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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PARLIAMENTARY WORKPLACE SUPPORT SERVICE BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Finance, Senator the Hon Katy Gallagher)
PARLIAMENTARY WORKPLACE SUPPORT SERVICE BILL 2023
GENERAL OUTLINE
1. The Parliamentary Workplace Support Service Bill 2023 (the Bill) would establish
the Parliamentary Workplace Support Service (the PWSS) as an independent
statutory agency to provide human resources services for parliamentarians and
persons employed under the Members of Parliament (Staff) Act 1984
(MOPS employees) and other services to support positive cultural change across
Commonwealth parliamentary workplaces.
2. 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 11 of the Set the Standard
Report, which recommended that the Australian Government establish an Office of
Parliamentarian Staffing and Culture (now to be called the PWSS) to provide human
resources support to parliamentarians and MOPS employees. The Bill would also
enable the PWSS, once established, to implement a further six recommendations of
the Set the Standard Report (recommendations 7, 12, 13, 15, 16, 19) and, together
with Parliamentary Departments, to implement an additional recommendation
(recommendation 14).
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 in the nature of bullying,
harassment, sexual harassment, assault and sexual assault. The Set the Standard
Report found that human resources systems to support parliamentarians and MOPS
employees were fragmented, unclear and inadequate, with few standardised policies
and processes, including to prevent and manage misconduct, and that there was an
absence of clear expectations or guidance for Commonwealth parliamentary
workplace participants. Recognising these as contributing risk factors for
misconduct, the Set the Standard Report made a number of recommendations with
the aim that people working in Commonwealth parliamentary workplaces are clear
about their roles and responsibilities, and that consistent and standardised systems,
processes and advice exist to support performance.
4. The establishment of the PWSS by this Bill would support a professionalised, safe
and respectful workplace for parliamentarians, MOPS employees and other
Commonwealth workplace participants. The PWSS would achieve these aims by
providing centralised human resources support to parliamentarians and MOPS
employees, support and complaint resolution services and education and training to
Commonwealth parliamentary workplace participants, as well as determining key
workplace policies and procedures. The PWSS would also have the function of
reviewing complaints about certain misconduct and making recommendations. The
PWSS would also promote transparency and accountability by regularly reporting on
key indicators of cultural change across Commonwealth parliamentary workplaces,
including gender and diversity characteristics, culture and performance.
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Background
5. On 5 March 2021, the Australian Government, in consultation with the Presiding
Officers, the Opposition, minor parties, and independent Members of Parliament,
established the Independent Review into the workplaces of Parliamentarians and
their Staff (Commonwealth Parliamentary Workplaces), conducted by the Australian
Human Rights Commission and led by the then Sex Discrimination Commissioner,
Ms Kate Jenkins AO, in accordance with section 11 of the Australian Human Rights
Commission Act 1986. The Review was asked to make recommendations to ensure
that Commonwealth parliamentary workplaces are safe and respectful and that the
nation's Parliament reflects best practice in the prevention and handling of bullying,
sexual harassment and sexual assault.
6. The Set the Standard Report, tabled in the Parliament on 30 November 2021, made
28 recommendations relating to leadership, diversity, equality and inclusion, systems
to support performance, standards, reporting and accountability, and safety and
wellbeing. Recommendation 11 of the Set the Standard Report recommended that
the Australian Government establish an Office of Parliamentarian Staffing and
Culture to provide human resources support to parliamentarians and MOPS
employees that is:
a. centralised and accountable to Parliament, with the enforcement of standards,
and
b. designed to provide human resources support and administrative functions in
the areas of policy development, training, advice and support, and education.
7. Recommendations 12 to 16 of the Set the Standard Report go to the functions of the
Office of Parliamentarian Staffing and Culture, once established, recommending that
it:
a. establish standards and processes to professionalise management practices for
MOPS employees to foster a safe and respectful work environment
(recommendation 12)
b. develop a professional development program for MOPS employees
(recommendation 13)
c. develop and deliver mandatory best practice training for parliamentarians and
MOPS employees on respectful workplace behaviour and relevant codes of
conduct and best practice training for parliamentarians and senior MOPS
employees on people management and inclusive leadership
(recommendation 14)
d. create and communicate new guidance materials and processes in relation to
termination of employment for MOPS employees (recommendation 15), and
e. support parliamentarians to meet their legal obligations in relation to
termination of MOPS employees (recommendation 16).
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8. The Bill would give effect to these recommendations by establishing the PWSS, and
providing it with statutory functions commensurate to those recommended in the Set
the Standard Report.
9. The Bill would also support implementation of recommendations 7 and 19 of the Set
the Standard Report, which recommended:
a. the Office of Parliamentarian Staffing and Culture, together with the
Department of the Senate and Department of the House of Representatives,
should table an annual report to the Parliament with certain information
relating to diversity characteristics of parliamentarians and MOPS employees,
and gender representation across specific parliamentary roles
(recommendation 7), and
b. the Office of Parliamentarian Staffing and Culture, together with the
Implementation Group established to support the Parliamentary Leadership
Taskforce (in accordance with recommendation 2 of the Set the Standard
Report) should develop a shared monitoring and evaluation framework across
Commonwealth parliamentary workplaces, which should ensure regular
measurement and public reporting on key indicators to monitor progress in the
prevention of and responses to bullying, sexual harassment and sexual assault
(recommendation 19).
Outline of the Bill
10. Part 2 of the Bill would establish the PWSS as an independent statutory agency.
11. The statutory PWSS established by this Bill (the statutory PWSS) would integrate
the existing Parliamentary Workplace Support Service (the existing PWSS). The
existing PWSS was established on 23 September 2021 as a function of the
Parliamentary Service Commissioner, through the Parliamentary Service
Amendment (Independent Parliamentary Workplace Complaints Mechanism)
Determination 2021 made under the Parliamentary Service Act 1999. The statutory
PWSS would also integrate some functions of the Department of Finance.
12. In accordance with the recommendations of the Review of the Parliamentary
Workplace: Responding to Serious Incidents (the Foster Review), the existing PWSS
was established as an independent parliamentary workplace complaints mechanism
to provide support, and formal review of workplace misconduct, to MOPS
employees and parliamentarians. The PWSS was subsequently expanded in
April 2022 through the Parliamentary Service Amendment (Independent
Parliamentary Workplace Complaints Mechanism) Determination 2022 to
implement in part recommendation 20 of the Set the Standard Report, including to
allow the PWSS to provide support to a broader range of Commonwealth
parliamentary workplace participants. The statutory PWSS would assume the
functions of the existing PWSS, including its local resolution, workplace review and
support services.
13. The functions conferred on the PWSS under this Bill would include functions
recommended by the Set the Standard Report, functions performed by the existing
PWSS under the Parliamentary Service Determination 2013, and functions currently
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performed by the Ministerial and Parliamentary Services Division of the Department
of Finance.
14. Division 2 of Part 2 of the Bill provides for the functions of the PWSS. These
include:
a. human resources functions
b. a support function
c. a complaint resolution function
d. a policy development function
e. education and training functions
f. review function, and
g. monitoring, reviewing, evaluating and reporting on certain matters relating to
diversity, culture, work health and safety, and performance of Commonwealth
parliamentary workplaces and other matters relating to its functions.
15. Division 3 of Part 2 of the Bill would require the PWSS to prepare an annual report
regarding certain matters relating to diversity, culture, work health and safety, and
progress in the prevention of certain misconduct in Commonwealth parliamentary
workplaces. This report would be tabled in the Parliament and published on the
PWSS website. The PWSS may also prepare reports about other matters relating to
its functions.
16. Division 4 of Part 2 of the Bill provides that the CEO may determine that the PWSS
will include in a public report details about the failure of a parliamentarian to:
a. comply with a request for information by the PWSS
b. consult the PWSS before terminating the employment of a MOPS employee,
or
c. comply with a requirement to complete mandatory training or education
programs.
If a parliamentarian is a member of a Parliamentary party and fails to comply with
these requirements, or fails to comply with a requirement of a relevant mandatory
policy or procedure, the CEO must inform the Leader of the relevant Parliamentary
party of the failure.
17. Parts 3 and 4 of the Bill provide for the composition of the PWSS. These Parts
would create the statutory office of the Chief Executive Officer (CEO) of the PWSS,
supported by the staff of the PWSS engaged under the Public Service Act 1999. The
CEO would be the accountable authority (for the purposes of the Public
Governance, Performance and Accountability Act 2013), and agency head (for the
purposes of the Public Service Act 1999), responsible for managing the affairs of the
PWSS and ensuring the PWSS performs its functions. The CEO would be
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independent, with discretion in the performance or exercise of their functions and
powers and not subject to direction by any person.
18. Part 5 of the Bill would establish the PWSS Advisory Board, which would advise
the CEO in relation to the performance of the functions of the PWSS or CEO, and
consider whether to approve or reject proposed mandatory policies or procedures,
and proposed mandatory education or training programs and requirements for
completion of those programs.
19. The PWSS Advisory Board would play an important role in providing guidance and
advice to the CEO, including on the strategic direction of the PWSS, supporting the
CEO and the PWSS to most effectively discharge their functions. The role of the
PWSS Advisory Board would be advisory, and it would not have a role in directing
the activities of the PWSS or giving or seeking advice in relation to a particular
person or case.
20. Part 6 of the Bill would establish the PWSS Consultative Committee, comprised of
an independent Chair, an additional independent member, and an equal number of
parliamentarians and MOPS employee members. The PWSS Consultative
Committee would enable parliamentarians and MOPS employees to discuss matters
relevant to them and to communicate their views on these matters to the PWSS. This
is essential in building trust in the operation of the PWSS and ensuring it meets the
needs of parliamentarians and their staff.
21. The Consultative Committee would also have functions of considering proposed
policies and procedures, and of considering each proposed mandatory policy or
procedure and mandatory education or training program, and proposed requirements
for completing these programs.
22. Part 7 of the Bill provides for information sharing arrangements to enable the PWSS
to disclose, receive and request information necessary to carry out its statutory
functions. In some instances it would be mandatory to comply with a request for
information made by the PWSS.
23. Part 8 of the Bill clarifies that the Bill would not affect the law relating to
parliamentary privileges and immunities, and provides for reviews of the operation
of the Bill and rules to be conducted within one year of the commencement of each
Parliament, starting from the next Parliament.
FINANCIAL IMPACT
24. The Government has committed $51.7 million of new funding over four years from
2023-24 (and $12.4 million per year ongoing) to establish the PWSS as an
independent statutory agency.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Parliamentary Workplace Support Service Bill 2023
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. The Parliamentary Workplace Support Service Bill 2023 (the Bill) would establish
the Parliamentary Workplace Support Service (the PWSS) as an independent
statutory agency to provide human resources services for parliamentarians and
persons employed under the Members of Parliament (Staff) Act 1984
(MOPS employees) and other services to support positive cultural change across
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 11 of the Set the Standard
Report, which recommended that the Australian Government establish an Office of
Parliamentarian Staffing and Culture (now to be called the PWSS) to provide human
resources support to parliamentarians and MOPS employees. The Bill would also
enable the PWSS, once established, to implement a further six recommendations of
the Set the Standard Report (recommendations 7, 12, 13, 15, 16 and 19) and,
together with Parliamentary Departments, to implement an additional
recommendation (recommendation 14).
4. The Bill has objects of supporting safe and respectful workplaces for
parliamentarians, MOPS employees, and other Commonwealth parliamentary
workplace participants, supporting positive cultural change in those workplaces, and
providing centralised human resources support to parliamentarians and MOPS
employees.
5. Part 2 of the Bill would establish the PWSS as an independent statutory agency, with
the following functions:
a. human resources functions
b. a support function
c. a complaint resolution function
d. a policy development function
e. education and training functions
f. review function, and
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g. monitoring, reviewing, evaluating and reporting on certain matters relating
to diversity, culture, work health and safety, and performance of
Commonwealth parliamentary workplaces and other matters relating to its
functions.
6. Parts 3 and 4 of the Bill provide for the composition of the PWSS. These Parts
create the statutory office of the Chief Executive Officer (CEO) of the PWSS,
supported by the staff of the PWSS engaged under the Public Service Act 1999. The
CEO would be the accountable authority and agency head of the PWSS, responsible
for managing the affairs of the PWSS and ensuring the PWSS performs its functions.
The CEO and the PWSS would be independent, with discretion in the performance
or exercise of their functions and powers and not subject to direction by any person.
7. Part 5 of the Bill would establish the PWSS Advisory Board, which would advise
the CEO in relation to the performance of the functions of the PWSS or CEO, and
consider whether to approve or reject proposed mandatory policies or procedures,
and proposed mandatory education or training programs and requirements for
completion of those programs. Part 6 of the Bill would establish the PWSS
Consultative Committee which would discuss matters of relevance to
parliamentarians and MOPS employees and consider proposed mandatory policies,
procedures programs and requirements, and communicate their views on these
matters to the PWSS.
8. Part 7 of the Bill provides for information sharing arrangements, which would
enable the PWSS to disclose, receive and request information necessary to carry out
its statutory functions. In some instances it would be mandatory to comply with a
request for information made by the PWSS.
Human rights implications
9. The Bill engages the following rights:
a. the rights to equality and non-discrimination
b. the right to take part in public affairs
c. the right to the highest attainable standard of physical and mental health
d. the right to work and rights to work
e. the right to privacy and to reputation, and
f. the right to an effective remedy.
The rights to equality and non-discrimination
10. 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's equal access to the civil and political rights contained
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in the ICCPR and article 26 provides that States must guarantee to all persons equal
and effective protection against discrimination on any ground.
11. 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.
12. 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 support available to
Commonwealth parliamentary workplace participants, lack of accountability for
misconduct and clarity as to appropriate standards of behaviour. The Bill would
provide the PWSS with several functions to address these factors and therefore
promote the rights of Commonwealth parliamentary workplace participants to
equality and non-discrimination.
Support, complaint resolution and review functions (clauses 15, 16 and 19):
13. Part 2 of the Bill would provide the PWSS with functions to provide independent
support services, complaint resolution services and/or to review complaints, in
relation to alleged relevant conduct engaged in by, or that affects, certain
Commonwealth parliamentary workplace participants. Clause 5 defines 'relevant
conduct' to include conduct engaged in by a person that consists of, amongst other
things, bullying, harassment, sexual harassment or sexual assault.
14. These functions would promote the rights of Commonwealth parliamentary
workplace participants to equality and non-discrimination by providing an avenue
for specified Commonwealth parliamentary workplace participants who are affected
by relevant conduct to receive support services, and providing a mechanism for the
independent resolution of complaints or for a formal review of complaints involving
relevant conduct. This responds to the findings of the Set the Standard report as to
the limited recourse available for people who experience bullying, sexual
harassment and/or sexual assault in the workplace.
Policy development functions (clause 17):
15. Under clause 17 of the Bill, the PWSS has the function of determining policies and
procedures for the purposes, amongst other things, supporting Commonwealth
parliamentary workplaces to be safe and respectful. Subclause 17(5) of the Bill
provides that such policies and procedures may be declared mandatory, if so
determined by the CEO by legislative instrument with approval by the PWSS
Advisory Board.
16. Policies and procedures determined under this section may include respectful
workplace behaviour policies. In the event that such policies and procedures were
determined to be mandatory policies or procedures, this function would impose
obligations on parliamentarians to comply with policies and procedures that seek to
support safe and respectful workplaces for all participants. This function would
provide frameworks to support Commonwealth parliamentary workplace
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participants to drive cultural change and promote safe and respectful workplaces,
including preventing discrimination and harassment in the workplace. This function
therefore promotes the rights to equality and non-discrimination.
Education and training functions (clause 18):
17. Under clause 18 of the Bill, the PWSS has the function of providing and arranging
for the education of, and for informing, Commonwealth parliamentary workplace
participants about, amongst other things, establishing and maintaining safe and
respectful workplaces. The PWSS may also provide, or arrange for the provision of,
education and training programs to parliamentarians and MOPS employees about
these matters. Subclause 18(2) of the Bill provides that such education and training
programs may be declared mandatory, if so determined by the CEO by legislative
instrument with approval by the PWSS Advisory Board. Requirements for the
completion of a mandatory education or training program may also be determined by
the CEO.
18. Education and training programs under this function may include safe and respectful
workplace training, covering such matters as preventing sexual harassment. In the
event that such programs were determined to be mandatory education or training
programs, this function would impose obligations on parliamentarians to undertake
this training on a regular basis.
19. This function would have the effect of ensuring Commonwealth parliamentary
workplace participants are aware of their obligations and responsibilities in the
workplace, including obligations under anti-discrimination law. These functions
therefore promote the right of Commonwealth parliamentary workplace participants
to equality and non-discrimination by ensuring all participants are aware of
standards of behaviour expected of them in the workplace, and would support
Commonwealth parliamentary workplaces to proactively prevent discrimination or
harassment occurring in their workplaces, setting clear boundaries on acceptable
conduct in the workplace.
Public reporting obligations (clause 22):
20. Participants in the Set the Standard Report shared that identifying as different from
the norm in Commonwealth parliamentary workplaces is 'inherently unsafe' and
identified a need to increase diversity to reduce the potential scope for people to be
'targets'. Participants also spoke of the lack of women in senior roles in
Commonwealth parliamentary workplaces which contributes to a 'male-dominated
and testosterone-fuelled culture'.
21. Under clause 22 of the Bill, the PWSS would be required to report annually on
information relating to the gender and diversity characteristics of parliamentarians
and MOPS employees and on gender equality in relation to remuneration for
parliamentarians and MOPS employees. This report would be tabled in the
Parliament and made public on the PWSS's website. This would enable
Commonwealth parliamentary workplaces, as well as the public, to evaluate
progress in achieving equality in the workplace, and to compare this with other
employers across both the public and private sectors.
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22. In doing so, this compulsory reporting obligation promotes greater diversity in
Commonwealth parliamentary workplaces, as well as greater transparency and
accountability for the progress and efforts made by Commonwealth parliamentary
workplaces in protecting the rights of their participants to equality and
non-discrimination in the workplace.
Gender diversity considerations:
23. Clause 45 of the Bill details membership requirements of the PWSS Advisory
Board. Subclause 45(2) requires that at least two members of the PWSS Advisory
Board must be women. Similarly, subclause 59(4) of the Bill requires persons
making appointments to the PWSS Consultative Committee to have regard to the
desirability of ensuring that the PWSS Consultative Committee is comprised of
members of different genders when making an appointment.
24. 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 participate in governance and
consultative structures in relation to the PWSS, noting the objects of the Bill to
support safe and respectful workplaces and positive cultural change in
Commonwealth parliamentary workplaces, such as the promotion of equal and
balanced participation for men and women.
25. The measures are reasonable and proportionate given they require close to equal
representation for men and women on the PWSS Advisory Board, requiring only
two members of the Board must be women (at least 40%), and in the case of the
PWSS Consultative Committee, only require consideration of the desirability of
ensuring the PWSS Consultative is comprised of members of different genders.
The right to take part in public affairs
26. 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.
27. The Bill promotes the rights to take part in public affairs by ensuring that
Commonwealth parliamentary workplaces actively promote and foster safe and
respectful workplace environments by providing that the PWSS may:
a. determine policies and procedures (clause 17) that may include, for example,
gender equality, diversity and inclusion, and respectful workplace behaviour
policies, and
b. provide, or arrange for the provision of, education and training programs
(clause 18) for all Commonwealth parliamentary workplace participants,
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which may include safe and respectful workplace training and sexual
harassment training.
28. Additionally, under the human resources function conferred on the PWSS by
clause 14 of the Bill, the PWSS would be able to advise and assist current and
former parliamentarians and MOPS Act employees in connection with their
obligations under policies and procedures determined by the PWSS (under
clause 17), and codes of conduct applicable to them. These measures further
promote the right to take part in public affairs by supporting parliamentarians,
MOPS employees and designated workers to be aware of and uphold their
obligations, including the obligations under Australian anti-discrimination law and
to comply with all applicable Australian work health and safety laws and duties.
29. Finally, the obligations imposed on the PWSS by clause 22 of the Bill, to report
annually on gender and diversity amongst Commonwealth parliamentary
workplaces, would provide transparency around the participation of women and
diverse groups in public life and affairs.
30. These measures serve to attract and promote diverse and inclusive Commonwealth
parliamentary workplaces, which in turn minimises harm by establishing and
expanding norms of who has a 'rightful' place in the workplace and by fostering
respect amongst participants, and therefore promote the right of individuals to take
part in public affairs.
The right to the highest attainable standard of physical and mental health
31. 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.
32. 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, including on physical and mental health.
