Thursday, 20 June 2024

Parliamentary Workplace Standards and Integrity Bill 2024

Introduction and first reading

The PRESIDENT (18:47): I have a message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to establish a Parliamentary Workplace Standards and Integrity Commission, Parliamentary Integrity Adviser and Parliamentary Ethics Committee, to make consequential and related amendments to Acts and for other purposes.’

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (18:47): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Jaclyn SYMES: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

Statement of compatibility

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (18:48): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I table this Statement of Compatibility with respect to the Parliamentary Workplace Standards and Integrity Bill 2024 (Bill).

In my opinion, the Bill, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this Statement.

Overview

The Bill establishes the Parliamentary Workplace Standards and Integrity Commission (Commission) to investigate alleged parliamentary misconduct by Members of Parliament (Members) and Ministers (including Parliamentary Secretaries). The Commission will also be able to receive and refer public interest disclosures to the Independent Broad-based Anti-corruption Commission (IBAC) and investigate public interest complaints referred to it by IBAC.

The Bill acquits some of the government’s public commitments in response to Operation Watts, a joint investigation of IBAC and the Victorian Ombudsman, including the establishment of the Commission.

The Bill provides for a number of other key reforms including:

• establishing a new Parliamentary Ethics Committee as a Joint House Committee under Part 2 of the Parliamentary Committees Act 2003 (Committees Act) that will have various functions in relation to parliamentary standards and integrity;

• establishing the existing Parliamentary Integrity Adviser (PIA) in legislation and expanding its functions to provide confidential advice and training to Members and Ministers on matters relating to ethics and integrity; and

• amending Victoria’s integrity legislation to integrate the Commission into Victoria’s integrity system including allowing the Victorian Inspectorate to oversee the Commission’s use of investigative powers and its adherence to procedural fairness considerations.

Human Rights Issues

The Bill engages the following human rights under the Charter:

• recognition and equality before the law (section 8);

• privacy and reputation (section 13);

• taking part in public life (section 18);

• a fair hearing (section 24);

• property rights (section 20);

• freedom of expression (section 15); and

• right to be presumed innocent until proven guilty according to law (section 25(1)).

For the following reasons, and having considered all relevant factors, I am satisfied that the Bill is compatible with the Charter and, to the extent that any rights are limited, the limitation is reasonable and able to be justified in a free and democratic society based on human dignity, equality and freedom in accordance with section 7(2) of the Charter.

Recognition and equality before the law (section 8 of the Charter)

Section 8 of the Charter provides that every person:

(1) has the right to recognition as a person before the law;

(2) has the right to enjoy their human rights without discrimination; and

(3) is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

Discrimination, for the purpose of section 8 of the Charter means discrimination within the meaning of the Equal Opportunity Act 2010 (Equal Opportunity Act), on the basis of one or more attributes set out in section ‍6 of that Act. The relevant attributes include age, disability, employment activity, gender identity, personal association, political belief or activity, race or religious belief.

The Bill promotes the right to recognition and equality before the law by enabling the Commission to investigate instances of inappropriate parliamentary workplace behaviour, which includes discrimination against a person on the basis of an attribute set out in section 6 of the Equal Opportunity Act, except on the basis of political belief or activity (clause 3).

This enhances the right of recognition and equality before the law by ensuring that Members and Ministers may be investigated for alleged discrimination in the parliamentary workplace, helping to prevent discrimination on the basis of attributes set out in section 6 of the Equal Opportunity Act.

Section 27 of the Equal Opportunity Act provides that an employer may discriminate on the basis of political beliefs or activities when offering employment to a person as a ministerial adviser, staff for a political party, electoral staff or similar employment. Consistent with this, the Bill excludes political belief or activity from the definition of discrimination (clause 3), so does not promote this aspect of the right under section 8 of the Charter. Political belief or activity is not included in the definition of discrimination, in recognition of the nature of the parliamentary workplace, where people are excluded based on their political allegiances. Such exclusions are necessary for the appropriate functioning of any parliament where different political parties operate.

The right to recognition and equality before the law is also enhanced by other key reforms in the Bill:

• the Bill establishes the PIA in legislation (clause 86) allowing it to continue to provide confidential advice and training to Members and Ministers on their ethical and integrity related obligations.

• The Bill establishes a Parliamentary Ethics Committee (clause 136) in the Committees Act. The Parliamentary Ethics Committee has a number of functions including promoting the Members Code of Conduct to the Parliament and the public, and preparing guidance materials, information and training for Members on integrity and ethical issues.

These reforms will enable advice, training, and resources to be provided to Members and Ministers on their ethical and integrity related obligations, thereby assisting to maintain a safe and respectful parliamentary workplace which is free from bullying, discrimination and other forms of parliamentary misconduct.

In summary, I consider that the right to recognition and equality before the law is enhanced by the Bill.

Privacy and reputation (section 13 of the Charter)

Section 13 of the Charter provides that a person has the right –

(a) not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with (right to privacy); and

(b) not to have their reputation unlawfully attacked (right to reputation).

Subsection 13(a) of the Charter recognises that the right to privacy is only affected if the interference is unlawful or arbitrary. Lawful and non-arbitrary interferences with a person’s privacy is therefore permitted. Subsection 13(b) recognises that the right to reputation is only affected if the interference is unlawful. Lawful interference with a person’s reputation is therefore permitted.

