Explanatory Memorandum
(Circulated by authority of the Special Minister of State, Senator the Hon Don Farrell)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Members of Parliament (Staff) Amendment 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 Members of Parliament (Staff) Act 1984 (MOPS Act) forms part of the employment framework for the staff of parliamentarians, including both personal staff (who are employed by office-holders, often in adviser positions) and electorate staff (who are employed by all parliamentarians to manage their electorate offices). The other aspects of the framework include determinations on terms and conditions of employment by the Prime Minister, an enterprise agreement and employment contracts. In 2022, the MOPS Act was comprehensively reviewed for the first time since it came into force in 1984. The Bill would implement legislative amendments recommended by the Department of the Prime Minister and Cabinet in the Review of the Members of Parliament (Staff) Act 1984 (Cth) (MOPS Act Review) to modernise these employment arrangements, provide for greater clarity about roles and responsibilities and improve transparency within the MOPS Act employment framework.
Human rights implications
3. The Bill promotes rights to just and favourable conditions of work, the rights of equality and non-discrimination, and the right to privacy and reputation. Any potential limitation the right to a fair trial posed by Clause 1 of Part 1, Schedule 4 in the Bill (removing an avenue to seek reasons for a suspension decision under the Administrative Decisions (Judicial Review) Act 1977) would be reasonable, necessary and proportionate to achieve the aim of protecting the personal nature of the decision and the utility of suspension in the MOPS Act employment framework.
Right to just and favourable conditions of work
4. The Bill seeks to promote the right to the enjoyment of just and favourable conditions of work, primarily contained in article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right includes, but is not limited to, ensuring safe and healthy working conditions (article 7(b)) and equal opportunity for everyone to be promoted (article 7(c)). This is achieved by the following measures in the Bill:
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- inserting employment principles, which set expectations for MOPS Act employment, including that the workplace is safe, free from bullying, harassment and discrimination, fosters diversity, and where employing parliamentarians and their employees foster a culture of professionalism and integrity (see Schedule 1, Item 13),
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- requiring parliamentarians and office-holders to assess a person's capability to perform a particular role before employing a person (see Schedule 1, Item 13, new subsection 8(3)),
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- requiring parliamentarians and office-holders to notify and consult with a proposed new statutory human resources body, the Parliamentary Workplace Support Service (PWSS), about decisions to terminate or suspend employment (see Schedule 2, Item 9 and Schedule 2, Item 14, new section 19),
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- requiring certain determinations of terms and conditions to be notifiable instruments, and therefore enhancing transparency on terms and conditions of employment (see Schedule 1, Item 13, new subsection 13(2)),
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- highlighting the requirement for parliamentarians, office-holders and MOPS Act employees to act consistently with obligations under Commonwealth employment laws (including anti-discrimination, and work health and safety legislation) and applicable enterprise agreements (see for example, Schedule 1, Item 13, new sections 8 and 9, and notes to new sections 16 and 18).
5. The Bill also seeks to support consistent and fair employment outcomes which further promote the enjoyment of rights in article 7. In particular, the Bill includes provisions which would:
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- limit automatic termination of the employment of certain electorate employees to improve job security and prevent unnecessary terminations (see new subsection 14(1) item 3 of table),
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- require parliamentarians and office-holders to notify and consult with a new statutory human resources body, the PWSS, about decisions to terminate or suspend employment to help ensure that these decisions are carefully considered, procedurally fair, and consistent with legal obligations,
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- introduce a new express power enabling employing individuals to suspend MOPS employees from duties which is intended to assist parliamentarians and office-holders to address risks posed by an employee continuing their duties, facilitate proper processes when considering terminations of employment, and to promote fair decisions about terminations of employment.
