30
March 2022
PDF version [671KB]
Deirdre McKeown and Dr Michael Sloane
Politics and Public Administration
Executive
summary
Allegations of misconduct in a number of Australia’s
parliaments have drawn attention to the adequacy of existing frameworks
intended to regulate the conduct of those who work in this environment—including
members of parliament and their staff, ministers and their staff, and
parliamentary support staff. Members of the federal Parliament are not
currently subject to a code of conduct, while various codes do apply to
ministers, ministerial staff and parliamentary support staff. This contrasts
with Australian state and territory parliaments, which all have codes of
conduct, and with national parliaments overseas such as the United Kingdom,
Canada and New Zealand, which also have codes in place. This paper outlines the
variety of enforcement mechanisms these existing parliamentary codes of conduct
exhibit, the findings of the reviews that have been conducted into the
effectiveness of these arrangements in preventing bullying and harassment and
discusses how these might inform debate about a response at the federal level.
Contents
Executive summary
Introduction
Current federal parliamentary codes of
conduct
Ministers and Assistant Ministers
Senators and members
Ministerial staff, consultants and
ministerial electorate officers
Staff, volunteers and interns working
for senators and members
Parliamentary service staff
Australian public service (APS) staff
Political party codes of conduct
Australian Greens
Australian Labor Party
Liberal Party of Australia
The Nationals
Current arrangements and recent
inquiries in state and territory parliaments
Codes of conduct
Parliamentarians
Ministers
Parliamentary staff
Reviews and inquiries
New South Wales Parliament
Victorian Parliament
South Australian Parliament
Tasmania
Examples of overseas parliaments
dealing with allegations of bullying, sexual harassment and sexual assault
United Kingdom
Ministerial code of conduct
Codes of conduct covering members of
the House of Commons and members of the House of Lords
Role of the House of Commons
Parliamentary Commissioner for Standards
Inquiries into allegations of bullying
and harassment in the UK Parliament
The White report
The Ellenbogen report
Independent Expert Panel
Canada
Ministerial code of conduct
Members of the House of Commons and
their staff, and senators and their staff
Senate harassment and violence
prevention policy
Bill C-65
New Zealand
Inquiries and reviews initiated in
response to allegations of bullying, sexual harassment and sexual assault in
the Australian Parliament
Review of support processes available
to staff (the Foster review)
The Independent review into
Commonwealth Parliamentary workplaces (the Jenkins review)
Findings and recommendations of the
Jenkins review
Response to recommendations of the Jenkins
review
Conclusion
Appendix 1
Table 1: Codes of conduct covering
Ministers, members of parliament and staff working in the federal parliamentary
workplace
Table 2: Codes of conduct and
enforcement mechanisms affecting parliamentarians in Australian jurisdictions
Table 3: Ministerial codes of conduct
and enforcement mechanisms in Australian jurisdictions
Introduction
The workplace culture of the Commonwealth Parliament has
recently become the focus of public attention following media reports in
February 2021 of an alleged sexual assault of a ministerial staffer in
Parliament House in March 2019, and the emergence of a number of other
allegations of mistreatment of members of parliament and political and
parliamentary staff.[1]
Similar accusations relating to bullying, sexual harassment and sexual assault
have recently arisen in a number of Australia’s state and territory
parliaments, as well as in comparable overseas parliaments, including those of
the United Kingdom, New Zealand and Canada. Complex employment arrangements
covering the many types of staff that interact in the parliamentary
environment, as well as significant power imbalances between staff, and between
parliamentarians and staff, are also found across these parliaments.
This paper seeks to identify how the framework for
regulating workplace conduct in the federal parliamentary environment differs
from those of comparable parliaments, and what reforms these other
jurisdictions have implemented that might be adaptable to the federal
Parliament. The paper examines parliamentary responses to issues of workplace bullying,
sexual harassment and sexual assault by describing current codes of conduct and
other existing mechanisms in the federal Parliament, Australian state and
territory parliaments and selected overseas parliaments. The paper also
considers codes of conduct developed by the main political parties represented
in the federal Parliament. Finally, the paper discusses the reviews announced
by the federal Government in response to allegations made public in February
2021, and subsequent reports.
Given the specific focus of this paper on how parliaments
have addressed allegations of workplace bullying, sexual harassment and sexual
assault through codes of conduct and related disciplinary mechanisms, it does
not seek to address the many ways in which other aspects of parliamentary
behaviour are regulated. For example, it does not address integrity measures
relating to the disclosure of pecuniary interests and interactions with
lobbyists, nor the regulation of conduct during parliamentary debates. These
issues have been discussed in papers previously published by the Parliamentary
Library.[2]
The discussion also does not address the application of the
criminal law, which generally speaking operates separately and in addition to
workplace codes of conduct (although workplace procedures can be relevant to
ensuring the proper referral of matters to the police where appropriate).
Parliaments describe sexual harassment and assault issues in
many ways. Unless using a direct quote, this paper uses the terms ‘bullying,
sexual harassment and sexual assault’, which are the terms used by the
Government in its announcement of the Independent review into Commonwealth
Parliamentary workplaces (see below for more details of this review).[3]
Current
federal parliamentary codes of conduct
Unlike Australian state and territory parliaments and other
Westminster parliaments in Canada and the UK, MPs and political staff working
in the Australian federal parliament are subject to very few codes of conduct. Table
1 (Appendix 1) shows that even though ministers and ministerial staff are
subject to codes of conduct, these are weak, standalone codes with no
requirement for breaches to be dealt with by an independent arbiter. Senators
and Members are not subject to any codes of conduct, with issues often dealt
with by party leaders in response to pressure from the media and the public.
Similarly staff working for non-ministerial members of parliament have no code
of conduct. Only staff employed under the Parliamentary Service Act 1999
and the Public Service Act 1999 are subject to statutory codes with
breaches handled by the employing department and, depending on the service,
advice from the parliamentary service commissioner or public service
commissioner.
More information on the parliamentary workplace is
available in the Parliamentary Library publication Who works at
Parliament House?.[4]
The current federal parliamentary codes of conduct are
discussed below.
Ministers and Assistant Ministers
The Statement of ministerial standards covers ministers
and assistant ministers.[5]
The standards are issued in the name of the prime minister of the day, who is
also responsible for the implementation of the code. Section 7 states, in part,
that ‘[m]inisters must accept that it is for the Prime Minister to decide
whether and when a minister should stand aside’. The prime minister decides how
to deal with a breach and may seek advice from ‘an appropriate independent
authority’ or from ‘the Secretary of the Department of the Prime Minister and
Cabinet’ and the advice received from the Secretary may be made public by the prime
minister. There are no specific references in the Standards to bullying, sexual
harassment or sexual assault but section 2.24 does prohibit ministers from
engaging in sexual relations with their staff. The Standards include a strong
statement on criminal offences. Section 7.2 requires ministers to stand aside
if charged and resign if convicted of a criminal offence.
The Statement of ministerial standards is not ‘a law
or regulation’, it does not have ‘any formal parliamentary authorisation’ and
there is nothing to stop the prime minister as author of the document from
altering, amending or interpreting it in any way he or she sees fit.[6]
Senators and members
Discussion about the introduction of a code of conduct
covering members of parliament has continued for decades but a code has not yet
eventuated. The issue was first raised in the Joint Committee on Pecuniary
Interests of Members of Parliament, Report on Declaration of Interests
tabled in both houses on 30 September 1975. The committee noted that the
drafting of a code of conduct was beyond its terms of reference but ‘felt that
a precise and meaningful code of conduct should exist.’[7]
Since then there have been a number of unsuccessful efforts in the Senate and
the House of Representatives to introduce a code of conduct.
In 2010, a commitment to create a code of conduct for
senators and members was included in the agreements to form government.[8]
As a result, in 2012, the House of Representatives Standing Committee of
Privileges and Members’ Interests conducted a comprehensive inquiry into a
draft code of conduct for members and included a draft code in its report.[9]
Although a motion that the House endorse the code was passed, no further action
resulted.[10]
The Senate Standing Committee of Senators’ Interests report tabled on 29
November 2012 recommended that the Senate not adopt the code of conduct
proposed by the House of Representatives Committee.[11]
In 2017 the Australian Greens moved that the Senate acknowledge
a parliamentary code for respecting cultural diversity and in 2018 that the
Senate adopt a code of conduct for inclusion in the Senate Standing Orders.[12]
In each case the Senate Standing Committee on Procedure did not recommend
adopting the proposed codes.[13]
In the 46th Parliament bills proposing statutory codes of
conduct for senators and members of the House of Representatives and their
staff and the establishment of an independent Parliamentary Integrity Adviser
and a Parliamentary Standards Commissioner to investigate alleged breaches of
the applicable codes of conduct have been introduced by the Australian Greens
in the Senate and independent member for Indi Dr Helen Haines in the House of
Representatives.[14]
These recent bills have included the requirement that parliamentarians ‘must
not bully or harass any person’.[15]
Ministerial staff,
consultants and ministerial electorate officers
The Statement of standards for ministerial staff is published
on the website of the Special Minister of State.[16]
This code only covers ‘[m]inisterial staff and consultants and Ministers’
electorate officers employed under the Members of Parliament (Staff) Act 1984
(MOP(S) Act)’.[17] Although
ministerial staff are employed under the terms of the MOP(S) Act, it does not
contain a statutory code of conduct. There are no references to bullying,
sexual harassment or sexual assault. Notes published with the Statement state
that the implementation is the responsibility of the Prime Minister’s Office
and the Government Staffing Committee (GSC). Any sanctions imposed will
be determined after consultation with the relevant minister by the Prime
Minister’s Chief of Staff, acting on advice from the Special Minister of State
and the GSC.[18]
Professor Anne Tiernan from Griffith University has noted
that there has never been a substantive review of the governance framework that
supports ministerial staff, including ‘examining the basis on which they are
employed and managed, their relationship to the parliament or the community’.[19]
Another academic who has researched ministerial staff
arrangements, Dr Maria Maley, from the Australian National University, has
noted the lack of accountability of ministerial staff, despite a statement of
standards:
… we never hear about breaches of the [ministerial staff]
code because it is policed internally by senior figures in the government, the
members of the shadowy Government Staffing Committee … Since coming to power in
2013, the Coalition government has refused to provide any details about the
work of the committee.[20]
In a Budget Estimates committee hearing on 27 May 2021,
Senator Birmingham was questioned about the GSC. He stated that the ‘prime
function’ of the GSC related to appointments and in response to the question of
sanctions he advised that:
Sanctions in relation to staff can
constitute a number of potential steps. They would themselves have to be
imposed by an employing member or senator under the MOP(S) Act framework.[21]
He also confirmed that it was not the job of the GSC to
administer the Statement of standards for ministerial staff and that the
GSC did not receive reports on breaches of these Standards.[22]
Journalist Verona Burgess has noted that the three main
legal instruments that apply to parliamentary staffers are the MOP(S) Act, the Fair
Work Act 2009 and the Commonwealth Members of Parliament Staff Enterprise
Agreement.[23]
She said that, ‘[n]one exactly oozes with compassion or duty of care, let alone
provides for mandatory reporting of an alleged sexual or other serious criminal
offence’.[24]
In 2018 the Government commissioned an Independent Review of
the Australian Public Service which was conducted by an independent panel
chaired by former Telstra CEO David Thodey. His report included the following
measure (recommendation 11):
Amend the Members of Parliament (Staff) Act 1984 to
establish a legislated code of conduct, with appropriate enforcement
provisions, for advisors.[25]
The Government did not accept this part of recommendation
11, stating in its response that it ‘expects all ministerial staff to uphold
the highest standards of integrity and it uses a range of mechanisms to ensure
they are held to account for these standards’.[26]
Staff, volunteers and interns working for senators and
members
Staff working for senators and members who are not ministers
or assistant ministers are also employed under the terms of the MOP(S) Act but are
not subject to either a standalone code or a statutory code of conduct.[27]
Parliamentary service staff
Staff working in the four parliamentary departments are
employed under the Parliamentary Service Act 1999 and are subject to a
statutory code of conduct (section 13) which also
applies to departmental secretaries and statutory office holders (section 14). Parliamentary Service values are
included in the Act (section 10).[28]
Australian public service (APS) staff
Most ministers have one or two Departmental Liaison Officers
who are outposted from departments and some agencies to liaise between the
Ministers’ offices and their departments. There are also three Cabinet Liaison
Officers, two Parliamentary Liaison Officers and two Assistant Parliamentary
Liaison Officers who assist with the legislative program.[29]
These staff are employed by various departments under the Public Service Act 1999 which includes the APS code
of conduct (section 13) and APS values (section 10).[30]
Political party codes of conduct
The main parties in the federal parliament have published
national party codes of conduct which either include or are accompanied by
complaint procedures. All the national codes listed below include definitions
of sexual harassment, list options for dealing with breaches of the code, and
include procedures for dealing with complaints. Three of the four codes
distinguish between formal and informal complaints procedures. Professor Louise
Chappell from the University of NSW, noted the need for political parties to
develop ‘strong policies and accountability practices’ and suggested that:[31]
The ALP has started this process with its recent policy on
sexual harassment but it needs to go much further to address more serious forms
of abuse. The Liberal Party has developed a national code of conduct, but with
vague enforcement mechanisms and sanctions left up to state branches.[32]
Australian Greens
The Australian Greens Anti-sexual
harassment policy dated 2018 (reviewed 2021) and the accompanying Formal
and informal complaints process apply to ‘all Australian Greens related
contexts including (but not limited to) work-related context, work functions,
business trips, conferences, meetings, and social and volunteer events
organised by the Australian Greens’.[33]
The policy only applies to incidents involving MPs and their staff ‘where
internal staffing policies do not apply’.[34]
The policy contains a set of principles, including that ‘there will be at least
one female-identifying contact person at any given Australian Greens event’ and
that managers or supervisors who fail to respond to a complaint in accordance
with this policy may be subject to disciplinary action’.[35]
The policy includes a disciplinary action matrix according
to the ‘severity of harassment’.[36]
The disciplinary action ranges from formal training or guidance on appropriate
behaviour to suspension or expulsion from the party.