An interference will generally be lawful where it is precise and appropriately prescribed in law. An interference will generally be arbitrary where it is capricious, unpredictable, unjust, or unreasonable, in the sense of being disproportionate to the legitimate aim being sought.

The rights to privacy and reputation as set out in section 13 of the Charter are engaged by a number of clauses in the Bill. These clauses are set out below.

Investigation request

The Commission may request that a person provide any document, information or other thing in the person’s possession for the purpose of an investigation (clause 22). The Commission may also request that a person be interviewed in connection with an investigation (clause 24). A failure to comply with these requests without a reasonable excuse may result in the Commission reporting the failure to the House of Parliament (House) of which the person who is the subject of the referral is or was a Member (clause 27).

These powers engage the rights to privacy and reputation as they could be used to require a person to divulge private or personal information to the Commission which could also impact a person’s reputation. Reporting a failure to comply with an investigation request to the Parliament may result in personal and private information about an alleged person being divulged to the Parliament and, in some circumstances, potentially publicly.

While the above clauses may engage with a person’s right to privacy and/or reputation, this interference is considered lawful on the basis that the Bill precisely prescribes the circumstances in which the Commission can use its powers to request information. Such a request may only be made for the purpose of conducting an investigation in relation to a referral or a public interest complaint.

Further, the powers are not arbitrary, as they will only be used for the reasonable purpose of ensuring that the Commission has the authority to conduct a full and impartial investigation into the conduct of Members or Ministers. The Bill also provides that the Victorian Inspectorate is responsible for monitoring the Commission’s exercise of these powers (clauses 22(3), 24(3) and 164(4A)(a)(i)) to ensure that the powers are exercised for an authorised and appropriate purpose.

Investigative reports

At the end of an investigation, the Commission must prepare an investigative report which includes any findings made by the Commission (clauses 28 and 36). The investigative report is provided to the Privileges Committee or the Premier (clauses 31 to 32 and 36(7)(d) to (f)) depending on whether the accused person was acting in the capacity of a Member or Minister when the investigated conduct took place.

Upon receipt of an investigative report, the relevant Privileges Committee or Premier is required to present an investigative report to the House of which the Member or Minister is a Member (clauses 31, 32, 38 and 39).

These clauses engage the rights to privacy and reputation as, subject to the contents and findings of the investigative report, they may enable the Commission, the Privileges Committee and the Premier to divulge personal and private information regarding an investigation. This includes naming a person who the Commission has found to have committed parliamentary misconduct or against whom a public interest complaint has been upheld.

These clauses are not unlawful as the Bill precisely prescribes the circumstances in which the Privileges Committee may prepare and present an investigative report. They are not arbitrary, as they will only be used for the reasonable purpose of ensuring that the Commission can document and present the findings of an investigation.

Safeguards on the use of private information by the Commission

The Bill includes a number of safeguards on the use of private information to further ensure that the Commission’s powers do not arbitrarily limit a person’s rights to privacy and reputation, including that:

• The Commission may refuse to investigate a referral or public interest complaint in circumstances where the matter is lacking in substance or credibility (clauses 11(6) and 33(5)) and must refuse to investigate a referral in circumstances where the matter is not supported by sufficient evidence (clause 11(2)). This allows the Commission to refuse to investigate allegations (and thereby avoid impacting a person’s privacy or reputation) when such allegations are vexatious or politically motivated.

• Clauses 72 and 75 provide that it is an offence for Commissioners or the Commission’s staff to disclose or take advantage of any information obtained through that role. This provides appropriate deterrence from using or disclosing a person’s private information for an unauthorised purpose.

• Where the Commission includes a statement in an investigative report that presenting a report to Parliament would be contrary to the public interest, it may prepare a summary report that is suitable to be presented to the Parliament (clause 28(9)). The summary report, rather than the investigatory report, will then be transmitted to Parliament by the Premier or relevant Privileges Committee (clauses 31 and 32). The effect of these provisions is to ensure that the Commission will consider whether making an entire investigatory report available is appropriate, or whether certain matters including personal information should be protected.

Protections for individual referrers or affected persons

The Bill maintains the right to privacy and reputation for a person who makes an allegation of parliamentary misconduct or a public interest complaint (individual referrer) or the person who is directly affected by the alleged conduct (affected person) by providing for appropriate protections in the Bill. These protections help ensure that an individual referrer’s or affected person’s reputation is not impacted as a result of the Commission’s investigation.

Clause 150 provides that the Commission is a body to whom public interest disclosures can be made. This ensures that the protections set out in Parts 6 and 7 of the Public Interest Disclosures Act 2012 apply to disclosures made to the Commission, including section 52 of that Act which makes it an offence to disclose the content of a disclosure.

The Commission must also have regard for the safety, wellbeing and privacy of individual referrers when determining whether to dismiss, defer or redirect a referral and when investigating a public interest complaint (clauses 40(2)(a) and 40(3)(a)).

Further, an investigative report must not include information that is likely to lead to the identification of an individual referrer or affected person (clauses 28(4)(a) and 73(4). The Commission must also consider any request for confidentiality from an individual referrer when determining whether an investigative report should be presented to Parliament (clauses 28(3)(a) and 36(3)(a)).