33. 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. For example, the Bill would
provide the PWSS with functions to determine policies and procedures and provide
education or training programs to support safe and respectful workplaces. In
particular, the Bill would provide the PWSS with functions to provide support
services, complaint resolution services or to review and make recommendations in
relation to complaints regarding relevant conduct, which includes bullying,
harassment, assault and sexual assault. This may include, for example, providing
support services to Commonwealth parliamentary workplace participants in
instances where 'relevant conduct' in the workplace has had a negative impact on
their physical or mental health.
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The right to work and rights in work
34. Articles 6(1) and 7 of the 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. Integral to the right to gain a living by work and the enjoyment
of just and favourable conditions of work is protection against sexual harassment
and discrimination in the workplace.
35. The right to work and rights in work are promoted by the Bill through various
functions invested in the PWSS 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. supporting parliamentarians to discharge their duties in relation to MOPS staff
employment, including work health and safety obligations and the
responsibility to prohibit all forms of discrimination (clause 14)
b. providing support services and an avenue for resolution in matters where these
rights have been interfered with (clauses 15, 16 and 19), and
c. determining policies and procedures for Commonwealth parliamentary
workplace participants relating to work health and safety matters and for the
purposes of supporting Commonwealth parliamentary workplaces to be safe
and respectful (clause 17).
36. 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 where an individual has experienced unacceptable conduct in the course of
performing Commonwealth parliamentary workplaces duties.
37. The right to work and rights in work are therefore promoted by the Bill by
improving conditions in employment, and reinforcing protections for health and
safety in the workplace in Commonwealth parliamentary workplace.
The right to privacy and to reputation
38. 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.
Public reporting obligations:
39. The Bill engages the right to privacy and reputation by providing for a reporting
framework that allows for the potential disclosure of personal information in certain
circumstances.
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40. Clause 22 of the Bill provides that the PWSS must, at least once each financial year,
prepare a report to be tabled in Parliament and published on its website containing
information relating to a range of matters, including diversity characteristics of
parliamentarians and MOPS employees, gender representation of parliamentarians
across specific roles, and progress in the prevention of, and responses to, various
types of misconduct including bullying, sexual harassment and sexual assault.
Subclause 22(9) includes measures to safeguard the privacy and reputation of
Commonwealth parliamentary workplace participants in these public reports, by
providing that any report published under this clause must not include personal
information.
41. Clause 23 provides that the CEO may determine that the PWSS will include details
of certain non-compliance by parliamentarians in a public report. This may apply in
circumstances where a parliamentarian fails to comply with a request for
information within the specific time period, fails to consult with the PWSS before
terminating the employment of a MOPS employee, or fails to comply with a
mandatory training or education program completion requirement applicable to
them. In these limited circumstances, the CEO may determine that the PWSS
include details about the failure in a public report.
42. As this clause permits the disclosure of personal information and may affect the
reputation of individuals, it may limit the right to privacy and reputation. Limitations
on the right to privacy must be authorised by law and must not be arbitrary.
43. To the extent that the right to privacy and reputation is limited by the reporting
obligations and functions of the PWSS and the CEO, this is provided for in the Bill
and is therefore authorised by law.
44. Interference with privacy will be arbitrary where the relevant measures are not in
accordance with the provisions, aims and objectives of the ICCPR and are not
reasonable in the particular circumstances. A measure which interferes with privacy
will be reasonable if it is based on reasonable and objective criteria and the
interference allowed by the measure is proportionate to the purpose for which the
measure has been adopted.
45. The purpose of including details of certain non-compliance by parliamentarians in a
public report is to promote the legitimate objectives of deterring misconduct,
ensuring accountability and promoting transparency around progress and actions
taken to ensure a safe and respectful work environment for all Commonwealth
parliamentary workplace participants.
46. The ability of the CEO to publish this information is reasonable and necessary to
achieve these objectives as parliamentarians are elected representatives of the public.
This measure is proportionate given the limits placed on these rights are balanced by
safeguards that:
a. require the CEO to provide written notice to parliamentarians and other
affected persons notifying them that the CEO is proposing to include
details about the non-compliance in a pubic report, and providing them
with an opportunity to make submissions as to their non-compliance
(subclauses 23(5) and (7)), and
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b. require the CEO to have regard to certain matters in their decision to
publish such information, including the reason and any submissions
provided by the parliamentarian in relation to the failure, as well as
whether the inclusion of such information would identify another person to
which the failure relates (subclause 23(4)).
Information gathering measures:
47. The Bill invests various information gathering powers in the PWSS. Under
clause 62, the PWSS would be able to request specified information, including
personal information, from other Commonwealth entities for the purposes of
preparing a report under subclause 22(2). Under clauses 64 and 65, the PWSS would
be able to request specified information, including personal information, from
parliamentarians and MOPS employees respectively. These measures limit the right
to privacy by providing for the disclosure of personal information to the PWSS,
without the consent of the person to whom it relates.
48. To the extent that the right to privacy and reputation is limited by the power of the
PWSS to gather personal information under these clauses, these measures constitute
a permissible limitation on the right to privacy.
49. These powers are provided for in the Bill and is therefore authorised by law.
50. The ability for the PWSS to gather personal information from other Commonwealth
entities under clause 62 is necessary to enable the PWSS to carry out its functions
effectively, which have the legitimate objective of promoting safe and respectful
Commonwealth parliamentary workplaces. This measure is reasonable as the PWSS
may only request such information for the purposes of preparing a report required by
subclause 22(2). In addition, the PWSS may only use the information provided
under this provision for the purposes of preparing a report, or for otherwise
monitoring and reviewing matters relating to its functions. The PWSS must not
include personal information in an annual report under clause 22(9). Given that
subclause 22(9) prohibits the inclusion of personal information in clause 22 reports,
this measure is proportionate
51. Under clause 64, the Bill provides that parliamentarians must comply with a request
from the PWSS for information, including personal information, that:
a. relates to certain matters in relation to a current or former MOPS employee
employed by, or a designated worker engaged by, the parliamentarian
b. relates to work health and safety matters arising in connection with duties of
parliamentarians or MOPS employees, or
c. is reasonably necessary for the purposes of providing a complaint resolution
service under clause 16 to a person who is or was a MOPS employee
employed by, or a designated worker engaged by, the parliamentarian.
52. The ability for the PWSS to request such information, including personal
information from parliamentarians that, for example, identifies a person or relates to
a person's conduct, would be necessary to ensure the PWSS can carry out their
15
functions effectively. This includes its functions to advise and assist
parliamentarians in connection with their employment of MOPS employees
(clause 14) and to provide complaint resolution services to Commonwealth
parliamentary workplace participants (clause 16). This measure is reasonable and
proportionate given that it only permits the PWSS to request such information as is
required to support their functions, and in so far as compliance with the request
would not constitute an offence against a law of the Commonwealth
(subclause 64(5)).
53. In relation to requests for information from MOPS employees under clause 65, the
PWSS is only permitted to request information that relates to the functions and
powers of the PWSS and the CEO. Hence, requests for personal information in this
context are reasonable as they may only be made in so far as they are necessary for
the PWSS and the CEO to perform their functions. This measure is proportionate
given the safeguards in place in the Bill that prohibit the disclosure of personal
information in the PWSS's annual reports (subclause 22(9)) and allow for
non-compliance with clause 65 requests if doing so would constitute an offence
against a law of the Commonwealth (subclause 65(3)).
54. Accordingly, these measures constitute a permissible limitation on the right to
privacy.
Information sharing measures:
55. The Bill invests various information sharing powers in the PWSS and the CEO.
Clause 61 would enable the sharing of information, including personal information,
between the PWSS and other Commonwealth entities or office holders or appointees
under a Commonwealth law on the initiative or at the request of either parties.
Clause 63 would enable the CEO to make arrangements with Commonwealth
entities or Commonwealth office holders or appointees relating to the disclosure of
information to, or by, the PWSS under subclauses 61(1) or (2) or 62(3).
56. To the extent that the right to privacy and reputation is limited by the power of the
PWSS to share and disclose personal information under these clauses, this is
provided for in the Bill and is therefore authorised by law.
57. The potential interference with the right to privacy occasioned by the PWSS's
authority to share and disclose information, including personal information, with the
above parties under clause 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 sharing onboarding information between the PWSS and the
Department of Finance to support payroll. The measure is proportionate, given the
safeguards in place under subclause 61(4) that prevent the disclosure of information
under these clauses 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.
58. Similarly, the power provided to the CEO under clause 62 to enter into information
sharing arrangements with Commonwealth entities and other Commonwealth office
holders or appointees goes to the legitimate objective of promoting the effective and
efficient sharing of information between the PWSS and other relevant
16
Commonwealth entities. There would be instances that necessitate the sharing of
personal information from other entities to the PWSS in order for the PWSS to
effectively carry out its functions, including to report annually on the progress in the
prevention of, and responses to, unacceptable conduct in Commonwealth
parliamentary workplaces (subclause 22(2)). The measure is reasonable and
proportionate, given the ability for such arrangements to provide for the
confidentiality of information disclosed in accordance with the arrangement under
subclause 62(3). Further, the Bill provides that any arrangement made under this
clause is not a legislative instrument and must be published on the PWSS's website
to ensure transparency.
The right to an effective remedy
59. 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.
60. Clause 19 of the Bill would give the statutory PWSS the review function of the
existing PWSS.
61. This function promotes the right to an effective remedy by providing for a process
by which complaints regarding certain misconduct may be reviewed, and if upheld,
the PWSS may make recommendations. If a recommendation relates to a
parliamentarian, the PWSS must engage with that parliamentarian on
implementation. If such a recommendation is not implemented, the PWSS must give
a copy of the report to the Presiding Officer of the relevant House of Parliament.
Conclusion
62. 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.
17
GLOSSARY
List of abbreviations used in this Explanatory Memorandum
Acts Interpretation Act Acts Interpretation Act 1901
AFP Australian Federal Police
APS Australian Public Service
Legislation Act Legislation Act 2003
MOPS Act Members of Parliament (Staff) Act 1984
Parliamentary Service Determination Parliamentary Service Determination 2013
PBR Act Parliamentary Business Resources Act 2017
PGPA Act Public Governance, Performance and Accountability Act 2013
PGPA Rule Public Governance, Performance and Accountability Rule 2014
Parliamentary Precincts Act Parliamentary Precincts Act 1988
Parliamentary Presiding Officers Act Parliamentary Presiding Officers Act 1965
Parliamentary Service Act Parliamentary Service Act 1999
Privacy Act Privacy Act 1988
Public Service Act Public Service Act 1999
Remuneration Tribunal Act Remuneration Tribunal Act 1973
Set the Standard Report Set the Standard: Report on the Independent Review into
Commonwealth Parliamentary Workplaces
Work Health and Safety Act Work Health and Safety Act 2011
18
NOTES ON CLAUSES
PART 1--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 Act 2023.
Clause 2 Commencement
2. Clause 2 provides for the commencement of each provision in the Bill, as set out in
the table at subclause 2(1). The table provides that the whole of this Bill would
commence on a single day to be fixed by Proclamation. However, if the provisions
did not commence within the period of six months beginning on the day the Bill
receives the Royal Assent, they would commence on the first day of the next
calendar month following the end of that period.
3. Subclause 2(2) specifies that information in column 3 of the table at subclause 2(1)
is not a 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 Object of this Act
4. Clause 3 sets out the objects of this Bill.
5. This clause is intended to provide a clear statement of the principles and objectives
underpinning the Bill.
6. Clause 3 provides that the objects of this Bill are to:
a. support safe and respectful workplaces for parliamentarians, MOPS
employees and other Commonwealth parliamentary workplace participants
b. support positive cultural change in those workplaces, and
c. provide centralised human resources support to parliamentarians and MOPS
employees.
7. This clause reflects that the Bill would give effect to recommendations of the Set the
Standard Report. In particular, the Bill would implement recommendation 11 of the
Set the Standard Report, which recommended that the Australian Government
establish an Office of Parliamentarian Staffing and Culture (now to be called the
PWSS) to provide human resources support to parliamentarians and MOPS
employees. The Bill would also enable the PWSS, once established, to implement a
further six recommendations of the Set the Standard Report (recommendations 7, 12,
13, 15, 16 and 19) and, together with Parliamentary Departments, to implement an
additional recommendation (recommendation 14).
8. 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
19
respectful and to prevent and address misconduct in the nature of bullying,
harassment, sexual harassment, assault and sexual assault. The Set the Standard
Report found that human resources systems to support parliamentarians and MOPS
employees were fragmented, unclear and inadequate, with few standardised policies
and processes, including to prevent and manage misconduct, and that there was an
absence of clear expectations or guidance for Commonwealth parliamentary
workplace participants. Recognising these as contributing risk factors for
misconduct, the Set the Standard Report made a number of recommendations with
the aim that people working in Commonwealth parliamentary workplaces are clear
about their roles and responsibilities and consistent and standardised systems,
processes and advice exist to support performance.
9. The establishment of the PWSS by this Bill would support the objects of the Bill.
The PWSS would support safe and respectful workplaces for parliamentarians,
MOPS employees and other Commonwealth workplace participants and support
positive cultural change in those workplaces, including by providing centralised
human resources support to parliamentarians and MOPS employees. In addition, the
PWSS would support these objects by providing support and complaint resolution
services and education and training to Commonwealth parliamentary workplace
participants, as well as determining key policies and procedures.
10. It is not intended that this clause would have the effect of limiting other provisions
in this Bill.
Clause 4 Simplified outline of this Act
11. Clause 4 provides a simplified outline of the Bill to assist the reader.
12. The outline notes that the Bill would establish the Parliamentary Workplace Support
Service, and notes that the functions of the PWSS would include its human
resources, support, complaint resolution, policy development, education and training
and review functions, as well as functions to monitor, review and evaluate certain
matters and to prepare and publish reports.
13. The outline notes that parliamentarians would be required to comply with certain
training requirements, consultation requirements and requests for information under
this Bill, and a failure to comply may result in details of the non-compliance being
published in a public report.
14. The outline notes that the PWSS would have a Chief Executive Officer who is
responsible for its management and for ensuring it performs its functions. The
outline also notes that the Bill would establish the PWSS Advisory Board to advise
the CEO and the PWSS Consultative Committee to enable parliamentarians and
MOPS employees to be consulted on relevant matters.
15. This outline is included to assist readers to understand the substantive provisions of
this Bill. It is not intended to be comprehensive and it is intended that readers should
rely on the substantive provisions of the Bill.
20
Clause 5 Definitions
16. Clause 5 defines terms that are used in the Bill.
17. Definitions in this clause which are relevant to the application of the Bill as a whole
are discussed below, for example the definition of 'Commonwealth parliamentary
workplace' and 'Commonwealth parliamentary workplace participant'.
Otherwise, the definitions in this clause are explained in the context of the clause to
which they are relevant. For example, the meaning of 'Commonwealth judicial
officer' is discussed at clause 45 and the meaning of 'election period' is discussed
at clause 6.
18. The term 'Minister' is not defined in this Bill. In accordance with section 19 of the
Acts Interpretation Act 1901, references to Ministers in the Bill refer to the Minister,
or any of the Ministers, administering the provision on the relevant day, in relation
to the relevant matter. It is intended that where this Bill confers powers or functions
upon the Minister, those powers or functions would primarily be exercised by the
Special Minister of State, provided they are a Minister administering the Bill.
19. Clause 5 defines 'CEO' as the Chief Executive Officer of the Parliamentary
Workplace Support Service, which is an office that would be established by Part 3 of
this Bill.
20. 'Commonwealth entity' has the same meaning as in the Public Governance,
Performance and Accountability Act 2013 (the PGPA Act). Section 10 of that Act
defines 'Commonwealth entity' as
a. a Department of State
b. a Parliamentary Department
c. a listed entity
d. a body corporate that is established by a law of the Commonwealth, or
e. a body corporate that is established under a law of the Commonwealth (other
than a Commonwealth company) and is prescribed by an Act or the PGPA
rules to be a Commonwealth entity.
The High Court and the Future Fund Board of Guardians are not Commonwealth
entities.
21. This clause defines 'Commonwealth parliamentary workplace' as:
a. a place in the precincts (within the meaning of the Parliamentary Precincts
Act 1988)
b. premises provided or paid for under the Parliamentary Business Resources Act
2017, or
c. any other place where a Commonwealth parliamentary workplace participant
performs duties as a Commonwealth parliamentary workplace participant.
21
22. For the purposes of paragraph (a) of this definition, the Parliamentary Precincts Act
defines 'precincts' as the Parliamentary precincts within the meaning of that Act and
any property that is owned or held under lease by the Commonwealth. This would
include, for example, workplaces within Australian Parliament House or within the
premises of Departments of State or other Commonwealth entities.
23. For the purposes of paragraph (b) of this definition, premises provided or paid for
under the Parliamentary Business Resources Act may include the Commonwealth
Parliament Offices, which are located in the capital city of each state and the
Northern Territory, parliamentarians' electorate, mobile or satellite offices, official
establishments (including The Lodge in Canberra and Kirribilli House in Sydney), or
the offices of Ministers or other office-holders.
24. For the purposes of paragraph (c) of this definition, 'Commonwealth parliamentary
workplace participant' is defined below. Paragraph (c) of this definition is intended
to be interpreted broadly to include any other place where Commonwealth
parliamentary workplace participants perform their duties. This may include, for
example, places where a participant is working remotely, such as when they are
working from home, privately leased office facilities or within a car (such as in
relation to a COMCAR driver).
25. This clause defines 'Commonwealth parliamentary workplace participant' as a
core participant or a non-core participant. The definition of Commonwealth
parliamentary workplace participant is relevant to the scope of the functions of the
PWSS.
26. A 'core participant' is defined as:
a. a parliamentarian
b. a MOPS employee
c. a Parliamentary Service employee
d. an APS employee whose predominant place of work as an APS employee is a
place covered by paragraph (a) or (b) of the definition of 'Commonwealth
parliamentary workplace'
e. a person employed by the Commonwealth as a driver to provide the
car-with-driver transport service known as COMCAR, to the extent the
person's duties relate to parliamentarians, or
f. a designated worker.
27. This definition is intended to capture all individuals who have a core and direct
relationship with Commonwealth parliamentary workplaces. These are primarily
individuals who are remunerated by the Commonwealth or otherwise work at the
direction of a parliamentarian at certain Commonwealth parliamentary workplaces.
22
28. For the purposes of paragraphs (a) to (c) of this definition, the term
'parliamentarian' has the meaning given by clause 6 of the Bill and the terms
'MOPS employee' and 'Parliamentary Service employee' are defined below.
29. Paragraph (d) of this definition captures APS employees whose predominant place
of work is at a place in the precincts or premises provided or paid for under the
Parliamentary Business Resources Act. The note under this definition indicates the
term 'APS employee' is defined in the Acts Interpretation Act, which in turn refers
to the definition of this term in the Public Service Act 1999. The Public Service Act
defines 'APS employee' to mean a person engaged under section 22 of that Act, or a
person who is engaged as an APS employee under section 72 of that Act.
30. It is intended that paragraph (d) would capture APS employees such as Departmental
Liaison Officers, relief advisers or the Senate or House of Representatives
Parliamentary Liaison Officers, who predominantly work in parliamentarians'
offices or at Australian Parliament House. Paragraph (d) is not intended to capture
APS employees generally. For example, it is not intended to capture APS employees
who attend Australian Parliament House on an ad hoc basis, such as in order to brief
a parliamentarian or to appear before a parliamentary committee, including Senate
Estimates. This reflects that where these APS employees require human resources
support, this should be accessed through their relevant agency.
31. Paragraph (e) of this definition captures persons employed by the Commonwealth as
COMCAR drivers. A COMCAR driver is only captured by paragraph (e) to the
extent their duties relate to parliamentarians. This reflects that persons who are not
parliamentarians may also be entitled to use COMCAR for transport. Accordingly, a
COMCAR driver would only constitute a core participant to the extent that they
were providing driver services for parliamentarians.
32. For the purposes of paragraph (f) of this definition, a 'designated worker' is
defined by this clause as a worker, within the meaning of the Work Health and
Safety Act 2011, who:
a. carries out work in any capacity for a business or undertaking of the
Commonwealth constituted by the provision of support to a parliamentarian
b. carries out that work predominantly at a place covered by paragraph (a) or (b)
of the definition of 'Commonwealth parliamentary workplace', and
c. is not a parliamentarian, MOPS employee, Parliamentary Service employee,
APS employee or a person covered by paragraph (e) of the definition of 'core
participant'.
33. This definition is intended to capture volunteers, interns and other workers providing
support to parliamentarians predominantly at a Commonwealth parliamentary
workplace who are not otherwise captured by the definition of core participant. This
would include, for example, Australian Federal Police (AFP) officers working at
Australian Parliament House or other Commonwealth parliamentary workplaces,
such as official establishments, as AFP officers are not APS employees and
therefore would not otherwise be captured by this definition.