Australian Labor Party
In February 2021 the Australian Labor Party (ALP) published
four national policies: ALP National code of conduct, ALP National policy for sexual harassment and prevention
and response, ALP National policy for bullying and harassment
prevention and response and ALP National
complaints handling process.[37]
The code applies to ‘ALP members, elected ALP parliamentary representatives,
official (paid and unpaid), staff, contractors, volunteers and any person who
attends an ALP gathering or event (national level)’.[38]
It lists workplaces where the code applies and states that for particular
workplaces, including parliamentary workplaces, the ‘[c]ode is to be read
consistent with … [the] legal requirements, codes and disciplinary processes’
of that workplace.[39]
The National complaints handling policy lists the
consequences of a breach of the code and associated policies ranging from
counselling, an apology, conciliation/mediation, training, performance
management, a formal warning, demotion, to suspension or expulsion.[40]
This policy also sets out the process for handling complaints involving four
designated persons who ‘can provide informal advice to potential complainants
or receive complaints formally’ and specifies the role of the National Secretary.[41]
The current ALP member for Jagajaga, Kate Thwaites, and the
former member, Jenny Macklin, noted that ‘[o]ne of the biggest tests will be
whether the consequences of not following these policies and procedures are
serious enough to change behaviour’.[42]
Liberal Party of Australia
In 2019 the Federal Executive of the Liberal Party adopted
the National code of conduct and the Complaints and dispute
resolution policy following a review of complaints and dispute resolution
processes.[43]
The code notes that state and territory divisions ‘have
their own codes of conduct and their own disciplinary procedures or processes
for dealing with misconduct’ and states that complaints relating to ‘breaches
of the code should be dealt with in accordance with each Division’s complaint
and dispute resolution procedures and Constitution’.[44]
The Complaints and dispute resolution policy covers Liberal Party employees or
contractors, financial Liberal Party members or volunteers and Liberal Party
members of federal, state and territory parliaments.[45]
Under the Complaints and dispute resolution policy, state
directors are responsible for handling informal complaints and formal complaint
procedures.[46]
The director has the option of referring formal complaints to a state
Complaints and Dispute Resolution committee.[47]
The Policy lists possible outcomes available to the State Director ‘depending
on the nature of the complaint and the procedure followed to address the
complaint’.[48]
These range from counselling and an apology to termination of employment,
censure and suspension or expulsion.[49]
The Nationals
The National Party of Australia harassment protocol, dated
2018 applies to members of an Affiliated and Associated Party, persons
participating in functions and events of the Party, Party office bearers and
members of staff of the Party.[50]
The protocol defines sexual harassment and workplace bullying and states that
all complaints should be notified to the Federal Director who determines the
investigation process in consultation with the Federal President and the
Honorary Legal Adviser. The protocol also states that as ‘[m]embership of the
National Party of Australia is conferred by an Affiliated or Associate Party’
in some cases, ‘it will be the role of that organisation to investigate and
determine [the] process related to claims of harassment’.[51]
Current arrangements and recent inquiries in state and
territory parliaments
Codes of
conduct
Parliamentarians
As summarised in Table 2 (Appendix 1) below, all but one of
Australia’s state and territory parliaments has a code of conduct for parliamentarians
in place.[52]
The South Australian Parliament has not yet adopted such a code but has tasked
a joint committee with drafting a code to be considered by both Houses.[53]
The Western Australian Legislative Council has also not adopted a code, although
the Legislative Assembly has done so. These codes have been established by a
variety of means, including by resolution of each chamber of the parliament, by
inclusion in legislation, or in the case of Queensland, through publication by
a parliamentary committee pursuant to a legislative requirement.[54]
These existing codes generally focus on ensuring integrity
in public office and require parliamentarians to act in the public interest
rather than their private interest, avoid improper influence, use public
resources appropriately, disclose their interests to the parliament,
appropriately manage conflicts of interest and to treat constituents with
fairness and respect. While these codes often include general requirements that
parliamentarians maintain a high standard of conduct or refer to relevant
obligations under workplace or anti-discrimination legislation, they generally
do not contain explicit requirements in relation to bullying or harassment. The
codes of conduct for Queensland and Tasmanian parliamentarians are exceptions,
with the first stating that parliamentarians share in and support the
‘integrity, honesty, accessibility, accountability, fairness, transparency,
courtesy, respect and understanding, without harassment, victimisation or discrimination’,
and the latter stating:
Members should treat members of the public, officers and
employees of the Parliamentary Service and other public officials with
courtesy, honesty and fairness, and with proper regard for their rights,
obligations cultural differences, safety, health and welfare.
Members should not use abusive, obscene or threatening
language (either oral or written) or behaviour towards any officer, employee or
member of the public.[55]
Breaches of these codes of conduct are generally matters to
be dealt with by the relevant parliamentary chamber under established
procedures for dealing with matters of privilege. Uniquely, the ACT Legislative
Assembly has appointed a Commissioner for Standards who is responsible for
investigating complaints made against members in accordance with a published
protocol and, for serious matters, reporting to the Standing Committee on
Administration and Procedure, which will then recommend appropriate action to
the Assembly.[56]
State and territory integrity commissions are also able to investigate,
including by using significant coercive powers where necessary, and report on
the conduct of parliamentarians and ministers, provided the conduct meets the
thresholds set out in each commissions’ enabling legislation. As discussed in
relation to New South Wales below, the focus of these integrity commissions on
serious corruption and misconduct means misconduct that falls below these
thresholds may not be investigated by these agencies.
Ministers
As set out in Table 3 (Appendix 1) below, ministers of each
state and territory government are also subject to ministerial codes of conduct
issued by respective premiers or chief ministers. These codes are generally
published by the government and are not adopted by the parliament, nor
contained in legislation, with New South Wales being an exception as its
ministerial code of conduct is contained in delegated legislation.[57]
As with the parliamentary codes of conduct discussed above, these codes
generally focus on integrity in public office and address issues such as
compliance with the law, fairness in decision making, accountability to
parliament, the operations of cabinet, interactions with the public service,
interactions with lobbyists, registration of interests and management of
ministerial staff. These codes also include clauses requiring ministers to
maintain high standards in their public and private conduct, but generally do
not contain explicit references to harassment and bullying, with the exception
of Tasmania and South Australia. The South Australian ministerial code of
conduct now requires:
Ministers must not engage in sexual harassment or in other
forms of discriminatory behaviour (defined as discrimination based on one of
the protected attributes in the Equal Opportunity Act 1984; that is, age, race,
disability, sex, gender identity, sexual orientation, or caring
responsibilities).[58]
The Tasmanian ministerial code of conduct requires that:
Ministers are committed to ensuring and
enabling for both women and men a safe, respectful and inclusive environment
that is free from discrimination, harassment, sexual harassment and bullying, and that they are respected and valued and treated as
equals in both public and private life.
Ministers are to value diversity and work respectfully with
people of different cultures, ages, ethnicities, religions, abilities, and
sexual orientations and identities.’[59]
In all state and territory jurisdictions, the imposition of
sanctions for breaches of ministerial codes of conduct is left to the
discretion of the relevant Premier or Chief Minister.
Parliamentary
staff
Beyond parliamentarians and ministers, there are a range of
categories of staff working in the state and territory parliamentary
environment, including ministerial staff, electorate office staff, chamber and
committee support staff and parliamentary services staff. Employment
arrangements for these different groups vary across state and territory
jurisdictions but, broadly speaking, they are subject to codes of conduct which
either address bullying and harassment explicitly or include general good
conduct requirements.[60]
However, as discussed below, the adequacy of these codes and associated
enforcement mechanisms have been the subject of recent reviews.
Reviews and
inquiries
New South
Wales Parliament
Former Sex Discrimination Commissioner and former NSW
Liberal Minister, Pru Goward, was recently invited by the then NSW Premier,
Gladys Berejiklian, to review ‘the adequacy of policies and procedures
concerning bullying, harassment, and sexual misconduct in Ministerial offices’.[61]
Ms Goward’s report was completed on 19 April 2021.
Ms Goward made 13 recommendations, including:
development of a best practice Respectful Workplace Policy,
including investigative and reporting procedures (recommendation 1)
training for Ministers and their staff on what constitutes
bullying, harassment, and sexual misconduct and how to manage a complaint about
these issues. Chiefs of Staff should be provided with additional training and
support. (recommendation 3)
an independent person should receive complaints of misconduct
from Ministerial staff and may conduct investigations of complaints
(recommendation 7).[62]
The report concluded ‘that the protections and processes
available to Ministerial staff are unclear, ineffective and inadequate’.[63]
The report was described as ‘brutal’ by the Premier, but a media article
suggested that the Goward report faced criticism because ‘it had failed to
adequately address some of the issues facing staff in the NSW Parliament, and …
some of the remedies didn’t go far enough’ and had failed ‘to recommend
sanctions for ministers who engage in misconduct’.[64]
The Premier has indicated that the Government will accept all of the report’s
recommendations and that ‘there will be an opportunity for consultation in the
next phase of this process’.[65]
The Presiding Officers announced on 27 July 2021 that the
Parliament had engaged former Sex Discrimination Commissioner Elizabeth
Broderick to conduct a six month review of the parliamentary workplace in order
to ‘provide expert advice to the Parliament to ensure a workplace free from
bullying, harassment and sexual misconduct.’[66]
The announcement of this further review was welcomed by the Deputy Speaker of
the Legislative Assembly in her capacity as chair of the Parliament’s recently
established advisory group on bullying, sexual harassment and sexual
misconduct.[67]
This advisory group comprises ‘Members, Members' staff, parliamentary staff,
relevant managers and other representatives and stakeholders.’[68]
A report containing the findings and recommendations of the review by Ms
Broderick will be provided to the New South Wales Parliament and made public in
April 2022.[69]
In addition to these two external review processes, the two
Houses of the New South Wales Parliament have recently been engaged, through
their respective privileges committees, in deliberations on the establishment
of a ‘parliamentary compliance officer’ and on amendments to the code of
conduct for members of parliament. The proposal that an ‘external third party
to deal with complaints concerning members’ be established was outlined in a
2013 report of the NSW Independent Commission Against Corruption (NSW ICAC),
with the intention of better addressing complaints against parliamentarians that
fall outside the jurisdiction of the NSW ICAC.[70]
However, the privileges committees of the Legislative Assembly and Legislative
Council were unable to reach agreement on a model for a parliamentary
investigator at that time.[71]
While the proposal had in this earlier phase been focused on
addressing gaps in the regulation of members’ conduct in relation to
entitlements and declarations of interests, it was revived in 2020 with a new
focus on addressing bullying, harassment and sexual harassment by members of
parliament. At the direction of the Presiding Officers, the Clerks of both
Houses and the Chief Executive of the Department of Parliamentary Services
developed a joint proposal to establish a position of ‘compliance officer’,
which was referred to the two privileges committees in November 2020.[72]
The proposal included among the functions of the compliance officer the
confidential receipt and investigation of complaints against members in
relation to: misuse of allowances and entitlements; other less serious
misconduct matters falling short of corrupt conduct; allegations of bullying
harassment and other types of grievances; and minor breaches of the pecuniary
interests disclosures scheme.[73]
The proposal also included an amendment to the Members Code of Conduct to
include the explicit requirement that ‘Members must treat their staff and each
other and all those working for Parliament in a manner compatible with a safe
workplace, free from harassment’, and a note referring to section 22(b) of the Anti-Discrimination
Act 1977 (NSW) under which it is an offence for a member of either House of
Parliament ‘to sexually harass a workplace participant or another member in the
workplace, or for a workplace participant to sexually harass a member.’[74]
The Legislative Council Privileges Committee reported on the
proposal in May 2021 and recommended a number of amendments to the resolution
of appointment of the compliance officer and to the proposed additions to the
Members Code of Conduct.[75]
The Legislative Assembly Parliamentary Privilege and Ethics Committee reported
in July 2021, and also recommended a number of amendments to the proposed
resolution of appointment, and did not agree with the proposed additions to the
Members Code of Conduct in light of legal advice about the operation of the Anti-Discrimination
Act 1977 (NSW).[76]
While both committees expressed support for the establishment of a compliance
officer, they have each proposed a range of different recommendations as to the
precise scope and responsibilities of the role and associated amendments to the
Members Code of Conduct.
Victorian
Parliament
It was reported in February 2021 that the Speaker of the
Victorian Legislative Assembly is examining options for reforming the code of
conduct for members of parliament, a process that also involves the President
of the Legislative Council.[77]
This process was also cited in May 2021 in response to reports about the
behaviour of a Labor MP in his parliamentary office, with a spokesman for the
Speaker stating that ‘Parliament is currently working in a bipartisan manner to
develop a framework for member behaviour to better respond to complaints about
bullying and sexual harassment.’[78]
A media report indicated that one proposal under consideration involved the
appointment of an independent commissioner who would either be granted the
power to impose sanctions on members directly or be required to recommend to
the relevant House that it impose certain sanctions on a member.[79]
The report suggested that no objections had been raised to the proposal by
members of parliament during the consultation period and that the proposed
‘system will almost certainly be introduced, with the detail to be finalised by
a committee and drafted into legislation.’[80]
In March 2021 the Victorian Government also established a
ministerial taskforce for sexual harassment to ‘investigate ways to prevent
incidents of sexual harassment in the workplace’. The taskforce will consider
the threshold for mandatory reporting of workplace sexual harassment, but the Minister
for Workplace Safety was ‘unable to say whether the new workplace laws,
including the mandatory reporting of sexual harassment, would apply to MPs and
staff working at Parliament House.’[81]
South
Australian Parliament
On 12 November 2020,
both Houses of the South Australian Parliament agreed to a motion moved by the then
Attorney-General, Vicki Chapman, that noted ‘the prevalence and nature of
harassment in the parliamentary workplace’ and requested the Equal Opportunity
Commissioner to ‘consider the reporting of harassment in the parliamentary
workplace, including existing complaint mechanisms and any cultural and
structural barriers, including potential victimisation, to reporting’ and
provide recommendations to improve awareness of, enhance protection against and
respond appropriately to sexual harassment.[82]
The Equal
Opportunity Commission presented its Review of Harassment in the South
Australian Parliament Workplace to the Houses of the South Australian
Parliament in February 2021.[83]
The report referred to the events that had led to the motion passed by the SA
Parliament:
Preceding this [the motion], Members of Parliament had
expressed concerns about the occurrence and responses to specific incidents of
alleged harassment in the parliamentary workplace. In particular, throughout
2020 there had been concerns expressed in the Houses about alleged incidents of
sexual harassment by a Member of Parliament at a 2019 Christmas party at
Parliament House.[84]
The report discussed
the application of the South Australian Public Sector Code of Ethics to
the various categories of employees in the parliamentary environment, and the
avenues available for raising complaints in the parliamentary environment,
finding that:
… there are few, and in some parts of the workplace no,
procedures setting out internal complaint handling avenues. Where harassment
victims sought to lodge complaints within the parliamentary workplace, the
processes adopted did not reflect good complaint handling practice and the outcomes
reached were viewed by the complainants as being unsatisfactory. None of the
complaints processes the Review was informed about led to an outcome the
Commission would consider an appropriate outcome or to a finding of harassment
with sanctions. This is despite the fact that in [sic] least some of matters
examined it appears likely that harassment had occurred.[85]
The report made 16
recommendations which included a significant number of reforms to the
administration of the Parliament to be implemented by a newly formed
centralised human resources function to be called the People and Culture
Section.[86]
The report also recommended that the Houses introduce a code of conduct for
members of parliament, which:
(a) amongst other standards, provides that Members of
Parliament must not engage in sexual harassment or other forms of
discriminatory behaviour
(b) provides for a process whereby, following an
investigation pursuant to the Independent Commissioner Against Corruption
Act 2012 and findings of misconduct being made against a Member of
Parliament, a report is furnished to the relevant House to consider and, if
appropriate, make recommendations that the Member of Parliament is sanctioned
for the misconduct
(c) sets out a range of sanctions which may be imposed for a
breach of the Code including a reprimand, a financial penalty and reduction of
privileges.[87]
As noted above, the report suggested that the South
Australian Ministerial Code of Conduct be amended to make ‘specific reference
to sexual and discriminatory harassment to indicate that this type of behaviour
by Ministers will not be tolerated’, a recommendation that has been
implemented.[88]
The Commission considered that the amendments made in
October 2020 to the Equal Opportunity Act 1984 (SA) to capture instances
of sexual harassment of a member of parliament by another member of parliament
to be a ‘demonstration of commitment amongst Members of Parliament to
addressing sexual harassment in their workplace’.[89]
However, the report also recommended further amendments be made to the Act to
limit the circumstances in which presiding officers may become involved in
handling complaints that may impinge on parliamentary privilege.[90]
A Joint Parliamentary Committee was established to examine
the recommendations of the report and develop a draft code of conduct.[91]
The committee delivered its final report on 28 October 2021 and
recommended that its proposed code of conduct be adopted through resolutions of
each House of the South Australian Parliament and also be incorporated into the
standing orders of each House.[92]
With respect to behavioural standards, the code proposed by the committee
requires that Members of Parliament must not ‘harass, sexually harass, or
discriminate against’ a member of their staff, another Member of Parliament, a
member of the staff of another Member of Parliament, an officer or member of
the staff of the Parliament, or any other person who in the course of
employment performs duties at Parliament House.[93]
The committee did not support a proposal made by the South Australian
Independent Commissioner Against Corruption that a parliamentary conduct
commissioner be established to investigate and report on apparent breaches of
the code, preferring instead that the South Australian Ombudsman conduct
investigations and that sanctions be a matter for the parties, the parliament
and the electorate.[94]
Tasmania
In the context of a number of recent allegations concerning
the conduct of members of parliament, ministerial staff and candidates, the Government
of Tasmania announced that it would request the Tasmanian Anti-Discrimination
Commissioner to conduct a review of ‘the current policies and practices in
relation to providing appropriate responses to harassment, including any
legislative, regulatory, administrative, legal or policy gaps associated with
parliament, ministerial and parliamentary services and electoral offices.’[95]
The Commissioner has also been tasked with making recommendations as to:
- Any
actions that should be taken to increase awareness of the impact of workplace
discrimination, sexual harassment and bullying and improve workplace culture within
MPS, including training and the role of leadership in promoting a workplace
culture that does not tolerate workplace harassment.
