Posted 13/04/2022 by Michael Sloane
An updated Statement of Ministerial Standards (the Standards) was issued by Prime Minister Morrison on 8 April 2022, superseding the previous Statement of Ministerial Standards issued on 30 August 2018. The updated Standards include new provisions relating to the obligations of ministers in their capacity as employers and setting out how complaints concerning the conduct of ministers made to the recently established Parliamentary Workplace Support Service (PWSS) will be treated under the Standards.
These additions have been made following the completion of the Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces by the Australian Human Rights Commission on 30 November 2021. However, they appear to specifically respond to recommendation 1 of the earlier Review of the Parliamentary Workplace: Responding to Serious Incidents, conducted by the Deputy Secretary of the Department of the Prime Minister and Cabinet and published on 26 July 2021, which stated in part:
All parliamentarians should clearly articulate that assault, sexual assault, sexual harassment, and serious and systemic bullying or harassment are unacceptable in their workplaces, and act to support that commitment where necessary. The Statement of Ministerial Standards and Statement of Standards for Ministerial Staff should be amended to align with this.
It does not appear that the Statement of Standards for Ministerial Staff has yet been amended in a similar way in response to this recommendation.
The updated Standards contain a new section dealing specifically with the responsibilities of ministers as employers. It states at paragraph 2.23 that ministers have obligations ‘to comply with all applicable Australia laws’, including ‘understanding workplace health and safety duties and the steps to take to satisfy those duties, under the Work Health and Safety Act 2011 and other workplace laws’. Paragraph 2.24 requires ministers to ensure their staff are aware of and comply with the Statement of Ministerial Standards for Ministerial Staff, issued by the Special Minister of State.
Paragraphs 2.25 to 2.27 address the operation of the PWSS. They require ministers to cooperate with the PWSS and ‘conduct themselves consistent with any resolutions relating to the PWSS that may be passed by the Parliament from time to time.’ Relevantly, the House of Representatives and the Senate agreed to parallel resolutions on 18 and 19 October 2021 respectively setting out a process for addressing cases where a parliamentarian has failed to cooperate with a review conducted by the ‘Independent Parliamentary Workplace Complaints Mechanism’ administered by the PWSS.
Paragraph 2.26 reiterates the duties ministers and their staff have ‘to take reasonable care that their actions do not adversely affect their own health and safety while at work, and the health and safety of others’, and requires that ministers clearly articulate to their staff that ‘behaviour subject to review by the PWSS is unacceptable’, including ‘assault, sexual assault, harassment, sexual harassment, and bullying.’ The PWSS website provides detailed guidance on the matters that may constitute a ‘serious incident’ and be the subject of a review and also states that the PWSS will not review alleged criminal conduct.
Paragraph 2.27 states that ‘Where a minister is the direct subject of a complaint of a serious incident by the PWSS, and the PWSS upholds such a complaint, that finding will constitute a breach of these Standards.’ Paragraphs 7.1 to 7.5 set out how alleged breaches of the Standards will be addressed and remain unchanged from the previous iteration of the Standards. Leaving aside criminal matters, it is for the Prime Minister ‘to decide whether and when a Minister should stand aside if that Minister becomes the subject of an official investigation of alleged illegal or improper conduct’ and ministers ‘may be required to resign if the Prime Minister is satisfied that they have breached or failed to comply with these Standards in a substantive and material manner.’ In making such a decision, the Prime Minister may refer a matter to an ‘appropriate independent authority for investigation and/or advice’ and may also seek advice from the Secretary of the Department of the Prime Minister and Cabinet.
Paragraph 2.28 requires ministers and their staff to undertake mandatory training on ‘safe and respectful workplaces’, to confirm with the Prime Minister that they have completed such training, and also to comply with any reporting requirements of the Parliament in relation to such training.
Paragraphs 2.29 and 2.30 existed in previous iterations of the Statement of Ministerial Standards but have been relocated. Paragraph 2.29 places restrictions on the employment of close relatives and partners of ministers and similar restrictions have existed since 1996, when Prime Minister Howard produced the first public statement of ministerial standards, A Guide on Key Elements of Ministerial Responsibility. Paragraph 2.30 prohibits ministers from engaging in sexual relations with their staff, a provision originally introduced by Prime Minister Turnbull on 15 February 2018.