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.