- Any
changes that should be made to legislative, regulatory, administrative, legal
or policy areas to enhance protection against, and provide best practice
responses to, workplace discrimination, sexual harassment and bullying within
MPS.
- Any
other actions or changes necessary to ensure a safe and respectful workplace
free from workplace discrimination, sexual harassment and bullying within MPS
and that set the standard for the broader community on best practice workplace
policies and procedures that enable safe and respectful workplaces.[96]
The review has invited written submissions from, and will
conduct interviews with, members of parliament and staff with the intention of
completing a report by the end of 2021. The Anti-Discrimination Commissioner
intends to publish a report on their findings and recommendations by mid-2022.[97]
Examples of overseas parliaments dealing with allegations
of bullying, sexual harassment and sexual assault
The United Kingdom (UK) and Canadian parliaments have
longstanding parliamentary accountability mechanisms in place, but these
parliaments have also had to deal with allegations of bullying, sexual
harassment and sexual assault. The New Zealand Parliament has also dealt with
similar allegations.
United Kingdom
Ministerial
code of conduct
Ministerial conduct is governed by a Ministerial Code,
with the current version of the code issued by Prime Minister Boris Johnson in
August 2019.[98]
The code’s general principles include the following statement on behaviour:
Harassing, bullying or other inappropriate or discriminating
behaviour wherever it takes place is not consistent with the Ministerial Code
and will not be tolerated.[99]
Ministers are also required to comply with codes of conduct
for their respective Houses and with any requirements placed on them by the
House of Commons’ Independent Parliamentary Standards
Authority.[100]
The Ministerial Code states that it is not the role of the Cabinet Secretary or
other officials to enforce the code.[101]
The Prime Minister can ask the Cabinet Office to investigate a breach of the
code and/or refer the matter to the Independent Adviser on Ministers’ Interests.[102]
Media articles on recent alleged breaches of the code have noted that the
Adviser cannot initiate inquiries and that the Prime Minister retains power to
exonerate himself and ministers.[103]
One commentator has suggested more radical changes to the code:
… the UK’s Ministerial Code has no real status. It can be
rewritten by the Prime Minister. It could be withdrawn by the Prime Minister if
it proved too annoying …
Better might be to rewrite the Ministerial Code, to make sure
it covers relations with party donors, former colleagues, and any hint of
improper influence; to put it in statute; and to make the Independent Adviser
[on ministerial interests] a parliamentary appointment not a prime ministerial
one, with an ability to report directly to Parliament.[104]
Codes of
conduct covering members of the House of Commons and members of the House of
Lords
Members of the House of Commons are subject to a Code of
Conduct and Guide to the rules relating to the conduct of members.[105]
The code of conduct was first adopted by Resolution of the House of Commons in
1996.[106]
A similar Code of Conduct and Guide to the Code of Conduct, applying to
members of the House of Lords was introduced in March 2002. The current
document, dated July 2020, also includes a Code of Conduct for
House of Lords Members’ Staff.[107]
The codes and the guide are reviewed by the House of Lords Conduct Committee
with recommended changes agreed by the House of Lords.[108] The committee is also
responsible for overseeing the work of the House of Lords Commissioners for
Standards.[109]
Role of the
House of Commons Parliamentary Commissioner for Standards
The independent Parliamentary Commissioner for Standards
(PCS), established under House of Commons standing order 150, is responsible
for investigating allegations of breaches of the rules of conduct in paragraphs
11-18 of the House of Commons’ code of conduct.[110]
The Commissioner is an independent officer of the House of Commons.
The PCS website states that the Commissioner has oversight
of investigations conducted under the Independent Complaints and Grievance
Scheme:
The Commissioner is the decision-maker for investigations
conducted under the scheme, investigating allegations from the parliamentary
community about harassment, bullying or sexual harassment by MPs’.[111]
The Guide to the rules relating to
the conduct of members sets out the procedure where the Commissioner
has concluded that there has been a breach of the rules, and the Committee on
Standards has agreed in whole or in part, those concerned face a range of
penalties.[112]
The Committee may recommend:
a) a written apology;
b) for relatively minor failures to declare interests, an
apology on the floor of the House by means of a point of order;
c) an apology on the floor of the House by means of a
personal statement;
d) for non-Members, withdrawal of Parliamentary passes,
either indefinitely or for a fixed period;
e) suspension from the service of the House for a specified
number of sitting days (during which time the Member receives no salary and
must withdraw from the precincts of the House.)
In the most serious cases the Committee has the power to
recommend expulsion. While the House itself decides whether a Member should be
suspended, its practice has been to accept the Committee’s recommendations on
such matters.[113]
The PCS may also refer cases to the recently established Independent
Expert Panel (IEP).[114]
The core function of the Panel is ‘to determine complaints of bullying or
harassment under the Independent Complaints and Grievance Scheme (ICGS)’.[115]
The IEP is ‘entirely independent of MPs, with no MPs taking part in its
decisions’.[116]
The IEP website outlines the Panel’s role:
The Panel will determine sanctions in cases referred by the
PCS where she is not able to rectify the case using the sanctions available to
her.
The sanctions determined by the Panel could include the
suspension or expulsion of an MP, which requires action by the House. In these
cases, the House will consider a motion to impose the sanction.[117]
The Committee on Standards has recently completed a report
canvassing possible reforms to the system of sanctions for breaches of the
rules set out in the code of conduct for members of parliament and also
commissioned a legal adviser to review the extent to which standards of
fairness and natural justice are observed in the House’s standards system. The
latter review recommended, among other matters, that a right of appeal from
decisions of the Committee on Standards should be afforded in certain
circumstances.[118]
Inquiries
into allegations of bullying and harassment in the UK Parliament
In November 2017, the New Stateman published a report
on incidents of sexual harassment in Westminster over many years and noted that
it was very ‘difficult to report sexual harassment at Westminster’. [119]
The article also observed that:
The main victims of sexual harassment appear to be staffers,
who … tend to be directly employed by their MP, [and] are at the bottom of the
Westminster food chain …[120]
On 8 March 2018 the BBC Newsnight program reported that
there was:
… a bullying and sexual harassment problem at the House of
Commons. Women face greater obstacles holding jobs in the engine room of our
democracy than men.[121]
Newsnight quoted one former House of Commons staff member
saying that her career at the House of Commons didn't end when she was sexually
harassed. Her career ended when she complained.[122]
In response to public allegations of bullying and harassment
in the UK Parliament three independent reviews were established. The reviews
were initiated by the governing bodies of both Houses, the House of Commons
Commission (Cox and White reviews) and the House of Lords Commission
(Ellenbogen review).[123]
The Cox and White reports were tabled in the House of Commons; the Ellenbogen
report was tabled in the House of Lords. These three independent reviews are
described below.
The Cox report
The House of Commons Commission ‘decided [in March 2018]
that there should be an inquiry into the nature and extent of bullying and
harassment, the procedures available to address them and the general culture of
the House as a place of work’.[124]
It was agreed that this inquiry should be carried out independently. The tasks
of appointing someone to conduct the inquiry and of agreeing appropriate terms
of reference were delegated to the two non-executive members of the Commission.[125]
On 23 April 2018 Dame Laura Cox QC was appointed to conduct
the inquiry and asked to ‘lay [her] … report before the House at its
conclusion’.[126]
Her report, The bullying and harassment of House of Commons staff, was
published on 15 October 2018.[127]
Before the completion of the report, the House of Commons resolved, on 19 July
2018, to adopt a new complaints procedure: an Independent Complaints and
Grievance Scheme (ICGS) consisting of a Behaviour code covering everyone
working or visiting the parliamentary estate, a Bullying and harassment policy
and a Sexual misconduct policy.[128]
During debate on the motion to adopt the new scheme, Dawn Butler (Labour) noted
that:
Behaviour or sexual harassment codes will not work on their
own, but as a statement of principle, they are an excellent start with regard
to our cultural intent, and they set the parameters in terms of behaviour.[129]
On 17 July 2019, in response to a House of Commons
Commission recommendation, the House of Commons amended the ICGS to allow
historic (non-recent) cases to be considered under the Scheme.[130]
The UK Parliament has published additional information on the ICGS, which
includes detailed guidance on reporting sexual misconduct, and instances of
bullying and harassment and also discusses support available to complainants.[131]
The White
report
The report by Gemma White QC, Bullying and harassment of
MPs’ parliamentary staff – independent inquiry report, concerned staff of
members of the House of Commons as well as Members themselves.[132]
The House of Commons Commission responded to the report on 16 July 2019, and
welcomed the principles and overall conclusions.[133]
The response noted that although the House of Commons did not employ the staff
of MPs and agreed with Gemma White that this should not change, the Commission
accepted the principle that the arrangements for the employment of MPs' staff
should reflect a modern workplace including the creation of a new HR
department.[134] The
Commission also urged MPs to approve the motion to ‘open the ICGS to non-recent
cases and to former members of the parliamentary community’.[135]
In May 2020, the House of Commons Commission, confirmed that it had ‘agreed to
establish the Members Services Team which will deliver the recommendations of
Gemma White QC’.[136]
The Ellenbogen
report
The report by Naomi Ellenbogen QC, An independent inquiry
into bullying in the House of Lords, concerned House of Lords members and
their staff and administrative staff employed by the House of Lords.[137]
On 18 July 2019 the House of Lords Commission responded to the report’s
recommendations, including agreeing to some initial steps.[138]
Independent
Expert Panel
On 23 June 2020 members of the House of Commons approved
motions to establish an Independent Expert Panel (IEP).[139]
The core function of the IEP is ‘to determine complaints of bullying or
harassment under the Independent Complaints and Grievance Scheme’ (discussed
above).[140]
The IEP is ‘entirely independent of MPs, with no MPs taking part in its
decisions’ and it is not a Committee of the House of Commons.[141]
The Panel determines sanctions in cases referred by the PCS where the
Commissioner is not able to rectify the case using the available sanctions.[142]
The IEP website describes the sanctions available to the
Panel:
The sanctions determined by the Panel could include the
suspension or expulsion of an MP, which requires action by the House. In these
cases, the House will consider a motion to impose the sanction …
Less severe sanctions will be imposed directly by the Panel.[143]
The operation of the IEP is illustrated in its consideration
of the conduct of Conservative MP Rob Roberts.[144]
The Panel noted that this was ‘one of the first cases that has been referred to
the Panel to determine sanction, and as such there are as yet no precedents to
follow’.[145]
On 25 May 2021, the Panel found that Roberts ‘had acted in breach of
Parliament’s sexual misconduct policy’ and recommended that he ‘should be
suspended from the service of the House for six weeks’.[146]
The Panel rejected appeals from Mr Roberts on the initial finding and the
sanction.[147]
The Chair of the Panel noted that he was ‘required to report to the House as
the Panel has determined a sanction that can only be imposed by the House’.[148]
On 27 May 2021 the House of Commons voted to suspend Mr Roberts
‘from the service of the House for a period of six weeks’.[149]
In April a BBC news item had noted that sanctions of this nature recommended by
the IEP ‘do not automatically trigger the Recall of MPs Act 2015’, which
provides a means of forcing a by-election where an MP has been convicted of an
offence or suspended from the House following a recommendation of the Committee
for Standards.[150]
The IEP report on Mr Roberts similarly noted that:
The process for a petition under the Recall of MPs Act 2015
is not triggered by a suspension imposed on the recommendation of the [IE] Panel.
For a recall to be initiated, the sanction must be imposed on the
recommendation of the Committee on Standards, or another Committee of the House
of Commons concerned with standards of conduct. The Independent Expert Panel is
not a Committee of the House of Commons.[151]
Leader of the House of Commons, Jacob Rees-Mogg, referred
to this anomaly before the House voted to suspend Mr Roberts, stating that
there have been concerns about the discrepancy between ICGS and non-ICGS cases
and confirming that he had asked the chairman of the IEP if changes should be
made to the current process to enable recall to be triggered.[152] He
also noted that it is ‘ridiculous that we have a higher sanction for somebody
who uses a few envelopes incorrectly than for somebody who is involved in
sexual misconduct’.[153]
When his suspension ended on 8 July 2021, Mr Roberts
returned to the House of Commons as an independent because the Conservative
whip had been withdrawn (although he remained a member of the party).[154]
He had previously been urged by the Leader of the House of Commons, Jacob
Rees-Mogg, the Leader of the Labour Party, Sir Kier Starmer and other UK
ministers to resign.[155]
On 8 September 2021, the BBC reported that Mr Roberts had
been suspended from the Conservative Party for 12 weeks.[156]
The suspension ended on 1 November 2021.[157]
A House of Commons Library paper on recall elections
outlines the recall procedure which was introduced in 2015 in response to the 2010
MPs’ expenses scandal.[158]
MPs can only be recalled under certain circumstances and there are no plans to
extend recall to other elected officials.[159]
Canada
Ministerial
code of conduct
Guidance on ministerial responsibility and standards of
conduct is available in the 2015 guide, Open and accountable government,
which is available on the Prime Minister’s website.[160]
The guide:
… sets out core principles regarding the roles and
responsibilities of Ministers in Canada’s system of responsible parliamentary
government. This includes the central tenet of ministerial responsibility, both
individual and collective, as well as Ministers’ relations with the Prime
Minister and Cabinet, their portfolios and Parliament. It outlines standards of
conduct expected of Ministers as well as addressing a range of administrative,
procedural and institutional matters.[161]
The guide also contains a code of conduct for ministerial
exempt staff, that is ‘all persons appointed to positions in the office of a
Minister under section 128 of the Public Service Employment Act’.
