Our submission on the Parliamentary Workplace Standards and Integrity Bill 2024 focused on four integrity issues
- a legislated Ministerial Code of Conduct;
- jurisdiction of the Parliamentary Integrity Commissioner;
- the appointment process for the PIC; and
- sanctions and penalties for breaches.
See here for the full submission including our ten recommendations.
INTRODUCTION
This submission is made by the Accountability Round Table (ART), a non-partisan group of citizens with extensive experience in law, parliament, government, and the courts.[1] ART is dedicated to improving standards of accountability, transparency, ethical behaviour and democratic practice in Commonwealth and State parliaments and governments across Australia.
Our submission focusses on four key integrity issues of current concern:
- a legislated Ministerial Code of Conduct;
- jurisdiction of the Parliamentary Integrity Commissioner (PIC);
- the appointment process for the PIC; and
- sanctions and penalties for breaches.
ART is pleased to have the opportunity of making a submission on the proposed parliamentary workplace standards and integrity legislation, the Parliamentary Workplace Standards and Integrity Bill 2024 (the Bill). We note that consideration of the provisions of the Bill in a Parliamentary Committee could also provide an opportunity for ART to offer further detail to strengthen the Bill so that it reaches and surpasses best Westminster practice before passing into law.
ART supports independent and robust parliamentary integrity measures including those contemplated by the Bill, the creation of the Parliamentary Workplace Standards and Integrity Commission, (PIC) Parliamentary Integrity Adviser (PIA) and Parliamentary Ethics Committee (PEC). We are grateful to the staff of the Premier’s Department for engaging with ART on the design of the Bill.
A successful integrity framework is best supported by a commitment to continuous review and improvement, interoperability of component parts, and a robust risk management approach that identifies corruption risks and appropriate controls including incentives and disincentives to engaging in corrupt conduct.
Unsafe and discriminatory workplace practices are best addressed by strong supports for those adversely affected and accountability including consequences for aberrant behaviour.
Parliamentary workplace safety and Integrity measures both require demonstrated zero tolerance for misconduct at the highest levels and sophisticated processes to balance the rights and reputations of those facing allegations with support and assured safety for those affected.
OPERATION WATTS
The Government immediately accepted without reservation all 21 recommendations of the Independent Broad-based Anti-corruption Commission (IBAC) and Victorian Ombudsman’s Operation Watts special report on 20 July 2022.
In responding to 7 of those recommendations, the Bill creates the PIC, PIA and PEC, important reforms of existing parliamentary integrity mechanisms worthy of widespread support. The need for these measures is well demonstrated by other work of the IBAC and Ombudsman as well as including the recommendations of Operations Watts.
We welcome features of the Bill including:
- The preservation of the important oversight and referral role of the Presiding Officers of each Chamber and work of the Privileges Committees;
- The establishment of a new independent Commission, a new Ethics Committee and the statutory embodiment of the Integrity Adviser to complement the work of other State Integrity bodies including IBAC, Victorian Auditor-General’s Office and Ombudsman as recommended by Operations Watts recommendation 5;
- The focus on corrupt conduct as defined by the IBAC Act and discrimination as defined by the Equal Opportunity Act, noting the opportunity to expand those definitions at this time;
- The inclusion of members of parliament and staff and contemplated interaction with Codes of Conduct and Standards of parliamentary and Ministerial behaviour;
- The comprehensive ambit of the Bill’s definition of Parliamentary Workplace.
- The breadth of persons able to make referrals under s 8. noting there is no express power to refer a matter by own motion;
- The processes for dealing with referrals contemplating a triage process for insignificant, unsubstantiated or like matters and exercise of powers subject to parliamentary oversight;
- The power to recommend sanctions;
- Preventative and educational functions aimed at improving integrity and assisting members and their staff and the community at large to understand corruption risks and vulnerabilities, official misconduct and misuse of office;
- The proposed structure of the PIC and PIA and PEC and oversight of the Integrity Oversight Committee;
- Consideration of appointment processes to ensure important positions are filled by non-partisan candidates;
- The Government’s timely budget commitment of $236 million to fund its strengthened Integrity Framework;
- Powers of initial inquiry on the basis of referral;
- Protections including immunity for officers and whistleblowers, noting the operation of the Public Interest Disclosure Act 2012;
- Capacity for exculpatory statements and statements of clarification; and
- The budget commitment of $262.6 million.
In summary, the Bill is intended to acquit seven of the Operations Watts recommendations and the Government’s additional commitment to address allegations of inappropriate parliamentary workplace behaviour.
We attach Annexure A which shows the Watts recommendations addressed by the Bill.
As a matter of priority, we highlight some matters that should be given serious consideration prior to settling and introducing the Bill.
