Dr Michael Sloane, Politics and Public
Administration
Key issue
A series of bullying, harassment and sexual assault allegations in Commonwealth parliamentary workplaces were made public during the 46th Parliament. This led the Government to commission both a short-term review of the available support services (the Foster Review) and a comprehensive independent review of parliamentary workplace culture and regulation (the Jenkins Review). Some of the reviews’ recommendations were implemented before the 46th Parliament concluded; however, several more complex and historically contested reforms remain to be considered. These include establishing a code of conduct for parliamentarians and an appropriate investigation and enforcement process for apparent breaches.
Background
Commonwealth parliamentary
workplaces (CPW) are complex environments in which large numbers of people- working
under a variety of employment arrangements, each with its own reporting and
leadership structures- interact. The culture of these workplaces became the
focus of significant public attention during the 46th Parliament following
media reports of an alleged sexual assault of a ministerial staffer in Parliament House in March 2019. Subsequently, other allegations of mistreatment of members of parliament and political and
parliamentary staff have emerged. In response, the Australian Government
initiated multiple reviews and investigations, including the Foster and Jenkins
reviews in February and March 2021, respectively.
While many of the Foster
Review recommendations have been implemented, the more complex reforms
recommended by the Jenkins Review have not yet been completed. The Jenkins
Review envisages the implementation of recommendations occurring in several phases
over 2 years. Implementing the full suite of recommendations in the life of
the 47th Parliament will require action by parliamentarians, political parties,
the Government and its departments, and parliamentary departments.
Similar accusations relating
to bullying, sexual harassment and sexual assault have also arisen in several
state and territory parliaments, as well as in comparable overseas parliaments,
including those of the UK, New Zealand and Canada. In these
jurisdictions governments or parliamentary chambers have commissioned independent
reviews to gather evidence on parliamentary workplace misconduct and make
recommendations for improvement. Brief summaries of these recent developments,
as well as measures taken by Australian political parties to address bullying
and harassment, are set out in a recent Parliamentary Library research paper.
The Foster Review
On 16 February 2021 Prime Minister Morrison commissioned the Deputy Secretary of the Department of the Prime
Minister and Cabinet, Stephanie Foster, to prepare a report on: current
reporting procedures relating to serious incidents in the parliamentary
workplace, particularly assault and sexual assault; measures to implement
reporting and response processes that are independent from employers; and measures
to provide improved support to victims. Ms Foster’s review focused primarily on
parliamentarians and staff employed under the Members of Parliament (Staff) Act 1984 (MOP(S) Act)
Findings
Ms Foster’s review was
completed on 24 May 2021. Her report, Review of the parliamentary workplace: responding to
serious incidents identified 3 matters that required immediate
attention:
- the absence of readily accessible, timely,
independent, trauma informed services and response mechanisms
- a trusted independent complaint mechanism
capable of delivering proportionate consequences for misconduct
- adequate training and education for
parliamentarians and their staff.
Recommendations
The report made 10
recommendations, all of which were adopted by the Government. These recommendations included the establishment of
an independent complaints mechanism to handle serious incidents in the
parliamentary workplace that occurred after the 46th Parliament commenced. The
service, known as the Parliamentary Workplace Support Service (PWSS) was launched on 23 September 2021 and made available initially to MOP(S) Act
staff and parliamentarians.
A further recommendation proposed
that each House of the Parliament pass resolutions to recognise the independent
complaints mechanism and to set out a process where parliamentarians who fail to
cooperate with, or act on the recommendations of, a review may be referred to
the relevant privileges committee. Resolutions addressing this issue, and
declaring how the privileges committees must treat such a referral, where
passed on 18 October 2021 and 19 October 2021.
The report also
recommended amendments to the Statement of ministerial standards and the Statement of standards for ministerial staff to clearly articulate that assault, sexual assault, sexual
harassment, and serious and systemic bullying are not acceptable. The Statement of ministerial standards was amended on
8 April 2022 to include new provisions relating to the obligations of ministers
as employers and setting out how complaints concerning ministers’ conduct made
to the PWSS will be treated. The Statement of standards for ministerial
staff does not appear to have been amended as yet.
Further recommendations addressed:
- the need for all parliamentarians and their
staff to undertake training to understand their workplace health and safety
responsibilities and how to respond to unacceptable behaviour
- amendments to first response procedures for
Parliamentary Security Service officers and Australian Federal Police officers
- measures to monitor after-hours access to Parliament
House.
The Jenkins Review
The Sex Discrimination Commissioner, Kate Jenkins, commenced
an independent review on 5 March 2021 to identify measures to ensure
all CPWs are safe and respectful, and reflect best practice in preventing
bullying, sexual harassment and sexual assault. The final report, Set
the standard: report on the Independent Review into Commonwealth Parliamentary Workplaces,
was delivered on 30 November 2021.
Findings
An anonymous online survey of CPW employees was
conducted and revealed approximately half (51%) had experienced at
least one incident of bullying, harassment or actual or attempted sexual
assault in a CPW (p. 17). The report described systemic drivers and
institution-specific risk factors associated with bullying, sexual harassment
and sexual assault in CPWs, including:
- significant power imbalances between employees
- underrepresentation of women in senior roles and a lack of diversity
more broadly
- a lack of accountability and appropriate consequences for those
engaging in misconduct and limited recourse for those who have experienced
bullying, sexual assault or sexual harassment
- a lack of clear standards of behaviour in some CPWs and inconsistent
enforcement of standards
- some leaders in CPWs either being directly responsible for
misconduct, or lacking the skills necessary to prevent or discourage misconduct
by others
- political loyalties and interests, intense media and public scrutiny
and fears over job security leading to a reluctance to report or address misconduct
- high levels of pressure, travel, poor work/life balance and alcohol
consumption creating environments which increase the likelihood of bullying,
sexual harassment and sexual assault occurring
- employment structures that lead to high levels of job insecurity, particularly
for those employed under the MOP(S) Act, which discourage employees from
raising bullying, sexual harassment and sexual assault concerns. (pp. 14–16)
Recommendations
The report’s 28
recommendations intended to make improvements to CPWs in 5 areas: leadership;
diversity, quality and inclusion; systems to support performance; standards
reporting and accountability; and safety and wellbeing. Due to the complex
nature of parliamentary administration, responsibility for implementing these
recommendations is dispersed among a variety of different bodies. These include
the chambers and parliamentary departments, the Government and its departments,
parliamentarians and political parties. If all 28 recommendations are to be
successfully implemented, it will require cooperation from, and coordination
between, these various bodies that are not directed by any overarching
authority.