There are no references to bullying, sexual harassment or
sexual assault in the guide.
The guide operates in conjunction with the legislative code
governing Ministers’ behaviour, the Conflict of Interest and Post-Employment
Code for Public Office Holders, contained in the Federal Accountability Act
2006.[162]
Members of
the House of Commons and their staff, and senators and their staff
In 2014 allegations were made public about the sexual
harassment of two women MPs.[163]
In response to these claims, the Canadian House of Commons, like its UK
counterpart, ‘adopted rules to prevent non-criminal violence and abuse in the
parliamentary workplace’.[164]
In December 2014, the Board of Internal Economy (the
governing body of the House of Commons) approved the House of Commons policy
on preventing and addressing harassment.[165]
This policy applied to Members and House Officers (members appointed to
organise the work of their party in the House and its committees) as employers,
to their employees, and to political party Research Office employees.[166]
The 2015–16 annual report on the policy, which covered its first 16 months of
operation, noted that the Policy ‘applies to Members as employers and does not
cover situations between Members‘.[167]
It also stated that:
Employees covered under a collective agreement as well as
employees of the House of Commons Administration are excluded from the
application of this policy and are covered by separate frameworks.[168]
In January 2021, the Board approved a new policy, Members
of the House of Commons Workplace Harassment and Violence Prevention Policy,
which applies to Members and House Officers as employers, to their employees,
and to Research Office employees.[169]
As in the 2014 version, the policy does not cover situations between Members;
these are covered by the Code of Conduct for Members of the House of
Commons: Sexual Harassment.[170]
The 2020–21 annual report on the new policy noted that:
The updated policy sets out the specific duties of employers
to investigate, record and report all occurrences of harassment and violence.
It strengthens the focus on the prevention of harassment and violence, the
timely and effective processing of complaints, and the support to be provided
to affected employees.[171]
The Standing Committee on Procedure and House Affairs, in
its 38th report, recommended that the Code of Conduct for Members of the
House of Commons: Sexual Harassment be added as an appendix to the House of
Commons Standing Orders, which came into effect at the start of the 42nd
Parliament in 2015 (Appendix 2).[172]
An article by Canadian political scientists comparing, in part, ‘formal
gendered rules in Canada and the UK’ noted that:
In 2015 the Canadian House of Commons became the first
legislature in the world to adopt an MP-to-MP Code of Conduct on Sexual
Harassment, which was amended to the Standing Orders of the House of Commons.[173]
But the authors suggested that the result has been that ‘these
new rules have been ”nested” on top of existing ethics regulations in ways that
will enable politicians to largely self-police sexual harassment in parliament’.[174]
They concluded that:
… the Canadian Parliament has developed a less independent
ethical machinery with more self-regulation compared with the British
Parliament, which has been more open to external oversight in recent years.[175]
Senate harassment
and violence prevention policy
In 2009 the Senate adopted the Senate
Policy on the Prevention and Resolution of Harassment in the Workplace, which applies to Senators, their staff, employees of the Senate
Administration, contractors and their staff and volunteers.[176] It included references to
sexual harassment.[177]
On 16 February 2021, a new harassment and
violence prevention policy was tabled in the Senate.[178] The policy was drafted by:
… senators on the Subcommittee on Human
Resources with extensive input from the Senate’s Policy Health and Safety
Committee, which includes representatives from all categories of Senate
employees. The policy was approved by the Standing Committee on Internal
Economy, Budgets and Administration on February 11, 2021.[179]
The new policy introduced the position of an impartial
third party to handle complaints of inappropriate conduct and reflected the
legislative changes introduced by Bill C-65, discussed below.[180]
Opponents of the policy argued that it did not deal with the issue of
senator-on-senator abuse and suggested that the privacy provisions relating to
complainants were too restrictive.[181]
Bill C-65
In 2018, legislative changes (collectively referred to as Bill
C-65) were passed and took effect from 1 January 2021.[182]
Bill C-65 included amendments to the Parliamentary Employment
and Staff Relations Act.[183]
A detailed explanation of the legislative changes, prepared by the Library of
Canada, stated that:
Bill C‑65 modifies the existing framework
under the Canada Labour Code …
for the prevention of harassment and violence, including
sexual harassment and sexual violence, in workplaces under federal
jurisdiction ... It also amends the Parliamentary Employment
and Staff Relations Act … in order
to expand these protections to parliamentary workplaces, “[without]
limiting in any way the powers, privileges and immunities
of the Senate and the House of Commons
and their members”.[184]
New Zealand
On 27 November 2018, the Speaker of the New
Zealand (NZ) House of Representatives, Trevor Mallard, announced an independent
review into the problem of bullying and sexual harassment in the NZ
Parliament dating back to October 2014.[185] The Speaker said that the review would be carried out by an
independent, external reviewer, Debbie Francis, who had experience doing
similar work with police and defence.[186]
Ms Francis had also carried out past reviews of Parliamentary Services. The news and current affairs site, Newsroom, detailed some of
the recent, serious instances of bullying and sexual harassment that led to the review.[187]
Ms Francis presented her report, External
Independent Review: Bullying and Harassment in the New Zealand Parliamentary
Workplace, to the Speaker in May 2019.[188]
The report made 85 recommendations and discussed in detail the risk factors for
bullying and harassment in the parliamentary workplace.[189] On the issue of a code of
conduct Ms Francis proposed that a Parliamentary Workplace Code of Conduct be
developed, agreed and embedded in job descriptions, induction material and
employment agreements (individual or collective) of all parliamentary managers
and staff.[190]
She also recommended that all Members sign, on commencement, an explicit
agreement to abide by the Parliamentary Workplace Code of Conduct and that the
code feature in the Member induction process.[191] Ms Francis noted that ‘Parliament
must become more like the real world it represents’ and in reference to ‘parliamentary
leaders - both managers and elected leaders’ she advised that they ‘must become
the consistently aspirational role models New Zealanders expect them to be’.[192]
The New Zealand Parliament published a set of ‘behavioural
statements’, but it is not clear if this document is intended to function as
the code of conduct recommended by the Francis review.[193]
In July 2020 a media report indicated that the
New Zealand Parliamentary Service was continuing to work through the report’s
85 recommendations, some of which deal with reporting processes and support for
staff.[194]
Another report noted the reluctance of some MPs to agree to a code of conduct
and an independent commission to deal with breaches of the code.[195] In late July 2020 it was
reported that the Speaker had released a code of conduct drafted by a
cross-party group of MPs.[196]
The code outlined ‘seven key commitments to create a safer workplace and
discourage bullying or harassment’ but the Speaker said ‘the code was not compulsory
and Parliament would not vote on it, but he hoped all political parties would
get on board’.[197]
Although all parties have signed on a ‘voluntary basis, leaving the speaker and
party whips to enforce’ the code, there has been no agreement on the creation
of an independent complaints commissioner.[198]
Inquiries and reviews initiated in response to allegations
of bullying, sexual harassment and sexual assault in the Australian Parliament
Following media reports in February 2021 of an alleged
sexual assault of a ministerial staffer in Parliament House in March 2019, a
criminal investigation was launched by ACT Policing. The Prime Minister also
initiated two inquiries into the actions of staff in the Prime Minister’s
Office in relation to the incident and requested two Coalition MPs review the
culture within the offices of Coalition MPs. The
Government also initiated a short term inquiry into the support services
currently available to parliamentary staff (which incorporated the review of
culture within the offices of Coalition MPs) and a longer term independent
review of Commonwealth parliamentary workplaces.[199]
The latter two processes are discussed below.
Review of support processes available to staff (the Foster
review)
On 16 February 2021 the Prime Minister announced that he had
asked Ms Stephanie Foster, deputy secretary, PM&C to ‘assist and advise me
on how better … processes can work to support people when incidents of this
nature arise’. At an Additional Estimates hearing Ms Foster described the
review’s terms of reference and confirmed that she had ‘been working very
closely with [Sex Discrimination Commissioner Kate Jenkins—see below] in the
thinking and design of these things so that we don't get a disconnect between
my short-term work and her longer-term work’.[200]
Ms Foster provided her report to the Prime Minister on 24
May 2021.[201]
The following day the Prime Minister announced that he would adopt Ms Foster’s
recommendation to establish an ‘urgently needed’ independent complaints
mechanism.[202]
The consultation copy of the report, Review of the
Parliamentary Workplace: Responding to Serious Incidents, was published on
the PM&C website on 4 June 2021.[203]
Ms Foster noted that the review heard a strong case for change—most
particularly concerning the creation of a safe environment for people to call
out unacceptable behaviour or report serious incidents.[204]
The review identified the ‘most significant gap’ in ‘current
procedures and processes’ as:
... the absence of readily accessible, timely, independent,
trauma-informed services and response mechanisms, now partially remedied with
the introduction of a dedicated 24/7 support line, 1800 APH SPT [established on
2 March 2021].[205]
Ms Foster’s review also found two other critical areas
requiring immediate action:
… a trusted, independent complaints mechanism able to deliver
proportionate consequences for misconduct, and tailored, face to face education
and support for parliamentarians and their staff in preventing, identifying and
responding to serious incidents in the workplace.[206]
This review concentrated on the processes and procedures
relating ‘specifically to parliamentarians and MOP(S) Act staff in all
parliamentary workplaces’.[207]
It left to the Jenkins review, discussed below, a more comprehensive
consideration of all workgroups in Parliament House, including those that
‘operate under different employment frameworks and support systems’ such as
staff employed under the Parliamentary Services Act 1999.[208]
The review described the parliament as ‘a workplace like no
other’ and acknowledged that the sovereignty of Parliament meant that
‘consequences for parliamentarians will be determined by the Parliament’.[209]
In her assessment of the Foster review, Professor Anne
Tiernan, suggested that the Jenkins review ‘has been left to do most of the
heavy lifting—particularly around the problems inherent to the “complex and
unusual” employment framework for staffers’ and stressed that the
Jenkins review ‘must confront the ambiguous role ministerial staff play in
Australia’s political system’.[210]
On 22 June 2021 The Guardian reported that the ALP
had responded to the main recommendations in the consultation copy.[211]
The party’s response included the suggestion of ‘a broader remit’ for the new
independent complaints mechanism so it ‘can retrospectively investigate serious
incidents’ and the need to explore and clarify ‘issues of privilege and
parliamentary sovereignty’ before the commencement of the new system.[212]
The final report was released on 26 July 2021 following briefings
‘with the Opposition, minor parties, independents and staff’.[213] The
Prime Minister and Minister for Finance announced that the Government had
accepted all ten recommendations including the establishment of an independent
complaints mechanism to handle serious incidents in the parliamentary
workplace.[214]
This complaints mechanism will be ‘overseen by the Parliamentary Service
Commissioner and will apply to incidents from the commencement of the current
term of Parliament’.[215]
Ms Foster’s final report recommended the esablishment of a taskforce to
‘undertake or support the implementation of the [report’s] recommendations’,
and that one of the actions the taskforce should consider is:
[a] resolution … be moved by the Presiding Officers in both
houses of Parliament to recognise the independent complaints handling process
and enable referrals of a failure to act by a parliamentarian to the
appropriate parliamentary body.[216]
The Minister for Finance announced the launch of the new
complaints mechanism, known as the Parliamentary Workplace Support Service,on
23 September 2021 and stated that Government and Opposition parties had
agreed to the terms of a resolution to be put to both Houses to ensure the mechanism
‘can deliver the full accountability recommended by the Foster Review.’[217]
Parallel resolutions were subsequently agreed to by the
House of Representatives and the Senate on 18 and 19 October 2021 respectively.[218]
The resolutions set out a process whereby the Parliamentary Service
Commissioner may make a report to the relevant presiding officer finding that
an MP has not cooperated with a review conducted under the new complaints
mechanism or has not acted on the recommendations of a review and requesting
the matter be referred to the relevant privileges committee. The committee must
report within 30 days of receiving such a referral and may only recommend: the
MP cooperate with a review, the MP act on the recommendations of a review, or
that the House or Senate take no further action. A failure by an MP to comply
with the recommendation of the privileges committee without reasonable excuse
‘shall be guilty of a serious contempt’ and is to be dealt with by the House or
Senate accordingly.[219]
The Government also announced that it had been piloting a
face-to-face training program for parliamentarians and their staff and expected
this training to be rolled out widely from September 2021.[220]
The training ‘will be mandatory for all Coalition Ministers and staff, and it
is expected that all other parliamentarians and their staff will undertake this
training when it is available to them’.[221]
More recently, it was reported that the Government had
appointed a team of five to ‘help [coalition] staff identify how to develop
their skills, provide guidance on professional development, and deliver
training to assist them in their jobs.’[222]
The Independent review into Commonwealth Parliamentary
workplaces (the Jenkins review)
On 5 March 2021 the Minister for Finance and Leader of the
Government in the Senate, Simon Birmingham, announced the establishment of an
independent review into Commonwealth parliamentary workplaces to be conducted
by Sex Discrimination Commissioner, Kate Jenkins.[223]
Senator Birmingham noted that he had ‘consulted with current
and former staff, a number of experts and many Members of Parliament, including
the Presiding Officers, Opposition representatives, minor parties and
Independent members and Senators, on the scope and process for the review’.[224]
He announced Commissioner Jenkins would provide a public report by November
2021 and ‘may make interim recommendations, and will provide a public progress
update in July 2021’.[225]
The Government committed to making the interim report and the final report and
findings public.[226]
The Australian Human Rights Commission (AHRC) information on
the review, includes a definition of the term ‘parliamentary workplace’:
While not defined, the term parliamentary workplace has
regard to the locations in which parliamentarians work and encompasses
· Persons employed by a Member or Senator under the Members of
Parliament (Staff) Act 1984
· Staff employed by the Parliamentary Departments under the
Parliamentary Service Act 1999
· Staff engaged under the Public Service Act 1999 who work in
Parliament House
· Volunteers and interns working with parliamentarians.[227]
In her media release on 5 March 2021, Commissioner Jenkins noted
that the AHRC is an independent statutory authority whose independence is enshrined
under the Australia Human Rights Commission Act (1986) and is ‘ …
uniquely positioned to undertake a review of this nature’.[228]
She also stressed the Commission’s previous experience in ‘undertaking
independent, rigorous and confidential cultural reviews’.[229]
This review built on the findings of Commissioner Jenkins’ national inquiry
into sexual harassment in Australian workplaces, Respect@Work, handed to
the Government on 2 March 2020.[230]
The independent review and the appointment of Ms Jenkins to
lead the process were supported by the Labor Party.[231]
Findings and
recommendations of the Jenkins review
The AHRC released a Progress update on the Independent
Review into Commonwealth Parliamentary Workplaces on 19 July 2021, and its
final report, Set the Standard: Report on the Independent Review into
Commonwealth Parliamentary Workplaces, on 30 November 2021.[232]
As part of its review, the AHRC conducted an anonymous
online survey to which 23 per cent of those currently working in Commonwealth
parliamentary workplaces (CPWs) responded. This survey indicated that of those
currently working in CPWs:
- 37
per cent had experienced some form of bullying while working there
- 33
per cent had experienced some form of sexual harassment while working there
- 1
per cent had experienced some form of actual or attempted sexual assault
(noting this estimate was based on a small number of responses)
- 51
per cent had experienced at least one incident of bullying, harassment or
actual or attempted sexual assault in a CPW
- 77
per cent have experienced, witnessed or heard about bullying, sexual harassment
and/or actual or attempted sexual assault in Commonwealth parliamentary
workplaces[233]
The report provided the following demographic information on
those who reported experiencing misconduct:
• Women in CPWs experienced sexual
harassment at a higher rate (40%) compared with men (26%)
• Women in CPWs have experienced
bullying at a higher rate (42%), compared with men (32%)
• Women experienced both bullying
and sexual harassment at a higher rate (24%) compared with men (14%), with
actual or attempted sexual assault also typically experienced by women.
