Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Finance, Senator the Hon Katy Gallagher)

GENERAL OUTLINE

1. The Parliamentary Workplace Support Service Amendment (Independent Parliamentary Standards Commission) Bill 2024 (the Bill) would establish the Independent Parliamentary Standards Commission (the IPSC) as a workplace investigation framework for Commonwealth parliamentary workplaces.

2. The Bill would give effect to recommendation 22 of the Australian Human Rights Commission's Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (Set the Standard Report), that the Houses of Parliament should establish an IPSC to operate a fair, independent, confidential and transparent system to handle complaints and make findings about misconduct, and to make recommendations on sanctions for parliamentarians, staff and others who breach codes of conduct.

3. The findings of the Set the Standard Report indicated the need to drive cultural and systemic change to ensure all Commonwealth parliamentary workplaces are safe and respectful, and to prevent and address misconduct such as bullying, harassment, sexual harassment, assault and sexual assault. The Report identified a lack of consistency around expected standards of behaviour and conduct, with ineffective reporting processes and a failure to hold parliamentarians and their staff accountable for misconduct.

4. The Set the Standard Report concluded that behaviour standards and accountability mechanisms in Commonwealth parliamentary workplaces were complex, incomplete, not sufficiently independent and lacked enforcement. In response, the Report recommended adoption of codes of conduct for parliamentarians and their staff, and standards of conduct for the Parliamentary precincts (recommendation 21), to be enforced by an IPSC (recommendation 22).

5. Establishment of the IPSC by this Bill would complement other reforms to support professional, safe and respectful workplaces for parliamentarians, their staff and other people who work in Commonwealth parliamentary workplaces. The IPSC would support these aims by providing an accountability and enforcement mechanism for the Behaviour Codes.

The Behaviour Codes

6. In February 2022, the Houses of Parliament established the Joint Select Committee on Parliamentary Standards (JSCPS) to inquire into the development of codes of conduct for Commonwealth parliamentary workplaces. On 8 February 2023 (the Senate) and 9 February 2023 (the House of Representatives), endorsed the Behaviour Code for Australian Parliamentarians, Behaviour Code for Parliamentarians' Staff, and Behaviour Standards for Commonwealth Parliamentary Workplaces (the Behaviour Codes), as developed and recommended by the JSCPS in its final report, pending establishment of the advisory and enforcement regime for the Behaviour Codes.

7. The Behaviour Codes set out expectations for behaviour, including requirements to foster respectful and inclusive workplaces, and a prohibition on bullying, harassment, sexual harassment and assault, and discrimination. It is intended that the Behaviour Codes would be finally adopted to coincide with the IPSC's commencement consistent with recommendations 2 and 4 of the JSCPS's final report. Final adoption of the Behaviour Codes would complete implementation of recommendation 21 of the Set the Standard Report.

8. Prior to the IPSC's commencement, to build awareness and compliance with the Behaviour Codes, the Parliamentary Workplace Support Service (the PWSS) will develop and distribute guidance, and deliver training, on the content and operation of the Codes.

9. Additionally, consistent with recommendation 10 of the JSCPS Report, the Behaviour Codes must be reviewed by the Parliamentary Joint Committee on Parliamentary Standards, to be established by this Bill, once every new Parliament. This is intended to ensure regular review of the operation and effectiveness of the Behaviour Codes in meeting their object of supporting safe and respectful Commonwealth parliamentary workplaces. The proposed Parliamentary Joint Committee on Parliamentary Standards would have flexibility to review the Behaviour Codes at any other time it resolves to do so. While it would be a matter for the Parliamentary Joint Committee on Parliamentary Standards on how it conducts a review of the Behaviour Codes, it would be expected the Committee would consult with stakeholders, including staff, affected by the Codes to ensure they are fit for purpose.

Investigative function of the IPSC

10. The primary function of the IPSC would be to investigate allegations of breaches of the Behaviour Codes ('post-Code conduct') and of certain other misconduct ('pre-Code conduct'). The IPSC's function to investigate allegations of pre-Code conduct would replace the PWSS's 'review' function under section 19 of the Parliamentary Workplace Support Service Act 2023 (PWSS Act). The PWSS's review function was established as an interim measure pending establishment of the IPSC.

11. The IPSC's investigation function is intended to work in a complementary way with the PWSS's functions to provide support and complaint resolution services. While the IPSC's investigation function would be functionally separate, consistent with the Set the Standard Report, these three 'pathways' would work together in the following ways:

a.

a person who needs advice or support about a workplace conduct issue could go to the PWSS's confidential support service, including on an anonymous basis. This service could also help a person to make a complaint to the IPSC, if an investigation would be appropriate.

b.

the IPSC would not investigate complaints better dealt with under the PWSS's complaint resolution function.

c.

investigations by the IPSC would be undertaken where an IPSC Commissioner is satisfied there is sufficient information or evidence to justify an investigation and, generally, with a complainant's consent. A Commissioner has discretion not to investigate on several grounds, including if the conduct would be more appropriately dealt with under another law, or by the PWSS complaint resolution service, or if the complaint is vexatious or lacking in substance. People involved in an investigation (whether a complainant, respondent or witness) would be able to receive support from the PWSS.

12. Potential complainants are encouraged to seek advice from the PWSS who can talk through options to facilitate resolution of a workplace issue. The PWSS can provide advice about making a complaint to the IPSC if an investigation could be appropriate. However, if a person would be more comfortable reporting directly to the IPSC, the Bill would permit this. The IPSC would assess if an investigation should be conducted in the same way as any other complaint it receives. As an impartial decision-making body, the IPSC would not provide advice and support to a complainant, which is a function of the PWSS.

13. The IPSC would publish guidance about its processes. It would also have clear communications promoting the PWSS support service as a front door for those considering making a complaint.

Structure and constitution of the IPSC

14. The Bill would establish the IPSC as part of the PWSS, with functional separation between the PWSS's human resources and other functions and the IPSC's investigation function. The IPSC's independence is recognised in the Bill through provision that no person, including the PWSS Chief Executive Officer (PWSS CEO), would be able to direct the Commissioners in the performance of their functions or exercise of their powers.

15. For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013), the PWSS and the IPSC would be a listed entity known as the Parliamentary Workplace Support Service. The PWSS CEO would be the accountable authority for the purposes of the finance law.

16. The IPSC would be constituted by a Chair Commissioner and supporting part-time Commissioners who would undertake investigations and reviews as required. Under the legislation, at least seven, and no more than nine, part-time Commissioners, including the Chair, would be appointed, following approval of the appointments through the Parliamentary Joint Committee on Parliamentary Standards. The IPSC would also be constituted by persons assisting the Commissioners (primarily staff engaged under the Public Service Act 1999 and made available by the PWSS CEO). At least four Commissioners would need to be women. Staff would be subject to the directions of the Chair Commissioner.

17. The Set the Standard Report recommended different investigation structures depending on whether the respondent is a parliamentarian or another person subject to the Behaviour Codes. A complement of six Commissioners is necessary to fully implement the investigation phases set out in the Set the Standard Report. A minimum of seven Commissioners would provide a 'spare' Commissioner in the event another Commissioner has a conflict of interest or is otherwise unavailable. Permitting up to nine Commissioners to be appointed would ensure availability of Commissioners, and flexibility, in the event more than one Commissioner has a conflict of interest. It would also ensure that Commissioners are available that meet the legislative requirements for appointment, so can be quickly drawn on to support investigations, when needed.

18. Commissioners, including the Chair Commissioner, would hold office on a part-time basis and paid the remuneration determined by the Remuneration Tribunal.

Conduct the IPSC could investigate

19. The IPSC would be able to investigate allegations of misconduct that occurred:

a.

before commencement of the Behaviour Codes as 'Pre-Code conduct', and

b.

on or after commencement of the Behaviour Codes as 'Post-Code conduct'.

20. Pre-Code conduct would reflect the scope and application of the existing PWSS review function. The PWSS Act defines that conduct as 'relevant conduct', which includes sexual assault, assault, sexual harassment, harassment and bullying.

Who can make a complaint and who a complaint can be made about

How the IPSC receives complaints about conduct issues

21. The IPSC could receive an allegation from:

a.

a person who was or is affected by the alleged conduct (a 'conduct complaint'),

b.

a parliamentarian concerning a complainant or a respondent who they employ or who otherwise works predominantly from their office (a 'conduct issue referral'),

c.

a Presiding Officer concerning a respondent who is a member of the House over which they preside (a 'conduct issue referral'),

d.

the Leader of a Parliamentary party concerning a respondent parliamentarian from that party (a 'conduct issue referral'), and

e.

the PWSS CEO or a member of the staff of the PWSS to whom the CEO referral power has been delegated (a 'conduct issue referral').

22. The Bill also provides for the Chair Commissioner to assign themselves to deal with a conduct issue they become aware of in any other way (other than through an anonymous complaint). This would allow the IPSC to commence an investigation into a conduct issue for which there is substantial evidence that a breach of the Behaviour Codes has occurred but there is no complainant, and no referral to the IPSC has been made. For example, this would allow the Chair Commissioner to commence an investigation where there is media footage that indicates non-compliance with a Behaviour Code. As with conduct complaints and conduct issue referrals made to the IPSC, the Chair Commissioner would still need to be satisfied thresholds for commencing an investigation are met (discussed below).

23. Conduct complaints and conduct issue referrals would need to be made in writing and identify the complainant or referrer. The IPSC could not commence an investigation into anonymous complaints. Requiring a complainant or referrer to identify themselves would reduce the risk of vexatious complaints being made. Anonymous complaints could be made to the PWSS, which could provide confidential support to a person about their complaint if they are contactable, and could support a person in the process to make a complaint, if they choose. If the IPSC received an anonymous complaint, the Chair Commissioner would be required to refer it to the PWSS unless the Chair is satisfied the complaint is frivolous, vexatious, etc.

How the IPSC could deal with conduct issues

24. Following the receipt of a conduct complaint or a conduct issue referral, the Chair Commissioner would be required to assign an investigating Commissioner to deal with the conduct issue. An investigating Commissioner would be required to deal with a conduct issue by investigating the issue, taking reasonable steps to refer it to certain entities, or taking no action in relation to the issue.

25. The Bill sets out a non-exhaustive list of grounds on which a Commissioner could decide not to investigate a conduct issue, or not to continue to investigate a conduct issue. This includes if the Commissioner is satisfied a complaint is frivolous or vexatious, or if it would be more appropriate for the conduct to be dealt with under another law or by the PWSS complaint resolution service. This would also include where a conduct issue has already been dealt under a Commonwealth, state or territory law. For example, where a person has engaged in a traffic offence and received an infringement notice, an investigating Commissioner would decide not to investigate as the conduct has already been dealt with under state or territory law.

26. An investigating Commissioner could only decide to commence an investigation into a conduct issue if satisfied there is sufficient evidence or information to justify an investigation. To inform their decision, an investigating Commissioner would be able to make preliminary inquiries. An investigating Commissioner could exercise information gathering powers for that purpose and also issue confidentiality notices for that purpose.

27. If the conduct issue arose from a conduct complaint or a conduct issue referral, an investigating Commissioner would need the complainant's consent to investigate the complaint, or would need to be reasonably satisfied that a serious risk to work health or safety arises or could arise from the conduct concerned. An investigating Commissioner could not investigate a conduct issue if the conduct could constitute a 'serious offence', being assault or sexual assault against a person, and that person did not consent to the investigation.

Fair and confidential procedures

28. The Commissioners would have power to issue a confidentiality notice to a person concerning information that related to a conduct issue that was or is before the IPSC and had not been lawfully made public. Non-compliance with a notice would be enforceable as an offence. The Bill sets out a number of exceptions to this requirement including, for example, if a disclosure is to obtain legal advice, to obtain medical or psychiatric care, or to seek support from an approved support person.

29. The Bill would impose confidentiality obligations on the PWSS CEO, Commissioners, and staff who assist the Commissioners. Subject to disclosures authorised by the Bill, non-compliance with these confidentiality obligations would be an offence. Authorised disclosures would include, for example, disclosures made for a purpose connected with the performance of a function or exercise of a power under the PWSS Act or another Act.

30. The Bill sets out a number of rules that must be complied with by an investigating Commissioner (or a parliamentarian decision panel or review panel, as relevant) to provide procedural fairness. These are to:

a.

observe the requirements of procedural fairness when conducting an investigation or review,

b.

take reasonable steps to give written notice of a decision to investigate a conduct issue to the respondent, the respondent's employer (in certain circumstances), the complainant (if any) and the conduct issue referrer (if any),

c.

take reasonable steps to give written notice of a decision not to investigate a conduct issue to the respondent (if they were made aware of a matter relating to the issue), the complainant (if any), the conduct issue referrer (if any) and any other person given a notice in relation to the issue, and

d.

give a person a reasonable opportunity to respond to a preliminary finding that is critical of that person, or to a proposed sanction.

31. Investigations and reviews would be required to be completed as quickly as the PWSS Act and proper consideration allow.

Protections for people involved in an IPSC conduct issue

32. The Bill would provide protections to a person who makes a protected disclosure, which includes a person who makes a complaint to, or refers a conduct issue to, the IPSC (see above), and a person who gives information to the IPSC (whether in response to a notice or voluntarily). A person who gives information about a conduct issue to a parliamentarian or the PWSS CEO would also make a protected disclosure.

33. Similar to the Public Interest Disclosure Act 2013 (PID Act), it would be an offence to cause or threaten detriment to a person because they have made, may have made, propose to make, or could make a protected disclosure.

34. The Bill would also provide that a person who makes a protected disclosure is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure, and no contractual or other remedy could be enforced against the person on the basis of the disclosure. This protection would not apply to any civil, criminal or administrative liability for knowingly making a disclosure that is false or misleading.

35. Allegations of reprisals could also be investigated by the IPSC. The Behaviour Code for Australian Parliamentarians and the Behaviour Code for Parliamentarians' Staff each provide that any attempt to intimidate or victimise a complainant or reporter, or to lobby, influence or intimidate the IPSC, will be treated as a serious and aggravated breach of the relevant Code.

36. Because the Behaviour Code for Australian Parliamentarians and the Behaviour Code for Parliamentarians' Staff each include a rule that 'all Australian laws must be upheld', the types of wrongdoing that could be reported to the IPSC are broad. It is not intended the IPSC would investigate allegations of breaches of the law that should be dealt with by other specialist agencies or in prescribed ways. For example, allegations of serious corruption should be investigated by the National Anti-Corruption Commission (NACC). If there is an allegation that could constitute a criminal offence, as set out below, the IPSC would generally confer with the police to determine if it is appropriate to investigate.

37. Where an investigating Commissioner decides not to investigate a conduct issue because it would be more appropriately dealt with under another law of the Commonwealth or of a State or Territory, the Bill would require the Commissioner to take reasonable steps to refer the issue to be dealt with by the appropriate entity. A person who reports a conduct issue to the IPSC that is subsequently referred to another entity would still receive the protections in the Bill.

A range of defined sanctions and a compliance framework

38. The Bill would provide that if an investigating Commissioner or a parliamentarian decision panel makes a finding that a respondent has engaged in relevant conduct, it can make certain decisions in relation to sanctions. An investigating Commissioner or panel would not be required to make any recommendations, impose any sanctions or make a referral to a Privileges Committee, if a respondent has been found to have engaged in relevant conduct. For example, the Commissioner or panel might be satisfied that the respondent has taken appropriate steps to change their behaviour.

39. The types of sanctions vary depending on whether the respondent is a current or former parliamentarian, current or former MOPS employee, or another parliamentary workplace participant. The following table sets out the types of sanctions and how non-compliance would be dealt with.

40. The Commissioner or panel could take into account a range of considerations when determining a proportionate sanction, including:

a.

the nature and seriousness of the breach (including the type of conduct and the period over which misconduct occurred),

b.

whether the misconduct was uncharacteristic (including if there is evidence the behaviour is atypical),

c.

the respondent's response and likelihood of recurrence (including if they show willingness to take responsibility for the misconduct and admit non-compliance and remorse), and

d.

mitigating factors (such as any provocation by others, the extent to which a respondent's personal circumstances may have influenced their conduct, and extent to which a breach reflected a systemic problem in a work area).

What happens at the end of an investigation

41. At the end of an investigation, the investigating Commissioner or the parliamentarian decision panel (the decision-maker) would be required to prepare a draft report which includes preliminary findings on whether the respondent has engaged in relevant conduct, a summary of the evidence and material on which those preliminary findings are based, and any proposed sanction (being a proposed recommendation, sanction or referral).

42. The decision-maker would be required to give a person a statement setting out any preliminary finding that is critical of that person, and any proposed sanction, and to give that person a reasonable opportunity to respond. What amounts to a 'reasonable opportunity to respond' would depend on the particular circumstances of each case. Additionally, the decision-maker may give a copy of the draft report to the respondent and the complainant if they consider it appropriate to do so (with any redactions to exclude sensitive information).

43. The decision-maker would be required to consider any responses provided before deciding, on the balance of probabilities, whether the respondent engaged in relevant conduct, and before deciding to make any final recommendations, impose any sanctions, or make a referral to a Privileges Committee.

44. The decision-maker would be required to provide a copy of the final report, redacted to exclude sensitive information, to the respondent, the complainant (if any) and, if the respondent is a MOPS employee, their employer. The decision-maker is also required to provide a copy of the final report, redacted to exclude sensitive information, to certain people:

a.

if the conduct issue arose from a conduct issue referral – the referrer,

b.

if the report contains a recommendation for a Presiding Officer to take action – that Presiding Officer,

c.

if the respondent is a Minister – the Prime Minister (if the report finds that the respondent engaged in relevant conduct),

d.

if the respondent is both a Presiding Officer and a member of Parliamentary party – the Leader of that Parliamentary party (if the report contains a decision to refer a serious breach finding in relation to the Presiding Officer to the Privileges Committee of a House of the Parliament),

e.

if the respondent is a former MOPS employee – the respondent's former employing parliamentarian (if reasonably practicable to do so, and the report contains recommendation that the former employer give a written reprimand to the respondent), and

f.

if the respondent is not a MOPS employee – the respondent's employer (if the report contains a recommendation for the employer to take action).

45. Where the respondent is a parliamentarian or a MOPS employee, the decision-maker would have discretion to provide a copy of the final report, redacted to exclude sensitive information, to the PWSS CEO for purposes connected with the CEO's functions or powers.

46. The decision-maker would only be required to provide a copy of the final report to persons other than the respondent, the complainant (if any) and the employing parliamentarian (for a MOPS employee) after any the end of any review period.

Review

47. A respondent could apply to the IPSC for review of:

a.

a decision to make a finding that the respondent has engaged in relevant conduct, and

b.

for a respondent who is a core participant, a decision to make a recommendation in relation to the respondent (including to make a particular recommendation), a decision to impose a sanction on the respondent (including a particular sanction), and a decision to refer a serious breach finding in relation to the respondent to a Privileges Committee.

48. A complainant could apply to the IPSC for review of:

a.

a decision to make a finding that the respondent has not engaged in relevant conduct,

b.

for a respondent who is a core participant, a decision to make a recommendation in relation to the respondent (including to make a particular recommendation), a decision to impose a sanction on the respondent (including a particular sanction), and a decision to refer a serious breach finding in relation to the respondent to a Privileges Committee, and

c.

a decision not to impose a sanction, not to recommend a sanction, or not to refer a serious breach finding to a Privileges Committee, when a finding is made that the respondent has engaged in relevant conduct.

49. In addition, if the respondent is a MOPS employee, the employing parliamentarian may apply to the IPSC for review of a decision to make a recommendation that they take an action in relation to the respondent.

50. A review panel may review a decision in such a manner as it thinks fit and must observe the requirements of procedural fairness. The relevant review panel would have discretion as to whether the review is conducted on the papers, or whether further information or evidence is sought. A review panel may exercise the same powers as an investigating Commissioner to request information and impose confidentiality conditions. The review panel may affirm, vary, or substitute the original decision.

Overview of how the IPSC would deal with allegations against particular respondents

51. Consistent with the recommendations of the Set the Standard Report, the Bill provides different processes for the investigation of conduct issues depending on whether the respondent is a parliamentarian or another Commonwealth parliamentary workplace participant.

Allegation against a parliamentarian respondent

52. If the respondent for a conduct issue is a current or former parliamentarian, the Chair Commissioner would assign a single Commissioner (the 'investigating Commissioner') who would determine whether to investigate the conduct issue. The Bill would authorise the investigating Commissioner to make preliminary inquiries for this purpose. The Bill would also set out a number of grounds on which a Commissioner must decide not to investigate and when a Commissioner has discretion not to investigate.

53. If an investigation is commenced, the investigating Commissioner would be required to complete the investigation as quickly as the PWSS Act and proper consideration of the conduct issue permit, and to observe procedural fairness requirements. When the investigation is completed, the Chair Commissioner would be required to constitute a panel of three Commissioners, including the investigating Commissioner, called the 'parliamentarian decision panel'. The investigating Commissioner would be required to provide the decision panel with evidence and other material gathered through their investigation.

54. The decision panel would then be required to prepare a draft report with a preliminary finding on whether the respondent parliamentarian engaged in 'relevant conduct' (being 'post-Code conduct' or 'pre-Code conduct') and any proposed sanction or referral. The Bill would prescribe a finite set of sanctions (see above). If the draft report set out a finding critical of the respondent or a proposed sanction or referral, the decision panel would be required to give the parliamentarian a reasonable opportunity to respond. After considering the response, if any, the decision panel would be required to finalise their decisions and prepare a final report.

55. The Bill would enable parties to an investigation to apply for review of certain decisions made by a parliamentarian decision panel. If a review application was made, the Chair Commissioner would be required to constitute a panel of three Commissioners not involved in the first instance investigation decision to deal with the application.

56. If the decision panel decides to refer a serious breach finding in relation to a current parliamentarian respondent to the relevant Privileges Committee (and the time for applying for a review has expired, a review application has been dismissed, or a review panel has upheld the decision panel's decision), the relevant panel would be required, as soon as practicable, to refer the finding (with an accompanying statement) to that Committee. This would be referred on a confidential basis. The Privileges Committee would be required to decide, within 60 days or a longer period as required, whether to recommend to the relevant House of the Parliament that it impose a sanction. This could be any relevant sanction it considers appropriate. The Privileges Committee's report would become public when it is tabled in the Parliament.

Allegation against a MOPS employee

57. If the respondent for a conduct issue is a current or former MOPS employee, the Chair Commissioner would assign a single Commissioner (the 'investigating Commissioner') who would determine whether to investigate the conduct issue. The Bill would authorise the investigating Commissioner to make preliminary inquiries for this purpose. The Bill would also set out a number of grounds when a Commissioner must decide not to investigate and when a Commissioner has discretion not to investigate.

58. If an investigation is commenced, the investigating Commissioner would be required to complete the investigation as quickly as the PWSS Act and proper consideration of the conduct issue permit, and to observe procedural fairness requirements. The investigating Commissioner may make a recommendation to the MOPS employee's employing parliamentarian to suspend the employee if the Commissioner is reasonably satisfied that the employer should do so to comply with a duty or obligation under a work health and safety law. A suspension period could not exceed 30 days. The investigating Commissioner would be required to consult with the employing parliamentarian on the length of a recommended suspension and, if a recommendation for suspension had already been made, on whether to recommend a further suspension.

59. At the end of their investigation, the investigating Commissioner would be required to prepare a draft report with a preliminary finding on whether the respondent MOPS employee engaged in relevant conduct and any proposed sanction recommendation. The Bill would prescribe a finite set of sanctions that an investigating Commissioner may recommend to the employing parliamentarian (or former employing parliamentarian for former MOPS employees) (see above).

60. If the draft report set out a finding critical of the respondent employee or a proposed sanction recommendation, the investigating Commissioner would be required to give the employee a reasonable opportunity to respond. After considering the response, if any, the Commissioner would be required to finalise their decisions and prepare a final report.

61. The Bill would enable parties to an investigation to apply for review of certain decisions made by an investigating Commissioner. If a review application was made, the Chair Commissioner would be required to constitute a panel of three Commissioners not involved in the first instance investigation decision to deal with the application.

Allegation against a respondent who is not a parliamentarian or a MOPS employee

62. If the respondent for a conduct issue is a person who was not a current or former parliamentarian or MOPS employee, such as persons employed by private companies operating in Parliament House (such as a member of the press gallery or a café worker called 'non-core participants') or a volunteer or intern carrying out work for a parliamentarian at Parliament House (a 'designated worker'), the MOPS employee process above would apply with the exception that the investigating Commissioner would make any recommendation to the respondent's employer (if any). In addition, in deciding whether to commence an investigation, one of the discretionary grounds on which the investigating Commissioner may decide not to commence an investigation into allegations against a non-core participant is if the Commissioner is satisfied the conduct issue would be more appropriately dealt with by the respondent's employer.

63. The Bill does not prescribe sanctions for these respondents. Rather, as these people are not employees of the Commonwealth, the Bill would give the investigating Commissioner discretion to recommend any action to the employer that was considered appropriate taking into account the seriousness of the conduct. For non-core participants, the investigating Commissioner could also recommend to a Presiding Officer that the person's access to the Parliamentary precincts be restricted or removed.

Public reporting

64. The IPSC would not routinely publish statements about particular investigations. It would have discretion to make a public statement in certain circumstances where there has been a finding that a parliamentarian has engaged in relevant conduct, namely where:

a.

a parliamentarian decision panel imposes a sanction and there have been previous adverse findings against the parliamentarian, or

b.

a parliamentarian fails to comply with a sanction imposed by a parliamentarian decision panel.

65. In all other cases, the IPSC could only publish a statement containing information about a conduct issue, if information about any matter relating the issue is already publicly available, and if it would afford fairness to any person, or is otherwise necessary to correct erroneous reporting. The IPSC would be required to consult with a person (other than a parliamentarian respondent) before including identifying information about that person in a public statement.

66. The PWSS's annual report under section 22 of the PWSS Act would be required to include information relating to conduct complaints and conduct issue referrals received, and conduct issues dealt with, by the IPSC (including general information about the investigation of conduct issues and any actions taken as a result of those investigations), but could not include personal information. If there is a low number of conduct issues investigated by the IPSC, consideration would be given to the most appropriate approach to publication of this information in the PWSS's annual report.

Oversight of the IPSC

67. The Bill would provide for the establishment of a Parliamentary Joint Committee on Parliamentary Standards. Its functions would include, amongst other things:

a.

considering proposed recommendations for the appointment of Commissioners,

b.

undertaking reviews of the Behaviour Codes each term of the Parliament,

c.

monitoring and reviewing the performance by the Commissioners of their functions,

d.

reporting to both Houses of the Parliament on any matter connected with the performance of the functions of the IPSC or the Commissioners,

e.

any other functions conferred on the Committee by resolution of both Houses.

68. The Bill would not authorise the Committee to investigate or reconsider a conduct issue, review an investigation into a conduct issue that has not been completed, or give or seek information about a particular person or conduct issue.

IPSC's interaction with other legal frameworks

Parliamentary privilege

69. The IPSC would only investigate allegations of relevant conduct that do not form part of proceedings in Parliament. Conduct that engages parliamentary privilege would be dealt with by the respective Houses of the Parliament in accordance with their procedures. An IPSC Commissioner would be able to confer with a Presiding Officer (or a person authorised by a Presiding Officer, such as a Clerk) to assist with determining whether conduct forms part of proceedings in Parliament.

Work health and safety

70. The IPSC is intended to operate in a way that is complementary to existing work health and safety laws, including the Work Health and Safety Act 2011 (WHS Act). Establishment of the IPSC would not change existing duties of parliamentarians, or senior staff likely to hold special duties as 'officers' under work health and safety laws, to exercise due diligence to ensure the Commonwealth complies with its primary duty to ensure the health and safety of workers, so far as is reasonably practicable.

71. Parliamentarians and other 'officers' who are notified, for example, of a complaint of sexual harassment or bullying are required to take appropriate steps to address the complaint. What is appropriate will depend on the circumstances.

72. Parliamentarians and staff are able to obtain advice on work health and safety (WHS) matters from the PWSS. For example, the PWSS could assist parliamentarians and other duty holders to make a decision on whether a matter should be referred for a workplace investigation, or provide advice on other actions that may be appropriate in a particular circumstance. If a workplace investigation is warranted, the IPSC could perform that function.

73. The Bill generally works on the basis that information is shared, and investigations are commenced, with consent of a complainant (if there is one). While in practice people who hold duties under the WHS Act should generally have regard to a complainant's preferred way of managing a complaint, the WHS Act does not make action by duty holders to ensure a safe workplace conditional on obtaining a complainant's consent to the actions or processes needed to comply with the duty. Accordingly, while the IPSC would generally operate on a consent basis, the Bill also provides for specified individuals, such as an employing parliamentarian and the PWSS CEO, to refer conduct issues to the IPSC without consent where reasonably satisfied referral is necessary to comply with a duty or obligation under a WHS law.

74. While employing parliamentarians, Presiding Officers, party leaders and the PWSS CEO would be able to refer a matter to the IPSC without consent in certain circumstances, the IPSC would only be able to commence an investigation without a complainant's consent if the investigating Commissioner is reasonably satisfied a serious risk to WHS arises or could arise. There are practical limitations with investigating a matter without a complainant's consent, and a Commissioner is well placed to assess whether an investigation is warranted.

75. As an exception to the above, the IPSC could not commence an investigation into an allegation of assault or sexual assault without the complainant's consent (see further below). If there is no consent for the IPSC to investigate an allegation of that kind, a person who has a duty under the WHS Act would need to consider if there are other actions to take that are reasonably practicable to ensure health and safety. It may also be necessary to notify Comcare of the incident. The PWSS is able to provide advice to parliamentarians and MOPS employees on WHS obligations.

Conduct that could constitute criminal conduct

76. The Behaviour Codes (breaches of which will amount to 'post-Code conduct'), as currently drafted, include an express prohibition of conduct that could constitute criminal conduct such as harassment, sexual assault and assault, as well as a requirement to uphold all Australian laws. 'Pre-Code conduct' would also include conduct that could constitute criminal conduct such as harassment, sexual assault and assault. As such it would be open to the IPSC to investigate conduct that could also constitute criminal conduct. However, if there is evidence a serious offence had been committed it would generally be expected the police would investigate and the IPSC would not investigate or would not investigate further.

77. The IPSC will be able to confer with police for the purpose of deciding if it is appropriate to deal with an allegation. For complaints alleging assault or sexual assault, the IPSC could only investigate if the person consents to the investigation and it is otherwise appropriate to investigate. For example, with complainant consent, the IPSC could investigate an allegation of inappropriate touching where the police are not proceeding with an investigation.

78. If the IPSC investigates and makes a finding against the respondent, it would not be a finding of criminal guilt (which is expressly clarified in the Bill).

79. If the complainant seeks an IPSC investigation but the IPSC considers it is not appropriate to investigate because the allegation involves serious criminal conduct, the complainant would be encouraged to obtain confidential support and advice from the PWSS. This could include the PWSS assisting the person to make a report to the police if they decide to do so.

80. In most circumstances, the IPSC would not require complainant consent to refer information to police (for example, information about theft of Commonwealth property). An exception to this is where the alleged conduct may constitute assault or sexual assault (where consent would be required). This approach gives effect to a position in the Set the Standard Report that reports to police should be made with the explicit consent of a victim-survivor. It is also consistent with recommendation 1 of the Legal and Constitutional Affairs References Committee Report on Current and proposed sexual consent laws in Australia, that in all responses to sexual violence, governments and non-government organisations ensure that the agency of victim-survivors is paramount, actively respected and upheld.

81. The Bill would require the IPSC to publish guidance about the importance of early reporting to the police of relevant conduct that may constitute an offence and the consequences of failing to do so on future investigations and prosecutions

82. The Bill does not prevent a parliamentarian or other people (unless part of the IPSC) from making reports of assault or sexual assault to the police where the alleged victim does not consent. However, consistent with the Set the Standard Report, it is recommended that parliamentarians and MOPS employees obtain advice from the PWSS on what they should do in this circumstance.

FINANCIAL IMPACT

83. The Government has committed $3.8 million in 2024-25 to the PWSS for initial funding to establish the IPSC from 1 October 2024, subject to the passage of legislation. Future funding for the IPSC will be considered once the legislation to establish the IPSC has been settled.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Parliamentary Workplace Support Service Amendment (Independent Parliamentary Standards Commission) Bill 2024

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. This Bill would amend the Parliamentary Workplace Support Service Act 2023 (PWSS Act), to establish the Independent Parliamentary Standards Commission (IPSC) as a fair and independent workplace investigation framework for Commonwealth parliamentary workplaces.

3. The Bill would give effect to recommendations of the Australian Human Rights Commission's Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (the Set the Standard Report). In particular, the Bill would implement recommendation 22 of the Set the Standard Report, which recommended the Houses of Parliament establish an IPSC to handle complaints, make findings about misconduct, and make recommendations on sanctions for parliamentarians, staff and others who breach codes of conduct. The establishment of the IPSC would also enable the implementation of recommendation 21 of the Set the Standard Report, which recommended the adoption of codes of conduct for parliamentarians and their staff, and standards of conduct for the Parliamentary precincts. The Behaviour Code for Australian Parliamentarians, Behaviour Code for Parliamentarians' Staff, and Behaviour Standards for Commonwealth Parliamentary Workplaces (together, the Behaviour Codes) were adopted on an interim basis by both Houses of the Parliament in February 2023, pending the establishment of the IPSC.

4. The Bill would build on the existing objects of the PWSS Act, to support safe and respectful workplaces for parliamentarians, people employed under the Members of Parliament (Staff) Act 1984 (MOPS employees), and other Commonwealth parliamentary workplace participants and positive cultural change in those workplaces, by promoting and enforcing compliance with the Behaviour Codes. The Behaviour Codes set out expectations for behaviour, including requirements to foster respectful and inclusive workplaces, and a prohibition on bullying, harassment, sexual harassment and assault, and discrimination.

5. New Part 2A of the Bill would establish the IPSC as part of the Parliamentary Workplace Support Service (PWSS). The IPSC would be constituted by at least seven, and no more than nine, part-time Commissioners as well as staff assisting the Commissioners made available by the Parliamentary Workplace Support Service Chief Executive Officer (PWSS CEO). The IPSC would have functions of assisting the Commissioners in the performance of their functions, and publishing guidance about the functions of the IPSC and of the Commissioners.

6. Under the Bill, Commissioners would have a function of dealing with conduct issues. In dealing with conduct issues, the Bill would provide that Commissioners may, amongst other things:

a.

make preliminary inquiries to determine whether there is sufficient evidence or information to justify an investigation,

b.

compel a person to give or produce information relevant to a matter before the IPSC,

c.

refer, or share information relating to, the issue to another entity if satisfied it would be more appropriate for the issue to be dealt with by that entity,

d.

where the IPSC has made a finding that a person has engaged in relevant conduct, recommend a sanction be imposed, or if the respondent is a parliamentarian, impose sanctions or refer the matter to the Privileges Committee of the House of which the parliamentarian is a member, and

e.

undertake internal reviews of a decision to make a finding against a person, to recommend or impose a sanction against a person or make a referral to the Privileges Committee of a House.

7. Where a respondent is a current or former parliamentarian, a panel of three Commissioners would be constituted to determine whether the respondent had breached a Behaviour Code and impose a sanction or, where the respondent is a current parliamentarian, make a referral to the Privileges Committee of the relevant House.

8. Where a respondent is not a parliamentarian, such as where the respondent is a MOPS employee, a single Commissioner would determine whether the respondent had breached a Behaviour Code and decide whether to recommend a sanction.

9. Commissioners would also have a function of preparing and publishing public statements. The Bill would provide Commissioners with a discretion to publish details of individual cases and case outcomes where:

a.

publication would afford fairness to any person or correct erroneous reporting,

b.

a parliamentarian decision panel has imposed a sanction and a parliamentarian has previously been found to have engaged in relevant conduct, or

c.

a parliamentarian fails to comply with a sanction imposed by a parliamentarian decision panel under this Act.

10. The Bill would ensure appropriate protections are in place to protect the rights and reputations of individuals who make, are subject to, or participate in the investigation of a conduct issue by the IPSC by:

a.

requiring that Commissioners comply with the requirements of procedural fairness when dealing with conduct issues,

b.

providing Commissioners with the power to issue confidentiality notices covering information relevant to a conduct issue if satisfied it is appropriate to do so, and

c.

providing protections from reprisal action for persons who make a complaint to the IPSC, refer a conduct issue to the IPSC or give information about a conduct issue to the IPSC, a Commissioner, the PWSS CEO, or a parliamentarian in certain circumstances.

11. New Part 3A of the Bill would provide for the Commissioners of the IPSC, including a Chair Commissioner and at least six, but no more than eight, other Commissioners. Commissioners, including the Chair, would be appointed on a part-time basis.

12. New Part 6A of the Bill would establish the Parliamentary Joint Committee on Parliamentary Standards (PJCPS) to provide oversight of the IPSC. The PJCPS would have functions of considering proposed recommendations for the appointment of Commissioners, reviewing each Behaviour Code, monitoring and reviewing the performance by the Commissioners of their functions, and reporting to the Houses of the Parliament on any matter connected with the performance of the functions of the IPSC or the Commissioners.

13. The Bill would also amend existing legislation to support the establishment of the IPSC, including:

a.

the Freedom of Information Act 1982 (FOI Act) and the Archives Act 1983 (Archives Act) to restrict access to, and the publication of, IPSC complaint and investigation records,

b.

the National Anti-Corruption Commission Act 2022 (NACC Act) to prescribe Commissioners of the IPSC as a 'Commonwealth integrity agency' for the purposes of that Act in order to minimise the risk of duplication and concurrent processes examining the same conduct, and

c.

the Members of Parliament (Staff) Act 1984 (MOPS Act) to facilitate the implementation of recommended sanctions in relation to MOPS employees.

Human rights implications

14. The Bill engages the following rights:

a.

the rights to equality and non-discrimination,

b.

the right to privacy and to reputation,

c.

the right to freedom of expression,

d.

the right to take part in public affairs,

e.

the right to work and rights at work,

f.

the right to the highest attainable standard of physical and mental health,

g.

the right to an effective remedy,

h.

the right to a fair trial and fair hearing, and

i.

the right to the presumption of innocence.

The rights to equality and non-discrimination

15. Article 2 of the International Covenant on Civil and Political Rights (ICCPR) obliges State Parties to respect all people and guarantee them the rights contained in the ICCPR without distinction of any kind. Further, article 3 obliges State Parties to guarantee men and women equal access to the civil and political rights contained in the ICCPR and article 26 provides that States must guarantee to all persons equal and effective protection against discrimination on any ground.

16. The International Covenant on the Elimination of all Forms of Racial Discrimination (CERD), the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of Persons with Disabilities (CRPD) similarly provide for rights to equality and non-discrimination on the basis of race, gender and disability respectively.

IPSC investigations and sanctions

17. The Set the Standard Report identified a number of factors in Commonwealth parliamentary workplaces that contribute to the prevalence of inequality and discrimination in these workplaces, including the lack of accountability for misconduct and clarity as to appropriate standards of behaviour. New Division 3 of Part 2A of the Bill would provide the IPSC with functions to investigate allegations of relevant conduct. Relevant conduct is defined to include post-Code Conduct, being conduct alleged to constitute a breach of the Behaviour Codes, or pre-Code conduct, if satisfied that there is sufficient evidence to justify an investigation.

18. The Behaviour Codes set out expectations for behaviour, including a prohibition on discrimination, sexual harassment and assault. New section 24AB defines pre-Code conduct to include, amongst other things, conduct that constitutes sexual assault, sexual harassment, and discrimination. The ability for the IPSC to investigate allegations of discrimination promotes the rights to equality and non-discrimination of Commonwealth parliamentary workplace participants by providing an avenue for disciplinary action against parliamentarians, staff and others who engage in such behaviour. This responds to the findings of the Set the Standard report as to the limited recourse available for people who experience these behaviours in the Commonwealth parliamentary workplace. In providing an avenue for complaints of such behaviours to be made, formally investigated by an independent body and for consequences to be imposed on those who engage in such behaviours, the IPSC's function promotes the rights of Commonwealth workplace participants to equality and non-discrimination.

19. In addition, if, following an investigation, an investigating Commissioner or parliamentarian decision panel is satisfied on the balance of probabilities that the respondent has engaged in conduct that breaches the Behaviour Codes (which may include by engaging in discrimination) the relevant decision-maker may consider whether to recommend a sanction, or if the respondent is a current parliamentarian, impose a sanction directly or refer a serious breach finding to the Privileges Committee of the House of the Parliament of which they are a member. Under new section 24CY the decision-maker may impose prescribed sanctions directly upon a parliamentarian respondent or make prescribed recommendations for sanctions against MOPS employees and other Commonwealth parliamentary workplace participants. Where the decision-maker has recommended a parliamentarian impose a sanction on their MOPS employee, the parliamentarian would be required to take that action. Under new Division 5 of Part 2A, following the referral of a serious breach finding by a parliamentarian decision panel or a review panel, a House of the Parliament may resolve to impose a sanction on a parliamentarian respondent who is a member of that House, on recommendation of the Privileges Committee.

20. The sanctions as set out by the Bill include a requirement to undertake training or enter into a behaviour agreement. These sanctions have a protective nature, both intended to discipline inappropriate conduct and to deter and guard against future inappropriate conduct, including conduct of a discriminatory nature, in the workplace.

21. This functions of the IPSC would support Commonwealth parliamentary workplaces to proactively prevent discrimination or harassment occurring in their workplaces and set clear boundaries on acceptable conduct in the workplace.

Commissioner appointments - gender diversity considerations

22. New section 36B of the Bill provides for the composition of the IPSC. This section requires that at least four IPSC Commissioners be women. This requirement will ensure that there is appropriate gender diversity amongst the IPSC Commissioner cohort. This is consistent with the Government's commitment to a target for women to hold 50 per cent of overall Government board positions and at least 40 per cent of positions on individual Government boards, as well as being consistent with the composition of the PWSS Advisory Board.

23. To the extent that these gender diversity considerations would limit the right to equality and non-discrimination, they are a permissible limitation. These measures have the legitimate objective of supporting women to feel safe in making complaints to, and participating in workplace investigations. Ensuring substantive representation of women among the IPSC Commissioners is appropriate and important in light of the IPSC's role in supporting safe and respectful workplaces, noting the gendered nature of sexual harassment, bullying and sexual assault in Commonwealth parliamentary workplaces.

24. This measure is reasonable and proportionate given it requires only four of the appointed IPSC Commissioners to be women.

Public reporting obligations

25. Item 36 of the Bill would amend existing subsection 22(1) of the PWSS Act to provide that the PWSS can prepare reports about matters relating to the functions of the IPSC as part of its existing annual reporting obligations. Item 37 of the Bill would also amend existing subsection 22(2) of the PWSS Act to specifically require the PWSS annual report to include information relating to conduct complaints and conduct issue referrals received and dealt with by the IPSC, which would include information about the investigation of conduct issues and any actions taken as a result of those investigations (which would include any sanctions imposed, recommendations made or referrals made to a Privileges Committee). Reports by the PWSS are tabled in the Parliament and made public on the PWSS's website. The ability for the PWSS to report on the IPSC would enable Commonwealth parliamentary workplaces, as well as the public, to evaluate the progress of the IPSC in handling and deterring complaints of discrimination in the workplace, and provide the ability to track this data over time.

26. The inclusion of information relating to IPSC conduct complaints and conduct issue referrals, as part of the PWSS compulsory reporting obligation, promotes greater transparency and accountability for the progress and efforts made by Commonwealth parliamentary workplaces in protecting the rights of individuals in those workplaces to equality and non-discrimination in the workplace.

The right to privacy and to reputation

27. Article 17 of the ICCPR provides that no person should be subjected to arbitrary or unlawful interference with their privacy, nor to unlawful attacks on their reputation, and that every person has the right to the protection of the law against such interference or attacks.

28. The Human Rights Committee has interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The right to privacy may be limited where the limitation is lawful and not arbitrary, and where it is reasonable, necessary and proportionate to achieve a legitimate objective.

Referral of findings to a Privileges Committee

29. Under new Division 5 of Part 2A, where a parliamentarian decision panel or review panel, respectively, decides to refer a serious breach finding in relation to a parliamentarian respondent to the Privileges Committee of the relevant House of the Parliament, the panel must refer the finding and give a statement to the Privileges Committee that sets out such information as the decision-maker considers necessary to assist the Committee to understand the reasons for the decision.

30. This may limit the right to privacy and reputation in that it would lead to the disclosure of identifying information, in particular of the parliamentarian respondent. To the extent that the right to privacy and to reputation is limited by the requirement for the IPSC to refer these findings, this is provided for in the Bill and therefore authorised by law. The limitation is necessary in order to promote the legitimate objective of enabling the Privileges Committee to consider and recommend a sanction to be imposed by the House of the Parliament. Therefore, this would promote the objective of deterring misconduct, ensuring accountability and promoting transparency around progress and actions taken to ensure a safe and respectful workplace for Commonwealth parliamentary workplace participants.

31. The measure is reasonable as parliamentarians are elected representatives of the public and, as such, there should be transparency of IPSC findings of serious breaches of acceptable standards of behaviour in the workplace by these officials. The measure is proportionate as a panel may only make such a referral where satisfied the respondent has engaged in relevant conduct that is serious and it is appropriate for a parliamentary sanction to be imposed. In addition, to the extent that third parties may be identified in such a statement, new section 24EA would require the panel to consult with such persons prior to including identifying information.

Public statements

32. Under new Division 7 of Part 2A, IPSC Commissioners would have discretion to make a public statement in certain circumstances. Under new section 24G, this would include publishing information about a conduct issue if that information is publicly available and the Commissioner or Commissioners are satisfied that publishing a statement would afford fairness to any person, or is necessary to correct erroneous reporting. This provision generally protects the right to reputation, as such public reports could restore an individual's reputation if it had been incorrectly or unfairly impinged publicly.

33. However, it may in turn limit the right to privacy in that it may lead to the disclosure of identifying information. This limitation is necessary to protect the right to reputation as it achieves the legitimate objective of ensuring that a person does not suffer reputational damage and is not treated unfairly due to incorrect reporting of an IPSC matter.

34. This measure is proportionate given the Bill requires that where a public statement under this section includes identifying information, the responsible Commissioner or Commissioners must notify the person to whom the information relates and have regard to any submissions they make in relation to the inclusion of the information. This requirement for consultation would aid in preventing the disclosure of sensitive information that would unreasonably interfere with a person's privacy, or that could reveal the identity of a person where it is not appropriate or safe to do so.

35. In addition, under this Division, Commissioners would have discretion to make public statements about parliamentarian respondents for repeated breaches where they have decided to impose a sanction, or where the parliamentarian has failed to comply with an IPSC imposed sanction (under new section 24GA). This provision similarly limits the right to privacy and to reputation by allowing for the disclosure of identifying information by the IPSC in certain circumstances.

36. To the extent that the right to privacy and to reputation is limited by the power of the IPSC to identify parliamentarians in public statements under this provision, this is provided for in the Bill and therefore authorised by law. The limitation is necessary in order to promote the legitimate objectives of deterring misconduct, ensuring accountability and promoting transparency around progress and actions taken to ensure a safe and respectful workplace for Commonwealth parliamentary workplace participants.

37. The measure is reasonable as parliamentarians are elected representatives of the public and, as such, there should be transparency of IPSC findings of repeated breaches of acceptable standards of behaviour in the workplace by these officials. The measure is proportionate as the ability for the IPSC to publish a statement identifying a parliamentarian is limited to circumstances where they have been found to have engaged in repeated misconduct, or have failed to comply with a sanction imposed or recommended by the IPSC.

Information sharing

38. The Bill vests various information sharing powers in the IPSC. Section 61 of the PWSS Act, as amended by this Bill, would enable the sharing of information, including personal information, between the IPSC, PWSS and other Commonwealth entities, Commonwealth office holders, Presiding Officers or State or Territory law enforcement entities. Information may only be disclosed or used under these provisions where reasonably necessary for the performance of the functions or activities or exercise of powers of the entity or individual.

39. To the extent that the right to privacy and reputation is limited by the power of the IPSC to share and disclose personal information under these clauses, this is provided for in the Bill and is therefore authorised by law.

40. The potential interference with the right to privacy occasioned by the IPSC's authority to share and disclose information, including personal information, with the above parties under section 61 goes to the legitimate objective of assisting either of the parties to perform its functions or exercise its powers. It is a necessary measure to effect the sharing of information required for the parties to effectively perform their functions, such as the PWSS CEO having the ability to refer a conduct issue to the IPSC, and for the Chair Commissioner of the IPSC to be able to refer matters to be dealt with by the PWSS where more appropriate. The measure is proportionate, given that it is limited to circumstances where it is reasonably necessary for the listed entities and individuals to perform their functions or exercise their powers, as well as given the safeguards in place under subsection 61(4) that prevent the disclosure of information under these provisions if to do so would constitute an offence against a law of the Commonwealth for which there is no exception or defence for a disclosure. Further, the Bill would impose confidentiality obligations on the PWSS CEO, Commissioners and staff who assist the Commissioners. Subject to disclosures authorised by the Bill, non-compliance with these confidentiality obligations would be an offence.

41. New section 24FK of the Bill would make it an offence for entrusted persons, being the CEO, IPSC Commissioners, persons assisting the IPSC and consultants, to make an unauthorised record of, or disclose, information they obtained in the course of, or for the purposes of, performing functions or duties, or exercising powers under Part 2A of the Bill or in the course of, or for the purposes of, assisting another to perform such functions or duties or exercise such powers. This would carry a penalty of 6 months imprisonment or 30 penalty units or both. This offence promotes the right to privacy by ensuring that sensitive personal information held by the IPSC is not disclosed by those entrusted to keep it confidential.

42. New sections 24FL to 24FR would provide exceptions to this offence. These provisions would authorise entrusted persons to disclose such information in limited circumstances, such as for purposes connected with the performance or exercise of their functions or powers under legislation, where required or authorised by law or to comply with a requirement to produce, or where necessary to protect life, health or safety. In addition, the limited disclosure of information to a complainant or respondent's employer, either with the consent of the complainant or where relevant to an employer's work health and safety duties and obligations, would also be authorised. To the extent that the right to privacy and reputation is limited by the authorisation for entrusted persons to disclose or make records of information under these provisions, this is provided for in the Bill and is therefore authorised by law.

43. These exceptions go to the legitimate objective of assisting entrusted persons to undertake their statutory functions, to comply with legal requirements (such as to comply with requirements to produce or to assist others to comply with their work health and safety obligations), or to protect the life, safety and health of individuals. These authorisations are necessary so that entrusted persons can disclose such information without being subject to a criminal offence. These exceptions are proportionate as they are limited to authorising the disclosure of information in specific circumstances in which there is a legitimate objective, rather than providing a general power to share information. Disclosure of information outside the scope of these exceptions would be an offence.

Confidentiality

44. The Bill would further promote the right to privacy by providing IPSC Commissioners with discretion to impose a confidentiality notice on a person to prevent them from disclosing, or making a record of, certain information relevant to an IPSC process or action in relation to a conduct issue before the IPSC under new section 24FH. Commissioners may impose confidentiality notices as they consider appropriate to protect the identity of individuals affected by a conduct issue or participating in an IPSC investigation or to prohibit the disclosure of sensitive information, including the unreasonable disclosure of personal information, amongst other things. Non-compliance with the requirements of a confidentiality notice issued by an IPSC Commissioner would be an offence under new section 24FJ of the Bill, which would carry a penalty of 6 months imprisonment or 30 penalty units or both.

45. New section 24FI would provide exceptions to this offence. This provision would authorise a person to disclose, or make a record of, information that would otherwise be prohibited by a confidentiality notice issued by the IPSC in certain circumstances. For example, this would include where the disclosure was made to protect life or safety, to a medical practitioner for the purpose of obtaining medical care or to a legal practitioner for the purpose of obtaining legal advice. To the extent that the right to privacy and reputation is limited by the authorisation for persons to disclose or make records of information under this provision, this is provided for in the Bill and is therefore authorised by law.

46. These exceptions go to the legitimate objective of ensuring that persons who are subject to confidentiality obligations by an IPSC Commissioner are still able to receive the advice and support they need from the appropriate people during, and after, an investigation. Additionally, these exceptions ensure that disclosures, which would otherwise be prohibited by a confidentiality notice, could be made where necessary to protect the life and safety of others. These exceptions are necessary so that persons can obtain the support and advice they need, and make disclosures or records of information to protect others, without being subject to a criminal offence. These exceptions are proportionate in that they are limited to the specific circumstances prescribed in the Bill, in which the disclosure, or recording of, information serves a legitimate purpose.

Reporting

47. As outlined above at paragraph 25, the Bill would amend the PWSS's annual reporting function to include mandatory reporting on the IPSC. Existing section 22(9) of the PWSS Act, which requires such a report by the PWSS must not include personal information, would apply to IPSC information in these reports. This protects the right to privacy by ensuring IPSC information included in a PWSS report does not disclose personal information.

Reprisals

48. The Bill would provide protections from reprisal action to persons who make a protected disclosure to the IPSC, being a person who:

a.

makes a complaint to the IPSC,

b.

refers a conduct issue to the IPSC,

c.

gives information about a conduct issue to the IPSC, a Commissioner, or the PWSS CEO,

d.

gives information about a conduct issue to a parliamentarian and the parliamentarian uses that information to make a referral, or the person intends the parliamentarian to make a referral, to the IPSC, or

e.

provides information or produces a document or thing to a Commissioner or panel in compliance with a notice under the Bill or at the request of a Commissioner or panel.

49. New section 24HA would make it an offence for a person to cause or threaten to cause detriment to a person in response to a belief or suspicion that they, or another person, has made, may have made, could make, or proposes to make a protected disclosure. Detriment is defined to include, amongst other things, damage to a person's reputation, business or financial position or property.

50. This measure promotes the right to privacy and reputation by making it an offence for individuals to engage in conduct that causes detriment to the reputation of another.

The right to freedom of expression

51. Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the freedom to impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media.

52. Article 19(3) of the ICCPR provides that the right to freedom of expression carries with it special duties and responsibilities, and is subject to certain restrictions as are provided by law and are necessary for the protection of national security and for the respect of individual rights and reputations.

Confidentiality notices

53. As discussed above, at paragraph 44, IPSC Commissioners would have discretion to impose confidentiality notices. This measure would not be an absolute restriction on a person's ability to disclose or make records of information, but would instead provide Commissioners with a mechanism for imposing conditions on the use of sensitive or potentially prejudicial information pertaining to the IPSC, as appropriate in the circumstances. This would ensure that sensitive information or information capable of prejudicing an IPSC or other investigation is protected from improper use and communication by third parties. These restrictions on freedom of expression are therefore a legitimate object of the Bill.

54. The restriction on freedom of expression in this context is necessary in order to encourage individuals to engage with the IPSC in a frank manner, to prevent detriment to individuals arising from the disclosure of sensitive or personal information and to protect the public release of information which may prejudice an IPSC investigation or other legal proceeding. The measure is proportionate as the imposition of a confidentiality notice by an IPSC Commissioner is limited to finite circumstances, including where such restriction on the disclosure or use of information is necessary to prevent prejudice to the IPSC process, or to prevent unreasonable detriment to a person affected by the conduct issue. In addition, a confidentiality notice would cease to end at the conclusion of an IPSC investigation, unless a Commissioner is satisfied that one of the grounds for making the notice continues to apply.

55. In particular, to ensure that this offence is sufficiently precise and does not unnecessarily limit a person's right to freedom of expression, the Bill provides a range of exemptions in which a confidentiality notice issued by an IPSC Commissioner does not apply, discussed above at paragraph 45.

56. Further, the penalties attaching to breaches of these restrictions under the Bill are reasonable and proportionate. In the absence of serious consequences for breaches, unauthorised disclosures of certain information may undermine and jeopardise the effectiveness of the IPSC or be detrimental to the operations of other regulated entities. The primary effect of the penalties would therefore be to act as a deterrent, and would correlate to the seriousness of the offences.

Confidentiality obligations of entrusted persons

57. The Bill would limit the right to freedom of expression by restricting an entrusted person's ability to disclose and make records of certain information under new section 24FK, discussed above at paragraph 41.

58. This limitation serves the legitimate objective of ensuring trust in the IPSC and its processes by Commonwealth parliamentary workplace participants, through express confidentiality requirements on persons entrusted to handle or receive sensitive personal information relevant to an IPSC investigation. This recognises that IPSC Commissioners and staff assisting them would have access to a range of sensitive information in the course of their duties, and that the improper use and disclosure of this information could irreparably damage the IPSC's reputation, and significantly deter people from providing sensitive information to the IPSC in the future. If Commonwealth parliamentary workplace participants are not willing to make disclosures or otherwise provide assistance to the IPSC due to fear the information they impart would not be dealt with confidentially, the IPSC would be significantly inhibited in performing its statutory functions. The restrictions on entrusted persons making records of and disclosing sensitive information—except in connection with the exercise of their powers—is a legitimate object of this Bill.

59. This measure is a reasonable limitation on the right to freedom of expression, in that it would only apply to information gained in the course of the entrusted person's duties. Additionally, such a limitation is proportionate, given entrusted persons would be authorised to disclose the information in certain circumstances, including where required or authorised by law, necessary to lesson or prevent a serious threat to the life, health and safety of any individual, or for purposes connected with the performance or exercise of powers or functions under the PWSS Act (as amended by this Bill).

Protection for journalists

60. The right to freedom of expression protects freedom of expression in any medium, including through the media. The Bill would promote this right by providing an explicit exemption for journalists, their employers and persons assisting them, from compliance with a request for information by the IPSC, if to do so would disclose the identity of an informant or enable that identity to be ascertained (under new section 24FA).

Exceptions from the Freedom of Information Act 1982 and the Archives Act 1983

61. The right to freedom of expression includes the freedom to seek and receive information. The Bill would limit this right to the extent that it would amend the Archives Act and FOI Act to prevent access to certain information relating to the IPSC. The amendments to the Archives Act would provide that records of the IPSC, other than those relating to its administration, do not come into the open access period under that Act until 99 years after their creation. Further, the FOI Act would be amended to exclude the IPSC from the operation of that Act, with the effect that documents of the IPSC cannot be accessed under FOI. However, these limitations are permissible in that they are prescribed by law and are reasonable, necessary and proportionate to achieving a legitimate objective recognised by article 19(3).