These safeguards also promote the right to equality and recognition before the law by providing for a parliamentary workplace where referrers have protections under the Bill when reporting alleged bullying, discrimination or other forms of inappropriate workplace behaviour.

Advice provided by the PIA

Upon request, the PIA will be able to provide confidential oral or written advice to Members and Ministers on ethics and integrity related obligations (clause 87(1)(a)). The PIA must keep a record of all written advice provided to Members and Ministers and may keep a record of any such oral advice (clause 101).

These clauses engage the rights to privacy and reputation as the PIA will be required to hold personal and private information which relates to the ethical or integrity related obligations of individual Members or Ministers. Such information may be harmful to a person’s reputation.

However, any potential interference with the rights to privacy or reputation on the basis of the above clauses is considered lawful, as the Bill precisely prescribes the circumstances in which the PIA may store a Member or Minister’s personal information.

Further, the interference is not arbitrary as the PIA is subject to strict confidentiality requirements, including a prohibition on disclosing any advice provided to a Member or Minister by the PIA or any record of such advice (clause 102(1)(b)). The PIA is also prohibited from complying with an order from either House of Parliament seeking the contents of any advice provided to a Member without the express consent of that Member (clause 102(3)). Such limitations ensure that private and personal information is only used for the reasonable purpose of the PIA maintaining appropriate records.

Conclusion for the right to privacy and reputation

To the extent that a person’s right to privacy and reputation may be interfered with through the exercise of the Commission’s powers provided for in the Bill, I consider that this interference will be lawful and not arbitrary. Any powers used by the Commission are likely to be proportionate to the impact on the privacy and reputation of the person being investigated, the person who is alleging the conduct and/or any other third party who has made a referral to the Commission.

The limits on the right to privacy and reputation set out above also promote the right to recognition and equality before the law by enabling the Commission to conduct thorough investigations, report on their findings, and help protect people from bullying, discrimination or other forms of inappropriate workplace behaviour.

For the reasons set out above, I consider that the Bill is consistent with the right to privacy and reputation in section 13 of the Charter.

Taking part in public life (section 18 of the Charter)

Section 18(1) of the Charter provides that every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs directly or through freely chosen representatives.

Section 18(2) provides that every eligible person has the right, and is to have the opportunity, without discrimination to vote and be elected at elections that guarantee the free expression of the will of the electors; and to have access, on general terms of equality, to the Victorian public service and public office.

There is limited Victorian judicial consideration of the full scope of these rights (which are modelled on the International Covenant on Civil and Political Rights). However, the rights clearly protect a person’s ability to choose their elected representatives, requires those representatives to be accountable to the electorate, to participate in public affairs and to be elected to public office.

The Bill establishes the Commission as an oversight body to investigate and sanction parliamentary misconduct and public interest complaints. The Commission will promote a safe parliamentary workplace. This will enable people, in particular Ministers and Members as elected representatives, to perform their parliamentary roles effectively free from bullying, discrimination and other forms of inappropriate workplace behaviour. This will also minimise the possibility that a person who may otherwise seek to be elected to public office is deterred from doing so due to fear of discrimination.

In providing oversight for those participating in public life, the Commission also has the power to recommend serious sanctions against a Member or Minister upon a finding of serious parliamentary misconduct, for a failure to comply with an investigation or where the Commission upholds a public interest complaint.

The sanctions that may be recommended by the Commission include:

• the withdrawal of services or removal of access to certain facilities or any other personal restriction relating to the functions of a Member or Minister (clauses 29(4)(c), 29(6)(c), 37(4)(c) and 37(6)(c)).

• that the Member is discharged from a parliamentary committee (clauses 29(6)(d) and 37(6)(d)).

• that a Member is suspended from the House or their seat is declared vacant (among other sanctions specified in section 31 of theMembers of Parliament (Standards) Act 1978) (clauses 29(6)(e) and 37(6)(e)).

• the withdrawal of the person’s commission or appointment as a Minister (clauses 29(4)(d) and 37(4)(d)).

While the Commission has the power to recommend the above sanctions, it cannot directly impose one of these sanctions which would impact the Minister or Member’s participation in public affairs by preventing their participation in the activities of the Parliament, including by limiting their access to certain facilities or preventing their participation on a Parliamentary Committee. The relevant Privileges Committee or the Premier will make their recommendations for sanctions to the relevant House of Parliament which is then responsible for determining the final sanction to be imposed (clauses 31 and 32).

This approach ensures that Members are subject to appropriate oversight by the Commission while balancing the important Westminster and Constitutional convention of parliamentary sovereignty. It also ensures that the Commission cannot directly vacate a Member or Minister’s seat, which would deprive the right of the Victorian public to freely choose their elected representatives at state elections. It is appropriate that only the Parliament should be able to impose such a sanction.

The right to take part in public life is enhanced by establishment of the PIA in legislation (clause 86) and the Parliamentary Ethics Committee as a Joint House Committee in the Committees Act (clause 136). These bodies will provide essential resources for Members and Ministers to help them understand their ethical and integrity related obligations, thereby assisting them to make a positive contribution to public life and a safer environment for all people in the parliamentary workplace.

In my view, the reforms are reasonable, generally enhance, and do not unreasonably limit the right to take part in public life under the Charter, as they seek to ensure that the parliamentary workplace is safe and free from discrimination. Therefore, the Bill is consistent with the right to take part in public life in section 18 of the Charter.