• More female parliamentarians (63%)
have experienced sexual harassment, compared with male parliamentarians (24%)
and the national average for women (39%).
• MOP(S) Act employees experienced
the highest levels of bullying and actual or attempted sexual assault in CPWs,
and relatively high levels of sexual harassment.
• People who identify as LGBTIQ+
experienced sexual harassment at a higher rate (53%) than people who identify
as heterosexual (31%) or who preferred not to say (29%).[234]
Survey results also indicated that only a minority of those
who experienced bullying or sexual harassment reported their experience. Common
reasons cited for not reporting incidents of bullying included the view that
nothing would be done in response and that the complainants reputation or
career would be damaged. Common reasons given for not reporting incidents of
sexual harassment included the belief that the incident was not serious enough
or that others would believe the complainant was overreacting.[235]
The report also described a number of 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 themselves, or
lacking the skills necessary to effectively prevent or discourage misconduct by
others
- Wokplace
dynamics—including political loyalties and interests, intense media and public
scrutiny and fears over job security—that lead to a reluctance to report or
properly address misconduct
- Conditions
of work—including high levels of pressure, travel, poor work/life balance and
alcohol consumption—create environments in which bullying, sexual harassment
and sexual assault are more likely to occur
- Employment
structures, particularly for those employed under the MOP(S) Act, that lead to
high levels of insecurity, which in turn discourages employees from raising
concerns about bullying, sexual harassment and sexual assault.[236]
The report includes 27 recommendations intended to make
improvements in five areas—leadership; diversity, quality and inclusion;
systems to support performance; standards reporting and accountability; and
safety and wellbeing.[237]
On the specific issue of codes of conduct, the report
recommends that both Houses of Parliament should establish a joint standing
committee on parliamentary standards tasked with developing draft codes of
conduct for parliamentarians, staff of parliamentarians and the parliamentary
precincts, and incorporate a code of conduct for parliamentarians into their
respective standing orders within 12 months. Additionally, the Australian
Government should ensure that a code of conduct is included in the MOP(S) Act within
12 months.[238]
The report recommends the codes of conduct for parliamentarians and their staff
should, at a minimum, ‘address current legal requirements that prohibit
bullying, sexual harassment, sexual assault and workplace discrimination’, with
consideration also being given to ‘other factors that influence a safe a
respectful workplace.’[239]
The report also recommends the establishment of an independent
parliamentary standards commission, noting that ‘a level of structural
independence from parliamentarians and political parties is imperative to
ensure that a standards and accountability system is able to fulful its
accountability, deterrence and public confidence objectives’.[240]
The report proposes the commission would:
(a) incorporate the new Parliamentary Workplace Support
Service, including its advisory and support functions (and applying more
broadly to misconduct covered by the Codes of Conduct)
(b) operate a fair, independent, confidential and transparent
system to receive disclosures, as well as handle informal and formal complaints
and appeals about misconduct
(c) make findings about misconduct
(d) make recommendations on sanctions (in relation to
parliamentarians, staff and others as relevant under the Standards of Conduct
in the Parliamentary Precincts)
(e) apply sanctions for a breach of the Code of Conduct for
Parliamentarians where such sanctions do not interfere with the functions of the
Parliament.[241]
The report envisages that while the proposed commission
would operate independently, it would be overseen by a joint standing committee
and would depend on a delegation of the power of each House of Parliament to
discipline its own members when imposing sanctions.[242]
The report also recommends that the Parliamentary Workplace
Support Service be incorporated into the proposed independent parliamentary
standards commission and that it’s scope be expanded to:
• cover all participants in CPWs
• apply to all allegations of a
breach of a Code ofConduct or the Standards of Conduct for the Parliamentary
Precincts (noting that complaints about conduct in the Chamber of a House of
Parliament are referred to the Presiding Officer in the first instance)
• establish a clear pathway for
anonymous reporting, including through a digital platform
• include coverage of historical
complaints of workplace bullying, sexual harassment and sexual assault.[243]
As part of this process, responsibility for the PWSS would
be removed from the Parliamentary Service Commissioner and transferred to the
proposed independent parliamentary standards commission.
Response to
recommendations of the Jenkins review
Following the release of the AHRC’s final report on 30
November 2021, the Government stated that it would continue to run, and adapt
as necessary, services commenced in response to the Foster Review, including
‘the dedicated unit of support staff within the Parliamentary Workplace Support
Service and the independent complaints mechanism, 24-hour support line, and the
continued workplace safety training.’[244]
The Government also stated it would consult with the opposition, minor parties
and independents on how to respond to the recommendations of the report, and
had instructed the Department of the Prime Minister and Cabinet to provide
support to this process.[245]
Action has been taken in response to a number of the report’s
recommendations. In response to recommendation 2, a leadership task force was
established and held its first meeting on 3 February 2022.[246]
The task force is chaired by a former senior public servant, Ms Kerri Hartland,
and includes ministers and shadow ministers from both the Senate and the House
of Representatives, as well as a crossbench representative from each chamber.[247]
The task force’s role includes:
• developing and communicating an
implementation plan with specific timeframes
• defining and communicating common
values which can drive cultural change across parliamentary workplaces
• preparing an annual public report
of progress made in the implementation of recommendations
• tracking, on a quarterly basis,
key measures of a safe and respectful work environment to monitor progress in
implementation.
In response to recommendation 1, statements of
acknowledgement were made on 8 February 2022 by the Speaker and the President ‘on
behalf of the parliamentary cross-party leadership task force recommended by
Commissioner Jenkins and as a reflection of the parliament.’[248]
The statements acknowledged and apologised for 'the unacceptable history of
workplace bullying, sexual harassment and sexual assault in Commonwealth
parliamentary workplaces’.[249]
In response to recommendation 21, a Joint Select Committee
on Parliamentary Standards was established in February 2022 by each House to
develop ‘a code or codes of conduct for Commonwealth parliamentarians,
parliamentary staff, and parliamentary workplaces to ensure safe and respectful
behaviour’ and to recommend options for enforcement and review of the operation
of the proposed codes.[250]
The Committee is to present its final report by 1 November 2022.[251]
In response to recommendations 17 and 24, the Government
introduced the Parliamentary Workplace Reform (Set the Standard Measures No. 1)
Bill 2022 on 9 February 2022. The Bill sought to amend the MOP(S) Act to
clarify that the Fair Work Act 2009 applies to staff employed under the
MOP(S) Act and require parliamentarians to provide a reason where they dismiss
an employee. The Bill also sought to amend the Age Discrimination Act 2004
and the Disability Discrimination Act 1992 to clarify that these Acts
apply to MOP(S) Act employees.[252]
The Bill was passed by the Parliament without amendment on 15 February 2022.[253]
In response to recommendation 18, the Department of the
Prime Minister and Cabinet has begun a review of the MOP(S) Act with the aim of
identifying ‘legislative, policy or other changes or initiatives to ensure the
employment arrangements of parliamentarians and their staff are fit for
purpose.’[254]
The review is currently seeking submissions and is to provide a final report to
the Prime Minister by 30 September 2022.[255]
Conclusion
This paper has outlined issues facing a number of Australian
and overseas parliamentary workplaces that can, in part, be attributed to ‘the
unique structure and nature of parliamentary employment coupled with partisan
politics’.[256]
Some parliaments have already developed models for dealing with bullying and
harassment, while others are in the early stages of dealing with the issue.
There is some evidence that the introduction of agreed standards of conduct,
mandatory training and the use of independent complaint and investigation
bodies can assist in making these issues less political and parliaments more
accountable.
On the issue of accountability, the report of the UK
independent inquiry on House of Commons staff (the Cox report) suggests that ‘democratic accountability at the ballot
box or on the floor of the House is not a sufficient or satisfactory mechanism
for holding Members to account’.[257]
The Cox report also notes that ‘the keys to reform are
independence and impartiality if the staff are to have faith in the process and
if public confidence is to be restored’.[258]
The report supports arguments that the mechanisms monitoring codes of conduct,
hearing complaints and investigating breaches must be independent of the
parliament and the government.[259]
This approach suggests a limited role for the privileges committees of the
federal Parliament, as the Cox report found a ‘general reluctance of Members to
judge the misconduct of other Members, or even to assist in the investigations
by others into such misconduct’.[260]
The recommendations contained in the AHRC’s final report are
similarly focused on reforming Commonwealth parliamentary workplaces to bring
about a situation where ‘common standards of conduct are clear, where people
are empowered to come forward and make reports, and there are visible
consequences for misconduct.’[261]
The report suggests that, for these goals to be achieved, it is necessary to
establish a mechanism that will enable the fair, independent, confidential and
transparent handling of complaints, as well as making findings about misconduct
and recommendations about sanctions. As discussed above, the report proposes
the establishment of an Independent Parliamentary Standards Commission to
undertake this role.[262]
The precise response of the Parliament and the Government to
the recommendation that such an Independent Parliamentary Standards Commission
be established is not yet clear. However, resolutions concerning the new
Independent Parliamentary Workplace Complaints Mechanism agreed to on 18 and 19
October 2021 have already set out a role for the privileges committees limited
to: requiring a member of parliament to cooperate with a review or to act on
any recommendations, or recommending that the House or Senate take no further
action.[263]
The committees are, however, explicitly restricted to only these three courses
of action. While it remains to be seen how this approach operates in practice,
it appears this framework is intended to prevent the committees becoming
involved in reinvestigating matters or making different determinations about
appropriate actions. Their role instead appears to be limited to determining
whether it is appropriate that a non-cooperative MP be exposed to the
possibility of being found to have committed a serious contempt.
All political party codes of conduct discussed in this paper
include the range of sanctions available to the individual or body responsible
for dealing with breaches. The Cox report proposes that apart from ‘apologies
or attendance on training or behaviour programmes’ other sanctions that could
be considered include:
… the imposition of fines, disqualification from, or
suspension of membership of select committees or membership of overseas
delegations; the withdrawal of services by House staff, or the withdrawal of
financial support for visits abroad or other activities.[264]
On the issue of sanctions, two Labor MPs have suggested that
the federal parliament adopt a system, like the one operating in the UK
Parliament, ‘which penalises MPs who are found to have engaged in sexual
harassment, including the option of having them forced out of Parliament’.[265]
Some jurisdictions with political staff employment
arrangements similar to those in the federal parliament, have introduced
independent human resources units to deal with staffing matters. This could
change the power imbalance between the MP and the staffer, especially with the
addition of an independent complaints mechanism to hear retrospective and
current complaints.[266]
Former ministerial staff have suggested a similar approach, involving the
creation of ‘an independent parliamentary human resources authority to deal
with staff matters, with functions provided at arm’s length from government’.[267]
The AHRC’s final report recommended a similar reform be implemented in relation
to staff employed under the MOP(S) Act by the creation of an independent and
non-partisan office of parliamentarian culture and staffing. This centralised
human resources support unit would be accountable to the Parliament and be responsible
for enforcing standards, professionalising management practices, providing
professional development programs and developing mandatory training programs
for parliamentarians and their staff.[268]
With the Jenkins Review now tabled, the Federal Parliament
has the opportunity to draw on diverse Australian and international experience
in formulating its future approach to the issue.
Appendix 1
Table 1:
Codes of conduct covering Ministers, members of parliament and staff working in
the federal parliamentary workplace
| Code |
Standalone Code of conduct |
Statutory code of conduct or
code in standing orders |
Reference to bullying,
sexual harassment and sexual assault |
Oversight responsibility |
Method of dealing with breaches/
application of sanctions |
Independent adviser |
|
Ministers
|
Yes
Statement of ministerial
standards available on the PM&C
website
|
No
|
Ministers are not allowed
to engage in sexual relations with their staff
Training scheduled for September
2021
|
Prime minister of the day
|
Prime minister and/or
person appointed by the PM
Sanctions decided by the PM
|
No
|
|
Other MPs
|
No
|
No
Discussion about a code of
conduct commenced in September 1975
|
No
Training scheduled for
September 2021
|
–
|
–
|
No
|
|
Ministerial staff
|
Yes
Statement of standards
for ministerial staff available on
the Minister for Finance website
|
No
Ministerial staff are employed under the Members of Parliament (Staff) Act
1984 (MOPS)
|
No
direct reference
Ministerial staff must:
7.
Treat with respect and courtesy all those with whom they have ccontact in the
course of their employment
Training
scheduled for September 2021
|
Prime
Minister’s Office and
Government
staffing committee (GSC)
Note:
Senator Brmingham confirmed at Budget estimates hearing in 2021 that the GSC
is not involved
|
Consultation between relevant
minister and PM’s chief of staff on advice from the Sepecial Minister of
State (SMOS) and GSC
|
No
|
|
Staff, volunteers, interns working for non-ministerial
MPs
|
No
|
No
Non-ministerial staff are employed under the Members of Parliament (Staff)
Act 1984 (MOPS)
|
No
Training scheduled for
September 2021
|
Employing
MP
|
Employing
MP can discipline/dismiss
staff
|
No
|
|
Staff employed under the Parliamentary Service Act
|
|
Yes
Parliamentary Service Act 1999,
s. 13
|
Subsection 13(3) states:
A Parliamentary Service employee … must treat everyone with respect and
courtesy, and without harassment.
|
Departmental secretary
|
Secretary
of parliamentary department
Sanctions
and procedures for determining if an employee has beached the code are set
out in section 15
|
Parliamentary Service
Commissioner may issue directions relating to employment (s.11A). The
Commissioner may also advise the Presiding Officers on employment matters (s.