62. These amendments pursue the legitimate objective of protecting the rights and reputations of others. Noting that conduct issues dealt with by the IPSC would necessarily involve sensitive personal information, these amendments are intended to protect personal information, often of a sensitive nature, as well as information that could reasonably identify others, to protect the rights of such persons to privacy and to their reputation. To that extent, the right to privacy and reputation is promoted by these amendments.

63. The amendments to the Archives Act are necessary to assure a person who is engaging with the IPSC that the information they disclose would not be released under that Act in the individual's lifetime. Further, the amendments to the FOI Act are necessary to ensure that no information about complaints to the IPSC or IPSC investigations, particularly personal or sensitive information, can be released under that Act in any circumstance. These would be reasonable limitations given the sensitive nature of the relevant information and the implications its disclosure may have for the individual and for others if it were made publicly available.

64. The amendments to these Acts are proportionate as individuals would be able to access administrative documents of the IPSC within the standard access period under the Archives Act and personal information held by the IPSC about themselves under the Privacy Act 1988. Accordingly, these amendments are proportionate to the objective in that they only capture those documents which may include information of a sensitive nature.

The right to take part in public affairs

65. Article 7 of the CEDAW obliges State Parties to take all appropriate measures to eliminate discrimination against women in the political and public life of the country and to ensure women are equally able to participate in the formulation and implementation of government policy and hold public office and perform all public functions at all levels of government. Article 29 of the CRPD similarly obliges State Parties to ensure that people with disabilities can effectively and fully participate in political and public life on an equal basis with others. Article 25 of the ICCPR includes a right to have access, on general terms of equality, to the public service.

66. The Bill promotes the right to take part in public affairs by promoting and fostering safe and respectful Commonwealth parliamentary workplaces. In particular, the Bill promotes this right by providing the IPSC with functions of:

a.

promoting and enforcing compliance with standards of behaviour in Commonwealth parliamentary workplaces, including the prohibition on discrimination on any grounds,

b.

imposing or recommending sanctions for misconduct, or referring matters to the relevant Privileges Committee, therefore aiming to prevent future breaches of the Behaviour Codes,

c.

publishing guidance to educate all Commonwealth parliamentary workplace participants about the functions of the IPSC, and

d.

appropriately referring conduct issues to other relevant investigatory or regulatory bodies in order to uphold the law and work health and safety duties and obligations.

67. These measures promote the rights of individuals to take part in public affairs by attracting and supporting diverse and inclusive Commonwealth parliamentary workplaces that are safe and respectful, and by promoting and upholding clear standards of behaviour. This in turn empowers those affected by misconduct to come forward and make reports as appropriate standards of behaviour are clearly established, and the consequences for breaching such standards are visible.

The right to work and rights at work

68. Articles 6(1) and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), article 11 of the CEDAW and article 27 of the CRPD provide the right to work and rights in work. This includes the right to enjoyment of just and favourable working conditions, which ensures safe and healthy working conditions, and the right to protection of health and safety in working conditions. Protection against sexual harassment and discrimination in the workplace is integral to the right to gain a living by work and the enjoyment of just and favourable conditions of work.

69. The right to work and rights in work are promoted by the Bill through various functions vested in the IPSC that serve to strengthen Commonwealth parliamentary workplace participants' rights to just and favourable working conditions and the right to the protection of such conditions by:

a.

allowing for a Presiding Officer, parliamentarian, party leader or the PWSS CEO to refer a conduct issue to the IPSC, with complainant consent or without complainant consent if required to comply with work health and safety duties and obligations,

b.

investigating conduct complaints and referrals, thus providing an avenue for resolution in matters where the right to work and rights in work have been interfered with through pre-Code or post-Code conduct (such as through alleged sexual harassment),

c.

providing for a Commissioner to investigate a conduct issue either with complainant consent or if reasonably satisfied that a serious risk to work health or safety arises, or could arise, from the conduct,

d.

imposing or recommending sanctions, or referring matters to the relevant Privileges Committee of the House, that would deter and prevent further behaviour from occurring so that Commonwealth parliamentary workplaces are safe and respectful,

e.

providing a mechanism by which employees may be suspended from the workplace during the course of an IPSC investigation where a work health and safety concern is raised,

f.

facilitating the sharing of IPSC reports with the PWSS CEO for purposes connected with the performance or exercise of their functions or powers, such as where concerns are raised about work health and safety,

g.

facilitating the sharing of information about a conduct issue with the employer of the complainant or respondent where such information is relevant to the employer's work health and safety duties or obligations, and

h.

referring individuals to the PWSS's support function, where they can access advice and support services to support psychological safety in relation to alleged relevant conduct, and the provision of trauma-informed information and early intervention services to provide assistance where the right to work and rights in work have been impeded.

70. These measures would assist employers in proactively reducing physical and psychological safety risks that may arise in Commonwealth parliamentary workplaces. In addition, these functions would assist in preventing discrimination and harassment in these workplaces, as well as providing appropriate resolution pathways. The right to work and rights in work are therefore promoted by the Bill by improving conditions in employment, ensuring there is a mechanism in place for the investigation of conduct complaints and reinforcing protections for health and safety in Commonwealth parliamentary workplaces.

The right to the highest attainable standard of physical and mental health

71. Article 12 of the ICESCR recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The UN Committee on Economic, Social and Cultural Rights has stated the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to underlying determinants of health, such as safe and healthy working conditions.

72. The Set the Standard Report noted that individuals experience significant harm where there is bullying, sexual harassment and sexual assault in the workplace, with negative effects on their physical and mental health.

73. The Bill promotes the right to the enjoyment of the highest attainable standard of physical and mental health by supporting safe and respectful workplaces for Commonwealth parliamentary workplace participants, and providing an avenue for misconduct that affects safe and healthy workplace conditions to be investigated and sanctioned. Further, as discussed above at paragraph 69.h), the Bill would actively promote the referral of individuals to the services provided by the PWSS support function throughout an IPSC process, which promotes the right to the enjoyment of the highest attainable standard of physical and mental health by supporting psychological safely.

74. For example, the Bill would provide the IPSC with functions to support safe workplaces, including allowing for a Commissioner to investigate a conduct issue without complainant consent where satisfied a serious risk to work health and safety arises, or could arise, from the conduct (under new section 24CH). The Bill also provides protections for individuals during the course of an IPSC investigation, including providing for support people during interviews (under new section 24FC), and allowing the disclosure of information to a support people and psychologists (under new section 24FI).

75. The IPSC would support safe workplaces and provide protections for Commonwealth parliamentary workplace participants, and will be important framework given the effect that negative workplace environments and behaviours can have on a person's mental and physical health. As such, the Bill promotes the right to the enjoyment of the highest attainable standard of physical and mental health.

The right to an effective remedy

76. Article 2(3) of the ICCPR guarantees the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR. The UN Human Rights Committee has stated that the right encompasses an obligation to bring justice to perpetrators of human rights abuses, including discrimination, and also to provide appropriate reparation to victims.

77. The Bill would provide the IPSC with a function of dealing with conduct issues, meaning to investigate complaints of alleged breaches of the Behaviour Codes or conduct that constitutes 'pre-Code' conduct. In dealing with a conduct issue, the IPSC may decide to commence a formal investigation into the issue, or may refer the issue on in certain circumstances. The IPSC may also undertake internal review of decisions in certain circumstances, where such an application has been made by either a complainant or respondent in an IPSC investigation.

78. This function promotes the right to an effective remedy by providing a process by which complaints regarding certain conduct may be investigated, findings may be made against perpetrators of human rights abuses such as discrimination and sexual violence, and sanctions may be imposed on those persons.

Rights of review

79. The Bill would also promote the right to an effective remedy by providing both complainants and respondents to a conduct issue with rights of review. Section 24DA would provide that a respondent or complainant may apply to the IPSC for a review of certain decisions, including a decision to make a finding that a person has engaged in relevant conduct or a decision to recommend or impose a sanction on a person or make a referral of a serious breach finding to a Privileges Committee. This provides a further avenue for remedy for IPSC investigation participants in certain circumstances and ensures that original decisions of the IPSC may be subject to review, where appropriate.

Concurrent investigations and referrals

80. The Bill would promote the right to an effective remedy by ensuring that allegations of misconduct can be promptly addressed by the IPSC or another appropriate body. New section 24CK requires Commissioners to refer conduct complaints outside of the IPSC where they have decided not to investigate where it is considered more appropriate to be dealt with under another law of the Commonwealth or a law of a State or Territory. For example, it would generally not be appropriate for the IPSC to investigate complaints of systemic or serious corruption, which would be investigated by the NACC, or to investigate fraud allegations that would be better investigated by the police.

Protections from reprisals

81. The Bill promotes the right to an effective remedy by providing protections from reprisal action, as discussed above at paragraph 48. Providing protection from reprisal action enhances the effectiveness of the IPSC process by encouraging the making, and referrals, of complaints to the IPSC without fear of retribution. Thereby, promoting the right to an effective remedy by ensuring individuals can access the remedies afforded by an IPSC process in good faith without being subject to detriment, or threats of detriment.

Oversight of the IPSC

82. Finally, the Bill would protect the right to an effective remedy by providing for oversight of the IPSC by a PJCPS. The oversight arrangements in new Part 6A of the Bill would provide assurance that the IPSC is performing its functions fairly, effectively, appropriately and independently.

83. The PJCPS has a function to monitor and review the performance by the Commissioners of their functions. Although the PJCPS could not investigate or reconsider an investigation into a conduct issue, the oversight of the Commissioners' performance would ensure the right to an effective remedy by providing oversight and accountability as to whether Commissioners are performing their functions and investigating conduct issues appropriately and effectively.

The right to a fair trial and fair hearing

84. Article 14(1) of the ICCPR protects the right to a fair and public criminal trial, and public hearing in civil proceedings. It provides that all persons shall be equal before the courts and tribunals. This right also provides that in the determination of criminal charges, or any suit at law, the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

85. The Bill enables a decision-maker to facilitate the making of an apology by a respondent to a person affected by their conduct. An apology must only be facilitated under new section 24CX of the Bill if it would be appropriate in the circumstances, if both the respondent and the recipient of the apology have consented to the making and receiving of it, and that the conduct concerned would not constitute an offence.

86. New section 24CX would expressly provide that the making of an apology is not an admission of fault or liability for the conduct, nor is an apology admissible in evidence against the respondent in any civil proceedings in respect of the conduct concerned.

87. Similarly, the Bill would amend existing section 16 of the PWSS Act, which provides for the complaint resolution function of the PWSS, to facilitate the making of an apology. As with new section 24CX, an apology made in this context is not an admission of fault or liability for the conduct, nor is an apology admissible in evidence against the maker of the apology in any civil proceedings in respect of the conduct concerned.

88. The Bill limits the right to a fair trial and fair hearing by providing that where the IPSC, or the PWSS, facilitates a respondent to apologise for their own conduct, this evidence would not be able to be relied upon at a further proceeding. However, to the extent that the right to a fair trial and fair hearing is limited under existing section 16 (as amended by this Bill) and new section 24CX, the measures constitute a permissible limitation on that right.

89. The exclusion of an apology as evidence meets the legitimate objective to support, in appropriate circumstances, the making of apologies to de-escalate or resolve conflicts. The exclusion of an apology as evidence is necessary to enable apologies to be made without exposing an individual to potential liability. This exclusion of evidence is proportionate as, for matters before the IPSC, the measure it is limited to circumstances where a Commissioner thinks it is appropriate to facilitate an apology, where both parties consent to the apology and the conduct does not constitute an offence. This means that the complainant and the respondent will have to have agreed to the making of the apology, knowing the effect would be that the apology would be excluded from being used as evidence against them. In matters the subject of a PWSS complaint resolution process, the making of an apology is similarly voluntary, and is a reasonable and proportionate limitation on the right to a fair trial given the protection from liability would not apply in relation to an apology for conduct that would constitute an offence.

90. For these reasons, the limitation on the right to a fair trial and fair hearing is permissible under the Bill.

The right to the presumption of innocence

91. Article 14(2) of the ICCPR provides that anyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

92. The Bill would limit the right to the presumption of innocence by placing a reversed evidential burden on defendants with respect to certain offences, being:

a.

failure to comply with a notice to give information (new section 24FB),

b.

unauthorised disclosure of information by entrusted persons (new sections 24FK to 24FR), and

c.

causing, or threatening to cause, detriment to another person in relation to a protected disclosure (new section 24HA).

93. These provisions would create an evidential burden on a defendant in relation to defences or exceptions to the relevant offences. A defendant would bear an evidential burden to prove that it was not reasonably practicable to comply with a requirement to give information etc. (new subsection 24FB(2)), to prove that the disclosure of information by an entrusted person was authorised by new sections 24FK to 24FR and to prove that conduct engaged in by the defendant was administrative action that is reasonable to protect a person from detriment (new subsection 24HA(4)).

94. However, a reversed evidential burden will not necessarily limit the presumption of innocence provided that the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse onus provision is relevant in determining its justification

95. The reversed evidential burden provision requiring a defendant to prove it was not reasonably practicable for them to comply with a request from the IPSC to produce information, or a document or thing, serves the legitimate objective of facilitating the provision of timely and accurate information to the IPSC. If the person bears the burden of proving that it was not reasonably practicable to comply with the requirement, they are more likely to comply with that requirement as required. The reversed evidential burden provisions requiring a defendant to prove that the disclosure of information was authorised serve the legitimate objective of maintaining the confidentiality of IPSC processes, protecting the integrity of IPSC investigations and protecting individuals involved in such investigations. Requiring a defendant prove that the disclosure was authorised would encourage entrusted persons considering whether they do have an appropriate authorisation prior to disclosing information. Further, the reversed evidential burden provision requiring a defendant to prove their conduct constituted reasonable administrative action serves the legitimate objective of encouraging persons to engage with the IPSC without fear of reprisal action being taken against them.

96. It is reasonable and necessary for the burden of proof to be placed on the defendant in these circumstances as the facts in relation to the defence are peculiarly within the knowledge of the defendant. For example, a defendant is best-placed to give evidence that it was not reasonably practicable for them to comply with a requirement to produce information, documents or things. Similarly, a defendant is best-placed to produce information regarding the circumstances in which they made a particular record or disclosure of protected information held by the IPSC.

97. Reverse evidential burden provisions are proportionate because, consistent with section 13.3 of the Criminal Code, this burden requires the defendant to adduce or point to evidence that suggests a reasonable possibility that particular matter exists or does not exist. It does not require the defendant to prove those mattes beyond reasonable doubt. Further, if the defendant discharges an evidential burden, the prosecution will be required to disprove those matters beyond reasonable doubt. The reversed evidential burden provisions established in the Bill also create offence-specific defences that operate in addition to, and not instead of, the general offences available at criminal law.

Conclusion

98. The Bill is compatible with human rights because it promotes the protection of human rights and, to the extent that it may operate to limit human rights, the limitations are reasonable, necessary and proportionate to achieve legitimate objectives.

GLOSSARY

List of abbreviations used in this Explanatory Memorandum

NOTES ON CLAUSES

Preliminary

Clause 1 – Short title

1. Clause 1 provides for the short title of the Bill, once enacted, to be the Parliamentary Workplace Support Service Amendment (Independent Parliamentary Standards Commission) Act 2024.

Clause 2 – Commencement

2. This clause provides for the commencement of each provision in the Bill, as set out in the table at subclause 2(1). The table provides that sections 1 to 3, Schedule 1, Part 1, and any other sections of the Act not covered in the table would commence the day after the Bill receives the Royal Assent.

3. The table further provides that Schedule 1, Part 2 would commence on a single day to be fixed by Proclamation. However, if the provisions of Schedule 1, Part 2 did not commence within the period of six months beginning on the day the Bill receives the Royal Assent, they would commence on the day after the end of that period.

4. The table also provides that Schedule 2 would commence at the same time as Schedule 1, Part 2 of the Bill.

5. A note under the table clarifies that the table only relates to provisions of the Bill as originally enacted, and the table will not be amended to deal with any amendments made in the future.

6. Subclause 2(2) specifies that information in column 3 of the table at subclause 2(1) is not part of the Bill, and information may be inserted in this column, or information in it may be edited, in any published version of the Bill.

Clause 3 – Schedules

7. Clause 3 provides that legislation that is specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in that Schedule, and any other item in a Schedule to the Bill has effect according to its terms.

Schedule 1—Amendments

Part 1—Amendments commencing day after Royal Assent

Parliamentary Workplace Support Service Act 2023

Item 1 – Section 4 (at the end of the paragraph beginning "This Act also establishes")

9. Item 1 would provide for a new paragraph (c) to be inserted into the simplified outline in section 4 of the Parliamentary Workplace Support Service Act 2023 (PWSS Act) stating that the PWSS Act also establishes the Parliamentary Joint Committee on Parliamentary Standards (PJCPS), to oversee the work of the Independent Parliamentary Standards Commission (IPSC). This new paragraph is consequential to the insertion of new Part 6A of the PWSS Act, which would provide for a PJCPS.

10. This item would insert new paragraph (c) into the simplified outline in section 4 from the day after the Bill receives the Royal Assent. Further amendments to section 4, which would be made by items in Schedule 1, Part 2 (discussed at items 16, 17 and 18), would commence on a single day to be fixed by Proclamation.

Item 2 – Section 5

11. Item 2 would amend the definitions section of the PWSS Act to insert two new definitions related to the establishment of the proposed PJCPS.

12. The term Parliamentary Joint Committee would be defined to mean the Parliamentary Joint Committee on Parliamentary Standards for the time being constituted under new Part 6A of the PWSS Act.

13. New Part 6A (discussed at item 3) would provide for the PJCPS, to consider proposed recommendations for Commissioners, monitor and review the performance by the Commissioners of their functions, and report to the Parliament on any matter connected with the performance of the functions of the IPSC or the Commissioners.

14. The term Privileges Committee would be defined to mean the committee of a House of the Parliament responsible for inquiring into matters of privilege.

15. This item would insert these definitions into the PWSS Act from the day after the Bill receives the Royal Assent. Further amendments to the definitions in section 5, which would be made by items in Schedule 1, Part 2 (discussed at items 19 to 24), would commence on a single day to be fixed by Proclamation.

Item 3 – After Part 6

16. Item 3 would provide for a new 'Part 6A – Parliamentary Joint Committee on Parliamentary Standards' to be inserted into the PWSS Act after Part 6.

17. New Part 6A would provide for the PJCPS. The Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (the Set the Standard Report) recommended the establishment of a 'Joint Standing Committee on Parliamentary Standards' (recommendation 21) to 'oversee standards and accountability' including developing draft Behaviour Codes.

Part 6A—Parliamentary Joint Committee on Parliamentary Standards

Section 59A – Simplified outline of this Part

18. New section 59A would provide a simplified outline of new Part 6A of the Bill to assist the reader. The outline notes that Part 6A would provide for the PJCPS with functions which include:

a.

considering proposed recommendations for the appointment of Commissioners,

b.

reviewing the operation and effectiveness of each Behaviour Code,

c.

monitoring and reviewing the performance by the Commissioners of their functions, and

d.

reporting to both Houses of the Parliament on any matter connected with the performance of the functions of the IPSC or the Commissioners.

Section 59B – Parliamentary Joint Committee on Parliamentary Standards

19. New section 59B would provide for the establishment of the PJCPS.

20. New subsection 59B(1) would provide for the establishment of the PJCPS as soon as practicable after the commencement of the first session of each Parliament. The PJCPS would be a joint Committee, appointed according to the practice of the Parliament.

21. New subsection 59B(2) would provide that the PJCPS would consist of 12 members, comprised of six members from each House of the Parliament. All members would need to be members of the Privileges Committee of the relevant House to be eligible to be appointed.

22. New subsection 59B(3) would require that the six members appointed by each House of the Parliament must consist of three members of the Government, two members of the Opposition, and one member of the Parliament who is a member of neither the Government nor the Opposition.

23. This is broadly consistent with the Set the Standard Report, which envisaged the parliamentary oversight committee for the IPSC would have 'members from all parties and representation from independents'.

Section 59C – Chair of the Parliamentary Joint Committee

24. New section 59C would provide for there to be a Chair of the PJCPS.

25. New subsection 59C(1) would require that there be a Chair of the PJCPS, and that the Chair be a member of the Government elected by the members of the PJCPS from time to time. This is consistent with arrangements for other legislated joint committees, such as the Parliamentary Joint Committee on Intelligence and Security and the Parliamentary Joint Committee on the National Anti-Corruption Commission (PJC-NACC).

26. New subsection 59C(2) would provide that the Chair of the PJCPS holds office during the pleasure of the PJCPS.

27. New subsection 59C(3) would provide that a person holding office as the Chair of the PJCPS would cease to hold that office if they ceased to be a member of the PJCPS or if they resigned as Chair.

28. New subsection 59C(4) would provide that the Chair may resign the office of Chair by giving a signed notice of resignation to a meeting of the PJCPS.

29. New subsection 59C(5) would provide that at meetings of the PJCPS at which the Chair is present, the Chair would have a deliberative vote (which means that, like other members of the PJCPS, the Chair would be entitled to vote on matters under consideration by the PJCPS), and would have a casting vote if votes were equal. If the Chair was absent and a casting vote was needed, the vote could be delayed until the Chair returned.

30. The Chair's casting vote would not act to limit the Committee from working on a consensus basis or towards a majority position, but will provide a means of resolution in circumstances when the Committee is divided on a course of action. This will enable effective decision-making by the PJCPS, and is consistent with the approach taken to the chair of the PJC-NACC.

Section 59CA – Deputy Chair of the Parliamentary Joint Committee

31. New subsection 59CA(1) would provide that there must be a Deputy Chair of the PJCPS who must be a member of the Opposition.

32. New subsection 59CA(2) would provide that the Deputy Chair holds office during the pleasure of the PJCPS.

33. New subsection 59CA(3) would provide that a person holding office as the Deputy Chair of the PJCPS would cease to hold that office if they ceased to be a member of the PJCPS or if they resigned as Deputy Chair.

34. New subsection 59CA(4) would provide that the Deputy Chair may resign the office of Deputy Chair by giving a signed notice of resignation to a meeting of the PJCPS.

35. This section would supplement the requirement in new subsection 59C(1) that the Chair of the PJCPS must be a member of the Government.

Section 59D – Eligibility for appointment as a Parliamentary Joint Committee member

36. New section 59D would provide that a member of the Parliament would not be eligible for appointment as a member of the PJCPS if the member is:

a.

a Minister,

b.

the President of the Senate,

c.

the Speaker of the House of Representatives,

d.

the Deputy-President and Chair of Committees of the Senate, or

e.

the Deputy Speaker of the House of Representatives.

37. Consistent with parliamentary practice, Ministers would be precluded from membership of the PJCPS because their presence could give rise to questions of conflict of interest or bias where the PJCPS may be inquiring into matters for which those Ministers may be collectively or individually responsible.

38. As the Bill would give Presiding Officers, and in some instances Deputy Presiding Officers, particular roles in relation to the IPSC, the President of the Senate and Speaker of the House, along with their Deputies, are also not eligible for appointment to the PJCPS to avoid conflicts of interest.

Section 59E – Terms of office of Parliamentary Joint Committee members

39. New section 59E would provide for the terms of office of members of the PJCPS.

40. New subsection 59E(1) would provide that a member of the PJCPS would hold office during the pleasure of the House of Parliament by which the member was appointed.

41. New subsection 59E(2) would provide that a person would cease to hold office as a member of the PJCPS if:

a.

the House of Representatives expires by the passing of time or is dissolved, in which case the Parliamentary Joint Committee would be dissolved,

b.

the person becomes the holder of an office specified in new section 59D (that is, if they become a Minister, a Presiding Officer, or a Deputy Presiding Officer),

c.

the person ceases to be a member of the House of Parliament by which they were appointed, or

ca.

the person ceases to be a member of the Privileges Committee of the House of the Parliament by which the person was appointed, or

d.

the person resigns their office as a member of the PJCPS as provided in new subsection 59E(3).

42. New subsection 59E(3) would provide that a member of the PJCPS could resign from the PJCPS by giving a written resignation to the Presiding Officer of the House of Parliament that appointed the member to the PJCPS. This reflects that appointments to the PJCPS are made by the Houses of the Parliament.

43. New subsection 59E(4) would provide that a House of the Parliament would be able to appoint a member of its Privileges Committee to fill a vacancy among the members of the PJCPS appointed by that House.

Section 59F – Powers and proceedings of the Parliamentary Joint Committee

44. New section 59F would provide that all matters relating to the powers and proceedings of the PJCPS are to be determined by resolution of both Houses of the Parliament. This is consistent with arrangements for the PJC-NACC.

Section 59G – Functions of the Parliamentary Joint Committee

45. New section 59G would provide for the functions of the PJCPS.

46. New subsection 59G(1) would provide that the PJCPS has functions to:

a.

consider proposed recommendations for the appointment of Commissioners in accordance with new section 59H,

b.

review each Behaviour Code in accordance with new section 59J,

c.

monitor and review the performance by the Commissioners of their functions,

d.

report to both Houses of the Parliament, with such comments as it thinks fit, on any matter connected with the performance of the functions of the IPSC or the Commissioners that the PJCPS considers should be directed to the attention of the Parliament,

e.

examine and report to the Parliament on any matter relating to the IPSC appearing in, or arising out of, a report prepared under subsection 22(2), as amended by this Bill,

f.

inquire into any question in connection with the PJCPS's functions that is referred to it by either House of the Parliament, and to report to that House on that question,

g.

other functions as are conferred on the PJCPS by resolution of both Houses of the Parliament.

47. Similar functions are conferred on the Parliamentary Joint Committee on Law Enforcement and the PJC-NACC.

48. New subsection 59G(2) would provide that new subsection 59G(1) does not authorise the PJCPS to:

a.

direct the activities of the IPSC, a Commissioner or a panel of Commissioners,

b.

investigate a conduct issue,

c.

reconsider a decision made for a conduct issue,

d.

review an investigation into a conduct issue that has not been completed, or

e.

give or seek advice or information about, or in relation to, a particular person or conduct issue.

49. This is intended to prevent the PJCPS from interfering with, or reopening operational decisions made, or activities undertaken by the IPSC and its Commissioners in the course of its investigations and inquiries, and to protect the confidentiality of information provided to or held by the IPSC. This is important to preserve the independence of the IPSC.

50. These proposed limitations are consistent with the Set the Standard Report which considered the parliamentary oversight committee for the IPSC 'would have no role in individual complaint-handling and response'.

51. They are also consistent with those that apply to the Parliamentary Joint Committee on Intelligence and Security, the Parliamentary Joint Committee on Law Enforcement, and the PJC-NACC.

Section 59H – Parliamentary Joint Committee must approve or reject recommendation for appointment

52. New section 59H would require the PJCPS to approve or reject recommendations for the appointment of Commissioners referred to it by the Minister. This proposed role would be consistent with that of the PJC-NACC in respect of National Anti-Corruption Commission (NACC) office-holder appointments.

53. New subsection 59H(1) would provide that the PJCPS must approve or reject a proposed recommendation from the Minister for the appointment of a Commissioner. Section 6A of the PWSS Act defines the term 'the Minister' in a provision of the PWSS Act at a particular time to mean the Special Minister of State, if there is a Minister identified by that title at that time, or otherwise the Minister, or any of the Ministers, administering the provision at that time.

54. The PJCPS's decision whether to approve or reject a proposed recommendation for an appointment would need to be made by a majority of PJCPS members. If votes were equal, the Chair would have a casting vote.

55. The proposed role of the PJCPS in approving or rejecting proposed recommendations for appointments would support the appointment of Commissioners who have the endorsement and confidence of the Parliament. This is consistent with the intention of a proposal in the Set the Standard Report that Commissioners be appointed 'on the recommendation' of the oversight committee for the IPSC.

56. New subsection 59H(2) would provide that if the Minister referred a proposed recommendation for an appointment of a Commissioner to the PJCPS, the PJCPS would be required to approve or reject the recommendation:

a.

14 calendar days after the referral of the appointment, or

b.

if, within the first 14 calendar days after the referral, the PJCPS notifies the Minister that it requires additional time to consider the referral—44 calendar days after the referral.

57. New subsection 59H(3) would provide that as soon as practicable after making a decision to approve or reject a proposed recommendation for the appointment of a Commissioner, the PJCPS would be required to give notice in writing to the Minister and report the decision to both Houses of the Parliament.

58. New subsection 59H(4) would provide that the PJCPS would be taken to have approved a proposed recommendation for an appointment of a Commissioner if it did not give notice of its decision on the recommendation within the required timeframe (being 14 calendar days, or 44 calendar days, as outlined above).

59. Together, new subsections 59H(2), (3) and (4) are intended to ensure that the PJCPS has sufficient time to consider proposed appointments, while also ensuring PJCPS consideration of proposed appointments, or failure to consider proposed appointments, does not unreasonably delay appointment processes, which could affect the IPSC's operations.

Section 59J – Review of Behaviour Codes

60. New section 59J would provide for reviews of the Behaviour Codes by the PJCPS.

61. New subsection 59J(1) would provide for the PJCPS to undertake regular and ad hoc reviews of the Behaviour Codes, as defined at new subsection 24AC(1). This function would implement in part recommendation 10 of the report of the Joint Select Committee on Parliamentary Standards (JSCPS), which recommended that an appropriate entity and framework conduct a review of the Behaviour Codes, amongst other things, with an initial review one to two years after the IPSC is established and with subsequent reviews once every new Parliament.

62. New paragraph 59J(1)(a) would require the PJCPS to commence a review of the Behaviour Codes under this section within one year after the commencement of the first session of each Parliament that commences after the commencement of this section. This would ensure the Behaviour Codes are subject to regular review, at the same regularity as reviews of the PWSS Act under section 68 of that Act.

63. In addition new paragraph 59J(1)(b) would provide that the PJCPS may, if it resolves to do so, commence a review under this section at any other time. This would provide flexibility for the PJCPS to review the Behaviour Codes on an ad hoc basis as required.

64. New subsection 59J(2) would require that any review undertaken by the PJCPS in accordance with this section must consider the operation and effectiveness of each Behaviour Code. This is intended to promote regular review of whether the Behaviour Codes are operating effectively and meeting their purpose of supporting safer and more respectful Commonwealth parliamentary workplaces. This subsection would not limit the factors the PJCPS could take into consideration when undertaking a review of the Behaviour Codes in accordance with this section.

65. New subsection 59J(3) would require the PJCPS to report its findings of a review under this section to both Houses of the Parliament as soon as practicable after completing the review. This would ensure that the Houses of Parliament are notified of the findings of the PJCPS and are able to consider any necessary amendments to the Behaviour Codes.

Part 2—Amendments commencing on Proclamation

Archives Act 1983

Item 4 – Subsection 3(1) (subparagraph (a)(iii) of the definition of PWSS document )

66. Item 4 would amend subparagraph (a)(iii) of the definition of PWSS document in subsection 3(1) of the Archives Act 1983 (Archives Act) to omit the word 'or' at the end of the subparagraph. This item is consequential to item 5 which would insert a new subparagraph within paragraph (a) of the definition of a PWSS document to include documents given to, received by, or brought into existence by the IPSC.

Item 5 – Subsection 3(1) (at the end of paragraph (a) of the definition of PWSS document )

67. Item 5 would insert a new subparagraph into the definition of PWSS document in subsection 3(1) of the Archives Act. New subparagraph (a)(iv) would have the effect that documents given to, received by or created by the IPSC are PWSS documents for the purposes of the Archives Act.

68. The Archives Act governs access to Commonwealth archival records. Under that Act, a person may access most Commonwealth records in the 'open access period'. The majority of archival records enter the open access period 21 years after the year in which they were created. However, section 22C of that Act provides that PWSS documents and Independent Review documents (being records of the Independent Review that led to the Set the Standard Report) do not enter the open access period until 99 years after the year in which they were created (the 99 year rule).

69. A PWSS document is currently defined as:

a.

a document given to or received by, the PWSS, the PWSS Advisory Board, or the PWSS Consultative Committee in connection with the performance of their functions,

b.

a document brought into existence by the PWSS, the PWSS Advisory Board, or the PWSS Consultative Committee, or

c.

a document transferred to the PWSS under the Parliamentary Workplace Support Service (Consequential Amendments and Transitional Provisions) Act 2023 (PWSS (C&T) Act)

other than a document relating to the administration of the PWSS, the PWSS Advisory Board or the PWSS Consultative Committee.

70. The effect of this item would be that documents given to, received by, or brought into existence by the IPSC would, other than a document relating to the administration of the IPSC, be subject to the 99 year rule. This would ensure records of the IPSC are treated in the same manner as records of the PWSS, the PWSS Advisory Board, and the PWSS Consultative Committee and records of the Independent Review.

71. These amendments to the Archives Act would complement the amendments to the Freedom of Information Act 1982 (FOI Act) in item 6 of this Schedule. Much of the information the IPSC would hold will be personal information, including sensitive information relating to conflicts or disputes involving people who work in Commonwealth parliamentary workplaces and personal information relating to a person's employment.

72. For the IPSC to achieve its object of promoting and enforcing compliance by Commonwealth parliamentary workplace participants with the Behaviour Codes, it will be important that Commonwealth parliamentary workplace participants are not discouraged from making complaints to the IPSC, or from providing full and frank information to the IPSC, because they are concerned that such information could be released under the Archives Act during their lifetime.

Freedom of Information Act 1982

Item 6 – At the end of subsection 7(2AAA)

73. Item 6 would insert new paragraph 7(2AAA)(d) into the FOI Act, which would provide that the IPSC is taken not to be a prescribed authority for the purposes of that Act. This would replicate the approach taken to the PWSS, the PWSS Advisory Board, and the PWSS Consultative Committee, which are currently prescribed at subsection 7(2AAA).

74. This item would have the effect of excluding the IPSC from the definition of an agency in section 4 of the FOI Act which, in turn, would mean that there would not be a legally enforceable right to obtain access to documents of the IPSC under paragraph 11(1)(a) of the FOI Act. In summary, the effect of this item would be that the IPSC would be excluded from the operation of the FOI Act.

75. This amendment complements the amendments to the Archives Act in items 4 and 5 of this Schedule. Much of the information the IPSC would hold will be personal information, including sensitive information relating to conflicts or disputes involving people who work in Commonwealth parliamentary workplaces and personal information relating to a person's employment.

76. For the IPSC to achieve its object of promoting and enforcing compliance by Commonwealth parliamentary workplace participants with the Behaviour Codes, it will be important that Commonwealth parliamentary workplace participants are not discouraged from making complaints to the IPSC, or from providing full and frank information to the IPSC, because they are concerned that such information could be released under the FOI Act.

77. While the FOI Act contains a range of exemptions which may be applied to documents and parts thereof, the conditional nature of such exemptions likely to be able to be relied upon by the IPSC and those who hold its documents would not provide the necessary level of reassurance that information provided to the IPSC would not be released under the FOI Act in any circumstances.

78. Despite the amendments in this item, a person would be able to seek access under the Privacy Act 1988 (Privacy Act) to personal information about them that is held by the IPSC. This is because the IPSC would be an Australian Privacy Principle (APP) entity for the purposes of the Privacy Act. Accordingly, an individual would be able to seek access under APP 12 (set out in Schedule 1 to the Privacy Act) to personal information about themselves held by the IPSC. If the IPSC refused to give access for a legitimate reason, they would be required under APP 12.5 to take such steps as are reasonable in the circumstances to give the individual access in a way that meets the needs of the body and the person. The process for an individual to seek access to their personal information from the IPSC would be outlined in the IPSC's privacy policy published under APP 1 of the Privacy Act.

79. As the IPSC would be a body prescribed under subsection 7(2AAA), this would also have the effect that under subsection 7(2DC) of the FOI Act, a Minister and an agency would be exempted from the operation of the FOI Act in relation to documents given to, received by, or brought into existence by the IPSC in connection with the performance of its functions (regardless of when the documents were brought into existence). However, consistent with subsection 7(2DD) of the FOI Act, Ministers and agencies would not be exempt from the operation of the FOI Act in relation to a document given to or received by the IPSC if:

a.

the document was created other than in connection with the performance of the functions of the IPSC, and

b.

a right of access otherwise exists, or has otherwise existed, to that document under the FOI Act.

80. This would ensure, consistent with the approach taken to other PWSS documents, that the exemption provided by subsection 7(2DC) does not have the unintended effect of curtailing access under the FOI Act to documents created for the purposes of agencies other than the IPSC.

Members of Parliament (Staff) Act 1984

Item 7 – Section 3

81. Item 7 would insert a new definition of IPSC in section 3 of the Members of Parliament (Staff) Act 1984 (MOPS Act). The term IPSC would be defined to mean the Independent Parliamentary Standards Commission. This would refer to the IPSC as established by new section 24B of the PWSS Act, as inserted by this Bill.

82. This amendment is consequential to items 8 to 13, which would require parliamentarians and office-holders to take certain employment actions in relation to their employees on the recommendation of a Commissioner of the IPSC.

Item 8 – Paragraph 7(3)(b)

83. Item 8 would repeal paragraph 7(3)(b) of the MOPS Act and substitute a new paragraph to reflect the powers of parliamentarians and office-holders to take certain employment actions.

84. Subsection 7(3) of the MOPS Act provides that parliamentarians and office-holders are responsible for the day-to-day management of their employees. Existing paragraph 7(3)(b) sets out that these responsibilities include, among other things, having powers to terminate or suspend employment.

85. New paragraph 7(3)(b) would set out that these responsibilities also include powers to take other employment actions, under new section 20, in addition to powers to terminate or suspend employment, under existing sections 16 and 18 respectively.

86. This amendment is consequential to item 13, which would provide powers for parliamentarians, office-holders and the Chief Executive Officer of the Parliamentary Workplace Support Service (PWSS CEO or CEO) (if exercising the powers of an employer under subsection 15(5)) to take certain prescribed employment actions, following a recommendation by a Commissioner of the IPSC. This would include powers to require a person employed under the MOPS Act (MOPS employee) to undertake training or professional development or to enter into a training agreement with the employing individual about the person's future behaviour.

Item 9 – Subsection 7(4) (note)

87. Item 9 would repeal the note at the end of subsection 7(4) of the MOPS Act and substitute a new note to outline the role of IPSC Commissioners in the MOPS Act employment framework.

88. Section 7 of the MOPS Act sets out the roles of parliamentarians, office-holders and the Prime Minister in the MOPS Act employment framework. The existing note under subsection 7(4) sets out that the PWSS Act establishes the PWSS, which also has functions in relation to employment under the MOPS Act, and notes specific relevant functions.

89. The new note to be inserted by this item would also reflect the establishment of the IPSC by the PWSS Act, and the role of IPSC Commissioners in relation to the MOPS Act employment framework.

90. The new note would provide that the PWSS Act establishes the PWSS and the IPSC, which both have functions in relation to employment under the MOPS Act. In relation to the IPSC, the new note would set out that the Commissioners of the IPSC can, in certain circumstances, recommend that a parliamentarian or office-holder:

a.

terminate or suspend employees, and

b.

take other employment actions in relation to employees.

91. This would reflect that under new section 24CQ of the PWSS Act, as inserted by this Bill, an investigating Commissioner may recommend an employing individual suspend a MOPS employee under section 18 of the MOPS Act. In addition, under new section 24CY a Commissioner of the IPSC may recommend that an employing individual take certain action against a MOPS employee, such as terminating the employee under section 16 of the MOPS Act.

Item 10 – Section 10 (after the paragraph beginning "Parliamentarians and office-holders can suspend")

92. Item 10 would amend the simplified outline of Part III in existing section 10 of the MOPS Act to reflect that Part III, as amended, would require parliamentarians and officeholders to take certain employment actions on the recommendation of a Commissioner of the IPSC.

93. This item would insert a new paragraph in the simplified outline setting out that parliamentarians and office-holders are required to take certain employment actions in relation to their employees, including termination of appointment, on the recommendation of a Commissioner of the IPSC.

94. This amendment is consequential to item 13 which would insert new section 20 of the MOPS Act, which would require the employing individual to take an employment action as recommended by a Commissioner of the IPSC.

Item 11 – Subsection 13(4)

95. Item 11 would amend subsection 13(4) of the MOPS Act to provide that a variation of terms and conditions could not override the requirement for an employing individual to take certain employment actions on recommendation of a Commissioner of the IPSC.

96. Subsection 13(4) provides that the Prime Minister is not authorised to make a determination that varies the terms and conditions of employment for all MOPS employees, a class of MOPS employees or individual MOPS employees, under subsections 13(2) or 13(3), expressly provided for by specified provisions in that Act. Subsection 13(4) currently specifies sections 14 (automatic termination of employment), 16 (termination of employment), 17 (resignation), 18 (suspension from duties) and 19 (suspension from duties by CEO).

97. This item would amend subsection 13(4) to specify an additional provision, being new section 20 of the MOPS Act (employment actions following IPSC recommendation).

98. The effect of this amendment would be that the Prime Minister could not make a determination under subsection 13(2) or 13(3) of the MOPS Act that varied a matter expressly provided for under section 20 of that Act. For example, a determination made by the Prime Minister could not restrict an employing individual from taking certain employment action in relation to a MOPS employee that a Commissioner of the IPSC has recommended they take.

Item 12 – Subsection 15(6)

99. Item 12 would amend subsection 15(6) of the MOPS Act to authorise the CEO to terminate a MOPS employee if a Commissioner of the IPSC recommended such action be taken under new section 24CY.

100. Subsection 15(6) provides that the CEO's employer powers during a MOPS employee's deferral period, as provided for under subsection 15(5), do not include the power to terminate the MOPS employee's employment. This item would amend subsection 15(6) to clarify that this exclusion is subject to new subsection 20(3) about employment actions following an IPSC recommendation.

101. This amendment is consequential to new section 20 of the MOPS Act, as inserted by item 13, which would require the CEO, in certain circumstances, to take an employment action, which may include termination, in relation to a MOPS employee on the recommendation of a Commissioner of the IPSC.

Item 13 – At the end of Part III

102. Item 13 would insert new section 20 into the MOPS Act to provide that an employing individual for a person employed under the MOPS Act must take certain employment actions in relation to the person on the recommendation of a Commissioner of the IPSC.

103. New subsection 20(1) outlines that the section applies if, under the PWSS Act (as amended by this Bill), a Commissioner of the IPSC decides to recommend that the employing individual for a person employed under the MOPS Act take any of the prescribed actions in relation to the person, and the decision is in operation.

104. This would reflect that under new section 24CY of the PWSS Act, Commissioners of the IPSC may recommend that an employing individual take certain action against a MOPS employee, following a finding by the IPSC that the employee has engaged in relevant conduct as defined in section 5 of the PWSS Act. A decision to recommend an employing individual take an action would include a review decision to recommend certain action be taken that varied, or set aside and made a decision in substitution for, the original decision of a Commissioner. Such a review decision is taken to be a decision of the Commissioner that made the original decision under new subsection 24DD(6) of the PWSS Act.

105. New paragraph 20(1)(a) lists the actions available to a Commissioner of the IPSC to recommend in relation to the person under new section 24CY of the PWSS Act, being to:

a.

give the person a written reprimand,

b.

require the person to undertake training or professional development,

c.

require the person to enter into an agreement with the employing individual about the person's future behaviour,

d.

re-assign the persons duties,

e.

deduct from the person's annual salary, by way of fine, an amount not exceeding 2 per cent of that salary, or

f.

terminate the person's employment.

106. New paragraph 20(1)(b) would require a decision to be in operation. New subsection 24CY(3) of the PWSS Act would provide that a decision is in operation after the final determination of an application for internal review, or, if no review had been sought, the end of the period for seeking internal review. Accordingly, this paragraph would have the effect that the requirement to take an employment action would only be enlivened once any internal review process under new Division 4 of Part 2A of the PWSS Act has concluded, or the timeframe for seeking such a review has expired. This would ensure that sanctions are not imposed upon a MOPS employee until the matter had been finally determined and internal review options had been exhausted, ensuring that sanctions are not prematurely applied in a manner which may disadvantage a MOPS employee while a review is being, or could still be, sought.

107. New subsection 20(2) would provide that certain individuals must take an action in relation to the MOPS employee following a recommendation by a Commissioner of the IPSC to do so under this section.

108. New paragraph 20(a) specifies that the individual who must take the action is the employing individual for the MOPS employee, provided that paragraph 20(b) does not apply. This would reflect that under the Behaviour Codes (as defined at new section 24AC of the PWSS Act), an employing individual would have an obligation to implement recommendations made by the IPSC in relation to their staff. Accordingly, a failure to implement a recommendation may constitute relevant conduct under the PWSS Act, as amended by this Bill, and the IPSC may therefore investigate the conduct issue and potentially impose a sanction against the employing individual.

109. New paragraph 20(2)(b) provides that, in circumstances where the CEO is exercising the powers of an employer under subsection 15(5) in relation to the MOPS employee, the CEO must take the action recommended under this section. Under that subsection, the CEO may exercise the powers of an employer in relation to a MOPS employee in circumstances where an employing individual has died or ceased to be a parliamentarian, and a deferral period has been directed by the Prime Minister under subsections 15(1) or (2). This recognises that, in some circumstances, the CEO will assume responsibility for exercising the powers of an employer, which includes obligations to implement recommendations made by the IPSC in relation to staff. This paragraph would ensure that recommendations made by a Commissioner of the IPSC must still be implemented in relation to a MOPS employee during a deferral period, even where there is no employing individual and the CEO is exercising employer powers in their place.

110. There are two notes following new subsection 20(2). The first highlights the definition of an employing individual included in section 3 of the MOPS Act, being the parliamentarian or office-holder who employed the person. The second note outlines that additional rules or procedures may apply to the taking of an action recommended under this section, being:

a.

the agreement for the employment of the person; or

b.

fair work instruments (within the meaning of the Fair Work Act 2009 (Fair Work Act)); or

c.

arrangements approved or determinations made under section 12 or subsection 13(2) or (3) of this Act.

111. New subsection 20(3) clarifies that subsection 15(6) does not apply if the recommended action is to terminate the person's employment, and the action must be taken by the CEO because of new paragraph 20(2)(b). Existing subsection 15(6) provides that the powers referred to in subsection 15(5), being powers of an employer exercisable by the CEO in relation to a MOPS employee, do not include powers to terminate the person's employment. Accordingly, this subsection would authorise the CEO to terminate a MOPS employee's employment only where such action has been recommended by an IPSC Commissioner under new section 24CY. For example, if the Commissioner recommended that a MOPS employee's employment be terminated, the CEO may terminate their employment during the deferral period.

112. New subsection 20(4) provides, for the avoidance of doubt that if the action recommended by the Commissioner is to terminate the person's employment, section 16 of this Act does not apply in relation to the termination. Accordingly, the requirement to consult with the PWSS under section 16 of the Act would not apply to a termination taken in accordance with this section. This consultation requirement was inserted to ensure that human resources expertise informed significant decisions about a person's employment. As any termination under this section would be in accordance with an IPSC Commissioner's recommendation, following an independent investigation, such consultation is not required. This would not preclude an employing individual consulting with the PWSS for the purpose of seeking support or advice regarding the appropriate process for termination.

113. New subsection 20(5) would require the employing individual or the CEO to inform the IPSC as soon as practicable after taking an action under subsection 20(2). This requirement would enable the IPSC to determine if an employing individual has complied with a recommendation of the IPSC relating to their employee, and whether to commence an investigation into the employing individual's non-compliance under the PWSS Act. Similarly, it would ensure that the IPSC is informed when the CEO, exercising the powers of an employer over a MOPS employee, has complied with a recommendation of the IPSC relating to that employee. While the CEO would be the accountable authority for the listed entity comprising the PWSS and the IPSC, which will be known as the Parliamentary Workplace Support Service (discussed below in relation to new section 24K), in practice it is anticipated that the CEO would notify the Chair Commissioner after taking an action under subsection 20(2).

114. New subsection 20(6) would clarify that this section would not limit the actions an employing individual for a person employed under the Act or the CEO may take in relation to the person's employment. This would include the powers of the CEO or the employing individual or the CEO under the MOPS Act, the Fair Work system, the relevant enterprise agreement or under the common law. For example, this section would not limit the ability of an employing individual to take reasonable management action, or other action, in relation to their employee in the absence of a recommendation by the IPSC, or an IPSC investigation itself, if such action was otherwise available to them.

National Anti-Corruption Commission Act 2022

Item 14 – After paragraph 15(pa)

115. Item 14 would insert new paragraph 15(pb) into the National Anti-Corruption Commission Act 2022 (NACC Act) to prescribe a Commissioner of the IPSC as a 'Commonwealth integrity agency' for the purpose of that Act.

116. Section 45 of the NACC Act provides for an additional threshold to the commencement of a corruption investigation where the Commissioner of the NACC is aware that a Commonwealth integrity agency, as defined in section 15 of that Act, has previously concluded an investigation into a matter regarding the conduct of a public official. Prescribing a Commissioner of the IPSC as a Commonwealth integrity agency would mean that an additional threshold would apply to investigations that the NACC Commissioner is aware were previously conducted by the IPSC. In such circumstances, the NACC Commissioner would be required to meet an additional public interest test under section 45 of the NACC Act before they could commence a corruption investigation.

117. Prescribing Commissioners of the IPSC as a Commonwealth integrity agency reflects that the IPSC would fit within the existing Commonwealth integrity architecture, with specialised agencies performing complementary functions. This amendment recognises that there is a clear public interest in the effective investigation of allegations of serious or systemic corrupt conduct, whilst also acknowledging that investigations relating to the same or substantially similar matter may, in some circumstances, be a disproportionate response.

Parliamentary Workplace Support Service Act 2023

Item 15 – At the end of section 3

118. Item 15 would amend the objects clause of the PWSS Act to insert new paragraph (d) to provide that it is an additional object of that Act to promote and enforce compliance by Commonwealth parliamentary workplace participants with the Behaviour Codes.

119. This new object is intended to reflect that it would be a purpose of the IPSC, which would be established by the Bill, to investigate allegations of non-compliance with the Behaviour Code for Australian Parliamentarians, Behaviour Standards for Commonwealth Parliamentary Workplaces, and Behaviour Code for Parliamentarians' Staff (the Behaviour Codes), and to recommend or impose appropriate sanctions, or make referrals, for non-compliance.

120. New paragraph (d) would reflect that the Bill would amend the PWSS Act to give effect to recommendation 22 of the Set the Standard Report, by establishing the IPSC as a fair and independent workplace investigation framework. Commencement of the IPSC would enable the Behaviour Codes to be finally adopted.

Item 16 – Section 4 (paragraph (f) of the paragraph beginning "The functions of the PWSS")

121. Item 16 would repeal paragraph (f) of section 4 of the PWSS Act.

122. Section 4 of the PWSS Act provides a simplified outline of the PWSS Act, including a list of the functions of the PWSS. Paragraph 4(f) provides that the functions of the PWSS include 'its review function'. That function is currently set out in section 19 of the PWSS Act, and enables the PWSS to review complaints about 'alleged relevant conduct'.

123. The repeal of the reference to the review function from the simplified outline in section 4 is consequential to item 35, which would repeal the review function itself. This is because the review function was established as an interim function of the PWSS, pending establishment of the IPSC, and would be incorporated into the functions of the IPSC.

Item 17 – Section 4 (after the paragraph beginning "The functions of the PWSS")

124. Item 17 would amend the simplified outline in section 4 of the PWSS Act by inserting an outline of the functions of the IPSC and of the Commissioners.

125. The amendments to the simplified outline would note that the IPSC is also established by the PWSS Act, and that the functions of the IPSC would include assisting the Commissioners in the performance of their functions, and publishing guidance about its functions and the functions of the Commissioners.

126. The amendments would also note that the functions of the Commissioners would include dealing with conduct issues in accordance with Divisions 3 to 6 of Part 2A, and preparing and publishing IPSC public statements in accordance with Division 7 of Part 2A.

127. These amendments to the simplified outline are intended to assist readers to understand the substantive provisions of this Bill. They are not intended to be comprehensive and it is intended that readers should rely on the substantive provisions of the Bill.

Item 18 – Section 4 (paragraph beginning "The PWSS has")

128. Item 18 would repeal a paragraph in the simplified outline in section 4 of the PWSS Act, and substitute a new paragraph.

129. The paragraph to be repealed provides that '[t]he PWSS has a Chief Executive Officer who is responsible for its management and for ensuring it performs its functions'.

130. The new paragraph to be inserted in its place would provide '[t]here is to be a Chief Executive Officer of the PWSS. The CEO is responsible for the management of the PWSS and the IPSC, and for ensuring the PWSS performs its functions and for assisting the IPSC and Commissioners to perform their functions and exercise their powers'.

131. This new paragraph reflects that the Bill would amend the PWSS Act such that the PWSS CEO would have management responsibilities in relation to the IPSC, as well as the PWSS, under the PWSS Act. This item is consequential to items 43 and 44, which would amend existing section 27 of the PWSS to provide that the PWSS CEO is responsible for managing the affairs of the IPSC and assisting the IPSC and Commissioners to perform their functions and exercise their powers.

Item 19 – Section 5

132. Item 19 would amend the definitions section of the PWSS Act to insert a number of new definitions or insert a sign post to a new section which contains a definition into the PWSS Act.

133. Definitions in this item that are relevant to the application of the PWSS Act as a whole are discussed below, for example the definitions of Commissioner and complainant. Otherwise, the definitions in this item are explained in the context of the section to which they are relevant. For example, the meaning of before the IPSC is discussed at new section 24AD, and the meaning of conduct complaint is discussed at new subsection 24C(3).

134. This item would insert a new definition of AFP appointee into the PWSS Act. Australian Federal Police (AFP) appointee would be defined to have the same meaning as in the Australian Federal Police Act 1979 (Australian Federal Police Act). Under section 4 of that Act, AFP appointee is defined to mean a Deputy Commissioner, AFP employee, a special member or special protective service officer, as well as persons engaged overseas, as a consultant or as an independent contractor to perform duties or services for the AFP, or persons assisting the AFP in the performance of its functions.

135. This item would insert a new definition of Agency Head into the PWSS Act. Agency Head would be defined to have the same meaning as in the Public Service Act. Under section 7 of that Act, Agency Head is defined to mean the Secretary of a Department, the Head of an Executive Agency, or the Head of a Statutory Agency.

136. This item would insert a new definition of Chair Commissioner into the PWSS Act. Chair Commissioner would be defined to mean the Chair Commissioner appointed under new section 36E. This item would also insert a new definition of Commissioner into the Act. Commissioner would be defined to mean a Commissioner appointed under new section 36E, including the Chair Commissioner. Accordingly, the Chair Commissioner is a Commissioner of the IPSC and can perform any of the functions and exercise any of the functions of a Commissioner (such as being assigned as an investigating Commissioner or as part of a parliamentarian decision panel or review panel). Acting Commissioners appointed under new section 36F would also be taken to be Commissioners. This is because the rules applying to acting appointments as specified in sections 33A of the Acts Interpretation Act 1901 (Acts Interpretation Act) apply to acting appointments made under new section 36F. Therefore an acting Commissioner has and may exercise all the powers, functions and duties of a substantive Commissioner and this Act applies in relation to an acting Commissioner as if they were a substantive Commissioner.

137. This item would insert a new definition of complainant into the PWSS Act. In relation to a conduct complaint, the term complainant would be defined to mean the person who made the conduct complaint. The term conduct complaint would be separately defined in new subsection 24C(3) to effectively mean a complaint about alleged conduct made directly to the IPSC by a person who is or was affected the alleged conduct.

138. In relation to a conduct issue referral, where the referrer became aware of a conduct issue because of a complaint made to the referrer, the term complainant would be defined to mean the person who made the relevant complaint to whomever subsequently referred that complaint to the IPSC.

139. The term conduct issue referral would be defined to mean a referral of a conduct issue to the IPSC made under new section 24CA or 24CB.

140. New section 24CA would enable conduct issues to be referred to the IPSC by a parliamentarian concerning a complainant or a respondent who they employ or who otherwise works predominantly from their office, by a Presiding Officer concerning a respondent who is a member of the House over which they preside, and by the Leader of a Parliamentary Party concerning a respondent who is or was, at the time of the conduct concerned, a parliamentarian and a member of that party.

141. New section 24CB would provide for conduct issues to be referred to the IPSC by the CEO or a member of the staff of the PWSS to whom the CEO has delegated this referral power.

Item 20 – Section 5 (after paragraph (c) of the definition of core participant )

142. Item 20 would insert four new paragraphs into the definition of core participant in section 5 of the PWSS Act.

143. The paragraphs to be inserted would expand the definition of a core participant to include the Secretary of a Parliamentary Department, the Parliamentary Librarian, an Agency Head or an AFP appointee whose predominant place of work is a place covered by paragraph (a) or (b) of the definition of Commonwealth parliamentary workplace, being a place in the precincts, within the meaning of the Parliamentary Precincts Act 1988 (Parliamentary Precincts Act), or premises provided or paid for under the Parliamentary Business Resources Act 2017 (PBR Act).

144. The inclusion of these individuals as core participants would ensure they have access to the same level of PWSS services as other core participants, including Parliamentary Services employees, and Australian Public Service (APS) employees whose predominant place of work is a Commonwealth parliamentary workplace.

145. The terms AFP appointee and Agency Head are defined in section 5 of the PWSS Act, as amended by item 19. The reference in new paragraph 5(ca) to the Secretary of a Parliamentary Department would also be defined in section 5, as amended by item 24. The term Secretary, in relation to a Parliamentary Department, would capture the Clerk of the Senate, the Clerk of the House of Representatives, the Parliamentary Budget Officer, and the Secretary of the Department of Parliamentary Services, each of which is a Secretary as defined in the Parliamentary Service Act 1999 (Parliamentary Service Act).

Item 21 – Section 5 (paragraph (c) of the definition of designated worker )

146. Item 21 would repeal paragraph (c) of the definition of designated worker in section 5 of the PWSS Act and substitute a new paragraph. This item complements item 20, which would expand the categories of persons who are core participants.