Right to a fair hearing (section 24 of the Charter)

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The right to a fair hearing rests on the procedures being fair and the person who is subject to proceedings having a reasonable opportunity to put their case in conditions that do not place them at a substantial disadvantage.

The Commission will not conduct civil or criminal proceedings and therefore the right is not directly engaged. However, the Commission will be able to investigate referrals relating to parliamentary misconduct and public interest complaints and impose or recommend a sanction. As such, appropriate procedural fairness requirements are included in the Bill. These include:

• Clauses 21(4)(b)) and 33(7)(b) provide that when conducting an investigation, the Commission is bound by the rules of procedural fairness. This ensures that the Commission adheres to the procedural fairness requirements established at common law, which includes the right to a fair hearing.

• Clause 164 provides that the Victorian Inspectorate is responsible for overseeing the Commission including in assessing its compliance with procedural fairness requirements. This ensures that there is appropriate oversight to ensure that the Commission is adhering to its obligation of providing a fair hearing to an accused person.

• Clauses 28(6)(a) to (c) and 36(6)(a) to (c) provide that if the Commission intends to include an adverse finding about a person in an investigatory report, it must:

• give the person an opportunity to respond to the proposed finding;

• consider any response by the person in preparing the report; and

• set out the response against any relevant finding in the report.

These clauses uphold the fair hearing right by giving a person a reasonable opportunity to consider and respond to any potential findings that may be included in the Commission’s report.

In light of the above, I consider that the Bill is compatible with the right to a fair hearing under section 24 of the Charter.

Property Rights (section 20 of the Charter)

Section 20 of the Charter provides that a person must not be deprived of their property rights other than in accordance with the law. This right requires that powers that authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

Property rights may be engaged through the Commission’s power to request by written notice, any document, information or other thing in a person’s possession that the Commission considers necessary for the purpose of conducting an investigation in relation to a referral or public interest complaint (clauses 22 and 35). A failure to comply with an investigation request may result in a person being reported to the House of which they are a member (clause 27). Clause 23 provides that the Commission must return any document or other thing provided on a request under clause 22 when the document or thing is no longer necessary for conducting the investigation.

These clauses allow the Commission to deprive a person of their property rights where the property would be relevant to the Commission’s investigation. A failure to comply could result in the Minister or Member being reported to the Parliament. However, the Commission’s right to deprive a person of their personal property is clearly conferred by the Bill and as such, any deprivation of property would be in accordance with the law.

Further, any deprivation of property would only be temporary and for the limited purpose of the Commission conducting a thorough investigation into inappropriate workplace behaviour or other forms of parliamentary misconduct. This allows the Commission to provide a safe parliamentary workplace which protects and promotes the rights to recognition and equality before the law (section 8) and the right to take part in public life (section 18).

In light of the above, I consider any deprivation of property resulting from an investigation request under clause 22 will be in accordance with the law and is therefore compatible with property rights under section ‍20 of the Charter.

Freedom of expression (section 15 of the Charter)

Section 15 of the Charter provides that:

(1) every person has the right to hold an opinion without interference.

(2) every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and includes information imparted orally or in writing.

Section 15(3)(a) of the Charter provides that the right may be subject to lawful restrictions which are reasonably necessary to respect the rights and reputation of other persons.

The right is engaged through the Commission’s powers to investigate, recommend, or directly impose a sanction. In these circumstances, Members or Ministers may be punished for written or oral expression in the parliamentary workplace where such expressions are forms of parliamentary misconduct or meet the threshold for a public interest complaint to be upheld. This may be especially relevant to the Commission’s jurisdiction to review instances of inappropriate workplace behaviour, where Ministers and Members can be investigated for bullying, discrimination or harassment in the parliamentary workplace.

The right may also be engaged through the Commission’s powers to request information or a person’s attendance at an interview in relation to a referral or public interest complaint (clauses 22, 24 and 35). This could interfere with a Member or Minister’s right to freely express their opinion without interference.

The clauses set out above only limit a person’s freedom of expression to the extent necessary for the Commission to appropriately investigate parliamentary misconduct and public interest complaints. Such powers ensure a safe parliamentary workplace and are reasonably necessary to respect the rights and reputation of people in the parliamentary workplace.

As such, although the right to freedom of expression is engaged, I consider such limitations as reasonable and justified in accordance with section 7(2) of the Charter.

Right to be presumed innocent until proven guilty (section 25(1) of the Charter)

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law.

The right in section 25(1) of the Charter is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

The Commission is not responsible for conducting criminal proceedings. As such, the right is not directly engaged. Nonetheless, it is important that appropriate safeguards are in place to protect the rights of people being investigated by the Commission.

The Bill allows the Commission to report a person who fails to comply with an investigation without reasonable excuse to the Parliament (clause 27). The Commission may also recommend the imposition of a serious sanction on the basis of a person’s failure to comply with an investigation request without a reasonable excuse (clauses 29 and 37).

In these circumstances, a sanction could be imposed by the Parliament on the basis of a person’s failure to comply with an investigation (rather than an actual finding of parliamentary misconduct or a public interest complaint being upheld).