Meaning of “Corrupt Conduct” and Jurisdiction
Section 3 deals with the meaning of corrupt conduct and thus delineates the jurisdiction. The definition is consistent with the jurisdiction of IBAC and the explicit references in the IBAC Act to concepts of public trust and misuse of public office within or outside Victoria.
S 4(1) of the IBAC Act is incorporated by reference and includes the conduct ‘of any person that adversely affects the ‘honest performance’ by a public officer or public body of functions.
For the avoidance of doubt, ‘public officer’ might specify that parliamentary staff are captured by the definition of public officers/public sector employees. These staff have previously been identified as at risk of corrupt conduct but claims of immunity and lack of scrutiny persist.[2]
Corrupt conduct should also capture party-specific work undertaken by any public officer and cover the paid employment or contracting of family members or entities associated with them in electoral offices or performance of electoral functions.
Recommendation 1: Define ‘public officer’ in s.3 of the IBAC Act and amend the definition of ‘corrupt conduct’ in s. 4 of the IBAC Act.
The provision should also refer to the conduct of any person that ‘could’ adversely affect that honest performance by amending s 4(1) of the IBAC Act definition of corrupt conduct to capture and deter unsuccessful conduct intended in this way. The desired effect may be achieved by removing all the words commencing with “and result in the first person obtaining a benefit” and sub-sections (da)(i) to (vi)” which follows.
Recommendation 2: Amend s4(1)(a) of the IBAC Act to read ‘that adversely affects ‘or that could or is intended to adversely affect’ the honest performance…’
Recommendation 3: Amend s4(1) of the IBAC Act [to address misuse of public resources by either inserting s4(1)(i) or an additional sub-section.
The PIC’s and Ethics Committee Powers of Oversight.
Recommendation 4: Address Recommendation 17 of Operation Watts Report and the matters raised at paragraphs 982 to 989 of the Report.
The Ministerial Code should be added to the consequential amendments to the Bill.
As a matter of first principles in a system of responsible government, Ministers are accountable to Parliament. Consequently, ART believes that the matters covered in the Ministerial Code of Conduct should be included in a discrete section dealing with ministerial responsibilities and conduct in the consequential amendments to the
Members of Parliament (Standards) Act 1978.
ART recently analysed the efficacy of the current Ministerial Code of Conduct, which distinctly improves on an earlier version. Separately, we intend to write to the Premier about the content of the Code with a view to recommending further improvements. The Watts report at paras [982] to [989] set out in the reasons for recommendation 17, that those progressing the recommendations consider that within the scope of responsibilities of the new Ethics Committee and Parliamentary Integrity Commissioner, there be some responsibility for the Ministerial Code of Conduct. Further, in para [989] the report emphasised the need to clarify the term ‘ministerial business’ in the Members code and how it may apply to the discharge of ministerial duties. Despite acceptance of the Watts recommendations, these matters have not been addressed in the Bill.
In the light of the Watts observation and the Government commitment to improving Parliamentary integrity , ART strongly recommends that the Ministerial Code should be in legislative form. Ministerial misconduct is so often the locus of persistent integrity failure across Westminster jurisdictions, yet the Government’s Bill currently limits PIC oversight of ministers in the exercise of their portfolio responsibilities, ministerial advisers, parliamentary secretaries and electoral officers (ref. Watts Recommendation 17).
Recommendation 5: Amend the definition of Parliamentary misconduct to remove ss (b)
Subsection (b) severely limits the jurisdiction of the PIC and Committee so that the level of accountability of ministers in the discharge of their duties, save for ‘workplace’ misbehaviour’ would remain unaffected. It is not consistent with the Operation Watts Report recommendations and more importantly, is not consistent with the Government’s will to improve Parliamentary integrity. By removing ss(b) Parliamentary Misconduct will include the conduct of ministers.
Parliamentary misconduct definition
Parliamentary misconduct should be clarified by removing ss(b). If the conduct of ministers etc. is not caught by this provision, an additional provision so doing should be added.
Recommendation 6: Provide the PIC with an own motion power
We recommend that the PIC have own motion powers in-line with accepted practice of integrity bodies. Such a power would also permit the PIC to continue with an investigation if the ‘referral’ were withdrawn.