23
34. Section 7 of the Work Health and Safety Act provides that a person is a 'worker' if
the person carries out work in any capacity for a person conducting a business or
undertaking. This explicitly includes persons carrying out work as an employee,
contractor, subcontractor, work experience student or volunteer. However, for the
purposes of this definition, a worker is only captured to the extent that they carry out
work for a business or undertaking of the Commonwealth. Accordingly, employees
of political parties or other private businesses would not be captured by this
definition.
35. For the purposes of paragraph (a) of this definition, provision of support to a
parliamentarian is intended to be interpreted broadly. This may include, for example,
electorate support, campaigning, media advising, general advising as well as general
office or other administrative duties. However, paragraph (b) of this definition
clarifies that a worker is only a designated worker to the extent that they carry out
that work predominantly at a place in the precincts or premises provided or paid for
under the Parliamentary Business Resources Act. For example, this would capture
volunteers who predominantly work within Australian Parliament House or
parliamentarians' offices. However, for example, this would not cover volunteers
who provide assistance to a parliamentarian to campaign across their electorate, such
as through placing corflute signs or handing out flyers in the local community
(unless they predominantly work at a place covered by paragraph (a) or (b) of the
definition of a 'Commonwealth parliamentary workplace', such as the
parliamentarian's electorate office), or interns who predominantly work from home.
36. A 'non-core participant' is defined as 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'.
37. This definition is intended to include, for example, journalists who predominantly
perform work at Australian Parliament House, such as in the Federal Parliamentary
Press Gallery, or service workers, such as café workers, at privately-owned cafés on
Commonwealth premises. It would not cover, however, individuals who visit
Australian Parliament House on an ad hoc or intermittent basis to perform work -
for example, lobbyists or advocates who meet with parliamentarians. It is not
necessary that a person carry out paid work to be within the definition of a non-core
participant. For example, a journalism intern in the Press Gallery may fall within this
definition. The inclusion of unpaid work in this Bill facilitates individuals being able
to access supports even when they work in an unpaid capacity.
38. This clause clarifies that the terms 'mandatory education or training program'
and 'mandatory policy or procedure' are given meaning in this Bill by
paragraph 18(2)(a) and subclause 17(3) respectively.
39. A 'MOPS employee' is defined as a person who is employed under the Members of
Parliament (Staff) Act 1984 (the MOPS Act). MOPS employees are employed to
assist senators and members of the House of Representatives and certain
office-holders carry out their duties. MOPS employees include electorate employees
and personal employees. All senators and members of the House of Representatives
are entitled to hire electorate employees under the MOPS Act. Personal employees
engaged by office-holders currently include employees working for Ministers,
24
Shadow Ministers, minor parties, independent senators and members, Presiding
Officers, Government Whips, former Prime Ministers and staff employed at official
establishments.
40. This clause defines 'paid work' as work for financial gain or reward (whether as an
employee, a self-employed person or otherwise).
41. This clause provides that the term 'Parliamentary party' means a political party,
within the meaning of the Commonwealth Electoral Act 1918, at least one member
of which is a member of the Parliament of the Commonwealth. The Commonwealth
Electoral Act defines a political party as an organisation the object or activity of
which is the promotion of the election to the Senate or to the House of
Representatives of a candidate or candidates endorsed by it. In order to fall within
the definition of Parliamentary Party for the purposes of this Bill, a political party
must have at least one member who is a senator or member of the House of
Representatives at the relevant time. This definition is intended to capture the
government, the Opposition, and minor parties.
42. This clause provides that 'Parliamentary Service employee' has the same meaning
as in the Parliamentary Service Act. That Act defines a Parliamentary Service
employee to include employees of the Department of Parliamentary Services, the
Department of the Senate, the Department of the House of Representatives and the
Parliamentary Budget Office, as well as APS employees who became non-APS
employees of such departments due to machinery of government changes.
43. The term 'personal information' has the same meaning as in the Privacy Act 1988.
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.
44. The term 'public report' in this Bill means a report under clause 22 that is
published by the PWSS on its website. This includes the PWSS's annual report on
Commonwealth parliamentary workplaces under subclause 22(2), and may include
other reports relating to the functions of the PWSS or the CEO under
subclause 22(1), to the extent they are published on the PWSS website under
subclause 22(4). It does not include the PWSS's annual report, as prepared in
accordance with the PGPA Act.
45. The term 'PWSS' in this Bill means the Parliamentary Workplace Support Service
established by clause 12. Similarly, the term 'PWSS Advisory Board' means the
Parliamentary Workplace Support Service Advisory Board established by clause 42
of this Bill, and the term 'PWSS Consultative Committee' means the
Parliamentary Workplace Support Service Consultative Committee established by
clause 57 of this Bill. The term 'PWSS rules' means rules made under clause 69 of
this Bill.
46. This clause defines 'relevant conduct' as conduct engaged in by a person that
consists of any of the following:
a. sexual assault
25
b. assault
c. sexual harassment
d. harassment
e. another person being bullied at work (within the meaning of the Fair Work Act
2009)
f. unreasonable behaviour towards another person that creates a risk to work
health or safety
g. conduct that breaches a code of conduct, or a part of a code of conduct, that is
prescribed by the PWSS rules.
47. This definition is relevant to the scope of the PWSS's support, complaint resolution
and review functions. The PWSS must also prepare an annual report relating to,
amongst other things, progress in the prevention of, and responses to, certain alleged
relevant conduct.
48. This definition captures categories of conduct which create a risk of, or are likely to
cause, harm to Commonwealth parliamentary workplace participants. It is intended
that relevant conduct may include any of the conduct listed at paragraphs (a) to (g),
including a combination of conduct. In addition, it is intended that relevant 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 relevant 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 also constitute relevant
conduct.
49. It is intended that the types of conduct listed in paragraphs (a) to (d) of this
definition 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 and safety' in paragraph (f) should be interpreted consistently with the
Work Health and Safety Act.
50. It is not necessary for conduct to meet particular thresholds of seriousness to fall
within paragraphs (a) to (g) of this definition. For example, for the purposes of
paragraph (e) of this definition, the relevant behaviour must merely create a risk to
work health or safety, it need not create a serious or substantial risk to work health
or safety. Similarly, all conduct that breaches a code of conduct prescribed by the
PWSS rules is intended to fall within the scope of paragraph (g), regardless of the
seriousness or scope of that breach.
51. The term 'staff of the PWSS' in this Bill means the staff described in clause 38.
52. This clause clarifies that the term 'vacancy', in relation to the office of a member of
the PWSS Advisory Board, has a meaning affected by clause 7.
26
Clause 6 Meaning of parliamentarian
53. Clause 6 defines the term 'parliamentarian' for the purposes of this Bill.
54. Subclause 6(1) provides that, for the purposes of this Bill, 'parliamentarian' means:
a. a senator (paragraph 6(1)(a))
b. a member of the House of Representatives (paragraph 6(1)(b))
c. a Minister of State who is not a senator or member of the House of
Representatives (paragraph 6(1)(c))
d. a person who is taken to be the President of the Senate under the
Parliamentary Presiding Officers Act 1965 and who is not a senator or
member of the House of Representatives (paragraph 6(1)(d))
e. a person who is taken to be 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 (paragraph 6(1)(e))
f. a person not covered by the preceding or following paragraphs who is covered
by subclause 6(2) at a particular time (paragraph 6(1)(f)), or
g. a person not covered by the preceding paragraphs who held the office of
Prime Minister (paragraph 6(1)(g)).
55. This definition is intended to be interpreted broadly, in order to capture all
individuals who employ, engage or otherwise interact with MOPS employees or
other Commonwealth parliamentary workplace participants, and thus contribute to
the culture of Commonwealth parliamentary workplaces.
56. Paragraphs 6(1)(a) and (b) provide that the term 'parliamentarian' includes a senator
or a member of the House of Representatives. This is intended to capture sitting
members of the Parliament.
57. Paragraph 6(1)(c) provides that the term 'parliamentarian' includes a Minister of
State who is not a senator or member of the House of Representatives. While
Ministers are generally required to sit in Parliament, this reflects that Ministers of
State may hold office for a period no longer than three months without being a
senator or member of the House of Representatives (section 64 of the Constitution).
58. Paragraphs 6(1)(d) and (e) provide that the term 'parliamentarian' includes a person
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. 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
27
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.
59. Paragraph 6(1)(f) provides that the term 'parliamentarian' includes a person covered
by subclause 6(2) at a particular time. Subclause 6(2) provides that a person is so
covered if:
a. the person was a senator or member of the House of Representatives
immediately before an election period
b. the person is a candidate at the election to which the election period relates,
and
c. the time is within the election period.
60. The 'election period' for the purposes of paragraph 6(2)(c) is defined in
subclause 6(3) as the period commencing on the day of issue of the writ for the
election and ending on the day of the declaration of the poll in the election. The term
'election' has the same meaning as within the Commonwealth Electoral Act.
61. This is intended to capture individuals who were senators or members of the House
of Representatives for the period from the dissolution of the House of
Representatives (for members and for Territory senators) or the Senate (for State
senators) ahead of an election until polls have been declared in the election. It is
intended that a person would be a 'candidate' at the election regardless of whether
they are running to sit in the same House of the Parliament or the other House (such
as a senator who is running for election as a member of the House of
Representatives), so long as the elections for both Houses of the Parliament are held
on the same day.
62. Paragraph 6(1)(g) provides that the term 'parliamentarian' includes a person not
covered by any of the preceding paragraphs who held the office of the Prime
Minister. This reflects that former Prime Ministers no longer in the Parliament are
office-holders entitled to employ staff under the MOPS Act (sections 3 and 13 of the
MOPS Act).
Clause 7 Vacancy in the office of a member of the PWSS Advisory Board
63. Clause 7 would affect the meaning of the term 'vacancy' in relation to the office of a
member of the PWSS Advisory Board.
64. Subclause 45(1) of this Bill provides that the PWSS Advisory Board consists of a
Chair and at least three, and not more than four, other members. This clause
provides that for the purposes of a reference in this Bill to a vacancy in the office of
a member of the PWSS Advisory Board or a reference in the Acts Interpretation Act
to a vacancy in the membership of a body, there are taken to be four offices of
members of the PWSS Advisory Board in addition to the Chair of the PWSS
Advisory Board.
28
Clause 8 Crown to be bound
65. Clause 8 provides that the Bill binds the Crown in right of the Commonwealth.
Clause 9 Extension to external Territories
66. Clause 9 provides that the Bill extends to every external Territory.
67. This would apply the obligations in this Bill to every external Territory. As such, the
PWSS would be able to provide services to a Commonwealth parliamentary
workplace participant who performs their duties in an external territory, such as
when they are travelling.
Clause 10 Extra-territorial operation
68. Clause 10 provides that the Bill extends to acts, omissions, matters and things
outside Australia, whether or not in a foreign country.
69. This would apply the obligations in this Bill both within and outside of Australia. As
such, the PWSS would be able to provide services to a Commonwealth
parliamentary workplace participant who performs their duties in a foreign country,
or in relation to alleged relevant conduct engaged in overseas, such as in
circumstances when a Commonwealth parliamentary workplace participant is
travelling overseas for work.
PART 2--PARLIAMENTARY WORKPLACE SUPPORT SERVICE
70. Part 2 of this Bill would establish the Parliamentary Workplace Support Service 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.
71. The establishment of the PWSS would implement recommendation 11 of the Set the
Standard Report, which recommended that the Australian Government establish an
Office of Parliamentarian Staffing and Culture (now to be called the PWSS) to
provide human resources support to parliamentarians and MOPS employees. The
PWSS established by this Part would be a non-corporate Commonwealth entity,
rather than a parliamentary department.
72. Part 2 would also provide for the functions of the PWSS, which includes human
resources, support, complaint resolution, policy development, education and training
and review functions. The PWSS would also have functions relating to monitoring,
reviewing, evaluating and reporting on certain matters relating to diversity, work
health and safety, and culture of Commonwealth parliamentary workplaces.
Division 1--Simplified outline of this Part
Clause 11 Simplified outline of this Part
73. Clause 11 provides a simplified outline of Part 2 of the Bill to assist the reader.
29
74. The outline notes that this Part establishes the Parliamentary Workplace Support
Service, the functions of which would include:
a. its human resources functions
b. its support function
c. its complaint resolution function
d. its policy development function
e. its education and training functions
f. its review function
g. to monitor, review and evaluate certain matters, and
h. to prepare and publish reports.
75. The outline further notes that the PWSS could prepare reports about matters relating
to the functions of the PWSS or CEO. The PWSS would be required to prepare a
report each financial year about certain matters, including:
a. gender and diversity characteristics of parliamentarians and MOPS employees
b. gender equality in relation to remuneration for parliamentarians and MOPS
employees
c. the employment of MOPS employees, and
d. the prevention of, and responses to, relevant conduct.
76. The outline notes that parliamentarians would be required to comply with certain
training requirements, consultation requirements and requests for information under
this Bill. A failure to comply may result in details of the non-compliance being
published in a public report.
Division 2--Establishment and functions of the PWSS
Clause 12 Parliamentary Workplace Support Service
77. Clause 12 establishes the Parliamentary Workplace Support Service and provides
that it is a listed entity for the purposes of finance law.
78. Subclause 12(1) establishes the PWSS. The second note under this subclause
clarifies that, in this Bill, 'PWSS' means the Parliamentary Workplace Support
Service.
79. Subclause 12(2) provides that the PWSS consists of the CEO, as established under
clause 26, the staff of the PWSS, as referred to in clause 38, and persons whose
services are made available to the PWSS under clause 39.
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80. Subclause 12(3) provides for certain matters relating to the PWSS for the purposes
of the finance law, within the meaning of the PGPA Act.
81. Paragraph 12(3)(a) provides that the PWSS is a listed entity. Accordingly, for the
purposes of the PGPA Act, the PWSS would be established as a non-corporate
Commonwealth entity. As a non-corporate Commonwealth entity, the PWSS would
legally form part of the Commonwealth and would not have a separate legal identity,
as recognised by the first note under subclause 12(1). As such, the PWSS would be
able to, amongst other things, enter into arrangements and commit relevant money
on behalf of the Commonwealth. Similarly, the PWSS would 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.
82. Paragraph 12(3)(b) provides that the CEO is the accountable authority of the PWSS.
As the accountable authority, the CEO would be responsible for managing the
PWSS's affairs and ensuring the PWSS 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 PWSS in a way that promotes the
proper use and management of public resources and establish and maintain
appropriate risk oversight and management systems.
83. Paragraph 12(3)(c) provides that the CEO, staff of the PWSS and persons whose
services are made available to the PWSS are officials of the PWSS for the purposes
of the finance law. Officials of the PWSS 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. An official's
employment may be terminated if they contravene these duties.
84. 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), paragraph 12(3)(d) provides that the
purposes of the PWSS for the purposes of the finance law would also include
a. the functions of the PWSS referred to in clause 13, and
b. the functions of the CEO referred to in clause 27.
Clause 13 Functions of the PWSS
85. Clause 13 outlines the functions of the PWSS.
86. The functions conferred on the PWSS would include functions recommended by the
Set the Standard Report and the Review of the Members of Parliament (Staff) Act
1984 (Cth) (the MOPS Act Review), functions performed by the existing
Parliamentary Workplace Support Service under the Parliamentary Service
Determination 2013, and functions currently performed by the Ministerial and
Parliamentary Services Division of the Department of Finance. The conferral of
these functions on the PWSS would enable the PWSS to further the objects of the
Bill, including to support safe and respectful workplaces for Commonwealth
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parliamentary workplace participants and support positive cultural change in these
workplaces.
87. This clause provides that the PWSS has the following substantive functions:
a. its human resources functions (clause 14)
b. its support function (clause 15)
c. its complaint resolution function (clause 16)
d. its policy development function (clause 17)
e. its education and training functions (clause 18)
f. its review function (clause 19)
g. to monitor, review and evaluate:
i. the matters covered by paragraphs 22(2)(a) to (f), which include,
amongst other things, gender and diversity characteristics of
parliamentarians and MOPS employees, gender equality in relation to
remuneration for parliamentarians and MOPS employees, the
employment of MOPS employees and the prevention of, and responses
to, relevant conduct, and
ii. other matters relating to any of its other functions, and
h. to prepare and publish reports mentioned in Division 3 of Part 2 of the Bill).
88. The scope of these functions is discussed at each relevant clause.
89. In addition, subclauses 13(i) to (l) provide for other functions of the PWSS.
90. Subclause 13(i) provides that the PWSS has the function of making resources and
facilities available to the PWSS Advisory Board and the PWSS Consultative
Committee. This may include, for example, providing secretariat support or clerical
assistance to the PWSS Advisory Board and the PWSS Consultative Committee or
providing facilities, such as meeting rooms or communications facilities, to support
these bodies.
91. Subclause 13(j) provides that the PWSS has the function of assisting the CEO in the
performance of the CEO's functions. This may include, for example, assisting the
CEO in the performance of their functions to determine mandatory policies or
procedures under clause 17 or to determine mandatory education or training
programs and associated requirements for completion under clause 18.
92. Subclause 13(k) provides that the PWSS has such other functions as are conferred
on the PWSS by this Bill or by any other law of the Commonwealth. This may
include, for example, any functions that may be conferred upon the PWSS by the
MOPS Act, which would continue to regulate the employment relationship between
parliamentarians and MOPS employees.
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93. Subclause 13(l) provides that the PWSS has the function of doing anything
incidental to, or conducive to, the performance of the above functions.
94. The note under this clause clarifies that this clause does not prevent another
Commonwealth entity from performing a function that falls within the functions of
the PWSS (including its human resources functions). This reflects that other
Commonwealth entities would continue to deliver key services to Commonwealth
parliamentary workplace participants, including parliamentarians and MOPS
employees, following the establishment of the PWSS. For example, the Department
of Finance would continue to administer payroll services for MOPS employees and
the Independent Parliamentary Expenses Authority would continue to provide
support to parliamentarians regarding work expenses and travel entitlements and
allowances.
95. The functions outlined in this clause are conferred on the PWSS, which comprises
the CEO, staff and persons assisting the PWSS, as outlined at clause 12.
Clause 14 Human resources functions
96. Clause 14 provides for the human resources functions of the PWSS.
97. An object of this Bill is to provide centralised human resources support to
parliamentarians and MOPS employees. Accordingly, a primary function of the
PWSS would be to deliver human resources services to parliamentarians, MOPS
employees and designated workers, and thus drive positive cultural change in
Commonwealth parliamentary workplaces.
98. The human resources functions in this clause relate to the provision of specified
assistance to parliamentarians, MOPS employees and designated workers. This
recognises that other Commonwealth parliamentary workplace participants, such as
APS and Parliamentary Service employees, are able to access human resources
support from their relevant agency, and any support should primarily be accessed
through their relevant agency.
99. Subclause 14(a) provides that the PWSS has a function to advise and assist current
and former parliamentarians in connection with their employment of MOPS
employees, or their engagement of designated workers (eg interns and volunteers).
This would allow the PWSS to provide advice to this cohort in their capacity as
employers and former employers. It is intended that this function would allow the
PWSS to provide this advice and assistance throughout the employment or
engagement relationship. This may include, for example, advice concerning
recruitment, induction, suspension or termination of MOPS employees or designated
workers. The function of the PWSS to advise and assist former parliamentarians
recognises that former parliamentarians may still require support in managing
outstanding employment matters.
100. Subclause 14(b) provides that the PWSS has the function to advise and assist current
and former parliamentarians in connection with their obligations under policies and
procedures determined by the PWSS under clause 17 and codes of conduct relating
to parliamentarians that are prescribed by the PWSS rules. Codes of conduct relating
to parliamentarians that are prescribed by the PWSS rules may include, for example,
33
the Behaviour Code for Australian Parliamentarians, noting it has been endorsed by
the Parliament on an interim basis.
101. Subclause 14(c) provides that the PWSS has the function to advise and assist current
and former MOPS employees in connection with their employment as MOPS
employees. This includes advice and assistance in connection with their obligations
under policies and procedures determined by the PWSS under clause 17 and codes
of conduct relating to MOPS employees that are prescribed by the PWSS rules.
Codes of conduct relating to MOPS employees that are prescribed by the PWSS
rules may include, for example, the Behaviour Code for Parliamentarians' Staff,
noting it has been endorsed by the Parliament on an interim basis.
102. Subclause 14(d) provides that the PWSS has the function to advise and assist current
and former designated workers in connection with their engagement as designated
workers. This includes advice and assistance in connection with their obligations
under policies and procedures determined by the PWSS under clause 17. The
meaning of 'designated worker' is discussed at clause 5. Designated workers may
include volunteers, interns and other workers providing support to parliamentarians
within Australian Parliament House or parliamentarians' offices. The ability for the
PWSS to provide human resources advice and assistance to designated workers
recognises the workplace relationship that these workers have with parliamentarians,
the duties that parliamentarians and MOPS employees may have towards these
workers, and that these workers would generally not have access to other human
resources support.