The Commission cannot directly impose any criminal punishment if a person fails to comply with its investigations. As such, the Commission’s powers to report people to the Parliament for non-compliance are necessary to promote compliance with the Commission’s investigations. If no such powers were present, person could refuse to comply with an investigation, with no consequences. In such circumstances the Commission would not provide appropriate oversight over Members and Ministers.

Further, oversight over the use of these powers is provided by the Victorian Inspectorate. The Victorian Inspectorate can act to ensure that the powers are being used appropriately and for their intended purpose (clauses 22(3), 24(3) and 164(4A)(a)(i)).

In light of the above, I consider that the Bill is compatible with the right to be presumed innocent until proven guilty under section 25(1) of the Charter.

Conclusion

The Bill promotes and protects Charter rights. To the extent that the Bill affects or limits Charter rights, I consider that these limitations as reasonable and demonstrably justifiable.

Hon Jaclyn Symes MP

Attorney-General

Minister for Emergency Services

Second reading

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (18:48): I move:

That the bill be now read a second time.

Ordered that second-reading speech be incorporated into Hansard:

Introduction and overview

The Government is proud to introduce this landmark legislation which will take yet another important step to strengthen Victoria’s parliamentary standards and integrity regime within our system of Westminster government.

This Parliamentary Workplace Standards and Integrity Bill will promote the highest standards of accountability, integrity and behaviour of all Members of Parliament (MPs), including Ministers and Parliamentary Secretaries. It will strengthen public confidence in our elected representatives and promote the Parliament of Victoria as a safe workplace for all people. The wellbeing of staff and their right to a safe and respectful workplace is not negotiable.

The Bill has been informed by extensive consultation with a wide range of stakeholders. This includes government and non-government MPs, Victoria’s integrity agencies, the Presiding Officers, Clerks of Parliament, the current Parliamentary Integrity Adviser, and other experts and public offices across law, workplace standards, human rights, equal opportunity and gender equality.

This Bill will continue to build on this Government’s work to deliver the most significant overhaul of parliamentary oversight in Australia. Together, these reforms provide a modern framework that holds Parliament and Government to the highest standards that all Victorians expect and deserve.

I will now speak to the key components of the Bill, starting with the Parliamentary Workplace Standards and Integrity Commission (the Commission).

Establishment of the Parliamentary Workplace Standards and Integrity Commission

The Parliamentary Workplace Standards and Integrity Bill 2024 implements a key commitment of the Labor Government in its response to the Independent Broad-based Anti-corruption Commission’s (IBAC’s) and Victorian Ombudsman’s Operation Watts special report. The Government supported all 21 recommendations and made three additional commitments to address parliamentary workplace standards.

The Operation Watts special report found that the current oversight of MPs, Ministers and Parliamentary Secretaries is limited, fragmented, ad hoc and falls short of community expectations. Individuals who wish to report inappropriate workplace behaviour by MPs, Ministers and Parliamentary Secretaries are also required to navigate difficult employment and management arrangements. These arrangements can be unclear, lack accountability and disempower people who report inappropriate behaviours.

This Bill will address these concerns by establishing an independent Parliamentary Workplace Standards and Integrity Commission to receive, manage and resolve allegations of parliamentary misconduct and inappropriate parliamentary workplace behaviour. The Commission’s jurisdiction will include receiving complaints of bullying, harassment, discrimination, victimisation and occupational violence and aggression.

The Commission has been developed drawing on recommendations of detailed reviews, the best aspects of existing integrity frameworks in other jurisdictions and accepted contemporary workplace standards.

The Bill gives effect to seven principles that the Commission, once established, must have regard to in performing its functions. These are:

• Integrity – the Commission will support the integrity of the Parliament and community expectations of their elected representatives.

• Independence – the Commission will act free from influence or political bias.

• Effectiveness – the Commission will ensure there is an effective parliamentary standards and integrity regime.

• Accountability – the Commission will facilitate a fair, proportionate and consistent process to hold elected representatives responsible for their conduct in the parliamentary workplace.

• Transparency – the Commission will be open to public scrutiny.

• Respect and safety – the Commission will promote a respectful and safe parliamentary workplace for all participants.

• Fairness – the Commission will support involvement from all participants in its processes, impartially considering all relevant facts and making decisions based on the available information.

The Commission will be seamlessly integrated into Victoria’s existing oversight and integrity regime. It will promote a ‘no wrong door’ approach for complaints about misconduct and a referral and information sharing framework that ensures matters are dealt with by the most appropriate integrity body. The Commission will not assume the jurisdiction of any existing body that already has explicit jurisdiction to deal with a matter.

The Commission will provide a clear pathway for allegations of misconduct to be heard and investigated. By holding MPs, Ministers and Parliamentary Secretaries accountable for inappropriate behaviours, it will also act as a deterrent, ensuring that all MPs behave to the highest of standards as is our obligation as elected representatives of the people of Victoria.

Critically, the independent Commission will balance the needs of people making a referral for confidentiality and safety with the needs of MPs for protection from trivial or vexatious complaints, and attempts to weaponise or politicise the work of the Commission. It will be bound by the rules of procedural fairness and must act as expeditiously and with as little formality as possible. This will improve the outcomes for all parties involved and avoid the need for unnecessarily protracted and costly investigations.

The Integrity and Oversight Committee of Parliament will monitor, review, and report to both Houses of Parliament on the performance of the Commission.