11B)
|
|
Staff employed under the Public Service Act
|
|
Yes
Public Service Act 1999, s. 13
|
Subsection 13(3) states:
An APS employee …
must treat everyone with respect and courtesy, and without harassment.
|
Agency head
|
Agency head
Sanctions and procedures for determining if an employee has beached the code
are set out in section 15
|
Public Service Commissioner
may issue directions relating to employment (s. 11A)
|
|
Visitors to Parliament House
|
No#
|
|
|
|
|
|
# The UK Parliament has adopted a Behaviour code
covering everyone working or visiting the parliamentary workplace. The code
refers to bullying, harassment and sexual misconduct, with oversight by the
Independent complaints and grievance scheme. The document states that
‘unacceptable behaviour will be dealt with seriously, independently and with
effective sanctions’
Table 2:
Codes of conduct and enforcement mechanisms affecting parliamentarians in
Australian jurisdictions
| Jurisdiction |
Code of conduct in place |
Method of adoption |
Dedicated independent adviser appointed |
Dedicated independent investigator appointed |
Enforcement mechanism |
Explicit clauses relating to harassment and bullying |
|
Cth
|
No
|
–
|
–
|
–
|
–
|
–
|
|
NSW
|
Yes
|
By resolution of each
House
|
Yes
|
No
(a proposal to appoint a
Compliance Officer is currently under consideration)
|
Breaches may be dealt with
by relevant chamber as a matter of privilege. Substantial breaches may
constitute ‘corrupt conduct’ and fall within the remit of the NSW ICAC.
|
No
|
|
Vic.
|
Yes
|
Contained in legislation
|
Yes
|
No
|
Breaches may be dealt with
by the relevant chamber as a matter of privilege.
|
No
|
|
Qld
|
Yes
|
Published by the Committee
of the Legislative Assembly (as required by the Parliament of Queensland
Act 2001 (Qld))
|
Yes
|
No
|
Statement of principles is
not enforceable. Actions that may be considered a contempt may be dealt with
by the chamber as a matter of privilege
|
Yes
|
|
SA
|
No
|
–
|
–
|
–
|
–
|
–
|
|
WA
|
Yes (Legislative Assembly
only)
|
By resolution of the
Legislative Assembly
|
No
|
No
|
Breaches may be dealt with
by the Legislative Assembly as a matter of privilege.
|
No
|
|
Tas.
|
Yes
|
By resolution of each
House
|
Yes
|
No
|
Breaches may be dealt with
by the relevant chamber as a matter of privilege.
|
Yes
|
|
ACT
|
Yes
|
By resolution of the
Assembly
|
Yes
|
Yes
|
Breaches may be
investigated by the Commissioner for Standards, who will report to the
Standing Committee on Administration and Procedure, which will recommend
appropriate action to the Assembly.
|
No
|
|
NT
|
Yes
|
Contained in legislation
|
No
|
No
|
Breaches may be dealt with
by the Legislative Assembly as a matter of privilege.
|
No
|
Table 3:
Ministerial codes of conduct and enforcement mechanisms in Australian
jurisdictions
| Jurisdiction |
Ministerial code of conduct in place |
Method of adoption |
Enforcement mechanism |
Explicit clauses relating to bullying and harassment |
|
Cth
|
Yes
|
Document published by the
Department of the Prime Minister and Cabinet
|
Breaches to be referred to
the Prime Minister
|
No (note: Ministers are
explicitly prevented from engaging in sexual relations with their staff)
|
|
NSW
|
Yes
|
Contained in the
Independent Commission Against Corruption Regulation 2017 (NSW)
|
Substantial breaches may
constitute ‘corrupt conduct’ and fall within the remit of the NSW ICAC.
|
No
|
|
Vic.
|
Yes
|
Document issued by the Victorian
Government
|
Breaches to be referred to
the Premier
|
No
|
|
Qld
|
Yes
|
Document published by the
Department of the Premier and Cabinet
|
Breaches to be referred to
the Premier
|
No
|
|
SA
|
Yes
|
Document published by
Department of the Premier and Cabinet
|
Breaches to be referred to
the Premier
|
Yes
|
|
WA
|
Yes
|
Document published by the
Government of Western Australia
|
No explicit description of
who is responsible for enforcement and determining sanctions; however,
ministers are required to ‘cooperate fully with the Parliamentary Secretary
of the Cabinet and Executive Government Services, Department of the Premier
and Cabinet (DPC) in respect to their responsibilities under this Code.’
|
No
|
|
Tas.
|
Yes
|
Document published by the
Department of Premier and Cabinet
|
Breaches to be referred to
the Premier
|
Yes
|
|
ACT
|
Yes
|
Document published by the
Chief Minister, Treasury, and Economic Development Directorate
|
Breaches
to be referred to the Chief Minister
|
No
|
|
NT
|
Yes
|
Document published by the
Department of the Chief Minister and Cabinet
|
Breaches to be referred to
the Chief Minister
|
No
|
[1]. S Maiden, ‘Brittany
Higgins alleged rape: Parliament office steam cleaned after alleged attack’,
News.com.au, 15 February 2021; L. Wilkinson, ‘Interview
with Brittany Higgins’, The Project, transcript, Channel 10, 15
February 2021; D Crowe and K Curtis, ‘Ex-staffer
says rape claim was dismissed’, Sydney Morning Herald, 16 February
2021; J Maley and K Curtis, ‘Suck
it up': Parliament staff claim bullying is typical’, Sydney Morning
Herald, 18 February 2021; Editorial, ‘Will
budget solve the 'women problem?’, Canberra Times, 3 May 2021; J
Maley and K Curtis, ‘Unsafe
house’, Age, 20 February 2021; H Sullivan, 'A
scandalous swamp': how the Australian parliament's toxic male culture hit
global headlines’, Guardian Australia, 24 March 2021 and M Maley, ‘Why
political staffers are vulnerable to sexual misconduct - and little is done to
stop it’, The Conversation, 15 February 2021.
[2]. See, for
example, D McKeown, Codes
of conduct in Australian and selected overseas parliaments, Background
note, Parliamentary Library, Canberra, 18 September 2012; D McKeown, Who
pays the piper? Rules for lobbying government in Austrlalia, Canada, UK and US,
Research paper, Parliamentary Library, Canberra, 1 August 2014 and R Lundie, ‘That’s
it, you’re out’: disorderly conduct in the House of Representatives from 1901
to 2016, Research paper, Parliamentary Library, Canberra, 22 December 2016.
[3]. S Birmingham (Minister for Finance), Independent
review into Commonwealth Parliamentary workplaces, media release, 5 March
2021. See also K Jenkins, Independent
review into Commonwealth Parliamentary workplaces: progress update,
Australian Human Rights Commission, July 2021, Appendix 1, p. 13 for definition
of these terms.
[4]. C Madden, ’Who
works at Parliament House?’, FlagPost, Parliamentary Library blog, 30 June
2021.
[5]. S Morrison, Statement
of ministerial standards, Department of the Prime Minister and Cabinet,
August 2018.
[6]. J Uhr, ‘Howard’s
ministerial code’, Res Publica, 7(1), 1988, p.9.
[7]. Joint
Committee on Pecuniary Interests of Members of Parliament, Report
on declaration of interests, Commonwealth of Australia, Canberra, 30
September 1975, p. 12. Information on attempts to introduce a code of conduct
is contained in D McKeown, Codes of
conduct in Australian and selected overseas parliaments, op. cit., pp. 5-9.
See Australia, House of Representatives, ‘Code
of conduct for members of parliament’, Votes and proceedings, HVP
146, 29 November 2012.
[8]. The agreements
to form government were negotiated in 2010 between the Australian Labor Party
(ALP) and the Australian Greens and the ALP and some members of the cross bench
included the establishment of a Parliamentary Integrity Commissioner and a
formal code of conduct for senators and members. See ALP and the Australian
Greens, Agreement,
1 September 2010, p. 3; ALP and the Independent Member Andrew Wilkie, Agreement,
2 September 2010, p 3 and ALP and the Independent Members Rob Oakeshott
and Tony Windsor, Agreement,
7 September 2010, Annex A, p. 9.
[9]. House of
Representatives Standing Committee of Privileges and Members’ Interests, Draft
code of conduct for members of parliament, House of Representatives,
Canberra, 23 November 2011, see Appendix 5, p. 75 for the draft code of
conduct.
[10]. The motion that
the House endorse the draft code of conduct and request that the Leader of the
House bring forward urgently the proposed changes to standing orders and
resolutions of the House necessary to give effect to the code was passed but no
further action occurred. Australian, House of Representatives, ‘Code
of conduct for members of parliament’, Votes and Proceedings, HVP
146, 29 November 2012.
[11]. Senate Standing
Committee on Senators’ Interests, Code
of conduct inquiry, The Senate, Canberra, 29 November 2012.
[12]. The 2017 motion
was moved after Senator Pauline Hanson (Pauline Hanson’s One Nation) wore a
burqa into the Senate chamber on 17 August 2017. R Di Natale, ‘Procedure
Committee reference’, Senate, Debates, 6 September 2017, p. 6540.
See also Australia, Senate, ‘Face
coverings—Ban in public places’, Journals, SJ 55, 17 August 2017. For
the 2018 motion see R Di Natale, ‘Motions:
parliamentary code of conduct’, Senate, Debates, 29 November 2018,
p. 9003.
[13]. See Senate
Standing Committee on Procedure, First
report of 2017, The Senate, Canberra, December 2017, Appendix 4, ‘Parliamentary
Code for respecting cultural diversity and proposal to amend standing order
193—Rules of debate’ and Senate Standing Committee on Procedure, First
Report of 2019, The Senate, Canberra, 3 April 2019, p. 1. Additional
comments to the 2019 report provided by the Australian Labor Party, referred to
its 2016 Parliamentarians’ Code of Race and Cultural Ethics which was
signed by all members of the ALP caucus but not members of other parties. This code was based on an earlier 1998 Labor Code
of Race Ethics which ‘was signed by more than half the Parliament,
including coalition senators and members’. See ALP Senators, ‘Additional
comments by Australian Labor Party’, Additional comments to Senate Standing
Committee on Procedure, First
Report of 2019, 3 April 2019.
[14]. Parliament of
Australia, ‘National
Integrity (Parliamentary Standards) Bill 2019 homepage’, Australian
Parliament website and Parliament of Australia, ‘Commonwealth
Parliamentary Standards Bill 2020 homepage’, Australian Parliament website.
The Senate Standing Committee on Finance and Public Administration recommended,
in August 2020, that the Greens Bill not be passed. See Senate Standing
Committee on Finance and Public Administration, National
Integrity (Parliamentary Standards) Bill 2019, The Senate, Canberra,
August 2020, p. vii.
[15]. See, for
example, Commonwealth Parliamentary Standards Bill 2020, op.cit., section 16.
[16]. B Morton, Statement
of standards for ministerial staff, Department of Finance, n.d.
[17]. Members
of Parliament (Staff) Act 1984.
[18]. Note: from May
2019 to October 2021 the ministry
did not included a Special Minister of State.
[19]. A Tiernan, ‘Yes,
the culture in Parliament House is appalling. But there are systemic problems
that also need urgent reform’, The Conversation, 24 February 2021.
[20]. M Maley, ‘Why
political staffers are vulnerable to sexual misconduct - and little is done to
stop it’, The Conversation, 15 February 2021.
[21]. Senate Finance
and Public Administration Legislation Committee, Official
Committee Hansard, 27 May 2021, p. 8.
[22]. Ibid.
[23]. V Burgess, ‘The
truth does need to see the light of day. Just don't hold your breath’, The
Mandarin, 26 February 2021.
[24]. Ibid.
[25]. Our
public service, our future. Independent review of the Australian Public Service
(report prepared for the Department of the Prime Minister and Cabinet by D
Thodey), Commonwealth of Australia, September 2019, p. 137.
[26]. Department of
the Prime Minister and Cabinet, Delivering
for Australians. A world-class Australian Public Service: The
Government’s APS reform agenda, Government response to Our
public service, our future. Independent review of the Australian Public Service, ibid.,
13 December 2019, p. 18.
[27]. The Foster
review noted that, according to the Department of Finance, as at 12 March 2021,
approximately 2,020 staff were employed under the MOP(S) Act. See S Foster, Review
of the parliamentary workplace: responding to serious incidents (the
Foster review), Department of the Prime Minister and Cabinet, 4 June 2021,
p. 20. See pp. 26–28 of this paper for details of the Foster review.
[28]. Parliamentary
Service Act 1999, see section 13,
section
14 and section 10.
[29]. Madden, Who
works at Parliament House?, op. cit.
[30]. Public
Service Act 1999, see section
13 and section 10.
[31]. L Chappell, ’Bad
times call for bold measures: 3 ways to fix the appalling treatment of women in
our national parliament’, The Conversation, 26 March 2021.
[32]. Ibid.
[33]. Australian
Greens, Australian
Greens anti-sexual harassment policy, Australian
Greens policy document, April 2018 (reviewed
July 2021) and Australian Greens, Formal
and informal complaints process, Australian Greens policy document, April
2018.
[34]. Anti-sexual
harassment policy, ibid., para. 2.6.
[35]. Ibid., paras
4.4.1 and 4.6.
[36]. Ibid., para.
8.5.
[37]. Australian
Labor Party, ALP
National code of conduct, Australian Labor Party
policy document, February 2021, Australian Labor Party, ALP
National policy for sexual harassment and prevention and response, Australian
Labor Party policy document, February 2021, Australian Labor Party, ALP
National policy for bullying and harassment prevention and response, Australian
Labor Party policy document, February 2021 and Australian Labor Party, ALP
National complaints handling process, Australian Labor Party policy
document, February 2021. Note: the Australian Labor Party had previously
released an Interim
sexual harassment and bullying policy in October 2018.
[38]. National code
of conduct, ibid, para. 2.4.
[39]. Ibid., paras.
2.3 and 5.1.
[40]. National
complaints handling policy, ibid., section 9.
[41]. Ibid., sections
3.5 and 5.
[42]. K Thwaites and
J Macklin, Enough is enough, In the national interest series, Monash
University Publishing, Melbourne, 2021, p. 30.
[43]. Liberal Party
of Australia, National
code of conduct, Liberal Party policy document, 2019 and Liberal Party of
Australia, Complaints
and dispute resolution policy, Liberal Party policy document, 2019.
[44]. National code
of conduct, ibid., see paras 4 and 28.
[45]. Complaints and
dispute resolution policy, op. cit., para. 17.
[46]. Ibid., paras
25–26 and 27–31.
[47]. Ibid., paras
32–36.
[48]. Ibid., para 39.
[49]. Ibid.
[50]. National Party
of Australia, National
Party of Australia harassment protocol, National Party policy document,
2018.
[51]. Ibid.
[52]. New South
Wales, Legislative Assembly, Votes
and Proceedings, 5 March 2020, pp. 575–579; New South Wales,
Legislative Council Minutes
of Proceedings, 24 March 2021, pp. 865–868; Members
of Parliament (Standards) Act 1978 (Vic), sections 4 to 16; Legislative
Assembly of Queensland, Code
of Ethical Standards together with the Guide to the Code of Ethical Standards
and Rules relating to the Conduct of Members, June 2018; Western
Australia, Legislative Assembly, Code
of Conduct for Members of the Legislative Assembly, n. d.; Western
Australia, Legislative Assembly, Votes
and Proceedings, 28 August 2003, pp. 772–776; Tasmania, House of Assembly, ‘Motion: Code of
conduct for members of Parliament adoption’, Debates, 29 November
2018, pp. 71–87; Tasmania, Legislative Council, ‘Code of conduct for
members of Parliament’, Votes and Proceedings, No. 38, 27 November
2018, pp. 177–183; Tasmania, House
of Assembly Standing and Sessional Orders and Rules, pp. 20–23; Code
of Conduct: Members of the Parliament of Tasmania; Standing
orders and continuing resolutions of the Legislative Assembly, pp.
104–107; Legislative
Assembly (Members' Code Of Conduct And Ethical Standards) Act 2008 (NT),
schedule.
[53]. South
Australia, House of Assembly, ‘Resolutions: Review of Harassment in the South
Australian Parliament Workplace’, Debates, 18 March 2021,
pp. 4764–4765; South Australia, Legislative Council, ‘Resolutions: Review
of Harassment in the South Australian Parliament Workplace’, Debates, 18
March 2021, pp. 2982–2983.