Rights of equality and non-discrimination
6. The rights of equality and non-discrimination are described in articles 2(1) and 26 of the International Covenant on Civil and Political Rights (ICCPR) and article 2(2) of the ICESCR and are reflected in four of the other core human rights treaties to which Australia is a party. The rights have both positive and negative obligations. The Bill promotes both the positive obligation to protect and advance the enjoyment of the right to equality, and the negative obligation to refrain from discrimination based on protected factors. The Bill promotes these rights in the objects clause, in the employment principles and the provisions that highlight obligations under anti-discrimination laws, discussed above. More generally, the requirements in the Bill for parliamentarians and office-holders to notify and consult (as applicable) with an independent human resources body, the PWSS, are likely to support the enjoyment of the rights of equality and non-discrimination. The PWSS will be well placed to provide information and advice to parliamentarians and office-holders on issues related to equality and non-discrimination that may arise in this context.
Right to privacy and reputation
9. The right to privacy and reputation in article 17 of the ICCPR, provides that no-one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, or attacks on reputation. Privacy extends to information about a person.
10. Provisions in the Bill promote the right to privacy by excluding the requirement to publish determinations of terms and conditions of employment or directions to defer automatic termination of employment where the instruments would specify a person (see new subsections 13(3) and 15(2)). By only requiring determinations and directions with broader application to be published, the objective of increasing transparency about terms and conditions of employment is appropriately balanced with legitimate concerns about information about individuals being made public.
11. Other provisions in the Bill could be seen to limit privacy, by requiring a parliamentarian or office-holder to consult or notify the PWSS about decisions to suspend or terminate an individual employee's employment. The interference with a person's privacy by disclosing information about them, however, is not considered arbitrary or unlawful. The purpose of sharing of personal information with the PWSS is to ensure parliamentarians and office-holders can access human resource expertise to inform significant decisions about a person's employment and support them to take appropriate action to respond to issues in the workplace. The limitation on privacy is also moderated by the obligations the PWSS will have to manage personal information appropriately under law, including consistently with the Privacy Act 1988 and the legislation establishing the new PWSS.
Right to a fair trial
12. The right to a fair trial in article 14(1) of the ICCPR provides that '...in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law'.
13. The right to a fair trial may be engaged by the consequential amendment Clause 1 in Schedule 4 of the Bill which amends paragraph (y) of Schedule 2 to the ADJR Act. This amendment would extend an existing exemption to section 13 of the ADJR Act, which currently covers decisions relating to the engagement and termination of MOPS employees, so that the same exemption would apply to decisions to suspend MOPS employees from their duties. It means decision-makers who suspend MOPS employees, will not be required under the ADJR Act to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. In this way, it could be considered that the amendment restricts access to particular 'suit at law'.
14. Decisions to suspend a MOPS Act employee will be exempted from the operation of section 13 of the ADJR Act in recognition of the personal nature of MOPS employment, and the complexity likely to arise where meaningful reasons for suspension could require the disclosure of sensitive information and information provided in confidence. It would also guard against any perverse incentives to terminate employment at an early stage, or to not suspend an employee where this could best address a serious risk in the workplace, to avoid a potentially onerous process.
15. The exemption is necessary to achieve these objectives, and any limitation on the right to a fair trial is proportionate. The removal of a legal avenue to obtain reasons for a decision does not preclude MOPS Act employees from seeking remedies related to a decision to suspend their employment, including through the involvement of bodies such as Fair Work Commission and Australian Human Rights Commission. Parliamentarians and office-holders will also be required to inform the PWSS of decisions to suspend employment, and it is expected the PWSS will provide guidance on the information that can be appropriately provided to the suspended MOPS Act employee.
16. The exemption would also be consistent with a recommendation made by the Australian Administrative Review Council that decisions relating to engagement or termination of employment of MOPS Act employees should be exempt from the ADJR Act as a whole, given the personal nature of the employment and because the MOPS Act provides for termination of employment by a parliamentarian at any time (see the Administrative Review Council's Report 50,'Federal Judicial Review in Australia', 2012 Recommendation C19).
Conclusion
17. The Members of Parliament (Staff) Amendment Bill 2023 is compatible with human rights.