147. Existing paragraph (c) provides that a person who is a parliamentarian, MOPS employee, Parliamentary Service employee, APS employee or person covered by paragraph (e) of the definition of core participant in section 5 (being a person employed by COMCAR) is not a designated worker.

148. New paragraph (c), as inserted by this item, would provide that persons covered by paragraphs (a) to (e) of the definition of core participant are not designated workers. This would expand the categories of person who are not designated workers to also include Secretaries of Parliamentary Departments, the Parliamentary Librarian, and Agency Heads and AFP appointees whose predominant place of work is a Commonwealth parliamentary workplace.

149. Parliamentarians, MOPS employees, Parliamentary Service employees, APS employees whose predominant place of work is a Commonwealth parliamentary workplace and COMCAR drivers would continue to not be designated workers.

Item 22 – Section 5

150. This item would amend the definitions section of the PWSS Act to insert a number of new definitions or insert a sign post to a new section which contains a definition into the PWSS Act.

151. Consistent with the approach taken in discussing item 19, definitions in this item that are relevant to the application of the PWSS Act as a whole are discussed below, for example the definition of employer and entrusted person. Otherwise, the definitions in this item are explained in the context of the section to which they are relevant. For example, the meaning of decision-maker is discussed at new subsection 24CT(2), and the meaning of original decision is discussed at new subsection 24DD(1).

152. The term court/tribunal order would be defined to have the same meaning as in the Privacy Act. Section 6 of that Act defines court/tribunal order to mean an order, direction or other instrument made by:

a.

a court,

b.

a tribunal,

c.

a judge (including a judge acting in a personal capacity) or a person acting as a judge,

d.

a magistrate (including a magistrate acting in a personal capacity) or a person acting as a magistrate, or

e.

a member or an officer of a tribunal,

and includes an order, direction or other instrument that is of an interim or interlocutory nature.

153. This item would insert a new definition of detriment into the PWSS Act. Detriment would be defined to include, without limitation, any of the following:

a.

dismissal of an employee,

b.

injury of an employee in their employment,

c.

alteration of an employee's position to their disadvantage,

d.

discrimination between an employee and other employees of the same employer,

e.

harassment or intimidation of a person,

f.

harm or injury to a person, including psychological harm,

g.

damage to a person's property,

h.

damage to a person's reputation,

i.

damage to a person's business or financial position,

j.

any other damage to a person.

154. The concept of detriment would be relevant to the new offences of causing or threatening to cause detriment in relation to protected disclosures (set out in new section 24HA), and to the circumstances in which a Commissioner may consider imposing conditions on the making of a record, or the disclosure, of information relating to an IPSC process or action in relation to a conduct issue that was or is before the IPSC (set out in new section 24FH).

155. Under this item, detriment would be defined inclusively, so that the Bill would provide protection against a broad range of behaviours that could damage a person.

156. This definition of detriment would be consistent with that in subsection 29(2) of the NACC Act, subsection 13(2) of the Public Interest Disclosure Act 2013 (PID Act), and in section 1317ADA of the Corporations Act 2001.

157. The meaning of the term employer, for a respondent, would depend on whether a person is a MOPS employee. The employer for a respondent who is a MOPS employee, would be the 'employing individual' (under the MOPS Act) for the respondent. The term employing individual is defined in subsection 3AA(1) of the MOPS Act to mean, for a MOPS employee, the parliamentarian or office-holder who, on behalf of the Commonwealth, employed the person under section 11 of the MOPS Act.

158. In relation to other respondents, employer, for a respondent, would be defined as the person who employs the respondent in their capacity as a Commonwealth parliamentary workplace participant.

159. The term engage in conduct would mean to do, or omit to perform, an act. This reflects that in some circumstances a person's alleged inaction may constitute relevant conduct that may be investigated by the IPSC. For example, if a parliamentarian failed to comply with mandatory training requirements (which it is anticipated would constitute a breach of the Behaviour Code for Australian Parliamentarians), an IPSC investigation could find that the parliamentarian had engaged in relevant conduct by failing to complete the mandatory training.

160. The term entrusted person would be defined to be the CEO, the Commissioners, persons made available by the CEO to assist the IPSC under new section 40A, and consultants engaged by a Commissioner, including the Chair Commissioner, under new section 40B. Entrusted persons would be subject to the confidentiality obligations set out in Subdivision C of Division 6 of Part 2A.

161. The term final report would be defined as a report prepared under new section 24CZ. A final report prepared under new section 24CZ would be a report on an IPSC investigation, setting out the decisions made by the decision-maker, any findings on the conduct issue, and a summary of the evidence and other material on which those decisions and findings are based.

162. The term identifying information would be defined to mean information that identifies, or is likely to enable the identification of, a person. This may include information such as an individual's name, or information which is likely to identify them. For example, stating a MOPS employee's position, such as a Chief of Staff, or working location, such as a small electorate office, alongside information identifying their employing parliamentarian may be identifying information. Where certain identifying information is proposed to be included in a referral to a Privileges Committee under Division 5 of Part 2A or in a public statement under Division 7 of Part 2A, the decision-maker, review panel or responsible Commissioner or Commissioners, as relevant, must give notice of and consult on that proposal.

163. The term IPSC would be defined to mean the Independent Parliamentary Standards Commission, which is to be established by new section 24B.

164. The term IPSC public statement would be defined to mean a public statement made under new Division 7 of Part 2A of this Bill. New Division 7 provides for public statements to be made by a responsible Commissioner or Commissioners in certain circumstances.

165. The term legal practitioner would be defined to mean a barrister, a solicitor, a barrister and solicitor, or a legal practitioner of the High Court of Australia (High Court) or of the Supreme Court of a State or Territory.

166. The term Parliamentary Department would be defined to mean any of: the Department of the Senate, the Department of the House of Representatives, the Department of Parliamentary Services, and the Parliamentary Budget Office.

167. The term parliamentary sanction, in relation to a member of a House of the Parliament, would be defined to mean:

a.

the suspension of the member for a period of no more than the maximum period for which a member of that House may be suspended under the standing orders of that House, or

b.

the discharge of the member from a committee of one or both Houses of the Parliament, or

c.

a deduction from the member's annual base salary (within the meaning of the PBR Act), by way of fine, of an amount that is more than 2 per cent, but less than 5 per cent, of that salary.

168. For the purposes of paragraph (a) of this definition, the maximum periods of suspension are currently up to 7 sitting days for the House of Representatives and up to 14 days sitting days for the Senate. Consistent with the current practice of the Houses, during a period of suspension, a parliamentarian may not enter the Chamber, or its gallery, from which they have been suspended, and may not participate in Chamber related activities. This means that a suspended member could not move motions or amendments, or vote in divisions.

169. Paragraph (b) of this definition would capture discharge of a member from a committee of the House of the Parliament of which they are a member (such as the House Standing Committee on Economics or the Senate Economics Legislation Committee, as relevant), or a joint committee of both Houses of the Parliament (such as the Parliamentary Joint Committee on Human Rights or the Parliamentary Joint Committee on Intelligence and Security).

170. The term Presiding Officer would be defined to mean the President of the Senate or the Speaker of the House of Representatives. This would also include a person covered by existing paragraphs 6(1)(d) or (e) of the PWSS Act. This would include a person who is taken to be the President of the Senate or the Speaker of the House of Representatives under the Parliamentary Presiding Officers Act 1965 (Parliamentary Presiding Officers Act) and who is not a senator or member of the House of Representatives. This reflects that the Parliamentary Presiding Officers Act deems that the President of the Senate or the Speaker of the House continues to hold that office until a new President or Speaker is chosen, including in circumstances where the President or Speaker no longer sits in the Parliament. For example, section 3 of that Act provides that if the President of the Senate or the Speaker of the House of Representatives resigns their office or their seat, they are deemed to continue to be the President or Speaker until a new President or Speaker is chosen by the relevant House of the Parliament.

171. The term referrer, for a conduct issue referral, would be defined to mean the person who makes the referral. This could be a parliamentarian (including a Presiding Officer or a Leader of a Parliamentary Party) for conduct issue referrals made under 24CA, or the PWSS CEO or their delegate for conduct issue referral made under 24CB.

Item 23 – Section 5 (definition of relevant conduct )

172. Item 23 would repeal the definition of relevant conduct in section 5 of the PWSS Act and substitute a new definition.

173. The paragraph to be repealed defines relevant conduct as conduct engaged in by a person that consists of any of sexual assault, assault, sexual harassment, harassment, another person being bullied at work (within the meaning of the Fair Work Act), unreasonable behaviour towards another person that creates a risk to work health or safety, or conduct that breaches a code of conduct, or a part of a code of conduct, that is prescribed by the PWSS rules.

174. The new paragraph to be inserted in its place would provide that relevant conduct means pre-Code conduct or post-Code conduct. Pre-Code conduct would be defined in new subsection 24AB(1) and would reflect the scope and application of the existing PWSS review function. Post-Code conduct would be defined in new subsection 24AB(2) and would cover conduct that breaches the Behaviour Codes.

175. The change to this definition is consequential to the scope of the IPSC, which would be empowered to investigate relevant conduct as covered by this new definition.

176. This definitional change would also have implications for the PWSS, as it would broaden the conduct in respect of which the PWSS could provide support services (under section 15 of the PWSS Act) and complaint resolution services (under section 16 of the PWSS Act), as well as the scope of the information required to be included in a report required under subsection 22(2) of the PWSS Act.

Item 24 – Section 5

177. Item 24 would amend the definitions section of the PWSS Act to insert a number of new definitions or insert a sign post to a new section which contains a definition into the PWSS Act.

178. Consistent with the approach taken in discussing items 19 and 22, definitions in this item that are relevant to the application of the PWSS Act as a whole are discussed below, for example the definition of sensitive information and serious offence. Otherwise, the definitions in this item are explained in the context of the section to which they are relevant. For example, the meaning of responsible Commissioner or Commissioners is discussed at new section 24AE, the meaning of review panel is discussed at new subsection 24DD(1), and the meaning of serious breach finding is discussed at paragraph 24CY(1)(d).

179. This item would insert a new definition of Secretary in relation to a Parliamentary Department, which would be defined to mean the Secretary of a Parliamentary Department (which is defined at item 22 above) for the purposes of the Parliamentary Service Act. This would include the Secretaries of the Department of the Senate, the Department of the House of Representatives, the Department of Parliamentary Services, and the Parliamentary Budget Office.

180. This item would insert a new definition of sensitive information. Sensitive information would be defined to mean information, the disclosure of which:

a.

could prejudice the security, defence or international relations of Australia,

b.

would prejudice relations between:

i.

the Commonwealth Government and the Government of another State or Territory, or

ii.

the Government of a State or Territory and the Government of another State or Territory,

c.

would involve disclosing:

i.

deliberations or decisions of the Cabinet, or of any committee of the Cabinet, of the Commonwealth or of a State, or

ii.

deliberations or advice of the Federal Executive Council or the Executive Council of a State or the Northern Territory, or

iii.

deliberations or decisions of the Australian Capital Territory Executive or of a committee of that Executive,

d.

could endanger a person's life or physical safety,

e.

could prejudice the protection of public safety,

f.

would prejudice the fair trial of any person or the impartial adjudication of a matter,

g.

would prejudice the proper enforcement of the law,

h.

would involve disclosing information whose disclosure is prohibited (absolutely or subject to qualifications) by or under another law of the Commonwealth,

i.

would involve unreasonably disclosing a person's personal information, or

j.

would involve unreasonably disclosing confidential commercial information.

181. Sensitive information would be required to be excluded from copies of draft reports provided to respondents or complainants (under new section 24CW), from copies of final reports provided to respondents and others (under new sections 24CZ and 24DE), and notices of review decisions provided to review applicants and others (under new section 24DE). In addition, sensitive information would be relevant to the circumstances in which a Commissioner may consider imposing conditions on the making of a record, or the disclosure, of information relating to an IPSC process or action in relation to a conduct issue that was or is before the IPSC (set out in new section 24FH). It would be for a Commissioner, parliamentarian decision panel, or review panel (as applicable) to assess whether information within reports and notices is sensitive information.

182. This definition is based on a similar, but more extensive, definition of sensitive information in the NACC Act (subsection 227(3) refers). The NACC Act definition is more extensive than that set out here as the IPSC is not expected to deal with the same breadth of sensitive information as the NACC. It is not, for example, envisaged that the IPSC would deal with national security information or have cause to hold, or to contemplate including in a notice or report, information the disclosure of which would prejudice the proper performance of the functions of the Inspector-General of Intelligence and Security.

183. Paragraphs (i) and (j) of the definition of sensitive information refer to information the disclosure of which would involve unreasonably disclosing a person's personal information or confidential commercial information.

184. Section 5 of the PWSS Act defines the term personal information as having the same meaning as in the Privacy Act. Section 6 of that Act defines personal information as information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether or not the information is true or recorded in a material form.

185. When determining whether they are satisfied that disclosing particular information would 'unreasonably' disclose a person's personal information or confidential commercial information, a Commissioner, parliamentarian decision panel or review panel would need to consider all of the relevant circumstances including, in particular:

a.

the public interest in the disclosure of the information, which would often turn on the relevance and salience of that information to the investigation, and

b.

the impact or consequences—adverse or beneficial—that would reasonably be expected to occur, were the information to be disclosed.

186. It is important to note that information which is disclosed in a report to a respondent, complainant, or other parties to an investigation may not be reasonable for disclosure to the public.

187. In circumstances where a particular aspect of a person's personal information is directly relevant to their conduct, it may be reasonable for a Commissioner, parliamentarian decision panel or review panel to disclose information about that aspect of the person's personal information. For example, where an official engages in relevant conduct by breaching confidentiality of the IPSC to an intimate partner who is a member of the press gallery it may be reasonable for a Commissioner to disclose information about the relationship because that information would be central to understanding the reasons for the person's conduct.

188. Where the information relates to the personal information of a person who is not the subject of the investigation, the public interest in any disclosure of that person's personal information would generally be reduced.

189. As noted above, the question of whether information about a person's personal information is confidential or not widely known may be relevant to the question of whether it is unreasonable to disclose the information, and the extent of any such disclosure, as it would go to the impact or consequences that would reasonably be expected to occur, should the information be disclosed.

190. It may be reasonable for a Commissioner, parliamentarian decision panel or review panel to disclose information about a person's personal information that the person has revealed in evidence where the information provides an explanation or context for the person's conduct, and disclosing the information would protect that person from undue reputational harm. For example, where a Commissioner intends to publish a report containing a finding that an omission or failing by an official enabled relevant conduct to occur or continue, and an aspect of that official's personal information provides some explanation or context, if not an excuse, for how that omission or failing occurred, such as a recent bereavement or an ongoing illness that affected the official's capacity, then it may be reasonable to include some information about that aspect of the person's personal information in the report.

191. Similar considerations would apply to the question of whether the disclosure of particular confidential commercial information would be 'unreasonable', with the exception that the concept is inherently limited to information that is confidential. For example, where confidential commercial information is central to understanding why a person engaged in relevant conduct, it may be reasonable to disclose that information. On the other hand, where confidential commercial information—such as trade secrets or non-public, market-sensitive information—is only of passing relevance to a matter, it may be unreasonable for a Commissioner, parliamentarian decision panel or review panel to disclose details of the information either beyond a general reference as to its existence, or at all.

192. There would be a lower threshold for whether information falls within the definition of sensitive information where:

a.

the harm resulting from disclosure could be particularly grave (for example, where the disclosure could endanger a person's life or physical safety), or

b.

the realisation of that harm would be partly dependent on the knowledge or conduct of a third party (for example, whether a third party could use the information to identify a confidential source).

193. In these circumstances, the information would fall within the definition of sensitive information if disclosure could result in the harm. This lower threshold would be appropriate, as it applies only to disclosures that could result in particularly serious harms, or where the discloser could not reasonably be expected to reach a greater degree of certainty about whether the specified harm would occur.

194. Where the Commissioner, parliamentarian decision panel, or review panel, in consultation with relevant officials, would be well placed to ascertain whether the harm would arise (for example, whether the disclosure would reveal Cabinet deliberations), the information would only fall within the definition of sensitive information if its disclosure would result in the harm.

195. The term serious offence would be defined to mean an offence against a law of the Commonwealth, a State or a Territory involving assault or sexual assault, or any other offence prescribed in the PWSS rules. The concept of a serious offence would have relevance for information disclosure provisions under the Bill (see new section 24FM, and new subsection 61(5B) as inserted by item 69), and to the circumstances in which an investigating Commissioner may not to investigate a conduct issue without consent (under new subsection 24CH(4)) and in which they could refer a matter to police (under new subsection 24CK(3) refers).

196. The term State or Territory law enforcement entity would be defined to mean a police force or police service of a State or Territory, or any other authority or person responsible for the enforcement of the laws of a State or Territory.

197. The term support person, for a person, would be defined to mean someone approved as a support person for that particular person under new subsections 24FC(4) or 24FI(2). This would include a person approved as a support person for a person who has been required to attend an interview with an investigating Commissioner or review panel, or a person approved as someone to whom a disclosure of information subject to an IPSC confidentiality notice may be made by the recipient of that notice.

198. The term work health and safety law would be defined to mean the Work Health and Safety Act 2011 (WHS Act), or a corresponding work health and safety law (within the meaning of that Act). The definition of 'corresponding work health and safety law' in section 4 of the WHS Act lists the corresponding state and territory work health and safety laws, such as the Work Health and Safety Act 2011 (NSW), as well as any other state or territory law prescribed by the regulations. It is necessary to include corresponding state and territory laws in this definition as some Commonwealth parliamentary workplace participants (such as those employed by private employers, for example, press gallery journalists carrying out work for a private media organisations) would not be persons who carry out work for a business or undertaking conducted by the Commonwealth or a public authority. As such, these individuals would be regulated by state or territory work health and safety laws, rather than the Commonwealth law.

199. The term work health and safety law would be relevant to the circumstances in which a person may refer a conduct issue to the IPSC (under new subsection 24CC(2)). Additionally, the term would be relevant to determining whether an investigating Commissioner is required to take reasonable steps to notify a respondent's employer of a decision to investigate a conduct issue (under new subsection 24CL(1)), and whether to recommend that a respondent's employer suspend the respondent from duties during an investigation (under new subsection 24CQ(2)). The term would also be relevant to the information disclosure provisions under the Bill relating to disclosures to employers (under new subsection 24FR(2)).

Item 25 – Section 11 (paragraph (f) of the paragraph beginning "The functions of the PWSS")

200. Item 25 would repeal paragraph (f) of section 11 of the PWSS Act.

201. Section 11 of the PWSS Act provides a simplified outline of Part 2 of the PWSS Act, including a list of the functions of the PWSS. Paragraph 11(f) provides that the functions of the PWSS include 'its review function'. That function is currently set out in section 19 of the PWSS Act, and enables the PWSS to review complaints about 'alleged relevant conduct'.

202. The repeal of the reference to the review function from the simplified outline in section 11 is consequential to item 35, which would repeal the review function itself. This is because the review function was established as an interim function of the PWSS, pending establishment of the IPSC, and would be incorporated into the functions of the IPSC.

Item 26 – Section 11 (paragraph beginning "The PWSS")

203. Item 26 would amend section 11 of the PWSS Act.

204. Section 11 of the PWSS Act provides a simplified outline of Part 2 of the PWSS Act, including details about reports that the PWSS may prepare, and a report that it must prepare each financial year.

205. Item 26 would amend the simplified outline of Part 2 to reflect that the PWSS may also prepare reports about the functions of the IPSC. This amendment is consequential to item 36 which would amend subsection 22(1) of the PWSS Act to provide for the PWSS to prepare reports relating to the functions of the IPSC.

Item 27 – Subsection 12(3)

206. Item 27 would repeal subsection 12(3) of the PWSS Act.

207. Section 12(3) of the PWSS Act provides for certain matters relating to the PWSS for the purposes of the finance law, within the meaning of the Public Governance, Performance and Accountability Act (PGPA Act).

208. The repeal of subsection 12(3) is consequential to the insertion of new Part 2B of the PWSS Act by this Bill, which would provide for the application of the finance law to both the PWSS and the IPSC (together, a listed entity to be known as the Parliamentary Workplace Support Service). This is discussed further at new section 24K, as inserted by item 41 below.

Item 28 – Paragraph 13(f)

209. Item 28 would repeal paragraph 13(f) of the PWSS Act.

210. Section 13 of the PWSS Act outlines the functions of the PWSS. Paragraph 13(f) provides that the functions of the PWSS include 'its review function (under section 19)'. That function enables the PWSS to review complaints about 'alleged relevant conduct'.

211. The repeal of the reference to the review function from paragraph 13(f) is consequential to item 35, which would repeal the review function itself. This is because the review function was established as an interim function of the PWSS, pending establishment of the IPSC, and would be incorporated into the functions of the IPSC.

Item 29 – Paragraph 13(i)

212. Item 29 would amend paragraph 13(i) of the PWSS Act.

213. Section 13 of the PWSS Act outlines the functions of the PWSS. Paragraph 13(i) provides that the PWSS has a function to make resources and facilities available to the PWSS Advisory Board and the PWSS Consultative Committee.

214. Item 29 would amend paragraph 13(i) to reflect that the PWSS would also have a function to make resources and facilities available to the IPSC.

Item 30 – Subparagraph 14(b)(ii)

215. Item 30 would repeal subparagraph 14(b)(ii) of the PWSS Act and substitute a new subparagraph.

216. Section 14 of the PWSS Act provides for the human resources functions of the PWSS. Paragraph 14(b) provides that the PWSS has a function to advise and assist current and former parliamentarians in connection with their obligations under the matters listed in subparagraphs 14(b)(i) and (ii).

217. Subparagraph 14(b)(ii) enables the PWSS to advise and assist current and former parliamentarians in connection with their obligations under 'codes of conduct relating to parliamentarians that are prescribed by the PWSS rules'. The new subparagraph to be inserted in place of current subparagraph 14(b)(ii) would refer instead to 'the Behaviour Codes that apply to them' (being parliamentarians).

218. This change reflects that the Bill would insert a definition of Behaviour Code (discussed further at new section 24AC as inserted by item 41), which would remove the need to prescribe codes in the PWSS rules.

Item 31 – Subparagraph 14(c)(ii)

219. Item 31 would repeal subparagraph 14(c)(ii) of the PWSS Act and substitute a new subparagraph.

220. Section 14 of the PWSS Act provides for the human resources functions of the PWSS. Paragraph 14(c) provides that the PWSS has a function to advise and assist current and former MOPS employees, including in connection with their obligations under the matters listed in subparagraphs 14(c)(i) and (ii).

221. Subparagraph 14(c)(ii) enables the PWSS to advise and assist current and former MOPS employees, including in connection with their obligations under 'codes of conduct relating to MOPS employees that are prescribed by the PWSS rules'. The new subparagraph to be inserted in place of current subparagraph 14(c)(ii) would refer instead to 'the Behaviour Codes that apply to them' (being MOPS employees).

222. This change reflects that the Bill would insert a definition of Behaviour Code (discussed further at new section 24AC as inserted by item 41), which would remove the need to prescribe codes in the PWSS rules.

Item 32 – After subsection 16(2)

223. Item 32 would insert new subsections 16(2A) and 16(2B) into section 16 of the PWSS Act, which provides for the complaint resolution function of the PWSS.

224. New subsection 16(2A) would provide that where a person (the first party) apologises to another person (the second party) for alleged relevant conduct while the PWSS is providing complaint resolution services to the parties in relation to that conduct, then the making of that apology:

a.

is not an admission of fault or liability, and

b.

is not admissible in evidence against the first party in any civil proceedings in respect of the conduct.

225. Depending on the circumstances, apologies can be used to resolve workplace conflicts and can help prevent escalation of disputes. New subsection 16(2A) is intended to encourage the use of apologies to resolve conflicts, by addressing any concern that an apology may be used in subsequent legal proceedings as an admission of liability. Precedent of this kind exists in State and Territory legislation such as the Civil Liability Act 2002 (NSW), and the Civil Liability Act 2003 (Qld).

226. New subsection 16(2B) would limit the application of new subsection 16(2A), so that the protection provided by subsection 16(2A) would not apply in relation to conduct the first party is alleged to have engaged in that would constitute an offence.

227. New subsections 16(2A) and 16(2B) are aligned with new section 24CX, which would provide for the IPSC to facilitate the making of apologies.

Item 33 – Subparagraph 18(1)(a)(i)

228. Item 33 would insert the phrase 'and the IPSC' into subparagraph 18(1)(a)(i).

229. Section 18 of the PWSS Act provides for the education and training functions of the PWSS. Existing paragraph 18(1)(a) provides that the PWSS may provide and arrange for education of, and for informing, Commonwealth parliamentary workplace participants about the matters listed in the subparagraphs that follow.

230. Existing subparagraph 18(1)(a)(i) enables the PWSS to provide education and training about the functions of the PWSS. By adding a reference to the IPSC to subparagraph 18(1)(a)(i), section 18 would enable the PWSS to provide education and training in relation to the functions of the IPSC, as well as those of the PWSS.

Item 34 – Subparagraph 18(1)(a)(iii)

231. Item 34 would amend subparagraph 18(1)(a)(iii) to repeal the phrase 'codes of conduct, prescribed by the PWSS rules,' and substitute 'the Behaviour Codes'.

232. Section 18 of the PWSS Act provides for the education and training functions of the PWSS. Existing paragraph 18(1)(a) provides that the PWSS may provide and arrange for education of, and for informing, Commonwealth parliamentary workplace participants, about the matters listed in the subparagraphs that follow.

233. Existing subparagraph 18(1)(a)(iii) enables the PWSS to provide education or training in relation to 'codes of conduct, prescribed by the PWSS rules, relating to parliamentarians, MOPS employees or other persons at a place covered by paragraph (a) of the definition of Commonwealth parliamentary workplace in section 5'.

234. This item would amend subparagraph 18(1)(a)(iii) to reflect the insertion of a new definition of 'Behaviour Code' into the PWSS Act, which is discussed further at new section 24AC.

235. It is anticipated that new subparagraph 18(1)(a)(iii) would have the same effective scope as current subparagraph 18(1)(a)(iii) was anticipated to have once codes of conduct had been prescribed by PWSS rules for the purposes of that subparagraph.

236. No codes of conduct had been prescribed by the PWSS rules for the purposes of subparagraph 18(1)(a)(iii). However, the explanatory memorandum for the Parliamentary Workplace Support Service Bill 2023 indicated that '[f]or the purposes of subparagraph 18(1)(a)(iii), codes of conduct relating to parliamentarians, MOPS employees or other persons at the Parliamentary precincts that are prescribed by the PWSS rules may include, for example, the Behaviour Standards and Codes, which have been endorsed by the Parliament'.

Item 35 – Section 19

237. Item 35 would repeal section 19 of the PWSS Act.

238. Section 19 provides for the review function of the PWSS. That function provides for the PWSS to review complaints made to it about alleged relevant conduct, and to make recommendations in relation to alleged relevant conduct following such review.

239. Item 35 would repeal this section, as it will be incorporated into the functions of the IPSC.

240. The repeal of section 19 of the PWSS Act upon establishment of the IPSC was anticipated when the PWSS was legislated. The explanatory memorandum for the Parliamentary Workplace Support Service Bill 2023 indicated, in relation to the section 19 review function, '[t]his is intended to be an interim function. It is envisaged that the PWSS would continue to carry out this function until the proposed establishment of the Independent Parliamentary Standard Commission (in response to recommendation 22 of the Set the Standard Report)'.

241. Schedule 2 to this Bill sets out transitional arrangements for complaints under review, and complaints not dealt with by the PWSS at the time section 19 is repealed.

Item 36 – Subsection 22(1)

242. Item 36 would amend subsection 22(1) of the PWSS Act.

243. Subsection 22(1) of the PWSS Act provides that the PWSS may prepare reports about matters relating to the functions of the PWSS or the PWSS CEO.

244. This item would enable the PWSS to also report on matters relating to the functions of the IPSC. This would include information relating to conduct complaints, conduct issue referrals and conduct issues, as required by new paragraph 22(2)(g), as inserted by item 37.

245. Reports prepared under subsection 22(1), as amended by this Bill, would be subject to the requirement not to include personal information (subsection 22(9) refers). This is subject to section 23, which provides for circumstances in which the PWSS CEO may determine that the PWSS will include details of certain non-compliance by parliamentarians in a public report. Accordingly, reports under this subsection could not include information that concerns an identifiable individual, or an individual who is reasonably identifiable.

Item 37 – At the end of subsection 22(2)

246. Item 37 would insert a new paragraph at the end of subsection 22(2).

247. Section 22 of the PWSS Act provides for the PWSS's function to prepare and publish reports. Subsection 22(2) provides that the PWSS must prepare a report containing information on certain matters, set out in paragraphs to subsection 22(2), at least once each financial year. Subsection 22(2) reports must be published on the PWSS's website, following tabling in each House of the Parliament (subsections 22(4) to (7) refer).

248. This item would insert a new paragraph (g) into subsection 22(2), so that the PWSS is required to include in its subsection 22(2) reports information relating to conduct complaints and conduct issue referrals received, and conduct issues dealt with, by the IPSC, including general information about: (i) the investigation of conduct issues; and (ii) any actions taken as a result of those investigations.

249. This would ensure that there is annual public reporting on conduct complaints, conduct issue referrals and conduct issues dealt with, by the IPSC. In addition, this would include reporting on actions taken as a result of IPSC investigations, including sanctions imposed or recommended by the IPSC and referrals of serious breach findings made to a Privileges Committee. Such reporting would promote appropriate transparency as to the operations of the IPSC and collect data through which progress made in the prevention of, and responses to, misconduct in Commonwealth parliamentary workplaces can be measured over time.

250. Item 6 of Schedule 2 to the PWSS (C&T) Act provides that subsection 22(2) of the PWSS Act, with the exception of paragraph 22(2)(d), applies in relation to financial years starting on or after 1 July 2024. As the IPSC would not be established before 1 July 2024, it is anticipated the reporting requirement created by new paragraph 22(2)(g) would apply to conduct complaints and conduct issue referrals received, and conduct issues dealt with, by the IPSC from its inception.

251. Subsection 22(9) of the PWSS Act provides that a report under section 22 must not include personal information. This is subject to section 23, which provides for circumstances in which the PWSS CEO may determine that the PWSS will include details of certain non-compliance by parliamentarians in a public report. Personal information includes information that identifies, or is likely to enable the identification of an individual. This protects the rights of individuals to privacy. Personal information does not include information that is de-identified, within the meaning of the Privacy Act. Accordingly, reports under this section could not include information that concerns an identifiable individual, or an individual who is reasonably identifiable. If it was not possible to report on conduct issues being dealt with by the IPSC in a manner which did not include personal information, that information would not be able to be included in a section 22 report.

Item 38 – Subsection 22(3)

252. Item 38 would amend subsection 22(3) to omit the phrase 'paragraphs (2)(a) to (f)' and substitute it with the phrase 'paragraphs (2)(a) to (g)'.

253. Existing subsection 22(3) provides that the PWSS rules may prescribe details about a matter mentioned in any of paragraphs 22(2)(a) to (f) that must or must not be included in a subsection 22(2) report. This provides flexibility in the particular details that must be included in those reports, to help ensure the reports are appropriately focused on key issues of interest and support the objects of section 22 and of the PWSS more broadly.

254. This item would amend subsection 22(3) so that the PWSS rules may also prescribe details about a matter mentioned in new paragraph 22(2)(g) (inserted by item 37) that must or must not be included in a subsection 22(2) report.

Item 39 – Subsection 22(5)

255. Item 39 would amend subsection 22(5) to reflect the new defined term of Presiding Officer.

256. Existing subsection 22(5) of the PWSS Act requires that, before publishing a section 22 report on its website, the PWSS must give 'each of the following persons (a Presiding Officer) a copy of the report: (a) the President of the Senate; (b) the Speaker of the House of Representatives.'

257. This item would amend subsection 22(5) to omit all the words after 'the PWSS must give' and substitute them with the phrase 'each Presiding Officer a copy of the report'. This reflects that, as discussed at item 22 above, this Bill would introduce the new defined term, Presiding Officer, into section 5 of the PWSS Act.

258. In addition to the President of the Senate, and the Speaker of the House of Representatives, the new definition of Presiding Officer would also capture a person who is taken to be the President of the Senate or the Speaker of the House of Representatives, under the Parliamentary Presiding Officers Act and who is not a senator or member of the House of Representatives.

Item 40 – Paragraph 23(7)(b)

259. Item 40 would amend paragraph 23(7)(b) to omit the phrase 'could identify' and substitute it with the phrase 'identifies, or is likely to enable the identification of,'.

260. Section 23 of the PWSS Act provides that the PWSS CEO may determine that the PWSS will include details of certain non-compliance by parliamentarians with certain obligations in public reports.

261. Subsection 23(7) provides that where a parliamentarian's failure to comply with obligations relates to another person and the inclusion of details about the parliamentarian's failure in a public report 'could identify the person', then the CEO must provide a written notice informing that person of a proposed determination to include details about the parliamentarian's failure in a public report and inviting submissions in relation to that proposal within a reasonable specified period.

262. This item would amend paragraph 23(7)(b) so that the requirement in subsection 23(7) applies where the inclusion of details about a parliamentarians' failure in a public report 'identifies, or is likely to enable the identification of, the person'.

263. This change would align the language in paragraph 23(7)(b), and the threshold for requiring the CEO to provide written notice to a person in relation to publication of potentially identifying information in a PWSS non-compliance report, with the definition of identifying information to be inserted into section 5 of the PWSS Act.

264. As discussed at new section 24GC, the inclusion of identifying information would also be the threshold for requiring a Commissioner or Commissioners to consult a person before deciding to include identifying information about that person in an IPSC public statement (though that consultation requirement would not apply in relation to the parliamentarian whose conduct would be the subject of the statement). The same threshold would apply in relation to the inclusion of identifying information in referrals of serious breach findings to a Privileges Committee, discussed at new Division 5 of Part 2A.

Item 41 – After Part 2

265. Item 41 would insert new Part 2A and new Part 2B into the PWSS Act.

266. Part 2 of the PWSS Act establishes the PWSS as an independent statutory agency to provide human resources services for parliamentarians and MOPS employees, and other services to support positive cultural change across Commonwealth parliamentary workplaces.

267. New Part 2A would establish the IPSC as a fair and independent workplace investigation framework.

268. The establishment of the IPSC would implement recommendation 22 of the Set the Standard Report, which recommended that the Houses of Parliament should establish an IPSC to operate a fair, independent, confidential and transparent system to handle complaints and make findings about misconduct, and to make recommendations on sanctions for parliamentarians, staff and others who breach codes of conduct.

269. The IPSC established by this Part would be part of the PWSS (which is a non-corporate Commonwealth entity), rather than being established in standing orders as was recommended in the Set the Standard Report. This recognises that the IPSC is a workplace investigation framework that would not only apply to parliamentarians, but also to other people who work in a parliamentary workplace, such as MOPS employees, volunteers, interns, and members of the press gallery. It also recognises that the circumstances where workplace misconduct such as bullying and sexual harassment can occur will very often not be a part of parliamentary proceedings and will not engage parliamentary privilege.

270. New Part 2A would also provide for the functions of the IPSC, which include assisting the Commissioners in the performance of their functions, and publishing guidance about the functions of the IPSC and of the Commissioners. The Commissioners would have functions including dealing with conduct issues in accordance with Divisions 3 to 6 of Part 2A, and preparing and publishing IPSC public statements in accordance with Division 7 of Part 2A.

271. New Part 2B would set out the application of the finance law (within the meaning of the PGPA Act) to the PWSS and the IPSC. For the purposes of the finance law, within the meaning of the PGPA Act, the PWSS and the IPSC would together form a single listed entity, to be known as the Parliamentary Workplace Support Service.

Part 2A—Independent Parliamentary Standards Commission

Division 1—Introduction

Subdivision A—Simplified outline of this Part

Section 24A – Simplified outline of this Part

272. New section 24A would provide a simplified outline of new Part 2A of the Bill to assist the reader.

273. The outline would note that this Part would establish the IPSC, which would consist of the Commissioners and persons made available by the CEO to assist the IPSC to perform its functions.

274. The outline would further note that the functions of the IPSC include:

a.

assisting the Commissioners in the performance of their functions, and

b.

publishing guidance about its functions and the functions of the Commissioners.

275. The outline would reflect that Commissioners are able to investigate conduct issues that arise from a complaint or referral made to the IPSC, or that the Chair Commissioner becomes aware of in any other way.

276. Consistent with definitions elsewhere in the Bill, the outline would note that a conduct issue is an issue of whether a person has engaged in relevant conduct, and that relevant conduct is:

a.

pre-Code conduct, being certain conduct engaged in by parliamentarians, MOPS employees or non-core participants before the Behaviour Codes have commenced, or

b.

post-Code conduct, being conduct in breach of a Behaviour Code that is engaged in by any Commonwealth parliamentary workplace participant.

277. The outline would also reflect that if a person is found to have engaged in relevant conduct, the Commissioners may recommend actions to be taken against the person, and, if the person is a parliamentarian, the Commissioners may impose sanctions on the person and, if the person is a current member of a House of the Parliament and a serious breach finding is made, the Commissioners may refer the finding to the Privileges Committee of that House.

278. Finally, the outline would reflect that:

a.

new Division 4 of Part 2A would provide for internal reviews of decisions made by Commissioners,

b.

new Division 5 of Part 2A would deal with the process for referring a serious breach finding to the Privileges Committee of a House of the Parliament,

c.

new Division 6 of Part 2A would deal with information-gathering powers, confidentiality notices, and the circumstances in which an entrusted person may record or disclose information,

d.

new Division 7 of Part 2A would set out the powers of the Commissioners to make public statements about conduct issues that were or are before the IPSC, and

e.

new Division 8 of Part 2A would provide protections and immunities for persons who make complaints about or refer conduct issues, or provide other information, under the PWSS Act.

Subdivision B—Key concepts for the IPSC

Section 24AA – Meanings of conduct issue and respondent

279. New section 24AA would define the terms conduct issue and respondent for the purposes of the PWSS Act.

280. New subsection 24AA(1) would provide that a conduct issue is an issue of whether a person has engaged in, or is engaging in, 'relevant conduct'.

281. The note under new subsection 24AA(1) would make clear that within the PWSS Act, the term relevant conduct is defined as pre-Code conduct or post-Code conduct, and would refer the reader to section 5, which defines the term relevant conduct in this way.

282. New subsection 24AA(2) would provide that the respondent for a conduct issue is the person whose potential engagement in relevant conduct is at issue. Each conduct issue would relate to a single respondent.

Section 24AB – Meanings of pre-Code conduct and post-Code conduct

283. New section 24AB would define the terms pre-Code conduct and post-Code conduct.

284. New subsection 24AB(1) would define pre-Code conduct as conduct that:

a.

is engaged in before the Code commencement day (the meaning of which is discussed at new section 24AC below), and

b.

consists of any of the following:

i.

sexual assault,

ii.

assault,

iii.

sexual harassment,

iv.

harassment,

v.

another person being bullied at work (within the meaning of the Fair Work Act),

vi.

unreasonable behaviour towards another person that creates a risk to work health or safety, and

c.

is engaged in by a person (the first person) covered by column 1 of an item of the table in new subsection 24AB(1), and

d.

affects a person (the second person) covered by column 2 of the relevant item of the table in new subsection 24AB(1), and

e.

meets the requirements in column 3 for the relevant item of the table.

285. The definition of pre-Code conduct in new subsection 24AB(1) is intended to reflect the scope of the existing PWSS review mechanism in current section 19 of the PWSS Act. The inclusion of pre-Code conduct as a form of relevant conduct, and therefore as conduct that is able to be investigated by the IPSC, would provide an avenue for the IPSC to investigate historical allegations relating to conduct that is alleged to have occurred before the Code commencement day.

286. The categories of conduct covered by new subsection 24AB(1) reflect those in the existing definition of relevant conduct in the PWSS Act, with the exception of 'conduct that breaches a code of conduct, or a part of a code of conduct, that is prescribed by the PWSS rules' (paragraph (g) of the current definition of 'relevant conduct' in the PWSS Act). Conduct in this category would not amount to pre-Code conduct that is able to be investigated by the IPSC because no codes of conduct have been prescribed under the PWSS rules, and none are proposed to be prescribed prior to the establishment of the IPSC.

287. It is not intended that complaints of breaches of the Behaviour Codes would be able to be investigated as pre-Code conduct unless they relate to conduct of the types described in new paragraph 24AB(1)(b). This is so that individuals are not held accountable to Behaviour Codes that were not in place at the time relevant conduct is alleged to have occurred.

288. As with the definition of relevant conduct currently in the PWSS Act, it is intended that conduct would be covered by new paragraph 24AB(1)(b) if it included any of the conduct listed in new paragraph 24AB(1)(b), including a combination of conduct. In addition, it is intended that conduct may include both a pattern of behaviour as well as a single incident of behaviour. For example, a single instance of sexual harassment may constitute pre-Code conduct, or a period of a person being bullied at work with an instance of unreasonable behaviour creating a risk to work health and safety may constitute relevant conduct.

289. It is also intended that the types of conduct listed in new subparagraphs 24AB(1)(b)(i) to (vi) should be interpreted consistently with relevant definitions in applicable Federal or State and Territory legislation. For example, it is intended that 'sexual harassment' should be interpreted in accordance with the definition of sexual harassment in section 28A of the Sex Discrimination Act 1984. Similarly, the term 'work health or safety' should be interpreted consistently with the WHS Act.

290. It would not be necessary for conduct to meet particular thresholds of seriousness to fall within the definition of pre-Code conduct. For example, for the purposes of new subparagraph 24AB(1)(b)(vi), the conduct must merely create a risk to work health or safety.

291. Under new subsection 24AB(1), conduct would be pre-Code conduct if it was engaged in before the Code commencement day, fit within one or more categories covered by new paragraph 24AB(1)(b), and fit within circumstances covered by the table in new subsection 24AB(1).

292. Item 1 of the table would capture conduct that is engaged in by a parliamentarian or a MOPS employee that affects a second person who is a parliamentarian, a MOPS employee or a Parliamentary Service employee, and that was engaged in in the course of either party performing their duties.

293. Item 2 of the table would capture conduct that is engaged in by a non-core participant (a term defined in section 5 of the PWSS Act) that affects a parliamentarian, MOPS employee or Parliamentary Service employee if the conduct was engaged in in the course of either party performing their duties at a place in the precincts (within the meaning of the Parliamentary Precincts Act).

294. The term 'non-core participant' is defined in section 5 of the PWSS Act to mean a person, other than a core participant, who performs work (whether or not paid work) predominantly at a place covered by paragraph (a) or (b) of the definition of Commonwealth parliamentary workplace in the PWSS Act, being a place in the precincts (within the meaning of the Parliamentary Precincts Act) or a premises provided or paid for under the PBR Act.

295. New subsection 24AB(2) would define post-Code conduct as conduct that:

a.

is engaged in on or after the Code commencement day, and

b.

is engaged in by a Commonwealth parliamentary workplace participant, and

c.

constitutes or involves a breach of a Behaviour Code, as in force at the time of the conduct; and

d.

either:

i.

affects a Commonwealth parliamentary workplace participant, or

ii.

does not directly affect another person.

296. The definition of post-Code conduct would capture a broader span of conduct than that of pre-Code conduct. This is, in part, because post-Code conduct would capture conduct engaged in by any Commonwealth parliamentary workplace participant, and that affects any Commonwealth parliamentary workplace participant, irrespective of where that conduct occurs, provided it constitutes or involves a breach of a Behaviour Code. It is also because the categories of conduct that would constitute breach of a Behaviour Code are expected to be far broader than those covered by new paragraph 24AB(1)(b).

297. The Behaviour Codes endorsed on an interim basis by both Houses of the Parliament in February 2023 are broadly framed. The Behaviour Code for Australian Parliamentarians and the Behaviour Code for Parliamentarians' Staff, as endorsed by the Parliament, for example, include requirements that '[a]ll Australian laws must be upheld' and that '[p]arliamentarians must treat all those with whom they come into contact in the course of their parliamentary duties and activities with dignity, courtesy, fairness and respect'. Any conduct that constitutes or involves a breach of these broad obligations, that is engaged in by a Commonwealth parliamentary workplace participant after the Code commencement day, and affects a Commonwealth parliamentary workplace participant, would constitute post-Code conduct.

298. New subsection 24AB(2)(d) would provide that Post-Code conduct may be either conduct that affects a Commonwealth parliamentary workplace participant, or that does not directly affect another person. The inclusion of conduct that does not directly affect another person reflects that some conduct that does not directly affect anyone except the person who engaged in it may nonetheless breach a Behaviour Code and should be able to be investigated by the IPSC. For example, it is anticipated that a parliamentarian's non-compliance with mandatory training requirements would constitute a breach of the Behaviour Code for Australian Parliamentarians, and may warrant investigation and possible sanction by the IPSC. Non-compliance with mandatory training requirements could be referred to the IPSC by the PWSS CEO.

Section 24AC – Meanings of Behaviour Code and Code commencement day

299. New section 24AC would define the terms Behaviour Code and Code commencement day.

300. New subsection 24AC(1) would provide that each of the following is a Behaviour Code:

a.

a determination, under subsection 13(2) of the MOPS Act, that a MOPS employee must comply with a code or standard of behaviour (other than the Ministerial Staff Code of Conduct) as a term and condition of employment, as in force from time to time, and

b.

a code or standard of behaviour for persons in Commonwealth parliamentary workplaces that is approved, from time to time, by a resolution of both Houses of the Parliament.

301. It is anticipated that this definition of Behaviour Code would capture the Behaviour Code for Australian Parliamentarians, the Behaviour Code for Parliamentarians' Staff, and the Behaviour Standards for Commonwealth Parliamentary Workplaces (the Standards), once these have been finally adopted.

302. New paragraphs 24AC(1)(a) and (b) reflect the different mechanisms by which it is anticipated that these Codes and Standards would be formalised. The Behaviour Code for Australian Parliamentarians and the Standards are both proposed to be adopted in standing orders, and would be captured by new paragraph 24AC(1)(b). Only a code or standard of behaviour that is approved, in the same form, by both Houses of the Parliament, would be a Behaviour Code under new paragraph 24AC(1)(b). In the event a code or standard of behaviour was endorsed in different terms by each House of the Parliament, it would not be a Behaviour Code under new paragraph 24AC(1)(b), and would not be enforceable by the IPSC.

303. The Behaviour Code for Parliamentarians' Staff is expected to be incorporated into a determination made under subsection 13(2) of the MOPS Act, which would be captured by new paragraph 24AC(1)(a).

304. Formalising the Behaviour Code for Parliamentarians' Staff through a determination made under the MOPS Act would be consistent with recommendation 4 of the JSCPS Report, which recommended the Behaviour Code for Parliamentarians' Staff be formalised 'through employment-related mechanisms', rather than legislated in the MOPS Act as had been recommended by the Set the Standard Report.

305. Subsection 13(2) of the MOPS Act authorises the Prime Minister to determine, by notifiable instrument, that the terms and conditions of employment of 'all persons employed under [the MOPS Act]' or of 'all persons included in a specified class or classes of persons employed under [the MOPS Act]' are varied in accordance with the determination. A determination may vary specified terms and conditions or include new terms and conditions, and prevails over staff's employment agreements to the extent of any inconsistency.

306. New paragraph 24AC(1)(a) would exclude the Ministerial Staff Code of Conduct, which is made by way of a determination under subsection 13(2) of the MOPS Act, from the meaning of 'Behaviour Code', as it is not intended that the IPSC would have power to investigate alleged breaches of that Code.

307. New subsection 24AC(2) would provide that the Code commencement day is the first day that both a determination under new paragraph 24AC(1)(a), and a code or standard under new paragraph 24AC(1)(b) are in force. This approach would ensure the Behaviour Codes commence together, notwithstanding that the formalisation method proposed for the Behaviour Code for Parliamentarians' Staff is different to that proposed for the Behaviour Code for Australian Parliamentarians and the Standards.

308. It is anticipated that the Code commencement day would be after the establishment of the IPSC, noting the JSCPS recommended that both Houses of the Parliament endorse the Behaviour Code for Australian Parliamentarians and the Standards 'in the first sitting week after the establishment of the Independent Parliamentary Standards Commission' (recommendation 2).

309. Consistent with the new definition of relevant conduct to be inserted into section 5 of the PWSS Act (item 23 above refers), conduct that breaches a Behaviour Code would only be able to be investigated by the IPSC if it was engaged in on or after the Code commencement day, or if it also comprised pre-Code conduct as defined in new subsection 24AB(1).

Section 24AD – Meaning of before the IPSC

310. New section 24AD would define the term before the IPSC.

311. This term is relevant to the information that may be the subject of a confidentiality notice, and to Commissioners' power to make public statements about conduct issues. New paragraphs 24AD(a) to (c) would set out the different circumstances in which a conduct issue would be considered to be before the IPSC.

312. New paragraph 24AD(a) would provide that if both of the following apply, a conduct issue would be considered to be before the IPSC:

a.

the conduct issue arises from a conduct complaint, or a conduct issue referral, made to the IPSC, and

b.

a Commissioner has not yet been assigned to deal with the conduct issue.

313. New paragraph 24AD(b) would provide that a conduct issue would also be before the IPSC if the Chair Commissioner has become aware of the conduct issue, and is considering whether to assign themselves to deal with it on their own initiative.

314. New paragraph 24AD(c) would provide that a conduct issue would also be before the IPSC if any other action is being taken in relation to the conduct issue under new Part 2A of the PWSS Act.

315. Accordingly, all conduct issues that had been before the IPSC at any stage, whether or not there had been a decision to investigate or a decision that a respondent had engaged in relevant conduct, would be captured by this definition. This would mean that all complaints under investigation or review by a Commissioner, or a panel of Commissioners, would be before the IPSC for the purposes of this Act. For example, a matter would be before the IPSC if an investigating Commissioner is currently deciding whether to investigate the conduct issue or is investigating that conduct issue, or if a panel is conducting a review under new Division 4 of Part 2A of the PWSS Act.

Section 24AE – Meaning of responsible Commissioner or Commissioners

316. New section 24AE would define the term responsible Commissioner or Commissioners.

317. Responsible Commissioners would have the power to issue confidentiality notices and make public statements about conduct issues.

318. New subsection 24AE(1) would provide that the responsible Commissioner or Commissioners for a conduct issue covered by an item in column 1 of the table in subsection 24AE(1) are the Commissioners mentioned in column 2 of that table.

319. Item 1 of the table in subsection 24AE(1) would provide that where a Commissioner has not yet been assigned to deal with a conduct issue, the responsible Commissioner for the conduct issue is the Chair Commissioner.

320. Item 2 of the table in subsection 24AE(1) would provide that where a Commissioner has been assigned to deal with a conduct issue, and the conduct issue is not, and has not been, before a parliamentarian decision panel or a review panel, then the responsible Commissioner for the conduct issue is the investigating Commissioner. As discussed below in relation to new section 24CD, the investigating Commissioner for a conduct issue is the Commissioner assigned by the Chair Commissioner to deal with that conduct issue.

321. Item 3 of the table in subsection 24AE(1) would provide that where a conduct issue is, or has been, before a parliamentarian decision panel but is not, and has not been, before a review panel, then the responsible Commissioners for the conduct issue are a majority (two) of the Commissioners on the parliamentarian decision panel.

322. Item 4 of the table in subsection 24AE(1) would provide that where a conduct issue is, or has been, before a review panel, then the responsible Commissioners for the conduct issue are a majority (two) of the Commissioners on the review panel.

323. New subsection 24AE(2) would provide that where a Commissioner who would, under the table in subsection 24AE(1), be the responsible Commissioner or one of the responsible Commissioners for a conduct issue, but that Commissioner is no longer a Commissioner, the Chair Commissioner would be taken to be that Commissioner. In practice, this would mean:

a.

for conduct issues covered by item 2 of the table, where the investigating Commissioner for the conduct issue is no longer a Commissioner, the responsible Commissioner would be the Chair Commissioner,

b.

for conduct issues covered by items 3 or 4 of the table, where any of the Commissioners on the parliamentarian decision panel or the review panel (as applicable) is no longer a Commissioner, the Chair Commissioner would take the place of that Commissioner or those Commissioners.

324. In cases where none of the Commissioners on a panel for a conduct issue are still Commissioners, this would mean that the Chair Commissioner alone would be the responsible Commissioner for the conduct issue.

Division 2—Establishment and functions of the IPSC

Section 24B – Independent Parliamentary Standards Commission

325. New section 24B would establish the Independent Parliamentary Standards Commission and provide for its composition.

326. New subsection 24B(1) would establish the IPSC. The first note under this subsection would clarify that the IPSC would legally form part of the Commonwealth and would not have a separate legal identity. The second note under this subsection would make clear that, in the PWSS Act, IPSC is defined to mean the Independent Parliamentary Standards Commission, and would refer the reader to section 5, which defines the term IPSC in this way.

327. New subsection 24B(2) would provide that the IPSC would consist of the Commissioners and the persons referred to in new paragraphs 40A(1)(a) and (b), being any of the following persons made available by the PWSS CEO, to such extent as the Chair Commissioner reasonably requires, to assist the IPSC to perform its functions:

a.

the staff of the PWSS,

b.

persons whose services are made available to the PWSS under section 39 of the PWSS Act (which provides the PWSS may be assisted by: officers and employees of Agencies, within the meaning of the Public Service Act, officers and employees of authorities of the Commonwealth, officers and employees of a State or Territory, and officers and employees of authorities of a State or Territory, whose services are made available to the PWSS in connection with the performance of any of its functions).

Section 24BA – Functions of the IPSC

328. New section 24BA would outline the functions of the IPSC.

329. The functions conferred on the IPSC would be:

a.

to assist the Commissioners in the performance of their functions,

b.

its guidance function (under new section 24BB),

c.

such other functions as are conferred on the IPSC by the PWSS Act or by any other law of the Commonwealth, and

d.

to do anything incidental to, or conducive to, the performance of the above functions.

330. This reflects that the majority of the functions and powers of the IPSC will be conferred on the Commissioners personally rather than the IPSC as a Commonwealth entity.

331. The functions of the Commissioners, which would be outlined in new section 36C, would include dealing with conduct issues in accordance with Divisions 3 to 6 of new Part 2A, and preparing and publishing IPSC public statements in accordance with Division 7 of new Part 2A.

332. The scope of the guidance function of the IPSC is discussed further at new section 24BB below.

333. The functions outlined in new section 24BA would be conferred on the IPSC, which comprises the Commissioners and the persons referred to in new paragraphs 40A(1)(a) and (b), as discussed at new subsection 24B(2) above.

Section 24BB – Guidance function

334. New section 24BB would provide for the guidance function of the IPSC.

335. New subsection 24BB(1) would provide that the guidance function of the IPSC is to develop and publish guidance about the functions and powers of the Commissioners, and the functions of the IPSC.

336. New subsection 24BB(2) would require that guidance developed and published by the IPSC must include information about the importance of early reporting to the police of relevant conduct (as defined in section 5 of the PWSS Act) that may constitute an offence, and the consequences of failing to report early on future investigations and prosecutions of such conduct.

337. The IPSC would generally not require consent, including a complainant's consent, to refer a potential offence to the police. An exception would be if the conduct concerned may constitute a serious offence against a person, in which case the IPSC would require the consent of the alleged victim to report to the police. A serious offence would be defined by item 24 to mean (i) an offence against a law of the Commonwealth, a State or a Territory involving assault or sexual assault, or (ii) any other offence prescribed by the PWSS rules.

338. Guidance about the IPSC's functions and procedures developed and published under new subsection 24BB(1) could also include information about:

a.

what participants could expect in an IPSC process (e.g. information for a respondent, information for a complainant, and information for a witness),

b.

what the IPSC can investigate,

c.

how the IPSC assesses whether an investigation is warranted,

d.

how the IPSC may require individuals to produce documents or information, and how confidentiality notices operate,

e.

what factors the IPSC might consider in recommending a sanction, and

f.

what factors the IPSC might consider in determining how long a confidentiality obligation is in force.

339. The IPSC may also produce guidance to assist parliamentarians and their staff to understand the extent to which their official role as a parliamentarian, or parliamentarian's staff, could be covered by the IPSC. It is anticipated that the IPSC would engage closely with the PWSS to prepare guidance materials, noting the PWSS would have a function to provide education and training to Commonwealth parliamentary workplace participants about the Behaviour Codes.

Section 24BC – IPSC has privileges and immunities of the Crown

340. New section 24BC would provide that the IPSC has the privileges and immunities of the Crown in right of the Commonwealth.

Division 3—How the IPSC deals with conduct issues

Subdivision A—Complaints and referrals

Section 24C – Conduct complaints

341. New section 24C would define the term conduct complaint to mean a complaint made to the IPSC under this section, set out the circumstances in which conduct complaints could be made to the IPSC, and require that conduct complaints be made in writing and include certain information.

342. New subsection 24C(1) would provide that a person could make a complaint to the IPSC if the complaint is about alleged post-Code conduct, the person making the complaint was or is affected by the alleged conduct, and the person was or is a Commonwealth parliamentary workplace participant at the time of the alleged conduct. The term post-Code conduct would be defined in new section 24AB, discussed above.

343. New subsection 24C(2) would provide that a person could also make a complaint to the IPSC if the complaint is about alleged pre-Code conduct, the person was or is affected by the alleged conduct, and the person was or is a parliamentarian, MOPS employee or Parliamentary Service employee at the time of the alleged conduct. The term pre-Code conduct would be defined in new section 24AB, discussed above.

344. A person may be 'affected by' and complain to the IPSC about conduct of which they were the target, or about conduct they have witnessed, which has affected them. For example, if a MOPS employee witnessed one of their colleagues assault another in their office, and as a result the witness no longer felt safe coming into the office, they could complain to the IPSC about the assault on the basis it had affected them.

