues can also be a driver of unsafe workplaces, the committee has focused on the immediate task of ensuring that CPWs are safe workplaces, particularly for the staff of parliamentarians.
5.5
This is why the committee has deliberately chosen to name the codes ‘behaviour codes’, to highlight the focus on setting standards for interpersonal workplace interactions. These behaviour codes are also drafted so they can be incorporated into a broader code of conduct in future if required.
5.6
The key driver for all committee deliberations and recommendations in this report has been the overarching principle that everyone who visits or works in a CPW should be safe and respected.
5.7
Further, the committee also wishes to commend the invaluable contribution to Australia’s democracy that parliamentarians’ staff make through their profession.
5.8
The committee acknowledges that Commonwealth Parliamentary Workplaces have not always been safe and respectful places of work.
5.9
The committee recommends that parliamentary consideration of this report, including the proposed behaviour standards and codes, should maintain a primary focus on ensuring that Commonwealth Parliamentary Workplaces are safe and respectful for everyone who enters them.
Behaviour Standards and Codes
5.10
The evidence to this inquiry presented a strong and united view that codes of conduct to set standards of behaviour for parliamentary workplaces were both welcome and necessary.
5.11
The committee heard that the three different codes were seen as each having a different role in setting standards of behaviour and outlining the pre-existing obligations and rights set in anti-discrimination and various employment laws:
Behaviour Standards for CPWs would set standards that everyone entering those workplaces should meet, and remind everyone that the purpose of the parliament is for the free exchange of ideas in a respectful and professional manner.
A Behaviour Code for staff would set standards by which all employees contribute to a safe and respectful workplace and outline prohibited behaviours, but also go further to outline the need for a more diverse and inclusive workplace.
A Behaviour Code for Parliamentarians would largely mirror the staff code but also outline the employer obligations for safe and respectful workplaces as well as the expectations for how parliamentarians interact with each other in the course of fulfilling their elected role.
5.12
Notwithstanding these differences, it is the committee’s intention that these standards and codes are not viewed in isolation, but that they complement each other.
5.13
The committee notes that there have been numerous reviews and parliamentary inquiries which have consulted on, and then drafted their version of a Commonwealth parliamentary code of conduct. While the authors, the primary issues of concern and the focus of these codes have varied over the years, the Parliament has been unable to reach a consensus or come close to legislating a code.
5.14
The committee is of the strong view that the consultation undertaken during this process, and the codes it has developed represents an opportunity to transform CPWs into workplaces that reflect the whole of Australian society and live up to community expectations. This opportunity should not be wasted.
Independent Parliamentary Standards Commission
5.15
The Set the Standard report made detailed recommendations on the establishment and function of the investigation and enforcement mechanisms, including the establishment of the Independent Parliamentary Standards Commission (IPSC).
5.16
The committee supports the proposal that the IPSC should be an independent multi-commissioner model. This will allow for a broader range of expertise and perspectives to be drawn upon for investigations.
5.17
The committee agrees with the principle outlined by the Set the Standard report, that the functions of policy setting and providing advice and support on behaviour standards should be undertaken by a separate entity to the function of investigations and proposing sanctions.
Sanctions
5.18
The Set the Standard report considers that establishing ‘clear and proportionate’ consequences for behavioural misconduct is best practice; drives cultural change; provides a degree of deterrence; and builds confidence in the complaints process. The review also emphasises that sanctions would demonstrate to the public that ‘parliamentarians and their staff are responsible for their conduct’, and that codes implemented without sanctions ‘highlight’ a lack of accountability for misconduct and is likely to diminish the reputation of the Parliament’. Equally the committee acknowledges that it is important that the code is not misused.
Sanctions for parliamentarians
5.19
The Set the Standard report’s proposed sanctions for parliamentarians who have been found to breach the code, which include:
less serious sanctions—which may be applied directly by the IPSC and which do not interfere with a parliamentarian’s duties, such as:
undertaking training, or entering into a behavioural agreement;
making a written apology to the complainant or relevant House; and
be subject to a ‘withdrawal services and facilities/other personal restrictions’; or
more serious sanctions—which the IPSC may recommend to the relevant House to consider imposing on a parliamentarian, such as:
a withdrawal of services/facilities or other personal restrictions that affect the core functions of a parliamentarian;
dismissal from a select committee;
withholding salary or allowances;
withholding budget for staff positions;
withholding of ‘communication budget to the same value as any grievance payment made to a complainant; and
Sanctions for parliamentarians’ staff
5.20
The Set the Standard report proposed that the IPSC may recommend sanctions for parliamentarians to impose on their staff. These may include: a requirement for an apology; entering into a behavioural agreement; changes to duties; limitation on use of certain services and facilities and termination of employment in serious cases.