Further, the Victorian Inspectorate will provide independent oversight of the Commission, ensuring compliance with procedural fairness, receiving complaints about the Commission and investigating the conduct of the Commission and its officers.

The Bill also introduces complementary reforms to the Code of Conduct in the Members of Parliament (Standards) Act 1978 (MP Standards Act). MPs will have a positive obligation to foster a healthy, safe, respectful and inclusive environment in the parliamentary workplace that is free from bullying, sexual harassment, assault and discrimination. MPs will also be required to demonstrate respect for parliamentary standards and integrity, including an obligation to comply with a reasonable request made by the Commission.

I will now speak in more detail about the key functions of the Commission.

Functions of the Commission

Making referrals

The Commission will be able to accept referrals from any person or body. The Bill allows reports to be made anonymously to the Commission, to encourage people to report allegations of parliamentary misconduct without fear of reprisal. The Commission will not be able to receive referrals about conduct that took place before it was established, nor will it have own motion powers.

In relation to any MP, including any Minister or Parliament Secretary acting in their capacity as an MP, the Bill defines parliamentary misconduct broadly as:

• a contravention of the MP Code of Conduct

• a wilful, repeated, or deliberate contravention of Part 4 of the MP Standards Act, which is the Register of Interests

• wilful, repeated, or deliberate misuse of work-related parliamentary allowances

• wilful, repeated, or deliberate misuse of the Electoral Office and Communications Budget

• inappropriate parliamentary workplace behaviour.

Inappropriate parliamentary workplace behaviour includes behaviours such as bullying, harassment (which includes sexual harassment), discrimination, victimisation or occupational violence or aggression.

In relation to a person in their capacity as a Minister or Parliamentary Secretary, the Bill defines parliamentary misconduct as inappropriate parliamentary workplace behaviour.

The Bill also defines serious parliamentary misconduct as parliamentary misconduct that is:

• intentional, wilful or deliberate

• occurs frequently or forms a part of a pattern of behaviour, or

• serious enough to provide reasonable grounds for a Member having to vacate their seat.

The Commission will also be able to redirect a report of misconduct if it considers it would be better dealt with by another entity or body. For example, it is expected that criminal matters will be referred onto Victoria Police and matters of alleged corrupt conduct will be referred to IBAC.

The Bill does not limit a person who has made a referral to the Commission from also making a complaint to another body or entity, or otherwise seeking redress for their matter. This will ensure that victim-survivors can deal with an issue as they wish. The Commission will be able to defer dealing with an issue or otherwise dismiss it if it decides the matter will be dealt with by an appropriate body.

Dealing with referrals

As I spoke to before, the Bill requires the Commission to deal with complaints made to it with as little formality, and as expeditiously as possible. This is intended to encourage the Commission to facilitate early and confidential resolution of matters where appropriate.

The Commission can determine that a complaint can be dealt with through an appropriate dispute resolution process. This can occur at any time before, during or after conducting an investigation or as an alternative to conducting an investigation. The Commission must also ensure this takes place as soon as practicable and provide reasonable assistance to the parties during the process.

The Bill also includes safeguards to minimise the risk of the politicisation of the Commission. The Commission will be required to dismiss a referral if it considers that it is not supported by sufficient evidence. The Commission will be able to seek information before it makes this decision. The Commission may also dismiss referrals that it considers, among other things, to be lacking in substance or credibility, trivial, frivolous, or vexatious or otherwise not made in good faith. The Commission will be required to publish guidance on how it will dismiss referrals, to publicly reinforce that the Commission will not deal with politically motivated referrals that do not have merit.

The Bill also creates an offence with a penalty of up to 12 months’ imprisonment for any person who provides false or misleading information to the Commission. This is intended to prevent any misleading referrals and to safeguard risks of politicising the Commission.

Furthermore, if the Commission completes an investigation and does not make any findings of parliamentary misconduct, the relevant Member or Minister will have the opportunity to express a preference for the investigation to stay confidential or for the report to be tabled in Parliament to clear their name.

Investigation powers

The Commission may decide to investigate a matter, rather than resolve it through the informal mechanisms in the Bill. The Bill sets out proportionate and appropriate powers to perform these investigation functions, including powers to request information or attendance at an interview. The Commission will also have the power to apply to the Supreme Court to determine if a person has a reasonable excuse not to comply with an investigation request.

During an investigation, the Commission will be required to continue to balance the needs of individual referrers for confidentiality and safety with the needs of MPs, Ministers or Parliamentary Secretaries, which includes the right to procedural fairness.

If a current or former Member fails to comply with an investigation request without a reasonable excuse, the Commission will be able to:

• end its investigation and recommend sanctions for non-compliance. The sanctions that may be recommended are like those that can be recommended for a finding of serious parliamentary misconduct.

• report the non-compliance to Parliament. The Parliament can then use its powers to refer the matter to the Privileges Committee to investigate if the Member has breached parliamentary privilege by failing to comply or otherwise pass a contempt motion against the relevant Member.

Tabling reports

The Commission will work with the existing structures in Victoria’s parliamentary system to enable sanctions to be determined and reports to be tabled in Parliament.

The Commission will be required to prepare a report at the end of any investigation and to provide these reports to the relevant Privileges Committee (including reports about the Premier), or Premier if the report relates to inappropriate workplace behaviour of a Minister or Parliamentary Secretary.