[54]. With respect to
Queensland, see Parliament
of Queensland Act 2001 (Qld), section 86(1)(a).
[55]. Code
of Conduct: Members of the Parliament of Tasmania, p. 2; Legislative
Assembly of Queensland, Code
of Ethical Standards together with the Guide to the Code of Ethical Standards
and Rules relating to the Conduct of Members, June 2018, p. 10.
[56]. Standing
Committee on Administration and Procedure, Protocol
for investigation complaints against members, revised August 2017;
Legislative Assembly for the Australian Capital Territory, Complaining
about a Member of the Legislative Assembly, August 2019.
[57]. See Appendix to
the Independent
Commission Against Corruption Regulation 2017 (NSW); Victorian Government, Code
of conduct for ministers and parliamentary secretaries, 5 November
2018; The
Queensland Ministerial Handbook: Governing Queensland; Department of
the Premier and Cabinet, Ministerial
Code of Conduct, n. d.; Government of Western Australia, Ministerial
Code of Conduct, 30 April 2021; Government of Tasmania, Code
of Conduct for Ministers, May 2021; Government of the Australian
Capital Territory, Ministerial
Code of Conduct 2020, p. 5; Northern Territory Government, Cabinet Handbook,
September 2020, Appendix A.
[58]. Department of
the Premier and Cabinet, Ministerial
Code of Conduct, n. d., p. 5; Equal Opportunity Commission, Review
of Harassment in the South Australian Parliament Workplace, February
2021, p. 115; ‘SA
government will not pursue code of conduct for MPs, but accused MP Sam Duluk
says the idea has merit’, ABC News, 12 March 2021.
[59]. Government of
Tasmania, Code
of Conduct for Ministers, May 2021, p. 5.
[60]. Not all
relevant codes of conduct appear to be publicly available; however, see the
following examples: Department of Premier and Cabinet (NSW), Ministers
Office Handbook, n. d., p. 5 and pp. 53–54 (Attachment B);
New South Wales Parliament, Code
of Conduct for Parliamentary Staff, February 2013, section 3.3.5; Parliamentary
Administration Act 2005 (Vic.), section 5; Parliament of Victoria, Code
of Conduct for Victorian Parliamentary Officers, February 2019, p. 16;
Queensland Parliament Service, Code of Conduct for the Parliamentary Service,
20 December 2019, section 4.1.2.5; Ministerial
and Other Office Holder Staff Act 2010 (Qld), sections 16–18;
Department of the Premier and Cabinet (QLD), Code
of Conduct: Ministerial Staff Members, 18 February 2021, pp. 5–7;
Commissioner for Public Sector Employment (SA), Code
of Ethics for the South Australian Public Sector, August 2019,
p. 13; Public Sector Commission (WA), Code
of Ethics: Commissioner’s Instruction No. 7, 3 July 2012, p. 2; Parliamentary
Employees General Agreement 2019 (WA),
p. 72; Department of Premier and Cabinet (Tas.), Handbook
for Elected Members of the House of Assembly and Prescribed Parliamentary
Office Holders, March 2021, pp. 29–31; Legislative Assembly
(Member’s Staff) Code of Conduct for Staff of Non-Executive Members
Determination 2015 (ACT); Legislative Assembly
(Members’ Staff) Code of Conduct for Ministerial Staff and Staff of Other
Office-holders Determination 2015 (ACT); Office of the Legislative Assembly
(ACT), Office
of the Legislative Assembly Code of Conduct, 17 August 2017,
pp. 18–19; Commissioner for Public Employment (NT), Code of
Conduct: Employment Instruction Number 12, 25 June 2021.
[61]. P Goward, Review
of policies and procedures for Ministerial offices—bullying, harassment, and
sexual misconduct, 19 April 2021, see terms of reference.
[62]. Ibid.,
pp. 6–8.
[63]. Ibid., see
foreword.
[64]. A Smith, ‘“Brutal”
state review reveals ministerial office failings’, Sydney Morning Herald,
29 April 2021, p. 3; M Maddison, ‘Abusive
ministers to escape sanction’, Australian, 29 April 2021, p. 7.
[65]. A Smith, ibid.
[66]. Parliament of
New South Wales, Elizabeth
Broderick to lead parliament review, media release, 27 July 2021.
[67]. Ibid.
[68]. New South
Wales, Legislative Assembly, Standing Committee on Parliamentary Privilege and
Ethics,
Review of the Proposed Resolution for Establishment of a Parliamentary
Compliance Officer, July 2021, pp. 2–3.
[69]. Elizabeth
Broderick & Co., ‘Independent Review
into bullying, harassment and sexual misconduct in NSW Parliament’,
Elizabeth Broderick & Co. website, n.d.
[70]. New South Wales
Independent Commission Against Corruption (ICAC), Reducing
the Opportunities and Incentives for Corruption in the State’s Management of
Coal Resources, ICAC, Sydney, October 2013, pp. 43–44.
[71]. New South
Wales, Legislative Assembly, Standing Committee on Parliamentary Privilege and
Ethics,
Review of the Proposed Resolution for Establishment of a Parliamentary
Compliance Officer, July 2021, p. 1.
[72]. ibid.,
p. 2.
[73]. Ibid., July
2021, Appendix 1.
[74]. Ibid., Appendix
1.
[75]. New South
Wales, Legislative Council, Privileges Committee, Proposal
for a Compliance Officer for New South Wales Parliament, May 2021,
pp. xii–xiv.
[76]. New South
Wales, Legislative Assembly, Standing Committee on Parliamentary Privilege and
Ethics, op. cit., pp. viii–xvii, 9–18.
[77]. ‘MPs
could be sacked for bullying’, Age, 19 February 2021, pp. 1,
14; I Stitt, ‘Answer
to question without notice: Workplace Safety’, [Questioner: G Crozier],
Victoria, Legislative Council, Debates, 4 March 2021, p. 882.
[78]. S Deery and K
Rooney, ‘MP
sex romp’, Herald Sun, 15 May 2021, pp. 1, 4.
[79]. ‘MPs
could be sacked for bullying’, op. cit., pp. 1, 14.
[80]. Ibid.
[81]. A Smethurst and
P Sakkal, ‘Victoria
launches ministerial sexual harassment taskforce’, Age, 9 March 2021,
p. 4.
[82]. V A Chapman, ‘Parliament
Workplace Cultural Review’, South Australia, House of Assembly, Debates,
12 November 2020, pp. 3347–3348; J M A Lensink, ‘Parliament Workplace
Cultural Review’, South Australia, Legislative Council, Debates,
12 November 2020, pp. 2216–2217.
[83]. Equal
Opportunity Commission (SA), Review
of Harassment in the South Australian Parliament Workplace, Equal
Opportunity Commission, Adelaide, February 2021, see letter of transmittal.
[84]. Ibid.,
p. 7.
[85]. Ibid., p. 100.
See generally pp. 78–83.
[86]. Ibid.,
pp. 149–155.
[87]. Ibid.,
p. 138.
[88]. Equal
Opportunity Commission (SA), op. cit., p. 115.
[89]. Ibid.,
p. 131.
[90]. Ibid.,
p. 132.
[91]. ‘Review of
Harassment in the South Australian Parliament Workplace’, South Australia,
House of Assembly, Debates, 18 March 2021, pp. 4764–4765;
‘Review of Harassment in the South Australian Parliament Workplace’, South
Australia, Legislative Council, Debates, 18 March 2021,
pp. 2982–2983; P Starick and E Henson, ‘“No
one to be silenced”’, Adelaide Advertiser, 17 March 2021,
p. 13.
[92]. Parliament of
South Australia, Joint Committee on the Recommendations Arising from the Equal
Opportunity Commissioner’s Report into Harassment in the Parliament Workplace,
Report
of the Joint Committee on the Recommendations Arising from the Equal
Opportunity Commissioner’s Report into Harassment in the Parliament Workplace,
28 October 2021, pp. 10–12.
[93]. Ibid.,
pp. 51–52.
[94]. Ibid., pp.
43–44; S Lee, ‘New
code of conduct will see South Australian MPs banned from harassing staff, each
other’, ABC News, 28 October 2021;S Richards, ‘”Right
to be cynical”: Commissioners slam MP draft code of conduct’, InDaily,
29 October 2021.
[95]. Ms Archer, ‘Matter
of public importance: workplace culture’, Tasmania, House of Assembly, Debates,
1 July 2021, pp. 28–30; M Grattan, ‘Gender
is now another battlefield’, Canberra Times, 20 March 2021,
p. 32; D Killick, ‘Embattled
O'Byrne quits as Labor leader [Bec to the future]’, Mercury, 5 July
2021, p. 1; D Killick, ‘Ex-Brooks
partner quits Libs’, Mercury, 26 May 2021, p. 9; Office of the
Anti-Discrimination Commissioner, ‘Independent
Review into Parliamentary practices and procedures to support workplace culture
(the Review)’, Equal Opportunity Tasmania website.
[96].Equal Opportunity
Tasmania, ’Independent
Review into Parliamentary practices and procedures to support workplace culture
(the Review)’, Equal Opportunity Tasmanian website.
[97]. Ibid.
[98]. United Kingdom,
The Cabinet Office, Ministerial
code, August 2019.
[99]. Ibid., para.
1.2.
[100]. Independent Parliamentary Standards
Authority website.
[101]. Ministerial
code, op. cit., para. 1.4.
[102]. Ibid., and
United Kingdom, The Cabinet Office, Terms
of Reference for the Independent Adviser on Ministers’ Interests, April
2021.
[103]. J Elgot and R
Syal, ‘Ex-officials
criticise limited remit of Boris Johnson’s new standards adviser’, Guardian
Australia, 29 April 2021. Additional information on the Ministerial Code,
the role of the independent adviser and the process for investigating breaches
of the Code is available in C Rhodes and H Armstrong, The
ministerial code and the independent adviser on ministers’ interests, Research
Briefing, House of Commons Library, 12 August 2021.
[104]. J Rutter, ‘Feeble
codes are inadequate to deal with shameless ministers (and officials)’, UK
in a changing Europe, 22 April 2021.
[105]. House of
Commons, Code
of conduct together with the Guide to the rules relating to the conduct of
members, 8 January 2019.
[106]. See Guide to
the rules relating to the conduct of members, op. cit., p. 49 for the text of
the 1996 Resolution.
[107]. House of Lords,
Code
of conduct, Guide to the code of conduct and Code of conduct for House of Lords
members’ staff, July 2020. Note: Appendix B contains definitions of
bullying harassment and sexual misconduct.
[108]. House
of Lords Conduct Committee website.
[109]. Ibid., see also
House
of Lords Commissioners for Standards website.
[110]. House of
Commons, Parliamentary
Commissioner for Standards website; House of Commons, Standing
Orders, 5 November 2019, pp. 187–190.
[111]. Ibid., ‘The
commissioner’s remit and contact details’.
[112]. House of
Commons, Committee
on Standards website. See also House of Commons, Guide
to the rules relating to the conduct of members, op. cit., para.
19, p. 43.
[113]. Ibid., Guide
to the rules relating to the conduct of members.
[114]. Independent
Expert Panel website. See below for more detailed discussion of the IEP.
[115]. Ibid. See also
UK Parliament, Independent
Complaints and Grievance Scheme website.
[116]. Ibid., IEP
website
[117]. Ibid.
[118]. House of Commons
Committee on Standards, Review
of fairness and natural justice in the House’s standards system, The
House of Commons, 4 March 2022, p. 5; House of Commons Committee on
Standards, Review
of the Code of Conduct: proposals for consultation, The House of
Commons, 29 November 2021.
[119].
J Rampen, ‘A
week in Pestminster: how the sexual harassment scandal unfolded’, New
Statesman, 3 November 2017.
[120]. Ibid.
[121].
C Cook and L Day, ‘Bullying and
harassment at the House of Commons’, BBC Newsnight, 8 March 2018.
[122]. Ibid.
[123]. See House
of Commons Commission website and House
of Lords Commission website.
[124]. L Cox, The
bullying and harassment of House of Commons staff, Independent
inquiry report, 15 October 2018, Introduction and terms or reference, para. 6.
[125]. Ibid., para. 7.
[126]. Ibid.
[127]. Ibid.
[128].
A Leadsom, ‘Independent
Complaints and Grievance Policy’, United Kingdom, House of Commons, Debates,
19 July 2018, col. 627. See also UK Parliament, ‘Conduct
in parliament’, UK Parliament website.
[129]. D Butler, ‘Independent
Complaints and Grievance Policy’, Ibid., col. 633. See also UK Parliament, ‘Behaviour
code’, UK Parliament, ‘Bullying
and harassment policy for UK Parliament’, 2021, UK Parliament, ‘Sexual
misconduct policy for UK Parliament’, 2021 and Independent complaints and
grievance scheme website, op. cit.
[130]. House of
Commons Commission, Extending
the Independent Complaints and Grievance Scheme, 15 July 2019,
HC 2554 and M Stride, ‘Independent
Complaints and Grievance Scheme’, United Kingdom, House of Commons, Debates,
17 July 2019, col. 920. See also R Kelly, Independent
Complaints and Grievance Scheme, Research briefing, House of
Commons Library, 27 April 2021. This paper includes details on the
inquiries conducted by G White QC and N Ellenbogen QC., ch. 9, pp. 54–58.
[131]. UK Parliament, ‘Using
the Independent Complaints and Grievance Scheme: guide for complainants’,
UK Parliament website, 2019.
[132]. G White, Bullying
and harassment of MPs’ parliamentary staff, Independent inquiry report,
11 July 2019.
[133].
House of Commons Commission, ‘Commission
statement on Gemma White QC's report’, 16 July 2019.
[134]. Ibid.
[135]. Ibid.
[136]. P Wishart, ‘Isolation
of House staff: Gemma White QC recommendations’, United Kingdom, House of
Commons, Debates, 19 May 2020, col. 478.
[137]. N Ellenbogen, An
independent inquiry into bullying in the House of Lords, 10 July 2019.
[138].
House of Lords Commission, ‘House
of Lords Commission respond to Ellenbogen report’, 18 July 2019.
[139]. J Rees-Mogg, ‘Independent
Complaints and Grievance Scheme’, United Kingdom, House of Commons, Debates,
23 June 2020, col. 1244. See also House of Commons, Independent
determination of complaints of bullying and harassment in the Commons, 23
June 2020.
[140]. Independent
Expert Panel website.
[141]. Ibid.
[142]. Ibid.
[143]. Ibid.
[144]. Independent Expert Panel, The
Conduct of Mr Rob Roberts MP, Report presented to the House of Commons,
25 May 2021.
[145]. Ibid., para
3.27.
[146]. Ibid.
[147]. Ibid., paras
2.27 and 4.30.
[148]. Ibid., para.
1.10.
[149]. J Rees-Mogg, ‘Business
without debate’, UK Parliament, House of Commons, Debates, 27 May
2021, col. 580.
[150]. I Wells, ‘Rob Roberts:
Conservative MP told staffer to be “less alluring”’, BBC News, 25
May 2021. See also Recall of MPs
Act 2015 (UK) and N Johnston and R Kelly, Recall
elections, Research Briefing, House of Commons Library, 2 July 2021, p.
3.
[151]. Independent
Expert Panel, The Conduct of Mr Rob Roberts MP, op. cit., para
1.11.