5.21
Under the Set the Standard report proposed code provisions, parliamentarians would be obligated to act on allegations of misconduct made in relation to their staff and to implement recommendations by the IPSC in relation staff misconduct.
Appeals pathway
5.22
The Set the Standard report proposed that the IPSC provide for a person alleged to have breached a code of conduct to access a mechanism for appealing a decision made by the IPSC in relation to that matter. An application for an appeal would be considered by an ‘alternatively constituted panel’ of commissioners, and ground for the appeal may include:
a flaw or flaws in the investigation or process followed by the initial decision-making panel;
a sanction that imposed is considered to unreasonable or disproportionate;
new and credible evidence has become available; or
other compelling circumstances.
5.23
The committee is supportive of the sanctions and appeals pathway as proposed by the Set the Standard report. The Behaviour Codes and associated structures should ensure procedural fairness for all parties involved.
Interim measures pending the finalisation of an enforcement mechanism
5.24
The committee recognises that more work needs to be done to bring together the remaining integral parts of the advisory and enforcement regime. The committee believes that the Behaviour Standards and Codes proposed by the committee can only be adopted as part of a comprehensive package. As consistently discussed in the Set the Standard report and as most evidence to this inquiry clearly and strongly stated, codes are ineffective unless underpinned by an independent, fair and effective system of complaints investigations. It is the strong view of the committee that the Behaviour Standards and Codes should be enacted when the investigations system is established to support their implementation. This system should be established as a matter of urgency.
5.25
This will provide the Australian Government and the Parliament time to consider the best approach in terms of how the codes will be enacted, and the final design of the independent investigation entity.
5.26
The committee recommends each House endorses the Behaviour Standards and Codes as detailed in Appendix 1.
Enactment of standards and codes
5.27
The Set the Standard report recommended the CPW Behaviour Standards and Parliamentarian Behaviour Code be enacted via incorporation into standing orders, while the Staff Behaviour Code be enacted into legislation, namely the Members of Parliament (Staff) Act 1984 (MoP(S) Act). This format was proposed to recognise the different mechanisms under which the two different roles are empowered—one is elected and the other is employed—and the different enforcement mechanisms.
5.28
The committee acknowledges that there was some evidence of a perception that creates a regime where staff are held to a higher standard, or that the parliamentarian code could be more easily changed. The committee heard proposals that the staff code should not be legislated but could be enacted through other employment-related mechanisms. This would ensure the behaviour code for staff can be more easily updated to reflect best practice.
5.29
Conversely, the committee recognises the feedback from some parliamentarian’s staff and other witnesses who preferred the Behaviour Code for Parliamentarians be enacted in legislation rather than standing orders. The committee notes the protections that staff are seeking are already explicitly captured in existing legislation, namely in work health and safety legislation, the Fair Work Act and anti‑discrimination laws. The committee further notes that the recommendations of the Set the Standard report to place that code in standing orders was drafted to take into account the requirements of parliamentary privilege without diluting any of the robustness or independence of the investigation and sanctions regime for parliamentarians.
5.30
As such, the committee affirms the recommendation to place a Behaviour Code for parliamentarians into the standing orders of each House, but recommends the Australian Government explore other possible options for enacting the staff Behaviour Code. Any final decision should be taken after careful consultation with the affected parties.
5.31
The following recommendations allow for the appropriate enactment of behaviours codes, the establishment of the investigation regime, and measures to ensure that interim workplace behaviour standards are put in place.
5.32
The committee recommends the House of Representatives and the Senate adopt the following Behaviour Standards and Codes (as outlined in Appendix 1 of this report) into their respective standing orders in the first sitting week after the establishment of the Independent Parliamentary Standards Commission:
Behaviour Standards for Commonwealth Parliamentary Workplaces; and
Behaviour Code for Parliamentarians.