103. Subclause 14(e) provides that, without limiting its other human resources functions,
the PWSS has the function to provide human resources services to parliamentarians,
MOPS employees and designated workers in connection with:
a. the employment of MOPS employees
b. the engagement of designated workers, and
c. work health and safety matters that arise in connection with the duties of
parliamentarians, MOPS employees or designated workers.
104. Accordingly, the PWSS would have the function of providing human resources
services and work health and safety advice to parliamentarians, MOPS employees
and designated workers. This may include providing recruitment and induction
services, undertaking exit interviews, facilitating performance management, advising
on employee relations, suspension and termination matters and providing general
wellbeing support. The PWSS would also be able to provide advice on work health
and safety matters.
105. Human resources services provided by the PWSS would not include certain matters,
which would remain the responsibility of the Department of Finance. In particular,
the Department of Finance would retain responsibility for Enterprise Agreement
negotiations for MOPS employees, payroll administration for MOPS employees. In
addition, other human resources services may continue to be provided by relevant
agencies, such as by the Australian Federal Police noting that AFP officers may
constitute designated workers.
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Clause 15 Support function
106. Clause 15 provides for the support function of the PWSS.
107. Subclause 15(1) provides that the PWSS's support function is to provide support
services to current and former Commonwealth parliamentary workplace participants
under subclause 15(2). This function is described in the Set the Standard Report as
'pathway 1'.
108. It is intended that support services under this clause may include trauma-informed
information, advice and support, provided in relation to alleged 'relevant conduct',
the meaning of which is discussed at clause 5. In particular, subclause 15(3) clarifies
that, for the purposes of this clause, the provision of support services includes the
provision of early intervention services. This may include, for example, the
provision of advice on how to have discussions with managers and colleagues
regarding alleged relevant conduct. This support function promotes the object of this
Bill to support safe and respectful Commonwealth parliamentary workplaces.
109. Subclause 15(2) provides that the PWSS may provide support services in relation to
alleged relevant conduct to a person who is a current or former Commonwealth
parliamentary workplace participant in accordance with the table at this subclause.
110. The PWSS would be able to provide support services under this clause to both
current and former Commonwealth parliamentary workplace participants. This
would ensure that individuals are able to access support services in relation to
alleged relevant conduct that occurred in the course of performing their duties or at a
relevant Commonwealth parliamentary workplace, as relevant, even if they have
since left that position. For example, if a person who alleges they were sexually
assaulted in the course of performing their role as a MOPS employee was terminated
before making the allegation, or was terminated after making the allegation, the
PWSS would still be able to provide support even though the individual was not
currently a MOPS employee.
111. This subclause applies to support services in relation to alleged relevant conduct. As
this subclause applies to alleged misconduct, there is no need for an individual to
prove, to a civil or criminal standard, that particular relevant conduct in order to
access the PWSS's support services. The PWSS would have a discretion in the
provision of support services depending on the circumstances, including the form of
support services to be provided. This recognises that the services that may be
appropriately offered and provided would vary depending on the circumstances of
each case.
112. Item 1 of the table at subclause 15(2) provides for support services in relation to core
participants. Item 1 provides that the PWSS may provide support services to a
current or former core participant in relation to alleged relevant conduct that was
engaged in by, or that affected, that person and that occurred in the course of the
person performing duties as a core participant. Under this Item, the PWSS may
provide support services to both a core participant who is alleged to have engaged in
relevant conduct and a core participant who is affected by relevant alleged conduct.
For example, if a parliamentarian were alleged to have bullied a MOPS employee in
the course of the parliamentarian performing their duties as a parliamentarian, the
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PWSS could provide support services to both the parliamentarian and the MOPS
employee.
113. Items 2 and 3 of the table at subclause 15(2) provide for support services in relation
to non-core participants. The meaning of the term 'non-core participant' is discussed
at clause 5. Where the alleged relevant conduct that affected the non-core participant
was engaged in by a core participant in the course of the person performing duties as
a core participant, item 2 provides that the PWSS may provide support services to
the non-core participant. For example, if a MOPS employee were alleged to have
harassed a journalist in the Federal Press Gallery, the PWSS could provide support
services to the journalist.
114. Item 3 of the table provides that the PWSS may provide support services to a
non-core participant in relation to alleged relevant conduct that was engaged in by,
or that affected, the person and that occurred in the course of that person performing
duties as a non-core participant at a place covered by paragraph (a) or (b) of the
definition of 'Commonwealth parliamentary workplace'. This provides an
appropriate nexus between the alleged relevant conduct and Commonwealth
parliamentary workplaces. For example, the PWSS could provide support services to
a café worker who was sexually harassed at Australian Parliament House.
Clause 16 Complaint resolution function
115. Clause 16 provides for the complaint resolution function of the PWSS.
116. Subclause 16(1) provides that the PWSS's complaint resolution function is to
provide services to current and former Commonwealth parliamentary workplace
participants under subclause 16(2) to facilitate the independent resolution of
complaints involving alleged relevant conduct. This function is described in the Set
the Standard Report as 'pathway 2'.
117. It is intended that, under this function, the PWSS would be empowered to work with
relevant parties to attempt to resolve complaints regarding certain alleged relevant
conduct. This may include, for example, assisting an individual to raise an issue
directly in the workplace, facilitating informal discussion or conciliation or
conducting mediation to resolve complaints by voluntary agreement between the
parties. In particular, subclause 16(4) clarifies that for the purposes of this clause, the
provision of services to facilitate the independent resolution of complaints includes
the provision of early intervention services. This may include, for example,
facilitating a conversation between parties to resolve an allegation of bullying.
118. It is intended that complaint resolution under this clause would be informal and
flexible. This process would provide an opportunity for Commonwealth
parliamentary workplace participants to resolve complaints in an informal and quick
manner facilitated by the PWSS. This is intended to promote the object of this Bill to
support safe and respectful Commonwealth parliamentary workplaces.
119. Subclause 16(2) provides that the PWSS may provide services to facilitate the
independent resolution of complaints involving alleged relevant conduct to both:
36
a. one or more current or former Commonwealth parliamentary workplace
participants who are alleged to have engaged in the relevant conduct (the first
party), and
b. one or more current or former Commonwealth parliamentary workplace
participants who are affected by the alleged relevant conduct (the second
party)
in accordance with the table at this subclause.
120. Item 1 of the table provides for complaint resolution services where a current or
former core participant is alleged to have engaged in the relevant conduct in the
course of performing duties as a core participant, and that conduct has affected a
current or former core or non-core participant. Item 1 provides that, in these
circumstances, the PWSS may provide complaint resolution services. Item 2 of the
table provides for complaint resolution services where a current or former non-core
participant is alleged to have engaged in the relevant conduct in the course of
performing duties as a non-core participant, and the alleged relevant conduct
occurred either in the parliamentary precincts or at a Commonwealth premises, and
that conduct has affected a current or former core or non-core participant.
121. The PWSS would be able to provide complaint resolution services under this clause
to both current and former Commonwealth parliamentary workplace participants.
This would ensure that individuals are able to access complaint resolution services in
relation to alleged relevant conduct that occurred during the course of their
employment or engagement as a Commonwealth parliamentary workplace
participant. In addition, Commonwealth parliamentary workplace participants would
not be excluded from accessing complaint resolution services if the person they
alleged had engaged in the conduct had since left a Commonwealth parliamentary
workplace.
122. The PWSS would have a discretion as to whether to provide complaint resolution
services in any given instance, and what services should be provided. This
recognises that the services that may be appropriately offered and provided would
vary depending on the circumstances of each case. In particular, the practicality of
providing complaint resolution services could be limited where one or more parties
involved are former Commonwealth parliamentary workplace participants.
123. This subclause applies to complaint resolution services in relation to alleged relevant
conduct. The meaning of 'relevant conduct' is discussed at clause 5. As this
subclause applies to alleged conduct, there is no need for an individual to prove, to a
civil or criminal standard, that particular relevant conduct in order to access the
PWSS's complaint resolution services.
124. Subclause 16(3) clarifies the scope of the PWSS's complaint resolution function.
This subclause provides that it is not a function of the PWSS under this clause to
investigate a complaint, make a finding of fact or arbitrate any matter. This reflects
that the power to make findings that a person has engaged in civil or criminal
conduct is a matter for the courts. This also reflects that complaint resolution under
this clause would be on a voluntary basis. The PWSS would have no power to
require Commonwealth parliamentary workplace participants to participate in
37
complaint resolution, or to take any action in response to a refusal to participate in
these processes.
125. This subclause does not prevent the PWSS from seeking information for the
purposes of providing a complaint resolution service. Accordingly, the PWSS may
seek information for the purposes of providing its complaint resolution service. For
example, it may be necessary for the PWSS to seek preliminary information in order
to determine whether the PWSS is able to provide complaint resolution services
under subclause 16(2), such as information as to whether the alleged relevant
conduct was engaged in in the course of a core or non-core participant performing
their duties.
126. The PWSS will not be able to require Commonwealth parliamentary workplace
participants, other than parliamentarians (clause 64 of the Bill refers), to provide
information for the purposes of the PWSS's complaint resolution service. For
example, the PWSS may request a MOPS employee who has agreed to participate in
a complaint resolution service to provide information to support the provision of that
service, however the PWSS would not be able to require the MOPS employee to
provide that information.
Clause 17 Policy development function
127. Clause 17 provides for the policy development function of the PWSS.
128. Subclause 17(1) provides that the PWSS's policy development function is to
determine policies and procedures:
a. relating to workforce strategies for the employment of MOPS employees
b. for the purposes of supporting parliamentarians to discharge their obligations
in relation to the employment of MOPS employees
c. relating to work health and safety matters that arise in connection with the
duties of parliamentarians, MOPS employees or designated workers, or
d. for the purposes of supporting Commonwealth parliamentary workplaces to be
safe and respectful.
129. It is intended that, under this function, the PWSS would be able to determine
policies and procedures to support the development of a professionalised
Commonwealth parliamentary workforce. Clear, consistent and best-practice
workplace standards would standardise employment practices, support
Commonwealth parliamentary workplace participants and promote safe and
respectful workplaces.
130. Paragraphs (a) and (b) pertain to matters relating to the employment of MOPS
employees. Paragraph (c) relates to the duties of parliamentarians, MOPS employees
and designated workers in relation to work health and safety. The focus of these
paragraphs on MOPS employees, parliamentarians and designated workers
complements the focus of the PWSS on providing human resources support to these
cohorts. Under these paragraphs of subclause 17(1), the PWSS could determine
38
policies and procedures relating to matters such as standardised recruitment
practices, professional development, performance management, and work health and
safety.
131. The broader scope of paragraph (d), which applies to Commonwealth parliamentary
workplaces, reflects the objects of the Bill to support safe and respectful workplaces
for all Commonwealth parliamentary workplace participants, and to support positive
cultural change in those workplaces. Under this paragraph of subclause 17(1), the
PWSS could determine matters relating to cultural transformation and respectful
workplace behaviour. For example, the PWSS could determine respectful workplace
behaviour policies or alcohol use policies.
132. Policies and procedures determined by the PWSS under subclause 17(1) are not
legislative instruments, except to the extent they are determined to be a mandatory
policy or procedure under subclause 17(5).
133. Subclause 17(2) clarifies the scope of the PWSS's policy development function.
This subclause provides that it is not a function of the PWSS under subclause 17(1)
to determine a policy or procedure:
a. that applies only to a specified Commonwealth parliamentary workplace
participant, or
b. for the terms or conditions of employment of a MOPS employee.
134. Paragraph 17(2)(a) reflects that policies and procedures determined under this clause
are intended to be of general application, and it would not be appropriate for the
PWSS to impose particular requirements on an individual Commonwealth
parliamentary workplace participant. This would not be consistent with the
impartiality of the PWSS.
135. Paragraph 17(2)(b) reflects that policies or procedures relating to the terms or
conditions of employment of a MOPS employee would remain the responsibility of
the Department of Finance. Following the creation of the PWSS by this Bill, the
Department of Finance would maintain responsibility for the Commonwealth
Members of Parliament Staff Enterprise Agreement and terms and conditions of
employment, such as in relation to remuneration, allowances and leave matters.
136. Subclauses 17(3) to (6) provide for the CEO to determine mandatory policies or
procedures. Subclause 17(3) provides that a policy or procedure determined under
subclause 17(1) may declare that it is a mandatory policy or procedure.
137. The ability of the CEO to determine that certain policies or procedures are
mandatory would allow the CEO to require compliance with essential policies and
procedures, promoting standardisation and consistency across Commonwealth
parliamentary workplaces.
138. Subclause 17(5) provides that a mandatory policy or procedure must be determined
by the CEO by legislative instrument. Accordingly, mandatory policies or
procedures determined under this clause would be subject to disallowance. This
would allow for appropriate parliamentary scrutiny of mandatory policies and
39
procedures, noting the application of these policies and procedures to
parliamentarians and the consequences of non-compliance.
139. Before the CEO determines a mandatory policy or procedure, subclause 17(6)
provides that the CEO must:
a. consult the PWSS Consultative Committee about the proposed mandatory
policy or procedure
b. have referred the proposed mandatory policy or procedure to the PWSS
Advisory Board under clause 44, and
c. one of the following must have occurred:
i. the PWSS Advisory Board was taken to have approved the proposed
mandatory policy or procedure under subclause 44(4), or
ii. the PWSS Advisory Board has notified the CEO that it has decided to
approve the proposed mandatory policy or procedure.
140. This consultation requirement would ensure that proposed mandatory policies or
procedures are best practice, fit-for-purpose, effective and appropriately adapted to
the unique circumstances of Commonwealth parliamentary workplaces. In addition,
given the consequences that apply to non-compliance for parliamentarians under
subclause 17(4), approval by the PWSS Advisory Board would provide a level of
assurance that the requirements determined by the CEO are reasonable and
appropriate. These consultation requirements are discussed further at clauses 44
and 58.
141. Subclause 17(4) provides that a parliamentarian must comply with a requirement of
a mandatory policy or procedure that applies to the parliamentarian. The note under
subclause 17(4) notes that Division 4 of this Part provides that the PWSS may take
action in relation to a parliamentarian who fails to comply with such a requirement.
Under Division 4, the PWSS must inform the Leader of a Parliamentary party of a
failure to comply with a mandatory policy or procedure by parliamentarians who are
members of their party.
142. Subclause 17(7) provides that the PWSS must publish a policy or procedure
determined under this clause on its website. This would support the transparency of
policies and procedures that parliamentarians, MOPS employees, designated
workers, and other Commonwealth parliamentary workplace participants must
comply with, and would increase the accountability of these cohorts.
Clause 18 Education and training functions
143. Clause 18 provides for the education and training function of the PWSS.
144. Subclause 18(1) provides that the PWSS has the following education and training
functions:
40
a. to provide and arrange for education of, and for informing, Commonwealth
parliamentary workplace participants about:
i. the functions of the PWSS
ii. work health and safety matters that arise in connection with the duties
of parliamentarians, MOPS employees or designated workers
iii. 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
iv. for parliamentarians and MOPS employees--matters relating to the
employment of MOPS employees or establishing and maintaining safe
and respectful workplaces
b. without limiting paragraph (a), to provide, or arrange for the provision of,
education or training programs to parliamentarians and MOPS employees
about matters referred to in that paragraph;
c. to develop and maintain, and make information available in relation to, a
learning and professional development program for MOPS employees.
145. It is intended that, under this function, the PWSS would be able to develop, provide
and arrange education or training to support the development of a professionalised,
safe and respectful Commonwealth parliamentary workforce. For example, under
this subclause, the PWSS could provide or arrange for the provision of induction
programs, safe and respectful workplace training, learning and professional
development programs, sexual harassment training, people management training and
WHS training.
146. Subclause 18(1)(c) would provide the PWSS with the function of developing and
maintain a learning and professional development program for MOPS employees,
consistent with the Set the Standard Report. This would enable MOPS employees to
develop core competencies, capabilities and skills.
147. For 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.
148. Under this subclause, the PWSS may either provide education or training directly, or
arrange for the provision of education and training by third party providers. In
addition, while the PWSS would have these functions in relation to education and
training, it is not intended that the PWSS would be the sole education and training
provider for Commonwealth parliamentary workplace participants. For example, the
parliamentary departments would continue to be able to provide education and
training to their employees.
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149. Subclauses 18(2) to (5) provide for the CEO to determine mandatory education or
training programs, and requirements for the completion of such programs.
Subclause 18(2) provides that the CEO may determine that:
a. a specified education or training program under paragraph 18(1)(b) is a
mandatory education or training program, and
b. requirements for the completion of a mandatory education or training
program.
150. Requirements for the completion of a mandatory program may include, for example,
requirements to undertake the program at particular intervals, such as once a year.
151. The ability of the CEO to determine that certain education or training programs are
mandatory, or determine requirements for their completion, would allow the CEO to
require parliamentarians and MOPS employees to complete essential education or
training programs, and thereby promote standardisation and consistency. It is
intended this would only apply to key education or training programs, such as safe
and respectful workplace training.
152. Mandatory education or training programs, or requirements, must be determined by
the CEO by legislative instrument. Accordingly, mandatory programs and
requirements determined under this clause would be subject to disallowance. This
would allow for parliamentary scrutiny of programs and requirements, noting the
application of education and training programs to parliamentarians and the
consequences of non-compliance.
153. Subclause 18(4) provides that the CEO must not determine that an education or
training program is a mandatory education or training program only for a specified
parliamentarian or MOPS employee. This reflects that education or training
programs determined under this clause are intended to be of general application.
While the PWSS may recommend that a parliamentarian or MOPS employee
undertake particular training in accordance with its review function under clause 19,
and it would also be open for a parliamentarian to require that a particular staff
member complete certain training, it is not intended that the PWSS would have such
a role.
154. Before the CEO determines a mandatory education or training program or
requirements for completing such a program, subclause 18(5) provides that the CEO
must:
a. consult the PWSS Consultative Committee about the proposed program or
requirements
b. have referred the proposed program or requirements to the PWSS Advisory
Board under clause 44, and
c. one of the following must have occurred:
i. the PWSS Advisory Board was taken to have approved the proposed
program or requirements under subclause 44(4), or
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ii. the PWSS Advisory Board has notified the CEO that it has decided to
approve the proposed program or requirements.
155. The consultation and approval requirements would give assurance that proposed
mandatory programs or requirements are best practice, fit-for-purpose, effective and
appropriately adapted to the unique circumstances of Commonwealth parliamentary
workplaces. In addition, given the consequences that apply to non-compliance for
parliamentarians under subclause 18(3), approval by the PWSS Advisory Board
would provide a level of assurance that the programs or requirements determined by
the CEO are reasonable and appropriate. These requirements are discussed further at
clauses 44 and 58.
156. Subclause 18(3) provides that a parliamentarian must comply with a requirement for
the completion of a mandatory education or training program that applies to the
parliamentarian. The note under subclause 18(3) notes that Division 4 of this Part
provides that the PWSS may take action in relation to a parliamentarian who fails to
comply with such a requirement. Under Division 4, the PWSS may include details
about a failure to comply with a requirement for the completion of a mandatory
education or training program in a public report and must inform the Leader of a
Parliamentary party of such non-compliance by parliamentarians who are members
of their party.
Clause 19 Review function
157. Clause 19 provides for the review function of the PWSS.
158. Subclause 19(1) provides that the PWSS has the following review function:
a. to review complaints made to the PWSS about alleged relevant conduct under
subclause 19(2), and
b. to make recommendations in relation to alleged relevant conduct following
such review.
159. The PWSS's review function under this clause would reflect the existing PWSS's
review function under the Parliamentary Service Determination. This 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
Standards Commission (in response to recommendation 22 of the Set the Standard
Report). The Report describes the proposed Commission's 'formal complaint,
investigation and enforcement' function as 'pathway 3'.
160. The review function under this clause is separate to the complaint resolution
function under clause 16. It would be akin to an inquiry function, with a capacity to
make recommendations and prepare a report. The complaint resolution function
under clause 16 on the other hand is intended to provide an informal and flexible
complaint resolution mechanism.
161. The functions under this clause apply to alleged relevant conduct. The meaning of
'relevant conduct' is discussed at clause 5. As this subclause applies to alleged
misconduct, there is no need for an individual to prove, to a civil or criminal
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standard, that particular relevant conduct in order for the PWSS to be able to review
complaints under this clause.