345. As the IPSC framework is focused on workplace misconduct, a member of the public could not make a complaint directly to the IPSC. As discussed further in relation to new sections 24CA and 24CB below, however, a member of the public could make a complaint to a referrer about conduct they have witnessed, and which affected a Commonwealth parliamentary workplace participant, with a view to the conduct being referred to the IPSC.

346. Not all complaints received by the IPSC would be investigated. As discussed further in relation to new section 24CF, an investigating Commissioner would decide whether to investigate a conduct issue (which would only be possible if the criteria in new section 24CH are met), to refer the issue to another person or body, or to take no action, or no further action, in relation to the issue.

347. Where a conduct issue referral involved multiple respondents, it is anticipated the referral would be dealt with by the IPSC as multiple conduct issues (although the Chair may choose to assign the same investigating Commissioner to each of the conduct issues, and the investigating Commissioner may choose to investigate the conduct issues together).

348. New subsection 24C(3) would provide that a complaint made under new section 24C is a conduct complaint.

349. New subsection 24C(4) would require that a conduct complaint be made in writing and include details of the alleged conduct to which it relates, any evidence to support the complaint, and the complainant's name and contact details.

350. The requirement for a conduct complaint to be in writing is similar to requirements for complaints made to other statutory complaints handling bodies (see, for example, section 46P of the Australian Human Rights Commission Act 1986 (AHRC Act) which provides for the lodgement of a written complaint with the Australian Human Rights Commission (AHRC)). The requirement that a complaint be made in writing reflects the seriousness of an IPSC complaint. While it is envisaged that individuals could contact the IPSC and discuss matters with the IPSC orally, such inquiries would not constitute a formal complaint unless and until all requirements outlined in new subsection 24C(4) were met. In practice, nothing would prevent an individual making an oral complaint and the IPSC assisting them to put a complaint in writing.

351. The requirement for a conduct complaint to include details of the alleged conduct to which it relates, and any evidence to support the complaint, is intended to assist in ensuring that complaints made to the IPSC include sufficient information to support the IPSC to determine whether or not to investigate a complaint, and in minimising the risk of vexatious complaints. As the IPSC would not be a court, the law of evidence would not apply. The term 'evidence' in new subparagraph 24C(4)(b)(ii) is intended to take its ordinary meaning.

352. As outlined in new subparagraph 24C(4)(b)(iii), a conduct complaint would be required to include the complainant's name and contact details. This recognises the seriousness of an IPSC complaint, and is necessary to enable the IPSC to engage with a complainant to seek further information if needed, and to update them on the handling of their complaint (including, for example, proposed referral of a complaint). The identity of a complainant would be protected through the confidentiality regime and protections against reprisals set out in new Divisions 6 and 8 of new Part 2A.

353. New subparagraph 24C(4)(b)(iii) would prevent the making of anonymous complaints (whether fully anonymous, or by a person who does not wish to be identified) as conduct complaints. This reflects that there are practical limitations in handling a complaint without an identified complainant, particularly where there is insufficient information to make a reasonable assessment of whether alleged relevant conduct has occurred. New section 24CE would require the Chair Commissioner to refer a conduct issue arising from an anonymous statement to be dealt with by the PWSS, if satisfied the statement was not frivolous, vexatious, misconceived or lacking in substance, and was made in good faith. For example, if an anonymous complaint was made to the IPSC concerning an issue that raised work health and safety matters in relation to a particular individual or workplace (e.g. an electorate office), these issues would be referred to the PWSS, in order for them to give advice in connection with their functions to provide work health and safety advice and support.

354. New subsection 24C(5) would provide that a complainant may amend a complaint they have made to the IPSC with the agreement of the investigating Commissioner for the conduct issue arising from the complaint or with the agreement of the Chair Commissioner if there is no investigating Commissioner. This provision for the amendment of complaints is similar to the approach taken in other investigative statutory regimes (see, for example, section 46PA of the AHRC Act which provides for a complainant to amend their complaint at any time, with the leave of the President of the AHRC).

355. While there would not be a time limit on the ability of a complainant to amend a complaint with Commissioner agreement under new subsection 24C(5), it is anticipated that it would be unlikely that a request to amend a complaint would be agreed once the investigation into that complaint has significantly progressed, such as where a draft report has been prepared.

Section 24CA – Conduct issue referrals by parliamentarians

356. New section 24CA would provide for conduct issues to be referred to the IPSC by parliamentarians in certain circumstances.

357. A conduct issue referral, as defined in section 5 of the PWSS Act as amended by item 19, would mean a referral of a conduct issue to the IPSC under this section, or under new section 24CB (a referral power for the PWSS CEO, discussed below). Requirements for conduct issue referrals would be set out in new section 24CC.

358. New subsection 24CA(1) relates to parliamentarians generally. It would provide that a parliamentarian may refer a conduct issue to the IPSC if the complainant or respondent is employed by the parliamentarian, or if the complainant's or respondent's predominant place of work is at an office provided to the parliamentarian, either under the PBR Act or at a place in the precincts (within the meaning of the Parliamentary Precincts Act). This subsection would enable a parliamentarian to refer matters involving MOPS employees, volunteers, interns, and public servants (e.g. Departmental Liaison Officers and Cabinet liaison officers) who work for them, to the IPSC for investigation.

359. New subsection 24CA(2) relates to Presiding Officers. It would provide that a Presiding Officer may refer a conduct issue to the IPSC if:

a.

the Presiding Officer is either:

i.

the President of the Senate or a person covered by paragraph 6(1)(d) of the PWSS Act, and the respondent is a senator, or

ii.

the Presiding Officer is the Speaker of the House of Representatives or a person covered by paragraph 6(1)(e) of the PWSS Act, and the respondent is a member of the House of Representatives, and

b.

the Presiding Officer is reasonably satisfied that the conduct concerned does not form part of proceedings in Parliament for the purposes of section 16 of the Parliamentary Privileges Act 1987 (Parliamentary Privileges Act).

360. This referral power reflects the role of the Presiding Officers in relation to each House of the Parliament. A Presiding Officer could only refer conduct issues where the respondent is a parliamentarian in the House over which they preside. Parliamentarians could make conduct complaints to the IPSC under new section 24C (and could be supported in doing so by the Presiding Officer for their House, should they wish).

361. The requirement that a Presiding Officer be satisfied that a matter referred to the IPSC under new subsection 24CA(2) does not constitute proceedings in Parliament for the purposes of section 16 of the Parliamentary Privileges Act reflects that the IPSC would not be able to investigate allegations of relevant conduct that engage parliamentary privilege, and that conduct that engages parliamentary privilege would be for the relevant House to deal with. This aligns with an observation in the Set the Standard Report that allegations of misconduct on the floor of a Chamber should be raised with the relevant Presiding Officer in the first instance.

362. New subsection 24CA(3) relates to the Leaders of Parliamentary parties. It would provide that the Leader of a Parliamentary party may refer a conduct issue to the IPSC if the respondent is or was, at the time of the conduct concerned, a parliamentarian and a member of that Parliamentary party. This is consistent with the role of Leaders of Parliamentary parties in existing PWSS non-compliance processes (sections 23 and 24 of the PWSS Act refer). It is not proposed that Leaders of Parliamentary parties would be able to refer conduct issues where the respondent is not, or was not, a member of their Parliamentary party. Parliamentarian complainants (including both current and former parliamentarians) could make conduct complaints to the IPSC under new section 24C (and could be supported in doing so by the Leader of their Parliamentary party, should they wish).

363. New subsection 24CA(4) relates to the application of section 24CA. It would clarify, for the avoidance of doubt, that new subsection 24CA(1) would not be limited by new subsections 24CA(2) or (3), meaning that Presiding Officers and Leaders of Parliamentary parties would also have the referral power available to all parliamentarians under new subsection 24CA(1).

364. As discussed in relation to new section 24C above, a member of the public could not make a complaint directly to the IPSC. However, a member of the public could make a complaint to a referrer about conduct they have witnessed, and which affected a Commonwealth parliamentary workplace participant, with a view to the conduct being referred to the IPSC. For example, a member of the public visiting an electorate office may witness one MOPS employee assaulting another MOPS employee, and may make a complaint about that conduct to the relevant employing parliamentarian. That parliamentarian could then refer the conduct to the IPSC for investigation, if they choose.

Section 24CB – Conduct issue referrals by the CEO

365. New section 24CB would provide for conduct issues to be referred to the IPSC by the PWSS CEO or a member of the staff of the PWSS to whom the CEO has delegated the referral power.

366. A conduct issue referral, as defined in section 5 of the PWSS Act as amended by item 19, would mean a referral of a conduct issue to the IPSC under this section, or under new section 24CA (a referral power for parliamentarians, discussed above). Requirements for conduct issue referrals would be set out in new section 24CC.

367. New subsection 24CB(1) would give the PWSS CEO a broad discretion to refer conduct issues to the IPSC. This would, for example, enable the CEO to refer to the IPSC a matter initially directed to the PWSS, which would be more appropriately dealt with by the IPSC. It would also enable the CEO to refer to the IPSC a parliamentarian's non-compliance with mandatory training requirements (which it is anticipated would constitute a breach of the Behaviour Code for Australian Parliamentarians).

368. New subsection 24CB(2) would provide that the CEO must not refer a conduct issue to the IPSC if the issue arises from an anonymous statement. This is consistent with new paragraph 24CC(2)(b), which would require that where a referrer has become aware of a conduct issue because of a complaint made to them, the referral of that complaint to the IPSC must include the name and contact details of the complainant. This approach reflects that there are practical limitations in handling a complaint without an identified complainant, particularly where there is insufficient information to make a reasonable assessment of whether alleged relevant conduct has occurred.

369. New subsection 24CB(3) would provide the CEO with the power to delegate, in writing, the CEO's power to refer conduct issues to the IPSC to a member of the staff of the PWSS who is an SES employee or an acting SES employee, or an APS employee who holds or performs the duties of an Executive Level 2 position or an equivalent position.

370. The purpose of providing the CEO with the ability to delegate the power to refer matters to the IPSC, and to delegate that power below the SES level, is to maintain confidentiality of information. This would minimise the distribution of sensitive information as it would enable specialised case managers to refer matters directly to the IPSC without having to brief senior officers on a potentially sensitive matter proposed for referral, where a delegation exists and where appropriate to do so.

371. While some matters appropriate for referral to the IPSC may be known to, or raised with, the CEO by complainants or others, it is anticipated that some matters appropriate for referral may be identified, in particular, by Executive Level 2 case managers. It is anticipated that the CEO would only delegate their referral power to specific staff who have the appropriate skills, experience or qualifications to refer conduct issues.

372. The note under new subsection 24CB(3) would refer the reader to sections 34AA to 34A of the Acts Interpretation Act, which contain provisions relating to delegations. The referenced provisions relate to delegations to persons holding, occupying or performing the duties of an office or position (section 34AA), the effect of delegation (section 34AB), and the exercise of powers and performance of functions or duties that depend upon the opinion etc. of delegates (section 34A).

373. New subsection 24CB(4) would provide that in exercising a power under a delegation made under new subsection 24CB(3), a delegate must comply with any written directions of the CEO.

Section 24CC – Requirements for referrals

374. New section 24CC would set out the requirements for conduct issue referrals. These requirements would apply to referrals of conduct issues made to the IPSC under new section 24CA or new section 24CB.

375. New subsection 24CC(1) would provide that conduct issue referrals must be made in writing and include details of the conduct issue to which they relate, any evidence relevant to the conduct issue, and the name and contact details of the referrer. These requirements align with those for conduct complaints, which are discussed above in relation to new section 24C. The only point of distinction is that, rather than including a blanket requirement to include a complainant's name and contact details like new subparagraph 24C(4)(b)(iii) (noting there will not always be a complainant for a conduct issue referral), conduct issue referrals would be required to include the name and contact details of the referrer (subparagraph 24CC(1)(b)(iii) refers). New paragraph 24CC(2)(b), which is discussed below, would require that conduct issue referrals for which there is a complainant also include the name and contact details of that complainant.

376. Like the requirement for a conduct complaint to include a complainant's name and contact details, the requirement for a conduct issue referral to include a referrer's name and contact details is necessary to enable the IPSC to engage with the referrer to seek further information if needed, and to update them on the handling of their referral. In addition, this requirement would enable the IPSC to confirm that a referral has been made by a person with the power to refer a conduct issue of the type referred (e.g. by confirming that a referral relating to relevant conduct allegedly engaged in by a MOPS employee has been made by their employing parliamentarian). The identity of a referrer could be protected through the confidentiality regime under Division 6 of Part 2A. Referrers would receive protections against reprisals set out in new Division 8 of Part 2A.

377. New subsection 24CC(2) would require that, in situations where the person referring a conduct issue to the IPSC (the referrer) became aware of the conduct issue being referred because of a complaint that was made to them:

a.

the referral must not be made unless either (i) the complainant consents to the referral, or (ii) the referrer is reasonably satisfied that it is necessary to make the referral to comply with a duty or obligation under a work health and safety law, and

b.

the referral must include the name and contact details of the complainant.

378. Under new paragraph 24CC(2)(a), conduct issue referrals could generally be made only with the consent of the person who made the complaint to the referrer. This would respect the agency of complainants, and their choices and control with respect to reporting of alleged relevant conduct by which they have been affected.

379. However, consent would not be required if a referrer is reasonably satisfied it is necessary to make a referral to comply with a duty or obligation under a work health and safety law (as defined by section 5 of the PWSS Act, as amended by item 24). This recognises that parliamentarians and others in the Commonwealth parliamentary workplace have existing obligations and duties under work health and safety laws that may require them to take action, even without an individual's express consent. Although new subparagraph 24CC(2)(a)(ii) would enable a referrer to make a conduct issue referral to the IPSC without the complainant's consent, the investigating Commissioner may only decide to investigate the conduct issue under section 24CH if they have consent to investigate, or if they are reasonably satisfied that a serious risk to work health and safety does, or could, arise from the conduct concerned. As an exception to that discretion, an investigating Commissioner could not investigate conduct that may constitute assault or sexual assault, where the person does not consent to the investigation (paragraph 24CH(4)(d)). If an investigating Commissioner is not able to investigate a referral because they are not satisfied a serious risk to work health and safety arises, or could arise, the Commissioner must, as soon as reasonably practicable, take reasonable steps to refer the matter to be dealt with by the PWSS under new section 24CI.

380. The requirement in new paragraph 24CC(2)(b) that where a referrer has become aware of a conduct issue because of a complaint made to them, the referral of that conduct issue to the IPSC must include the name and contact details of the complainant, is consistent with the requirement that those details be included in conduct complaints made directly to the IPSC under new subparagraph 24C(4)(b)(iii). Like that subparagraph, this paragraph recognises the seriousness of an IPSC complaint, and is necessary for the IPSC to engage directly with a complainant (if this is appropriate, rather than through a referrer) as further information is needed and to conduct an investigation. The identity of a complainant would be protected through the confidentiality regime and protections against reprisals set out new Divisions 6 and 8 of new Part 2A.

381. New paragraph 24CC(2)(b) is intended to prevent the referral of anonymous complaints (whether fully anonymous, or by a person who does not wish to be identified) to the IPSC. This reflects that there are practical limitations in handling a complaint without an identified complainant, particularly where there is insufficient information to make a reasonable assessment of whether alleged relevant conduct has occurred. New section 24CE would require the Chair Commissioner to refer a conduct issue arising from an anonymous statement to be dealt with by the PWSS, if satisfied the statement was not frivolous, vexatious, misconceived or lacking in substance, and was made in good faith. For example, if an anonymous complaint was made to the IPSC concerning an issue that raised work health and safety matters in relation to a particular individual or workplace (e.g. an electorate office), these issues would be referred to the PWSS, in order for them to give advice in connection with their functions to provide work health and safety advice and support.

382. New subsection 24CC(3) would clarify, for avoidance of doubt, that this Subdivision does not require a person to refer a conduct issue to the IPSC. The power to refer under this Subdivision is discretionary and a parliamentarian or the PWSS CEO is not obligated to make a conduct issue referral even where it is open to them to do so. What is appropriate will depend on the circumstances. For example, if a parliamentarian became aware of a serious allegation of theft of Commonwealth property by one of their MOPS employees, they may decide it is better addressed by reporting the allegation to the police. If a parliamentarian is made aware of a bullying allegation, an IPSC referral would not be needed if the complainant and respondent were participating in a PWSS complaint resolution process. Not all referrals received by the IPSC would be investigated. In accordance with new section 24CF, it would be for the investigating Commissioner for a conduct issue to decide whether to investigate that issue (which would only be possible if the criteria in new section 24CH were met), to refer the issue to another person or body, or to take no action, or no further action, in relation to the issue.

383. Each conduct issue dealt with by the IPSC would relate to a single respondent. Where a conduct issue referral involved multiple respondents, it is anticipated the referral would be dealt with by the IPSC as multiple conduct issues (although the Chair Commissioner may choose to assign the same investigating Commissioner to each of the conduct issues, and the investigating Commissioner may choose to investigate the conduct issues together).

Subdivision B—Dealing with conduct issues

Section 24CD – Assignment of investigating Commissioner

384. New section 24CD would require the Chair Commissioner to assign a Commissioner to deal with each conduct complaint or conduct issue referral received by the IPSC, and would define the term investigating Commissioner. It would also provide for the Chair Commissioner to assign themselves to deal with a conduct issue on their own motion, in certain circumstances.

385. New paragraph 24CD(1)(a) would require the Chair Commissioner to assign a single Commissioner (which could be the Chair Commissioner) to deal with conduct issues arising from conduct complaints or conduct issue referrals. While there would not be a legislative timeframe within which assignment of a Commissioner to deal with a conduct complaint or conduct issue referral would be required, it is expected that the Chair Commissioner would assign matters as expeditiously as possible.

386. Under section 16 of the PGPA Rule, an official of a Commonwealth entity who is not the accountable authority, or a member of the accountable authority, and has a material personal interest that relates to the affairs of the entity, must disclose that interest in accordance with any instructions given by the accountable authority of the entity. It is anticipated that the PWSS CEO, as the accountable authority for the listed entity comprising the PWSS and the IPSC, which will be known as the Parliamentary Workplace Support Service, will issue instructions requiring that Commissioners disclose any relevant material personal interests to the Chair Commissioner. This will ensure the Chair Commissioner is aware of factors that may give rise to a real or perceived conflict of interest should the disclosing Commissioner be assigned to investigate a given conduct issue.

387. New paragraph 24CD(1)(b) would provide an own-motion power for the Chair Commissioner, by providing them with a discretion to assign themselves to deal with a conduct issue of which they have become aware through any means other than a conduct complaint or a conduct issue referral. Like conduct issues arising from conduct complaints and conduct issue referrals, conduct issues of which the Chair Commissioner becomes aware in other ways could be investigated only if they met the criteria for investigation set out in new section 24CH, including that they be satisfied there is sufficient evidence or information to justify the investigation. Conduct issues that have not arisen from conduct complaints or conduct issue referrals could only be investigated by the Chair Commissioner.

388. The own-motion power would enable the Chair Commissioner to assign themselves to deal with alleged relevant conduct for which there is no complainant, including for example a parliamentarian's failure to comply with a sanction previously imposed by the IPSC (which it is anticipated would constitute a breach of the Behaviour Code for Australian Parliamentarians).

389. The Chair Commissioner could also use the own-motion power to commence an investigation without requiring a complainant to first make a complaint, such as where there is evidence of a potential breach captured on media.

390. Unlike investigations into conduct issues arising from conduct complaints or conduct issue referrals, investigations commenced through the own-motion power would not require complainant consent. It is however anticipated that if the Chair Commissioner was considering whether to investigate a matter using the own-motion power, they would take into account the views of any person particularly affected by the conduct that they were considering investigating on whether any such investigation should proceed.

391. New paragraph 24CD(1)(b) clarifies that this own-motion power is subject to new section 24CE, which would provide that the Chair Commissioner must not deal with a conduct issue of which they have become aware because of an anonymous statement. Accordingly, the Chair Commissioner could not commence an investigation into a conduct issue on the basis of an anonymous statement. This is consistent with the requirements for conduct complaints, and conduct issue referrals arising from complaints made to the referrer, to include the name and contact details of the complainant (new subparagraph 24C(4)(b)(iii) and new paragraph 24CC(2)(b)).

392. New subsection 24CD(2) would provide that the Commissioner assigned to deal with a conduct issue is the investigating Commissioner for the conduct issue. This would be reflected in a new definition of that term in section 5 of the PWSS Act.

393. New subsection 24CD(3) would provide that the Chair Commissioner has the power to vary or revoke an assignment made under paragraph 24CD(1)(a) at any time.

394. This power would, for example, enable the Chair Commissioner to assign a different Commissioner to investigate a conduct issue if the Chair Commissioner became aware that the Commissioner originally assigned to deal with the conduct issue had a conflict of interest that would make it inappropriate for them to investigate that conduct issue. In some cases it may be necessary for the Chair Commissioner to exercise their power to revoke a Commissioner's appointment as an investigating Commissioner for a particular conduct issue, and to not then appoint another Commissioner to deal with that matter until a short time later (e.g. because the Chair Commissioner needs to ascertain the availability of another Commissioner to deal with the conduct issue).

395. New subsection 24CD(3) would also, for example, enable the Chair Commissioner to assign a different Commissioner to investigate a conduct issue if the Chair Commissioner became aware that a complainant who had made an allegation of sexual harassment had a history of trauma and would be better able to engage with a female Commissioner.

Section 24CE – Conduct issues arising from anonymous statements

396. New section 24CE would stipulate how conduct issues arising from anonymous statements must be dealt with.

397. New subsection 24CE(1) would provide that the Chair Commissioner must not deal with a conduct issue if they became aware of the issue because of an anonymous statement. In accordance with new paragraph 24CD(1)(b), this would have the effect that the Chair Commissioner could not commence an own-motion investigation into a conduct issue on the basis of an anonymous statement or statements.

398. An anonymous statement may be fully anonymous, or be a statement by a person who does not wish to be identified. This reflects that there are practical limitations in handling a complaint without an identified complainant, particularly where there is insufficient information to make a reasonable assessment of whether alleged relevant conduct has occurred. This is consistent with the requirements for conduct complaints, and conduct issue referrals arising from complaints made to the referrer, to include the name and contact details of the complainant (new subparagraph 24C(4)(b)(iii) and new paragraph 24CC(2)(b)).

399. While the Chair Commissioner could not investigate conduct issues arising from an anonymous statement, new subsection 24CE(2) would provide for how the Chair Commissioner must respond to anonymous statements.

400. New paragraph 24CE(2)(a) would require the Chair Commissioner to refer a conduct issue arising from the anonymous statement to be dealt with by the PWSS.

401. This recognises that while there are practical issues in the IPSC investigating anonymous statements under Part 2A of the PWSS Act, as amended by this Bill, such statements may raise genuine issues regarding the Commonwealth parliamentary workplace that should be addressed. Requiring the Chair Commissioner to refer the conduct issue to be dealt with by the PWSS would enable the PWSS to exercise its functions to provide human resources advice, and provide work health and safety advice and support. For example, if an anonymous complaint was made to the IPSC concerning an issue that raised work health and safety matters in relation to a particular individual or workplace (e.g. an electorate office), the Chair Commissioner would be required to refer these issues to the PWSS, which could then give advice in connection with their functions to provide work health and safety advice and support. This would also enable the PWSS to take action, if appropriate, in relation to clusters of anonymous reports.

402. New subparagraphs 24CE(2)(a)(i) and (ii) would clarify that the Chair Commissioner is only required to refer such conduct issues if satisfied that the anonymous statement from which the conduct issue arose is not frivolous, vexatious, misconceived or lacking in substance, and was made in good faith.

403. New paragraph 24CE(2)(b) would further require the Chair Commissioner to take reasonable steps to contact the person who made the anonymous statement, if the contact details of the person are known to the Chair Commissioner, and advise them of the services provided by the PWSS under existing section 15 of the PWSS Act (support function).

404. Although the Chair Commissioner could not investigate a conduct issue arising from an anonymous statement, this provision is intended to ensure that persons making anonymous statements are aware of, and can access, the PWSS's support service. The PWSS support service could provide psychological support to the maker of the statement, as well as support them to make a conduct complaint in the future, if they desired to.

405. This paragraph would only require the Chair Commissioner to advise the person of the PWSS's support services if the contact details of the person are known to them. This recognises that while a person may make a statement on an anonymous basis, they may still be contactable. For example, a person's contact details may be known to the Chair Commissioner if they provide an email address or phone number when making a statement, even if they do not provide a name or are not otherwise identifiable. There would be no requirement for the Chair Commissioner to advise persons who are not contactable, such as persons who called the IPSC on an anonymous basis.

Section 24CF – How conduct issues may be dealt with

406. New section 24CF would provide that an investigating Commissioner must deal with a conduct issue by:

a.

investigating the issue (noting this would be possible only if the criteria in new section 24CH were met),

b.

referring the issue to another person or body under new section 24CI (decision not to investigate – referral to PWSS), new section 24CJ (decision not to investigate – referral to Agency Head etc.), or new section 24CK (decision not to investigate – referral under another law), or

c.

taking no action, or no further action, in relation to the issue.

407. The referral provisions referenced in new paragraph 24CF(b) are discussed further below.

Section 24CG – Preliminary inquiries

408. New section 24CG would enable the investigating Commissioner for a conduct issue to make preliminary inquiries to assist them to determine how to deal with the conduct issue.

409. Other investigative agencies, including the Commonwealth Ombudsman, and the AHRC, also have powers to conduct preliminary inquiries (section 7A of the Ombudsman Act 1976 (Ombudsman Act) and section 46PF of the AHRC Act refer).

410. New subsection 24CG(1) would allow an investigating Commissioner to make any preliminary inquiries, of any person, that the Commissioner considers necessary for the purposes of determining how to deal with a conduct issue.

411. The purpose of new subsection 24CG(1) would be to provide an investigating Commissioner with the ability to confirm the nature of the conduct issue that has been raised and whether they have authority to investigate the allegation, including whether the Commissioner can be satisfied that the threshold for an investigation is met.

412. Preliminary inquiries may, for example, assist an investigating Commissioner to determine, through preliminary inquiries made of a Presiding Officer, whether a conduct issue concerns conduct that is subject to parliamentary privilege and is therefore unable to be investigated by the IPSC.

413. Additionally, preliminary inquiries could assist an investigating Commissioner to decide whether to exercise their discretion to not investigate a conduct issue. For example, where a conduct issue raises conduct that has also been referred to police, an investigating Commissioner may use the preliminary inquiries power to confirm whether an IPSC investigation would interfere with any police investigation and therefore should not be commenced.

414. The preliminary inquiries power would also enable an investigating Commissioner to ascertain whether a body to which the Commissioner is considering referring a conduct issue would investigate the issue if referred. This would help avoid circumstances where conduct issues are referred on by the IPSC, but not then investigated by the body to which they have been referred. The preliminary inquiries power would also enable an investigating Commissioner to confirm whether a complainant would consent to referral of a conduct issue, as relevant (e.g. to the PWSS).

415. New subsection 24CG(2) would provide that new section 24CG does not limit the information, documents or things to which an investigating Commissioner may have regard in making a decision about how to deal with a conduct issue.

416. An investigating Commissioner would be able exercise any of their general investigation powers during preliminary inquiries, including their compulsory information gathering powers. New section 24F would provide that if the investigating Commissioner for a conduct issue has reasonable grounds to believe a person has information, a document or a thing that is relevant to a preliminary inquiry in relation to the conduct issue, the investigating Commissioner may, by written notice, require the person to give the information, document or thing to, or to attend an interview with, the investigating Commissioner. This is discussed further in relation to new section 24F, below.

Section 24CH – When conduct issue may or may not be investigated

417. New section 24CH would set out when the investigating Commissioner for a conduct issue may decide to commence an investigation into the issue, when they must decide not to investigate a conduct issue (or not to investigate it further), and when they may decide not to investigate a conduct issue (or not to investigate it further).

418. New subsection 24CH(1) sets out the threshold criteria for an investigating Commissioner to commence an investigation. The investigating Commissioner has discretion to commence an investigation only if:

a.

the Commissioner is satisfied on reasonable grounds that there is sufficient evidence or information to justify doing so, and

b.

if the issue arose from a conduct complaint or conduct issue referral, the Commissioner has consent to investigate the issue, or is reasonably satisfied that a serious risk to work health and safety arises, or could arise, from the conduct concerned.

419. As the IPSC would not be a court, the law of evidence would not apply. The term 'evidence' in new paragraph 24CH(1)(a) is intended to take its ordinary meaning.

420. New paragraph 24CH(1)(b) would have the effect that an investigating Commissioner would only be able to investigate a conduct issue with consent (as defined in new subsection 24CH(2)), or where the Commissioner is reasonably satisfied that a serious risk to work health and safety arises, or could arise, from the conduct concerned. This recognises there are practical limitations with investigating a matter without a complainant's consent, and a Commissioner is well placed to assess whether an investigation is warranted.

421. The term 'serious risk' in new subparagraph 24CH(1)(b)(ii) is intended to take its ordinary meaning. Generally, a risk would be considered serious where timely action is required to address that risk or where significant consequences could eventuate. For example, a serious risk to work health or safety may arise where a complainant alleges that a respondent who they work closely with has engaged in sexual harassment directed at them.

422. Not all conduct from which a risk to work health and safety arises, or could arise, could be considered 'serious' and therefore satisfy the threshold for investigation without consent in new subparagraph 24CH(1)(b)(ii). For example, where an allegation of bullying relates to the withholding of information and exclusion, the conduct may not, depending on the facts, constitute a 'serious' risk.

423. This subparagraph would also require the investigating Commissioner to be satisfied that there is a current, or future, risk to work health and safety arising from the conduct concerned. For example, if the employment of a respondent had been terminated prior to the Commissioner's decision to investigate under this section, that Commissioner could not be satisfied that there is a current, or future, risk to work health and safety as that person is no longer in the workplace.

424. Accordingly, there are intended to be limited circumstances in which an investigating Commissioner could decide to investigate a conduct issue without complainant consent. This approach balances the need to uphold and respect victim-survivor agency, with the legislative duty to ensure a safe workplace, which will sometimes require action by duty holders in the absence of complainant consent.

425. New subsection 24CH(2) sets out when an investigating Commissioner would have consent to investigate a conduct issue. Generally, this would be where a complainant has made a conduct complaint or consented to a conduct issue referral, and not withdrawn their consent. An investigating Commissioner would also be taken to have consent to investigate where a conduct issue referral was made to the IPSC for which there is no complainant. This may be the case, for example, where the PWSS CEO has referred a parliamentarian's non-compliance with mandatory training requirements to the IPSC for investigation (noting paragraph 18 of the Behaviour Code for Australian Parliamentarians requires parliamentarians to comply with all workplace policies).

426. New subsection 24CH(3) would provide that before deciding whether to investigate a conduct issue, the investigating Commissioner may consult with any person affected by the conduct concerned as the Commissioner considers appropriate. This could, for example, cover a person who witnessed the alleged relevant conduct to which the conduct issue relates, or a person who was the subject of the alleged relevant conduct (whether they are the complainant or not). This provision is intended to complement new section 24CG which authorises an investigating Commissioner to make any preliminary inquiries of any person that they consider necessary to determine how to deal with a conduct issue.

427. New subsection 24CH(4) sets out a limited number of grounds on which the investigating Commissioner must decide not to investigate a conduct issue, or (if an investigation has started) not to investigate a conduct issue further. The grounds serve to limit the application of the IPSC's investigation function.

428. New paragraph 24CH(4)(a) would provide that the investigating Commissioner must not investigate a conduct issue, or investigate it further, if the issue arose from a conduct complaint or conduct issue referral, and at the time of the conduct concerned, both the complainant and respondent were non-core participants, as defined in section 5 of the PWSS Act. For example, if the conduct issue involved two members of the press gallery, the IPSC could not commence an investigation. New section 24CI (discussed further below) would however require the investigating Commissioner to refer a matter of this type to the PWSS, unless the complainant (if any) did not consent to the referral. It is also anticipated an investigating Commissioner could, where appropriate, suggest a complainant direct their complaint to the respondent's employer (if any).

429. New paragraph 24CH(4)(b) would provide that the investigating Commissioner must not investigate a conduct issue, or investigate it further, if, at the time of the conduct concerned, the respondent was an APS employee (and not a MOPS employee), a Parliamentary Service employee, an Agency Head, the Secretary of a Parliamentary Department, the Parliamentary Librarian, or an AFP appointee.

430. The categories of officials who cannot be investigated by the IPSC recognises that these individuals are already subject to specific statutory codes of conduct and investigation mechanisms, and that their conduct should be investigated under those mechanisms. In recognition of this, new section 24CJ (discussed further below) would require that the investigating Commissioner refer a matter of this type to be dealt with by the appropriate authority (e.g. if the respondent is an APS employee of an Agency, new section 24CJ would require that the conduct issue be referred to the Agency Head of that Agency), unless the complainant (if any) did not consent to the referral.

431. The reference in new subparagraph 24CH(4)(b)(i) to 'an APS employee who is not a MOPS employee' is intended to clarify that the IPSC should not investigate conduct engaged in by a person who is working as an APS employee (e.g. an APS employee who is working as a Departmental Liaison Officer at Australian Parliament House).

432. Parliamentary Service employees, who would be covered by new subparagraph 24CH(4)(b)(ii), are subject to the Parliamentary Service Code of Conduct, which is set out in the Parliamentary Service Act, and could not be investigated by the IPSC

433. The reference in new subparagraph 24CH(4)(b)(iii) to Agency Heads would have the effect that an Agency Head, within the meaning of the Public Service Act, could not be investigated by the IPSC.

434. The reference in new subparagraph 24CH(4)(b)(iv) to the Secretary of a Parliamentary Department would have the effect that, a Secretary of a Parliamentary Department within the meaning of the Parliamentary Service Act, could not be investigated by the IPSC.

435. The Parliamentary Librarian, referred to in new subparagraph 24CH(4)(b)(v), could not be investigated by the IPSC. The Parliamentary Librarian is subject to the Parliamentary Service Code of Conduct in the Parliamentary Service Act.

436. AFP appointees, referred to in new subparagraph 24CH(4)(b)(vi), could not be investigated by the IPSC as they are subject to the AFP Code of Conduct, which is set out in an AFP Commissioner's Order, made under the AFP Act.

437. New paragraph 24CH(4)(c) would provide that the investigating Commissioner must not investigate a conduct issue, or investigate it further, if the conduct concerned forms part of proceedings in Parliament for the purposes of section 16 of the Parliamentary Privileges Act. It is intended that conduct of that kind would be dealt with by the relevant Houses of the Parliament in accordance with their procedures. The investigating Commissioners would be able to confer with a Presiding Officer (or a person authorised by a Presiding Officer, such as a Clerk) on the question of whether parliamentary privilege is engaged.

438. New paragraph 24CH(4)(d) would provide that the investigating Commissioner must not investigate a conduct issue, or investigate it further, if the conduct concerned may constitute a serious offence against a person and the person does not consent to the investigation. The term serious offence would be defined in section 5 of the PWSS Act to mean an offence against a law of the Commonwealth, a State or a Territory involving assault or sexual assault, or any other offence prescribed by the PWSS rules. As conduct complaints could be made by persons affected by conduct (who might not have been the primary targets of that conduct e.g. persons who have witnessed an assault) and conduct issue referrals may be made by those individuals with referral powers as set out in new sections 24CA and 24CB, this paragraph would ensure, for example, that a Commissioner could only investigate the alleged assault of an individual if that person consented to the investigation.

439. New subsection 24CH(5) sets out a number of grounds on which the investigating Commissioner would have discretion not to investigate a conduct issue, or (if an investigation has started) not to investigate a conduct issue further.

440. New paragraph 24CH(5)(a) would provide that the investigating Commissioner may decide not to investigate a conduct issue, or not to investigate it further, if the conduct issue arose from a conduct complaint or conduct issue referral, and the Commissioner is satisfied that the complaint or referral is frivolous, vexatious, misconceived or lacking in substance or was not made in good faith.

441. This new paragraph would be similar to paragraph 6(1)(b)(i) of the Ombudsman Act. It would also align with the strong position taken against vexatious complaints, and complaints made in bad faith, in the Behaviour Codes endorsed on an interim basis by both Houses of the Parliament in February 2023. Those Codes warn that a vexatious complaint or a complaint made in bad faith may itself be a breach and may be subject to sanctions.

442. New paragraph 24CH(5)(b) would enable an investigating Commissioner to decide not to investigate a conduct issue, or not to investigate it further, if the issue arose from a conduct complaint or conduct issue referral and the Commissioner did not have consent to investigate the issue, provided the Commissioner is satisfied that it is unreasonable to continue the investigation, taking into account the progress of the investigation and fairness between the persons affected by the investigation.

443. This paragraph would apply in cases where a Commissioner has commenced an investigation where they have consent to investigate the issue under subparagraph 24CH(1)(b)(i), and a complainant subsequently withdraws their consent to the investigation.

444. The requirement that the Commissioner be satisfied that it is unreasonable to continue an investigation, taking into account certain matters, if they are to decide not to further investigate a conduct issue under new paragraph 24CH(5)(b), is intended to protect the fairness of IPSC investigations. For example, if a complainant was aware their complaint was unlikely to be upheld when a draft report is prepared and subsequently withdraws their consent, the Commissioner could decide to continue the investigation out of fairness to the respondent.

445. New subparagraph 24CH(5)(c)(i) would provide the investigating Commissioner with a discretion not to investigate, or not to further investigate, a conduct issue if the conduct concerned would be more appropriately dealt with through the PWSS's complaint resolution function, or under another law of the Commonwealth or a State or Territory.

446. Insofar as new subparagraph 24CH(5)(c)(i) relates to matters that would be more appropriately dealt with through the PWSS complaint resolution function, it is intended to allow for complaints to be de-escalated, and resolved more informally and expeditiously through the PWSS.

447. Insofar as new subparagraph 24CH(5)(c)(i) relates to matters that would be more appropriately dealt with under another law of the Commonwealth or a State or Territory, it is intended to provide for an investigating Commissioner to decide not to investigate a conduct issue if the conduct concerned would be more appropriately investigated by another specialised body. For example, it is intended allegations of systemic or serious corruption should be investigated by the NACC, or allegations of serious fraud should be investigated by the police. This provision would be similar to paragraph 46PH(1)(g) of the AHRC Act, which allows the President of the AHRC to terminate a complaint if satisfied the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.

448. If an investigating Commissioner decided not to investigate a conduct issue, or not to investigate it further, under new subparagraph 24CH(5)(c)(i), the Commissioner would, subject to the consent of the complainant (if any), be required to take reasonable steps to (i) refer the conduct issue to the PWSS (for matters more appropriately dealt with through the PWSS complaint resolution function), or (ii) to be dealt with under the other law (for matters more appropriately dealt with under another law of the Commonwealth or a State or Territory). This is discussed further below in relation to new sections 24CI and 24CK.

449. New subparagraph 24CH(5)(c)(ii) would provide the investigating Commissioner with discretion not to investigate, or not to further investigate, a conduct issue if the conduct concerned is being dealt with through the PWSS complaint resolution function. This is intended to avoid a conduct issue being investigated at the same time the PWSS is working to resolve a complaint.

450. New subparagraph 24CH(5)(c)(iii) would provide the investigating Commissioner with discretion not to investigate, or not to further investigate, a conduct issue if the conduct concerned is being dealt with under another law of the Commonwealth or a State or Territory, and it would be inappropriate to conduct an investigation under the PWSS Act at the same time. New subparagraph 24CH(5)(c)(iii) is intended to enable an investigating Commissioner to avoid adversely affecting an investigation that is already on foot by commencing, or continuing, an investigation under the PWSS Act.

451. New subparagraph 24CH(5)(c)(iv) would provide the investigating Commissioner with a discretion not to investigate, or not to further investigate, a conduct issue if the conduct concerned has already been dealt with under Part 2A of the PWSS Act (that is, if the conduct concerned has already been dealt with by the IPSC) or under another law of the Commonwealth or a State or Territory, and there are no further matters concerning the conduct that warrant investigation. This provision would be similar to paragraph 46PH(1)(f) of the AHRC Act, and is intended to ensure IPSC resources are not used on matters that have already been appropriately investigated and resolved.

452. New paragraph 24CH(5)(d) would provide the investigating Commissioner with a discretion not to investigate, or not to further investigate, a conduct issue if the conduct concerned is, or has been, the subject of criminal or civil proceedings (including any preliminary investigations or action that might lead to criminal or civil proceedings). This is intended to prevent IPSC investigations from adversely affecting any criminal or civil proceedings that may be underway, and to ensure IPSC resources are not used on matters that have already been dealt with, or are being dealt with, through the courts.

453. New paragraph 24CH(5)(e) would provide the investigating Commissioner with a discretion not to investigate, or not to further investigate, a conduct issue if the respondent is a non-core participant (for example, a journalist employed by a media organisation), and the Commissioner is satisfied that the issue would be more appropriately dealt with by the respondent's employer. As discussed above, an investigating Commissioner would be required not to investigate a conduct issue if, at the time of the conduct concerned, both the complainant and the respondent were non-core participants (new paragraph 24CH(4)(a) refers).

454. New paragraph 24CH(5)(f) would provide the investigating Commissioner with a discretion not to investigate, or not to further investigate, a conduct issue if the Commissioner is satisfied it is inappropriate or impracticable for the issue to be investigated for any other reason. This is intended to provide an investigating Commissioner with discretion not to investigate where an investigation is not warranted or is not appropriate, taking into account the particular facts of the case. For example, while there would not be a statutory limitation period for complaints made to the IPSC, an investigating Commissioner may decide not to investigate a complaint because the passage of time means that evidence or individuals able to assist with the investigation would no longer be available, or because all relevant participants had left the Commonwealth parliamentary workplace and an investigation into the alleged relevant conduct could result in limited sanctions. An investigating Commissioner may also decide not to investigate a complaint that creates a serious risk to work health and safety (discussed at new subparagraph 24CH(1)(b)(ii), if satisfied that the risk could be more appropriately addressed with other actions, such as management action.

Section 24CI – Decision not to investigate—referral to PWSS

455. New subsection 24CI(1), when read with new subsection 24CI(3), would require the investigating Commissioner to refer a conduct issue to the PWSS as soon as reasonably practicable if the Commissioner decides not to investigate the conduct issue, or not to investigate the conduct issue further, because:

a.

the issue arose from a conduct complaint or conduct issue referral and at the time of the conduct concerned, both the complainant and respondent were non-core participants as defined in section 5 of the PWSS Act (and the complaint therefore cannot be investigated by the IPSC by virtue of new subsection 24CH(4)(a)), or

b.

the Commissioner is satisfied the conduct concerned would be more appropriately dealt with through the PWSS's complaint resolution service under section 16 of the PWSS Act.

456. New subsection 24CI(2), when read with new subsection 24CI(3), would also require the investigating Commissioner to refer a conduct issue to the PWSS, if the Commissioner decides not to investigate the conduct issue because:

a.

the issue arose from a conduct issue referral for which there is a complainant, and

b.

the Commissioner does not have consent to investigate the issue (within the meaning of new subsection 24CH(2)), and

c.

the Commissioner is not satisfied a serious risk to work health and safety arises, or could arise, from the conduct concerned (as required by new subparagraph 24CH(1)(b)(ii)).

457. New subsection 24CI(2) would enable the PWSS to take action through its support or other functions in circumstances where a conduct issue referral is made to the IPSC to comply with a duty or obligation under a work health and safety law (in accordance with new subparagraph 24CC(2)(a)(ii)), but the IPSC is not able to investigate as the threshold to investigate a conduct issue without complainant consent under subparagraph 24CH(1)(b)(ii) is not met. This would enable the PWSS, as part of its work health and safety functions, to provide advice to a referring parliamentarian on other actions that could be taken to comply with their work health and safety duties and obligations or otherwise address the conduct that gave rise to the referral.

458. New subsection 24CI(4) would create an exception to these referral requirements, to the effect that the investigating Commissioner must not refer the conduct issue to the PWSS unless a complainant has consented to the referral (if the conduct issue arose from a conduct complaint or a conduct issue referral for which there is a complainant).

Section 24CJ – Decision not to investigate—referral to Agency Head etc.

459. New section 24CJ would require an investigating Commissioner to refer a conduct issue to be dealt with by an Agency Head or other relevant authorities in certain circumstances.

460. New subsections 24CJ(1) and (2) would require that, where an investigating Commissioner decides not to investigate a conduct issue, or not to investigate it further, because, at the time of the conduct concerned, the respondent was an APS employee who is not a MOPS employee, a Parliamentary Service employee, an Agency Head, the Secretary of a Parliamentary Department, the Parliamentary Librarian, or an AFP appointee, the Commissioner must, as soon as reasonably practicable, take reasonable steps to refer the conduct issue to be dealt with by the appropriate authority, as set out in new subsection 24CJ(2). For example, if the respondent for a conduct issue was, at the time of the conduct concerned, a Departmental Liaison Officer and an APS employee of an Agency, new paragraph 24CJ(2)(a) would require that the conduct issue be referred to the Agency Head of that Agency.

461. This provision recognises that individuals in the categories outlined above are already subject to specific statutory codes of conduct (being the APS Code of Conduct, the Parliamentary Service Code of Conduct, and the AFP Code of Conduct) and associated investigation mechanisms, and their conduct is more appropriately investigated through these mechanisms. This provision complements new paragraph 24CH(4)(b), which provides that an investigating Commissioner must not investigate a conduct issue, or investigate it further, if, at the time of the conduct concerned, the respondent was an APS employee who is not a MOPS employee, a Parliamentary Service employee, an Agency Head, the Secretary of a Parliamentary Department, the Parliamentary Librarian, or an AFP appointee. The persons who would fall into these categories are discussed in more detail above, in relation to new subparagraph 24CH(4)(b).

462. If a MOPS employee engages in relevant conduct in their capacity as a MOPS employee, and subsequently becomes an APS employee, the investigating Commissioner could investigate the conduct and would not be obliged to refer a complaint about that conduct to the individual's APS employer for investigation.

463. New subsection 24CJ(3) would create an exception to the referral requirement, to the effect that an investigating Commissioner must not refer the conduct issue to the specified person, unless the complainant consents to the referral (if the conduct issue arose from a conduct complaint or a conduct issue referral for which there is a complainant).

Section 24CK – Decision not to investigate—referral under another law

464. New section 24CK would require an investigating Commissioner to refer a conduct issue to be dealt with under another law of the Commonwealth or a State or Territory in certain circumstances.

465. New subsections 24CK(1) and (2) would require that, where:

a.

an investigating Commissioner decides not to investigate a conduct issue, or not to investigate it further, because it would be more appropriately dealt with under another law of the Commonwealth or a State or Territory, and

b.

new section 24CJ (decision not to investigate–referral to Agency Head etc.) does not apply, then

c.

the Commissioner must, as soon as reasonably practicable, take reasonable steps to refer the conduct issue to be dealt with under the other law.

466. New subsection 24CK(3) would provide that where the conduct concerned may constitute a serious offence against a person, the investigating Commissioner must not refer a conduct issue under this section to the AFP or the police force or police service of a State or Territory unless:

a.

the person against whom the conduct may constitute a serious offence consents to the referral, or

b.

the investigating Commissioner is required to refer the matter to the police by or under a law of the Commonwealth, a State or a Territory, or a court/tribunal order (this may, for example, be the case where alleged conduct would constitute child sexual abuse).

467. The term serious offence would be defined in section 5 of the PWSS Act to mean an offence against a law of the Commonwealth, a State or a Territory involving assault or sexual assault, or any other offence prescribed by the PWSS rules. The requirement for referrals to police of complaints of this type to proceed only with complainant consent, or where required by law, is consistent with recommendation 1 of the Senate Legal and Constitutional Affairs References Committee's Report on current and proposed sexual consent laws in Australia, that in all responses to sexual violence, governments and non-government organisations ensure that the agency of victim-survivors is paramount, actively respected and upheld.

468. Referrals made under new section 24CK to entities other than police, and referrals made to police about conduct that would not constitute a serious offence, would be required to be made where the criteria in new subsections 24CK(1) and (2) are met. While a complainant could be informed of the intended referral of their matter to another entity, their consent (or lack of consent) to the referral would not affect an investigating Commissioner's obligation to refer a matter.

469. For example, if a conduct issue related to potential systemic or serious corruption within the jurisdiction of the NACC, and the investigating Commissioner decided not to investigate the issue on the basis it would be more appropriately dealt under the NACC Act, new section 24CK would require that the Commissioner take reasonable steps to refer the conduct issue to the NACC, irrespective of whether the complainant (if any) consented to the referral.

470. New subsection 24BB(2), discussed above, would require that guidance developed and published by the IPSC must include information about the importance of early reporting to the police of relevant conduct (as defined in section 5 of the PWSS Act) that may constitute an offence, and the consequences of failing to report early on future investigations and prosecutions of such conduct.

Section 24CL – Notice of decision about investigating conduct issue

471. New section 24CL would require the investigating Commissioner to take reasonable steps to give written notice to certain persons of a decision to investigate, or not to investigate, a conduct issue.

472. New subsection 24CL(1) would provide that the investigating Commissioner must take reasonable steps to give written notice of a decision to investigate a conduct issue to the respondent, the respondent's employer (if any of the criteria set out in new paragraph 24CL(1)(b) apply), the complainant (if the conduct issue arose from a conduct complaint or conduct issue referral for which there is a complainant), and the referrer (if the conduct issue arose from a conduct issue referral).

473. New subsection 24CL(2) would provide that such a notice must set out the reasons for the decision, details of the conduct issue concerned and the effect of new section 24CP. That section applies only if the respondent is a senator or a member of the House of Representatives, or if the respondent is a MOPS employee. New section 24CP would require these respondents to cooperate with any person performing functions or exercising powers under the PWSS Act in relation to the investigation, and notes that a failure to cooperate may constitute a breach of a Behaviour Code.

474. Further, new paragraph 24CL(2)(d) would require that notices given to a complainant or a respondent also set out information about the PWSS's support service, as provided under section 15 of the PWSS Act. This is intended to ensure that complainants and respondents are aware of, and can access, the PWSS's support services throughout an IPSC investigation.

475. New subsection 24CL(3) would provide that the investigating Commissioner must take reasonable steps to give written notice of a decision not to investigate a conduct issue, or not to investigate a conduct issue further, to the respondent (if the investigating Commissioner has previously made the respondent aware of a matter relating to the issue, whether by giving a notice under the PWSS Act or otherwise), any other person to whom the Commissioner has previously given a notice under the PWSS Act in relation to the issue, the complainant (if the conduct issue arose from a conduct complaint or conduct issue referral for which there is a complainant), and the referrer (if the conduct issue arose from a conduct issue referral).

476. New subsection 24CL(4) would provide that a notice under subsection 24CL(3) must set out the reasons for the decision.

Section 24CM – Notice of amended complaint

477. New section 24CM would provide that if a conduct issue has arisen from a conduct complaint, and the complainant amends the complaint after the investigating Commissioner has given notice of a decision to investigate the conduct issue to the respondent, the investigating Commissioner must, as soon as practicable, give written notice of the amended complaint to the respondent.

478. It is intended that a complaint would be taken to have been amended if a complainant alters or adds to the substance of the alleged relevant conduct to which a conduct issue relates. It is not intended that a complaint would be considered to have been amended where, for example, further evidence is provided to substantiate alleged relevant conduct, or where minor details of a complaint are clarified.

Subdivision C—Investigating conduct issues

Section 24CN – Application of Subdivision

479. New section 24CN would provide that Subdivision C applies if the investigating Commissioner decides to investigate a conduct issue.

Section 24CO – Conduct of investigations

480. New section 24CO would provide the framework for how investigations are conducted under this Subdivision.

481. New subsection 24CO(1) would provide that an investigating Commissioner has discretion to investigate a conduct issue in such a manner as they think fit.

482. New paragraph 24CO(2)(a) would require the investigating Commissioner to complete an investigation as quickly as is possible while meeting the requirements of the PWSS Act, and affording the conduct issue proper consideration. This is intended to promote the interests of all persons involved in, and affected by, conduct issues under investigation. It is similar to the requirement, set out in section 62 of the Australian Public Service Commissioner's Directions 2022, that the process for determining whether an APS employee has breached the APS Code of Conduct be carried out with 'as much expedition as a proper consideration of the matter allows'. It is also similar to the requirement, set out in paragraph 46PF(10)(a) of the AHRC Act, that the President of the AHRC, having regard to certain matters including the nature of a complaint, 'act expeditiously in dealing with the complaint'.

483. New paragraph 24CO(2)(b) would require the investigating Commissioner to observe the requirements of procedural fairness when conducting an investigation. This is consistent with other statutory investigation schemes. Paragraph 15(4)(b) of the Public Service Act, for example, requires that the procedures established by Agency Heads for determining whether an employee has breached the APS Code of Conduct have due regard to procedural fairness.

484. New subsection 24CO(3) would provide that conduct issues may be investigated together. The discretion to investigate conduct issues together would sit with the relevant investigating Commissioner or Commissioners. It is anticipated conduct issues may be investigated together where, for example, they have arisen from a single conduct complaint involving multiple respondents. As each conduct issue dealt with by the IPSC would relate to a single respondent, a conduct complaint involving multiple respondents would be dealt with as multiple conduct issues. These could be investigated together, if the investigating Commissioner or Commissioners choose to do so.

Section 24CP – Requirement to cooperate

485. New section 24CP would require respondents who are current senators or members of the House of Representatives, or who are current MOPS employees, to cooperate with any person who is performing functions or exercising powers under the PWSS Act in relation to the investigation of that respondent.

486. The note under new section 24CP would indicate that failure to comply with this section may constitute a breach of a Behaviour Code. This reflects that the Behaviour Code for Australian Parliamentarians and the Behaviour Code for Parliamentarians' Staff, as endorsed by the both Houses of the Parliament in February 2023, each require that parliamentarians or MOPS employees (as applicable) 'cooperate with investigations'.

Section 24CQ – Commissioner may recommend suspension for non-parliamentarians during investigation

487. New section 24CQ would enable the investigating Commissioner to recommend to a respondent's employer, in certain circumstances, that a respondent who is not a parliamentarian be suspended from their duties while their alleged relevant conduct is investigated.

488. New subsection 24CQ(1) would provide that this section would only apply to respondents who are not parliamentarians.

489. New subsection 24CQ(2) would provide that the investigating Commissioner may recommend to a respondent's employer that the respondent be suspended from duties. An investigating Commissioner could make a recommendation under this section at any point during the course of an investigation. This is intended to provide a temporary measure to address work health and safety risks that may arise from an individual remaining in a Commonwealth parliamentary workplace where they may present an ongoing risk.

490. New subsection 24CQ(2) would provide that if the investigating Commissioner is reasonably satisfied a respondent's employer should suspend the respondent from duties to comply with a duty or obligation under a work health and safety law (as defined in section 5 of the PWSS Act, as amended by item 24), then the investigating Commissioner may recommend that the respondent's employer suspend the respondent for a specified period of no longer than 30 days. For example, the investigating Commissioner may recommend the employing parliamentarian suspend a MOPS employee respondent under this subsection, as the employing parliamentarian is responsible, as an officer, for ensuring the Commonwealth complies with its primary duty under the WHS Act.

491. It is intended that an investigating Commissioner could make a recommendation under new section 24CQ in relation to a respondent on more than one occasion. The 30 day limit on the specified period for any given recommended suspension would require the investigating Commissioner to reassess whether they continue to be reasonably satisfied that it is necessary for the employee to be suspended for their employer to comply with a duty or obligation under a work health and safety law and, if they are so satisfied, to make a fresh recommendation to the respondent's employer.

492. New paragraph 24CQ(3)(a) would require the investigating Commissioner to consult the respondent's employer in determining whether to recommend the respondent be suspended, if a recommendation has previously been made in relation to the respondent. For example, this paragraph would apply where the respondent was suspended following an initial recommendation, but the suspension period is due to end and the investigating Commissioner is determining whether a further suspension recommendation should be made.

493. New paragraph 24CQ(3)(b) would require the investigating Commissioner to consult the respondent's employer in determining the period for which the Commissioner recommends the respondent be suspended.

494. In relation to respondents who are MOPS employees, the maximum recommended suspension period of 30 days (per individual recommendation made by an investigating Commissioner under this section), would align with the initial 30 days for which an employing parliamentarian may suspend a MOPS employee under section 18 of the MOPS Act, if the parliamentarian considers it appropriate to do so. Employing parliamentarians are able to suspend MOPS employees again, consecutively, provided the criteria for suspension are met, and each individual suspension period does not exceed 30 days.

495. It is intended that it would be for a respondent's employer, rather than the investigating Commissioner, to assess whether a suspension recommended by the Commissioner should be with or without pay. For MOPS employees, the MOPS Act requires that suspension be with pay unless the employing parliamentarian is satisfied that exceptional circumstances exist to justify suspension without pay. Before deciding to suspend without pay, the employing parliamentarian must consult the PWSS about whether exceptional circumstances exist.

496. If the investigating Commissioner recommends that a MOPS employee be suspended, it is anticipated that a failure by their employing parliamentarian to then suspend the employee could itself be relevant conduct, which could be subject to investigation and sanction by the IPSC. This is because it is anticipated that the Behaviour Code for Australian Parliamentarians will require that parliamentarians implement recommendations of the IPSC in relation to staff misconduct.

497. Where the investigating Commissioner recommends to a respondent's employer, under this section, that a respondent who is not a MOPS employee be suspended from duties, neither the Commissioner nor the IPSC would have direct power to enforce the recommendation. However, the failure of an employer to implement a recommendation may constitute a breach of their work health and safety obligations. In addition, it may be open to the Presiding Officers to restrict or remove the respondent's access to the Parliamentary precincts, either permanently or for a specified period.

Subdivision D—Report of investigation into conduct issue

Section 24CR – Application of Subdivision

498. New section 24CR would provide that Subdivision D applies after an investigation into a conduct issue has been completed.

Section 24CS – Parliamentarian decision panel

499. New section 24CS relates to the establishment and composition of a parliamentarian decision panel. For respondents who are current or former parliamentarians, a panel formed under this section would ultimately decide whether the respondent engaged in relevant conduct and whether to impose a sanction on the respondent and, where the respondent is a current parliamentarian, whether to make a referral to the Privileges Committee of the relevant House of a serious breach finding.