Recommendation 7: Consequences for breach
A Chamber has the power to dismiss a member of parliament from office, rather than that power being vested purely in the body of electors under ordinary democratic principles. The principle of ‘responsible government’ requires that the executive does not exercise the power to impose sanctions or penalties for breaches, which may be over its own members/supporters or, worse for democracy, non-government MPs, in accordance with s28 of the Bill. We recommend provisions whereby the PIC and/or the Privileges Committee may recommend and the House may impose, any of the sanctions and penalties listed below, found in Commonwealth parliaments[3].
| *Private letter to the member concerned drawing attention to the breach and advising the member to avoid such conduct in the future; *Public report or statement giving details of the breach but not recommending any further sanction; *Rectification (MP to deal with complaint); *Apology demanded; *Warning/ Caution; *Admonition/ censure/ rebuke/ reprimand; *Admonition to refrain from presenting at the House for a certain period of time; *Suspension (from office); | *Severe rebuke; *Fine; *Loss of salary; *Forfeiture of part or whole of an entitlement to a separation payment *Forfeiture of part or whole of an entitlement to parliament-funded superannuation; *Loss of seniority; *Order to withdraw; *Expulsion; Committal. |
Recommendation 8: Oversight and Appointment.
ART agrees that the Integrity Oversight Committee (IOC) of Parliament should oversee the role and functions of the PIC.
Commissioners of integrity bodies/agencies must be seen to be independent, including in the appointment process. There are a number of models for ensuring that neither side of politics can determine the appointee.
The legislation should explicitly require that the IOC does not have a majority of governing party members and that the Chair is not a member of a governing party.
Further, the Bill specifies that the appointment of Commissioner/s should be on the recommendation of the Minister to the Governor in Council. To ensure that the appointment process of the PIC, ART believes that in line with Section 94A of the Constitution Act, the Government should adopt the appointment process for the Auditor-General. So, in line with that Act, the Public Integrity Commissioner/s should be appointed by the Governor in Council on the recommendation of the Committee, in this case, the IOC.
ART recognises that as currently intended the IOC could veto a minister’s nominee; however, adopting the approach of the Constitution Act allows the IOC both to determine candidates for the position/s and who it then chooses to recommend to the Governor in Council.
In the alternative, the IOC should not have a majority of government MPs and the chair should not be a member of a governing party.
In similar terms for the appointment process for the PIA, the Bill specifies that it is for the Minister, with the concurrence of the Ethics Committee, to recommend an appointment to Governor in Council. The same process as for the PIC should apply for the PIA.
The Queensland model appears to have operated successfully since 1989. Nominees need to be supported by a majority of members of a designated committee with the majority including at least one member from the governing party and one from the opposition. With the NACC, ART suggested an improvement on the Queensland model – requiring the majority to include at least one member from the governing party and either one from the opposition or two from the cross benches. The latter is easy to achieve where there are plenty of cross benches in a Hare-Clark upper house. The NACC committee has two cross benchers on it.
Whichever model is adopted, its success will be dependent on the development and sustenance of a culture of integrity within the Committee and the Parliament more generally.
Recommendation 9: Retrospectivity
ART notes that there is to be no retrospectivity in the functioning of the Bill. The retrospective prohibition should not prevent the PIC or the Committee exercising their power to investigate, where the allegations concern a sitting MP or other public officer who remains currently employed in Parliamentary work.
Recommendation 10: Review and Enduring Reform.
ART recommends that rather than a once-off review of the legislation at the end of 5 years, there should be a review of the legislation at the commencement of each new electoral cycle and debate in each House of Parliament.
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Annexure A. Operation Watts recommendations.
| Operation Watts recommendations acquitted by Parliamentary Workplace Standards and Integrity Bill 2024 |
| 1. Establishing a Parliamentary Ethics Committee (PEC ) that: a. the government and the parliament work together to establish a Parliamentary Ethics Committee that: i. monitors the effectiveness of the Statement of Values and Code of Conduct in the Members of Parliament (Standards) Act 1978 and other ethical obligations imposed on MPs ii. promotes and provides training and information about the Statement of Values and Code of Conduct, in the parliament and in the general community iii. prepares guidance materials on the Statement of Values and Code of Conduct iv. works with the Parliamentary Integrity Commissioner in carrying out its functions and receiving reports about ethical standards v. reviews the Statement of Values and Code of Conduct at least once every four years. b. the Parliamentary Ethics Committee should be a Joint House Committee composed of equal numbers of members from the Legislative Assembly and Legislative Council and be established by amendment to the Parliamentary Committees Act 2003. Consideration should be given to including some members from each of the parliamentary privileges committees. c. the government and parliament should consider for inclusion in the Parliamentary Ethics Committee’s role and composition: i. a requirement to consult the public when undertaking reviews ii. a power to appoint members of the public to assist it with its work, or specify a fixed number of members of the public to be Committee members iii. appointment of a non-government member as the chair of the Committee iv. a power for the Committee to undertake related integrity roles as may be requested, such as in relation to codes of conduct for ministers, ministerial advisors and electorate officers, or a parliamentary bullying and harassment protocol. |