162. Subclause 19(2) provides that the PWSS may review a complaint made to the PWSS
about alleged relevant conduct engaged in by one or more current or former
Commonwealth parliamentary workplace participants (the first party) that affects
one or more current or former Commonwealth parliamentary workplace participants
(the second party), in accordance with the table at that subclause.
163. Under this subclause, the PWSS may review certain complaints about alleged
relevant conduct that affects parliamentarians, MOPS employees or Parliamentary
Service employees. Item 1 of the table provides that the PWSS may undertake a
review of a complaint about alleged relevant conduct engaged in by a
parliamentarian or MOPS employee 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. Item 2 of the table provides that the PWSS may
undertake a review of a complaint about alleged relevant conduct engaged in by a
non-core participant 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 covered by paragraph (a) of the
definition of 'Commonwealth parliamentary workplace', being the parliamentary
precincts.
164. The application of the review function would be expanded from the application of
the review function of the existing PWSS. In addition to applying to
parliamentarians and MOPS employees, the statutory PWSS would be able to
undertake reviews where the relevant conduct concerns complaints by a
Parliamentary Service employee and where the relevant conduct is engaged in by a
non-core participant and affects a parliamentarian, MOPS employee or a
Parliamentary Service employee.
165. The PWSS has discretion to undertake a review under this subclause. For example,
the PWSS may decline to undertake a review if the relevant alleged conduct were
being considered through other mechanisms, such as through a civil process (such as
conciliation through the Australian Human Rights Commission) or a criminal
investigation. Where the alleged relevant conduct is criminal, it is intended the
PWSS would have appropriate support and referral procedures in place.
166. The PWSS would be able to seek information for the purposes of undertaking a
review of a complaint under this clause, including personal information concerning
the alleged relevant conduct.
167. It is intended that the statutory PWSS would undertake a review under this clause
consistent with the processes, policies and procedures of the existing PWSS.
168. The note under subclause 19(3) clarifies that the rules of procedural fairness would
apply in relation to a review. Accordingly, the PWSS should ensure that affected
parties are provided an opportunity to review and make submissions on any adverse
commentary that may be considered by the review.
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169. Subclause 19(3) provides that if the PWSS upholds a complaint following a review
under subclause 19(2), the PWSS must prepare a report of the review. A report
prepared under this section is intended to provide a record of the PWSS's review and
any recommendations. Consistent with the existing PWSS's policies and procedures,
it is intended that the statutory PWSS would provide a copy of the report, as
appropriate, to the complainant, respondent and, to the extent the respondent is not a
parliamentarian, to their employer.
170. In accordance with paragraph 19(1)(b), the PWSS may make recommendations in
relation to the alleged relevant conduct following such a review. The types of
recommendations are not prescribed. It is intended that any recommendation would
be commensurate to any finding of relevant misconduct. Recommendations may
include, for example, recommendations that individuals undertake particular
training, apologise, or that they be terminated (in the case of a staff member).
Recommendations under this clause may be directed at the individual respondent or
at other parties, such as to the respondent's employer.
171. Subclauses 19(4) and (5) provide for certain processes to be undertaken to support
implementation of a PWSS recommendation where a report includes a
recommendation for a parliamentarian. A recommendation for a parliamentarian
may include a recommendation to a parliamentarian as a respondent to a complaint,
or a recommendation to a parliamentarian as an employer of a MOPS employee.
172. The PWSS would have no power to compel or directly impose a sanction upon a
parliamentarian under this clause. The design of the PWSS's function in this way
balances the need for accountability with respect for the Parliament. Independence
and certainty that there will be consequences for unacceptable behaviour in the
workplace would be critical to a process that is trusted and an environment in which
people feel safe to report relevant conduct.
173. Subclause 19(4) provides that if a report under subclause 19(3) includes a
recommendation for a parliamentarian, the PWSS must engage with the
parliamentarian in relation to implementing the recommendation. This may include,
for example, engaging with the parliamentarian to support them to undertake
particular training or to support discussions regarding the suspension or termination
of one of their employees.
174. Subclause 19(5) provides that if a recommendation made to a parliamentarian is not
implemented, the PWSS must give a copy of the report to the relevant Presiding
Officer in accordance with any procedure that has been determined by the Senate or
the House of Representatives, as the case requires. This is intended to promote
accountability of parliamentarians, including for their conduct as individuals and as
employers, as relevant, and to support implementation of the PWSS's
recommendations by parliamentarians.
175. Subclause 19(6) clarifies that this clause does not limit clauses 15 or 16. This is to
ensure that clause 19 does not limit the interpretation of clauses 15 or 16. It is
intended that the PWSS will be able to review a complaint in the course of providing
services under clauses 15 or 16.
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176. The note under subclause 19(6) provides that the PWSS must have regard to certain
matters before disclosing information obtained in the course of performing its
functions under this clause. Subclause 61(6) provides that before disclosing such
information to another Commonwealth entity or an individual who holds a relevant
office or appointment, 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).
Clause 20 Independence of the PWSS
177. Clause 20 provides for the independence of the PWSS.
178. This clause provides that, subject to this Bill and other laws of the Commonwealth
the PWSS has discretion in the performance or exercise of its functions and powers,
and is not subject to direction by any person in relation to the performance or
exercise of those functions or powers.
179. This clause is consistent with clause 28, which provides for the independence of the
CEO. In accordance with this clause, the PWSS would have complete discretion in
performing its functions and exercising its powers under this Bill. The PWSS would
not be subject to direction from anyone in doing so, including the government of the
day. As the CEO forms part of the PWSS in accordance with clause 12, this clause
does not affect the ability of the CEO to direct and manage the activities of staff of
the PWSS.
180. This clause gives the PWSS the necessary independence to provide trusted and
impartial services to parliamentarians, MOPS employees and other Commonwealth
parliamentary workplace participants, free from actual or perceived political
influence.
Clause 21 PWSS has privileges and immunities of the Crown
181. Clause 21 provides that the PWSS has the privileges and immunities of the Crown in
right of the Commonwealth. Notwithstanding this clause, clause 8 would provide
that the Bill binds the Crown in right of the Commonwealth.
Division 3--Reports by the PWSS
Clause 22 Reports by the PWSS
182. Clause 22 provides for the PWSS's function to prepare and publish reports.
183. The PWSS may prepare two forms of reports under this clause: discretionary reports
under subclause 22(1) and mandatory annual reports under subclause 22(2).
184. Reporting by the PWSS supports improved transparency and would help drive
cultural change across Commonwealth parliamentary workplaces. For example,
increased transparency may enable the PWSS to more effectively influence
behaviour in Commonwealth parliamentary workplaces. Such reports would also
provide for transparency and accountability in the exercise of the PWSS's functions.
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185. Subclause 22(1) provides that the PWSS may prepare reports about matters relating
to the functions of the PWSS or the CEO. For example, the PWSS could undertake
reviews or in-depth work into matters relating to its functions, such as systemic
cultural reviews within Commonwealth parliamentary workplaces.
186. This subclause would also enable the PWSS to prepare a report on its review of
resourcing of parliamentarian offices, as recommended in the MOPS Act Review. In
accordance with the MOPS Act Review's recommendation, this would include a
review of the factors affecting workloads, particularly in electorate offices, including
support systems and processes, and external factors such as the adequacy of
government services and electorate composition, to inform an evidence-based
consideration of office and staffing resources.
187. Subclause 22(2) provides that the PWSS must prepare a report containing
information on the below matters at least once each financial year:
a. gender and diversity characteristics of parliamentarians and MOPS employees
b. gender equality in relation to remuneration for parliamentarians and MOPS
employees
c. the employment of persons under the MOPS Act and the engagement of
designated workers
d. progress in the prevention of, and responses to, alleged relevant conduct that is
engaged in:
i. in the course of a core participant performing duties as a core
participant; or
ii. at places covered by paragraph (a) or (b) of the definition of
Commonwealth parliamentary workplace
e. the culture and performance of workplaces covered by paragraph (a) or (b) of
the definition of Commonwealth parliamentary workplace, and
f. work health and safety matters connected with the duties of parliamentarians,
MOPS employees and designated workers.
188. This reporting obligation does not limit the ability of the PWSS to prepare
discretionary reports under subclause 22(1).
189. Item 6 of Schedule 2 to the Parliamentary Workplace Support Service
(Consequential Amendments and Transitional Provisions) Bill 2023 provides that
paragraphs (a) to (c) and (e) to (f) of subclause 22(2) of this Bill would apply in
relation to financial years starting on or after 1 July 2024, and that paragraph (d) of
subclause (22)(2) of this Bill would apply in relation to financial years starting on or
after 1 July 2025. As it is expected that the PWSS would be established in the
2023-24 financial year, the operation of these transitional provisions would have the
effect that the first reports the PWSS prepares on those matters would contain more
meaningful information.
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190. In addition, subclause 22(3) provides that the PWSS rules may prescribe details
about a matter mentioned in paragraphs 22(2)(a) to (f) that must or must not be
included in a mandatory report. This provides flexibility in the particular details
which must be included in these reports, in order to ensure the reports are most
appropriately focused on key issues of interest and support the objects of this clause
and the objects of the PWSS more broadly. This may include, for example,
prescribing which diversity characteristics of parliamentarians and MOPS
employees must be reported on under paragraph 22(2)(a) or prescribing that
particular work health and safety matters are out of scope of paragraph 22(2)(f).
191. This mandatory reporting function reflects recommendations 7 and 19 of the Set the
Standard Report, which recommended that the Office of Parliamentarian Staffing
and Culture should report annually on diversity characteristics of parliamentarians
and MOPS employees, as well as regularly report on key indicators to monitor
progress in the prevention of and responses to bullying, sexual harassment and
sexual assault. This regular reporting would allow the PWSS to identify emerging
trends and review the success of cultural change initiatives.
192. In addition, subclause 22(9) provides that a report under this clause must not include
personal information. This is subject to clause 23, which provides for circumstances
in which the CEO may determine that the PWSS will include details of certain
non-compliance by parliamentarians in a public report. Personal information
includes information that concerns an identifiable individual, or an individual who is
reasonably identifiable. This protects the rights of individuals to privacy.
193. The note under subclause 22(9) clarifies that information that is de-identified, within
the meaning of the Privacy Act, is not personal information. This is because
de-identified information is not about an identified or reasonably identifiable
individual. Accordingly, the PWSS would be able to publish de-identified
information, such as gender and diversity characteristics of parliamentarians and
MOPS employees.
194. Recognising that the PWSS would not hold all of the information required to be
included in a subclause 22(2) report, Part 7 provides for an information sharing
mechanism to facilitate the PWSS's access to this information. In particular,
clause 62 requires certain Commonwealth entities and officeholders to provide to the
PWSS information requested by the PWSS for the purposes of preparing a
clause 22(2) report, unless providing the information to the PWSS would constitute
an offence against a law of the Commonwealth.
195. Subclauses 22(4) to (7) relate to the publication and tabling of reports prepared
under this clause. The PWSS must publish mandatory annual reports under
subclause 22(2) on its website. This would support transparency and provide
Commonwealth parliamentary workplace participants and the public generally with
information on the conduct of Commonwealth parliamentary workplaces.
196. The PWSS has discretion to publish discretionary reports under subclause 22(1) on
its website. The PWSS would therefore be able to determine whether it is
appropriate to publish a report in the particular circumstances, including in
consideration of the subject matter of the report.
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197. Before publishing a report on its website, the PWSS must give the Minister a copy
of the report. The Minister must cause a copy of the report to be laid before each
House of the Parliament within 15 sitting days of that House after the day the
Minister receives the copy. The PWSS must not publish the report before the report
has been tabled in each House of the Parliament.
198. Subclause 22(8) clarifies that the reporting functions in this clause do not limit the
obligation under section 46 of the PGPA Act for Commonwealth entities to prepare
an annual report. Accordingly, consistent with the PGPA Act, the CEO, as the
accountable authority of the PWSS, must separately prepare and give an annual
report, including the PWSS's annual performance statements and annual financial
statements, each financial year.
199. Subclause 22(10) clarifies that a report under this clause is not a periodic report for
the purposes of section 34C of the Acts Interpretation Act. This reflects that a report
under this subclause is not a regular report regarding the administration, operation or
working of this Bill.
Division 4--Taking action against parliamentarians for certain non-compliance
Clause 23 Including details of certain non-compliance by parliamentarians in a
public report
200. Clause 23 provides that the CEO may determine that the PWSS will include details
of certain non-compliance by parliamentarians with certain duties in a public report.
201. Subclause 23(2) provides that the CEO may determine that the PWSS will include
details about a failure of a parliamentarian to comply with certain duties in a public
report. For the purposes of this clause, details about the failure may include the name
of the parliamentarian, and other details as determined by the CEO. While reports
prepared under clause 22 must not generally include personal information,
subclause 22(9) states that this is subject to this clause.
202. Clause 5 provides that a 'public report' is a report under clause 22 of the Bill that is
published by the PWSS on its website.
203. Including information about parliamentarian non-compliance in a public report
promotes transparency and accountability, and supports the PWSS to drive positive
cultural change, including behavioural change, in Commonwealth parliamentary
workplaces. Such a lever would also encourage parliamentarians to comply with
their obligations under the Bill.
204. Subclause 23(1) provides that this clause applies to three forms of non-compliance
by a parliamentarian:
a. a failure to comply with a request for information under subclause 64(1)
within the period specified in the request
b. a failure to comply with a provision of the MOPS Act that requires the
parliamentarian to consult with the PWSS before terminating the employment
of a MOPS employee, or
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c. a failure to comply with a requirement determined under paragraph 18(2)(b)
(completion of mandatory training or education program) that applies to the
parliamentarian.
205. Accordingly, this clause does not apply to non-compliance with other mandatory
duties, such as the requirement to comply with a mandatory policy or procedures
under clause 17. This reflects the particular seriousness of non-compliance with
these three duties. For example, a failure to comply with a request for information
under clause 64 could undermine the ability of the PWSS to undertake its functions,
including its human resources and complaint resolution functions. A failure to
comply with a requirement in the MOPS Act to consult the PWSS before
terminating the employment of a MOPS employee would undermine procedural
fairness. In addition, a failure to comply with a requirement to complete a mandatory
training or education program, particularly if this were to occur on a systemic level,
would undermine the role of the PWSS in supporting safe and respectful
workplaces.
206. In addition, this clause only enables the CEO to include information regarding
non-compliance by a parliamentarian. It does not enable the CEO to include
information regarding non-compliance by MOPS employees. This reflects the key
role that parliamentarians play within Commonwealth parliamentary workplaces,
and the particular importance of parliamentarians leading by example in these
workplaces. It also reflects that it is the role of a parliamentarian as an employer,
rather than the PWSS, to manage the non-compliance of their staff with a mandatory
requirement.
207. In considering whether details should be included in a public report, subclause 23(4)
provides that the CEO may have regard to any relevant matter and must have regard
to the following:
a. the nature of the failure and the circumstances in which it occurred
b. the reason (if any) given by the parliamentarian for the failure
c. any previous failure by the parliamentarian of a kind covered by
subclause 23(1)
d. the consequences of the failure
e. if the failure relates to a person other than the parliamentarian--whether the
inclusion of the details would identify the other person, and
f. any submissions made by the parliamentarian or a person who could be
identified by the details.
208. These factors would ensure the CEO is required to consider whether determining to
include details of the non-compliance would be appropriate in all the circumstances
of the case. This would promote proportionality and avoid parliamentarians being
noted in a public report in relation to relatively minor or technical incidences of
non-compliance. In particular, the CEO would be able to consider the seriousness of
the particular incident of non-compliance, with regard to its nature, consequences
50
and any extenuating circumstances. It may also be relevant for the CEO to consider
whether the parliamentarian has a history of non-compliance, whether with that
particular obligation or other obligations under subclause 23(1), which may indicate
systemic cultural or behavioural issues.
209. For example, if a parliamentarian does not complete a mandatory training program
provided online, but had been travelling to a remote area with limited internet access
and had made attempts to complete the training program, the CEO may determine
not to report the parliamentarian's non-compliance. However, if a parliamentarian
had failed to complete that training program despite being given multiple
opportunities to do so, the CEO may determine to report that non-compliance.
210. Subclauses 23(5) to (8) afford procedural fairness and support consultation in
respect of a potential decision by the CEO to include details of the non-compliance
in a public report.
211. Subclause 23(5) provides that before the CEO makes a determination, the CEO must
give the relevant parliamentarian a written notice stating that the CEO is proposing
for the PWSS to include details of the failure in a public report, and inviting the
parliamentarian to make submissions to the CEO in relation to the proposal within a
reasonable period specified in the notice.
212. Providing a parliamentarian with an opportunity to make submissions to the CEO in
relation to the proposal ensures the parliamentarian is afforded procedural fairness.
Paragraph 23(4)(f) would require the CEO to consider any submissions made under
this subclause in considering whether details should be included in a public report.
213. Subclause 23(7) provides that the CEO must similarly provide a written notice
informing an individual of the proposed determination and inviting submissions
within a reasonable specified period, where the parliamentarian's failure relates to
another person and the inclusion of details about that failure in the public report
could identify the person. This may include, for example, a MOPS employee who
was terminated where the parliamentarian had failed to comply with a provision of
the MOPS Act requiring the parliamentarian to consult the PWSS before terminating
their employment. Paragraph 23(4)(f) would require the CEO to consider any
submissions made under this subclause in considering whether details should be
included in a public report.
214. Although the CEO must consider whether the inclusion of details would identify
another person and the submissions made under this subclause in deciding whether
to make a determination, the mere fact that an individual may be identified is not
itself determinative. Rather, the CEO must consider these submissions in light of all
of the circumstances of the case.
215. Following the making of a determination by the CEO under subclause 23(2),
subclauses 23(6) and (7) provide that the CEO must give the parliamentarian and
any other person captured by subclause 23(7) a written notice informing them of the
CEO's decision on the proposal. This notification is intended to occur prior to the
publication of the relevant report. This notification would ensure that the
parliamentarian and any other affected person is informed of the outcome of the
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CEO's consideration before details of the non-compliance are published, and would
provide a record of the decision.
216. In addition, if the parliamentarian is a member of a Parliamentary party,
subclause 23(3) provides that the CEO must inform the Leader of that party of the
CEO's determination. This notification must occur prior to the public report being
given to the Minister for tabling under subclause 22(5). This promotes accountability
and would ensure that Leaders of Parliamentary parties are aware of, and are able to
respond to, instances of non-compliance within their parties.
Clause 24 Notifying parliamentary Leaders of certain non-compliance
217. Clause 24 provides that the CEO must inform the Leader of a Parliamentary party of
certain non-compliance by parliamentarians who are members of their party.
218. Subclause 24(1) provides that this clause applies if a parliamentarian:
a. fails to comply with a request for information under subclause 64(1) within the
period specified in the request
b. fails to comply with a provision of the MOPS Act that requires the
parliamentarian to consult with the PWSS before terminating the employment
of a MOPS employee
c. fails to comply with a requirement of a mandatory policy or procedure that
applies to the parliamentarian, or
d. fails to comply with a requirement determined under paragraph 18(2)(b)
(completion of mandatory training or education program) that applies to the
parliamentarian.
219. If the parliamentarian who fails to comply with these obligations is a member of a
Parliamentary party, subclause 24(2) provides that the CEO must inform the Leader
of that party of that failure. This would apply to all leaders of Parliamentary parties,
including Leaders of the Government, the Opposition and minor parties. As
independents do not have a party leader, this provision would not apply in relation to
non-compliance by independent parliamentarians.
220. Notification to Leaders of Parliamentary parties of non-compliance by parliamentary
members of their party promotes accountability and would ensure that Leaders of
Parliamentary parties are aware of, and are able to respond to, instances of
non-compliance within their parties. Such a lever would also encourage
parliamentarians to comply with their obligations under the Bill.
221. This clause would have the result that, even if the CEO does not determine to
include details of non-compliance with a request for information, termination of a
MOPS employee or a requirement to complete a mandatory training or education
program in a public report under clause 23, the CEO must inform the Leader of the
Parliamentary party, as relevant. This ensures that Leaders of recognised political
parties have visibility of all relevant instances of non-compliance by their
parliamentary members, even if they do not reach the threshold of seriousness to be
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included in a public report or if there are other reasons that the non-compliance is
not included in a public report (such as the impact on other individuals who may be
identified).
PART 3--CHIEF EXECUTIVE OFFICER OF THE PWSS
Division 1--Introduction
Clause 25 Simplified outline of this Part
222. Clause 25 provides a simplified outline of Part 3 of the Bill to assist the reader.
223. The outline notes that this Part provides that there is to be a Chief Executive Officer
of the PWSS, and notes that the CEO's functions are to manage the affairs of the
PWSS and to ensure the PWSS performs its functions. The CEO is to be appointed
by the Minister.