500. New subsection 24CS(1) would require that, following an investigation into a conduct issue for which the respondent is a current or former parliamentarian, the Chair must, as soon as practicable, constitute a parliamentarian decision panel for the conduct issue.

501. New subsection 24CS(2) would provide that the parliamentarian decision panel for a conduct issue must comprise the investigating Commissioner for that issue and two other Commissioners. The Chair would have discretion to allocate whichever two other Commissioners they see fit to the panel.

502. Under section 16 of the PGPA Rule, an official of a Commonwealth entity who is not the accountable authority, or a member of the accountable authority, and has a material personal interest that relates to the affairs of the entity, must disclose that interest in accordance with any instructions given by the accountable authority of the entity. It is anticipated that the PWSS CEO, as the accountable authority for the listed entity comprising the PWSS and the IPSC, which will be known as the Parliamentary Workplace Support Service, will issue instructions requiring that Commissioners disclose any relevant material personal interests to the Chair Commissioner. This will ensure the Chair is aware of factors that may give rise to a real or perceived conflict of interest should a particular Commissioner be allocated to form part of a parliamentarian decision panel for a particular matter.

503. New subsection 24CS(3) would provide that the Chair may reconstitute the parliamentarian decision panel at any time.

504. This power would, for example, enable the Chair Commissioner to reconstitute a parliamentarian decision panel if, for example, a Commissioner on the panel were to become unavailable for any reason, or were to have a conflict of interest arise.

505. New subsection 24CS(4) would provide that anything done by the parliamentarian decision panel must be agreed to by a majority of the panel's members. As such, decisions of a parliamentarian decision panel would not need to be unanimous, but would need to be agreed by a majority (two) of the Commissioners.

Section 24CT – Draft report on investigation

506. New section 24CT provides for the preparation of a draft report after an investigation into a conduct issue is completed.

507. New subsection 24CT(1) would require that after completing an investigation into a conduct issue, the decision-maker for the conduct issue (as that term is defined in subsection 24CT(2), must prepare a draft report on the investigation.

508. New subsection 24CT(2) outlines the definition of a decision-maker for a conduct issue. Under this subsection, if the respondent is a current or former parliamentarian then the decision-maker is the parliamentarian decision panel formed under new section 24CS for the conduct issue. Otherwise, the decision-maker for a conduct issue is the investigating Commissioner.

509. New subsection 24CT(3) would provide that if the decision-maker is a parliamentarian decision panel:

a.

the investigating Commissioner must provide to the panel relevant evidence and other material gathered during the investigation,

b.

the panel may request the investigating Commissioner to obtain such other evidence or material about the conduct issue as the panel requires, and

c.

the panel must consider the evidence and other material in preparing the draft report.

Section 24CU – Contents of draft report

510. New section 24CU would provide that a draft report prepared by the decision-maker for a conduct issue under new section 24CT must set out:

a.

the decision-maker's preliminary findings on the conduct issue, including whether the respondent has engaged in relevant conduct,

b.

a summary of the evidence and other material on which those preliminary findings are based,

c.

if there is a preliminary finding that the respondent has engaged in relevant conduct – any recommendations that the decision-maker proposes to make in relation to the respondent,

d.

if there is a preliminary finding that the respondent has engaged in relevant conduct and the respondent is a current or former parliamentarian – any sanctions that the decision-maker proposes to impose, and

e.

if there is a preliminary serious breach finding in relation to the respondent (as that term would be defined in new paragraph 24CY(1)(d), discussed below), (ii) the respondent is a current member of a House of the Parliament, and (iii) there is a preliminary finding that it is appropriate for a parliamentary sanction (as that term would be defined in section 5 of the PWSS Act, as amended by item 22) to be imposed on the respondent – whether the decision-maker proposes to refer the preliminary serious breach finding to the Privileges Committee of that House.

511. The requirement that draft reports set out these matters is intended to support the provision of procedural fairness to persons who may be negatively affected by the matters outlined. The requirements in this section are complemented by new section 24CV. That section requires a draft report including preliminary findings that are critical (either expressly or impliedly) of a person, or proposed recommendations, sanctions or referrals, to be provided to the person to whom the preliminary findings or proposed recommendations, sanctions or referrals relate with an opportunity to respond.

512. The note under new section 24CU would clarify that the decision-maker is not required to propose a recommendation, sanction or referral, even if there is a preliminary finding that the respondent has engaged in relevant conduct.

513. New section 24CU sets out only the information that would be required to be included in the draft report for a conduct issue. It would be open to the decision-maker for a conduct issue to include additional information or material in the draft report, beyond what is required by this section.

Section 24CV – Opportunity to respond to preliminary findings and proposed sanctions etc.

514. New section 24CV would provide that where a draft report sets out a preliminary finding that is critical of a person (either expressly or impliedly), a proposed recommendation to take action in relation to a person, a proposed sanction to be imposed on a person, or a proposed referral of a serious breach finding in relation to a person to the Privileges Committee of a House of the Parliament, the decision-maker must give the person a statement setting out the preliminary finding or proposal, and a reasonable opportunity to respond.

515. This section is intended to support the provision of procedural fairness, and would complement the requirement in new paragraph 24CO(2)(b) that the investigating Commissioner for a conduct issue observe the requirements of procedural fairness when conducting an investigation, and the requirement in new paragraph 24DF(2)(b) that a review panel observe the requirements of procedural fairness when conducting a review.

516. It is intended that a statement provided to a person under this section would include the evidence and other material relied on to support the preliminary finding or proposal. This would enable persons who receive statements under this section to consider and interrogate the basis on which the finding or proposal is proposed to be made. What amounts to a 'reasonable opportunity to respond' would depend on the particular circumstances of each case. It may, for example, be reasonable to provide a longer period for a person to respond to a statement where that statement has been provided during a holiday period.

517. The inclusion of a reference in new subsection 24CV(1) to a preliminary finding that is critical (either expressly or impliedly) of a person is similar to subsection 8(5) of the Ombudsman Act, which relevantly provides the Ombudsman shall not make a report setting out opinions that are expressly or impliedly critical of a person unless they have first afforded that person an opportunity to appear and to make submissions, orally or in writing.

Section 24CW – Draft report may be given to respondent or complainant

518. New section 24CW would provide the decision-maker for a conduct issue with a discretionary power to provide a draft report to the respondent or complainant for that issue where appropriate.

519. New subsection 24CW(1) would provide that the decision-maker for a conduct issue may give a copy of the draft report prepared under new section 24CT to the respondent or the complainant (if the conduct issue arose from a conduct complaint or conduct issue referral) for that issue, if the decision-maker considers it appropriate to do so. The decision-maker may provide the draft report under this section to the respondent, the complainant, or both, where appropriate.

520. This discretion is additional to the requirement under new section 24CV, which would require the decision-maker to give persons an opportunity to respond to preliminary findings that are critical of them or proposed recommendations, sanctions, or referral to a Privileges Committee. Providing discretion for the decision-maker to provide a copy of the draft report, where appropriate, to the complainant and respondent would enhance fairness to the parties, and increase the rigour of an IPSC investigation.

521. New subsection 24CW(2) would provide that the decision-maker must exclude from a copy of the draft report provided under this section any information that the decision-maker is satisfied is sensitive information as that term would be defined in section 5 of the PWSS Act, as amended by item 24.

522. It would be open to a decision-maker to provide a copy of a draft report to the respondent or complainant under this section irrespective of whether the draft report includes a preliminary finding that the respondent has engaged in relevant conduct, or any other preliminary finding or proposed recommendation, sanction or referral that could have an adverse effect on the respondent or complainant. Even where a draft report includes no critical preliminary findings of a respondent or complainant or proposed recommendations, sanctions, or referral for a respondent, this discretion would allow an opportunity for a respondent or complainant to raise any concerns with the draft report with the decision-maker, for consideration prior to finalisation of the report.

523. Where a draft report does include a preliminary finding that is critical of the respondent or complainant, a proposed recommendation to take action in relation to the respondent, a proposed sanction to be imposed on the respondent, or a proposed referral of a serious breach finding to a Privileges Committee, such that the requirement to provide an opportunity to respond set out in new section 24CV applies, it would be open to the decision-maker to provide only the statement required by that provision, or to also exercise their discretion to provide a copy of the draft report under new section 24CW.

Section 24CX – Apologies by the respondent

524. New section 24CX would enable an investigating Commissioner or a parliamentarian decision panel (as relevant) to facilitate the making of an apology by a respondent to a person affected by their conduct, in certain circumstances.

525. New subsections 24CX(1) and (2) would set out prerequisites to an investigating Commissioner or parliamentarian decision panel (as relevant) being able to facilitate the making of an apology. Under these subsections, an apology could only be facilitated:

a.

before a draft report is prepared (by the investigating Commissioner), or

b.

after the draft report is prepared and before a decision on the conduct issue in question is made under new section 24CY (by the decision-maker for the conduct issue, being the parliamentarian decision panel constituted under new section 24CS, if the respondent is a current or former parliamentarian, or otherwise the investigating Commissioner).

526. For an apology to be able to be facilitated, the investigating Commissioner or the decision-maker for the conduct issue, as relevant, would need to be satisfied that it would be appropriate in the circumstances, taking into account the seriousness of the conduct concerned, for the respondent to apologise to a person affected by the conduct concerned, and that the conduct concerned would not constitute an offence.

527. New subsection 24CX(3) would provide that, where the criteria discussed above are met, the investigating Commissioner or decision-maker may facilitate, in such manner as they see fit, the making of an apology, if the respondent and the recipient of the apology have consented to the making and receiving of the apology respectively. Depending on the views of the investigating Commissioner or decision-maker, and the preferences of the parties, an apology facilitated under this section may be made orally or in writing.

528. Appropriate apologies are often seen by complainants as an essential prerequisite for the proper resolution of their complaint, and apologies can avoid the further escalation of disputes and restore trust to ongoing employment relationships. The requirement that an apology only be facilitated where the respondent consents to make it, and the recipient consents to receive it, reflects that an apology is most likely to be genuine and to have a remedial effect where it is voluntarily made to a person who is open to receiving it.

529. This process is also intended to provide an opportunity for respondents with relevant insurance to consult with, and seek the consent of, their insurer, before making an apology, to avoid any impact on the validity of their insurance contract. This reflects that insurance contracts commonly require an insured person to seek the insurer's consent before making an apology, and that insurance arrangements for parliamentarians include a condition of this kind.

530. New subsection 24CX(4) would provide that the making of an apology under this section is not an admission of fault or liability, and is not admissible in evidence against the respondent in any civil proceedings in respect of the conduct concerned. This is intended to encourage the use of apologies, by addressing any concern that an apology may be used in subsequent legal proceedings as an admission of liability. Precedent of this kind exists in State and Territory legislation such as the Civil Liability Act 2002 (NSW), and the Civil Liability Act 2003 (Qld).

531. New subsection 24CX(5) would enable the decision-maker for a conduct issue to take an apology facilitated under this section into account when making a decision on the conduct issue under new section 24CY. It is anticipated that the making of an apology, and particularly the making of an apology early in the investigation process, could for example result in a decision to impose or recommend a less serious sanction than might otherwise have been imposed, or not to make a referral to a Privileges Committee as the decision-maker was not satisfied it was appropriate for a parliamentary sanction to be imposed.

Section 24CY – Decision on conduct issue

532. New section 24CY would outline the process for the making of decisions on a conduct issue, including decisions regarding sanctions. The types of sanctions that may be relevant vary depending on whether the respondent is, at the time when a decision on the conduct issue is made, a current or former parliamentarian, a current or former MOPS employee, or another parliamentary workplace participant.

533. New subsection 24CY(1) would provide that the decision-maker, after considering any responses given on the draft report (including any responses to statements provided to persons under new section 24CV), must decide whether they are satisfied, on the balance of probabilities, that the respondent has engaged in relevant conduct. If they are so satisfied, the decision-maker must also decide whether to make any recommendations in relation to, the respondent.

534. Additionally, if the decision-maker is satisfied that the respondent has engaged in relevant conduct and the respondent is a current or former parliamentarian, the decision-maker must decide whether to impose any sanctions on the respondent under new paragraph 24CY(1)(c). Further, new paragraph 24CY(1)(d) would provide that, if the respondent is a current parliamentarian, and the decision-maker is satisfied that the relevant conduct engaged in by the respondent is serious and that it is appropriate for a parliamentary sanction to be imposed on them, the decision-maker must decide whether to refer the finding that the respondent has engaged in the relevant conduct to the Privileges Committee of the relevant House of the Parliament (under new Division 5 of Part 2A). The finding that the parliamentarian respondent has engaged in the relevant conduct would be defined as the serious breach finding. It would be a matter for the relevant parliamentarian decision panel to be satisfied that the particular conduct was serious in the circumstances, and that it was appropriate that a parliamentary sanction be imposed. The terms Privileges Committee and parliamentary sanction are defined in section 5 of the PWSS Act, as amended by this Bill.

535. New paragraph 24CY(1)(d) recognises that sanctions of this nature should be decided and imposed by the Houses of the Parliament, rather than by the IPSC. The process for consideration of parliamentary sanctions by a Privileges Committee is provided by new Division 5 of Part 2A. This process would provide transparency of outcomes for serious misconduct engaged in by elected officials, as a recommendation by a Privileges Committee on sanctions would be made public when it reports to the relevant House of the Parliament.

536. The standard of proof for deciding whether a respondent has engaged in relevant conduct under this section would be the ordinary civil standard, on the balance of probabilities (that is, being more likely than not). However, the more serious the alleged relevant conduct and its possible consequences, the higher the level of satisfaction that would be required. Accordingly, it is anticipated that the strength of the evidence and other material on which the decision-maker may rely in deciding whether, on the balance of probabilities, a respondent has engaged in relevant conduct may vary depending on the nature of the relevant conduct alleged. Where the conduct alleged is of a particularly serious nature, and a finding is likely to produce grave consequences, a decision-maker may require more compelling material on which to found their decision.

537. The first note at the end of new subsection 24CY(1) would clarify, to avoid doubt, that a finding by the decision-maker that the respondent has engaged in relevant conduct is not a finding of guilt in relation to an offence against a law of the Commonwealth, a State or a Territory. This reflects that while the IPSC may, in certain circumstances, investigate relevant conduct which may otherwise constitute a criminal offence, it is not a court and cannot make findings of guilt. For example, a finding by a decision-maker that a respondent has engaged in theft from their office is not a finding that they are guilty of committing the offence of theft under Commonwealth, State or Territory law. Rather, the IPSC is a workplace investigation framework under which findings may be made that a person has engaged in relevant conduct. Consistent with paragraph 24CY(1)(a), any such finding that a person has engaged in relevant conduct is on the civil standard (being the balance of probabilities).

538. The second note at the end of subsection 24CY(1) would provide that a decision-maker is not required to make a recommendation, impose a sanction, or make a referral, even if the decision-maker is satisfied that the respondent has engaged in relevant conduct. This reflects that in some circumstances the decision-maker may consider that a respondent has already taken sufficient steps to address their misconduct. For example, where the relevant conduct in which a respondent has been found to have engaged is relatively minor, and the respondent has voluntarily undertaken relevant training, a decision-maker may determine there is no need to recommend or impose a sanction.

539. In deciding whether to make any recommendations, impose any sanctions or make a referral to a Privileges Committee, it would be open to a decision-maker to consider any sanctions or other management actions that have already been imposed. For example, if a MOPS employee had already been required to undertake training, the decision-maker could take that into account. Similarly, if the Fair Work Commission had issued a stop bullying or stop harassment order, which was relevant to a conduct issue investigated by the IPSC, it would be open to the decision-maker to take that into account.

540. The third note at the end of 24CY(1) would provide that when making a decision under this section, including a decision whether to make any recommendations, impose any sanctions or make a referral to a Privileges Committee, a decision-maker may take into account any apology made by the respondent that was facilitated by a Commissioner under new subsection 24CX(5). For example, where the respondent for a conduct issue apologised to the complainant before the investigation was completed a decision-maker may determine there is no need to recommend or impose a sanction or make a referral to a Privileges Committee.

541. New subsection 24CY(2) would provide that the decision-maker may only decide to make a recommendation, impose a sanction, or refer a serious breach finding, if they are satisfied that doing so is necessary to promote appropriate conduct and behaviour in Commonwealth parliamentary workplaces. This recognises that the making of recommendations and the imposition of sanctions are disciplinary measures, which are intended to be protective of the parliamentary workplace and the functioning of the Parliament.

542. New subsection 24CY(3) would set out when a decision made by the decision-maker comes into operation. New paragraph 24CY(3)(a) would provide that where an application for review is made under new section 24DA, and is made within the period specified in that section (being 28 days after the decision-maker gives the applicant a copy of the final report setting out the decision, unless that period is extended under new section 24DB, the decision will come into effect the day after the review application is finally determined.

543. New paragraph 24CY(3)(b) would provide that if an application for review is not made under new section 24DA within the period specified in that section, the decision will come into operation on the day after the end of that period.

544. The note at the end of new subsection 24CY(3) would indicate that, under new subsection 24DD(6), if a review panel varies or substitutes the decision made by a decision-maker under new section 24CY, the decision as varied or the substituted decision is taken to be the decision of the decision-maker (that is, the parliamentarian decision panel or the investigating Commissioner). This means that where a review panel has varied or substituted the decision made by a decision-maker, the decision as varied or the substituted decision would be the decision that would come into effect under new subsection 24CY(3).

545. New subsection 24CY(4) would set out recommendations that may be made under new paragraph 24CY(1)(b) if a decision-maker is satisfied that the respondent has engaged in relevant conduct. It would be open to the decision-maker to make more than one recommendation under this subsection. This power to make recommendations would be relevant to non-parliamentarian respondents. Sanctions for parliamentarians may be referred to the relevant Privileges Committee under Division 5, or directly imposed under new subsection 24CY(5).

546. New paragraph 24CY(4)(a) would provide that if the respondent is a MOPS employee, the decision-maker may make a recommendation for the respondent's employer to take any of the following actions within a specified period (i) give the respondent a written reprimand, (ii) require the respondent to undertake training or professional development, (iii) require the respondent to enter into an agreement with the employer about the respondent's future behaviour, (iv) reassign the respondent's duties, if it is reasonably practicable to do so, (v) deduct from the respondent's annual salary, by way of fine, an amount not exceeding 2 per cent of that salary, and/or (vi) terminate the respondent's employment.

547. These sanctions mostly align with those which the Set the Standard report determined that the IPSC should be able to recommend that an employing parliamentarian impose on a MOPS employee. They are also broadly similar to the sanctions set out in the Public Service Act for breach of the APS Code of Conduct, which range from a reprimand and fine (no more than 2 per cent of an employee's annual salary) to termination.

548. The reference in new subparagraph 24CY(4)(a)(iv) for the IPSC to recommend that an employing parliamentarian re-assign a respondent MOPS employee's duties 'if it is reasonably practicable to do so' reflects that in many parliamentary offices this may not be practicable, particularly in small offices and for more senior or specialised staff. It is intended that the IPSC will have regard to the practicability of such a re-assignment in determining whether to recommend the application of this sanction in any particular case. It is not intended that an employing parliamentarian could unilaterally determine that it would not be reasonably practicable to re-assign an employee, where such re-assignment has been recommended by the IPSC.

549. It is anticipated that a parliamentarian's failure to take an action recommended by a decision-maker under this section, within the specified period, may constitute a breach of a Behaviour Code, and could therefore be liable to investigation by the IPSC. This is on the basis the Behaviour Code for Australian Parliamentarians, as endorsed by both Houses of the Parliament in February 2023, provides that parliamentarians have obligations to the IPSC, to '[a]ct on allegations of misconduct made about their staff and to implement recommendations of the IPSC in relation to staff misconduct. Failure to do so may be a breach of this code and sanctions may apply' (paragraph 15(c) of that Code refers).

550. It is also anticipated that MOPS employees would have an obligation, under the Behaviour Code for Parliamentarians' Staff, to 'comply with sanctions imposed' (paragraph 14(a) of that Code, as endorsed by both Houses of the Parliament in February 2023, refers). Non-compliance with that rule could be treated as a breach of the Code and sanctions could be applied.

551. New paragraph 24CY(4)(b) would provide that if the respondent is a non-core participant (as defined in section 5 of the PWSS Act), the decision-maker may make a recommendation for a Presiding Officer to restrict or remove the respondent's access to the precincts (within the meaning of the Parliamentary Precincts Act) for a specified period. For example, this sanction could be used to restrict or remove a person's non-escorted access privileges in the Parliamentary precincts.

552. This sanction is consistent with the Set the Standard Report. It reflects that the precincts are under the control and management of the Presiding Officers (section 6 of the Parliamentary Precincts Act refers). It also reflects the limited ability of the IPSC to ensure compliance with recommendations made to the employers of non-core participants (as compared with the potential to treat a parliamentarian's failure to act on a sanction the IPSC has recommended be imposed on a MOPS employee as a breach of a Behaviour Code by the parliamentarian themselves).

553. New paragraph 24CY(4)(c) would provide that if, at the time when a decision on the conduct issue is made, the respondent is a former MOPS employee, the decision-maker may make a recommendation for the respondent's former employer to give the respondent a written reprimand.

554. New paragraph 24CY(4)(d) would provide that if, at the time when a decision on the conduct issue is made, the respondent is neither a parliamentarian nor a MOPS employee, the decision-maker may make a recommendation for the respondent's employer to take, within a specified period, any action that the decision-maker considers appropriate, taking into account the seriousness of the conduct concerned. The Bill does not prescribe sanctions for this purpose. Rather, as the respondent is not an employee of the Commonwealth, the Bill would give the decision-maker discretion to recommend any action to the respondent's employer that was considered appropriate taking into account the seriousness of the conduct.

555. New subsection 24CY(5) would set out that one or more of the following sanctions may be imposed directly by the IPSC under new paragraph 24CY(1)(c) if a decision-maker is satisfied that the respondent has engaged in relevant conduct and the respondent is a current or former parliamentarian:

a.

a written reprimand,

b.

a requirement that the respondent undertake training or professional development within a specified period,

c.

a requirement that the respondent enter into an agreement with the IPSC about their future behaviour.

556. It is anticipated that parliamentarians would have an obligation, under the Behaviour Code for Australian Parliamentarians, to 'comply with sanctions imposed' (paragraph 14(a) of that Code, as endorsed by both Houses of the Parliament in February 2023, refers). Non-compliance with that rule could be treated as a breach of the Code and sanctions could be applied.

557. New subsection 24CY(6) would provide that if the decision-maker recommends that an amount be deducted from the respondent's salary by way of fine, that fine may be deducted from a single payment of the respondent's salary, or may be deducted in instalments from the respondent's salary over a series of payments. This would be consistent with the approach taken to fines imposed on members of the APS for breaches of the APS Code of Conduct under the Public Service Act.

558. As MOPS employees are paid their salary on a fortnightly basis, any fine recommended under subparagraph 24CY(4)(a)(v) could, depending on the size of the fine, be deducted from a single fortnightly salary payment, or in instalments from salary payments over a series of fortnights.

Section 24CZ – Final report on investigation

559. New section 24CZ would outline the requirements for preparing and providing a final report on an investigation.

560. New subsection 24CZ(1) would require the decision-maker for a conduct issue to prepare a final report that sets out their decisions, any other findings on the conduct issue that they think fit to make, and a summary of the evidence and other material on which the decisions and findings are based.

561. New subsection 24CZ(2) would require the decision-maker to give a copy of the final report, as soon as practicable after preparing it, to the respondent, the complainant (if the conduct issue arose from a conduct complaint or conduct issue referral for which there is a complainant), and the respondent's employer if the respondent is a MOPS employee. This reflects that each of these parties would be able to seek internal review of the decision made by the IPSC, under new section 24DA.

562. New subsection 24CZ(3) would require the provision of a copy of the final report to certain other parties if an application for review of a decision has not been made under new section 24DA within the period specified in that section (being 28 days after the decision-maker gives the applicant a copy of the final report setting out the decision, unless that period is extended under new section 24DB), or if an application for review has been made and dismissed.

563. Delaying provision of a copy of the final report to the parties outlined in this subsection while there is a possibility that the decision reflected in the report may be subject to review is intended to ensure the reputation and interests of parties are not adversely affected by a report reflecting a decision that may subsequently be varied or set aside on internal review by the IPSC. In particular, if a sanction decision might not be upheld on internal review.

564. New paragraph 24CZ(3)(a) would require that a copy of the final report on a conduct issue that arose from a conduct issue referral be provided to the referrer.

565. New paragraph 24CZ(3)(b) would facilitate the consideration of IPSC recommendations that a Presiding Officer take an action by requiring that reports containing decisions to make recommendations of this type be provided to that Presiding Officer. This would enable a Presiding Officer to implement a recommendation that they restrict or remove a non-core participant's access to the precincts. This is separate from where a Presiding Officer may receive a copy of a report as an employer of a respondent MOPS employee under new paragraph 24CZ(2)(c).

566. New paragraph 24CZ(3)(c) would require that a copy of the final report on a conduct issue be provided to the Prime Minister if the respondent is currently a Minister (whether or not the respondent was a Minister at the time of the conduct concerned) and the report contains a finding that the respondent has engaged in relevant conduct. This will ensure the Prime Minister is informed if the IPSC makes a finding that a Minister has engaged in relevant conduct, so that the Prime Minister can consider any action in addition to any sanction imposed or recommended to be imposed by the IPSC, recognising anticipated overlaps in the conduct requirements in the Behaviour Codes to be enforced by the IPSC, and the Code of Conduct for Ministers.

567. New paragraph 24CZ(3)(d) would require that a copy of the final report on a conduct issue be provided to the Leader of a Parliamentary party if the respondent is a Presiding Officer and a member of that Parliamentary party, and the report contains a decision to refer a serious breach finding in relation to the respondent to the Privileges Committee of a House of the Parliament. This would ensure that, similar to Ministers, party leaders are informed of IPSC decisions that a Presiding Officer has engaged in relevant conduct that is serious enough that, in the view of the IPSC, it warrants the imposition of a parliamentary sanction.

568. New paragraph 24CZ(3)(e) would facilitate the consideration of IPSC recommendations that the employer of a respondent who is not a MOPS employee take an action by requiring that reports containing decisions to make recommendations of this type be provided to the respondent's employer.

569. New paragraph 24CZ(3)(f) would facilitate, where it is reasonably practicable to do so, the consideration of an IPSC recommendation that the former employer of a respondent who is a former MOPS employee give a written reprimand.

570. The note under new subsection 24CZ(3) would clarify that if an application for review has been made and has not been dismissed, a copy of the final report may be given to some of the persons mentioned in this subsection after the review is completed (as outlined in new subsection 24DE(4)).

571. New subsection 24CZ(4) would give the decision-maker on a conduct issue a discretionary power to provide a copy of the final report to the PWSS CEO for purposes connected with the performance or exercise of the PWSS CEO's functions or powers, where the respondent is a parliamentarian or a MOPS employee. This would, for example, enable the decision-maker to provide a copy of the final report to the PWSS CEO where the report reflects a need for additional work health and safety advice to be provided to a particular parliamentary office. This recognises the role of the PWSS in supporting safe and respectful parliamentary workplaces, and particularly its role in providing centralised human resources services, including on work health and safety matters, to parliamentarians and MOPS employees.

572. New subsection 24CZ(5) would provide that the decision-maker must exclude from a copy of a final report provided under this section any information that the decision-maker is satisfied is sensitive information as that term would be defined in section 5. The meaning of sensitive information is discussed in detail at item 24.

Division 4—Review

Section 24D – Application of Division

573. New section 24D would provide that this Division applies in relation to a decision made under section 24CY by the decision-maker for a conduct issue.

Section 24DA– Applying for internal review

574. New section 24DA would outline who can apply for an internal review and what the requirements are for an application for a review of a decision.

575. New subsection 24DA(1) would provide that a respondent could apply to the IPSC for review of:

a.

a decision to make a finding that the respondent has engaged in relevant conduct, and/or

b.

if the respondent is a core participant (as defined in section 5 of the PWSS Act), any or all of the following:

i.

a decision to make one or more recommendations in relation to the respondent,

ii.

a decision to make a particular recommendation in relation to the respondent,

iii.

a decision to impose one or more sanctions on the respondent,

iv.

a decision to impose a particular sanction on the respondent,

v.

a decision to refer a serious breach finding in relation to the respondent to the Privileges Committee of a House of the Parliament.

576. All respondents would have the ability, under this provision, to seek review of a decision that they engaged in relevant conduct. This is intended to ensure that every respondent is able to challenge a finding made against them. This recognises that for all respondents, including non-core participants (as defined in section 5 of the PWSS Act), a finding by the IPSC that they engaged in relevant conduct may have adverse consequences, irrespective of whether the IPSC imposes or recommends a sanction or makes a referral to a Privileges Committee.

577. In addition, respondents who are core participants would be able to seek review of a decision to recommend or impose one or more sanctions, or a particular sanction in relation to them, or to refer a finding that the respondent has engaged in a serious breach of the Behaviour Codes to the Privileges Committee of a House of the Parliament. In practice, the only core participants who could be respondents in IPSC investigations, and therefore to whom new paragraph 24DA(1)(b) could relate are parliamentarians, MOPS employees and designated workers (such as volunteers and interns working in parliamentarians' offices); this is because other core participants are already subject to specific statutory codes of conduct and investigation mechanisms, and consequently the Bill would require that complaints against them be referred to those mechanisms for investigation (new paragraph 24CH(4)(b) and new section 24CJ refer).

578. Limiting the ability to seek review of such sanctions decisions to respondents who are core participants reflects that the IPSC would be able to directly impose a sanction upon a parliamentarian (but not any other type of respondent), and that the IPSC may have scope to investigate and sanction a parliamentarian for failing to impose a sanction the IPSC has recommended be taken in relation to a MOPS employee or designated worker. This is because it is anticipated a parliamentarian's failure to take an action against a MOPS employee or designated worker recommended by the IPSC may constitute a breach of a Behaviour Code.

579. By contrast, the IPSC would have no mechanism to investigate or sanction a private employer for failing to implement a sanction recommended by the IPSC in relation to a respondent who is not a MOPS employee.

580. The ability for a core participant to review a decision to make or impose one or more recommendations or sanctions would reflect that a respondent may wish to seek review of a decision that they be sanctioned for their conduct, or the recommendation or imposition of a particular sanction. For example, if the IPSC recommend that a MOPS employee's employing parliamentarian deduct a fine from their annual salary, that MOPS employee may seek a review of the decision to impose a sanction against them generally as they believe that no sanction is warranted, and/or seek review of the decision to impose the particular sanction as they are of the view that such a fine is disproportionate to the relevant conduct.

581. The ability for a parliamentarian to review a decision to refer a serious breach finding to the Privileges Committee of a House of the Parliament recognises the seriousness of the potential parliamentary sanctions that could be imposed on them by a House following a recommendation of a Privileges Committee. Accordingly, a parliamentarian may wish to seek review of the IPSC's decision that a parliamentary sanction is appropriate, if they believe the relevant conduct they have engaged in was not serious and therefore warrants no, or a lesser, sanction such as a reprimand or requirement to undertake training.

582. New subsection 24DA(2) would provide that a complainant could apply to the IPSC for review of:

a.

a decision that finds the respondent has not engaged in relevant conduct, and/or

b.

if the respondent is a core participant, any or all of:

i.

a decision to make one or more recommendations in relation to the respondent,

ii.

a decision to make a particular recommendation in relation to the respondent,

iii.

a decision to impose one or more sanctions on the respondent,

iv.

a decision to impose a particular sanction on the respondent,

v.

a decision to refer a serious breach finding in relation to the respondent to the Privileges Committee of a House of the Parliament,

c.

if a finding is made that the respondent has engaged in relevant conduct, either or both of the following:

i.

a decision not to make a recommendation in relation to the respondent,

ii.

a decision not to impose a sanction on the respondent,

d.

if a serious breach finding is made in relation to the respondent, a decision not to refer the finding to the Privileges Committee of a House of the Parliament.

583. These complainant review rights would enhance fairness to the parties, and increase the rigour of an IPSC investigation.

584. New subsection 24DA(3) would provide that if the respondent for a conduct issue is a MOPS employee, the respondent's employer may apply to the IPSC for review of a decision recommending the employer take an action in relation to the respondent. This avenue of review reflects that, as discussed above, the IPSC may have scope to investigate and sanction a parliamentarian for failing to impose a sanction the IPSC has recommended be taken in relation to a MOPS employee.

585. New subsection 24DA(4) would require that an application for review of a decision must be made in writing and set out the reasons for making the application. The application must also be made within 28 days after the review applicant is given, under section 24CZ, a copy of the final report on the conduct issue, unless the application period is extended under new section 24DB.

586. The requirement for a review applicant to set out written reasons for making an application for a review is intended to impose a degree of rigour to a review application. It is anticipated that grounds for review that may be considered would be consistent with those modelled by the UK Parliamentary Standards Commission, which include matters where:

a.

the investigation was materially flawed in a way that affected the decision of the IPSC,

b.

the process followed was procedurally flawed or the decision was unreasonable,

c.

the decision on sanction was unreasonable or disproportionate,

d.

credible fresh evidence has become available which could not reasonably have been presented and which, if accepted, has a real prospect of affecting the outcome, and

e.

exceptionally, there is another compelling reason that a review should be allowed.

587. It is not proposed that individuals would have an additional right to merits review by an external tribunal, such as the Administrative Appeals Tribunal. Rather, the review scheme would provide sufficient independent scrutiny of a first-instance IPSC decision. Individuals could seek judicial review of relevant IPSC decisions under the Administrative Decisions (Judicial Review) Act 1977 or within the Federal Circuit and Family Court of Australia or the High Court's original jurisdiction to the extent they are persons aggrieved.

588. The 28 day standard period in which an application for review may be made (unless extended under new section 24DB) is consistent with the general approach to applications to the Administrative Appeals Tribunal for merits review.

Section 24DB – Extension of period for applying for review

589. New section 24DB would provide a mechanism for the extension of the period in which a person may apply for review.

590. New subsection 24DB(1) would provide that a person may apply to the Chair Commissioner to extend the time period to apply for review of a decision.

591. New subsection 24DB(2) would provide that an application for an extension to the period to apply for a review must be made in writing, set out the reasons for the application, and be made within 28 days after the review applicant is given a copy of the final report (under new section 24CZ) setting out the decision. The requirements that an application for an extension be made in writing and include reasons for making the application are intended to support proper consideration of extension applications. The 28 day period in which an application for an extension of time may be made aligns with the time period ordinarily available for an application for review (new paragraph 24DA(4)(c)(i) refers). This is intended to ensure that any application for an extension of time to apply for review is made before the ordinary review period has elapsed, and therefore before a copy of the final report is provided to parties that do not have review rights (including, for example, to a Presiding Officer if a recommendation is made for them to take an action).

592. New subsection 24DB(3) would give the Chair Commissioner discretion to extend the period in which a person may apply for review of a decision where they consider there are reasonable grounds to do so. This may be the case where, for example, a person is unable to prepare a review application within the ordinary 28 day timeframe due to illness. The Chair Commissioner would not be bound by any particular period of extension that an applicant may have sought.

Section 24DC – Notice of application

593. New section 24DC would set out requirements for notice of an application for internal review to be given to each of the parties with review rights in relation to the decision to which the review relates.

594. New subsection 24DC(1) would provide that the Chair Commissioner must give written notice of an application for internal review made under new section 24DA to: the respondent for the conduct issue concerned, the complainant (if the conduct issue arose from a conduct complaint or conduct issue referral), and the respondent's employer if they are a MOPS employee. Requiring that notice of an application for review be provided to parties with review rights in relation to a decision is intended to support those parties in making their own decision whether to seek review.

595. New subsection 24DC(2) would provide that the written notice given under new subsection 24DC(1) must set out the effect of new section 24DG (that is, that respondents who are (current) senators or members of the House of Representatives, or who are (current) MOPS employees, are required to cooperate with any person who is performing functions or exercising powers under the PWSS Act in relation to the review of a decision relating to the respondent).

Section 24DD – Internal review

596. New section 24DD would provide for the establishment, powers and processes of a review panel.

597. New subsections 24DD(1) to (3) would provide for the establishment and composition of review panels. For all applicants, a panel formed under these subsections would ultimately decide whether to affirm, vary, or set aside and make a decision in substitution for the original decision. This is contrast to investigations under Division 3, whereby a panel is only constituted where the respondent is a current or former parliamentarian and decisions in relation to all other respondents are made by the investigating Commissioner.

598. New subsection 24DD(1) would require that, as soon as practicable after an application for review of a decision (the original decision) is made under new section 24DA, the Chair Commissioner must constitute a review panel to deal with the application.

599. New subsection 24DD(2) would provide that the review panel must comprise three Commissioners, and must not include any Commissioner who made, or was involved in making, the original decision. As such, a review panel must not include the investigating Commissioner for a conduct issue, or any member of a parliamentarian decision panel, where relevant. This would ensure that Commissioners are considering a review application afresh, and that there is no reasonable apprehension of bias. The Chair Commissioner would otherwise have discretion to allocate whichever three Commissioners they see fit to the panel.

600. Under section 16 of the PGPA Rule, an official of a Commonwealth entity who is not the accountable authority, or a member of the accountable authority, and has a material personal interest that relates to the affairs of the entity, must disclose that interest in accordance with any instructions given by the accountable authority of the entity. It is anticipated that the PWSS CEO, as the accountable authority for the listed entity comprising the PWSS and the IPSC, which will be known as the Parliamentary Workplace Support Service, will issue instructions requiring that Commissioners disclose any relevant material personal interests to the Chair Commissioner. This will ensure the Chair Commissioner is aware of factors that may give rise to a real or perceived conflict of interest should a particular Commissioner be allocated to form part of a review panel for a particular matter.

601. New subsection 24DD(3) would provide that the Chair Commissioner may reconstitute the review panel at any time. This power would, for example, enable the Chair Commissioner to reconstitute a review panel if, for example, a Commissioner on the panel were to become unavailable for any reason, or were to have a conflict of interest arise.

602. Following the constitution of a review panel, new subsection 24DD(4) would provide that the review panel may dismiss the review application if satisfied that the application is:

a.

frivolous, vexatious, misconceived or lacking in substance or was not made in good faith, or

b.

has no reasonable prospects of success, or

c.

is otherwise an abuse of the process of the IPSC.

603. The power to dismiss a review application is exercisable at any time. For example, a review panel may dismiss a review application prior to commencing the review if they were satisfied that it was frivolous, or dismiss the application if in the conduct of the review it became apparent that the application was not made in good faith. The review panel could dismiss an application on its own initiative, or upon the request of a party.

604. These grounds substantially reflects the grounds under which the Administrative Review Tribunal may dismiss an application under section 101 of the Administrative Review Tribunal Act 2024. These grounds for dismissal aim to prevent applicants from using the review process to advance spurious claims or from making applications where they are not genuinely interested in seeking review of the decision, such as if they are applying solely to intimidate another party or to delay the finalisation of an IPSC process.

605. New subsections 24DD(5) and (6) would provide for the process following a review.

606. Following the review of an original decision, conducted in accordance with new section 24DF, new section 24DD(5) would provide that the review panel must make a review decision. Consistent with new subsection 24DF(3), review decisions must be made by a majority of the panel. Under this subsection, the review panel may:

a.

affirm the original decision,

b.

vary the original decision, or

c.

set aside and make a decision in substitution for the original decision.

607. A review panel may only vary the original decision, or set aside and make a decision in substitution for the original decision consistent with new section 24CY. As such, if a review panel were to vary or substitute a decision to impose or recommend a sanction, they may only decide to impose or recommend such sanctions as provided under new subsections 24CY(5) and (6) respectively.

608. For example, if a complainant sought review of a decision not to impose a sanction on the respondent, where there was a finding that they had engaged in relevant conduct, the review panel may set aside that decision and make a new decision to impose a sanction on the respondent. In addition, if a core participant respondent sought review of a decision to make a finding that they had engaged in relevant conduct and a decision to make a recommendation or impose a sanction in relation to them, the review panel may vary the particular finding (such as finding that they had engaged different relevant conduct, such as bullying rather than sexual harassment) or the particular sanction (such as a requirement to undergo training rather than a requirement to enter into a behaviour agreement).

609. New subsection 24DD(6) would provide that if the review panel varies the original decision, or sets aside the original decision and makes a decision in substitution, the varied or substituted decision is taken to be a decision of the Commissioner or parliamentarian decision panel that made the original decision. This would have the effect the other provisions in the PWSS Act, as amended, would apply to a varied or substituted decision in the same way they would apply to the original decision. For example, a varied or substituted decision would be taken as a decision of a Commissioner of the IPSC for the purposes of new subsection 20(1) of the MOPS Act, which would require an employing parliamentarian to take the action recommended by the Commissioner.

Section 24DE – Notice of review decision etc.

610. New section 24DE would outline the requirements for providing notice of a review decision.

611. New subsections 24DE(1) and (2) would require the review panel to give notice of a review decision to certain parties. Notice of a review decision must be in writing and include the reasons for the decision. These notification requirements reflect the notification requirements in section 24CZ in relation to final reports.

612. New paragraphs 24DE(1)(a) and (d) would require the review panel to give notice of a review decision and the reasons for the decision, as soon as practicable after the decision is made, to the applicant for the review and the respondent for the conduct issue. If that respondent is a MOPS employee, the notice must also be given to their employer under new paragraph 24DE(1)(f)). If the conduct issue concerned arose from a conduct complaint or conduct issue referral for which there is a complainant, the notice must be given to the complainant (new paragraph 24DE(1)(b)), and if the conduct issue arose from a conduct issue referral, the notice must be given to that referrer (new paragraph 24DE(1)(c)).

613. New paragraph 24DE(1)(e) would require that notice of a review decision must be provided to the Prime Minister if the respondent is currently a Minister (whether or not the respondent was a Minister at the time of the conduct concerned) and the review decision makes, or affirms an original decision to make, a finding that the respondent has engaged in relevant conduct. This will ensure the Prime Minister is informed if the IPSC makes a finding that a Minister has engaged in relevant conduct, so that the Prime Minister can consider any action in addition to any sanction imposed or recommended to be imposed by the IPSC, recognising anticipated overlaps in the conduct requirements in the Behaviour Codes to be enforced by the IPSC, and the Code of Conduct for Ministers.

614. Where the review decision makes, or affirms the original decision to make, a recommendation for a person to take action, new paragraph 24DE(1)(g) would require the review panel to give notice of a review decision to that person. This would facilitate the consideration of IPSC recommendations that the employer of a respondent who is not a MOPS employee take an action.

615. New subsection 24DE(2) would require that notice of a review decision under new subsection 24DE(1) must also be given to the Leader of a Parliamentary party where the review decision is to refer, or affirm the original decision to refer, a serious breach finding in relation to a Presiding Officer to the Privileges Committee of a House of the Parliament. This would ensure that, similar to Ministers, party leaders are informed of review decisions that make or affirm a decision to refer a finding that a Presiding Officer engaged in a serious breach of the Behaviour Codes to the Privileges Committee of a House of the Parliament.

616. New subsection 24DE(3) would give the review panel a discretionary power to provide notice of the review decision to the PWSS CEO for purposes connected with the performance or exercise of the CEO's functions or powers, where the respondent is a parliamentarian or a MOPS employee. This recognises the role of the PWSS in supporting safe and respectful parliamentary workplaces, and particularly its role in providing centralised human resources services, including on work health and safety matters, to parliamentarians and MOPS employees.

617. New subsection 24DE(4) would require the review panel to also give certain individuals a copy of the final report setting out the original decision, as made under new section 24CZ. This subsection would provide a copy of the final report to individuals who would not have received a copy under 24CZ as a review application had been made within the period specified in new section 24DA.

618. New paragraph 24DE(4)(a) would provide for a copy of the final report to be provided to the referrer, if the conduct issue concerned arose from a conduct issue referral.

619. In addition, new paragraphs 24DE(4)(b) and (e) would provide for a copy of the final report to be provided to a Presiding Officer or an employer for a non-MOPS employee where the review decision affirms an original decision for that Presiding Officer or employer to take an action. Similarly, new paragraph 24DE(4)(c) would provide for a copy of the final report to be provided to the Prime Minister where the review decision affirms the original decision to make a finding that a current Minister has engaged in relevant conduct.

620. New paragraph 24DE(4)(d) would also provide for a copy of the final report to be provided to the Leader of a Parliamentary party where the review decision affirms an original decision to refer a serious breach finding in relation to a Presiding Officer to the Privileges Committee of a House of the Parliament.

621. This recognises that these individuals would not have received a copy of the final report under 24CZ(3) as a review application had been made. Accordingly, this provision would ensure they are provided with a copy of that report where the review panel has affirmed the relevant original decision to enable them to have the full context of the original decision in order to support them to take, or consider, any action.

622. New subsection 24DE(5) would provide that the review panel must exclude any information from the notice of the review decision or copy of the final report provided under this section that the panel is satisfied is sensitive information as that term would be defined in section 5. The meaning of sensitive information is discussed in detail at item 24.

Section 24DF – Conduct of reviews etc.

623. New section 24DF would provide the framework for how reviews are conducted under this Division.

624. This framework is consistent with the framework for the conduct of investigations under new section 24CO. This would ensure that review panels have the same discretion in the conduct of their reviews, and are subject to the same procedural fairness obligations, as the original investigation.

625. New subsection 24DF(1) would provide that a review panel has discretion to review a decision in such a manner as they think fit. This would allow the review panel to determine the appropriate manner of conducting a review as relevant to the particular circumstances of the review. For example, the panel would have discretion as to whether a particular review is conducted on the papers or whether further information or evidence is sought, such as through interviews. A review panel would have the same information powers as an investigating Commissioner. For example, it is open to a review panel to require the production of information relevant to a review under new section 24F, and a review panel may issue a confidentiality notice under new section 24FH.

626. New paragraph 24DF(2)(a) would require the review panel to complete the review as quickly as is possible while meeting the requirements of the PWSS Act, and affording the conduct issue proper consideration. This is intended to promote the interests of all persons involved in, and affected by, decisions under review. It is similar to the requirement, set out in section 62 of the Australian Public Service Commissioner's Directions 2022, that the process for determining whether an APS employee has breached the APS Code of Conduct be carried out with 'as much expedition as a proper consideration of the matter allows'. It is also similar to the requirement, set out in paragraph 46PF(10)(a) of the AHRC Act, that the President of the AHRC, having regard to certain matters including the nature of a complaint, 'act expeditiously in dealing with the complaint'.

627. New paragraph 24DF(2)(b) would require the review panel to observe the requirements of procedural fairness when conducting the review. This is consistent with other statutory schemes and the approach to first instance investigations.

628. New subsection 24DF(3) would provide that anything done by the review panel must be agreed to by a majority of the panel's members. As such, decisions of a review panel need not be unanimous, but must be agreed by a majority (two) of the Commissioners.

Section 24DG – Requirement to cooperate

629. New section 24DG would require respondents who are (current) senators or members of the House of Representatives, or who are (current) MOPS employees, to cooperate with any person who is performing functions or exercising powers under the PWSS Act in relation to the review of a decision relating to the respondent.

630. A note under new section 24DG would indicate that failure to comply with this section may constitute a breach of a Behaviour Code. This reflects that the Behaviour Code for Australian Parliamentarians and the Behaviour Code for Parliamentarians' Staff, as endorsed by the both Houses of the Parliament in February 2023, each require that parliamentarians or MOPS employees (as applicable) 'cooperate with investigations'.

Division 5—Referral of serious breach findings to Parliament

Section 24E – Application of Division

631. New section 24E would provide that this Division applies in relation to a decision made by a parliamentarian decision panel, or review panel, to refer a serious breach finding, as defined under new subsection 24CY(1), to the Privileges Committee of a House of the Parliament.

632. New paragraph 24E(a) would provide that this Division applies if:

a.

the decision-maker for a conduct issue, being a parliamentarian decision panel, decides to refer a serious breach finding in relation to the respondent to the Privileges Committee of a House of the Parliament,

b.

an application for review has not been made within the period specified, or has been made and dismissed (under new section 24DA).

633. New paragraph 24E(b) would provide that this Division would also apply if a review panel makes a review decision to refer, or affirm the original decision to refer, a serious breach finding in relation to the respondent for a conduct issue to the Privileges Committee of a House of the Parliament.

Section 24EA – Referral to Privileges Committee

634. New section 24EA would outline the process for referring a serious breach finding, as defined under new section 24CY, to the Privileges Committee of a House of the Parliament.

635. New subsection 24EA(1) would require the decision-maker or the review panel, as relevant, to refer the finding to the Privileges Committee of the House of the Parliament of which the respondent is a member, as soon as practicable. The term Privileges Committee is defined in section 5 of the PWSS Act, as amended by item 2 of this Bill.

636. The referral must be accompanied by a statement that sets out such information as the decision-maker or review panel considers necessary to assist the Committee to understand the reasons for the decision to refer the finding. This would ensure that the relevant Privileges Committee is able to consider any appropriate sanction for a parliamentarian respondent with the benefit of such information. It is not intended that this statement would comprise the final report prepared under new section 24CZ or the notice of review decision and reasons prepared under new section 24DE. Rather, this subsection would require the statement to set out the finding that the parliamentarian has engaged in relevant conduct that is serious and that the decision-maker or review panel is satisfied is appropriate for a parliamentary sanction to be imposed, as well as any other information necessary to assist the Privileges Committee to understand the reasons for that decision that such a finding should be referred to the Privileges Committee.

637. It is intended that a referral by the decision-maker or review panel to a Privileges Committee under this section would be done confidentially. While the decision-maker would be authorised to disclose IPSC information to the Privileges Committee for the purposes of making the referral in accordance with new subsection 24FL, if such information was disclosed other than for this purpose (and not otherwise authorised under Subdivision C of Division 6 of this Part) this would constitute an offence under new subsection 24FK.

638. Such a statement must be prepared as soon as practicable. It is intended that the statement would be prepared following the provision of copies of the final report under new section 24CZ or the notice of review decision under new section 24DE to the respondent and the complainant if any, among others.

639. New subsection 24EA(2) would provide that before including identifying information in a statement, the decision-maker or review panel must give the relevant person a written notice stating that they are proposing to include identifying information in the statement to be provided to the Privileges Committee. This may include any complainant, respondent, witness, employer, referrer or other individual who may be identified in the statement.

640. New subsection 24EA(3) clarifies that the requirement in subsection 24EA(2) would not apply if the identifying information in the statement relates to the respondent. This recognises that such statements would necessarily include identifying information relating to the respondent parliamentarian. As such, where statements would include information that would identify the relevant parliamentarian respondent, a specific notice would not be required. Where a statement may identify another individual, such as a complainant or a witness, the decision-maker must provide a notice under this section.

641. New subsection 24EA(4) would provide that the written notice outlined in subsection 24EA(2) must also invite the person to make submissions to the decision-maker or review panel in relation to the proposal to include identifying information within a reasonable period specified in the notice. Providing an opportunity to make submissions in relation to the proposal ensures the person concerned is afforded procedural fairness. In particular, this would provide an opportunity to take into account the views of a complainant, if any.

642. New paragraph 24EA(5)(a) would require the decision-maker or review panel to have regard to any submissions made relating to the inclusion of identifying information (under subsection 24EA(4)) in deciding whether or not to include the identifying information in the statement. Although the decision-maker or review panel must consider whether the inclusion of details would identify another person and the submissions made under this section in deciding whether to include identifying information, the mere fact that an individual may be identified is not itself determinative. Rather, the decision-maker or review panel must consider these submissions in light of all the circumstances of the matter.

643. New paragraph 24EA(5)(b) would provide that the decision-maker or review panel must give the person concerned a written notice informing them of their decision as to whether or not to include the identifying information. This notification would occur prior to the provision of the statement to the Privileges Committee under new subsection 24EA(1). This notification would ensure that the individuals who may be identified by a statement are informed of the outcome of the decision-maker or review panel's consideration before details with identifying information are provided to the Committee, and would provide a record of the decision.

Section 24EB – Privileges Committee to make recommendations to House

644. New section 24EB would provide for the process for a Privileges Committee to consider a referral under new section 24EA and make recommendations to the relevant House of the Parliament.

645. New subsection 24EB(1) would provide that the Privileges Committee must decide whether to recommend that a House of the Parliament impose on the respondent any parliamentary sanctions, and any other sanctions that the Committee considers necessary to promote appropriate conduct in Commonwealth parliamentary workplaces, and report its decision to the House.

646. The term parliamentary sanction is defined in section 5 of the PWSS Act, as amended by item 22 of this Bill, as:

a.

the suspension of the member, for a period of no more than the maximum period for which a member may be suspended under that House's standing orders

b.

discharge of the member from a committee of that House, or of both Houses

c.

a deduction from the member's annual base salary, by way of fine, of an amount between two to five per cent of that salary.

647. The Privileges Committee may also recommend the House impose any other sanction that the Committee considers necessary to promote appropriate conduct in Commonwealth parliamentary workplaces. This may include, for example, sanctions that may be imposed directly by a parliamentarian decision panel on a parliamentarian respondent under new section 24CY(5) of the PWSS Act (being a reprimand, a requirement that the member undertake training or professional development, or a requirement that the member enter into a behaviour agreement). Requiring the Privileges Committee to be satisfied that such other sanctions are necessary to promote appropriate conduct in Commonwealth parliamentary workplaces recognises that sanctions under this framework are disciplinary measures, which are intended to be protective of the parliamentary workplace and the functioning of the Parliament, and is consistent with new subsection 24CY(2).

648. It would be open for the Privileges Committee to recommend the House impose one or more sanctions. For example, a Privileges Committee may recommend the House both discharge a member from a particular parliamentary committee and require that member to undertake specified training.

649. In addition, the note under new subsection 24EB(1) would clarify that the Privileges Committee may decide not to recommend the House impose any sanctions on a member. Accordingly, while the finding of the parliamentarian decision panel may advise and inform the Privileges Committee, the Committee would not be bound to recommend any sanction.

650. New subsection 24EB(2) would provide that the Privileges Committee must consider and report on the referral within 60 calendar days of receipt or, if additional time is required, such longer period after the referral as the Committee resolves. The manner in which a Privileges Committee considers a referral and decides whether to recommend the House impose a sanction would be a matter for that Committee, and any relevant standing orders of the relevant House of the Parliament.

Section 24EC – House may resolve to impose sanctions

651. New section 24EC would provide for a House of the Parliament to impose sanctions on a parliamentarian respondent, following a recommendation from the Privileges Committee.

652. New subsection 24EC(1) would provide that at any time after the Privileges Committee reports its decision under 24EB that the House impose a sanction on the respondent, the House may resolve to impose the sanction recommended by the Privileges Committee, and any other sanction that the House considered necessary to promote appropriate conduct in Commonwealth parliamentary workplaces. Requiring the House to be satisfied that such other sanctions be necessary to promote appropriate conduct in Commonwealth parliamentary workplaces recognises that sanctions under this framework are disciplinary measures, which are intended to be protective of the parliamentary workplace and the functioning of the Parliament and is consistent with new subsection 24CY(2) and new subparagraph 24EB(1)(a)(ii). It would be open for the House to impose one or more sanctions, or no sanction. For example, the House may resolve to impose:

a.

the recommended sanction,

b.

any other sanction,

c.

the recommended sanction and any other sanction, or

d.

no sanction.

653. The manner in which a House considers a report of the Privileges Committee and decides whether to resolve to impose a particular sanction would be a matter for that House, and any relevant standing orders.

654. New subsection 24EC(2) would provide that if the House resolves to deduct an amount from the parliamentarian respondent's salary by way of fine, the relevant Secretary may deduct the fine from a single payment of the parliamentarian's salary, or deduct the fine in instalments from the parliamentarian's salary over a series of payments.

655. New subsection 24EC(3) would provide that for the purposes of subsection 24EC(2) the relevant Secretary is the Secretary of the Department of the House of Representatives where the respondent is a member of the House of Representatives, or the Secretary of the Department of the Senate where the respondent is a member of the Senate.

656. While parliamentarians have been paid their salary on a monthly basis in the recent past, payments will be made on a fortnightly basis upon the commencement of amendments made to the PBR Act by the Parliamentary Business Resources Legislation Amendment (Review Implementation and other Measures) Act 2024. It is intended that any fine imposed by a House of the Parliament could, depending on the size of the fine, be deducted from a single salary payment, or in instalments from salary payments over a series of payments.

Section 24ED – Powers of Houses not limited

657. New section 24ED would clarify, for the avoidance of doubt, that new Division 5 does not limit the power of a House of the Parliament to suspend, or take any other action in relation to a member of that House, whether or not the member is the subject of a serious breach finding. For example, this Division is not intended to affect the power of a House to suspend a member for contempt.

Division 6—Information management

Subdivision A—Requiring information and documents etc.

Section 24F – Notice to give information etc.

658. New section 24F would enable an investigating Commissioner or review panel to require a person to give information (including by producing a document or attending an interview), if they have reasonable grounds to believe that the person has information relevant to an IPSC matter.

659. Providing that a Commissioner or review panel may compel the production of information is necessary to enable the IPSC to undertake its investigatory and review functions. As a Commissioner or panel would not be in an employment relationship with individuals who have information relevant to a conduct issue, they would not be able to rely on employee direction powers commonly relied on for information gathering in workplace investigations. The scope of this power to require information, documents and things, including the power to require attendance at interview, is consistent with that of comparable statutory bodies, such as the Commonwealth Ombudsman and Inspector General of Aged Care.

660. New subsection 24F(1) would provide that the compulsory information gathering powers in this section would apply where the investigating Commissioner or review panel, as relevant, have reasonable grounds to believe that a person has information, or a document or thing, that is relevant to an IPSC preliminary inquiry, investigation, preparation of a report or review.

661. The terms 'information', 'document' and 'thing' for the purposes of this section are intended to be interpreted broadly, and capture all relevant records of information or communication, including text or app messages (including, for example, messages sent through WhatsApp or Signal) and social media content. In particular, the Acts Interpretation Act defines 'document' to mean any record of information, and includes:

a.

anything on which there is writing,

b.

anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them,

c.

anything from which sounds, images or writings can be reproduced with or without the aid of anything else,

d.

a map, plan, drawing or photograph.