[152]. J Rees-Mogg, ‘Business
of the House’, UK Parliament, House of Commons, Debates, 27 May
2021, col. 564.
[153]. Ibid.
[154]. I Wells, ‘Rob Roberts: stay
away from Parliament, disgraced MP told’, BBC news, 8 July 2021.
[155]. ‘Rob Roberts: second
UK minister calls on MP to resign’, BBC news, 3 June 2021.
[156]. I Wells, ‘Rob Roberts MP
suspended from Conservative Party’, BBC news, 8 September 2021.
[157]. Ibid. Note: Mr
Roberts is still sitting in the House of Commons as an independent.
[158]. N Johnston and
R Kelly, Recall
elections, op. cit., p. 3 states that:
MPs can be recalled only under certain
circumstances:
If they are convicted in the UK of an offence
and sentenced or ordered to be imprisoned or detained and all appeals have been
exhausted (and the sentence does not lead to automatic disqualification from
being an MP)
If they are suspended from the House following
report and recommended sanction from the Committee on Standards for a specified
period (at least 10 sitting days, or at least 14 days if sitting days are not
specified)
If they are convicted of an offence under
section 10 of the Parliamentary Standards Act 2009 (making false or misleading
Parliamentary allowances claims)
Once a petition is open it is available for
signing for six weeks and is administered by the local returning officer for
the constituency ...
For a recall petition to be successful 10% of
eligible registered voters need to sign the petition. If the required number is
not reached the petition fails and the MP remains in post. If the 10% threshold
is reached the petition officer informs the Speaker of the House of Commons. On
the giving of that notice the seat becomes vacant. A by-election is then
required.
[159]. Ibid., ‘Recall
of MPs’.
[160]. J Trudeau, Open
and accountable government, 27 November 2015.
[161]. Ibid.
[162]. Federal Accountability Act
2006 (Canada)
[163]. A Raj, ‘2
Liberal MPs suspended from caucus after sexual harassment allegations’, Huffington
Post, 11 May 2014.
[164]. T Raney and C
Collier, ‘Privilege
and gendered violence in the Canadian and British Houses of Commons: a feminist
institutionalist analysis’, Parliamentary Affairs, January 2021, p.
2.
[165]. K O’Malley, ‘Parliament
Hill harassment: Andrew Scheer unveils new policy for MPs, staff’, CBC
news, 10 December 2014. See also Board of Internal Economy
website.
[166]. House of
Commons, ‘Party
leaders and House officers’, House of Commons website.
[167]. Office of the
Chief Human Resources officer, Annual
report on the House of Commons policy on preventing and addressing harassment
2015-16, House of Commons, May 2016, p. 2.
[168]. Ibid.
[169]. House of
Commons, House
of Commons Policy on Preventing and Addressing Harassment, 28 January
2021.
[170]. House of
Commons, ‘Code
of conduct for Members of the House of Commons: Sexual harassment’, Standing
Orders of the House of Commons, 1 January 2021, appendix 2.
[171]. House of
Commons, Annual
report on the members of the House of Commons workplace harassment and violence
prevention policy 2020-2021,
[172]. Standing
Committee on Procedure and House Affairs, 38th
report, House of Commons, 2015. See also House of Commons, Standing
orders of the House of Commons, appendix 2.
[173]. Raney and
Collier, Privilege and gendered violence in the Canadian and British Houses
of Commons: a feminist institutionalist analysis, op.cit., p. 9.
[174]. Ibid., p. 11.
[175]. Ibid., p. 3.
[176]. Senate, Senate policy on the prevention and resolution of harassment in the
workplace, 22 June 2009.
[177]. Ibid., section
1.5, definitions.
[178]. Senate, Senate
harassment and violence prevention policy, February 2021.
[179]. Canada, Senate,
Subcommittee on Human Resources, ‘Harassment
and violence have no place in the Senate’, media release, 16 February 2021.
[180]. Ibid.
[181]. J Tasker, ‘Senate’s
new harassment policy ‘a gift’ for would-be abusers, senator says’, CBC
news, 17 March 2021.
[182]. See An
Act to amend the Canada Labour Code (harassment and violence), the
Parliamentary Employment and Staff Relations Act and the Budget
Implementation Act, 2017, No. 1 (Canada), (Bill C–65).
[183].
Parliamentary
Employment and Staff Relations Act 1985 (Canada).
[184]. M Perez-Leclerc,
‘Legislative
Summary of Bill C-65: An Act to amend the Canada Labour Code (harassment and
violence), the Parliamentary Employment and Staff Relations Act and the Budget
Implementation Act, 2017, No. 1’, Legislative summaries, Library of
Parliament, Canada, 4 February 2019. Note: section 2.2 discusses
the changes to parliamentary employment arrangements.
[185]. T Mallard, Francis
review launched to examine bullying and harassment at Parliament, media
release, 27 November 2018.
[186]. Ibid.
[187]. L Walters, ‘Overdue
review into harassment and bullying in Parliament’, Newsroom, 27
November 2018.
[188]. D Francis, External Independent Review: Bullying and Harassment in the New Zealand
Parliamentary Workplace –
Final report, 21 May 2019.
[189]. Ibid., pp. 90–95 (recommendations) and pp. 10–37.
[190]. Ibid, see
recommendations 4 and 5.
[191]. Ibid.,
recommendation 6.
[192]. Ibid., p. 9.
[193]. New Zealand
Parliament, Behavioural
statements, 24 June 2020.
[194]. L Waters, ‘Bullying
and harassment in Parliament – one year on’, Newsroom, 7 July 2020.
[195]. A Vance, ‘Men
and women behaving badly: why won’t MPs sign a code of conduct?’, Stuff,
22 July 2020.
[196]. C McCulloch, ‘Mallard
releases code of conduct following bad behaviour in Parliament’, RNZ,
24 July 2020.
[197]. Ibid., see also
A Webster, ‘Parliamentary
code of conduct’, Transparency International New Zealand weblog, 14
September 2020.
[198]. M Sawer, ‘Dealing
with toxic parliaments: lessons from elsewhere’, Australasian
Parliamentary Review, 9 July 2021, p. 21.
[199]. V Burgess, ‘The
truth does need to see the light of day. Just don't hold your breath’, op.cit.;
K Murphy and K Knaus, ‘Brittany
Higgins proceeds with formal complaint about alleged rape’, Guardian,
19 February 2021; ‘Brittany
Higgins makes formal police complaint about alleged rape at Parliament House’,
ABC News, 24 February 2021; ACT Policing, Man
to face court for alleged historical sexual assault, media release, 6
August 2021; L Tingle, ‘State
of paralysis as ministers hide behind rape victim’, Australian Financial
Review, 20 February 2021; J Maley and K Curtis, ‘Unsafe house’, op. cit.; S
Morrison [Prime Minister], JobSeeker
payment increase; Craig Kelly's resignation from the Liberal Party; Barnaby
Joyce, and Brittany Higgins, transcript, 23 February 2021; Senate Finance
and Public Administration Legislation Committee, Official
Committee Hansard, 22 March 2021, p. 42; P Gaetjens, (Secretary,
Department of the Prime Minister and Cabinet), ‘Media statement’,
media release, 30 August 2021; D McCulloch, ‘PM
orders Higgins 'backgrounding' probe’, Canberra Times, 26 March
2021; S Morrison, ‘Answer
to Question without notice: members of parliament: staff’, [Questioner: C
King], House of Representatives, Debates, 25 March 2021, p. 49;
Australia, House of Representatives, ‘Letter
to Scott Morrison, Prime Minister, from Dr John Kunkel, Chief of Staff, Office
of the Prime Minister—Document presented by Mr Morrison 25 May 2021’, Votes
and proceedings, HVP 117, 25 May 2021, p. 1867.
[200]. Senate Finance
and Public Administration Legislation Committee, Official
Committee Hansard, 22 March 2021, p. 42.
[201]. S Morrison
[Prime Minister], Foster
report, media release, 25 May 2021.
[202]. S Morrison, ‘Answer
to Question without notice: members of parliament: staff’, [Questioner: T
Plibersek], House of Representatives, Debates, 25 May 2021, p. 22.
[203]. S Foster, Review
of the Parliamentary Workplace: Responding to Serious Incidents, Department
of the Prime Minister and Cabinet, 4 June 2021.
[204]. Ibid., p. 6.
[205]. Ibid., p. 5.
[206]. Ibid.
[207]. Ibid., p. 6.
[208]. Ibid.
[209]. Ibid., p. 63.
[210]. A Tiernan, ‘After
Brittany Higgins: will the Foster review prevent another ‘serious incident’ at
Parliament House?’, The Conversation, 7 June 2021.
[211]. K Murphy and P
Karp, ‘Labor
says parliament complaints mechanism should be able to investigate allegations against
departed staff’, Guardian Australia, 22 June 2021.
[212]. Ibid.
[213]. S Foster, Review
of the parliamentary workplace: responding to serious incidents: final report,
Department of the Prime Minister and Cabinet, 26 July 2021.
[214]. S Morrison (Prime
Minister) and S Birmingham (Minister for Finance), Foster
report, media release, 26 July 2021.
[215]. Ibid.
[216]. S Foster,
‘final report’, op. cit., p. 89.
[217]. S Birmingham
(Minister for Finance), Launch
of Parliamentary Workplace Support Service, media release, 23 September
2021; see Parliamentary Workplace Support
Service website.
[218]. House of
Representatives, Votes
and Proceedings, HVP 145, 18 October 2021, pp. 2200–2201; Senate, Journals,
123, 19 October 2021, pp. 4159–4160.
[219]. Ibid.
[220]. S Morrison and
S Birmingham, Foster report, op. cit.
[221]. Ibid.
[222]. S Hutchinson
and S Brook, ‘CBD:
Striking a blow’, Sydney Morning Herald, 10 August 2021. It is not
clear if this team will be involved in the face-to-face training to be rolled
out across the parliamentary workplace in September 2021.
[223]. S Birmingham
(Minister for Finance), Independent
review into Commonwealth Parliamentary workplaces, media release, 5 March
2021.
[224]. Ibid.
[225]. Ibid.
[226]. S Birmingham (Minister
for Finance), Independent
review into Commonwealth Parliamentary workplaces, transcript, 5 March
2021.
[227]. Australian
Human Rights Commission (AHRC), ‘Information-Independent
review into commonwealth parliamentary workplaces’, AHRC website.
[228]. K Jenkins (Sex
Discrimination Commissioner), Statement
on Independent Review into Commonwealth Parliamentary workplaces, media
release, 5 March 2021. See also Australia Human
Rights Commission Act (1986).
[229]. Ibid., media
release.
[230]. K Jenkins, Respect@Work:
sexual harassment national inquiry report 2020, Australian Humans
Rights Commission, 2 March 2020.
[231]. D Farrell
(Shadow Special Minister of State), T Plibersek (Shadow Minister for Women) and
K Gallagher (Shadow Minister for the Public Service), Parliamentary
workplace culture needs to change, media release, 5 March 2021.
[232]. K Jenkins, Independent
review into Commonwealth parliamentary workplaces: progress update 2021,
Australian Human Rights Commission, 19 July 2021; K Jenkins, Set the Standard: Report
on the Independent Review into Commonwealth Parliamentary Workplaces,
Australian Human Rights Commission, 30 November 2021.
[233]. K Jenkins, Set the Standard: Report
on the Independent Review into Commonwealth Parliamentary Workplaces,
Australian Human Rights Commission, 30 November 2021, pp. 16–17.
[234]. Ibid., p. 17.
[235]. Ibid., p. 18.
[236]. Ibid.,
pp. 14–16.
[237]. Ibid., pp.
18–27.
[238]. Ibid., p. 25.
[239]. Ibid., p. 24.
[240]. Ibid., p. 228.
[241]. Ibid., p. 26.
[242]. Ibid. p. 231
[243]. Ibid. p. 232.
[244]. S Morrison
(Prime Minister), S Birmingham (Minister for Finance), M Payne (Minister for
Women, Minister for Foreign Affairs) and B Morton (Special Minister of State,
Minister for the Public Service and Minister Assisting the Prime Minister and
Cabinet), Release
of Jenkins Report, media release, 30 November 2021.
[245]. Ibid.
[246]. ‘Jenkins
Report Leadership Taskforce Meeting 3 February 2022’, Department of the
Prime Minster and Cabinet website, 4 February 2022
[247]. Ibid.
[248]. A Wallace
(Speaker), ‘Statement
by the Speaker: Independent Review into Commonwealth Parliamentary Workplaces’,
House of Representatives, Debates, (proof), 8 February 2022, p. 1; S
Brockman (President), ‘Statement
by the President: Independent Review into Commonwealth Parliamentary Workplaces’,
Senate, Debates, 8 February 2022, p. 2.
[249]. Ibid.
[250]. Australia,
Senate, Journals,
SJ 136, 10 February 2022, (proof), pp. 4547–4548; Australia, House of
Representatives,
Votes and Proceedings, HVP 164, 14 February 2022, pp. 2474–2476.
[251]. Ibid.
[252]. J Duniam
(Assistant Minister for Forestry and Fisheries and Assistant Minister for
Industry Development), ‘Parliamentary Workplace Reform (Set the Standard
Measures No. 1) Bill 2022: Second Reading’, Senate, Debates, 9 February
2022, pp. 159–160.165
[253]. Australia,
House of Representatives, Votes
and Proceedings, HVP 165, 15 February 2022, pp. 2497.
[254]. ‘Review
of the Members Of Parliament (Staff) (Mops) Act 1984’, Department of the
Prime Minister and Cabinet website.
[255]. Ibid.
[256]. M Sawer,
‘Dealing with toxic parliaments: lessons from elsewhere’, op. cit., p. 7.
[257]. L Cox, The
bullying and harassment of House of Commons staff, op. cit., para.352.
[258]. Ibid., para.
405.
[259]. Ibid., para.
352 and see for example, M Sawer, ‘Dealing with toxic
parliaments: lessons from elsewhere’, op. cit., p. 22.
[260]. Ibid., para.
378.
[261]. K Jenkins, Set the Standard Report,
op. cit., p. 24.
[262]. Ibid., p. 25.
[263]. House of
Representatives, Votes
and Proceedings, HVP 145, 18 October 2021, pp. 2200–2201; Senate, Journals,
123, 19 October 2021, pp. 4159–4160.
[264]. Ibid., para.
404.
[265]. Thwaites and
Macklin, op. cit., p. 29. See also the section in this paper on the UK
Parliament and the discussion of the Recall of MPs Act 2015 (UK).
[266]. See for
example, the UK House of Commons and the South Australian Parliament. The
establishment of an independent complaints mechanism was announced by the
government on 26 July 2021 but will not consider historical sexual assault
complaints. See B Williams, ’Code
needed for safer workplace’, Canberra Times, 3 August 2021 and S
Morrison (Prime Minister) and S Birmingham (Minister for Finance), Foster
report, media release, 26 July 2021.
[267]. K Murphy, ‘Brittany
Higgins tells Scott Morrison to 'show leadership' to change parliament's
predatory culture’, Guardian Australia, 30 April 2021.
[268]. K Jenkins, Set the Standard Report,
op. cit., p. 22–23.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
This work has been prepared to support the work of the Australian Parliament using information available at the time of production. The views expressed do not reflect an official position of the Parliamentary Library, nor do they constitute professional legal opinion.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Entry Point for referral.