5.33
The committee recommends the adoption of interim behaviour standards, and therefore recommends that the House of Representatives adopt the following resolution:
that the Australian Parliament endorses the draft Behaviour Standards and Codes as presented in the Joint Select Committee on Parliamentary Standards’ final report, pending the establishment of the advisory and enforcement regime, and the final enactment of Behaviour Standards and Codes for parliamentarians, parliamentarians’ staff and Commonwealth Parliamentary Workplaces; and
that a message be forwarded to the Senate for its concurrence.
5.34
The committee recommends that the Behaviour Code for Parliamentarians’ Staff is formalised through employment-related mechanisms.
5.35
The committee supports the recommendation to establish an Independent Parliamentary Standards Commission as proposed in the Australian Human Rights Commission’s Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (2021).
5.36
The committee recommends that in establishing the Independent Parliamentary Standards Commission, the Australian Government and the Parliament legislate a range of sanctions including, but not limited to, those proposed in the Australian Human Rights Commission’s Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (2021).
Scope and coverage
5.37
The committee agrees with the Set the Standard report recommendation on the scope for the Behaviour Standards and Codes for parliamentarians and staff, which should apply to parliamentarians and staff in the course of their official role/employment and that would include ‘conduct engaged in by any means, including in-person, via phone or text message, online or via social media.’
5.38
However, the committee believes there is reason to extend the scope of the Behaviour Standards for CPWs beyond the recommended parliamentary precincts, to include all Commonwealth Parliamentary Workplaces, such as electorate offices (EOs) and Commonwealth Parliamentary Offices (CPOs). The committee has therefore drafted the recommended code (as at Appendix 1) to ensure that the Behaviour Standards are enacted not just for the parliamentary precincts, but is expanded to cover all CPWs.
5.39
While acknowledging that this does not abrogate the work health and safety obligations of employing parliamentarians to ensure that their individual electorate office is a safe and respectful workplace for their staff, extending the scope will send a clear message around standards of behaviour that are expected of everyone, in all CPW’s.
5.40
The committee notes additional concerns about coverage of the Behavioural Codes for Parliamentarians and Staff, as it applies across their public and private lives. The committee believes that clear guidance is required, to ensure that parliamentarians and staff can protect their and their families’ private lives. This would also provide clear guidance to potential complainants regarding the behaviours and circumstances that are covered by the behaviour standards and codes.
5.41
The committee recommends further development of guidance material by the proposed Independent Parliamentary Standards Commission to provide a clear understanding of the extent of:
the official role of a parliamentarian that will be subject to the Behaviour Standards and Codes; and
the official role of a parliamentarian’s staff that will be subject to the Behaviour Standards and Codes.
Provisions of the standards and codes
5.42
There was a consistent view from all stakeholders that codes should play a dual role in setting standards that are aspirational and high-level, as well as capturing the existing legal obligations for safe and respectful workplaces.
5.43
The committee wishes to acknowledge that although there was significant variance in how people wished to address the above issue, everyone who played a role in this inquiry were all deeply committed to ensuring protections for staff and parliamentarians, particularly those who are most vulnerable to harassment and discrimination. The difference lay in how they thought that protection was best achieved.
5.44
The key point of difference lay in how witnesses recommended that discrimination should be highlighted in Behaviour Standards and Codes:
Should discrimination provisions simply prohibit discrimination in any form to prevent any semblance of a hierarchy of rights or inadvertent omission of some forms of discrimination, leading to increased marginalisation for those not included; or
Should discrimination provisions instead highlight those areas of discrimination most prevalent in CPWs, acknowledging that this is a non-exhaustive list, in order to make visible that which is often hidden or seldom named.
5.45
The committee was presented with a wide range of areas of discrimination that should be highlighted, and notes that workplace discrimination covers around 38 different types of discrimination. The committee also notes that discrimination law is an emerging area of law.
5.46
The committee carefully considered all options and spent many hours deliberating and crafting the codes of conduct. The committee consulted with a range of experts and members of the parliamentary community. The final versions agreed by the committee can be found at Appendix 1.
Additional protections for staff
5.47
The committee notes the Work Health and Safety Act 2011 (WHS Act) was amended on 15 February 2022 to make clear that it covers staff employed under the Members of Parliament (Staff) Act 1984 (MoP(S) Act).