662. New paragraph 24F(1)(a) would provide that this section applies if the investigating Commissioner for a conduct issue has reasonable grounds to believe that a person has information, or a document or thing, that is relevant to:

a.

a preliminary inquiry under new section 24CG,

b.

the investigation of a conduct issue under Subdivision C of Division 3, or

c.

the preparation of a report under Subdivision D of Division 3 on the issue.

663. This would ensure that an investigating Commissioner would be able to exercise these compulsory information gathering powers at any point after being assigned a conduct issue, including for the purposes of preliminary inquiries. Enabling an investigating Commissioner to exercise compulsory information gathering powers during preliminary inquiries is similar to the approach taken in paragraph 42(2)(b) of the NACC Act, which allows the National Anti-Corruption Commissioner to require a person to produce information, documents or things during a preliminary investigation as if it were a formal corruption investigation. This approach would ensure that the investigating Commissioner is able to make an informed decision about how best to deal with a conduct issue, and whether there is likely to be sufficient evidence or information to justify an investigation.

664. In addition, this subsection would enable an investigating Commissioner to exercise these compulsory information gathering powers following the conclusion of a conduct issue in order to prepare the final report. This would ensure that the investigating Commissioner has the power to seek further information where its relevance becomes apparent after the draft report has been prepared, such as a result of considering responses on the draft report given under new paragraph 24CV(2)(b). In addition, this would also enable the investigating Commissioner to obtain other evidence and material about the conduct issue as a parliamentarian decision panel requires, upon their request under paragraph 24CT(3)(b).

665. New paragraph 24F(1)(b) would provide that this section also applies if a review panel dealing with an application for review has reasonable grounds to believe that a person has information, or a document or thing, that is relevant to the review. This would ensure that a review under Division 4 of Part 2A of a decision on a conduct issue can be conducted with access to all relevant information.

666. New subsection 24F(2) would provide that the Commissioner or panel may require a person to give the relevant information (such as a written statement), produce the relevant document or thing, or attend an interview (including to make a verbal statement or answer questions). The requirement must be set out in a written notice that is given to the person and satisfies the content requirements of 24F(3). Such a written notice may be provided by electronic means, consistent with the Electronic Transactions Act 1999.

667. The note under new subsection 24F(2) would clarify that a requirement under subsection 24F(2) would not affect the law relating to parliamentary privileges and immunities. This is consistent with existing section 67 of the PWSS Act, which provides that the PWSS Act does not affect the law relating to the powers, privileges and immunities of the Houses of Parliament, their members or committees. In addition, consistent with new section 24FF, the privilege against self-incrimination and legal professional privilege are not abrogated by this Subdivision.

668. New subsection 24F(3) would set out what is required in the notice given by the Commissioner or panel.

669. Where a notice requires the person to give information or produce a document or thing, new paragraph 24F(3)(a) would require that the notice must specify the period within which the person is required to comply with the notice. This period must be at least 14 days after the notice is given. The notice must also specify the manner in which the person must comply.

670. If the notice requires the person to attend an interview, new paragraph 24F(3)(b) would require that the notice must specify the time and place of the interview, as well as the subject matter of the interview.

671. New paragraph 24F(3)(c) would provide that all notices must state the effect of sections 24FA and 24FB, which outline when compliance with a notice is not required and the offence for failure to comply with a notice respectively. In addition, all notices must state the effect of sections 137.1 and 137.2 of the Criminal Code, which create offences of general application for the provision of false or misleading information or documents.

672. New subsection 24F(4) would provide that where a notice requires the person to attend an interview, and there is a reason why it is not reasonably practicable for the person to do so, they may, within seven days after receiving the notice, notify the issuing Commissioner or panel of the reason. This is intended to allow recipients of a notice to proactively notify the Commissioner or panel where there may be a reasonable reason that they are not able to attend an interview at the specified time or place. This would promote Commissioners and panels negotiating mutually available times with recipients of notices to attend an interview.

673. The note under new subsection 24F(4) would outline that a person commits an offence under new section 24FB if they fail to comply with a requirement of a notice under this section unless it is not reasonably practicable for the person to comply.

Section 24FA – When compliance with notice is not required

674. New section 24FA would outline the circumstances in which a person is not required to comply with a compulsory information gathering notice issued under new section 24F.

675. New subsection 24FA(1) would provide that the recipient of a compulsory information gathering notice under 24F is not required to comply with a requirement of that notice if new subsections 24FA(2) or (3) applies.

676. New subsection 24FA(2) would exempt a person from complying with a requirement of a notice if that requirement relates to information, a document or a thing obtained or brought into existence in the course of, or for the purposes of, providing a service under existing section 15 of the PWSS Act (the support function of the PWSS). This subsection would protect the confidentiality of the PWSS support function, which may include early intervention services, and the provision of trauma informed information, advice and support in relation to alleged relevant conduct. In particular, this is intended to ensure that parties to an IPSC investigation are freely able to engage with the PWSS support service, without fear that the information they provide could be later produced to the IPSC.

677. New subsection 24FA(3) would provide an exemption to protect the identity of journalists' informants. This subsection would exempt a journalist, their employer, or certain persons assisting them, from complying with a requirement of a notice if to do so would disclose the identity of an informant, or enable that identity to be ascertained. This exemption would assist to uphold the public interest associated with a free press, and would provide similar protections for the identities of journalist's informants as are afforded under the NACC Act. The exemption in this subsection would apply where:

a.

the requirement in the notice relates to information, a document or thing given by a person (the informant), whether directly or indirectly, to a person working in a professional capacity as a journalist,

b.

the information is given during the normal course of the journalist's work as a journalist,

c.

the journalist reasonably believes that the informant has provided the information on the express or implied understanding that their identity would not be disclosed, and

d.

compliance with the requirement would disclose the identity of the informant, or enable that identity to be ascertained.

678. This exemption would apply to any journalist, their employer and persons assisting them and employed or engaged by the journalist's employer, or assisting the journalist in the recipient's professional capacity.

679. A journalist would be a person working in a professional capacity as a journalist. Indicators that a person is working in a professional capacity as a journalist include regular employment, formal qualifications, adherence to enforceable ethical standards and membership of a professional body.

680. This would include journalists who are staff members of a Commonwealth entity, such as the ABC or SBS. In these circumstances, new subsection 24FA(4) would provide that the journalist's employer for the purposes of the exemption in new subsection 24FA(3) would be taken to be the accountable authority of the entity (within the meaning of the PGPA Act). If the accountable authority is a single person, that person is taken to be the journalist's employer. Alternatively, if the accountable authority is a governing body or group of persons, the Chief Executive Officer (however described) of the entity is taken to be the journalist's employer, unless the PWSS rules prescribe another person as the head of that entity.

681. New subsection 24FA(5) would clarify that staff members of a Commonwealth entity, for the purposes of subsection 24FA(4), include officials of the entity (within the meaning of the PGPA Act) and individuals who are employed by, or engaged in assisting the entity or a staff member of the entity on behalf of the entity or the Commonwealth.

682. The concept of assisting a journalist would cover persons who are directly assisting a journalist (for example, an editor assisting the journalist with an article or program, or an administrative staff member assisting the journalist with logistical arrangements for meetings with their sources), and persons who are indirectly assisting the journalist (for example, a lawyer who has been requested by an editor to provide legal advice in connection with a journalist's article before the article is finalised for publication).

Section 24FB – Offence—failure to comply with notice to give information etc.

683. New section 24FB would make it an offence for a person to fail to comply with a compulsory information gathering notice under new section 24F.

684. New subsection 24FB(1) would provide that a person commits an offence if they are required to give information, produce a document or thing or attend an interview in accordance with a notice given to them under new section 24F and the person fails to comply with that requirement.

685. The offence would consist of the following physical elements:

a.

the person is required to give information, produce a document or thing or attend an interview in accordance with a notice given to the person under section 24F,

b.

the person fails to comply with the requirement.

686. The fault elements for the physical elements would be determined in accordance with section 5.6 of the Criminal Code:

a.

for the circumstance that the person was required to give information, produce a document or thing or attend an interview - recklessness would be the fault element,

i.

This would mean that proof of intention, knowledge or recklessness would satisfy this fault element; in practice, where a notice has been given personally, the person would know of the requirement.

b.

for the conduct of failing comply with the requirement - intention would be the fault element.

687. This offence would carry a penalty of 30 penalty units, which is consistent with the penalty for the equivalent offence in section 53(4) of the Independent Parliamentary Expenses Authority Act 2017.

688. New subsection 24FB(2) would provide that the offence in subsection 24FB(1) does not apply if it is not reasonably practicable for the person to comply with the requirement in the information notice.

689. This defence is necessary to ensure individuals are not subject to criminal liability in situations such as where it would be not be reasonably practicable to produce the requested information documents or things. For example, it would not be an offence for a person to fail to produce a document in response to a compulsory information gathering notice if that document was not in their possession. Similarly, it would not be an offence for a person to fail to produce requested information and documents where it is not possible to compile all of the relevant information or documents in the time specified.

690. The question of whether it was 'not reasonably practicable' for a person to comply is an objective one, to be judged by the standard of behaviour expected of a reasonable person in the duty holder's position. For example, it may not be reasonably practicable for a person to comply with a requirement if it were physically possible but extraordinarily onerous for a person to comply with a requirement or if the person is dependent on a third party to access or produce a document or thing (such as a lawyer, bank or accounting firm that holds the document or thing on behalf of the person), and the person has taken all reasonably practicable steps to obtain the document or thing from the third party, but has been unable to do so.

691. The note under subsection 24FB(2) would clarify that a defendant would bear an evidential burden in relation to the matter in that subsection, consistent with subsection 13.3 of the Criminal Code. It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that it was not reasonably practicable for them to comply with a requirement to give information, produce a document or thing or attend an interview because the reasons why it was not reasonably practicable for a person to comply with such a requirement are likely to be entirely within the knowledge of the recipient of the notice, and it would not be onerous for the person to adduce or point to evidence that suggests a reasonable possibility of that matter. In addition, it would be onerous for the prosecution to disprove matters peculiarly within the knowledge of a defendant, including the reason why it was not reasonably practicable for a person to comply with a requirement and it would be unlikely that a prosecution would be brought where information indicating the availability of the defence—that it was reasonably practicable to comply with a requirement of the notice—is available to the prosecution.

Section 24FC – Interviews

692. New section 24FC would provide for the conduct of interviews pursuant to a section 24F notice.

693. This provision would apply to interviews conducted pursuant to a compulsory notice under new paragraph 24F(2)(c). Under that paragraph, an investigating Commissioner or review panel, as relevant, may require a person (the interviewee) to attend an interview, including to make a statement or answer questions.

694. New subsection 24FC(1) would require such an interview to take place in private. This reflects that IPSC processes are intended to be confidential, consistent with the purpose of the IPSC as a workplace investigation framework.

695. New subsection 24FC(2) would provide the investigating Commissioner or review panel with discretion to conduct the interview in such a manner as they think fit. This approach is in keeping with the discretion afforded to those conducting examinations, inquiries and hearings under subsection 25A(1) of the Australian Crime Commission Act 2002, subsection 14(1) of the AHRC Act and subsection 62(2) of the NACC Act. This would give the Commissioner or panel flexibility to adopt an appropriate level of formality to ensure that the interview is conducted effectively while, where relevant, incorporating a trauma-informed approach.

696. New subsections 24FC(3) to (8) would provide for the presence of support persons and legal practitioners at an interview.

697. New subsection 24FC(3) would provide that, subject to subsection 24FC(8) concerning unreasonable interference in an interview, a support person for the interviewee and/or a legal practitioner engaged by the interviewee are entitled to be present at an interview. While an interviewee is entitled to have a legal practitioner and/or support person attend an interview, it is not a requirement that either or both be present.

698. A support person may be a family member, friend, union representative, colleague or other individual. A support person is intended to provide emotional or moral support to an interviewee during the interview. However, it is not intended that a support person would be an advocate. For example, it is not intended that a support person would provide advice to the employee, attempt to answer questions on their behalf or unreasonably interrupt the interview.

699. The note under subsection 24FC(3) outlines that a support person for an interviewee may be approved under either subsection 24FC(4) or subsection 24FI(2). This reflects the definition of the term support person in section 5 of the PWSS Act, as amended by item 24 of this Bill.

700. Accordingly, a person must be approved as a support person in order to be entitled to attend an interview under new subsection 24FC(3). This approval process is intended to address real, potential or perceived conflicts of interest. This reflects that it would not always appropriate for some individuals to be a support person.

701. A person must be approved under either of these subsection 24FC(4) or subsection 24FI(2) to be entitled to attend an interview under this section. For example, if a person has an approved support person for the purposes of disclosing information that would otherwise be restricted pursuant to a confidentiality notice under Subdivision B of this Division, that person does not need to be separately approved under subsection 24FC(4) to be entitled to attend an interview.

702. New subsection 24FC(4) would require that when an application is made by an interviewee for a support person to be present at an interview, the Commissioner or panel must approve the support person if they are satisfied that the presence of the person at the interview would not prejudice any process, or any action, taken in accordance with Division 3 or 4 of this Part. For example, the Commissioner or panel may not approve a proposed support person for a respondent interviewee on the basis that they are also a witness to the particular conduct issue and their attendance at the interview may prejudice the IPSC's investigation.

703. New subsection 24FC(5) would provide that an approval under subsection 24FC(4) by the Commissioner or panel is not a legislative instrument. This provision is declaratory of the law and does not prescribe a substantive exemption from the requirements of the Legislation Act 2003 (Legislation Act), as the approval under 24FC(5) is administrative in character. An approval does not determine the law or alter its content within the meaning of subsection 8(4) of the Legislation Act, rather it determines particular persons who are entitled to attend an interview.

704. New subsection 24FC(6) would provide for the attendance at an interview of legal practitioners engaged by an interviewee. This subsection would require the Commissioner or panel to allow the interviewee to consult with the legal practitioner in private and provide reasonable facilities for doing so, and to allow the legal practitioner to give advice to the interviewee. This subsection would ensure that a Commissioner or panel would not interfere with the ability of an interviewee to seek and receive legal advice from their legal practitioner in their conduct of an interview. This new subsection is consistent with paragraphs 101E(3)(a) and (b) of the Defence Force Discipline Act 1982.

705. As with support persons, it is not generally intended that a legal practitioner would directly advocate for an interviewee, or unreasonably interfere in the interview. This reflects that the IPSC is a workplace investigation framework, rather than a court or tribunal proceeding.

706. New subsections 24FC(7) and (8) outline how a Commissioner or panel may deal with conduct by a support person or legal practitioner that unreasonably interferes with an interview.

707. New subsection 24FC(7) would enable a Commissioner or panel to direct a support person or legal practitioner to cease engaging in conduct which, in the opinion of the Commissioner or the panel, unreasonably interferes with an interview. This reflects the intention that support persons and legal practitioners are not advocates for an interviewee, but are entitled to be present at interview to provide emotional and moral support and legal advice, respectively. This power would ensure that support people or legal practitioners are only removed of their entitlement to attend an interview following due warning by a Commissioner or panel, and provides them an opportunity to cease their conduct.

708. New subsection 24FC(8) would provide that if a support person or legal practitioner fails to comply with such direction, then they are no longer entitled to be present during the interview.

Section 24FD – Retaining documents and things

709. New section 24FD would outline the circumstances in which an investigating Commissioner or review panel may retain documents and things produced under new section 24F.

710. New subsection 24FD(1) would provide that this section applies if a document or thing is produced to the investigating Commissioner or review panel pursuant to a compulsory information gathering notice under new section 24F.

711. New subsection 24FD(2) would enable the Commissioner or panel to make copies of the document or thing or to take extracts from the document. In addition, this subsection would authorise a Commissioner or panel to retain possession of the document or thing for as long as is necessary to perform their functions.

712. New subsection 24FD(3) would provide that while a document or thing is being retained by the Commissioner or panel, the Commissioner or panel, as relevant, must allow a person who would otherwise be entitled to inspect or view the document or thing must be able to do so at all reasonable times. They must also be allowed to copy the document or thing.

713. This would enable, for example, a respondent who had been compelled to provide their hard copy diary to the investigating Commissioner under section 24F to attend the offices of the IPSC to review particular entries and make copies to assist in obtaining legal advice or representation.

714. New subsection 24FD(4) would limit the circumstances in which a person is entitled to access retained documents or things under new subsection 24FD(3), by providing that it does not apply if:

a.

possession of the document or thing by the person could constitute an offence,

b.

inspecting or copying the document or thing (as the case requires) would compromise or damage it, or

c.

the Commissioner or panel is satisfied that allowing the person to inspect the document or view the thing would prejudice the performance of the Commissioner's or panel's functions.

Section 24FE – When documents and things must be returned

715. New section 24FE would outline the process for returning documents or things that have been produced to an investigating Commissioner or review panel under new section 24F.

716. New subsection 24FE(1) would provide that this section applies if an investigating Commissioner or review panel is satisfied that a document or thing produced to them pursuant to a compulsory information gathering notice under new section 24F is not required, or no longer required, for the purposes of the performance of the Commissioner's or panel's functions.

717. New subsection 24FE(2) would require the Commissioner or panel to take reasonable steps to return a document or thing to the person it was received from, or to the owner if the person the document or thing was received from is not entitled to possess it.

718. New subsection 24FE(3) would provide that the Commissioner or panel does not have to take such steps to return the document or thing if:

a.

its possession by the person could constitute an offence,

b.

it may otherwise be retained, destroyed or disposed of under a law or an order of a court or tribunal of the Commonwealth or a State or Territory,

c.

it is forfeited or forfeitable to the Commonwealth or is subject to a dispute over ownership.

719. The requirement to return documents and things would apply to the original, it does not apply to a copy of a document or thing made by the Commissioner. This is appropriate to ensure that persons are not deprived of their property for any longer than is necessary, while ensuring that the Commissioner or panel can continue to retain copies and extracts where necessary for the performance of their functions and compliance with legal obligations, including under the Archives Act.

Section 24FF – Privilege against self-incrimination and legal professional privilege not abrogated

720. New section 24FF would clarify that the privilege against self-incrimination and legal professional privilege are not affected by the powers to require the production of information, documents and things under this Subdivision.

721. New subsection 24FF(1) would confirm that nothing in this Subdivision affects the rights of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information or the production of the document might tend to incriminate the person. Accordingly, a person may refuse to produce a document pursuant to a compulsory information gathering notice under new section 24F on the basis that the contents or the production of the document might incriminate the person.

722. Similarly, new subsection 24FF(2) would confirm that nothing in this Subdivision affects the rights of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, information or documents would be privileged on the ground of legal professional privilege. Accordingly, a person may refuse to answer a question during an interview conducted under new section 24FC on the basis that the answer may disclose legal advice protected by legal professional privilege.

723. This provision is in addition to existing section 67 of the PWSS, which provides that the PWSS Act does not affect the law relating to the powers, privileges and immunities of the Parliament. Accordingly, the compulsory information gathering powers in this Subdivision would not abrogate the privilege against self-incrimination, legal professional privilege and parliamentary privilege.

724. New subsection 24FF(3) would clarify that the inclusion of this section within this Subdivision does not imply that the privilege against self-incrimination or legal professional privilege is abrogated in any provision of the PWSS Act, as amended by this Bill, or any other Act.

Subdivision B—Confidentiality notices

Section 24FG – Application of Subdivision

725. New section 24FG would outline the application of this Subdivision.

726. New section 24FG would provide that this Subdivision applies to information that relates to any process, or any action, taken in accordance with new Division 3, 4 or 5 of this Part in relation to a conduct issue that was or is before the IPSC, and that has not been lawfully made public.

727. This Subdivision would apply to any information that relates to an IPSC process or action under Division 3, 4 or 5 of this Part that is not lawfully in the public domain, regardless of the origin of that information. As such, the information that may be protected by a notice is not limited to information produced to, or by, the IPSC, voluntarily or as required by a compulsory information gathering notice under section 24F. This could include, for example, any account of the alleged relevant conduct, regardless of whether it has or will be provided to the IPSC.

728. A responsible Commissioner or Commissioners may issue a confidentiality notice under this Subdivision at any point after a conduct complaint or conduct issue referral has been made to the IPSC, or the Chair Commissioner has otherwise become aware of the conduct issue. A process or action taken in accordance with Division 3, 4 or 5 of this Part may include, amongst other things, the making of a conduct complaint or a conduct issue referral, an investigating Commissioner undertaking preliminary inquiries or investigating a conduct issue, decisions by a parliamentarian decision panel under Division 3 or a review process under Division 4, or a referral of a serious breach finding to the Parliament under Division 5. For example, a responsible Commissioner or Commissioners may issue a confidentiality notice concerning information such as the content of a conduct issue complaint or referral, the content of a final report, or an IPSC investigation generally.

729. However, this section would not capture all information obtained or produced by the IPSC on a day-to-day basis. For example, this Subdivision would not apply to information arising from the general administration of the IPSC, or the IPSC's performance of other functions such as preparation of guidance material, except to the extent that the information also relates to a particular conduct issue.

Section 24FH – Confidentiality notices

730. New section 24FH would enable a responsible Commissioner or Commissioners to impose confidentiality notices on individuals to protect certain IPSC information.

731. As recommended by the Set the Standard Report, it is intended that IPSC investigations would be confidential. This reflects that, as a workplace investigation framework, the IPSC would routinely deal with sensitive personal information and confidentiality of that information would be necessary in order to maintain confidence and trust in the IPSC and its processes by all Commonwealth parliamentary workplace participants. As such, the inclusion of this provision is necessary to support the integrity and effective conduct of IPSC processes as well as to ensure the appropriate protection of information disclosed to the IPSC.

732. This section would operate in conjunction with the secrecy provisions in new Subdivision C for entrusted persons. In contrast to those provisions, rather than providing a general confidentiality obligation for all participants in an IPSC process, this section would enable the responsible Commissioner or Commissioners to tailor the scope and content of a confidentiality notice to the circumstances of a particular conduct issue and the needs of the complainant, respondent and other affected persons. This would provide a rigorous but flexible confidentiality mechanism for the IPSC to protect sensitive information associated with allegations and investigations, consistent with the notation, direction and notice mechanisms in sections 95, 100 and 233 of the NACC Act.

733. New subsection 24FH(1) would provide that a responsible Commissioner or Commissioners may give a confidentiality notice to a person (the recipient) imposing such conditions on the making of a record, and the disclosure, of specified information, within the scope of new section 24FG, by the recipient or others.

734. This provision would not limit the persons who may be the recipient of such a notice. Recipients of a notice may include, amongst others, a complainant, a respondent, a witness, an employer or a referrer. However, a responsible Commissioner or Commissioners would have discretion to give a notice to any relevant person, where the requirements of this section are met. In addition, a responsible Commissioner or Commissioners may impose a confidentiality condition on a person other than the recipient. For example, if a notice allowed a recipient to disclose specified information to their spouse, a responsible Commissioner may prohibit that spouse further disclosing or making a record of that information.

735. It is intended for there to be flexibility in the conditions that may be imposed by a confidentiality notice on the making of records or disclosure of information. For example, provided that the requirements in this section are met, a confidentiality notice may impose conditions that a recipient not disclose the specified information in any circumstance, not disclose the specified information to certain individuals (such as to other participants in an IPSC investigation) or only disclose the specified information to certain individuals (such as to family members or other specified support networks). Similarly, a condition could be limited to apply only to a particular document or piece of information (such as a final report, review decision or piece of correspondence), or could be drafted to capture all information relating to preliminary inquiries and investigation into a particular conduct issue, as well as the circumstances and details of the alleged conduct.

736. This flexibility is intended to enable responsible Commissioners to tailor confidentiality notices to take into account the particular circumstances of matter. For example, a responsible Commissioner may tailor a notice to the nature of the specified information (such as whether the information is of a particularly sensitive nature) or take into account existing obligations a recipient has not to disclose information (such as obligations under the Public Service Act for APS employees).

737. Such a notice must be given in writing. Consistent with the Electronic Transactions Act 1999, such a written notice may be provided by electronic means. This would ensure that recipients are made aware of the IPSC confidentiality obligations and exceptions that apply to them and to persons to whom they may legally disclose confidential information.

738. However, a responsible Commissioner or Commissioners may only impose such conditions as they consider appropriate to meet any of the purposes set out in paragraphs 24FH(1)(c)-(f). These paragraphs provide that a responsible Commissioner or Commissioners may impose conditions as they consider appropriate to:

a.

prevent prejudice to any process or any action taken in accordance with Division 3, 4 or 5 of this Part (how the IPSC deals with conduct issues, review of conduct issues, and referral of serious breach findings to the Parliament), the fair trial of any person, the impartial adjudication of a matter, or the proper enforcement of the law,

b.

protect the identity of a complainant, respondent or any other person affected by the conduct issue, or any person who has given, or who the responsible Commissioner or Commissioners reasonably believes may give, information to the responsible Commissioner or Commissioners in connection with the conduct issue,

c.

prevent unreasonable detriment to a complainant, respondent, or any person affected by the conduct issue,

d.

prevent the publication of sensitive information.

739. This would ensure that a responsible Commissioner or Commissioners may only impose confidentiality conditions on a recipient to the extent necessary to meet a legitimate public purpose. These grounds would protect individuals engaging with IPSC processes, ensure that individuals do not face unreasonable detriment for engaging with the IPSC and protect the integrity of IPSC processes as well as other legal proceedings. For example, a responsible Commissioner may impose a condition that participants in an IPSC process do not disclose the names or other identifying information, such as their positions within a parliamentarian's office, about other participants.

740. New paragraph 24FH(2)(a) would provide that a confidentiality notice under subsection 24FH(1) must set out the effect of the section 24FI, which provides for disclosures to which confidentiality notices do not apply, and section 24FJ, which provides an offence for failure to comply with a confidentiality notice.

741. New paragraph 24FH(2)(b) would provide that a confidentiality notice under subsection 24FH(1) must specify the period for which a condition is in force. This duration could be specified by reference to a date, particular circumstances or occurrence of an event (such as the conclusion of related court proceedings), or until the notice is varied or revoked in accordance with subsection 33(3) of the Acts Interpretation Act.

742. The responsible Commissioner's or Commissioners' decision on the duration of a confidentiality notice must balance the intention that investigation outcomes and details should only become public on limited grounds with the importance of providing transparency, and the need to ensure that affected persons can speak publicly about the alleged conduct or the allegation once the investigation is complete.

743. It is intended that a confidentiality notice could continue to operate beyond the completion of an investigation, similar to the NACC Act, in limited circumstances. New subsection 24FH(3) would provide that the period a confidentiality notice is in force must end:

a.

no later than the end of the day on which the conduct issue is concluded, or

b.

at a specified later time, if the responsible Commissioner or Commissioners are satisfied that it is appropriate to meet any or all of the conditions at paragraphs 24FH(1)(c) to (f).

744. This would provide a rebuttable presumption that confidentiality obligations would end upon the conclusion of a conduct issue unless continued confidentiality is required in order to meet a public interest purpose. This would ensure that confidentiality obligations would continue to apply for no longer than necessary. For example, if court proceedings relating to the conduct issue were commenced following the conclusion of that conduct issue, the confidentiality notice may continue in force if the responsible Commissioner were satisfied the conditions were necessary to prevent prejudice to the impartial adjudication of that matter, under paragraph 24FH(1)(c)(ii).

745. New subsection 24FH(4) would provide that a conduct issue is concluded for the purposes of subsection 24FH(3):

a.

if a decision is made on the conduct issue (under new section 24CY) and an application for review (under new section 24DA) is made within the specified period, the conduct issue would be concluded when the review application is finally determined, or

b.

if a decision is made on the conduct issue (under new section 24CY) and no review application is made within the specified period, the conduct issue would be concluded when that specified period (under paragraph 24DA(4)(c)) ends, or

c.

otherwise the conduct issue would be concluded when it was dealt with in accordance with new section 24CF.

746. In addition, a confidentiality notice will only have effect while the relevant information has not been lawfully disclosed to the public. This ensures that even if a confidentiality condition continues to apply following the conclusion of a conduct issue, consistent with subsection 24FH(3)(b), that condition would automatically be lifted if and when the information covered by the condition is lawfully published.

Section 24FI – Disclosures etc. to which confidentiality notices do not apply

747. New section 24FI would provide for certain disclosures to which confidentiality conditions imposed through a notice under new section 24FH do not apply.

748. This section would outline the making of certain records or disclosure that confidentiality conditions would not apply to. Accordingly, the making of a record or a disclosure in accordance in this section would not constitute a breach of a confidentiality condition, and therefore would not be an offence under new section 24FJ.

749. This section would have the effect that a confidentiality condition imposed through a notice under new section 24FH could not apply to the making of a record or a disclosure in these prescribed public interest circumstances. These exceptions could not be overridden or diminished by the terms of a confidentiality condition. For example, if a confidentiality notice imposed a general condition that a recipient not disclose any information about a conduct issue to any other person and in any circumstances, that general confidentiality obligation would not apply to the disclosure of information to the PWSS's support service, consistent with subparagraph 24FI(1)(b)(i).

750. These grounds would provide minimum protections for recipients of a confidentiality notice. However, a responsible Commissioner or responsible Commissioners may also provide further exceptions to a confidentiality condition through the design and scope of the confidentiality notice. Accordingly, disclosure of information may be permitted in situations beyond those set out in this section. For example, if a confidentiality notice stated that its conditions apply only to the extent that disclosure of the information could reasonably identify the respondent, the recipient would be able to speak about the fact of the complaint and the alleged relevant conduct in a broader range of circumstances than those set out in section 24FI. Similarly, if a confidentiality notice provided that it applied to all information related to the conduct issue, but was not intended to restrict discussion in a personal and domestic setting, the recipient would be able to speak privately about the matter in broader circumstances than just to an approved support person under subparagraph 24FI(1)(b)(v).

751. New subparagraph 24FI(1)(a)(i) would provide that confidentiality notice conditions do not apply to the making of a record or disclosure that is required or authorised by or under the PWSS Act, as amended by this Bill, another law of the Commonwealth, a State or Territory or a court or tribunal order. For example, a confidentiality notice condition would not apply to a recipient responding to a compulsory information gathering notice under new subsection 24F(2). In addition, confidentiality notice conditions would not prevent parliamentarians or other employers of Commonwealth parliamentary workplace participants from meeting their statutory obligations to disclose notifiable work health and safety incidents to Comcare, or a corresponding regulator such as the ACT Work Health and Safety Commissioner. Nor would confidentiality notice conditions prevent compliance (or excuse non-compliance) with other statutory summonses or notices to produce, or frustrate the giving of evidence or production of documents in response to a subpoena or summons issued by a court or tribunal.

752. New subparagraphs 24FI(1)(a)(ii) and (iii) would provide that confidentiality notice conditions do not apply to the making of a record or disclosure that is required by or under, or for the purpose of obtaining advice in relation to a contract of insurance or a policy of insurance issued by the Commonwealth. These subparagraphs recognise that individuals subject to confidentiality notice conditions may hold relevant insurance policies (such as an employer's special liability insurance), and that MOPS or APS employees may need to seek advice on the operation of the Comcover scheme and its application to a conduct issue.

753. New subparagraph 24FI(1)(a)(iv) would provide that confidentiality notice conditions do not apply to the making of a record or disclosure to protect life or safety. This would ensure that confidentiality conditions would not prevent individuals taking urgent or considered action to protect life or safety. This is necessary to prevent conditions imposed under new subsection 24FH(1) frustrating the Bill's broader objectives of supporting safe and respectful Commonwealth parliamentary workplaces. This exception also reflects that any workplace participant should be able to seek emergency assistance where there is immediate risk or danger.

754. New subparagraph 24FI(1)(b)(i) would provide that confidentiality notice conditions do not apply to the making of a disclosure to the PWSS for the purpose of a service provided through the PWSS's support function to the recipient. This would ensure that confidentiality notice conditions would not prevent a recipient accessing the PWSS' support service. In turn, information disclosed to the PWSS by the recipient (or other persons) through their engagement with the support service could not be compelled by an investigating Commissioner or review panel (under new subsection 24F(2)). The interaction of these provisions would protect the accessibility and confidentiality of the PWSS support function.

755. New subparagraph 24FI(1)(b)(ii) would provide that confidentiality notice conditions do not apply to the making of a disclosure by a recipient to their employer, or to their supervisor or manager, if the disclosure is of information that does not reveal the conduct issue. This would permit the recipient to inform their employer, supervisor or manager of their involvement in a matter that is or was before the IPSC, provided they do not reveal the conduct issue. This exception enables investigation participants to be transparent about their obligations to the IPSC, such as attendance at interviews or preparation of statements, and seek accommodation or support from their employer as necessary. For example, a MOPS employee could notify their Chief of Staff that they could not attend work on a particular day due to the need to attend an IPSC interview. However, the MOPS employee could not disclose the particular conduct issue, including details of the alleged relevant conduct, the complainant or respondent.

756. New subparagraph 24FI(1)(b)(iii) would provide that confidentiality notice conditions do not apply to the making of a disclosure to a legal practitioner for the purpose of obtaining legal advice or representation in relation to a conduct issue, or a process or action taken in accordance with Division 3, 4 or 5 of this Part. This would ensure that confidentiality notice conditions do not limit the ability for recipients to obtain legal advice in relation to a conduct issue, the IPSC's dealing with a conduct issue, or review of a decision on a conduct issue.

757. New subparagraph 24FI(1)(b)(iv) would provide that confidentiality notice conditions do not apply to the making of a disclosure to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling). This would ensure that confidentiality notice conditions do not limit the ability for recipients to seek and access medical or psychiatric care, particularly noting the sensitivity of the conduct that may be investigated by the IPSC.

758. New subparagraph 24FI(1)(b)(v) would provide that confidentiality notice conditions do not apply to the making of a disclosure by the recipient to a support person for the recipient. A support person may be a family member, friend, union representative, colleague or other individual. This is intended to ensure that recipients are able to seek emotional and moral support from approved support people in relation to an IPSC process.

759. The note under subsection 24FI(1) outlines that a support person for a recipient may be approved under either subsection 24FC(4) or subsection 24FI(2). This reflects the definition of the term support person in section 5 of the PWSS Act, as amended by item 24 of this Bill.

760. Accordingly, a person must be approved as a support person in order for the recipient to be able to disclose information to them under this section. This approval process is intended to address real, potential or perceived conflicts of interest. This reflects that it would not always be appropriate for some individuals to be a support person.

761. A person must be approved under either of these subsection 24FC(4) or subsection 24FI(2) to be entitled to receive disclosures under this section. For example, if a person has an approved support person for the purposes of attending an interview under new section 24FC, that person does not need to be separately approved under this section to receive information.

762. New subsection 24FC(4) would require that when an application is made by an interviewee for a support person to be present at an interview, the Commissioner or panel must approve the support person if they are satisfied that the presence of the person at the interview would not prejudice any process, or any action, taken in accordance with Division 3 or 4 of this Part. For example, the Commissioner or panel may not approve a proposed support person for a respondent interviewee on the basis that the proposed support person is also a witness to the particular conduct issue and their attendance at the interview may prejudice the IPSC's investigation.

763. New subsection 24FI(2) would enable the approval of support persons for those engaging with the IPSC. On application by the recipient, the responsible Commissioner or Commissioners must, in writing, approve a person as a support person for the recipient if satisfied that:

a.

the recipient intends to make the disclosure to the person for the purpose of seeking support from the person, and

b.

the making of the disclosure to the person would not prejudice the IPSC's dealing with a conduct issue, or review of a decision on a conduct issue.

764. New subsection 24FI(3) would provide that an approval under subsection 24FI(2) is not a legislative instrument. This provision is declaratory of the law and does not prescribe a substantive exemption from the requirements of the Legislation Act, as the approval under subsection 24FI(2) is administrative in character. An approval does not determine the law or alter its content within the meaning of subsection 8(4) of the Legislation Act, rather it determines particular persons to whom the law regarding disclosure of information as referred to in 24FH(1)(b) does not apply.

Section 24FJ – Offence—failure to comply with confidentiality notice

765. New section 24FJ would make it an offence for a person to breach a condition set out in a confidentiality notice under subsection 24FH(1).

766. The Final Report of the Attorney General's Department's Review of Secrecy Provisions recommended, among other things, that secrecy offences should be limited to circumstances where there is an essential public interest that requires criminal sanctions. The Set the Standard Report made clear that unauthorised disclosure of confidential conduct issue information would impact Commonwealth parliamentary workplace participants' trust in the IPSC, deterring further provision of sensitive information and constraining their engagement with IPSC processes. This would compromise the ability of the IPSC to improve the culture and safety of these workplaces. As such, and consistent with the application of Principle 1 of that Report, the creation of an offence under this section is justified.

767. New section 24FJ would provide that a person commits an offence if they engage in conduct and that conduct breaches condition under subsection 24FH(1).

768. The offence would consist of the following physical elements:

a.

the person engages in conduct,

b.

the person breaches a condition under subsection 24FH.

769. The fault elements for the physical elements would be determined in accordance with section 5.6 of the Criminal Code:

a.

for the element of engaging in conduct – intention would be the fault element,

b.

for the element of the person's conduct breaching a confidentiality condition – recklessness would be the fault element.

770. Accordingly, a person would only commit this offence if they intentionally engaged in conduct that recklessly breached a confidentiality condition. In this context, recklessness would require the person to be aware of a substantial risk that the conduct would breach a confidentiality condition, and having regard to the circumstances known to the person, it is unjustifiable to take that risk (see section 5.4 of the Criminal Code). Intent to breach the condition, or knowledge that in the ordinary course of events the conduct will lead to breach, would also be sufficient to make out the offence.

771. The maximum penalty for this offence would be 6 months imprisonment, or 30 penalty units, or both. This penalty is appropriate given the potentially serious consequences of a breach of a confidentiality notice condition, both immediate (such as prejudice to an investigation, or publication of a complainant's name in circumstances where safety concerns warranted protection of their identity) and cumulative (in relation to trust in the IPSC, and its capacity improve the safety of Commonwealth parliamentary workplaces).

772. In addition to this criminal offence, the unauthorised disclosure of confidential IPSC information by a parliamentarian or MOPS employee may also constitute a breach of a Behaviour Code, and could therefore be subject to investigation by the IPSC.

773. This is on the basis that the Behaviour Codes provide that both parliamentarians and MOPS employees are obliged to 'maintain the confidentiality of the complaint process, unless authorised by the IPSC (or otherwise required by law) to share or release information' (paragraph 15(b) of Behaviour Code for Australian Parliamentarians and paragraph 14(a) of the Behaviour Code for Parliamentarians' Staff.

Subdivision C—Secrecy of information

Section 24FK – Unauthorised disclosure of information

774. New section 24FK would create an offence for the unauthorised disclosure of information obtained by entrusted persons in the course of performing their duties.

775. As recommended by the Set the Standard Report, it is intended that IPSC investigations would be confidential. This reflects that, as a workplace investigation framework, the IPSC and its Commissioners would routinely deal with sensitive personal information and confidentiality of that information would be necessary in order to maintain confidence and trust in the IPSC and its processes by all Commonwealth parliamentary workplace participants. As such, and consistent with the application of Principle 1 of the Final Report of the Attorney General's Department's Review of Secrecy Provisions, the creation of an offence under this section is justified as it would protect the integrity of IPSC processes and investigations as well as protect individuals involved in such investigations.

776. New subsection 24FK(1) would make it an offence for a current or former entrusted person to make a record of, or disclose, any information that was obtained in the course of, or for the purposes of, performing functions or duties, or exercising powers, under new Part 2A, or assisting another person to perform functions or duties, or exercise powers, under new Part 2A. This would capture any record or disclosure, whether made directly or indirectly.

777. For example, it would be an offence for an entrusted person to disclose information relating to a particular conduct issue, investigation or review, unless they were otherwise authorised to do so by the PWSS Act, as amended by this Bill.

778. This offence would apply to an entrusted person. The term entrusted person is defined at section 5, as amended by item 22 of this Bill, as the PWSS CEO, an IPSC Commissioner, and the staff of the IPSC being persons assisting the IPSC under new section 40A and consultants engaged by the Chair Commissioner or a Commissioner under new section 40B. This would capture the individuals who would obtain IPSC information through the course of their functions under the PWSS Act, as amended by this Bill. These individuals would hold positions of significant public trust, being to deal with conduct issues, which may include allegations of serious misconduct involving elected officials.

779. This offence would extend to the disclosure of information by a person who was an entrusted person. As such, an entrusted person's confidentiality obligation does not cease upon the end of their appointment, employment or contract. To the extent that is otherwise necessary to protect the confidentiality of information obtained by individuals other than entrusted persons, a responsible Commissioner or Commissioners may impose a confidentiality notice under Subdivision B of this Division.

780. This offence would apply to the disclosure of information obtained in the course of, or for the purposes of, an entrusted person performing or exercising their functions, duties or powers under new Part 2A of the PWSS Act. This offence would also apply to where the making of a record or the disclosure of information is for the assistance of another person to perform or exercise such functions, duties or powers. This offence would not require proof that harm had, or could have, occurred if the information was disclosed. This is appropriate given the limited application of this provision to entrusted persons and given that the unauthorised disclosure of IPSC information could reasonably be expected to cause a range of significant and direct harms. For example, the unauthorised disclosure of IPSC information could prejudice investigations into relevant conduct or damage a person's reputation and mental health, which itself could expose those persons to significant risks to their life, safety and wellbeing.

781. Additionally, it is essential that the PWSS CEO, IPSC Commissioners and staff of the IPSC be trusted to carry out their functions in an effective and impartial manner and to protect the kinds of highly sensitive information they obtain. In particular, the proper and effective functioning of the IPSC will depend on the trust and confidence of Commonwealth parliamentary workplace participants, in particular those voluntarily making conduct issue complaints or conduct issue referrals, in order to achieve its objective of promoting safe and respectful Commonwealth parliamentary workplaces. Many persons may be less likely to voluntarily provide information to the IPSC if they perceived there was any risk that such information would not be protected, particularly in relation to significant or high-profile investigations involving elected officials where there may be a risk of sustained public scrutiny or retaliation. As such, the unauthorised disclosures of information by entrusted persons would risk serious damage to that trust, and therefore to the sustainability of the powers and functions vested in those individuals. Any perception that the IPSC is unable to safeguard information within its possession is likely to undermine that trust and confidence.

782. The penalty for this offence is up to 6 months imprisonment or 30 penalty units, or both. This penalty is appropriate given the harm that may flow from an unauthorised disclosure, and is consistent with comparable offences in section 20 of the PID Act.

783. New subsection 24FK(2) would provide that this offence does not apply if the making of the record, or the disclosing of the information, is authorised by new sections 24FL to 24FR. These new sections outline when a disclosure is authorised. For example, it would not be an offence under this section for a person to record or disclose information for purposes connected with performing a function or duty under the PWSS Act, as amended by this Bill.

784. The defendant would bear an evidential burden in relation to these defences, consistent with subsection 13.3 of the Criminal Code. It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their disclosure was authorised by this Subdivision because the reasons why an entrusted person obtained, recorded or disclosed information would be solely and entirely within the knowledge of the entrusted person, and it would not be onerous for the person to adduce or point to evidence that suggests a reasonable possibility of that purpose. In addition, it would be onerous for the prosecution to disprove matters peculiarly within the knowledge of a defendant, including the reasons why an entrusted person obtained, recorded or disclosed information and it would be unlikely that a prosecution would be brought where information indicating the availability of the defence—that the disclosure was authorised—is available to the prosecution.

Section 24FL – Disclosure etc. for purposes connected with functions and powers

785. New section 24FL would authorise entrusted persons to record or disclose information for purposes connected with their functions and powers.

786. New section 24FL would provide that an entrusted person may record or disclose information (including personal information) for purposes connected with the performance or exercise of functions or powers under the PWSS Act, as amended by this Bill, or another Act.

787. In authorising the recording and disclosure of information, this section would operate as an exception to the offence in new section 24FK. This would ensure that the confidentiality obligation imposed by new section 24FK would not operate so as to limit entrusted persons from performing or exercising their statutory functions and powers. As such, an entrusted person may make a record or disclose information in accordance with this section, without committing an offence under new section 24FK.

788. For example, this section would authorise an IPSC Commissioner to consult with relevant agencies for the purposes of deciding whether to investigate a conduct issue under new section 24CH. For instance, the investigating Commissioner may disclose information to other government entities, such as the NACC or the Independent Parliamentary Expenses Authority, for the purposes of determining whether conduct would be more appropriately dealt with under another Commonwealth, State or Territory law, or if the conduct is or has been dealt with under such a law. Similarly, the Commissioner would be authorised to disclose information to the PWSS for the purposes of determining whether the conduct is being, or would be more appropriately dealt with, through the complaint resolution process under section 16 of the PWSS Act.

789. This authorisation serves a different purpose to the general authorisation to share information in section 61 of the PWSS Act, as amended by this Bill. That section, as amended, would authorise the IPSC to disclose information where reasonably necessary for the recipient's functions, activities or powers (as opposed to the entrusted person's functions).

790. New paragraph 24FL(1)(b) clarifies that this section does not authorise the disclosure of information that relates to a conduct issue involving conduct that may constitute a serious offence against another person. Disclosure of such information is authorised under new section 24FM. However, this section would authorise the disclosure of information concerning potentially criminal conduct, other than information relating to serious offences.

791. For example, this section would authorise an IPSC Commissioner to confer with federal, state or territory police as to whether a conduct issue which involved criminal conduct, such as theft or vandalism, would be more appropriately dealt with under the criminal law, or whether an IPSC investigation would be otherwise inappropriate, such as whether such an investigation would inappropriately hinder or interfere with any future police investigation.

792. The note under this section clarifies that a defendant would bear an evidential burden in relation to the matter in this section. Further to the discussion in new section 24FK, this burden is appropriate as the defendant would be best placed to identify whether a disclosure was authorised under this section, for example by reference to the functions of the defendant as an entrusted person, and the purpose for which they engaged in particular conduct.

Section 24FM – Disclosure etc. of information relating to serious offences

793. New section 24FM would authorise entrusted persons to record or disclose information relating to serious offences in certain circumstances.

794. New subsection 24FM(1) would provide this section would apply if the information recorded or disclosed relates to a conduct issue involving conduct that may constitute a serious offence against another person (referred to as the potential victim for the purposes of this section). The term serious offence is defined in section 5, as amended by item 24 of this Bill, as an offence against a law of the Commonwealth, a State or a Territory involving assault or sexual assault, or any other offence prescribed in the PWSS rules. For the purposes of this section, information need only relate to conduct that may constitute a serious offence.

795. In authorising the recording and disclosure of information, this section would operate as an exception to the offence in new section 24FK. Providing specific and limited authorisations for entrusted persons to record and disclose information relating to serious offences respects the agency of potential victims, and promotes their choice and control with respect to reporting to police, while also allowing entrusted persons to undertake their statutory functions and comply with mandatory reporting obligations. As such, an entrusted person may make a record or disclose information in accordance with this section, without committing an offence under new section 24FK.

796. New subsection 24FM(2) would authorise the making of a record of information relating to a serious offence. This subsection would provide that an entrusted person may make a record of information (including personal information) relating to a serious offence for purposes connected with the performance or exercise of functions or powers under the PWSS Act, as amended by this Bill, or another Act. For example, an IPSC Commissioner may make a file note of a conversation with a potential victim after they had made a conduct complaint.

797. New subsection 24FM(3) would provide that an entrusted person may disclose information (including personal information) relating to a serious offence for purposes connected with the performance or exercise of functions or powers under the PWSS Act, as amended by this Bill, or another Act, other than to the Australian Federal Police, state or territory police (which is provided for under new subsection 24FM(4)). For example, an IPSC Commissioner may refer a potential victim to the PWSS's support services in order to access wellbeing support.

798. New subsection 24FM(4) would provide for disclosures to the Australian Federal Police, state or territory police. Under this section, an entrusted person may disclose information (including personal information) relating to a serious offence to the AFP, or state or territory police, if any of the following apply:

a.

the potential victim consents to the disclosure,

b.

the disclosure is for the purposes of deciding how to deal with the conduct issue,

c.

the disclosure is required by or under another law of the Commonwealth, a law of a State or a Territory, or a court/tribunal order.

799. For example, subsection 24FM(4) would authorise an IPSC Commissioner to confer with the Australian Federal Police, state or territory police as to whether a conduct issue which involved conduct that may constitute a serious criminal offence would be more appropriately dealt with under the criminal law, or whether an IPSC investigation would be otherwise inappropriate, such as whether such an investigation would inappropriately hinder or interfere with any future police investigation. In addition, this section would authorise an IPSC Commissioner to disclose information to meet legal requirements, such as to comply with any applicable obligations to disclose potential child sexual abuse.

800. The requirement that disclosure of information relating to serious offences to police only occur with complainant consent, where required by law, or where the disclosure is for the purposes of deciding how to deal with the conduct issue is consistent with recommendation 1 of the Senate Legal and Constitutional Affairs References Committee's Report on current and proposed sexual consent laws in Australia, that in all responses to sexual violence, governments and non-government organisations ensure that the agency of victim-survivors is paramount, actively respected and upheld.

801. The notes under subsections 24FM(2) to (4) clarifies that a defendant would bear an evidential burden in relation to the matters in these subsections. Further to the discussion in new section 24FK, this burden is appropriate as the defendant would be best placed to identify whether a disclosure was authorised under this section, for example by reference to the functions of the defendant as an entrusted person, and the purpose for which they engaged in particular conduct.

Section 24FN – Disclosure etc. required or authorised by law

802. New section 24FN would authorise entrusted persons to record or disclose information where required or authorised to do so by law.

803. New section 24FN would provide that an entrusted person may record or disclose information (including personal information) where the record or disclosure is required or authorised under the PWSS Act, as amended by this Bill, or another Act.

804. In authorising the recording and disclosure of information, this section would operate as an exception to the offence in new section 24FK. This would ensure that the confidentiality obligation imposed by new section 24FK would not operate so as to limit entrusted persons from complying with their statutory obligations or giving effect to other legislative authorisations. As such, an entrusted person may make a record or disclose information in accordance with this section, without committing an offence under new section 24FK.

805. For example, this section would authorise an IPSC Commissioner to make a public statement to afford fairness or about a parliamentarian, as authorised under Division 6 of this Part, or to provide a copy of the final report to relevant individuals, as required under new section 24CZ.

806. In particular, Part 7 of the PWSS Act, as amended by this Bill, would authorise the IPSC to share information with the PWSS, other Commonwealth entities, individuals holding office or appointment under Commonwealth law, the Presiding Officers and State or Territory law enforcement entities. Accordingly, the disclosure of information by an entrusted person as authorised by that Part would not constitute an offence under new section 24FK.

807. To avoid doubt, new subsection 24FN(2) would clarify that the PWSS Act, as amended by this Bill, authorises the disclosure of information as part of a referral by an investigating Commissioner to another person in accordance with this Act, where the investigating Commissioner is satisfied that the disclosure is necessary to enable that person to take appropriate action in relation to the issue.

808. This reflects new sections 24CI to 24CK which would require, or authorise, an investigating Commissioner to refer certain conduct issues to other agencies, following a decision not to investigate the conduct issue, or not to investigate that conduct issue further. This would ensure that these confidentiality obligations do not obstruct the proper referral of conduct issues to the appropriate investigative agency. For example, if an investigating Commissioner decides not to investigate a conduct issue as the respondent is an APS employee, this subsection would clarify that the Commissioner may disclose information relating to that complaint as part of the referral to the relevant Agency Head.

809. The note under subsection 24FN(1) clarifies that a defendant would bear an evidential burden in relation to the matter in this section. Further to the discussion in new section 24FK, this burden is appropriate as the defendant would be best placed to identify whether a disclosure was authorised under this section, for example by reference to their satisfaction as to the necessity of the disclosure.

Section 24FO – Disclosure etc. to protect life, health or safety

810. New section 24FO would authorise entrusted persons to record or disclose information to protect life, health or safety.

811. New section 24FO would provide that an entrusted person may record or disclose information (including personal information) if they reasonably believe it is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety.

812. In authorising the recording and disclosure of information, this section would operate as an exception to the offence in new section 24FK. This would ensure that the confidentiality obligation imposed by new section 24FK would not operate so as to limit entrusted persons disclosing information necessary to protect individuals or the general public from serious threats. As such, an entrusted person may make a record or disclose information in accordance with this section, without committing an offence under new section 24FK.

813. The IPSC would be a workplace investigation framework and would routinely deal with sensitive matters which may impact the psychological health of individuals. This authorisation recognises that entrusted persons may come into the possession of information that indicates that a person may harm themselves or another person. Authorising disclosure where an entrusted person has a reasonable belief that such a disclosure is necessary to achieve these purposes is appropriate given importance of protecting life and physical safety and the likelihood that any such disclosures may be required in urgent or emergency situations.

814. This section would authorise disclosures necessary to lessen or prevent a serious threat to the life, health or safety of any individual. For example, if a conduct complaint indicated that a complainant may harm themselves or others, staff of the IPSC would be authorised to disclose that information to relevant authorities, such as to conduct a welfare check.

815. In addition, this section would authorise disclosures necessary to lessen or prevent a serious threat to public health and safety. For example, if, in the course of an interview with a Commissioner, an individual made a threat to the security of the Parliament, that Commissioner would be authorised under this section to disclose to appropriate authorities, such as police and the Presiding Officers.

816. The note under this section clarifies that a defendant would bear an evidential burden in relation to the matter in this section. Further to the discussion in new section 24FK, this burden is appropriate as the defendant would be best placed to identify whether a disclosure was authorised under this section, for example by reference to their belief of the necessity of the disclosure.

Section 24FP – Disclosure etc. of publicly available information

817. New section 24FP would authorise entrusted persons to record or disclose publicly available information.

818. New section 24FP would provide that an entrusted person may record or disclose information (including personal information) if the information has already been lawfully made available to the public.

819. In authorising the recording and disclosure of information, this section would operate as an exception to the offence in new section 24FK. This recognises that once information has been lawfully made available, the information no longer has a quality of confidence and therefore there is no longer a public interest in entrusted persons being subject to an offence for disclosing such information. IPSC information may lawfully become publicly available in a number of ways, such as through the making of a public statement under Division 7. This would also promote consistency between the obligations of an entrusted person, and those subject to a confidentiality notice, noting that a confidentiality notice only applies to information that has not been lawfully made available to the public. As such, an entrusted person may make a record or disclose information in accordance with this section, without committing an offence under new section 24FK.

820. However, this section would not authorise an entrusted person to disclose information that had been made available to the public unlawfully. For example, if a complainant had published the findings of an IPSC report, in breach of a confidentiality notice under new section 24FH, an IPSC Commissioner would not be authorised under this section to disclose information about that report or those findings. However, this would not restrict a Commissioner from making a public statement to afford fairness to a person, such as the respondent, under Division 6 of this Part as a result of that unlawful publication.

821. The note under this section clarifies that a defendant would bear an evidential burden in relation to the matter in this section. Further to the discussion in new section 24FK, this burden is appropriate as the defendant would be best placed to identify whether a disclosure was authorised under this section, for example by pointing to particular publications which lawfully disclosed the information.

Section 24FQ – Disclosure etc. to comply with requirement to produce

822. New section 24FQ would authorise entrusted persons to record or disclose information to comply with a requirement to produce or to answer questions.

823. New section 24FQ would provide that an entrusted person may record or disclose information (including personal information) to a court, tribunal, authority or person with powers to require the production of documents or the answering of questions.

824. In authorising the recording and disclosure of information, this section would operate as an exception to the offence in new section 24FK. This would ensure that the confidentiality obligation imposed by new section 24FK would not operate so as to obstruct, impede or limit the proper operation of the courts, or other bodies or persons with compulsory powers. Accordingly, an entrusted person may comply with the terms of an order for the production of documents or information, such as a subpoena, without committing an offence under new section 24FK.

825. This section would only authorise the disclosure of information in order to comply with a compulsory order for production of documents or to answer questions. This section would not generally authorise entrusted persons to voluntarily provide information to courts or other bodies, other than under a compulsory order. For example, if a court issued a subpoena for production, this section would authorise an IPSC Commissioner to disclose the requested documents to that court, in accordance with the terms of that subpoena.

826. The note under this section clarifies that a defendant would bear an evidential burden in relation to the matter in this section. Further to the discussion in new section 24FK, this burden is appropriate as the defendant would be best placed to identify whether a disclosure was authorised under this section, for example by reference to the defendant's satisfaction as to whether the relevant disclosure was necessary to comply with the particular requirement to produce.

Section 24FR – Disclosure to employers

827. New section 24FR would authorise entrusted persons to disclose information to the employer of a complainant or a respondent with complainant consent or for work health and safety reasons.

828. In authorising the recording and disclosure of information, this section would operate as an exception to the offence in new section 24FK. Providing specific and limited authorisations for entrusted persons to disclose information to a complainant or a respondent's employer is intended to ensure employers are aware, where appropriate, of an IPSC investigation and its progress, as well as allowing employers to meet their work health and safety duties to their employees, including to provide health and wellbeing support. As such, an entrusted person may make a record or disclose information in accordance with this section, without committing an offence under new section 24FK.

829. This authorisation complements other employer notification requirements in the Bill. For example, new paragraph 24CL(1)(b) provides that an investigating Commissioner must take reasonable steps to notify the respondent's employer of a decision to investigate a conduct issue with complainant consent, where relevant to an employer's duties and obligations under a work health and safety law (as defined at item 24 above), or where there is no complainant.

830. The requirement that disclosure of information to a complainant or respondent's employer under this section only occur with complainant consent or for work health and safety purposes is consistent with recommendation 1 of the Senate Legal and Constitutional Affairs References Committee's Report on current and proposed sexual consent laws in Australia, that in all responses to sexual violence, governments and non-government organisations ensure that the agency of victim-survivors is paramount, actively respected and upheld.