The Mid-year economic and fiscal outlook 2021–22 allocated $17.8 million over 4 years for costs
associated with implementing the report’s recommendations. This included $6.3
million for the PWSS, $6 million to establish an implementation taskforce, and
ongoing funding for workplace training programs and a dedicated support line
(p. 217). The 2022–23 Budget
further allocated $4.1 million to establish an Office of Parliamentarian
Staffing and Culture (OPSC)- with a shopfront located at Parliament House- and
expansion of the PWSS (p. 64).
Prior to the conclusion of
the 46th Parliament, the Government or Parliament had:
Every state and territory parliament
has adopted a code of conduct for parliamentarians; however, attempts to establish
such a code federally have failed since the issue was first raised in 1975
(this history is briefly discussed in a recent Parliamentary Library research paper (pp. 5–6)). The adoption of a code of conduct is critical
to establishing and consistently enforcing appropriate standards of conduct in
parliamentary workplaces, and potentially overlaps with current proposals to establish
a Commonwealth integrity commission. Some state integrity commissions can
investigate breaches of parliamentary codes of conduct, provided certain
thresholds are met (see, for example, sections 7–9 of the Independent Commission Against Corruption Act 1988 (NSW)). This
situation may be replicated federally, depending on how its scope is defined (see
the Briefing book article, 'National integrity commission').
Other more complex recommendations
remain, including proposals to establish an Office of Parliamentarian Staffing
and Culture (OPSC) and an Independent Parliamentary Standards Commission (IPSC)
(see recommendations 11–16 and 2). In both cases, the review intends these
bodies to be structured to provide them with independence from government or partisan
political pressure, while ensuring they are accountable to the Parliament.
The report proposes that
the OPSC be established as an independent, non-partisan institution, headed by
a statutory officer who is accountable to the Parliament. The OPSC would provide
support to parliamentarians and develop standardised policies, processes and
programs in relation to recruitment, induction, performance management,
professional development and career pathways. The OPSC would also deliver best
practice, mandatory respectful workplace behaviour training and people
management training (p. 22).
The IPSC would receive
disclosures and handle informal and formal complaints about misconduct. It
would also enforce relevant codes of conduct, make findings about misconduct,
recommend sanctions and also apply sanctions where they do not interfere with parliamentary
functions. The Jenkins Review envisaged that imposing sanctions on
parliamentarians would rely on powers delegated to the IPSC by the 2 Houses.
Where more serious sanctions are proposed, the IPSC would make a recommendation
to the relevant House for determination (p. 25).
Private member’s Bills
presented by successive members for Indi, Cathy McGowan in 2018, and by Helen Haines in 2020, each contained proposals to establish a Parliamentary Standards
Commissioner- an independent officer of the Parliament tasked with
investigating, making findings on and recommending sanctions in relation to
apparent breaches of applicable codes of conduct. The Bills proposed that the
commissioner would report to the relevant privileges committee and that any
sanctions would require the support of two-thirds of the members of the chamber
concerned. While these proposals predate the Jenkins Review, they illustrate how
a body similar to the IPSC might be legislated.
The report refers to the standards
framework as it relates to bullying and harassment complaints established by
the House of Commons in the UK, which includes processes for independent
investigations, review of more serious proposed sanctions by an Independent Expert
Panel, and imposition of more serious proposed penalties by the House of
Commons itself under its powers to punish contempts (p. 243). This process has
in one case resulted in the suspension of a parliamentarian for 6 weeks for conduct the Independent Expert Panel found
amounted to sexual harassment of a staff member.
The report also made
recommendations that sitting calendars and routines of business be reviewed by the
procedure committees of each House to limit practices that negatively affect parliamentary
workers, including long and late sittings hours (see recommendation 27). Additionally,
the report recommended the Presiding Officers review standing orders and
conventions to eliminate language, behaviour and
practices that are sexist or exclusionary, and improve safety and respect in
the chambers (see recommendation 10). These recommendations have not yet been
acted on; however, Prime Minister Albanese has expressed his aspiration to
run a family-friendly Parliament, and other
parliamentarians have expressed support for a variety of procedural reforms
in the House of Representatives in the context of a significantly expanded
crossbench. During the 46th Parliament the House
of Representatives Procedure Committee proposed reforms to Question Time, but
its
proposals were not supported by the Morrison Government.
Further reading
Australian Human Rights Commission (AHRC), Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces(the Jenkins Review), (Sydney: AHRC, 2021).
Parliamentary Leadership Taskforce, Jenkins Report Implementation Tracker, 18 March 2022
Stephanie Foster, Review of the Parliamentary Workplace: Responding to Serious Incidents(the Foster Review), (Canberra: Department of the Prime Minister and Cabinet, 2021).
Deirdre Mckeown and Michael Sloane, Parliamentary Codes of Conduct: a Review of Recent Developments, Research paper series, 2021–22, (Canberra: Parliamentary Library, 2021).
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