| 2 That: a. the government and the parliament work together to establish a Parliamentary Integrity Commissioner (PIC) as an independent officer of the parliament who would: i. receive and investigate complaints about possible non-criminal breaches of the Members of Parliament Code of Conduct in the Members of Parliament (Standards) Act 1978 and other standards and rules relevant to parliamentary integrity ii. submit reports on investigations to the privileges committee of the relevant House for consideration and action where required, including recommendations on appropriate sanctions for a serious breach of the Members of Parliament Code of Conduct or other integrity rule or standard iii. monitor the effectiveness of the Statement of Values and Code of Conduct in the Members of Parliament (Standards) Act 1978 and other ethical obligations imposed on members of parliament iv. promote and provide training and information about the Statement of Values and Code of Conduct, in the parliament and the general community, in collaboration with the Parliamentary Ethics Committee v. help the Parliamentary Ethics Committee prepare guidance materials on the Statement of Values and Code of Conduct and review the Statement of Values and Code of Conduct at least once every four years vi. undertake other integrity-related functions allocated to them by the government or parliament. b. the Parliamentary Integrity Commissioner be established by legislation and be appointed by or upon the recommendation of a cross-party parliamentary panel with members from both Houses selected for that purpose c. the term of appointment be for more than four years and that there be narrowly defined criteria for dismissal upon a recommendation from the proposed Parliamentary Ethics Committee d. the processes and sanctions available to the Parliamentary Integrity Commissioner be fair, efficient and proportionate to the nature of the alleged breach. the Parliamentary Integrity Commissioner have the powers and resources necessary to carry out their functions, including a power to apply sanctions by consent where a member of parliament acknowledges a breach of a minor nature, such as requiring an apology or a binding undertaking. |
| 3 That: a. the Privileges Committees of each House be reformed to dilute the capacity of the majority in each House to determine the privileges committees’ priorities and decision making b. the privileges committee for the relevant House should receive the report of a Parliamentary Integrity Commissioner’s investigation, provide the relevant MP with an opportunity to respond to it, and table the report in the House together with the privileges committee’s comments and recommendations, within a fixed time of receiving the report c. if the privileges committee disagrees with all or some of the Parliamentary Integrity Commissioner’s recommendations, it must provide a comprehensive explanation of its reasons when tabling the Commissioner’s report d. the relevant House should vote within a fixed time of the tabling of the Parliamentary Integrity Commissioner’s report to support or reject all or some of the Commissioner’s or privileges committee’s recommendations, but should not be permitted to amend them. |
| 4 That the Parliamentary Integrity Adviser continue to provide confidential advice to members of parliament on integrity and ethical issues and help the Parliamentary Integrity Commissioner and Parliamentary Ethics Committee with information and training activities. |
| 6 That the work of the Parliamentary Ethics Committee and Parliamentary Integrity Commissioner to promote an ethical culture in parliament: a. involve and be actively supported by the leaders of all political parties represented in the parliament, as well as by the presiding officers b. focus closely on the role of leadership in fostering ethical practices c. reinforce respect and support for the institution of parliament d. create strong links with the community and community groups. |
| 15 That section 17 of the Public Interest Disclosures Act 2012 be reviewed to establish an alternative course for a person who has reasonable grounds for not wishing to lodge a complaint with a Presiding Officer |
| 17 That the government and parliament clarify the extent to which it is intended that the Members of Parliament Code of Behaviour and the processes for dealing with breaches of the Code should cover the actions of ministers in relation to their ministerial portfolios. |
[1] This submission was drawn up on behalf of the ART by Fiona McLeod, AO SC (President), Lyn Allison (Chair), Dr Ken Coghill, Dr Peter Frost and Mrs Sophie Torney.
This submission draws upon the published recommendations of IBAC in Operation Watts; integrity reforms recommended by ART in its “Integrity Now!” package of integrity reforms (Integrity now! (https://www.accountabilityrt.org/integrity-now-download-the-document ) number 16-20 concerning parliamentary integrity; the Queensland Government Electoral and Administrative Reform Commission reports following the Fitzgerald Inquiry and various papers including ART Director Charles Sampford’s 2009 Senate Lecture on ‘Parliament, Political Ethics and National Integrity Systems” published in 55 Papers on Parliament February 2011.
[2] For example, Legislative Council Standing Committee on Finance and Public Administration Second Interim report on Victorian Government decision Making, Approval Process August 2010; Select Committee on Gaming Licensing, Fist Interim Reporrt July 2007 p47.
[3] ART Submission to Joint Select Committee on Parliamentary Standards inquiry into the development of codes of conduct for Commonwealth parliamentary workplaces, 2022