831. New subsection 24FR(1) would authorise the disclosure of information with complainant consent. This subsection would provide that an entrusted person may disclose information (including personal information) relating to a conduct complaint or conduct issue referral to the employer of a complainant or respondent where the complainant has consented to the disclosure, and the disclosure is in accordance with that consent.

832. The requirement for complainant consent, including to disclose to a respondent's employer, reflects that the disclosure of information relating to a conduct issue may, either directly or indirectly, identify a complainant. For example, if, after receipt of a notification of a decision to investigate, an employer later sought information from the IPSC as to the progress of an investigation into one of their employees, the investigating Commissioner could disclose such information with complainant consent.

833. New subsection 24FR(2) would authorise the disclosure of information for work health and safety reasons. This subsection would provide that an entrusted person may disclose information (including personal information) relating to a conduct complaint or conduct issue referral to the employer of a complainant or respondent if satisfied that the information is relevant to a duty or obligation of the employer under a work health and safety law (as defined at item 24 above).

834. This would ensure that entrusted persons are not restricted from disclosing information which is necessary for an employer to comply with their work health and safety obligations, noting the nature of information that may be disclosed during an IPSC investigation and the impact that an IPSC investigation may have on the psychological wellbeing of complainants and respondents. For example, if during the course of an investigation information came to light that indicated a broader work health or safety risk in a particular office involving the respondent, an entrusted person could disclose that information to the employing parliamentarian.

835. The notes under subsections 24FR(1) and (2) clarify that a defendant would bear an evidential burden in relation to the matters in these subsections. Further to the discussion in new section 24FK, this burden is appropriate as the defendant would be best placed to identify whether a disclosure was authorised under this section, for example by reference to their satisfaction as to relevance of the information to an employer's work health or safety duties or obligations.

Division 7—Public statements

Section 24G – Public statements to afford fairness

836. New section 24G would enable a responsible Commissioner or Commissioners to make public statements relating to conduct issues that are, or were, before the IPSC in order to afford fairness to individuals.

837. As recommended by the Set the Standard Report, it is generally intended that IPSC investigations would be confidential. In particular, it is not intended that the IPSC, or its Commissioners, would comment publicly on current or former investigations. This confidentiality is necessary to protect the integrity of IPSC investigations as well as to protect individuals involved in such investigations, and is recognised in Division 6 of this Part, particularly through the imposition of secrecy obligations upon entrusted persons in Subdivision C of that Division. However, this provision would provide a limited basis for Commissioners to make public statements regarding a conduct issue, recognising that there is a legitimate public interest in enabling Commissioners to provide fairness to individuals or correct the public record.

838. New subsection 24G(1) would provide that this section applies if a conduct issue was or is before the IPSC (as defined in new section 24AD) and any matter relating to the issue is already publicly available.

839. New paragraph 24G(1)(b) would limit the application of this section to circumstances where any matter relating to the particular conduct issue is already publicly available. Accordingly, this power would only be enlivened where information relating to the conduct issue had already been made public, such as through media reporting. This reflects the intention that this power only apply where there is a need to correct public reporting, or otherwise afford fairness to individuals in relation to publicly available information, rather than providing an ability for a responsible Commissioner or Commissioners to proactively make public statements about a particular conduct issue.

840. New subsection 24G(2) would provide that the responsible Commissioner or Commissioners for a conduct issue may publish a statement containing information about a conduct issue if they are satisfied that doing so:

a.

would afford fairness to any person, or

b.

is otherwise necessary to correct erroneous reporting.

841. For example, if there was media reporting that a particular individual had been found to have engaged in relevant conduct, but the investigating Commissioner had merely decided to investigate a conduct issue, that Commissioner could issue a public statement clarifying that they had only decided to investigate the issue and had not made any findings of fact.

842. This section would enable public statements to be made to afford fairness to any person. This is intended to be interpreted broadly, and is not limited to complainants, respondents or witnesses. For example, if there was media reporting that a particular member of the public was subject to an IPSC investigation, when no such investigation could exist under the PWSS Act as amended, the IPSC could issue a public statement clarifying that no such investigation had ever occurred.

843. In contrast to new section 24GA, a public statement made under this section may relate to any conduct issue, whether substantiated or not, and any person. As such, where a respondent is not a parliamentarian, it is only open to a responsible Commissioner or Commissioners to make a public statement about a conduct issue where the elements of this provision are satisfied.

844. This subsection would provide discretion for a responsible Commissioner or Commissioners to publish information concerning a conduct issue. There is no requirement for Commissioners to publish any information relating to a conduct issue, and, pursuant to new section 24GB, the content and level of detail in such a statement is a matter for the responsible Commissioner or Commissioners. It is expected that the level of detail of such a statement would be that necessary in order to afford fairness or to correct the public record.

845. The decision to publish a statement under this section is that of the responsible Commissioner or Commissioners for the conduct issue. The term responsible Commissioner or Commissioners is defined in new section 24AE. In summary, the responsible Commissioner or Commissioners is the individual or panel who most recently had carriage of a particular conduct issue. For example, if a conduct issue were being reviewed by a panel of Commissioners, if there was erroneous public reporting about the original decision on the conduct issue, it would be a matter for the review panel to decide to publish a statement, not the original decision-maker.

846. New subsection 24G(3) would provide that this section would have effect subject to new section 24GC. New section 24GC would set out the requirements for including identifying information in public statements made by the IPSC. As such, where a public statement under this section includes identifying information, the responsible Commissioner or Commissioners must notify the person concerned and have regard to any submissions they make in relation to the inclusion of the information.

Section 24GA – Public statements about parliamentarians

847. New section 24GA would enable a responsible Commissioner or Commissioners to make a public statement in certain circumstances where a parliamentarian decision panel has imposed a sanction on a parliamentarian.

848. As recommended by the Set the Standard Report, it is generally intended that IPSC investigations would be confidential. However, this provision provides a limited basis for Commissioners to make public statements about parliamentarians, recognising that there is a legitimate public interest in being transparent when elected public officials have been found to have engaged in repeated misconduct or fail to comply with IPSC sanctions. The power to make public statements about parliamentarians under this section would complement the publication of serious breach findings in relation to current parliamentarians through reports by the relevant Privileges Committee to a House of the Parliament recommending whether a House should impose a sanction (new Division 5 of Part 2A refers).

849. New subsection 24GA(1) would specify this section applies in relation to certain conduct issues that were or are before the IPSC. The term before the IPSC is defined in new section 24AD.

850. New paragraphs 24GA(1)(a) and (b) would provide that this section applies if a parliamentarian decision panel imposes a sanction on a parliamentarian and:

a.

another panel has previously made a finding that the parliamentarian has engaged in relevant conduct, or

b.

that parliamentarian fails to comply with the sanction.

851. These grounds would enable a responsible Commissioner or Commissioners to make public statements where a parliamentarian has engaged in repeated patterns of misbehaviour. This is intended to capture any repeated findings that a parliamentarian has engaged in relevant conduct, not merely patterns of particular behaviour. For example, this may capture a parliamentarian who has been found to have repeatedly engaged in sexual harassment against multiple MOPS employees, or a parliamentarian who has been found to have engaged in bullying against a MOPS employee and then subsequently sexual harassment against a designated worker.

852. In addition, this would also provide for public statements where a parliamentarian has failed to comply with an IPSC imposed sanction, such as failing to undertake training or to enter into a behaviour agreement. This is intended to promote implementation of IPSC sanctions, noting that a failure to comply with sanctions imposed by the IPSC may also constitute relevant conduct under the PWSS Act, and the IPSC may therefore investigate the conduct issue and potentially impose a sanction against the parliamentarian.

853. A responsible Commissioner or Commissioner would not have the power to make a public statement in all instances in which a parliamentarian is a respondent, or where there has been a finding that a parliamentarian has engaged in relevant conduct. Rather, the grounds in this subsection would limit a responsible Commissioner or Commissioner's power to issue a public statement to circumstances where there is a legitimate public interest in transparency.

854. New subsection 24GA(2) would provide that the responsible Commissioner or Commissioners for the conduct issue may publish a statement about the conduct issue. The term responsible Commissioner or Commissioners is defined in new section 24AE. This statement must include the identity of the parliamentarian. This recognises the public interest in knowing the identity of elected officials in these circumstances. Pursuant to new section 24GB, the content and level of detail in such a statement is a matter for the responsible Commissioner or Commissioners. This may include details of the conduct issue, the parliamentarian decision panel's findings and the sanctions imposed.

855. New subsections 24GA(3) and (4) provide for notification and consultation requirements prior to the publication of a statement about a parliamentarian.

856. New subsection 24GA(3) would require the responsible Commissioner or Commissioners to give the parliamentarian a written notice stating that they are proposing to publish a statement, prior to the making of the statement. This reflects that the consultation requirements for including identifying information in a public statement in new section 24GC would not apply, given that a statement under this section must necessarily identify the parliamentarian. However, providing written notice in advance of a public statement would ensure that a parliamentarian is adequately notified of the making of the statement.

857. In relation to other persons who may be identified by information in the statement, new subsection 24GA(4) provides that new section 24GA would have effect subject to new section 24GC which details the requirements for including identifying information in public statements made by the IPSC.

Section 24GB – Content and detail in IPSC public statements

858. New section 24GB would outline the content and detail to be included in public statements made under this Division.

859. New section 24GB would provide that the relevant responsible Commissioner or Commissioners have discretion in determining the content and level of detail to be included in a public statement made by the IPSC. For example, a public statement may include details of the conduct issue, any findings of fact and any sanctions imposed.

860. This reflects that the responsible Commissioner or Commissioners are best placed to determine the particular content and detail to be included in a statement. This includes by having regard to any submissions by persons who may be identified.

861. The level of content and detail may differ between public statements to afford fairness under new section 24G and public statements about parliamentarians under new section 24GA, taking into account their different objectives.

Section 24GC – Requirements for including identifying information in IPSC public statements

862. New section 24GC would provide requirements for including identifying information in IPSC public statements under this Division.

863. This section would outline requirements to give notice of proposals to include identifying information, and to consult with certain individuals on those proposals. These requirements are intended to afford procedural fairness and support consultation in respect of proposals by a responsible Commissioner or Commissioners to include identifying information in a public statement to afford fairness or a public statement about a parliamentarian. This consultation process reflects the consultation process in section 23 of the PWSS Act in relation to a decision by the PWSS CEO to include details of a parliamentarian's non-compliance in a public report.

864. New subsections 24GC(1) and (2) would require the responsible Commissioner or Commissioners to give notice to certain individuals of proposals to include identifying information in a public statement. The term identifying information is defined in section 5 of the PWSS Act, as amended by item 22, as information that identifies, or is likely to enable the identification of, a person.

865. New subsection 24GC(1) provides that before including identifying information in an IPSC public statement, the responsible Commissioner or Commissioners must give the person concerned a written notice stating that they are proposing for the IPSC to include identifying information in a public statement. This may include any complainant, respondent, witness, employer, referrer or other individual who may be identified in the public statement.

866. New subsection 24GC(2) clarifies that this requirement would not apply if the statement is a public statement about a parliamentarian under new section 24GA and the identifying information relates to the parliamentarian whose conduct is the subject of the statement. As such statements would necessarily include identifying information as they must identify the relevant parliamentarian, a specific notice requirement is provided under new subsection 24GA(3). Where a public statement about a parliamentarian may identify another individual, such as a complainant or a witness, the responsible Commissioner or Commissioners must provide notice under this section.

867. New subsections 24GC(3) and (4) would require the responsible Commissioner or Commissioners to consult with these individuals on the proposal to include identifying information in the statement.

868. New subsection 24GC(3) would provide that the written notice outlined in new subsection 24GC(1) must invite the person to make submissions to the responsible Commissioner or Commissioners in relation to the proposal within a reasonable period specified in the notice. Providing an opportunity to make submissions in relation to the proposal ensures the person concerned is afforded procedural fairness. In particular, this would provide an opportunity to take into account the views of complainants, if any.

869. New subparagraph 24GC(4)(a) would require the responsible Commissioner or Commissioners to have regard to any submissions made under subsection 24GC(3) in deciding whether or not to include the identifying information in the public statement. Although the Commissioner or Commissioners must consider whether the inclusion of details would identify another person and the submissions made under this subsection in deciding whether to include identifying information, the mere fact that an individual may be identified is not itself determinative. Rather, the Commissioner or Commissioners must consider these submissions in light of all of the circumstances of the matter.

870. New subparagraph 24GC(4)(b) would provide that the Commissioner or Commissioners must give the person captured by section 24GC a written notice informing them of the Commissioner or Commissioners decision as to whether or not to include the identifying information. This notification is intended to occur prior to the publication of the IPSC public statement. This notification would ensure that the individuals who may be identified by a public statement are informed of the outcome of the Commissioner or Commissioners consideration before details with identifying information are published, and would provide a record of the decision.

Division 8—Protections and immunities

Section 24H – Meaning of protected disclosure

871. New section 24H would define the term protected disclosure for the purposes of Division 8 of Part 2A of the PWSS Act, as amended by this Bill.

872. Under this new section, a person would make a protected disclosure if:

a.

the person makes a conduct complaint, or

b.

the person makes a conduct issue referral, or

c.

the person gives information about a conduct issue to the IPSC, a Commissioner or the CEO, or

d.

the person gives information to a parliamentarian and either:

i.

the parliamentarian uses it to make a conduct issue referral, or

ii.

the person intends that the parliamentarian use it to make a conduct issue referral (whether or not the referral is actually made), or

e.

the person gives information, or produces a document or thing, to a Commissioner or review panel

i.

under section 24F, or

ii.

in compliance with a request made by the Commissioner or panel.

873. This is intended to capture all of the circumstances in which a person may provide information about a conduct issue to the IPSC, whether voluntarily or in response to a compulsory information gathering notice.

874. This definition would have the effect that the protections set out in new Division 8 would be available to complainants (as defined in section 5 of the PWSS Act, as amended by item 19), referrers (the PWSS CEO and certain parliamentarians consistent with new sections 24CA and 24CB), and any other person (including a respondent or witness) who gives information about a conduct issue to the IPSC voluntarily, upon request of a Commissioner or review panel, or in response to a notice requiring provision of the information.

875. In addition, this definition would capture individuals who gave information about a conduct issue to a parliamentarian or the PWSS CEO with the intention that they make a conduct issue referral to the IPSC, even where no referral was subsequently made. This would ensure that these individuals are given the same protections against detriment.

Section 24HA – Offences—causing detriment in relation to protected disclosures

876. New section 24HA would make it an offence for a person to cause, or threaten to cause, detriment to a person because they believe or suspect that person has, may, proposes to or could make a protected disclosure.

877. These offences are consistent with those included in the PID Act and NACC Act to provide protection from reprisals.

878. As set out in Note 1 under new subsection 24HA(5), detriment would be defined in section 5 of the PWSS Act, as amended by item 22. Detriment would have a broad meaning, and would include harm to a person's employment, including termination or a disadvantageous change to their position. For example, causing detriment could include bullying a person in the workplace, or passing them over for a promotion, provided it was motivated by the first person's belief or suspicion about a protected disclosure. It would also cover any harm or injury, or damage to a person, their property, reputation, business or financial position.

879. New subsection 24HA(1) would create an offence for causing detriment to another person in relation to a protected disclosure. Under this subsection, a person (the first person) would commit an offence in relation to another person (the second person) if:

a.

they engage in conduct which results in detriment to the second person, and

b.

when engaging in the conduct, they believe or suspect that the second person, or any other person, has or may have made, proposes to or could make a protected disclosure.

880. The first person's belief or suspicion about the protected disclosure must be all or part of the reason for engaging in the conduct.

881. This offence would protect against detriment to persons who themselves make, or could make, protected disclosures, as well as against detriment to third parties. Extending the scope of the offence to situations where reprisal action is taken in response to a belief or suspicion about another person's protected disclosure ensures that the colleagues, family and friends of a protected discloser are also protected against reprisal action that could be taken against them as a means of indirectly targeting the discloser. For example, a parliamentarian would commit an offence if they made statements damaging the reputation of one of their MOPS employees, due to a suspicion that the employee's spouse had participated in an interview with the investigating Commissioner for a conduct issue.

882. It is not necessary, under this section, for an individual to have in fact made a protected disclosure. Rather, this offence would protect against detriment where the first person believes or suspects that the individual has made a protected disclosure, or that they may have made, propose to make or could make a protected disclosure. The protection from detriment would apply both prior to, as well as after, making a disclosure. This is intended to ensure individuals are not prevented or deterred from making a protected disclosure. In particular, extending the scope of the offence to cover persons who 'could' make a protected disclosure protects people who may be subject to detriment merely because they have been affected by relevant conduct, or otherwise become aware of (or the perpetrator suspects that they have become aware of) information relating to a conduct issue.

883. Fault elements apply to the physical elements of the subsection 24HA(1) offence as follows:

884. The maximum penalty for this offence is imprisonment for 2 years or 120 penalty units, or both. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. Given the potentially severe consequences of repeated reprisals both to the second person and in terms of deterring other Commonwealth parliamentary workplace participants from engaging with the IPSC, this maximum penalty is appropriate to punish a worst case offence. This penalty is the same as for the equivalent offence under subsection 19(1) of the PID Act.

885. New subsection 24HA(2) would create an offence for threatening to cause detriment to another person in relation to a protected disclosure. This offence recognises that a mere threat of detriment could deter a person from making a protected disclosure.

886. Under this subsection, a person (the first person) would commit an offence in relation to another person (the second person) if:

a.

they engage in conduct which consists of, or results in, a threat to cause detriment to the second person,

b.

they are reckless as to whether the second person fears that the threat will be carried out, and

c.

when engaging in the threatening conduct, they believe or suspect that the second person, or any other person, has or may have made, proposes to or could make a protected disclosure.

887. The first person's belief or suspicion about the protected disclosure must be all or part of the reason for engaging in the conduct.

888. This offence would protect against threats to cause detriment, as well as conduct that results in a threat to cause detriment. This would ensure that the offence covers both direct and indirect threats. In particular, it would mean that circumstances where there is a direction to make a threat (for example, a senior staff member directing a junior staff member to threaten detriment against a protected discloser) would be considered a 'threat' for the purposes of 24HA(2). It is appropriate that such conduct be captured in this offence as though the threat had been delivered by the senior staff member themselves to the discloser as indirect threats have equal potential to negatively impact a discloser. It would also ensure that other indirect means of making a threat (for example, social media statements not overtly directed at the protected discloser) are recognised as having the potential to be similarly intimidating.

889. Fault elements apply to the physical elements of the subsection 24HA(2) offence as follows:

890. The maximum penalty for this offence is imprisonment for 2 years or 120 penalty units, or both. This is consistent with the maximum penalty for the offence of causing detriment in relation to a protected disclosure. As a threat to cause detriment may have the same potentially severe consequences to the second person and in terms of deterring other Commonwealth parliamentary workplace participants from engaging with the IPSC, this maximum penalty is appropriate to punish a worst case offence. This penalty is the same as for the equivalent offence under subsection 19(2) of the PID Act.

891. New subsection 24HA(3) would provide that the conduct set out in subsection 24HA(2) constitutes an offence whether the threat of reprisal is express, implied, conditional or unconditional. This would ensure that all threatening conduct could fall within the scope of the offence, including where the first person avoids making the threat expressly.

892. New subsection 24HA(4) would provide an exception for reasonable administrative action. This subsection would provide that the offences of causing, or threatening to cause detriment, in subsections 24HA(1) and (2) do not apply if the first person's conduct constitutes administrative action that is reasonable to protect the second person from detriment. This is consistent with subsections 13(3) and 19(4) of the PID Act and subsections 29(3) and 30(4) of the NACC Act.

893. This exception is intended to ensure that these offences do not operate to prevent organisations, employers or managers from taking reasonable steps to protect their workers from detriment associated with a protected disclosure.

894. The term 'administrative action' is intended to include a broad range of management action including both administrative and operational actions. For example, where a person has made a protected disclosure in relation to practices in their immediate work area, it may be reasonable to transfer them to another work area to ensure they are not subject to any detriment. Similarly, a reassignment of duties, structural reorganisation of a parliamentarian's office, or transfer between offices, would not constitute a reprisal if it is reasonable in order to protect an employee from harassment or psychological harm. This would be the case even though such action may detrimentally affect the employee's employment position or reputation.

895. The note under new subsection 24HA(4) would explain that a defendant bears an evidential burden in relation to the matter in that subsection, and refers the reader to subsection 13.3(3) of the Criminal Code. Subsection 13.3(3) would have the effect that if, when prosecuted, the first person wishes to rely on this exception, they must adduce or point to evidence suggesting a reasonable possibility their conduct constituted administrative action that was reasonable to protect the second person from detriment.

896. Placing this evidential burden of proof on the defendant is appropriate as the question of whether the impugned conduct is reasonable administrative action turns on the first person's reasons for acting, which will be peculiarly within their own knowledge. It is also appropriate as it would be significantly more difficult and costly for the prosecution to prove beyond reasonable doubt that the conduct was not administrative action that was reasonable to protect the second person from detriment, than for the first person to meet the lower threshold of adducing or pointing to evidence suggesting a reasonable possibility that it was.

897. New subsection 24HA(5) clarifies that in a prosecution for an offence against this new section, it would not be necessary to prove that any person has or may have made, proposes to or could make a protected disclosure. This reflects the fact that the relevant elements of the offences under subsection 24HA(1) and (2) relate to the first person's belief or suspicion, which is independent of the likelihood or fact of a protected disclosure being made.

898. Note 2 under this subsection would note that proof of intention, knowledge or recklessness would satisfy a fault element of recklessness. The note would refer the reader to subsection 5.4(4) of the Criminal Code which provides that if recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

899. The offences created by new section 24HA would interact with the NACC Act provisions dealing with reprisals, creating a comprehensive set of protections for individuals. For example, if an employer took a reprisal action against their employee due to the mistaken belief that the employee had made a NACC disclosure, when in fact the employee had made a protected disclosure to the IPSC, the NACC Act protection from reprisals would apply.

Section 24HB – Immunity from liability for protected disclosures

900. New section 24HB would provide immunities and other protections for persons who make protected disclosures.

901. Protecting individuals from civil, criminal or administrative liability and the enforcement or exercise of other legal rights or options for making a protected disclosure is important to ensure that individuals are neither legally prevented nor deterred from making a protected disclosure where they have information concerning a conduct issue.

902. New subsection 24HB(1)(a) would provide that a person is not subject to any civil, criminal or administrative liability (including disciplinary action) for making a protected disclosure within the meaning of new section 24H. This would mean, for example, that a person making a protected disclosure would not be subject to:

a.

civil liability for breach of confidence arising from the disclosure of confidential information to the IPSC,

b.

criminal liability for providing classified documents to the IPSC, or

c.

for individuals whose employment is governed by legislation, administrative action—such as performance management, suspension or termination of employment—as a result of disclosing information to the IPSC.

903. New subsection 24HB(1)(b) would provide a further protection against enforcement of a contractual or other remedy or right against the person on the basis that they have made a protected disclosure. For example, a contractual remedy such as compensation for breach of a non-disclosure agreement could not be obtained, and a contractual termination clause or statutory power could not be exercised, on the basis that the person has made a protected disclosure.

904. Without limiting the protections in subsection 24HB(1), new subsection 24HB(2) would provide specific civil and contractual protections where a person makes a protected disclosure.

905. New paragraph 24HB(2)(a) would provide that a person who has made a protected disclosure has absolute privilege in proceedings for defamation in respect of the disclosure. This means that, generally, no action for defamation can be brought against a person in relation to a protected disclosure.

906. New paragraph 24HB(2)(b) would provide that a contract to which the person who made the protected disclosure is a party must not be terminated on the basis that the disclosure is a breach of the contract. This would include, for example, procurement, employment and consultancy contracts.

907. New subsection 24HB(3) provides that subsection 24HB(1) does not prevent the making of the disclosure from giving rise to a conduct issue. Accordingly, this section would not operate to prevent a person being the subject of an IPSC investigation for making a protected disclosure. For example, if a Commonwealth parliamentary workplace participant made a vexatious conduct complaint this may constitute a breach of the Behaviour Code for staff employed under the Members of Parliament (Staff) Act 1984, which provides that a vexatious complaint or a complaint made in bad faith may itself be a breach of this code and may be subject to sanctions (paragraph 15 of that Code). While the making of the conduct complaint would be a protected disclosure, new subsection 24HB(3) would not restrict the IPSC from investigating the conduct issue.

908. In addition, the protections in this section would also be subject to new sections 24HC and 24HD, which provide that this section does not affect liability for false or misleading disclosures nor a person's liability for their own conduct, respectively.

909. This section is generally consistent with section 10 of the PID Act and section 24 of the NACC Act.

Section 24HC – Liability for false or misleading disclosures unaffected

910. New section 24HC would clarify that a person is not protected from liability under new section 24HB for knowingly making a false or misleading disclosure.

911. New subsection 24HC(1) would provide that the immunity from liability for protected disclosures in new subsection 24HB does not apply to civil, criminal or administrative liability (including disciplinary action) for knowingly making a disclosure that is false or misleading.

912. This exclusion would ensure that individuals who knowingly make false or misleading disclosures are not able to benefit from the protections against liability in this Subdivision. This is intended to deter individuals from making false or misleading disclosures, such as false conduct complaints or the provision of misleading information to the IPSC, which could harm a person's reputation, conceal misconduct or divert the resources of the IPSC. This section would only operate to exclude the protections for disclosures which are knowingly false or misleading. For example, if an individual made a conduct complaint in good faith but mistakenly alleging one of their co-workers had engaged in relevant conduct, when it in fact it had been another co-worker, the immunity from liability in section 24HB would continue to apply.

913. This subsection would have the effect that a discloser may be subject to civil liability for such a false or misleading statement. For example, an individual may be subject to proceedings for defamation for knowingly making a false conduct complaint alleging that a particular person had engaged in relevant conduct.

914. Similarly, a discloser may be subject to administrative liability in these circumstances, including disciplinary action through a Code of Conduct process under the Public Service Act or the Parliamentary Service Act.

915. In addition, consistent with the approach in new subsection 24HB(3), a Commonwealth parliamentary workplace participant could be subject to an IPSC investigation as a result of knowingly making a false or misleading disclosure. For example, if a parliamentarian knowingly gave false information to the IPSC in response to a notice under new section 24F, this may constitute a breach of the Behaviour Code for Australian Parliamentarians, which provides that parliamentarians have obligations to cooperate with investigations (paragraph 15(a) of that Code), and they could therefore be liable to investigation by the IPSC. Similarly, if a MOPS employee knowingly made a misleading conduct complaint to the IPSC for vexatious purposes, this may constitute a breach of the Behaviour Code for staff employed under the Members of Parliament (Staff) Act 1984, which provides that a vexatious complaint or a complaint made in bad faith may itself be a breach of this code and may be subject to sanctions (paragraph 15 of that Code), and they could therefore be liable to investigation by the IPSC.

916. New subsection 24HC(2) would expressly preserve the operations of certain offences under the Criminal Code. Without limiting subsection 24HC(1), the immunity from liability in section 24HB would not apply to liability for an offence under section 137.1 or 137.2 of the Criminal Code, which create offences for providing false or misleading information or documents. Similarly, the immunity from liability would not apply to liability for an offence under section 144.1 or 145.1 of the Criminal Code, which create offences for making and using forged documents.

917. This new section is consistent with section 11 of the PID Act and section 25 of the NACC Act.

Section 24HD – Person's liability for own conduct not affected

918. New section 24HD would clarify that a person's liability for their own conduct is not affected if they make a protected disclosure concerning that conduct.

919. New section 24HD would provide that, to avoid doubt, whether a person's disclosure of their own conduct is a protected disclosure does not affect the person's liability for that conduct. This includes civil, criminal or administrative liability, including disciplinary action. For example, if two MOPS employees together engaged in relevant conduct, such as theft from a parliamentarian's office, and one subsequently made a conduct complaint to the IPSC about the other's actions, they would not receive immunity from criminal liability under new section 24HB.

920. This new section is consistent with section 12 of the PID Act and section 26 of the NACC Act.

Section 24HE – Claims for protection

921. New section 24HE would outline how a person may seek to invoke the protections that would be provided under new section 24HB in circumstances where civil or criminal proceedings have been instituted against that person in a court.

922. New subsection 24HE(1) would apply if the person makes a claim, relevant to the proceedings, that they are not subject to any civil, criminal or administrative liability for making a particular disclosure due to the protections in new section 24HB.

923. In these circumstances, the person seeking to invoke protection from liability under section 24HB would bear the onus of adducing or pointing to evidence that suggests a reasonable possibility that the protection applies. If the onus is discharged, the party who instituted the proceedings against the person would bear the onus of proving that the protection from liability did not apply.

924. For example, a person who had civil proceedings instituted against them for breaching a confidentiality clause in their contract of employment would be able to make a claim that the breach was for the purposes of making a protected disclosure to the IPSC. The person would then need to adduce evidence that they are entitled to immunity from civil liability under new section 24HB. To discharge this onus, the person could, for example, adduce evidence of their disclosure to the IPSC (such as an email or other record of their conduct complaint). The party instituting the proceedings would then bear the onus of proving that the person is not entitled to protection under section 24HB.

925. A claim under new subsection 24HE(1) would be dealt with by the court in separate proceedings. The initial civil or criminal proceedings against the person would be adjourned by the court until the claim for protection under this section was resolved.

926. Any admission, information or other evidence made, given or adduced by the person in the separate proceedings would not be admissible in evidence against the person, except in proceedings concerning the falsity of the admission, information or evidence made, given or adduced.

927. New paragraph 24HE(1)(f) would provide that if the person or another person were to give evidence in the separate proceedings under this section, the giving of that evidence would not amount to a waiver of privilege for the purposes of any proceedings, including the initial civil or criminal proceedings.

928. New subsection 24HE(2) would clarify that a right under section 126K of the Evidence Act 1995 not to be compelled to give evidence with respect to the identity of journalists' informants would be a privilege for the purposes of paragraph 24HE(1)(f) of this new section.

929. This new section is consistent with section 23 of the PID Act and section 27 of the NACC Act.

Section 24HF – Protection has effect despite other Commonwealth laws

930. New section 24HF would clarify the interaction between the protections under new section 24HB and other Commonwealth laws.

931. New section 24HF would provide that the immunity from liability for protected disclosures afforded by new section 24HB would have effect despite any other provision of a law of the Commonwealth, unless the provision is enacted after the commencement of this new section and is expressed to have effect despite this Division or new section 24HB.

932. This new section would ensure that protections and remedies afforded by this Bill to persons who make a protected disclosure to the IPSC are not overridden by provisions of other laws, unless there is a clear legislative intention to do so. This is consistent with section 24 of the PID Act and section 28 of the NACC Act. For example, an APS employee who makes a protected disclosure would still receive immunity from liability under this Bill if their disclosure breaches confidentiality obligations under the APS Code of Conduct, as set out in section 13 of the Public Service Act.

Part 2B—Application of the finance law

Section 24J – Simplified outline of this Part

933. New section 24J would provide a simplified outline of new Part 2B of the Bill to assist the reader.

934. The outline would note this Part would deal with the application of the finance law, within the meaning of the PGPA Act.

Section 24K – Application of the finance law

935. New section 24K would provide for the application of the finance law, within the meaning of the PGPA Act.

936. Item 27 of this Bill would repeal existing subsection 12(3) of the PWSS Act, which currently provides for the application of the finance law in relation to the PWSS. To reflect the establishment of the IPSC by new section 24B of this Bill, new section 24K would provide for certain matters relating to the PWSS and the IPSC for the purposes of the finance law. This new section would amend the structure of the existing listed entity of the PWSS for the purposes of the PGPA Act to incorporate the IPSC. It is not intended that there would be any break in continuity of the existence of the PWSS under the PGPA Act.

937. New paragraph 24K(a) would provide that the combination of the bodies of the PWSS and the IPSC would be a listed entity for the purposes of the finance law. New paragraph 24K(b) would provide that that entity is to be known as the Parliamentary Workplace Support Service.

938. This would extend the scope of the existing listed entity of the Parliamentary Workplace Support Service to also include the IPSC, as established by new section 24B of this Bill. As a non-corporate Commonwealth entity, the Parliamentary Workplace Support Service legally forms part of the Commonwealth and would not have a separate legal identity, as recognised by the first note under subsection 12(1) (in relation to the PWSS) and new subsection 24B(1) (in relation to the IPSC). The Parliamentary Workplace Support Service is able to, amongst other things, enter into arrangements and commit relevant money on behalf of the Commonwealth and be subject to the planning, performance and accountability obligations in the PGPA Act, including the obligations to prepare a corporate plan and an annual report. This amendment would extend those rights, duties and obligations to also include the IPSC. For example, information relating to the IPSC would be required to be included in the Parliamentary Workplace Support Service's annual report, consistent with the obligations in the PGPA Act.

939. New paragraph 24K(c) would provide that the PWSS CEO would be the accountable authority of the listed entity. As the accountable authority, the CEO is responsible for managing the Parliamentary Workplace Support Service's affairs and ensuring it performs its functions. As the accountable authority, the CEO would have specific duties under Division 2 of Part 2-2 of the PGPA Act, including, for example, to govern the Parliamentary Workplace Support Service in a way that promotes the proper use and management of public resources and establish and maintain appropriate risk oversight and management systems. In relation to the IPSC, this would include, for example, the CEO making available resources and facilities to the IPSC, or making available staff as reasonably requested by the Chair Commissioner under new section 40A.

940. New paragraph 24K(d) would provide that the CEO, the Commissioners, the staff of the PWSS referred to in section 38 of the PWSS Act, and persons whose services are made available to the PWSS under section 39 of that Act are officials of the listed entity for the purposes of the finance law. Officials of the Parliamentary Workplace Support Service would have specific duties under Division 3 of Part 2-2 of the PGPA Act, such as the duty to act honestly, in good faith and for a proper purpose. In particular, officials are under a duty to disclose material personal interests that relate to the affairs of the entity. Consultants engaged by the CEO or the Chair Commissioner would not be officials of the Parliamentary Workplace Support Service for the purposes of the finance law.

941. The PGPA Act requires accountable authorities to govern a Commonwealth entity in a way that promotes the achievement of the purposes of the entity. In addition to the general purposes of a Commonwealth entity set out in the PGPA Act (being the objectives, functions, or role of the entity), new paragraph 24K(e) would provide that the purposes of the Parliamentary Workplace Support Service for the purposes of the finance law would also include:

a.

the functions of the PWSS referred to in section 13,

b.

the functions of the IPSC referred to in new section 24BA,

c.

the functions of the CEO referred to in section 27, and

d.

the functions of the Commissioners referred to in new section 36C.

Item 42 – Section 25 (paragraph beginning "The CEO's functions")

942. Item 42 would amend the simplified outline of Part 3 of the PWSS Act to repeal the paragraph outlining the CEO's functions and substitute a new paragraph.

943. The existing paragraph provides the CEO's functions are to manage the affairs of the PWSS and to ensure the PWSS performs its functions.

944. The substituted paragraph would provide that the CEO's functions include managing the affairs of both the PWSS and IPSC, ensuring the PWSS performs its functions and assisting the IPSC and the Commissioners to perform their functions and exercise their powers. This amendment is consequential to items 43 and 44, which would amend the functions of the CEO set out in existing section 27 of the PWSS Act.

Item 43 – Paragraph 27(a)

945. Item 43 would insert the phrase 'and IPSC' into paragraph 27(a), so that the functions of the PWSS CEO include managing the affairs of the IPSC as well as the PWSS.

946. This responsibility for managing the affairs of the IPSC and the PWSS is consistent with the CEO's role as the accountable authority of the listed entity to be known as the Parliamentary Workplace Support Service (discussed further in relation to new paragraph 24K(c) above).

Item 44 – After paragraph 27(b)

947. Item 44 would insert a new paragraph after existing paragraph 27(b) of the PWSS Act to provide for the PWSS CEO's functions in relation to the IPSC and the Commissioners.

948. New paragraph 27(ba) would provide that the PWSS CEO has a function to assist the IPSC and the Commissioners to perform their functions and exercise their powers.

949. This responsibility for assisting the IPSC and the Commissioners to perform their functions and exercise their powers is consistent with the CEO's role as the accountable authority of the listed entity to be known as the Parliamentary Workplace Support Service (discussed further in relation to new paragraph 24K(c) above), as applicable in light of the independence of the Commissioners as guaranteed by new section 36D. This provision is consistent with the role of accountable authorities in relation to other independent statutory office holders, such as the role of the Australian Communications and Media Authority in relation to the independent eSafety Commissioner under the Online Safety Act 2001.

Item 45 – After Part 3

950. Item 45 would provide for a new Part to be inserted after Part 3 of the PWSS Act.

951. Part 3 of the PWSS Act provides for the PWSS CEO. Similarly, new Part 3A—Commissioners of the IPSC would provide for the Commissioners of the IPSC. New Part 3A would establish the office of the Chair Commissioner and the other Commissioners, and set out the functions of those Commissioners.

Part 3A—Commissioners of the IPSC

Division 1—Introduction

Section 36A – Simplified outline of this Part

952. New section 36A would provide a simplified outline of Part 3A of the Bill to assist the reader.

953. The outline would note that this Part would provide that there is to be a Chair Commissioner of the IPSC and at least six, but not more than eight other Commissioners of the IPSC.

954. The outline would further note that the functions of the Commissioners include dealing with conduct issues and preparing and publishing public statements. In addition, the outline would note that Commissioners are to be appointed by the Governor-General.

Division 2—Establishment and functions of Commissioners

Section 36B – Commissioners

955. New section 36B would provide for the establishment of the statutory offices of the Chair Commissioner and other Commissioners of the IPSC.

956. New paragraph 36B(1)(a) provides that there is to be a Chair Commissioner of the IPSC. While the PWSS CEO is the accountable authority, the Chair Commissioner would be responsible for managing the work of the IPSC. In particular, the Chair Commissioner would be responsible for allocating investigating Commissioners to particular conduct issues and for constituting parliamentarian decision panels and review panels. The Chair Commissioner would also be able to make decisions prior to the assignment of an investigating Commissioner or panel, such as to extend the period to apply for review of a decision to impose a sanction, or where a responsible Commissioner is no longer a Commissioner. In addition, the Chair Commissioner would be responsible for directing the staff of the IPSC and may reasonably request the PWSS CEO make available persons to assist the IPSC to perform its functions.

957. The Chair Commissioner could perform any of the functions of Commissioners under the Bill, consistent with new section 36C. For example, it would be open to the Chair Commissioner to assign themselves as the investigating Commissioner for a conduct issue referral or to assign themselves to form part of a review panel. In addition, under new paragraph 24CD(1)(b) the Chair Commissioner may assign themselves to deal with a conduct issue that they become aware of in any way other than through a conduct complaint or a conduct issue referral, in certain circumstances. This own-motion investigation function is only exercisable by the Chair Commissioner.

958. New paragraph 36B(1)(b) would provide that there are to be at least six, and not more than eight, other Commissioners of the IPSC. The functions of the Commissioners of the IPSC would be set out at new section 36C.

959. Accordingly, the IPSC would be comprised of at least seven, but not more than nine, Commissioners, including the Chair Commissioner. A complement of six Commissioners is necessary to fully implement the investigation phases set out in the Set the Standard Report. This reflects that for parliamentarians, three Commissioners would be required to complete an IPSC investigation (a single investigating Commissioner and an additional two Commissioners to constitute the parliamentarian decision panel). In addition, if a review was sought, a separate panel of an additional three Commissioners would be required to constitute the review panel. Requiring there to be at least seven Commissioners would ensure there is a 'spare' Commissioner in the event another Commissioner has a conflict of interest. Permitting up to nine Commissioners to be appointed would ensure there is flexibility in the event more than one Commissioner has a conflict of interest.

960. New subsection 36B(2) would provide that at least four Commissioners must be women. This may include the Chair Commissioner and three other Commissioners, or four other Commissioners. The exercise or performance of the IPSC's functions or powers would not be affected by this provision if a Commissioner were to complete their term or otherwise resign, resulting in there being less than four female Commissioners, consistent with subsection 33(2B) of the Acts Interpretation Act.

961. Requiring at least four of the IPSC's Commissioners to be women would promote gender balance among the cohort of IPSC Commissioners. This is consistent with the Government's commitment to a target for women to hold 50 per cent of overall Government board positions and at least 40 per cent of positions on individual Government boards, as well being consistent with the composition of the PWSS Advisory Board. Such a requirement is appropriate in light of the objects and functions of the IPSC, noting the findings of the Set the Standard Report that women in Commonwealth parliamentary workplaces experienced sexual harassment, bullying and actual or attempted sexual assault at a higher rate compared with men. In particular, providing for gender balance amongst IPSC Commissioners would promote trauma-informed investigations. For example, the Chair Commissioner may consider gender in allocating an investigating Commissioner where a conduct issue involves allegations of sexual harassment or sexual violence or a complainant has a history of having experienced sexual violence.

962. The Commissioners would be statutory officeholders for the purposes of the Public Service Act and officials for the purposes of the PGPA Act. Accordingly, Commissioners would be subject to the general duties of officials under Part 2-2 of the PGPA Act, including the duty to disclose interests. Commissioners would also be bound by the APS Code of Conduct, to the extent provided by the Public Service Regulations 2023.

Section 36C – Functions of the Commissioners

963. New section 36C would outline the functions of the Commissioners of the IPSC.

964. Section 36C would provide that a Commissioner has the following functions:

a.

to deal with conduct issues,

b.

to prepare and publish IPSC public statements,

c.

such other functions as are conferred on a Commissioner by this Act or any other Commonwealth law,

d.

to do anything incidental to, or conducive to, the performance of the above functions.

965. This provision reflects that a majority of the functions and powers under this Bill are conferred upon the Commissioners, rather than upon the IPSC itself. Such powers and functions must be exercised personally, and are not delegable. Recognising the seriousness of an IPSC investigation and its potential impact upon individuals, this would ensure that all decisions are made by Commissioners. For example, it is a matter for the relevant responsible Commissioner themselves to decide how to deal with a conduct issue, and then deal with that conduct issue in accordance with Divisions 3 to 6 of Part 2A. However, the Commissioner may be supported by IPSC staff in performing their functions. As such, while the Commissioner themselves must conduct an interview with a respondent, an IPSC staff member could assist in taking notes or providing other secretariat support.

966. These functions may be performed by any of the Commissioners, including the Chair Commissioner. It is not intended that certain Commissioners would only undertake specific functions, such as Commissioners which only undertook investigations or Commissioners who only sat on review panels. Generally, the performance of these functions by a Commissioner would be dependent upon them being assigned as the investigating Commissioner for a particular conduct issue, or being constituted as part of a parliamentarian decision panel or review panel for a particular conduct issue. For example, only the investigating Commissioner for a particular conduct issue may investigate that conduct issue under Division 3 of Part 2A, or make procedural decisions related to that investigation, such as by issuing an information gathering notice or a confidentiality notice under Division 6 of Part 2A.

967. The Bill also confers specific functions on the Chair Commissioner, which are only exercisable by the Chair. This includes functions to manage the work of the IPSC, such as by assigning Commissioners as the investigating or as constituting part of a parliamentarian decision panel or review panel, or to assign themselves to deal with a conduct issue that they become aware of in any way other than through a conduct complaint or a conduct issue referral, in certain circumstances.

Section 36D – Independence of the Commissioners

968. New section 36D would provide for the independence of the Commissioners.

969. This section would provide that, subject to the PWSS Act (including the amendments made by this Bill) and other laws of the Commonwealth, a Commissioner has discretion in the performance or exercise of their functions and powers, and is not subject to direction by any person in relation to the performance or exercise of those functions or powers. This section is consistent with section 28 of the PWSS Act, which provides for the independence of the PWSS CEO.

970. In accordance with this section, Commissioners would have discretion in performing their functions and exercising their powers under this Bill. Commissioners would not be subject to direction from anyone in doing so, including the government of the day, the PWSS CEO or the Chair Commissioner. This section would ensure that Commissioners have the necessary independence to undertake investigations into conduct issues in Commonwealth parliamentary workplaces, free from actual or perceived political influence.

971. While the IPSC would be established within the PWSS, there is intended to be functional separation between certain functions. In particular, given the sensitivity and confidentiality of information intended to be held and dealt with by the IPSC, it is intended that the Commissioners' investigation functions would be functionally separate from, and independent of, the PWSS's human resources and other functions. Similarly, the PWSS's other functions, particularly its support function, would operate independently of the IPSC.

972. This section is not intended to affect the ability of the PWSS CEO to fully perform their functions as an accountable authority. In particular, it is not intended to limit the ability of the PWSS CEO to issue accountable authority instructions under section 20A of the PGPA Act, such as those which might indirectly affect the conduct of investigations or reviews (such as in relation to the use of relevant money in the performance of their functions). As such, while Commissioners would be subject to accountable authority instructions given by the PWSS CEO under the finance law, the CEO would not be able to direct Commissioners in the performance of their functions, including in the performance of an investigation or review.

Division 3—Appointment of Commissioners

Section 36E – Appointment of Commissioners

973. New section 36E would provide for the appointment of the Commissioners, including the appointment process, qualification requirements and the period of appointment.

974. New subsection 36E(1) would provide that a Commissioner (including the Chair Commissioner) is to be appointed by the Governor-General, by written instrument, on the recommendation of the Minister. Section 6A of the PWSS Act defines the term 'the Minister' in a provision of the PWSS Act at a particular time to mean the Special Minister of State, if there is a Minister identified by that title at that time, or otherwise the Minister, or any of the Ministers, administering the provision at that time.

975. Before the Minister makes a recommendation to the Governor-General regarding a Commissioner's appointment, the Minister must be satisfied that the person meets the selection and qualification requirements under subsection 36E(2) and must have referred the proposed recommendation to the PJCPS and received the PJCPS's approval of the recommendation under subsection 36E(3).

976. New subsection 36E(2) would provide for the selection process and the minimum qualification requirements for a person to be appointed as a Commissioner.

977. New paragraph 36E(2)(a) would provide that a person must not be appointed as a Commissioner unless the Minister is satisfied that the selection of the person was the result of a process that was merit-based, which included public advertising of the position. This would ensure that appointments to the IPSC are merit-based and transparent. Requiring that proposed appointees be selected through a merit-based and open process would maintain the IPSC's essential institutional independence, promote confidence in the IPSC and ensure the quality of candidates.

978. New paragraph 36E(2)(b) would provide that a person must not be appointed as a Commissioner unless the Minister is satisfied that one or more of the following apply:

a.

the person is enrolled as a legal practitioner and has been enrolled for at least five years,

b.

the person is a former Commonwealth judicial officer,

c.

the person is a former judge of the Supreme Court of a State or Territory,

d.

the person has skills, knowledge or experience in investigating workplace misconduct.

979. These qualification requirements would ensure that Commissioners have the appropriate skills and expertise to effectively perform their functions under the PWSS Act. These qualification requirements reflect that to effectively discharge the functions of a Commissioner, a person would need to have specialist skills and expertise in investigations, dealing with and making determinations regarding allegations of misconduct, or resolving disputes, particularly in a workplace context. This would include individuals with specific skills, knowledge or experience in investigating workplace misconduct, such as experience in investigating workplace bullying or sexual harassment, as well as experienced legal practitioners and former judicial officers.

980. New subsection 36E(3) would require the Minister to have referred the proposed recommendation to the PJCPS and received the PJCPS's approval of the recommendation prior to making a recommendation to the Governor-General.

981. The PJCPS's role in Commissioner appointments would be consistent with that of the PJC-NACC in respect of NACC officeholder appointments, and would support the appointment of Commissioners who have the endorsement and confidence of the Parliament.

982. New paragraph 36E(3)(a) would provide that before the Minister makes a recommendation to the Governor-General regarding the appointment of a Commissioner, the Minister must have referred the proposed recommendation to the PJCPS under new section 59H. It is a matter for the PJCPS to determine the processes by which it would consider a referral.

983. New paragraph 36E(3)(b) would provide that the PJCPS's approval may be obtained in two ways. The PJCPS may either notify the Minister that it has decided to approve the proposed recommendation, or the PJCPS may be taken to have approved the proposed recommendation under new subsection 59H(4) where it did not give notice of its decision on the recommendation within the required timeframe.

984. New subsection 36E(4) would provide that a person cannot be appointed as a Commissioner (including as the Chair Commissioner) if they have previously been appointed as the Chair Commissioner. Providing that a Chair Commissioner could not be reappointed as a Commissioner (including as the Chair Commissioner) is intended to ensure the independence of the IPSC as Chair Commissioners would not be concerned about being re-appointed whilst undertaking their functions and would have no incentive to consider the regard in which they are held by the government of the day. This would also ensure there is regular renewal in leadership of the IPSC.

985. New subsection 36E(5) would provide that a Commissioner (including the Chair Commissioner) would hold office for the period specified in the instrument of their appointment. That period must not exceed five years, which is consistent with the Government's merit and transparency policy for statutory appointments. In order to facilitate continuity within leadership of the IPSC, this new subsection does not specify a set term of appointment. Reflecting an observation in the Set the Standard Report, it is intended that appointment periods of Commissioners would initially be staggered so as to ensure that all of a Commissioner cohort would not conclude their terms at the same time.

986. New subsection 36E(6) would provide that a non-Chair Commissioner may be reappointed as a non-Chair Commissioner on one occasion after their first appointment to the IPSC, for an additional period not exceeding five years. Accordingly, a non-Chair Commissioner may be appointed to serve two terms as a Commissioner, to a total period of no longer than ten years.

987. Similarly, new subsection 36E(7) would provide that a non-Chair Commissioner may be re-appointed as the Chair Commissioner. Accordingly, an individual may be appointed to serve one term as a non-Chair Commissioner and then a subsequent term as the Chair Commissioner, to a total period of no longer than ten years. Consistent with new subsection 36E(4), that Chair Commissioner could not then subsequently be re-appointed.

988. Allowing for one re-appointment of a Commissioner, including as the Chair Commissioner, would facilitate continuity in experience in the IPSC, and avoid all Commissioner appointments expiring at the same time. It is also consistent with the approach taken to the appointment of Deputy Commissioners under the NACC Act. Under section 242 of that Act, a Deputy Commissioner may be reappointed on one occasion.

989. New subsection 36E(8) would provide that a Commissioner (including the Chair Commissioner) would hold office on a part-time basis. This reflects that Commissioners would only be required to exercise their functions when assigned as an investigating Commissioner or when constituted as part of a parliamentarian decision panel or a review panel. As this may result in an intermittent and variable workload, it is appropriate that Commissioners would be appointed on a part-time basis.

Section 36F – Acting Commissioners

990. New section 36F would provide for the appointment of an acting Commissioner.

991. New subsection 36F(1) would provide that the Minister may appoint a person to act as a Commissioner during:

a.

a vacancy in the office of a Commissioner (whether or not an appointment has previously been made to the office), or

b.

any or all periods when a Commissioner is absent from duty or from Australia, or is unable to perform the duties of the office for any reason.

992. Such an appointment must be by written instrument.

993. This section provides appropriate arrangements to ensure the functions of the Commissioners can be exercised during any periods in which a Commissioner may be unavailable. This includes periods of personal and recreational leave. In addition, given the need for PJCPS approval of recommended appointments prior to making a substantive appointment, this section ensures an acting Commissioner may be appointed in order to undertake the work of the IPSC if there is a delay in finalising a Commissioner appointment (including for the initial appointments of the Commissioners).

994. The note under new subsection 36F(1) would clarify that the rules applying to acting appointments as specified in sections 33AB and 33A of the Acts Interpretation Act apply to acting appointments made under this provision. These rules relate to the validity of things done under appointments and provide for the terms, conditions and duration of certain acting appointments.

995. New subsection 36F(2) would provide that a person can only be appointed as an acting Commissioner if the Minister is satisfied that they are qualified under new paragraph 36E(2)(b). This new subsection would ensure that a suitably qualified person occupies the role of an acting Commissioner and an acting Commissioner would have the same qualifications as a substantive Commissioner.

996. New subsection 36F(3) would provide that despite new subsections 36E(4), (6) and (7) a person can be appointed to act as a Commissioner (including as the Chair Commissioner) if they have previously been appointed as a substantive Commissioner (including as the Chair Commissioner).

997. Over the course of a 5-year appointment, it will be essential for Commissioners to have regular leave for rest and recreation, as well as personal leave for any periods of illness or injury. Given that appointment processes can be lengthy, and the approval of the PJCPS would also be needed for appointments of Commissioners, it is also possible that the position could be vacant following the end of a Commissioner's appointment. This section would ensure that the IPSC has appropriate leadership across all of these circumstances.

Division 4—Terms and conditions for Commissioners

Section 36G – Training requirements

998. New section 36G would provide certain mandatory training requirements for Commissioners of the IPSC.

999. New subsection 36G(1) would provide that an IPSC Commissioner must complete specified courses of training as soon as practicable after being appointed as a Commissioner, subject to new subsection 36G(2). New paragraphs 36G(1)(a) and (b) would require all Commissioners to complete courses relating to trauma awareness and gender-based violence. Noting that Commissioners have functions to deal with conduct issues, which may include sexual harassment, assault and sexual assault, this training requirement is intended to promote a trauma-informed approach to IPSC investigations.

1000. In addition, new paragraph 36G(1)(c) would provide that a Commissioner must complete any other training courses prescribed by the PWSS rules. This would provide flexibility by enabling the Minister to prescribe, under section 69 of the PWSS Act, any other additional compulsory training courses that may be relevant to the performance of a Commissioner's functions. This provision would not operate to limit Commissioners from completing other training, as relevant.

1001. The requirement for Commissioners to complete this training as soon as practicable after their appointment would support Commissioners to incorporate and reflect best practice into their investigative functions from the commencement of their term of appointment. These training requirements would supplement the qualification requirements for Commissioners provided at new subsection 36E(2), to ensure Commissioners have appropriate expertise, experience and skills to perform their functions.

1002. New subsection 36G(2) would provide that the training requirements in subsection 36G(1) do not apply to an acting Commissioner who has completed the prescribed training within the two years prior to their appointment as an acting Commissioner. This is intended to capture any appropriate course of training relating to the matters prescribed in subsection 36G(1), rather than requiring them to undertake training facilitated by the IPSC. This would balance the need to ensure that acting Commissioners have up-to-date knowledge regarding trauma awareness and gender-based violence with the short-term nature of their appointments, and provide flexibility to appoint acting Commissioners in urgent or unexpected circumstances.

Section 36H – Remuneration of Commissioners

1003. New section 36H would set out the means for determining the remuneration and allowances for Commissioners.

1004. New subsection 36H(1) would provide that a Commissioner is to be paid the remuneration as determined by the Remuneration Tribunal. The Remuneration Tribunal is an independent statutory body that determines the remuneration of key Commonwealth offices. Accordingly, it is appropriate for the remuneration of the Commissioners to be determined by the Remuneration Tribunal.

1005. New subsection 36H(1) would also provide that in the event that no such determination is in operation, a Commissioner is to be paid the remuneration that is prescribed by the PWSS rules made by the Minister under section 69 of the PWSS Act. The ability to prescribe the Commissioners' remuneration in the PWSS rules allows flexibility to ensure Commissioners can be appropriately remunerated if there is any delay in the making of a determination by the Tribunal.

1006. New subsection 36H(2) would provide that a Commissioner is to be paid any allowances that are prescribed by the PWSS rules.

1007. New subsection 36H(3) would clarify that subsections 36H(1) and (2) have effect subject to the Remuneration Tribunal Act 1973. Accordingly, any remuneration prescribed in the PWSS rules would only operate where no determination by the Tribunal is in operation.

Section 36J – Leave of absence

1008. New section 36J would outline the leave entitlements of Commissioners.

1009. New subsection 36J(1) would provide that the Minister may grant the Chair Commissioner leave of absence, on any terms and conditions that the Minister determines. This is consistent with standard practice for part-time officeholders.

1010. New subsection 36J(2) would provide that the Chair Commissioner may grant another Commissioner leave of absence, on any terms and conditions that the Chair Commissioner determines. This would accord with the Chair Commissioner's role in managing the work of the IPSC, including in assigning Commissioners as investigating Commissioners and constituting parliamentarian decision and review panels.

Section 36K – Resignation

1011. New section 36K would provide for the resignation of a Commissioner.

1012. New subsection 36K(1) would provide that a Commissioner may resign their appointment by giving a written resignation to the Governor-General.

1013. New subsection 36K(2) would provide that a resignation under this section takes effect on the day it is received by the Governor-General, unless a later day is specified in the written resignation. If a later day is specified, then the resignation takes effect on that day.

1014. If a Commissioner were to resign or otherwise cease their appointment, it is intended that the exercise of functions and powers vested in the other Commissioners and in the IPSC itself would not be invalidated as a result of the temporary change in constitution of the IPSC.

Section 36L – Termination of appointment

1015. New section 36L would set out the circumstances in which a Commissioner's appointment could be terminated.

1016. These grounds of termination in new section 36L are broadly consistent with termination arrangements for statutory appointments to other Commonwealth agencies and are necessary to ensure the integrity and effective operation of the IPSC.

1017. New subsections 36L(1) and (2) set out the circumstances in which the appointment of a Commissioner could be terminated.

1018. New subsection 36L(1) would provide that the Governor-General would have discretion to terminate the appointment of a Commissioner on certain grounds where each House of the Parliament, in the same session, presents an address to the Governor-General praying for the removal of the Commissioner. Such a removal could be on the grounds of misbehaviour or that the Commissioner is unable to perform their duties because of physical or mental incapacity.

1019. This new section would ensure the independence of the Commissioners by ensuring they cannot be removed from office by the Government of the day without the agreement of the Parliament. The grounds for removal are extremely limited, ensuring that the Commissioners can undertake code of conduct investigations and reviews without fear of removal from office due to potentially making adverse findings against current government parliamentarians or MOPS employees, or non-core participants with close connections to the government of the day.

1020. Requiring an address from both Houses of the Parliament before the termination of a Commissioner is consistent with the arrangements for the removal of the Auditor-General under the Auditor-General Act 1997 (Auditor-General Act) and statutory appointments to the NACC.