Division 2--Establishment and functions of the CEO
Clause 26 Chief Executive Officer
224. Clause 26 provides that there is to be a Chief Executive Officer of the Parliamentary
Workplace Support Service.
225. Paragraph 12(3)(b) of the Bill provides that the CEO of the PWSS would be the
accountable authority of the PWSS, in accordance with the PGPA Act. Part 2-2 of
that Act provides for the general duties that apply to all accountable authorities.
Accordingly, the CEO of the PWSS would be responsible for matters including:
a. promoting the proper use and management of public resources by the PWSS
b. promoting the achievement of the purposes of the PWSS
c. promoting the financial sustainability of the PWSS
d. establishing and maintaining appropriate systems of risk oversight and
management and internal control
e. preparing the corporate plan, budget estimates and annual report
f. keeping records, measuring and assessing performance and preparing annual
performance statements, and
g. keeping accounts and preparing annual financial statements.
226. The CEO would also be subject to the general duties of officials under Part 2-2 of
the PGPA Act, including the duty to disclose interests.
227. The note under clause 26 clarifies that, in this Bill, 'CEO' means the Chief
Executive Officer of the PWSS.
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Clause 27 Functions of the CEO
228. Clause 27 provides for the functions of the CEO of the PWSS.
229. This clause provides that the CEO's functions are:
a. to manage the affairs of the PWSS
b. to ensure the PWSS performs its functions, and
c. to perform any other functions conferred on them by this Bill or another law of
the Commonwealth.
230. In accordance with this clause, the CEO would be responsible for managing the
corporate and administrative affairs of the PWSS. For example, the CEO would be
responsible for managing the PWSS's finances, property and assets, overseeing
compliance with security requirements and ensuring corporate planning and
reporting is effective and timely.
231. Subclause 27(c) provides that the functions of the CEO include any other functions
conferred on the CEO by or under this Bill or another law of the Commonwealth. A
number of specific functions under this Bill are conferred directly on the CEO. For
example, under clause 17 of this Bill, the CEO is empowered to determine
mandatory policies or procedures by legislative instrument.
232. In accordance with subparagraph 12(3)(d)(ii), for the purposes of the finance law,
the purposes of the PWSS include the functions of the CEO referred to in this clause.
Clause 28 Independence of the CEO
233. Clause 28 provides for the independence of the CEO.
234. This clause provides that, subject to this Bill and other laws of the Commonwealth,
the CEO 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.
235. This clause is consistent with clause 20, which provides for the independence of the
PWSS. In accordance with this clause, the CEO would have complete discretion in
performing their functions and exercising their powers under this Bill. The CEO
would not be subject to direction from anyone in doing so, including the government
of the day, the PWSS Advisory Board or the PWSS Consultative Committee.
236. This clause would ensure that the CEO has the necessary independence to provide
trusted and impartial services to parliamentarians, MOPS employees and other
Commonwealth parliamentary workplace participants, free from actual or perceived
political influence.
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Division 3--Appointment of the CEO
Clause 29 Appointment of CEO
237. Clause 29 provides for the appointment of the CEO, including qualifications for
appointment, consultation requirements and the period of appointment.
238. Subclause 29(1) provides that the CEO is to be appointed by the Minister by written
instrument.
239. The note under subclause 29(1) clarifies that, in accordance with section 33AA of
the Acts Interpretation Act, the CEO may be reappointed. This recognises that it
may be desirable in certain circumstances for an individual to be reappointed as
CEO.
240. Subclause 29(2) specifies that a person must not be appointed as the CEO unless the
Minister is satisfied that the person has skills, knowledge or experience in one or
more of the following fields:
a. parliamentary workplaces
b. human resources, work health and safety or industrial relations, or
c. public administration or corporate governance.
241. These requirements would ensure that the person appointed as CEO holds the
necessary skillset to effectively perform their functions as the accountable authority
of the PWSS, and has relevant technical expertise and experience. This reflects the
specific functions that must be carried out personally by the CEO, including in
determining a mandatory policy or procedure under clause 17 or determining
mandatory education or training programs under clause 18. Experience in
parliamentary workplaces is not intended to require a person to have been a former
parliamentarian.
242. It would be a matter for the Minister to be satisfied that an appointee has the relevant
skills, knowledge or experience required under subclause 29(2). For example, a
difference of opinion expressed in the consultation process under subclause 29(3) as
to whether a proposed appointee met these criteria would not itself affect the validity
of an appointment under this clause, provided the Minister had a reasonable basis to
be satisfied that the appointee met these criteria.
243. Subclause 29(3) provides that, before the Minister appoints a person as CEO, the
Minister must consult with the Leader of each Parliamentary party that does not
form part of the Government and that has at least five members who are senators or
members of the House of Representatives. The Minister may also consult with such
other parliamentarians as the Minister considers appropriate.
244. The form of consultation under this subclause is to be determined by the Minister.
This requirement would promote consultation across the Parliament on CEO
appointees. This would support the appointment of a CEO who has the necessary
independence, endorsement and support to provide trusted and impartial services to
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all Commonwealth parliamentary workplace participants, noting the need for CEO
appointees to be able to develop effective working relationships with
parliamentarians and other Commonwealth parliamentary workplace participants
across the political spectrum.
245. Subclause 29(4) provides that the CEO holds office on a full-time basis. This
recognises the CEO's role as the accountable authority and agency head of the
PWSS, which reflects a full-time workload.
246. Subclause 29(5) provides that the CEO holds office for the period specified in the
instrument of appointment, which must not exceed five years. A five year term of
appointment is consistent with the Government's Merit and Transparency policy for
statutory appointments.
247. Subclause 29(6) provides that the appointment of a person as the CEO is not invalid
because of a defect or irregularity in connection with the person's appointment. A
defect or irregularity could include technical errors on the instrument of
appointment, such as wrongly placed signatures or incorrect dates. This would
provide certainty and ensure that decisions of the CEO are not invalidated merely
due to a minor technical error in the instruments of appointment. This clause is only
limited to the appointment of the person as CEO and would not otherwise limit
review of conduct of the CEO.
Clause 30 Appointment of acting CEO
248. Clause 30 provides for the appointment of an acting CEO.
249. Subclause 30(1) provides that the Minister may appoint a person to act as CEO
during:
a. a vacancy in the office of the CEO (whether or not an appointment has
previously been made to the office), or
b. any or all periods when the CEO is absent from duty or from Australia, or is
unable to perform the duties of the office for any reason.
250. Such an appointment must be by written instrument.
251. This clause provides appropriate arrangements to ensure the functions of the CEO
can be exercised during any periods in which the CEO may be unavailable. This
includes periods of personal and recreational leave for the CEO. In addition, given
the need for consultation under subclause 29(3) across the Parliament prior to
making a substantive appointment of a CEO, this clause ensures an acting CEO may
be appointed in order to manage the PWSS if there is a delay in finalising a CEO
appointment (including for the initial appointment of the CEO).
252. The note under subclause 30(1) clarifies 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.
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253. Subclause 30(2) provides that the same qualification requirement for a substantive
appointment as CEO (as specified in clause 29) applies to an acting appointment.
This subclause would ensure that a suitably qualified person occupies the role of
acting CEO.
Division 4--Terms and conditions for the CEO
Clause 31 Remuneration of the CEO
254. Clause 31 provides for the means for determining the remuneration and allowances
for the CEO.
255. Subclause 31(1) provides that the CEO is to be paid 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 CEO to be determined by the
Remuneration Tribunal.
256. In the event that no such determination is in operation, subclause 31(1) provides that
the CEO is to be paid the remuneration that is prescribed by the PWSS rules made
by the Minister under clause 69. The ability to prescribe the CEO's remuneration in
the PWSS rules allows flexibility to ensure a CEO can be appropriately remunerated
if there is any delay in the making of a determination by the Tribunal.
257. Subclause 31(2) provides that the CEO is to be paid any allowances that are
prescribed by the PWSS rules.
258. Subclause 31(3) clarifies that this clause has effect subject to the Remuneration
Tribunal Act 1973. Accordingly, any remuneration prescribed in the PWSS rules
could only be enforced where no determination by the Tribunal is in operation.
Clause 32 Leave of absence of the CEO
259. Clause 32 specifies the leave entitlements of the CEO.
260. Subclause 32(1) provides that the CEO would have the recreation leave entitlements
that are determined by the Remuneration Tribunal. The Remuneration Tribunal is an
independent statutory body that determines the leave entitlements of key
Commonwealth offices. Accordingly, it is appropriate for the leave entitlements of
the CEO to be determined by the Remuneration Tribunal.
261. In addition to the recreation leave entitlements determined by the Remuneration
Tribunal, subclause 32(2) provides that the Minister may grant the CEO other leave
of absence. Such additional leave of absence is on the terms and conditions
determined by the Minister, including as to remuneration. This provides flexibility
for the Minister to consider requests from the CEO for other types of leave, as
necessary and appropriate. This also reflects that paragraph 35(2)(b) of this Bill
would provide the Minister with the discretion to terminate the CEO's appointment
where the CEO is absent, except on leave of absence, for 14 consecutive days or for
28 days in any 12 months.
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Clause 33 Other employment of the CEO
262. Clause 33 provides that the CEO must not engage in paid work outside the duties of
the CEO's office without the Minister's approval.
263. This provision would ensure that any outside work carried out by the CEO does not
conflict with their statutory duties. This includes employment that would give rise to
a conflict of interest or that would unduly impinge on their capacity to undertake
their role as CEO, such as by compromising the CEO's independence or
performance.
264. Paragraph 35(2)(c) of this Bill would provide the Minister with the discretion to
terminate the CEO's appointment for non-compliance with this provision.
Clause 34 Resignation of the CEO
265. Clause 34 provides for the resignation of the CEO.
266. Subclause 34(1) provides that the CEO may resign their appointment by giving a
written resignation to the Minister. Subclause 34(2) specifies that the resignation
takes effect on the day it is received by the Minister or on a later day specified in the
resignation.
Clause 35 Termination of appointment of the CEO
267. Clause 35 sets out the circumstances in which the CEO's appointment could be
terminated by the Minister.
268. These grounds of termination in subclauses 35(1) and (2) 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
PWSS.
269. Subclause 35(1) provides that the Minister has the discretion to terminate the CEO's
appointment:
a. for misbehaviour
b. if the CEO is unable to perform the duties of the CEO's office because of
physical or mental incapacity, or
c. if the performance of the CEO has been unsatisfactory for a significant period
of time.
270. Termination for incapacity under paragraph 35(1)(b) would not be available where
reasonable adjustments could be made to enable the CEO to meet the inherent
requirements of the office (such as accessibility software).
271. For the purposes of paragraph 35(1)(c), it would be a matter for the Minister to
determine what constituted unsatisfactory performance in the particular
circumstances. The Minister would also have the discretion to determine what
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constitutes a significant period of time. Termination on these grounds would help to
ensure the effective operation of the PWSS in the event there are recurring or
ongoing issues with the performance of the CEO.
272. Subclause 35(2) provides that the Minister has the discretion to terminate the CEO's
appointment if the CEO:
a. becomes bankrupt or takes certain steps in relation to insolvency or
bankruptcy
b. is absent, except on leave of absence, for 14 consecutive days or for 28 days in
any 12 months
c. engages in paid outside work without the necessary approvals specified in
clause 33, or
d. fails, without reasonable excuse, to comply with section 29 of the PGPA Act
(which deals with the duty to disclose interests) or rules made for the purposes
of that section.
273. For the purposes of paragraph 35(2)(b), it is intended that the CEO must have been
absent for 14 consecutive business days or 28 business days in any 12 months.
274. Subclause 35(3) provides that prior to terminating the appointment of the CEO under
subclause 35(1) or (2), the Minister must consult with the Leader of each
Parliamentary party that does not form part of the Government and that has at least
five members who are senators or members of the House of Representatives. The
Minister may also consult with such other parliamentarians as the Minister considers
appropriate.
275. This consultation would provide parliamentarians from across the political spectrum
an opportunity to put forward their views on the CEO's behaviour, capacity or
performance, as relevant.
276. Subclause 35(4) clarifies that a failure to comply with the requirement to consult
with the Leader of relevant Parliamentary parties does not affect the validity of the
termination. This is intended to cover situations where consultation does not occur
before a termination.
Clause 36 Other terms and conditions of the CEO
277. Clause 36 provides that the Minister may determine other terms and conditions, if
any, under which the CEO holds office in relation to matters not covered by the Bill.
This could include, for example, matters such as the location where the duties of the
office are to be performed.
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PART 4--STAFF OF THE PWSS ETC.
Clause 37 Simplified outline of this Part
278. Clause 37 provides a simplified outline of Part 4 of the Bill to assist the reader.
279. The outline notes that this Part provides that the staff of the PWSS are to be persons
engaged under the Public Service Act 1999, and the CEO and staff together
constitute a Statutory Agency for the purposes of that Act. The outline also notes
that the PWSS may be assisted by other officers and employees, including officers
and employees of Agencies within the meaning of the Public Service Act, and that
the CEO may engage consultants.
Clause 38 Staff
280. Clause 38 provides for the staff of the PWSS.
281. Subclause 38(1) provides that the staff of the PWSS must be persons engaged under
the Public Service Act.
282. Subclause 38(2) provides that, for the purposes of the Public Service Act, the CEO
and staff of the PWSS together constitute a Statutory Agency, and the CEO of the
PWSS is the Head of that Statutory Agency. As such, the CEO would have all the
powers, functions and responsibilities conferred upon Agency Heads under the
Public Service Act including, for example, the duty to uphold and promote the APS
Values and APS Employment Principles. In accordance with that Act, the CEO is
also bound by the APS Code of Conduct.
Clause 39 Persons assisting the PWSS
283. Clause 39 provides that the PWSS may be assisted in its functions by certain
categories of people.
284. This clause allows for the PWSS to be assisted by 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, whose services would be made available to the PWSS in
connection with the performance of any of the PWSS's functions.
285. This clause would provide the necessary flexibility for the PWSS to increase or
decrease its capacity as required.
Clause 40 Consultants
286. Clause 40 provides that the CEO may engage consultants, on behalf of the
Commonwealth, to assist in the performance of the PWSS's functions. Consultants
would be engaged on the terms and conditions as the CEO determines, in writing.
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PART 5--PWSS ADVISORY BOARD
287. Part 5 would establish the PWSS Advisory Board to provide strategic and expert
technical guidance advice to the CEO of the PWSS to support the operations of the
PWSS. The PWSS Advisory Board would play an important role in the governance
structure of the PWSS and would be comprised of individuals with experience in
parliamentary workplaces, human resources, work health and safety, industrial
relations and public administration or corporate governance. This advisory role
provides assurance that mandatory policies, procedures, and education or training
programs and requirements determined by the CEO are effective and reflect best
practice.
Division 1--Introduction
Clause 41 Simplified outline of this Part
288. Clause 41 provides a simplified outline of Part 5 of the Bill to assist the reader.
289. The outline notes that this Part establishes the Parliamentary Workplace Support
Service Advisory Board, and the main function of the PWSS Advisory Board is to
advise the CEO on the performance of the functions of the PWSS or CEO. The
outline also notes that members of the PWSS Advisory Board are to be appointed by
the Minister.
Division 2--Establishment and functions of the PWSS Advisory Board
Clause 42 Parliamentary Workplace Support Service Advisory Board
290. Clause 42 establishes the Parliamentary Workplace Support Service Advisory
Board.
291. The note under clause 42 clarifies that, in this Bill, 'PWSS Advisory Board' means
the Parliamentary Workplace Support Service Advisory Board.
Clause 43 Functions of the PWSS Advisory Board
292. Clause 43 provides for the functions of the PWSS Advisory Board.
293. Subclause 43(1) provides that the PWSS Advisory Board's functions are:
a. to advise the CEO of the PWSS in relation to the performance of the functions
of the PWSS or CEO
b. to consider in accordance with clause 44:
i. proposed mandatory policies or procedures, and
ii. proposed mandatory education or training programs, and proposed
requirements for completing those programs, and
c. such other functions as are conferred on the PWSS Advisory Board by this
Bill or any other law of the Commonwealth.
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294. It is intended that the PWSS Advisory Board would be a strategic advisory, rather
than an operational, entity. The purpose of the PWSS Advisory Board would be to
provide strategic guidance to the CEO of the PWSS in relation to the objectives of
the PWSS, drawing upon the subject matter expertise of the members of the PWSS
Advisory Board. For example, the PWSS Advisory Board could provide the CEO
with guidance in relation to matters such as the approach to particular policies or
stakeholder engagement with Commonwealth parliamentary workplace participants.
This is intended to support the CEO and the PWSS to most effectively discharge
their functions.
295. The PWSS Advisory Board's function in relation to considering proposed
mandatory policies or procedures and proposed mandatory education or training
programs under paragraph 43(1)(b) is discussed at clause 44.
296. Subclause 43(2) clarifies that the PWSS Advisory Board does not have certain
specified functions.
297. Paragraph 43(2)(a) clarifies that it is not a function of the PWSS Advisory Board to
direct the activities of the PWSS. This reflects the independence of the CEO and that
the PWSS Advisory Board's functions are fundamentally advisory. Accordingly,
while the CEO could seek advice from the PWSS Advisory Board in respect of a
function, the CEO has complete discretion in the performance of that function,
subject to this Bill and other Commonwealth laws.
298. Paragraph 43(2)(b) clarifies that it is not a function of the PWSS Advisory Board to
give or seek advice or information about, or in relation to, a particular person or
case. This would ensure that Commonwealth parliamentary workplace participants
could trust their matters would be dealt with confidentially, and information would
not be shared with the PWSS Advisory Board.
299. Subclause 43(3) provides that the PWSS Advisory Board may give advice on its
own initiative or at the request of the CEO of the PWSS. This is intended to
facilitate a two-way exchange of information between the PWSS Advisory Board
and the CEO of the PWSS, and ensure that the CEO has the capacity to seek advice
where necessary.
300. Subclause 43(4) provides that the PWSS Advisory Board may invite representatives
of the PWSS to attend a meeting of the PWSS Advisory Board. Representatives of
the PWSS may include the CEO or staff of the PWSS. This would provide
representatives of the PWSS with an opportunity to discuss matters and receive
advice from the PWSS Advisory Board directly. This provision is not intended to
affect the PWSS providing secretariat or other administrative support to the PWSS
Advisory Board, as required.
Clause 44 PWSS Advisory Board must approve or reject certain proposals
301. Clause 44 provides that the PWSS Advisory Board has the function of approving or
rejecting certain mandatory proposals referred to it by the CEO of the PWSS.
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302. Subclause 44(1) provides that the PWSS Advisory Board must approve or reject any
of the following referred to the PWSS Advisory Board by the CEO:
a. proposed mandatory policies or procedures, and
b. proposed mandatory education or training programs, and proposed
requirements for completing those programs.
303. In accordance with the PWSS's policy development function under clause 17 of this
Bill, the CEO may determine by legislative instrument that particular policies and
procedures are a mandatory policy or procedure. Paragraph 17(6)(b) provides that
before the CEO determines such a mandatory policy or procedure, the CEO must
have referred the proposed mandatory policy or procedure to the PWSS Advisory
Board under this clause.
304. Similarly, in accordance with the PWSS's education and training functions under
clause 18 of this Bill, the CEO may determine by legislative instrument that a
specified education or training program is a mandatory education or training
program. The CEO may also determine by legislative instrument requirements for
the completion of a mandatory education or training program. Paragraph 18(5)(b)
provides that before the CEO determines such a mandatory education or training
program or requirements for completing such a program, the CEO must have
referred the proposed mandatory policy or procedure to the PWSS Advisory Board
under this clause.
305. Requiring the PWSS Advisory Board to approve or reject these mandatory proposals
provides assurance that these policies, procedures, programs and requirements are
effective and reflect best practice, in light of the subject matter expertise of the
members of the Advisory Board. In addition, given that a parliamentarian's failure to
comply with mandatory education or training program requirements may result in
details of that failure being included in a public report under clause 23, and failure to
comply with mandatory policies or procedures or education or training program
requirements would result in notification of the Leader of a parliamentarian's
political party under clause 24 (provided the parliamentarian is a member of a
Parliamentary party), approval by the PWSS Advisory Board would provide a level
of assurance that the requirements determined by the CEO are reasonable and
appropriate.
306. Subclause 44(2) provides that the PWSS Advisory Board must make a decision to
approve or reject a referred proposal within 14 calendar days after the referral.
However, paragraph 44(2)(b) provides that if, within the first 14 calendar days after
the referral, the PWSS Advisory Board notifies the CEO that it requires additional
time to consider the referral, the PWSS Advisory Board must make a decision to
approve or reject the proposal within 44 calendar days after the referral.