5.48
The committee notes the review of the MoP(S) Act (undertaken by the Department of the Prime Minister and Cabinet (PMC)) which recommended the employer obligations of parliamentarians be enacted into the MoP(S) Act. This does not introduce new protections or workplace standards but serves to highlight existing protections and workplace standards.
5.49
The committee supports the recommendation of the Department of the Prime Minister and Cabinet to clarify the obligations of parliamentarians as employers in the Members of Parliament (Staff) Act 1984.
5.50
This committee notes the lack of standardised and structured consultation with staff and their representative bodies across CPWs. Consultation and engagement with staff is critical to achieving long-term cultural change in our workplaces. Staff voices must be part of shaping safe and respectful workplaces to achieve the objectives of these reforms.
5.51
The committee recommends the formation of a staff and staff representative consultation group that remains engaged in the further development and implementation of these Behaviour Standards and Codes—including subsequent guidance materials, education and training, evaluations and reviews. This consultation group should also be engaged in the establishment of the entities responsible for enforcement and workplace policies.
Review of the Behaviour Standards and Codes
5.52
The committee has been tasked with making recommendations on mechanisms for reviewing the operation of any proposed behaviour standards and codes.
5.53
A range of views were expressed to the committee on the timing of such a review. The committee considers that a review one to two years after the commencement of the operation of the codes will give sufficient time to assess how the codes are operating in practice. The committee also considers that subsequent reviews should be conducted with the formation of each new Parliament.
5.54
The committee has also received evidence suggesting that the parliamentary codes could be broadened to include integrity and ethical obligations. The committee believes that consideration should be given to developing broader codes of conduct that articulate requirements for parliamentarians and their staff to use their positions in the public interest and to make ethical and efficient use of public resources beyond the behavioural codes outlined in this report. These broader codes of conduct should be consistent with comparable jurisdictions and public sector codes of conduct.
5.55
The committee holds a view that the review process, as detailed above, could also include the development of these additional integrity obligations and how they might be incorporated with the behavioural standards. The committee does not have a preferred view on who should undertake this review.
5.56
The committee recommends that the Australian Government and the Parliament give consideration to the appropriate entity and framework to conduct a review of the Behavioural Standards and Codes, and the advisory and enforcement mechanisms. The committee recommends that the initial review is conducted one to two years after the establishment of the proposed Independent Parliamentary Standards Commission and the adoption of the Behaviour Standards and Codes. The committee recommends that subsequent reviews are conducted once every new Parliament.
5.57
The committee also recommends that the Australian Government and Parliament commence a process to develop integrity and ethical obligations and consider how these may be incorporated with the Behavioural Standards and Codes.
Parliamentary oversight
5.58
The committee notes the Set the Standard report recommended the establishment of a Joint Standing Committee for Parliamentary Standards, which would have responsibility not just to draft the codes of conduct, but to remain in place to oversee the standards and accountability framework including:
Oversee the proposed IPSC and the PWSS, including its budget.
Decide commissioner appointments to the IPSC.
Review twice yearly reports from the IPSC on its operations.
5.59
The entities that are responsible for enforcement and workplace policies have not yet been established. The committee is of the view that Parliament should determine the appropriate role of any future Joint Standing Committee on Parliamentary Standards, as part of the establishment of these entities.
5.60
The committee recommends that the Parliament should determine the appropriate role of a future Joint Standing Committee on Parliamentary Standards, as part of the establishment of the proposed Independent Parliamentary Standards Commission.
Intersection of the codes with Parliamentary Privilege
5.61
Parliamentary privilege is a foundational protection of democracy, whereby an elected person should not be unduly constrained by external entities from fulfilling their constitutional duties. This does not mean that an elected person is free to say or do anything they wish in the course of their official role. It means that the responsibility ultimately lies with the Parliament of Australia to set behavioural standards for Parliamentarians, and to take action when those standards may have been breached.
5.62
However, in this process to clearly articulate and set standards, it is also important for the Parliament to ensure those standards do not unduly impact the Parliament’s primary function, which is to propose, oppose and discuss ideas for the benefit of the nation.
5.63
The committee notes the UK approach which holds that certain forms of behaviour, such as harassment, even when conducted in the parliamentary chamber would not be considered part of a parliamentarian’s constitutional role, and therefore parliamentary privilege would not apply.