Following consideration of the report, the Privileges Committee and Premier in turn will be required to table the reports in Parliament (unless the Commission determines that it is not in the public interest to do so). Where the report includes recommended sanctions for serious parliamentary misconduct or failure to comply with an investigation request, the Privileges Committee must consider the report and invite the subject of the report to provide a written response about the sanctions.

If the Committee or Premier determine that a different sanction should apply than recommended by the Commission, they must provide an explanation as part of tabling the report.

These strict reporting requirements will address public expectations that there will be full transparency concerning allegations of parliamentary misconduct by MPs and ministers.

Confidentiality

The Bill provides for strict confidentiality requirements which offer protection to both the referrer and the MP, Minister or Parliamentary Secretaries who may be at the centre of a complaint or allegation of misconduct.

The Commission will also have powers to issue Confidentiality Notices in line with other integrity agencies. Confidentiality Notices can safeguard the integrity of the investigation and protect the privacy, safety, welfare and reputation of those involved in the investigation. The issuing of Confidentiality Notices will be a key aspect of the Commission’s work that will monitored by the Victorian Inspectorate.

The Bill also creates an offence if the Commission knowingly discloses any information acquired in the course or performance of the functions under the Bill without authority to do so.

Public Interest Disclosures

Currently, a public interest disclosure about a Member, including in their capacity as a Minister, generally must be made to the relevant Presiding Officer.

The Operation Watts special report recommended that alternative channels should be created for a person to make a disclosure. The Bill addresses this recommendation in three ways:

• the Commission will be able to receive and deal with public interest complaints that relate to a current or former MP, Minister or Parliamentary Secretary

• people will be able to make a disclosure directly to IBAC, as the clearinghouse for all public interest disclosures

• Presiding Officers will be required to notify IBAC of any public interest disclosures made to them.

These reforms will ensure that the establishment of the Commission fits within Victoria’s existing integrity and complaints scheme and that there is a ‘no wrong door’ approach to reporting alleged misconduct.

Sanctions

The Commission will be able to impose sanctions directly on a current or former MP, Minister or Parliamentary Secretary who has been found to have engaged in parliamentary misconduct. The Commission’s ability to impose sanctions balances the ultimate authority of Parliament (over Members) and the Premier (over Ministers and Parliamentary Secretaries) with the public interest that the Commission will independently hold Members and Ministers to account.

The full suite of sanctions available for parliamentary misconduct are specified in the Bill to ensure transparency, procedural fairness and consistency. Sanctions may include a requirement to provide a written apology, participate in an education or training program, or enter into a behaviour agreement with the relevant Presiding Officer.

Where the Commission finds a person has engaged in serious parliamentary misconduct, the Commission can recommend sanctions in its report to the relevant Privileges Committee or Premier. The only exception to this is that the Commission can decide directly under the Parliamentary Salaries, Allowances and Superannuation Act 1968 that a person is not entitled to their separation payment if they have been found to have engaged in serious misconduct.

The Bill provides guidance on sanctions for serious parliamentary misconduct, informed by existing powers of the Houses and Members of Parliament (Standards) Act 1978. The Privileges Committees, Premier and Parliament will not be obliged to agree to these sanctions. However, where the Privileges Committee or Premier does not agree, they will need to provide reasons when the report is tabled in Parliament.

The Bill also sets out penalties that may be imposed, especially in instances where confidential information has been knowingly disclosed or taken advantage of. This also includes the disclosure of or mishandling of Confidentiality Notices, which carry a penalty of up to 120 penalty units or imprisonment for up to 12 months.

Penalties also apply for any person who knowingly provides false or misleading information to the Commission, who threatens a person making a referral or who seeks to hinder or obstruct any employee of the Commission, each of which also carry a penalty of up to 120 penalty units or imprisonment for up to 12 months.

Appointment of Commissioners

The Bill allows up to three Commissioners to be appointed to the Commission, with one to be the Chair of the Commission. Each Commissioner will be an independent officer of the Parliament. Commissioners will be required to collectively decide actions at key stages of a referral or investigation, and can draw on their collective expertise.

There are strict eligibility requirements for the appointment of Commissioners. Commissioners must be of good character and high standing in the community and will need to have extensive knowledge, expertise or experience in one or more of the specified fields. A person will not be eligible to be appointed if they are or have been a member of an Australian Parliament, Australian Local Council, registered political party or a registered lobbyist within the last five years. This is another important feature to reinforce the independence of Commissioners and to safeguard against the politicisation of the Commission.

Each Commissioner will be appointed by the Governor-in-Council for up to five years. The responsible Minister will propose appointments to the Integrity and Oversight Committee of Parliament, who must unanimously support the recommendation before a Commissioner can be appointed.

Oversight of the Commission

Consistent with Parliament’s scrutiny of other independent entities such as IBAC, the Integrity and Oversight Committee will monitor and review the performance of the duties and functions of the Commission. It is not intended that the Integrity and Oversight Committee will investigate specific complaints or review decisions made by the Commission.