307. Subclause 44(3) provides that as soon as practicable after making the decision, the
PWSS Advisory Board must give the CEO written notice of the decision.
308. Subclause 44(4) provides for circumstances in which the PWSS Advisory Board is
taken to have approved a proposed mandatory policy, procedure, program or
requirement. This subclause provides that the PWSS Advisory Board is taken to
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have approved the relevant proposal if the Board does not give written notice to the
CEO under subclause 44(3) within the relevant time period. This provision provides
certainty and would ensure that mandatory policies, procedures, programs and
requirements can be determined promptly and without undue delay.
Division 3--Membership of the PWSS Advisory Board
Clause 45 Membership of the PWSS Advisory Board
309. Clause 45 provides for the membership of the PWSS Advisory Board.
310. Subclause 45(1) provides that the PWSS Advisory Board consists of a Chair and at
least three, and not more than four, other members.
311. Qualification requirements for members of the PWSS Advisory Board are at
clause 46. Subclauses 45(2) and (3) provide for particular requirements as to the
composition of the PWSS Advisory Board. Clause 5 of the Bill provides that the
term 'member' of the PWSS Advisory Board includes the Chair of the PWSS
Advisory Board.
312. Subclause 45(2) provides that at least two members of the PWSS Advisory Board
must be women. This may include the Chair and another member, or two non-Chair
members. This would ensure there is gender balance within the PWSS Advisory
Board, 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). This is appropriate and important in
light of the object of the PWSS in supporting safe and respectful workplaces and its
functions, particularly with respect to relevant conduct, 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.
313. Subclause 45(3) provides that at least one member of the PWSS Advisory Board
must be a former Commonwealth judicial officer or a former judge of the Supreme
Court of a State or Territory. The term 'Commonwealth judicial officer' is defined
at clause 5 as a Justice of the High Court or a judge or justice of a court created by
the Parliament. This requirement reflects the composition of the Independent
Parliamentary Expenses Authority Board, which is similarly required to include a
former Commonwealth, state or territory judicial officer.
Clause 46 Appointment of members of the PWSS Advisory Board
314. Clause 46 provides for the appointment of members of the PWSS Advisory Board,
including qualifications for appointment, consultation requirements and the period of
appointment.
315. Subclause 46(1) provides that a member of the PWSS Advisory Board is to be
appointed by the Minister by written instrument. This includes the Chair, as a
member of the PWSS Advisory Board.
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316. The note under subclause 46(1) clarifies that, in accordance with section 33AA of
the Acts Interpretation Act, a member of the PWSS Advisory Board may be
reappointed.
317. Subclause 46(2) specifies that a person is not eligible for appointment as a member
of the PWSS Advisory Board unless the Minister is satisfied that the person has
skills, knowledge or experience in one or more of the following fields:
a. parliamentary workplaces
b. human resources, work health and safety or industrial relations, or
c. public administration or corporate governance.
318. These requirements would ensure that members of the PWSS Advisory Board have
appropriate technical and subject matter expertise in order to be able to provide the
CEO with strategic advice and guidance. Experience in parliamentary workplaces is
not intended to require a person to have been a former parliamentarian.
319. In addition, subclause 46(3) provides that in appointing a person as a member of the
PWSS Advisory Board, the Minister must have regard to the desirability of ensuring
that there is a balance of skills, knowledge and experience in these fields among
members of the PWSS Advisory Board. This would provide flexibility in the
appointment process and ensure the PWSS Advisory Board as a whole has expertise
and experience across the range of matters dealt with by the PWSS.
320. It would be a matter for the Minister to be satisfied that an appointee has the relevant
skills, knowledge or experience in the relevant fields in accordance with subclause
46(2). For example, a difference of opinion expressed in the consultation process
under subclause 46(4) as to whether a proposed appointee meets these criteria would
not itself affect the validity of an appointment under this clause, provided the
Minister had a reasonable basis to be satisfied that the appointee met these criteria.
321. Subclause 46(4) provides that subclauses 46(2) and (3) do not apply to the
appointment of a former Commonwealth judicial officer or a former judge of the
Supreme Court of a State or Territory as a member of the PWSS Advisory Board, as
required by subclause 46(3). This recognises that the appointment of a former
judicial officer already brings specific technical and subject matter expertise, and
there is no need for a former judicial officer to have expertise in other relevant
fields.
322. Subclause 46(5) provides that, before the Minister appoints a person as Chair or as a
member of the PWSS Advisory Board, the Minister must consult with the Leader of
each Parliamentary party that does not form part of the Government and that has at
least five members who are senators or members of the House of Representatives.
The Minister may also consult with such other parliamentarians as the Minister
considers appropriate.
323. The form of consultation under this subclause is to be determined by the Minister.
This requirement would promote appropriate consultation on appointees to the
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PWSS Advisory Board, and would support the appointment of Board members who
have the endorsement and support of the Parliament.
324. Subclause 46(6) provides that a member of the PWSS Advisory Board holds office
on a part-time basis. This is consistent with the functions of the PWSS Advisory
Board.
325. Subclause 46(7) provides that the appointment of a person as a member of the PWSS
Advisory Board is not invalid because of a defect or irregularity in connection with
the person's appointment. A defect or irregularity could include technical errors on
the instrument of appointment, such as wrongly placed signatures or incorrect dates.
This would provide certainty and ensure that decisions of the PWSS Advisory Board
are not invalidated merely due to a minor technical error in the instruments of
appointment.
Clause 47 Period of appointment for members of the PWSS Advisory Board
326. Clause 47 provides that a member of the PWSS Advisory Board holds office for the
period specified in the instrument of appointment, which must not exceed five years.
A five year term of appointment is consistent with the Government's Merit and
Transparency policy for statutory appointments.
Clause 48 Acting members of the PWSS Advisory Board
327. Clause 48 provides for the appointment of acting members of the PWSS Advisory
Board.
328. Subclause 48(1) provides for the appointment of an acting Chair of the PWSS
Advisory Board. This subclause provides that the Minister may appoint a person to
act as the Chair during:
a. a vacancy in the office of the Chair (whether or not an appointment has
previously been made to the office), or
b. any or all periods when the Chair is absent from duty or from Australia, or is
unable to perform the duties of the office for any reason.
329. Similarly, subclause 48(2) provides for the appointment of an acting member of the
PWSS Advisory Board, other the Chair. Clause 7 of this Bill provides that for the
purposes of a reference in this Bill to a vacancy in the office of a member of the
PWSS Advisory Board, there are taken to be four offices of members of the PWSS
Advisory Board in addition to the Chair of the PWSS Advisory Board.
330. Subclause 48(2) provides that the Minister may appoint a person to act as a member
of the PWSS Advisory Board (other than the Chair) during:
a. a vacancy in the office of a member (other than the Chair) (whether or not an
appointment has previously been made to the office), or
b. any or all periods when a member (other than the Chair) is absent from duty or
from Australia, or is unable to perform the duties of the office for any reason.
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331. Such appointments must be by written instrument.
332. The notes under subclauses 48(1) and (2) 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.
333. This clause provides appropriate arrangements to ensure the functions of the PWSS
Advisory Board can be exercised during any periods in which the Chair or other
members may be unavailable. This includes periods of personal and recreational
leave of members. In addition, given the need for consultation under subclause 46(5)
across the Parliament prior to making a substantive appointment of a member of the
PWSS Advisory Board, this clause ensures an acting Chair or member may be
appointed in order to support the PWSS Advisory Board if there is a delay
(including for the initial appointment of the Chair or other members).
Division 4--Terms and conditions for members of the PWSS Advisory Board
Clause 49 Remuneration
334. Clause 49 provides for the means for determining the remuneration and allowances
for members of the PWSS Advisory Board.
335. Subclause 49(1) provides that a member of the PWSS Advisory Board is to be paid
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
members of the PWSS Advisory Board to be determined by the Remuneration
Tribunal.
336. In the event that no such determination is in operation, subclause 49(1) provides that
a member is to be paid the remuneration that is prescribed by the PWSS rules made
by the Minister under clause 69. The ability to prescribe a member's remuneration in
the PWSS rules allows flexibility to ensure a member can be appropriately
remunerated if there is any delay in the making of a determination by the Tribunal.
337. Subclause 49(2) provides that a member of the PWSS Advisory Board is to be paid
any allowances that are prescribed by the PWSS rules.
338. Subclause 49(3) clarifies that this clause has effect subject to the Remuneration
Tribunal Act 1973. Accordingly, any remuneration prescribed in the PWSS rules
could only be enforced where no determination by the Tribunal is in operation.
Clause 50 Disclosure of interests
339. Clause 50 requires members of the PWSS Advisory Board to disclose relevant
interests.
340. Subclause 50(1) provides that a member of the PWSS Advisory Board must give
written notice to the Minister of any direct or indirect pecuniary interest that the
member has or acquires and that conflicts or could conflict with the proper
performance of the member's duties.
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341. These disclosure requirements are important integrity measures to ensure the PWSS
Advisory Board's independence or proper performance of its functions is not
compromised. In addition, this clause would ensure that members of the PWSS
Advisory Board are subject to similar conflict of interest requirements to officials of
the PWSS, including the CEO. Under section 29 of the PGPA Act, the CEO and
staff of the PWSS would be required to disclose details of material personal interests
they have that relate to the affairs of the PWSS.
342. Subclause 50(2) provides that a member of the PWSS Advisory Board is also
required to disclose to a meeting of the PWSS Advisory Board the nature of any
direct or indirect pecuniary interest they may have in a matter being considered or
about to be considered by the PWSS Advisory Board. In accordance with
subclause 50(3), such a disclosure must be made as soon as possible after the
relevant facts have come to the member's knowledge. This would ensure that the
member's disclosure can be appropriately considered before the member performs
duties or considers a matter in which they may have a conflict.
343. Following such a disclosure, subclause 50(4) provides the disclosure must be
recorded in the minutes of the meeting. This would ensure conflicts of interest are
recorded and dealt with in a transparent manner, in order to promote trust in the
PWSS and the PWSS Advisory Board.
344. Subclause 50(5) specifies that unless the PWSS Advisory Board otherwise
determines, the relevant member must not be present during any deliberation by the
PWSS Advisory Board on that matter, and must not take part in any decision of the
PWSS Advisory Board with respect to the matter. This would ensure that the
relevant conflict would not affect the PWSS Advisory Board's consideration of that
matter, unless the PWSS Advisory Board has otherwise considered and determined
that the conflict could be appropriately managed.
345. For the purposes of making a determination under subclause 50(5), subclause 50(6)
provides that the relevant member must not be present during any deliberation of the
PWSS Advisory Board for the purpose of making the determination and must not
take part in making the determination. This would ensure that the PWSS Advisory
Board's determination is not affected by the member who has the relevant interest.
346. Such a determination must be recorded in the minutes of the meeting of the PWSS
Advisory Board, in accordance with subclause 50(7). This would ensure this
decision-making process is transparent.
Clause 51 Leave of absence
347. Clause 51 specifies the leave entitlements of the Chair and other members of the
PWSS Advisory Board.
348. Subclause 51(1) provides that the Minister may grant leave of absence on the terms
and conditions as determined by the Minister, including as to remuneration. As the
role of Chair is a part-time position, this provides flexibility for the Minister to
consider requests for leave that cannot otherwise be managed as part of the Chair's
part-time arrangements.
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349. Subclause 51(2) provides that the Chair of the PWSS Advisory Board may grant
leave of absence to a member of the PWSS Advisory Board on the terms and
conditions that the Chair determines.
Clause 52 Resignation
350. Clause 52 provides for the resignation of a member of the PWSS Advisory Board.
351. Subclause 52(1) provides that a member of the PWSS Advisory Board may resign
their appointment by giving a written resignation to the Minister. Subclause 52(2)
specifies that the resignation takes effect on the day it is received by the Minister or
on a later day specified in the resignation.
Clause 53 Termination of appointment
352. Clause 53 sets out the circumstances in which the appointment of a member of the
PWSS Advisory Board could be terminated by the Minister.
353. These grounds of termination in subclauses 53(1) and (2) 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
PWSS Advisory Board.
354. Subclause 53(1) provides that the Minister has the discretion to terminate a member
of the PWSS Advisory Board's appointment:
a. for misbehaviour, or
b. if the member is unable to perform the duties of the member's office because
of physical or mental incapacity.
355. Termination for incapacity under paragraph 50(1)(b) would not be available where
reasonable adjustments could be made to enable the member to meet the inherent
requirements of the office (such as accessibility software).
356. Subclause 53(2) provides that the Minister has the discretion to terminate a member
of the PWSS Advisory Board's appointment if the member:
a. becomes bankrupt or takes certain steps in relation to insolvency or
bankruptcy
b. fails, without reasonable excuse, to comply with clause 50 in relation to
disclosure of interests, or
c. is absent, except on leave of absence, from three consecutive meetings of the
PWSS Advisory Board.
357. Subclause 53(3) provides that prior to terminating the appointment of a member of
the PWSS Advisory Board under subclause 50(1) or (2), the Minister must consult
with the Leader of each Parliamentary party that does not form part of the
Government and that has at least five members who are senators or members of the
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House of Representatives. The Minister may also consult with such other
parliamentarians as the Minister considers appropriate. This consultation would
provide parliamentarians from across the political spectrum an opportunity to put
forward their views on the relevant member's behaviour, capacity or performance,
as relevant.
358. Subclause 53(4) clarifies that a failure to comply with the requirement to consult
with the Leader of relevant Parliamentary parties does not affect the validity of the
termination. This is intended to cover situations where consultation does not occur
before a termination.
Clause 54 Other terms and conditions
359. Clause 54 provides that the Minister may determine other terms and conditions, if
any, under which a member of the PWSS Advisory Board holds office in relation to
matters not covered by the Bill. This could include, for example, matters such as the
location where the duties of the office are to be performed.
Division 5--PWSS Advisory Board procedures
Clause 55 PWSS Advisory Board procedures
360. Clause 55 provides that the PWSS rules may prescribe matters relating to the
operation of the PWSS Advisory Board.
361. It is appropriate for procedures of the PWSS Advisory Board to be included in
subordinate legislation in order to provide for flexibility and adaptability. Matters
relating to the operation of the PWSS Advisory Board may include, for example, the
holding of meetings, presiding at meetings, quorum, voting, the conduct of meetings
and minutes.
362. Subclause 55(2) clarifies that if no PWSS rules are in force the PWSS Advisory
Board may operate in the way it determines.
PART 6--PWSS CONSULTATIVE COMMITTEE
363. Part 6 of this Bill would establish the PWSS Consultative Committee as a
consultative mechanism to support the operations of the PWSS. The PWSS
Consultative Committee would enable parliamentarians and MOPS employees,
alongside external experts, to engage directly with the PWSS and communicate
views about relevant matters and proposed policies, procedures, and education or
training programs and requirements. This consultative role would ensure that the
PWSS has the benefit of advice directly from the Commonwealth parliamentary
workplace participants with which it engages, and that individuals are able to
contribute to the development of policies and processes that affect their workplace.
364. The establishment of the PWSS Consultative Committee is consistent with the
recommendations of the Set the Standard Report, which recommended that a
consultative parliamentary body be established to provide guidance and make
requests of the Office of Parliamentarian Staffing and Culture. The establishment of
the PWSS Consultative Committee would meet the objectives of the Set the
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Standard Report, providing an authorising environment for the PWSS, ensuring fit
for purpose policies and building trust and confidence in the work of the PWSS.
Clause 56 Simplified outline of this Part
365. Clause 56 provides a simplified outline of Part 6 of the Bill to assist the reader.
366. The outline notes that this Part establishes the Parliamentary Workplace Support
Service Consultative Committee. Generally, the functions of the PWSS Consultative
Committee are to:
a. discuss matters that are relevant to parliamentarians and MOPS employees in
so far as those matters relate to the functions of the PWSS, and
b. communicate views about those matters to the PWSS
367. The outline also notes that the PWSS Consultative Committee is to consist of
members who are parliamentarians, MOPS employees or independent members, and
that the Minister may make provision for the appointment of members of the PWSS
Consultative Committee, and other matters, by the PWSS rules.
Clause 57 Parliamentary Workplace Support Service Consultative Committee
368. Clause 57 establishes the Parliamentary Workplace Support Service Consultative
Committee.
369. The note under clause 57 clarifies that, in this Bill, 'PWSS Consultative
Committee' means the Parliamentary Workplace Support Service Consultative
Committee.
Clause 58 Functions of the PWSS Consultative Committee
370. Clause 58 provides for the functions of the PWSS Consultative Committee.
371. Subclause 58(1) provides that the PWSS Consultative Committee's functions are:
a. to discuss matters of relevance to parliamentarians and MOPS employees in so
far as those matters relate to the functions of the PWSS
b. without limiting paragraph (a):
i. to consider proposed policies and procedures developed by the PWSS
for the purposes of clause 17, and
ii. to consider each proposed mandatory policy or procedure, each
proposed mandatory education or training program, and proposed
requirements for completing those programs, and
c. to communicate views about these matters to the PWSS.
372. It is intended that the PWSS Consultative Committee would be a consultative and
advisory mechanism to support the operation of the PWSS. The PWSS Consultative
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Committee would provide parliamentarians and MOPS employees an opportunity to
have input into the operation of the PWSS, provide guidance and insights as to the
unique nature of Commonwealth parliamentary workplaces and contribute to the
development of policies, procedures, programs and requirements that affect their
workplaces. This is intended to support the CEO and the PWSS to most effectively
discharge their functions.
373. In accordance with the PWSS's policy development function under clause 17 of this
Bill, the CEO may determine by legislative instrument that particular policies and
procedures are a mandatory policy or procedure. Paragraph 17(6)(a) provides that
before the CEO determines such a mandatory policy or procedure, the CEO must
consult with the PWSS Consultative Committee about the proposed mandatory
policy or procedure. Similarly, in accordance with the PWSS's education and
training functions under clause 18 of this Bill, the CEO may determine by legislative
instrument that a specified education or training program is a mandatory education
or training program. The CEO may also determine by legislative instrument
requirements for the completion of a mandatory education or training program.
Paragraph 18(5)(a) provides that before the CEO determines such a mandatory
program or requirements, the CEO must consult with the PWSS Consultative
Committee about the proposed program or requirements.
374. Accordingly, subparagraph 58(1)(b)(ii) provides that the PWSS has the function of
considering each proposed mandatory policy or procedure, education or training
program and requirements for completing those programs. Subparagraph 58(1)(b)(i)
provides that the PWSS may also consider any other proposed policies and
procedures developed by the PWSS under its policy development function under
clause 17. For example, the PWSS Consultative Committee may consider a
proposed training program developed by the PWSS for parliamentarians and MOPS
employees. The PWSS Consultative Committee would be able to discuss the training
program and provide feedback to the PWSS on its content or implementation.
375. Consulting the PWSS Consultative Committee on these proposals would help ensure
that these policies, procedures, programs and requirements are effective, take into
account the unique nature of Commonwealth parliamentary workplaces and are
fit-for-purpose, meeting the needs of parliamentarians and MOPS employees.
376. It is not necessary for the purposes of paragraph 58(1)(c) for the PWSS Consultative
Committee to communicate its views through inviting representatives of the PWSS
to attend a meeting, although it is open to do so. Rather, the PWSS Consultative
Committee may communicate its views in any manner it sees fit.
377. Subclause 58(2) clarifies that the PWSS Consultative Committee does not have
certain specified functions.
378. Paragraph 58(2)(a) clarifies that it is not a function of the PWSS Consultative
Committee to direct the activities of the PWSS. This reflects the independence of the
CEO and that the PWSS Consultative Committee's functions are fundamentally
advisory and for the purposes of consultation. Accordingly, while it is open to the
PWSS to implement any feedback they receive from the PWSS Consultative
Committee, they are not required to do so.
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379. Paragraph 58(2)(b) clarifies that it is not a function of the PWSS Consultative
Committee to give or seek advice or information about, or in relation to, a particular
person or case. This would also ensure that Commonwealth parliamentary
workplace participants can trust their matters would be dealt with confidentially, and
information would not be shared with the PWSS Consultative Committee.
380. Subclause 58(3) provides that the PWSS Consultative Committee may invite
representatives of the PWSS to attend a meeting of the PWSS Consultative
Committee for the purposes of communicating the Committee's views about matters
of relevance or proposed policies etc. Representatives of the PWSS may include the
CEO or staff of the PWSS. This provision is intended to foster dialogue between the
PWSS and the PWSS Consultative Committee. This would provide representatives
of the PWSS with an opportunity to discuss matters and receive advice from the
PWSS Consultative Committee directly, as well as providing the PWSS
Consultative Committee an opportunity to explain the effect of proposed policies
and procedures. This provision is not intended to affect the PWSS providing
secretariat or other administrative support to the PWSS Consultative Committee, as
required.