5.64
The committee further notes the principle set by the UK Behaviour Code scheme, which requires the Commissioner to recognise freedom of speech as a primary consideration in investigations.
5.65
The committee recommends early consultation between the presiding officers, relevant privileges committees and the Independent Parliamentary Standards Commission, when established, to consider issues related to the intersection of the Behaviour Standards and Codes and parliamentary privilege.
Guidance material and policy development
5.66
The committee notes that codes of conduct generally provide detailed guidance material to educate people in how to meet the standards, as well as supporting information for people who believe they may be the subject of a standards breach. The committee also notes that human resources practice is to underpin codes with policies.
5.67
The committee heard evidence of the importance of quality education resources and training to ensure that behaviour standards are upheld. Ensuring these materials are drafted swiftly, but with the input of people who are often the subject of discrimination or harassment should be a primary focus of the IPSC when established.
5.68
The committee also heard concerns around potential misuse of the code enforcement regime for politically motivated or vexatious complaints. To ensure the integrity of the system for genuine complaints, the committee recommends the development of policy and guidance on the approach to such complaints to ensure consistency. Information on vexatious complaints should be part of the initial information provided to complainants including that making a vexatious or non-genuine complaint could in itself be a breach of the Behaviour Standards and Codes. Notwithstanding these concerns, this committee notes that this material and information should be crafted in such a way so as not to discourage those who making genuine complaints.
5.69
The committee recognises the intersectional nature of discrimination and the importance of developing guidance material that supports a better understanding of how this deeply impacts on some members of the parliamentary community.
5.70
The committee is persuaded by some evidence suggesting that case studies should be an integral element of the guidance material. The use of accessible examples with easy to understand language will support all members of the parliamentary community to understand what bullying, harassment, assault and discrimination look like in practice.
5.71
The committee recommends that guidance material on the Behaviour Standards and Codes should be developed by the proposed entity responsible for workplace policies and made available when the Behaviour Standards and Codes and enforcement regime come into effect.
Guidance material should include definitions and examples of prohibited behaviours and should be drafted in consultation with impacted groups within the parliamentary community.
5.72
The committee recommends that guidance material and policies on vexatious, frivolous and unreasonable complaints in relation to the Behaviour Standards and Codes are developed in conjunction with the Parliamentary Workplace Support Service. These materials should also be made available in the same way as other policies.
Supporting page to accompany the Behaviour Standards
5.73
The committee has developed a preliminary draft of a supporting page to accompany the Behaviour Standards for CPWs (provided at Appendix 2). The draft is based on a similar document used by the Parliament of New Zealand.
5.74
The committee notes the importance of providing clear and simple guidance about what is expected within a CPW. In addition to the detailed information to be provided through supplementary material, training and policies (as outlined above), the committee recognises the benefits of a single page of clear information for immediate reference.
5.75
The committee believes a supporting page to the Behaviour Standards is a useful way to provide additional information about the types of behaviour that are acceptable and unacceptable within a CPW.
5.76
The committee recommends that the supporting material to be developed by the proposed entity responsible for workplace policies, include a one-page document similar to Appendix 2. The document can be displayed alongside the Behaviour Standards in Commonwealth Parliamentary Workplaces. It should explain what each of the standards means and why they are important.
Training
5.77
Finally, for the codes to be a force in helping to drive long term cultural change within CPWs they must be accompanied by high quality, proactive education and training. Training on the codes, safe respectful workplace behaviour, people management and inclusive leadership must reflect best practice and be adequately resourced.
5.78
The Set the Standard report noted that many Parliamentarians come to Parliament with no prior experience of managing staff, and that training on people management and inclusive leadership would ensure that they are better equipped to manage the staff they employ.
5.79
Evidence the committee heard endorsed the recommendation from the Set the Standard report that best practice training on the codes, safe and respectful workplace behaviour, people management and inclusive leadership must be mandatory.
5.80
The committee recommends a proactive approach to education and training when implementing the behaviour codes. This training should reflect best practice, be accessible to all and be properly resourced. Training on safe and respectful workplace behaviour and the Behaviour Standards and Codes should be mandatory as should the transparent reporting of parliamentarian and staff participation. In addition, parliamentarians should be provided with mandatory training in people management and inclusive leadership, including anti-racism, disability discrimination and First Nations cultural awareness.
Ms Sharon Claydon MP
Chair