The Victorian Inspectorate is a key part of Victoria’s integrity system, overseeing and monitoring the proper functioning of integrity agencies within Victoria. This Bill amends the Victorian Inspectorate Act 2011 to provide the Victorian Inspectorate with independent oversight of the Commissioner and its officers. The Victorian Inspectorate will have:

• Proactive oversight of the Commission, with regular access to all investigative requests and Confidentiality Notices made by the Commission to ensure these are administered appropriately.

• Reactive oversight of the Commission, through the ability to investigate any part of the Commission’s functions if someone makes a complaint (for example, about an appropriate dispute resolution outcome).

• Own motion powers over the Commission, to instigate their own review at any time (for example, if they are concerned about the Commission’s performance of a certain function).

• This oversight will strengthen confidence in the Commission and its processes. It will also provide MPs, Ministers and Parliamentary Secretaries with assurances that the Commission’s investigation requests will be issued appropriately, and that any findings of a failure to comply without reasonable excuse is justified.

Annual reporting

The Bill provides that the Commission must report annually on the number of referrals received and dismissed, public interest complaints, referrals that have been redirected and those which have been investigated by the Commission, and outcome reports.

The Bill provides detailed and thorough requirements for annual reporting to ensure Parliament and the public can monitor referrals and allegations of misconduct – for example, the annual report is required to contain an analysis of the nature, scope and trends of parliamentary misconduct.

Further key aspects of the Bill

In addition to establishing the Commission, the Bill includes several other reforms to acquit the recommendations of the Operation Watts special report and further promote integrity within Victoria’s parliamentary system.

Parliamentary Ethics Committee

The Bill will establish a new Parliamentary Ethics Committee that will have various functions in relation to parliamentary standards and integrity.

The Parliamentary Ethics Committee will be a Joint House Committee, established under the Parliamentary Committees Act 2003. Once established it is intended that the Parliamentary Ethics Committee foster an ethical parliamentary workplace through promoting and reviewing the Members Code of Conduct, preparing guidance about the ethical obligations of members of Parliament, and providing information and training sessions to MPs on integrity and ethical issues, and various other functions. The Parliamentary Ethics Committee will also consider the appointment of the Parliamentary Integrity Adviser.

Parliamentary Integrity Adviser

The Bill will establish the existing role of Parliamentary Integrity Adviser (PIA) in legislation and expand their functions. This will enable the PIA to provide confidential advice and training to MPs, Ministers and Parliamentary Secretaries on matters relating to ethics and integrity to support them to perform their public duties.

The PIA will be an independent officer of Parliament and sit alongside the Commission. This will ensure there is appropriate separation between the advisory, education and investigatory bodies in Victoria’s parliamentary standards and integrity regime.

Provisions are included in the Bill to transition the current PIA to the first statutory PIA role to support continuity. Going forward, the PIA will be appointed by Governor-in-Council on the recommendation of the relevant Minister. The newly established Parliamentary Ethics Committee will be consulted on the proposed appointment and have an option to veto any recommendation within 30 days.

Amendments to other Acts

The Bill will also make consequential amendments to 11 other Acts to integrate the entities established by this Bill within existing integrity regimes and oversight frameworks.

This includes amendments to the:

• Independent Broad-based Anti-corruption Commission Act 2011, so that IBAC can refer public interest complaints to the Commission.

• Judicial Commission of Victoria Act 2016, so that the Judicial Commission can notify the Commission of any relevant matter.

• Local Government Act 2020, so that the Chief Municipal Officer can disclose information to the Commission.

• Members of Parliament (Standards) Act 1978, to create positive obligations for Members and to enable the Clerks of Parliament to make referrals to the Commission for breaches of the Register of Interests.

• Ombudsman Act 1973, to link the agencies in the integrity regime and enable information sharing.

• Parliamentary Committees Act 2003, to establish the Ethics Committee and create new responsibilities for the Integrity and Oversight Committee.

• Parliamentary Salaries, Allowances and Superannuation Act 1968 to allow the Commission to make determinations about separation payments.

• Public Administration Act 2004 so that the Commission will be defined as a special body, the Chair of the Commission will have the function of the public service body Head and the Commission can employ Victorian Public Sector staff.

• Public Interest Disclosures Act 2012 so that the Commission can receive public interest disclosures and refer them to IBAC, and so the Presiding Officers must refer a disclosure to IBAC.

• Racing Act 1958 so that the Racing Integrity Commission can share and disclose information with the Commission.

• Victorian Inspectorate Act 2011 to integrate the Commission with the integrity regime, and to provide the Victorian Inspectorate with appropriate oversight over the Commission.

Review of Act

The Bill provides that the relevant Minister must seek an independent review of the operation of this Act and the amendments made to other Acts within two years, with the review to be completed within 12 months after it has begun.

This review mechanism will ensure that the effectiveness of the reforms and the function of the Commission are assessed.

Conclusion

In summary, this Bill and these reforms will promote the highest standards of accountability, integrity and behaviour of all MPs, Ministers and Parliamentary Secretaries.

The Bill will contribute to creating a more positive parliamentary workplace, aligned with community expectations and contemporary standards.

Together with other recent Government reforms, including an updated Ministerial Code of Conduct, this Bill will significantly improve Victoria’s integrity regime and further strengthen public confidence in the institutions that serve them.

I commend this Bill to the House.

Georgie CROZIER (Southern Metropolitan) (18:48): I move:

That debate on this bill be adjourned for one week.

Motion agreed to and debate adjourned for one week.