1021. New subsection 36L(2) would provide that the Governor-General would be required to terminate the appointment of a Commissioner in circumstances where they become financially compromised. This would include circumstances where a Commissioner:

a.

becomes bankrupt,

b.

applies to take the benefit of any law for the relief of bankrupt or insolvent debtors,

c.

compounds with the Commissioner's creditors, or

d.

makes an assignment of the Commissioner's remuneration for the benefit of the Commissioner's creditors.

1022. This provision would guard against the potential for a Commissioner to become financially vulnerable to corruption or conflicts of interest. These circumstances would be sufficiently objective and serious so as to warrant termination of an appointment without discretion or parliamentary consideration. This is consistent with the arrangements for the Auditor-General under the Auditor-General Act and statutory appointments under the NACC Act.

Item 46 – Part 4 (heading)

1023. Item 46 would amend the heading of Part 4 of the PWSS Act to insert 'and IPSC', so that it reads 'Part 4—Staff of the PWSS and IPSC etc.'.

1024. This amendment is consequential to items 47 to 51 which would amend Part 4 of the PWSS Act to provide for staff of the IPSC, in addition to staff of the PWSS. As such, this amendment would ensure that the heading of Part 4 reflects the amended scope of this Part.

Item 47 – Before section 37

1025. Item 47 would insert a new heading to create a new Division under Part 4 of the PWSS Act.

1026. This amendment is complementary to items 50 and 51, which, together, would create four Divisions within Part 4 of the PWSS Act. This reflects that Part 4 of the PWSS Act would be amended by this Bill to provide for staff of the IPSC, in addition to staff of the PWSS.

1027. This item would insert the heading 'Division 1—Introduction'. New Division 1 of Part 4 would include existing section 37, which provides the simplified outline of Part 4.

Item 48 – Section 37 (paragraph beginning "The CEO may")

1028. Item 48 would amend the simplified outline of Part 4 in existing section 37 of the PWSS Act to clarify that the power of the CEO to engage consultants is to assist in the performance of the functions of the PWSS.

1029. This item would amend the current final paragraph of the simplified outline to insert the phrase 'to assist the PWSS' after the existing sentence 'the CEO may engage consultants', so that it reads '[t]he CEO may engage consultants to assist the PWSS'.

1030. This amendment is consequential to new section 40B which would provide that the Chair Commissioner may engage consultants to assist in the performance of the IPSC's functions. As such, the PWSS CEO's power to engage consultants is limited to engaging consultants to assist the PWSS in the performance of its functions, and does not extend to engaging consultants to assist the IPSC in the performance of its functions.

Item 49 – Section 37 (after the paragraph beginning "The CEO may")

1031. Item 49 would amend the simplified outline of Part 4 under existing section 37 of the PWSS Act to reflect the new provisions in this Part relating to staff of the IPSC and immunity from liability for PWSS and IPSC officials.

1032. This item would amend the simplified outline to reflect new section 40A, noting that the CEO must make available staff of the PWSS, and other persons assisting the PWSS, to assist the IPSC as required by the Chair Commissioner.

1033. This item would also amend the simplified outline to reflect new section 40B, noting that the Commissioners may engage consultants.

1034. Finally, this item would amend the simplified outline to reflect new section 40C, noting that PWSS and IPSC officials are not liable to civil proceedings for things done in good faith in the performance or exercise of functions, powers or duties under this Act.

Item 50 – Before section 38

1035. Item 50 would insert a new heading to create a new Division under Part 4 of the PWSS Act.

1036. This amendment is complementary to items 47 and 51, which, together, would create four Divisions within Part 4 of the PWSS Act. This reflects that Part 4 of the PWSS Act would be amended by this Bill to provide for staff of the IPSC, in addition to staff of the PWSS.

1037. This item would insert the heading 'Division 2—Staff of the PWSS etc.'. New Division 2 of Part 4 would include existing sections 38 to 40 of the PWSS Act, which deal with staff of the PWSS.

Item 51 – At the end of Part 4

1038. Item 51 would insert two new Divisions into Part 4 of the PWSS Act to provide for staff of the IPSC and immunity from liability for PWSS and IPSC officials.

1039. This item would insert new Division 3, titled 'Staff of the IPSC etc.' which would provide for the staff of the IPSC, similar to new Division 2 which provides for the staff of the PWSS. This item would also insert new Division 4, titled 'Immunity from liability', which would confer immunity from civil liability for PWSS and IPSC officials in the performance of their functions, powers or duties.

Division 3—Staff of the IPSC

Section 40A – Persons assisting the IPSC

1040. New section 40A would require the PWSS CEO to make available members of their staff and others to assist the IPSC to perform its functions.

1041. New subsection 40A(1) would provide that the PWSS CEO must make available staff of the PWSS, government officers and employees made available to the PWSS and consultants engaged by the PWSS CEO to assist the IPSC to perform its functions. Under this subsection, the CEO would be required to provide such persons to the extent that the Chair Commissioner reasonably requires.

1042. The duty of the PWSS CEO to make such persons available reflects their duty as an accountable authority under the PGPA Act to promote the achievement of the purposes of the entity, which includes the entity's objectives, functions or role. This is also similar to other statutory schemes, such as subsection 184(3) of the Online Safety Act 2021 in relation to assistance by staff of the Australian Communications and Media Authority to the eSafety Commissioner, and subsection 47(1) of the Data Availability and Transparency Act 2022 in relation to APS employees made available to the National Data Commissioner by the Secretary of the hosting department.

1043. This provision would provide flexibility in the staffing profile supporting the IPSC, as required. As the workload of the IPSC would fluctuate depending on the number of complaints, referrals, investigations and reviews before it at any one time, this model would allow the Chair Commissioner to reasonably request staff of the PWSS necessary to support its workload as it stands at the relevant time. This would promote efficiency and an appropriate use of resources.

1044. Under this subsection, the PWSS must make available:

a.

staff of the PWSS, being staff engaged under the Public Service Act as reflected in existing section 38 of the PWSS Act (new paragraph 40A(1)(a)),

b.

persons whose services are made available to the PWSS under existing section 39 of the PWSS Act, which would include officers and employees of Agencies (within the meaning of the Public Service Act) and authorities of the Commonwealth, and officers and employees of a State or Territory and authorities of a State or Territory (new paragraph 40A(1)(b)),

c.

consultants engaged under existing section 40 of the PWSS Act (new paragraph 40A(1)(c)). This is supplementary to the ability of Commissioners of the IPSC to directly engage consultants under new section 40B.

1045. New subsection 40A(2) would provide that persons made available to assist the IPSC under proposed subsection 40A(1) would be subject to the directions of the Chair Commissioner in relation to that assistance.

1046. This Bill would not displace the existing common law duty of employees to comply with lawful and reasonable directions by the employer, or the existing duty of APS employees to comply with a lawful and reasonable direction under the APS Code of Conduct as set out in section 13 of the Public Service Act. In the event that a conflict should arise between a direction from the Commissioner and from the PWSS CEO, it is intended that staff comply with the directions of the Commissioner to the extent that the direction relates to giving effect to the exercise of the Commissioner's statutory functions and powers.

Section 40B – Consultants

1047. New section 40B would authorise Commissioners to engage consultants in certain circumstances.

1048. New subsections 40B(1) and (2) would provide for the engagement of consultants by the Chair Commissioner to assist the IPSC.

1049. New subsection 40B(1) would provide that the Chair Commissioner may engage consultants, on behalf of the Commonwealth, to assist in the performance of the IPSC's functions. Such consultants would be engaged on the terms and conditions as the Chair Commissioner determines, in writing. For example, the Chair Commissioner may choose to engage a consultant with specific skills or experience to assist the IPSC to prepare certain aspects of guidance developed and published under new section 24BB.

1050. New subsection 40B(2) would provide that a person engaged as a consultant under new subsection 40B(1) would be subject to the directions of the Chair Commissioner in relation to that assistance.

1051. New subsections 40B(3) and (4) would provide for the engagement of consultants by a Commissioner to assist that Commissioner in the performance of their functions.

1052. These subsections provide that a Commissioner may engage consultants, on behalf of the Commonwealth, to assist in the performance of their functions. Such consultants would be engaged on the terms and conditions as the relevant Commissioner determines, in writing. This is intended to allow Commissioners to engage consultants to assist in the course of a particular investigation or review. For example, a Commissioner may choose to engage a consultant with specific skills or experience to assist them in particular issues, such as professionals or translators.

1053. New subsection 40B(3) would provide for a Commissioner to engage consultants, on behalf of the Commonwealth, to assist in the performance of that Commissioner.

1054. New subsection 40B(4) would provide that a person engaged as a consultant under new subsection 40B(3) would be subject to the directions of the Commissioner that engaged them in relation to that assistance.

Division 4—Immunity from liability

Section 40C – Immunity from liability for PWSS and IPSC officials

1055. New section 40C would confer immunity from liability in civil proceedings to PWSS and IPSC officials.

1056. New subsection 40C(1) would provide that this section applies to protected persons, being:

a.

the PWSS CEO,

b.

the Commissioners of the IPSC,

c.

the staff of the PWSS,

d.

persons whose services are made available to the PWSS under existing section 39,

e.

consultants engaged to assist the PWSS in the performance of its functions under existing section 40,

f.

persons made available under new section 40A to assist the IPSC,

g.

consultants engaged to assist the IPSC or a Commissioner in the performance of their functions under new section 40B.

1057. This scope of coverage would ensure that all individuals that perform functions or exercise powers under the PWSS Act, or who assist in the performance of those functions or exercise of those powers, would be appropriately protected from liability.

1058. New subsection 40C(2) would provide that a protected person is not liable to civil proceedings in relation to an act or omission done in good faith in the actual or purported performance or exercise of their functions, powers or duties under the Bill.

1059. This immunity would ensure that PWSS and IPSC officials are able to perform their functions, powers and duties under the Bill without fear of personal liability for any actions they perform in good faith. Without immunity from civil proceedings, PWSS and IPSC officials may be exposed to civil liability in the performance of their duties. For example, an IPSC Commissioner may be exposed in circumstances where a respondent wishes to bring legal action to seek compensation for damage to their reputation as a result of allegedly defamatory statements contained in a report finding the respondent has engaged in relevant conduct. Such an outcome would be likely to create an actual or perceived risk that a Commissioner may improperly constrain their findings to avoid any risk to their personal interests. By providing an immunity from civil liability for acts or omissions done in good faith in the performance or exercise, or purported performance or exercise, of their functions, powers or duties under the PWSS Act, this section would reduce the risk that officials would adopt a less rigorous approach to the performance of their functions to protect their personal interests at the expense of the public interest.

1060. The immunities in this new section would not apply to conduct engaged in other than in good faith. The mere purported performance or exercise of functions, powers or duties requires more than the absence of dishonesty or malice by the relevant person. Rather, there must be a genuine attempt to perform the function correctly, having regard to the caution and diligence that is expected of an honest person of ordinary prudence.

Item 52 – Section 60 (paragraph beginning "This part enables")

1061. Item 52 would amend the simplified outline of Part 7 in existing section 60 of the PWSS Act to reflect that Part 7, as amended, would enable the disclosure of information to and from the IPSC and certain entities and persons.

1062. This item would repeal the current first paragraph of the simplified outline and replace it with a paragraph outlining that Part 7 of the PWSS Act would enable:

a.

the PWSS or the IPSC to disclose information to certain entities and persons,

b.

certain entities and persons to disclose information to the PWSS or the IPSC,

c.

the PWSS to disclose information to the IPSC, and

d.

the IPSC to disclose information to the PWSS.

1063. This amendment is consequential to items 56 to 80 which would amend the information sharing provisions in Part 7 of the PWSS Act to provide for the IPSC to disclose information to the PWSS and other entities and persons, as well as for the PWSS and certain entities and persons to disclose information to the IPSC.

Item 53 - Section 60 (paragraph beginning "However")

1064. Item 53 would amend the simplified outline of Part 7 in existing section 60 of the PWSS Act to outline how information disclosed under this Part may be disclosed or used.

1065. This item would amend the second paragraph of the simplified outline to insert reference to the performance of the functions or the exercise of powers of the IPSC. Accordingly, the simplified outline would set out that information disclosed under Part 7 may only be disclosed or used if it is reasonably necessary for the performance of functions, or the exercise of powers, of the PWSS, IPSC, entity or person. This amendment is consequential to items 63 to 66 which would provide for the disclosure of information to the IPSC if the disclosure if reasonably necessary to assist the IPSC to perform any of its functions or exercise any of its powers, and item 71 which would provide for the use of such information.

1066. In addition, this item would replace the reference to an 'individual' with a reference to 'entity or person'. This reference to 'person' instead of 'individual' would reflect that Part 7, as amended by items 60, 61, 63, 67, 76, 78, and 80, would enable information sharing with the Presiding Officers, in addition to individuals who hold any office or appointment under a law of the Commonwealth. In addition, the amended simplified outline would reflect that item 71 would authorise the Presiding Officers to use information disclosed under this Part for the purposes of performing their functions or exercising their powers.

Item 54 – Section 60 (paragraph beginning "The PWSS may request some")

1067. Item 54 would amend the simplified outline of Part 7 in existing section 60 of the PWSS Act to reflect that the PWSS may request some persons give the PWSS information for the purposes of their public report.

1068. This item would amend the third paragraph of the simplified outline to insert a reference to 'persons'. This amendment is consequential to item 72 which would amend existing section 62 of the PWSS Act to provide that, similar to requests of other entities, the PWSS may also request the Chair Commissioner of the IPSC provide specified information for the purposes of the PWSS's annual public report under subsection 22(2) of the PWSS Act, as amended by this Bill.

Item 55 – Section 60 (paragraph beginning "The CEO")

1069. Item 55 would amend the simplified outline of Part 7 in existing section 60 of the PWSS Act to reflect that the PWSS CEO and the Chair Commissioner may enter into arrangements with certain entities or persons.

1070. This item would repeal the current fourth paragraph of the simplified outline and replace it with a new paragraph. This new paragraph would outline that the Chair Commissioner, in addition to the PWSS CEO, may enter into arrangements relating to the disclosure and use of information. This amendment is consequential to item 80 which would insert new section 63A of the PWSS Act to enable the Chair Commissioner to make arrangements for sharing information with or by the IPSC, consistent with the power of the PWSS CEO to make such arrangements under existing section 63 of the PWSS Act.

1071. This amendment would also replace the previous reference to 'other Commonwealth entities or individuals' with a reference to 'certain entities and persons'. This amendment is consequential to item 76 which would amend existing section 63 of the PWSS Act to provide that the PWSS CEO may make arrangements for sharing information with a Presiding Officer. The Chair Commissioner would have the same power to make arrangements with a Presiding Officer, as well as with a State or Territory law enforcement entity, under new section 63A, as inserted by item 80. Accordingly, the amended simplified outline would reflect that the CEO and Chair Commissioner's powers to enter into arrangements are not limited to solely Commonwealth entities, and includes persons, such as the Presiding Officers.

Item 56 – Division 2 of Part 7 (heading)

1072. Item 56 would amend the heading of Division 2 of Part 7 so that it reads 'Division 2—Information sharing between the PWSS, IPSC and other entities and persons'.

1073. This item would amend the heading of Division 2 to replace 'and other Commonwealth entities etc.' with ', IPSC and other entities and persons'. Existing Division 2 of Part 7 provides for information sharing between the PWSS and other Commonwealth entities and individuals holding office or appointment under Commonwealth law. This amendment is consequential to items 57 to 80 which would amend the information sharing provisions in Division 2 to also provide for the disclosure of information between the IPSC, PWSS and certain entities and persons. This includes disclosure to certain non-Commonwealth entities, being State or Territory law enforcement entities. As such, this amendment would ensure the heading of Division 2 reflects the amended scope of this Division.

Item 57 – Section 61 (heading)

1074. Item 57 would amend the heading of existing section 61 of the PWSS Act so that it reads 'Information sharing between the PWSS, IPSC and other entities and persons'

1075. This item would amend the heading of section 61 to replace 'and other Commonwealth entities etc.' with ', IPSC and other entities and persons'. Existing section 61 provides for information sharing between the PWSS and other Commonwealth entities and individuals holding office or appointment under Commonwealth law. This amendment is consequential to items 58 to 71 which would amend section 61 to also provide for the disclosure of information between the IPSC, PWSS and certain entities and persons. This includes disclosure by the IPSC to certain non-Commonwealth entities, being State or Territory law enforcement entities. As such, this amendment would ensure the heading of section 61 reflects the amended scope of this section.

Item 58 – Subsection 61(1) (heading)

1076. Item 58 would amend the existing heading above subsection 61(1) of the PWSS Act so that it reads 'Authorisation to disclose information—to and by various entities and persons'.

1077. This item would add 'to and by various entities and persons' to the end of the existing heading. This amendment would reflect that subsections 61(1) and (2), as amended by this Bill, would authorise the disclosure of information between the PWSS or the IPSC and other Commonwealth entities, individuals holding office or appointment under Commonwealth law, State or Territory law enforcement entities and the Presiding Officers. This is in comparison to new subsections 61(2A) and (2B), as inserted by item 66, which would authorise the disclosure of information between the PWSS and the IPSC. As such, this amendment would ensure this heading reflects the amended scope of subsections 61(1) and (2).

Item 59 – Subsection 61(1)

1078. Item 59 would amend the general authorisation to disclose information in subsection 61(1) of the PWSS Act to authorise the IPSC to disclose information to certain entities and persons if reasonably necessary to assist the entity or person to perform its functions and activities or exercise its powers.

1079. Existing subsection 61(1) authorises the PWSS to disclose information to another Commonwealth entity or an individual who holds any office or appointment under a law of the Commonwealth. This item would amend subsection 61(1) to insert 'or IPSC' in the chapeau of the subsection. This would have the effect of authorising the IPSC to disclose information in the same manner as the PWSS.

1080. Accordingly, the IPSC would be authorised to disclose information to another Commonwealth entity (as defined in existing section 5 of the PWSS Act) and an individual who holds any office or appointment under a law of the Commonwealth. In addition, consistent with the amendments made by item 60, the IPSC would also be authorised to disclose information to a Presiding Officer. The IPSC could only disclose such information if the disclosure were reasonably necessary to assist the entity, individual or Presiding Officer to perform any of the functions or activities, or exercise any of the powers, of the entity, individual or Presiding Officer.

1081. This authorisation serves a different purpose to the specific authorisations to disclose information by entrusted persons in new Subdivision C of Division 6 of Part 2A of the PWSS Act, as amended by this Bill. Section 61, as amended, would authorise the IPSC to disclose information where reasonably necessary for the recipient's functions, activities or powers, in contrast to new section 24FL which would authorise the disclosure of information for purposes connected with the performance or exercise of the IPSC or a Commissioner's functions.

1082. Information sharing between the IPSC and other Commonwealth entities, Commonwealth officeholders and appointees, and Presiding Officers entities is necessary to support these entities and persons to effectively undertake their functions.

1083. In particular, these information sharing provisions recognise that the IPSC would fit within an existing ecosystem of Commonwealth agencies and officeholders, with specialised agencies and officeholders performing complementary functions. It is therefore necessary for the IPSC to be able to share information, including personal information, in order for conduct issues to be dealt with by the most appropriate agency. For example, if during the course of an IPSC investigation into bullying in a parliamentarian's office the IPSC received information which indicated a corruption issue, this subsection would authorise the IPSC to share such information with the NACC.

1084. This provision would authorise the disclosure of personal information by the IPSC, including identifying information. This recognises that it may be reasonably necessary for the IPSC to disclose personal information to certain persons and entities to assist that entity or person to perform their functions or activities or exercise their powers. For example, it may be reasonably necessary for the IPSC to disclose identifying information, such as the name of an individual, when disclosing information relating to an issue that may be more appropriately dealt with by another investigatory agency.

1085. Consistent with new section 24FN, which would authorise entrusted persons to record or disclose information where required or authorised to do so under the PWSS Act, as amended by this Bill, the disclosure of information by an entrusted person in accordance with this Part would not constitute an offence under new section 24FK.

Item 60 – After paragraph 61(1)(b)

1086. Item 60 would amend the general authorisation to disclose information in subsection 61(1) of the PWSS Act to also authorise the disclosure of information to the Presiding Officers.

1087. Existing subsection 61(1) authorises the disclosure of information to another Commonwealth entity or an individual who holds any office or appointment under a law of the Commonwealth. This item would amend subsection 61(1) to insert reference to a Presiding Officer. This would have effect of authorising the PWSS or the IPSC to disclose information to a Presiding Officer in the same manner as to Commonwealth entities or individual office-holders.

1088. New paragraph 61(1)(ba) would authorise the PWSS or the IPSC to disclose information to a Presiding Officer where reasonably necessary to assist the Presiding Officer to perform any of their functions or exercise any of their powers. This reflects the need for the PWSS and the IPSC to be able to disclose information to the Presiding Officers, noting the Presiding Officers' functions in protecting the rights and privileges of the Parliament and to manage and control the parliamentary precincts. For example, this authorisation would allow the IPSC to confer with the Presiding Officers on matters relating to the engagement of parliamentary privilege or to disclose information which may impact the safety or the security of the precincts.

Item 61 – Subsection 61(1)

1089. Item 61 would amend existing subsection 61(1) of the PWSS Act to reflect that the IPSC and the PWSS may disclose information to Presiding Officers.

1090. This item would amend subsection 61(1) to replace references to 'entity or individual' with a reference to 'entity, individual or Presiding Officer'. This amendment is consequential to item 60 which would amend subsection 61(1) to authorise the disclosure of information by the PWSS or the IPSC to a Presiding Officer. Accordingly, this amendment would reflect that the authorisation in subsection 61(1) is not limited to solely entities or individuals, but also includes the Presiding Officers.

Item 62 – After subsection 61(1)

1091. Item 62 would authorise the disclosure of information by the IPSC to a State or Territory law enforcement entity.

1092. This item would insert new subsection 61(1A) which would provide that the IPSC may disclose information, including personal information, to a State or Territory law enforcement entity (defined in section 5, as amended by item 24 of this Bill) if the disclosure is reasonably necessary to assist the entity to perform any of its functions or activities, or exercise any of its powers. This is in addition to the authorisation for the IPSC to disclose information to Commonwealth entities, an individual who holds any office or appointment under a law of the Commonwealth and Presiding Officers under subsection 61(1), as amended by items 57 to 61 of this Bill. This would have the effect of authorising the IPSC to disclose information to a State or Territory law enforcement entity in the same manner as to Commonwealth entities, individual office-holders and Presiding Officers.

1093. This is intended to capture disclosure of information to state or territory police forces or services. Disclosure to the AFP is already provided for under existing paragraph 61(1)(a) of the PWSS Act, which authorises the disclosure of information to Commonwealth entities.

1094. This reflects the need for the IPSC to be able to disclose information to state and territory police where a conduct issue may involve potentially criminal conduct under state or territory law. For example, subject to new subsection 61(5B), this subsection would allow the IPSC to disclose information to a state or territory police force or service, such as to confer as to whether an IPSC investigation would inappropriately hinder or interfere with any future police investigation.

Item 63 – Subsection 61(2)

1095. Item 63 would amend the general authorisation to disclose information in subsection 61(2) of the PWSS Act to authorise Commonwealth entities, officeholders and the Presiding Officers to disclose information to the PWSS or the IPSC if reasonably necessary to assist the PWSS, PWSS CEO, the IPSC or a Commissioner to perform their functions or exercise their powers.

1096. Existing subsection 61(2) authorises Commonwealth entities or individuals holding office or appointment under a law of the Commonwealth to disclose information to the PWSS. This item would amend the chapeau of subsection 61(2) to include the Presiding Officers amongst the entities who may disclose information and to provide that those listed entities and persons may disclose information to the IPSC, in addition to the PWSS. This would have the effect of authorising the disclosure of information to the IPSC in the same manner as is authorised in relation to the PWSS.

1097. This subsection is complementary to subsection 61(1) of the PWSS Act, as amended by this Bill, which authorises the disclosure of information by the PWSS and the IPSC to Commonwealth entities, officeholders, and the Presiding Officers. This item would ensure that Commonwealth entities and persons may similarly disclose information to the IPSC where reasonably necessary to assist the IPSC or a Commissioner to perform any of their functions or exercise any of their powers. Whether a State or Territory law enforcement entity is authorised to share information with the IPSC is a matter for state or territory legislation.

1098. Information sharing between the IPSC and other Commonwealth entities, Commonwealth officeholders and appointees, and the Presiding Officers is necessary to support the IPSC to effectively undertake its functions. In particular, these information sharing provisions recognise that the IPSC would fit within an existing ecosystem of agencies and officeholders, with specialised agencies and officeholders performing complementary functions.

1099. For example, if the IPSC were conferring with another Commonwealth integrity agency as to whether the conduct concerned is or has already been dealt with under another law of the Commonwealth, for the purposes of new paragraph 24CH(5)(c), this subsection would authorise that agency to disclose that information to the IPSC.

1100. This provision would authorise the disclosure of personal information to the IPSC, including identifying information. This recognises that it may be reasonably necessary for Commonwealth entities and persons to disclose personal information to the IPSC to assist the IPSC to perform its functions or exercise its powers. For example, if a respondent to a conduct issue was thought to be an APS employee, for the purposes of new paragraph 24CH(4)(b), this subsection would authorise that employee's employing agency to confirm that particular respondent was an APS employee.

1101. This amendment would facilitate the disclosure of information between the IPSC and other entities or persons on a voluntary basis. It would not allow the IPSC to compel information. The IPSC's compulsory information gathering powers are provided at new section 24F.

Item 64 – Paragraph 61(2)(a)

1102. Item 64 would amend the general authorisation to disclose information in subsection 61(2) to authorise the disclosure of information to the IPSC if reasonably necessary to assist the IPSC to perform its functions or exercise its powers.

1103. This item would amend existing paragraph 61(2)(a) of the PWSS Act to insert 'or IPSC', after the reference to the PWSS. This would authorise Commonwealth entities, officeholders and the Presiding Officers to disclose information to the IPSC if the disclosure is reasonably necessary to assist the IPSC to perform any of its functions or exercise any of its powers. This would have the effect of authorising the disclosure of information to the IPSC in the same manner as the PWSS. This item is consequential to item 63 which would amend the chapeau of existing subsection 61(2) of the PWSS Act to authorise the disclosure of information by these entities and persons to the IPSC.

Item 65 – At the end of subsection 61(2)

1104. Item 65 would amend the general authorisation to disclose information in subsection 61(2) to authorise the disclosure of information to the IPSC if reasonably necessary to assist a Commissioner to perform their functions and activities or exercise their powers.

1105. This item would amend existing subsection 61(2) of the PWSS Act to insert a new paragraph which would authorise Commonwealth entities, officeholders and the Presiding Officers to disclose information to the IPSC if the disclosure if reasonably necessary to assist a Commissioner to perform any of their functions or exercise any of their powers. This would have the effect of authorising the disclosure of information to the IPSC in relation to a Commissioner's functions or powers in the same manner as the PWSS in relation to the CEO's functions or powers. This item is consequential to item 63 which would amend the chapeau of existing subsection 61(2) of the PWSS Act to authorise the disclosure of information by these entities and persons to the IPSC.

Item 66 – After subsection 61(2)

1106. Item 66 would authorise the disclosure of information between the PWSS and the IPSC.

1107. It is generally intended there would be functional separation between the IPSC's investigation functions and the PWSS's human resources and support functions. However, information sharing between the IPSC and the PWSS would be necessary in certain circumstances, in particular to support the appropriate and efficient resolution of complaints, to allow for the PWSS to provide support to individuals affected by a conduct issue through their support function and to enable the PWSS to perform its role in providing work health and safety services to parliamentarians and their staff.

1108. This item would insert new subsections 61(2A) and (2B) into existing section 61 of the PWSS Act. These subsections would have the effect of authorising the IPSC and the PWSS to disclose information to each other in the same manner as they may disclose information to other Commonwealth entities, officeholders, and Presiding Officers under section 61 of the PWSS Act, as amended by this Bill.

1109. New subsection 61(2A) would provide for information sharing from the PWSS to the IPSC. This new subsection would authorise the PWSS to disclose information to the IPSC if the disclosure is reasonably necessary to assist the IPSC to perform any of its functions or exercise any of its powers, or to assist a Commissioner to perform any of their functions or exercise any of their powers.

1110. In particular, it may be necessary for the PWSS to share information to enable complaints to be dealt with through the most appropriate function. For example, if an investigating Commissioner was conferring with the PWSS as to whether the conduct concerned is being dealt with under the PWSS's complaint resolution function for the purposes of new paragraph 24CH(5)(c), this subsection would authorise the PWSS to disclose that information to the Commissioner (as part of the IPSC).

1111. New subsection 61(2B) would provide for information sharing from the IPSC to the PWSS. This new subsection would authorise the IPSC to disclose information to the PWSS if the disclosure is reasonably necessary to assist the PWSS to perform any of its functions or exercise any of its powers, or to assist the CEO to perform any of their functions or exercise any of their powers.

1112. In particular, it may be necessary for the IPSC to share information about a conduct issue or an IPSC investigation to enable the PWSS to exercise its human resources functions, including its work health and safety function. For example, if an investigating Commissioner made a recommendation under new section 24CQ that a MOPS employee should be suspended during the course of an investigation, this subsection would authorise the IPSC to disclose that information to the PWSS, for the purposes of the PWSS's human resources functions. This disclosure would be necessary to assist the PWSS to provide advice and assistance to the employing parliamentarian as to how to practically give effect to that suspension, in accordance with that function.

1113. These new subsections would authorise the disclosure of personal information between the PWSS and the IPSC, including identifying information. This recognises that it may be reasonably necessary for the IPSC or the PWSS to disclose personal information to the other to assist in the performance of their functions or exercise of their powers. For example, it may be reasonably necessary for the IPSC and the PWSS to disclose identifying information, such as the name of an individual, when conferring as to whether complaint resolution under section 16 of the PWSS Act would be more appropriate than an IPSC investigation.

1114. Consistent with new section 24FN, which would authorise entrusted persons to record or disclose information where required or authorised to do so under the PWSS Act, as amended by this Bill, the disclosure of information by an entrusted person in accordance with this Part would not constitute an offence under new section 24FK.

1115. This amendment would facilitate the disclosure of information between the IPSC and the PWSS on a voluntary basis. It would not allow the IPSC or the PWSS to compel information. The IPSC's compulsory information gathering powers are provided at new section 24F, and the PWSS's information gathering power is at existing section 62 of the PWSS Act.

1116. This item would also insert a new heading above existing subsection 61(3), which would state 'Parliamentarians not taken to be office-holders etc.'. This would reflect the scope of existing subsection 61(3), which provides that a parliamentarian does not hold office or appointment under a law of the Commonwealth for the purposes of paragraph 61(1)(b) or subsection 61(2).

Item 67 – Subsection 61(4)

1117. Item 67 would clarify when information may be disclosed under section 61 of the PWSS Act.

1118. Existing subsection 61(4) provides that information may be disclosed under subsections 61(1) and (2) of the PWSS Act on the initiative, or at the request of the PWSS, Commonwealth entity or individual who holds office or appointment, as relevant. This item would repeal this existing subsection and replace it with a new subsection. This new subsection would insert reference to information disclosed under new subsections 61(1A), as inserted by item 62, and new subsections (2A) and (2B), as inserted by item 66. In addition, this new subsection would also include reference that information may be disclosed by, or at the request of, the IPSC, Presiding Officer or State or Territory law enforcement entity. This is consequential to items 59 to 66 which would authorise information sharing with the IPSC, Presiding Officers and State or Territory law enforcement entities.

1119. This would ensure that these entities and individuals may share information on a routine basis or make one-off disclosures, as the relevant circumstances require.

Item 68 – Subsection 61(5)

1120. Item 68 would clarify the application of secrecy offences in other laws to information disclosed between the IPSC and the PWSS under section 61 of the PWSS Act, as amended by this Bill.

1121. Existing subsection 61(5) clarifies that the authorisations to share information in section 61 do not apply to a disclosure of information if the disclosure would, apart from that section, constitute an offence against a law of the Commonwealth, and that law does not contain an exception or defence for a disclosure authorised by a law of the Commonwealth. This item would insert reference to new subsection 61(1A), as inserted by item 62, and new subsections 61(2A) and (2B), as inserted by item 66, alongside the existing references to existing subsections 61(1) and (2). This would have the effect that secrecy offences would apply to the disclosure of information between the IPSC and the PWSS as authorised under new subsections 61(2A) and (2B) in the same manner as disclosures to and from the PWSS or the IPSC and other entities.

Item 69 – After subsection 61(5)

1122. Item 69 would provide that the authorisation to disclose information in section 61 of the PWSS Act, as amended by this Bill, does not apply to certain disclosures to a complainant or respondent's employer or to police regarding serious offences.

1123. This item would insert two new subsections into existing section 61 of the PWSS Act.

1124. New subsection 61(5A) relates to the disclosure of information by the IPSC to a complainant or respondent's employer.

1125. New subsection 61(5A) would provide that subsection 61 of the PWSS Act, as amended by this Bill, does not apply to a disclosure of information by the IPSC relating to a conduct complaint or a conduct issue referral to a person or entity who is the employer of the complainant or respondent for that conduct issue if the complainant does not consent to the disclosure. The term employer is defined at section 5 of the PWSS Act, as amended by item 22.

1126. Subsection 61(1) of the PWSS Act, as amended, would authorise the IPSC to disclose information to Commonwealth entities, officeholders, the Presiding Officers where reasonably necessary to assist them to perform their functions or exercise their powers. This amendment recognises that certain Commonwealth entities, officeholders and the Presiding Officers, who may generally have IPSC information disclosed to them under section 61, may also be the employer of a complainant or respondent in an IPSC investigation, such as if a Departmental Liaison Officer from a Department of State is a complainant or a MOPS employee in the office of a Presiding Officer is a respondent. The purpose of section 61 is not to provide for the disclosure of information to employers, but to support the effective functioning of Commonwealth entities and persons. As such, this exception is necessary to clarify that subsection 61(1), as amended, would not authorise the disclosure of information relating to a particular conduct complaint or conduct issue referral to these employers that would not otherwise be authorised by this Bill, without a complainant's consent. The requirement for complainant consent, including to disclose to a respondent's employer, reflects that the disclosure of information relating to a conduct issue may, either directly or indirectly, identify a complainant.

1127. Other provisions in this Bill require or authorise the disclosure of information to a complainant or respondent's employer, in particular for work health and safety purposes. In particular, an entrusted person is generally authorised under new subsection 24FR to disclose information relating to a conduct complaint or conduct issue referral to a complainant or respondent's employer, without complainant consent, if satisfied the information is relevant to an employer's work health and safety duties or obligations. This new subsection would not limit those provisions.

1128. New subsection 61(5B) relates to the disclosure of information by the IPSC to federal, state or territory police relating to serious offences.

1129. New subsection 61(5B) would provide that existing subsection 61(1), as amended by items 59 to 61, and new subsection 61(1A), as inserted by item 62, of the PWSS Act, do not apply to a disclosure of information by the IPSC to the AFP or the police force or police service of a state or territory, if the information relates to a conduct issue involving conduct that may constitute a serious offence against a person, unless:

a.

the person consents to the disclosure,

b.

the disclosure is for the purposes of deciding how to deal with the conduct issue, or

c.

the disclosure is required by or under another law of the Commonwealth, a law of a State or a Territory, or a court/tribunal order.

1130. The term serious offence is defined in section 5, as amended by item 24 of this Bill, as an offence against a law of the Commonwealth, a State or a Territory involving assault or sexual assault, or any other offence prescribed in the PWSS rules.

1131. Subsection 61(1) of the PWSS Act, as amended by items 59 to 61, would authorise the IPSC to disclose information to the AFP, as a Commonwealth entity. New subsection 61(1A), as inserted by item 62, would authorise the IPSC to disclose information to State and Territory law enforcement entities. State or Territory law enforcement entity is defined in section 5, as amended by item 24 of this Bill, as a police force or police service of a State or Territory or any other authority or person responsible for the enforcement of the law of a State or Territory.

1132. This amendment reflects the general position across the Bill that the disclosure of information relating to serious offences should generally occur with complainant consent to respect the agency of potential victims, and promote their choice and control with respect to reporting to police, while also allowing the IPSC to undertake its statutory functions and comply with mandatory reporting obligations.

1133. This amendment would complement new subsection 24FM(4), which limits the authorisation for entrusted persons to share information relating to serious offences with the AFP or state or territory police in the same manner. As such, this exception is necessary to clarify that section 61, as amended, would not authorise the disclosure of information relating to a serious offence that would not otherwise be authorised by this Bill.

1134. For example, consistent with new subsection 24FM(4), section 61, as amended, would authorise a Commissioner to confer with federal, state or territory police as to whether a conduct issue which involved conduct that may constitute a serious criminal offence would be more appropriately dealt with under the criminal law, or whether an IPSC investigation would be otherwise inappropriate, such as whether such an investigation would inappropriately hinder or interfere with any future police investigation. In addition, this section would authorise an IPSC Commissioner to disclose information to meet legal requirements, such as to comply with any applicable obligations to disclose potential child sexual abuse.

1135. However, it would not otherwise authorise the disclosure of information relating to conduct that may constitute a serious offence against a person without complainant consent. The requirement that disclosure of information relating to serious offences to police only occur with complainant consent, where required by law, or where the disclosure is for the purposes of deciding how to deal with the conduct issue is consistent with recommendation 1 of the Senate Legal and Constitutional Affairs References Committee's Report on current and proposed sexual consent laws in Australia, that in all responses to sexual violence, governments and non-government organisations ensure that the agency of victim-survivors is paramount, actively respected and upheld.

Item 70 – Subsection 61(6)

1136. Item 70 would maintain the obligation for the PWSS to consider certain matters in relation to the disclosure of information obtained through its review function under section 19 of the PWSS Act, despite the repeal of that section by this Bill.

1137. Existing subsection 61(6) provides that, before disclosing information obtained in the course of performing its review function under section 19 of the PWSS Act to another Commonwealth entity, officeholder or appointee, the PWSS must have regard to whether the disclosure would be likely to result in harm to an individual to whom the information relates (other than mere damage to the individual's reputation). This item would amend that subsection to clarify that the reference to section 19 is a reference to that section as in force immediately before the repeal of that section by the Parliamentary Workplace Support Service Amendment (Independent Parliamentary Standards Commission) Act 2024).

1138. This amendment is consequential to item 35 of this Bill, which would repeal section 19 of the PWSS Act. This amendment would have the effect that the PWSS must still consider any likely harm to individuals resulting from the disclosure of information relating to a PWSS review despite the repeal of section 19, noting that under Schedule 2 of this Bill the PWSS may continue to deal with complaints already under review after the commencement of Part 2 of Schedule 1 of this Act.

Item 71 – Subsection 61(7)

1139. Item 71 would authorise the use of information disclosed by the IPSC to State and Territory law enforcement entities and between the IPSC and the PWSS.

1140. Existing subsection 61(7) provides that information disclosed under existing subsections 61(1) and (2) may be used by the PWSS, Commonwealth entity or relevant individual for the purposes of performing the functions, or exercising the powers, of the PWSS, entity or individual, as the case requires. This item would repeal this existing subsection and replace it with a new subsection. This new subsection would include reference to information disclosed by the IPSC to State and Territory law enforcement entities under subsection 61(1A), as inserted by item 62, and between the IPSC and the PWSS under new subsections 61(2A) and (2B), as inserted by item 66.

1141. Accordingly, information disclosed to a person or entity under section 61, as amended by this Bill, may be used by that person or entity for the purposes of performing their functions or exercising their powers. For example, if information were disclosed by the IPSC to the PWSS under new subsection 61(2B) regarding a work health or safety issue, this subsection would authorise the PWSS to use that information in performing its work health and safety functions.

Item 72 – After paragraph 62(2)(a)

1142. Item 72 would insert a new paragraph in subsection 62(2) of the PWSS Act to enable the PWSS to request the Chair Commissioner of the IPSC provide specified information for the purposes of the PWSS's annual public report.

1143. Existing section 62 enables the PWSS to request certain information for the purposes of preparing its mandatory annual report under subsection 22(2) of the PWSS Act. This power applies to the persons specified in subsection 62(2).

1144. This item would amend subsection 62(2) to list the Chair Commissioner of the IPSC. This would have the effect that the PWSS may, in writing, request the Chair Commissioner to give the PWSS, within a specified period, specified information for the purposes of the PWSS preparing a report required by subsection 22(2) of the PWSS Act. Subsection 62(3) would have the effect that the Chair Commissioner must comply with such a request for information unless doing so would constitute an offence against a law of the Commonwealth.

1145. This amendment is consequential to items 36 and 37 which would amend section 22 of the PWSS Act to require the PWSS's annual report to include information relating to functions of the IPSC, including conduct complaints and conduct issue referrals received, and conduct issues dealt with, by the IPSC.

1146. This power is necessary to facilitate the PWSS's mandatory reporting obligations, recognising that the PWSS would not hold such information required to prepare this report as a matter of course. For example, the PWSS could request the Chair Commissioner provide them with data relating to the number of complaints and referrals received, for inclusion in the section 22 annual report. While the PWSS is authorised to request personal information under this provision, it is intended that this information would routinely be of a general nature, and would be de-identified. This reflects that under subsection 22(9) of the PWSS Act, a section 22 report must not include personal information (subject to section 23, which relates to certain non-compliance by parliamentarians in relation to the PWSS).

Item 73 – Paragraph 62(2)(b)

1147. Item 73 would update a reference to the Secretary of a Parliamentary Department in relation to the power of the PWSS to request information for the purposes of its annual public report.

1148. Existing paragraph 62(2)(b) lists a 'Secretary, within the meaning of the Parliamentary Service Act 1999', amongst the entities and individuals of whom the PWSS may request specified information for the purposes of the PWSS preparing a report required under subsection 22(2) of the PWSS Act. This item would repeal this existing paragraph and replace it with a new paragraph. This new paragraph would refer to a 'Secretary of a Parliamentary Department'.

1149. This amendment is consequential to item 24 which would amend section 5 of the PWSS Act to define Secretary, in relation to a Parliamentary Department, to mean the Secretary of that Department for the purposes of the Parliamentary Service Act.

Item 74 – Section 63 (heading)

1150. Item 74 would amend the existing heading of section 63 of the PWSS Act so that it reads 'CEO may make arrangements for information sharing with or by the PWSS'.

1151. This item would add 'with or by the PWSS' to the end of the existing heading. This amendment would clarify that section 63 of the PWSS Act authorises the PWSS CEO to make arrangements for the disclosure of information to, or by, the PWSS under sections 61 and 62 or the use of information disclosed under those provisions by the PWSS, other Commonwealth entity or individual. Arrangements for sharing information with or by the IPSC would be a matter for the Chair Commissioner of the IPSC, as provided by new section 63A as inserted by item 80. As such, this amendment would ensure this heading reflects the scope of section 63.

Item 75 – Before paragraph 63(1)(a)

1152. Item 75 would enable the PWSS CEO to make arrangements for sharing information with the Chair Commissioner of the IPSC.

1153. Existing section 63 of the PWSS Act enables the PWSS CEO to make written arrangements for sharing information with the head of a Commonwealth entity and individuals holding Commonwealth offices or appointments relating to the disclosure of information under section 61 and the use of such information.

1154. This item would insert new paragraph 63(1)(aa) into subsection 63(1), which would allow the PWSS CEO to also make arrangements with the Chair Commissioner. The effect of this amendment would be that the PWSS CEO may enter into an arrangement with the Chair Commissioner relating to the disclosure of information between the PWSS and the IPSC under this Part or the use of such information, including as to the confidentiality of such information.

1155. This amendment is consequential to item 66 which would authorise the sharing of information between the PWSS and the IPSC.

Item 76 – After paragraph 63(1)(b)

1156. Item 76 would enable the PWSS CEO to make arrangements for sharing information with the Presiding Officers.

1157. Existing section 63 of the PWSS Act enables the PWSS CEO to make written arrangements for sharing information with the head of a Commonwealth entity and individuals holding Commonwealth offices or appointments relating to the disclosure of information under section 61 and the use of such information.

1158. This item would insert new paragraph 63(1)(ba) into subsection 63(1), which would allow the PWSS CEO to also make arrangements with a Presiding Officer. The effect of this amendment would be that the PWSS CEO may enter into an arrangement with a Presiding Officer relating to the disclosure of information under this Part or the use of such information, including as to the confidentiality of such information. Accordingly, the PWSS CEO could enter into an arrangement with a Presiding Officer as to the disclosure of information under section 61.

1159. This amendment is consequential to items 60, 61 and 63 which would authorise the sharing of information between the PWSS and a Presiding Officer, and item 71 which authorises the use of such information.

Item 77 – Paragraph 63(1)(c)

1160. Item 77 would extend the scope of arrangements which may be made by the PWSS CEO for sharing information to also include the making of arrangements relating to the disclosure of information between the PWSS and the IPSC.

1161. Existing paragraph 63(1)(c) provides that the PWSS CEO may make written arrangements for sharing information relating to the disclosure of information to, or by, the PWSS under subsection 61(1) or (2) or subsection 62(3). This item would omit the reference to subsections 61(1) and (2) and substitute it with reference to subsections 61(1), (2), (2A) and (2B). This would enable the PWSS CEO to also make written arrangements for sharing information relating to the disclosure of information between the PWSS and the IPSC under section 61 as amended by this Bill.

1162. This amendment is consequential to item 66 which would authorise the disclosure of information by the PWSS to the IPSC (subsection 61(2A)) and by the IPSC to the PWSS (subsection 61(2B)).

Item 78 – Paragraph 63(1)(d)

1163. Item 78 would extend the scope of arrangements which may be made by the PWSS CEO for sharing information to also include the making of arrangements relating to the use of information disclosed under Part 7 of the PWSS Act, as amended, by the IPSC or a Presiding Officer.

1164. Existing paragraph 63(1)(d) provides that the PWSS CEO may make written arrangements for sharing information relating to the use of information disclosed under Part 7 of the PWSS Act by the PWSS, a Commonwealth entity or an individual who holds a Commonwealth office or appointment. This item would omit the phrase 'the PWSS, the other Commonwealth entity or individual' and substitute it with the phrase 'the PWSS, IPSC, other Commonwealth entity, individual, or Presiding Officer'. This would enable the PWSS CEO to also make written arrangements for sharing information relating to the use of information disclosed under this Part by the IPSC or a Presiding Officer. Accordingly, the PWSS CEO could enter into an arrangement with a Presiding Officer as to the sharing of information between the PWSS and the Presiding Officer under this Part, and the subsequent use of that information by the Presiding Officer and the PWSS.

1165. This amendment is consequential to items 60, 61, 63 and 66 which authorise the disclosure of information between the PWSS and the IPSC or a Presiding Officer and item 71 which authorises the use of such information.

Item 79 – Paragraph 63(5)(a)

1166. Item 79 would clarify the interaction between arrangements for sharing information relating to information disclosed between the PWSS and the IPSC and other provisions in this Part.

1167. Existing subsection 63(5) provides for the interaction between arrangements under existing section 63 and the information sharing and request powers under existing sections 61 and 62. Paragraph 63(5)(a) has the effect that, if an arrangement is in force, the disclosure to, or by, the PWSS of information to which that arrangement applies is not authorised under subsections 61(1) or (2) or 62(3) if that disclosure would contravene the arrangement.

1168. This item would omit the reference to subsections 61(1) and (2) and substitute it with reference to subsections 61(1), (2), (2A) and (2B).

1169. This amendment would have the effect that, if an arrangement under subsection 63(1) is in force, then the disclosure of information between the PWSS and the IPSC to which the arrangement applies is not authorised under subsection 61(1), (2), (2A) or (2B) or 62(3) if the disclosure would contravene the arrangement. This would have the effect that an arrangement under section 63 would take precedence over the general information sharing and request powers in sections 61 and 62. This would ensure that information subject to an arrangement would only be disclosed in accordance with the terms of that arrangement.

Item 80 – At the end of Division 2 of Part 7

1170. Item 80 would insert new section 63A to enable the Chair Commissioner to make arrangements for sharing information with or by the IPSC.

Section 63A – Chair Commissioner may make arrangements for sharing information with or by the IPSC

1171. New section 63A would enable the Chair Commissioner to make arrangements for sharing information with or by the IPSC, broadly consistent with the power of the PWSS CEO to make such arrangements in relation to sharing information with or by the PWSS under section 63 of the PWSS Act, as amended by this Bill.

1172. New subsection 63A(1) would authorise the Chair Commissioner to make a written arrangement with the Head of a Commonwealth entity, an individual who holds any office or appointment under a law of the Commonwealth, a Presiding Officer, or a State or Territory law enforcement entity. This reflects that the sharing of information between the IPSC and these entities and persons, and the use of that information, would be authorised under section 61, as amended by items 59 to 71.

1173. New subsection 63A(1) would authorise the Chair Commissioner to make such an arrangement relating to:

a.

the disclosure of information to, or by, the IPSC or the Chair Commissioner under subsections 61(1), (1A), (2), (2A) or (2B), or

b.

the use by the PWSS, IPSC, Commonwealth entity, individual, Presiding Officer or State or Territory law enforcement entity of information disclosed under any of those subsections.

1174. Without limiting this ability, new subsection 63A(2) would provide that such an arrangement may make provision for the confidentiality of information disclosed in accordance with that arrangement. For example, this may include provision for certain information not to be published in an IPSC public statement.

1175. New subsection 63A(3) would require the IPSC to publish an arrangement made under subsection 63A(1) on its website. This would provide transparency and enable individuals who may be affected by such arrangements, such as relevant Commonwealth parliamentary workplace participants, to understand how information relating to them may be shared under this Bill.

1176. New subsection 63A(4) would clarify that an arrangement made under subsection 63A(1) is not a legislative instrument. This clarification is included to assist readers to understand that an arrangement entered into under this clause is not a legislative instrument, and does not operate as an exemption from the Legislation Act.

1177. New subsection 63A(5) would provide for the interaction between arrangements under this clause and the information sharing and request powers under sections 61 and 62 of the PWSS Act, as amended by this Bill. This subsection would provide that if an arrangement is in force, then:

a.

the disclosure to, or by, the IPSC or the Chair Commissioner of information to which the arrangement applies is not authorised under subsection 61(1), (1A), (2), (2A) or (2B), and

b.

the use of information to which the arrangement applies is not authorised under subclause 61(7)

if

the disclosure or use of the information would contravene the arrangement.

1178. Accordingly, an arrangement under this clause takes precedence over the general information sharing and request powers in sections 61 and 62. This would ensure that information is only disclosed or used in accordance with the terms of the arrangement.

Parliamentary Workplace Support Service (Consequential Amendments and Transitional Provisions) Act 2023

Item 81 – Subsection 2(1) (table item 3)

1179. Item 81 would repeal table item 3 at existing subsection 2(1) of the PWSS (C&T) Act.

1180. Table item 3 at existing subsection 2(1) provides that Schedule 3 of the Act, which would repeal the PWSS's review function under section 19 of the PWSS Act, commences the day after the end of the period of 2 years beginning on the day the PWSS Act commences (being 1 October 2025).

1181. This amendment is consequential to item 82 which would repeal Schedule 3 of the Act.

Item 82 – Schedule 3

1182. Item 82 would repeal Schedule 3 of the Act.

1183. Existing Schedule 3 would repeal the PWSS's review function under section 19 of the PWSS Act, and omit references to that function in sections 4, 11 and 13 of the PWSS Act.

1184. This amendment is consequential to items 16, 25, 28 and 35 which would repeal section 19 of the PWSS Act, along with associated references in sections 4, 11 and 13 of that Act, upon proclamation. This reflects that the PWSS's review function under section 19 of the PWSS Act was intended to be an interim function, to be carried out by the PWSS until the establishment of the IPSC. As the IPSC would be established by this Bill prior to the commencement of Schedule 3 of the PWSS (C&T) Act on 1 October 2025, in accordance with subsection 2(1) of that Act, it is necessary to repeal this Schedule to avoid duplication of functions between the IPSC and the PWSS prior to 1 October 2025.

Schedule 2—Application and transitional provisions

Item 1 – Definitions

1185. Item 1 would define terms that are used in Schedule 2 of the Bill.

1186. The term commencement time would be defined to mean the time when Part 2 of Schedule 1 to this Act commences. Clause 2 of this Bill would provide that Schedule 2 would commence at the same time as Part 2 of Schedule 1, being on a single day to be fixed by Proclamation or otherwise on the day after the end of six months beginning on the day this Act receives the Royal Assent.

1187. The term new law would be defined to mean the Parliamentary Workplace Support Service Act 2023 as in force from time to time after the commencement time. Accordingly, the new law as defined by this Item would refer to the PWSS Act as amended to incorporate all of the amendments in Schedule 1 of this Act, including the establishment of the IPSC by Part 2 of that Schedule. This would also incorporate any future amendments to the PWSS Act, as in force at the relevant time.

1188. Conversely, the term old law would be defined to mean the Parliamentary Workplace Support Service Act 2023 as in force immediately before the commencement time.

1189. The term review would be defined to mean a review under section 19 of the old law.

Item 2 – Transitional—complaints under review before commencement

1190. Item 2 would provide for the handling of complaints already under review by the PWSS under section 19 of the PWSS Act before the commencement of Part 2 of Schedule 1 of this Bill.

1191. Subitem 2(1) would provide that this item applies if, before the commencement time, the PWSS has commenced a review of a complaint made to it prior to that time. Item 3 would provide for the handling of complaints where the PWSS had not yet commenced a review.

1192. Subitems 2(2) and (3) would provide that the PWSS must finish the review of such a complaint, and that the old law would continue to apply in relation to such a review and in relation to the complaint for the purposes of the review. This would have the effect that the PWSS may continue to deal with complaints already under review, despite the repeal of section 19 of the PWSS Act by item 35 of Schedule 1 of this Bill.

1193. Accordingly, where the PWSS is reviewing a complaint under section 19 of the PWSS Act at commencement time, this item would have the effect that the PWSS must continue to review that complaint and finalise that review. This would include any internal review of a decision under section 19. Such complaints would not be transferred to the IPSC. The PWSS would continue to have the powers under existing section 19 to review the complaint, decide to uphold the complaint, prepare a report of the review, make recommendations and, as relevant, engage with respondent parliamentarians and the Presiding Officers regarding any such recommendations for parliamentarians.

1194. This would provide certainty for individuals participating in a review under section 19 of the PWSS Act, and ensure that such matters are dealt with efficiently and consistently under the law as it was in force at the time they were made and the review was commenced.

Item 3 – Transitional—complaints not dealt with before commencement

1195. Item 3 would provide for the handling of complaints made to the PWSS that are not yet under review under section 19 of the PWSS Act before the commencement of Part 2 of Schedule 1 of this Bill.

1196. Subitem 3(1) would provide that this item applies if a complaint has been made to the PWSS before the commencement time and at the commencement time the PWSS has not commenced a review of the complaint.

1197. Paragraph 3(1)(c) clarifies that this item would only apply if the CEO is satisfied that it would not be appropriate for the complaint to be dealt with under section 16 of the new law, being the PWSS's complaint resolution function. Accordingly, any complaints brought under existing section 16 of the Act would not be affected by this item, and any complaints made generally to the PWSS that may be more appropriately and effectively dealt with through complaint resolution would not be referred to the IPSC.

1198. New subitem 3(2) would provide that the CEO would be required to refer the conduct issue arising from such complaints to the IPSC if the complainant consents to the referral or if they are reasonably satisfied that making the referral is necessary to comply with a duty or obligation under a work health and safety law (as defined by section 5 of the PWSS Act, as amended by item 24). This would have the effect that complaints not yet under review by the PWSS at the time of establishment of the IPSC by the amendments in Part 2 of Schedule 1 would be referred to the IPSC, where the conditions in subitem 3(2) are met.

1199. The conditions in subitem 3(2) are consistent with the requirements for conduct issue referrals by the PWSS CEO, as provided by new paragraph 24CC(2)(a). This would ensure consistency in the treatment of complainant consent between existing PWSS complaints and complaints made directly to the IPSC following the commencement time. Consistent with the approach to conduct issue referrals made after the commencement time, an investigating Commissioner may only decide to investigate such a referral under new section 24CH if the Commissioner has consent to investigate the issue or if the Commissioner is reasonably satisfied that a serious risk to work health or safety does or could arise from the conduct concerned, in addition to being satisfied on reasonably grounds that there is sufficient evidence or information to justify an investigation.

1200. Where a complainant does not consent to the referral of the conduct issue, and a referral is not necessary to comply with a work health or safety duty or obligation, the complaint would be extinguished. The PWSS would have no power to further deal with the complaint. In these circumstances, it would be open to the complainant to make a future complaint to the IPSC if they wish.

1201. Subitem 3(3) would set out that referrals made by the PWSS CEO under subitem 3(2) must be in writing, include the details of the conduct issue, and any relevant evidence. This is consistent with the requirements for conduct issue referrals by the PWSS CEO, as provided by new subsection 24CC(1). This would ensure that the IPSC is provided with any documents or information held by the PWSS relevant to the conduct issue. As the referral may only be made by the PWSS CEO, there is no need to provide the name and contact details of the PWSS CEO, as is required by subparagraph 24CC(1)(b)(iii) for conduct issue referrals.

1202. Subitem 3(4) would clarify that the new law applies in relation to a referral to the IPSC by the PWSS CEO under subitem 3(3) as if it were a conduct issue referral under section 24CB of the new law.

1203. This would clarify that a complaint referred to the IPSC under this item is treated in the same manner as a conduct issue referral made to the IPSC following the commencement time. For example, following receipt of a referral under subitem 3(2), the Chair Commissioner must assign an investigating Commissioner who must deal with the conduct issue by investigating the issue, referring it or taking no action, or no further action. In addition, as a referral under subitem 3(2) would be treated as a conduct issue referral, the decision-maker must give the complainant and the PWSS CEO a copy of the final report under section 24CZ, amongst other things.

1204. This item would not affect the provision of support services by the PWSS under existing section 15 of the PWSS Act. For example, if a party to a complaint to which this item applies had already sought support from the PWSS in relation to the alleged relevant conduct, and the PWSS had not yet begun a review of that complaint, that party may continue to seek support in relation to the conduct if the complaint is referred to the IPSC.