Clause 59 Membership of the PWSS Consultative Committee etc.
381. Clause 59 provides for the membership of the PWSS Consultative Committee and
for the making of rules for, or in relation to, the PWSS Consultative Committee.
382. Subclause 59(1) provides for the composition of the PWSS Consultative Committee.
This subclause provides that the PWSS Consultative Committee consists of the
following members:
a. a Chair, who must be an independent member
b. one other member who is an independent member, and
c. an equal number of:
i. members who are parliamentarians, and
ii. members who are MOPS employees.
383. Clause 5 defines the term 'independent member' as a member of the PWSS
Consultative Committee who is not a parliamentarian or a MOPS employee. It is
intended the Chair and the other independent member would be independent experts,
who may bring expertise in governance or other relevant subject matter.
384. The inclusion of an independent member as Chair of the PWSS Consultative
Committee would ensure that the position of Chair is filled by an individual that is
apolitical and can promote the views of parliamentarians and MOPS employees
equally and impartially. The additional independent member is intended to bring
particular subject matter expertise to the PWSS Consultative Committee in order to
support the PWSS Consultative Committee to discuss relevant matters and consider
proposed policies.
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385. The remaining members of the PWSS Consultative Committee must comprise an
equal number of parliamentarians and MOPS employees. Requiring equal
representation of parliamentarians and MOPS employees on the PWSS Consultative
Committee would ensure their views would be heard equally. There is no limit on
the number of parliamentarians and MOPS employees that can be appointed as
members of the PWSS Consultative Committee, so long as there is an equal number.
This is intended to encourage participation from parliamentarians and MOPS
employees in the PWSS Consultative Committee.
386. Subclause 59(2) provides that the PWSS rules may make provision for or in relation
to the PWSS Consultative Committee, including for or in relation to the:
a. operation and procedures of the Committee
b. membership of the Committee (subject to subclause 59(1))
c. appointment of members
d. terms of appointment of members
e. remuneration of independent members
f. resignation of members
g. disclosure of interests by members
h. termination of appointment of members
i. leave of absence of members, and
j. deputies of members.
387. It is appropriate that these administrative matters be provided for in the rules, in
order to provide for flexibility.
388. Before making rules for the purposes of this subclause, subclause 59(5) provides that
the Minister must consult the CEO of the PWSS on the proposed rules. In addition,
the content of the rules made for the purposes of subclause 59(2) are subject to the
requirements of subclauses 59(3) and (4).
389. Subclause 59(3) provides that rules made for the purposes of subclause 59(2) must
require that in appointing a person as an independent member, the person making the
appointment must have regard to the independence of the appointee from:
a. parliamentarians
b. MOPS employees
c. registered political parties (within the meaning of the Commonwealth
Electoral Act), and
d. the PWSS and the PWSS Advisory Board.
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390. This would ensure that independent members of the PWSS Consultative Committee
have the necessary independence to effectively perform their role.
391. Subclause 59(4) provides that rules made for the purposes of subclause 59(2) must
require that in appointing a person as a member of the PWSS Consultative
Committee, the person making the appointment must have regard to the desirability
of ensuring that:
a. there is representation among members of the PWSS Consultative Committee
by the following:
i. persons who represent the views of the Government
ii. persons who represent the views of Parliamentary parties that do not
form part of the Government and have at least five members who are
senators or members of the House of Representatives
iii. persons who do not represent the views of the Government or a
Parliamentary party to which subparagraph 59(4)(a)(ii), and
b. the PWSS Consultative Committee is comprised of members of different
genders.
392. This reflects the intention that the parliamentarian and MOPS employee members of
the PWSS Consultative Committee would be representative of the Parliament, and
include membership from across the Government, the Opposition, minor parties and
independents, so far as is possible noting that parliamentarians and MOPS
employees would participate on a voluntary basis. Similarly, representation of
different genders on the PWSS Consultative Committee would support gender
balance and representation, noting the particular functions of the PWSS and the
PWSS Consultative Committee.
PART 7--INFORMATION SHARING
393. Part 7 would establish information sharing arrangements in order to support the
PWSS and the CEO to carry out their functions. This includes an ability to share
information between the PWSS and certain Commonwealth entities and
Commonwealth office and appointment holders. In addition, the PWSS may request
certain information for the purposes of preparing its mandatory annual report, and
may request certain information from parliamentarians and MOPS employees.
Compliance with requests for information to parliamentarians and for information
for the purposes of preparing the PWSS's mandatory annual report is mandatory.
Division 1--Introduction
Clause 60 Simplified outline of this Part
394. Clause 60 provides a simplified outline of Part 7 of the Bill to assist the reader.
395. The outline notes that this Part enables:
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a. the PWSS to disclose information to a Commonwealth entity or an individual
who holds an office or appointment under a law of the Commonwealth, and
b. a Commonwealth entity or such an individual to disclose information to the
PWSS.
396. Information may only be disclosed or used if it is reasonably necessary for the
performance of functions, or the exercise of powers, of the PWSS, the entity or the
individual.
397. The outline further notes that the PWSS may request some Commonwealth entities
to give the PWSS information for the purposes of a public report. In addition, the
CEO may enter into arrangements with other Commonwealth entities or individuals
relating to the disclosure and use of information.
398. Finally, the outline notes that the PWSS may request a parliamentarian or MOPS
employee to give the PWSS specified information. A failure by a parliamentarian to
comply with the request may result in the non-compliance being published in a
public report.
Division 2--Information sharing between the PWSS and other Commonwealth entities
etc.
Clause 61 Information sharing between the PWSS and other Commonwealth
entities etc.
399. Clause 61 authorises certain information sharing between the PWSS and other
Commonwealth entities.
400. Subclause 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. The PWSS may only disclose such information if the
disclosure is reasonably necessary to assist the entity or individual to perform any of
the functions or activities of the entity or individual, or exercise any of the powers of
the entity or individual. The meaning of the term 'Commonwealth entity' is
discussed at clause 5.
401. Conversely, subclause 61(2) authorises a Commonwealth entity, or an individual
who holds any office or appointment under a law of the Commonwealth 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 the CEO of
the PWSS to perform any of the CEO's functions or exercise any of the CEO's
powers.
402. This clause facilitates the disclosure of information between entities on a voluntary
basis. This clause does not compel the production of information.
403. Information which may be disclosed pursuant to this clause includes personal
information. As discussed at clause 5, the term 'personal information' in this Bill
has the same meaning as in the Privacy Act. It is necessary at times for these entities
to share personal information, including identifying information and information
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regarding a person's conduct, with the PWSS to support delivery of its functions.
Personal information is protected, noting that it can only be disclosed under this
clause if that disclosure would be reasonably necessary to assist the relevant entity
or individual to perform their functions, activities or powers.
404. These provisions would allow the PWSS and other Commonwealth entities or
relevant individuals to share information that is required to support their statutory
obligations. For example, under subclause 61(1), the PWSS could share information
about notifiable incidents under work health and safety laws with Comcare, in order
to fulfil its work health and safety obligations. Similarly, under subclause 61(2), the
Department of Finance could share information with the PWSS that is necessary for
the PWSS to perform its human resources functions, noting that the Department of
Finance would retain some human resources functions (such as payroll services for
MOPS employees). Efficient information sharing between these entities and
individuals would enable them to effectively undertake their function and would
facilitate enhanced service delivery across Commonwealth parliamentary
workplaces.
405. Subclause 61(3) clarifies that a parliamentarian does not hold an office or
appointment under a law of the Commonwealth for the purposes of this clause.
Accordingly, the PWSS is not authorised, under this clause, to disclose personal
information to a parliamentarian.
406. Subclause 61(4) provides that information may be disclosed on the initiative, or at
the request, of the PWSS, Commonwealth entity or individual who holds office or
appointment, as relevant. This is intended to ensure these entities can share
information on a routine basis or make one-off disclosures, as the relevant
circumstances require.
407. Subclause 61(5) clarifies that the authorisations to share information in this clause
do not apply to a disclosure of information if the disclosure would, apart from this
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.
408. Subclause 61(6) provides that before disclosing information obtained in the course
of performing its review function to another Commonwealth entity or to an
individual who holds a relevant office or appointment, 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
requirement is intended to ensure that due consideration is given to any harm that
may result from the disclosure of this information and therefore minimise this
potential harm to individuals.
409. Subclause 61(7) provides that information disclosed under this clause 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. The note under this subclause highlights that this
clause constitutes an authorisation for the purposes of the Privacy Act and other
laws.
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Clause 62 Giving information to PWSS for certain reports
410. Clause 62 enables the PWSS to request certain information for the purposes of
preparing its mandatory annual report under subclause 22(2).
411. Under subclause 22(2), the PWSS would be required to prepare a report on an
annual basis containing information relating to matters including certain gender and
diversity characteristics and gender equality in remuneration, employment of MOPS
employees and engagement of designated workers, progress in the prevention of and
responses to alleged relevant conduct, the culture and performance of certain
Commonwealth parliamentary workplaces and certain work health and safety
matters.
412. This clause provides that the PWSS may request that any of the following persons
give the PWSS, within a specified period, specified information for the purposes of
the PWSS preparing its subclause 22(2) report:
a. the Secretary of the Department (in this case, the Secretary of the Department
of Finance being the Secretary of the Department of State that is administered
by the Minister administering the Bill)
b. another Secretary (within the meaning of the Parliamentary Service Act 1999)
c. the Head of a Commonwealth entity prescribed in the PWSS rules, or
d. an individual holding an office or appointment under a law of the
Commonwealth prescribed in the PWSS rules.
413. Such a request must be made in writing.
414. This power is necessary to facilitate the PWSS's reporting obligations, recognising
that the PWSS would not hold all of the information required to prepare this report
as a matter of course. For example, it may be necessary for the PWSS to request data
relating to remuneration of parliamentarians and MOPS employees.
415. This provision relates only to requests the PWSS may need to make for the purposes
of preparing its subclause 22(2) report. Accordingly, subclause 62(2) limits the
persons from which the PWSS can request information to those entities which are
likely to hold information relevant to the subject matter of a subclause 22(2) report.
This includes the Secretary of the Department of Finance, 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. In addition, the Minister
may prescribe a Commonwealth entity or an office or appointment under a law of
the Commonwealth in the PWSS rules for the purposes of this paragraph. This
would provide flexibility to prescribe relevant individuals or entities which may hold
information relevant to a subclause 22(2) report.
416. Subclause 62(3) provides that a relevant person must comply with a request for
information under this clause unless doing so would constitute an offence against a
law of the Commonwealth. For example, information is not to be provided to the
PWSS if doing so would contravene Commonwealth national security laws.
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417. Subclause 62(4) provides that the PWSS may use the information received under
this clause for the purpose of preparing a subclause 22(2) report and monitoring and
reviewing matters relating to any of its functions. In addition, the PWSS may
disclose the information in a subclause 22(2) report, subject to clauses 22 and 63.
418. For example, the PWSS could gather information about the number of flexible work
arrangements in Commonwealth parliamentary workplaces. The PWSS could seek
to include this information in its subclause 22(2) relating to the culture of
Commonwealth parliamentary workplaces, but also consider that information in
better understanding cultural practices around the use of flexible work arrangements.
419. A request for information under this clause may include personal information. The
first note under subclause 62(4) notes that this clause constitutes an authorisation for
the purposes of the Privacy Act and other laws. This recognises that it may be
necessary for the PWSS to request personal information to support its reporting
obligations. However, the note under subclause 62(4) notes that subclause 22(9)
provides that a clause 22 report must not include personal information (subject to
clause 23).
Clause 63 CEO may make arrangements for sharing information
420. Clause 63 enables the CEO to make arrangements for sharing information with
certain Commonwealth entities and individuals holding Commonwealth offices or
appointments.
421. Subclause 63(1) authorises the CEO to make a written arrangement with the Head of
a Commonwealth entity or an individual who holds any office or appointment under
a law of the Commonwealth relating to:
a. the disclosure of information to, or by, the PWSS under subclauses 61(1)
or (2) or subclause 62(3), or
b. the use by the PWSS, the other Commonwealth entity or the individual of
information disclosed under any of those subclauses.
422. Without limiting this ability, subclause 63(2) provides 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 a public report.
423. The PWSS must publish an arrangement made under subclause 63(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.
424. Subclause 63(4) clarifies that an arrangement made under subclause 63(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 2003.
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425. Subclause 63(5) provides for the interaction between arrangements under this clause
and the information sharing and request powers under clauses 61 and 62. This
subclause provides that if an arrangement is in force, then:
a. the disclosure to, or by, the PWSS of information to which the arrangement
applies is not authorised under subclause 61(1) or (2) or 62(3), and
b. the use of information to which the arrangement applies is not authorised
under subclause 61(7) or 62(4)
if the disclosure or use of the information would contravene the arrangement.
426. Accordingly, an arrangement under this clause takes precedence over the general
information sharing and request powers in clauses 61 and 62. This would ensure that
information is only disclosed or used in accordance with the terms of the
arrangement.
Division 3--Requesting information from parliamentarians and MOPS employees
Clause 64 Requesting information from parliamentarians
427. Clause 64 enables the PWSS to request certain information from parliamentarians
relating to the PWSS's functions.
428. Subclause 64(1) provides that the PWSS may request a parliamentarian give the
PWSS, within a specified period, specified information.
429. Under paragraph 64(1)(a), the PWSS may request information that relates to any of
the following matters in relation to a person who is or was a MOPS employee
employed by, or a designated worker engaged by, the parliamentarian:
a. the person's name
b. whether the person is or was a MOPS employee or a designated worker
c. matters relating to when, and the circumstances in which, the person was
employed as a MOPS employee or engaged as a designated worker, or
d. matters relating to when, and the circumstances in which, the person ceased to
be employed as a MOPS employee or engaged as a designated worker.
430. This may include, for example, details of that individual's employment or
engagement. This information would assist the PWSS to better understand the
composition of parliamentarians' offices for the purposes of discharging their
workplace health and safety obligations under the Work Health and Safety Act.
431. Under paragraph 64(1)(b), the PWSS may request information that relates to work
health and safety matters arising in connection with the duties of parliamentarians or
MOPS employees. For example, this may include information in relation to a
specific work health and safety matter, including the date, nature of the incident, any
witnesses and the incident notification.
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432. Under paragraph 64(1)(c), the PWSS may request information that is reasonably
necessary for the purpose of providing a service under clause 16 to a person who is,
or was, a MOPS employee employed by, or a designated worker engaged by, the
parliamentarian. This may include, for example, details of a complaint, including the
nature of an incident, the parties to the incident or any witnesses.
433. However, subclause 64(2) provides this paragraph does not apply if the alleged
relevant conduct was engaged in by the parliamentarian.
434. Such a request must be in writing. Subclause 64(3) clarifies that the period specified
in the request for information must be reasonable in the circumstances. What is
reasonable in the circumstances may depend upon factors such as the nature and
volume of information requested.
435. Subclause 64(5) provides that a parliamentarian must comply with a request under
this clause within the specified period unless doing so would constitute an offence
against a law of the Commonwealth. Division 4 of Part 2 of this Bill provides that if
a parliamentarian fails to comply with a request for information under this clause
within the specified period, the CEO may determine that the PWSS would include
details about the failure in a public report and, if the parliamentarian is a member of
a Parliamentary party, the CEO must inform the Leader of the party of that failure.
Given these potential consequences for a failure to comply with a request, subclause
64(4) provides that the request must include details about the effect of this Division.
436. Subclause 64(6) clarifies that this clause does not limit the power of the PWSS to
request information from a parliamentarian or any other person. Any other person
may include, for example, a former parliamentarian. Accordingly, the PWSS can
request information from parliamentarians on a voluntary basis in support of, or in
relation to, their functions. Subclause 64(5) provides that a parliamentarian may
comply with any other request by the PWSS for information (including personal
information), unless doing so would constitute an offence against a law of the
Commonwealth.
437. A request for information under this clause may include personal information. The
note under subclause 64(5) notes that this subclause constitutes an authorisation for
the purposes of the Privacy Act and other laws. This recognises that it may be
necessary for the PWSS to request personal information to support its functions,
including its review function.
Clause 65 Requesting information from MOPS employees
438. Clause 65 enables the PWSS to request certain information from MOPS employees
relating to the PWSS's functions.
439. Subclause 65(1) provides that the PWSS may request a MOPS employee give the
PWSS, within a specified period, specified information that relates to:
a. any of the functions or powers of the PWSS, or
b. any of the functions or powers of the CEO.
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440. Such a request must be in writing. Subclause 65(2) clarifies that the period specified
in the request for information must be reasonable in the circumstances. What is
reasonable in the circumstances may depend upon factors such as the nature and
volume of information requested.
441. Subclause 65(4) clarifies that this clause does not limit the power of the PWSS to
request information from a MOPS employee or any other person. Any other person
may include, for example, a former MOPs employee. Accordingly, the PWSS can
request information from a MOPS employee on a voluntary basis in support of, or in
relation to, their functions.
442. Subclause 65(3) provides that a MOPS employee may comply with a request under
this clause within the specified period and may comply with any other request by the
PWSS for information (including personal information), unless doing so would
constitute an offence against a law of the Commonwealth.
443. A request for information under this clause may include personal information. The
note under subclause 65(3) notes that this subclause constitutes an authorisation for
the purposes of the Privacy Act and other laws. This recognises that it may be
necessary for the PWSS to request personal information to support its functions.
PART 8--MISCELLANEOUS
Clause 66 Simplified outline of this Part
444. Clause 66 provides a simplified outline of Part 8 of the Bill to assist the reader.
445. The outline notes that this Part deals with miscellaneous matters, such as the making
of the PWSS rules.
Clause 67 Effect of this Act on parliamentary privileges and immunities
446. Clause 67 clarifies the effect of this Bill on parliamentary privileges and immunities.
447. Clause 67 provides, to avoid doubt, that this Bill does not affect the law relating to
the powers, privileges and immunities of the Parliament. This includes the powers,
privileges and immunities of:
a. each House of the Parliament
b. the members of each House of the Parliament, and
c. the committees of each House of the Parliament and joint committees of both
Houses of the Parliament.
448. The function of parliamentary privilege is to allow for the proper operation of the
Parliament and to protect the ability of the Houses, their members and committees to
exercise their authority and perform their duties. In accordance with section 49 of
the Constitution and subject to the Parliamentary Privileges Act 1987, the powers,
privileges and immunities of the Parliament are those of the House of Commons of
the United Kingdom at the time of Federation.
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449. Accordingly, nothing in this Bill affects the law relating to parliamentary privileges
and immunities.
Clause 68 Review of operation of this Act
450. Clause 68 provides for a review of the operation of the Bill and the PWSS rules.
451. Subclause 68(1) requires the Minister to cause a review of the Bill and the PWSS
rules to be commenced within one year after the commencement of the first session
of each Parliament that commences after the commencement of this section.
452. This review recognises that the establishment of the PWSS as new statutory agency
would be a significant reform, and therefore, there would be value in ensuring that
the PWSS's performance and the underpinning legislative framework are operating
effectively to further the objects of this Bill on a regular basis.
453. Subclause 68(2) provides that a written report of the review must be provided to the
Minister. Under subclause 68(3), the Minister is required to table a copy of the
report in each House of the Parliament within 15 sitting days of that House after the
day on which the report is given to the Minister.
Clause 69 PWSS rules
454. Clause 69 provides a rule-making power.
455. This clause provides that the Minister may make rules prescribing matters required
or permitted by the Bill to be prescribed by the PWSS rules, or necessary or
convenient to be prescribed for carrying out or giving effect to the Bill. Clause 5 of
this Bill clarifies that the term 'PWSS rules' means the rules made under this
clause.
456. For example, the Minister may make rules prescribing:
a. codes of conduct (clauses 5, 14, 18)
b. details of a matter that must or must not be included in a public report under
clause 22 (subclause 22(3))
c. remuneration and allowances to be paid to the CEO (clause 31) or members of
the PWSS Advisory Board (clause 49)
d. matters relating to the operation of the PWSS Advisory Board (clause 55)
e. provision for or in relation to the PWSS Consultative Committee (clause 59),
or
f. a Commonwealth entity, office or appointment under the law of the
Commonwealth for the purposes of giving information to the PWSS for
certain reports (clause 62).
457. Subclause 69(2) clarifies that, to avoid doubt, the Minister is not authorised to make
rules that:
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a. create an offence or civil penalty
b. provide powers of arrest or detention or powers of entry, search or seizure
c. impose a tax
d. set an amount to be appropriated from the Consolidated Revenue Fund, or
e. directly amend the text of the Bill.
458. These limitations are appropriate as these matters would be more appropriately dealt
with in primary legislation.
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