Explanatory Memorandum
(Circulated by authority of the Minister for Finance, Senator the Hon Katy Gallagher)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Parliamentary Workplace Support Service (Consequential Amendments and Transitional Provisions) Bill 2023
1. The 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 Bill would provide for consequential amendments and transitional arrangements to support the Parliamentary Workplace Support Service (PWSS) that would be established by the Parliamentary Workplace Support Service Bill 2023 (PWSS Bill).
3. The PWSS Bill would establish 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.
4. The PWSS 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 PWSS 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 PWSS 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).
5. The statutory PWSS established by the PWSS 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.
6. Schedule 1 to the Bill would amend the Archives Act 1983 to, in effect, provide that a PWSS document - being a document of the PWSS, the PWSS Advisory Board, or the PWSS Consultative Committee - other than a document relating to the administration of one of those bodies, would enter the open access period under the Archives Act 99 years after the year the document came into existence.
7. Schedule 1 to the Bill would also amend the Freedom of Information Act 1982 (the FOI Act) to, in effect, exclude the PWSS, the PWSS Advisory Board and the PWSS Consultative Committee, as well as their documents, from the operation of the FOI Act.
8. In addition, Schedule 1 to the Bill would amend the Parliamentary Service Determination 2013 to repeal a provision that establishes the existing PWSS. This is because the statutory PWSS will integrate the functions of the existing PWSS.
9. Schedule 2 to the Bill includes application and transitional provisions to ensure that the statutory PWSS could continue to deal with matters currently dealt with by the existing PWSS. This includes proposed provisions relating to the transfer to the statutory PWSS of a complaint being reviewed, that has been reviewed, or that is pending a decision about whether it will be reviewed, by the existing PWSS.
Human rights implications
10. The Bill engages the following human rights:
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- the right to privacy and to reputation
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- the right to freedom of expression, and
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- the right to an effective remedy.
The right to privacy and to reputation
11. Article 17 of the International Covenant on Civil and Political Rights (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.
Protection of information:
12. Items 1 to 7 of Schedule 1 to the Bill would amend the Archives Act to, in effect, provide that a PWSS document - being a document of the PWSS, the PWSS Advisory Board, or the PWSS Consultative Committee - other than a document relating to the administration of one of those bodies, would enter the open access period under the Archives Act 99 years after the year the document came into existence.
13. A document of the PWSS would include:
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- a document given to, or received by, the PWSS, the PWSS Advisory Board, or the PWSS Consultative Committee, in connection with the performance of the body's functions,
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- a document brought into existence by the PWSS, the PWSS Advisory Board, or the PWSS Consultative Committee, and
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- a document transferred to the PWSS under item 4 of Schedule 2 to the Bill.
- A PWSS document would not include a document relating to the administration of the PWSS, the PWSS Advisory Board, or the PWSS Consultative Committee.
14. Items 8 and 9 of Schedule 1 to the Bill would amend the Freedom of Information Act 1982 (FOI Act) to, in effect:
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- exclude the PWSS, the PWSS Advisory Board and the PWSS Consultative Committee from the operation of the FOI Act, and
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- exempt Ministers and agencies from that Act's operation in relation to documents given to, or received by, the PWSS, the PWSS Advisory Board, and the PWSS Consultative Committee in connection with the performance of their functions, as well as documents brought into existence by those bodies.
- Ministers and agencies would not be exempt from the operation of the FOI Act in relation to a document given to, or received by, the PWSS, the PWSS Advisory Board or the PWSS Consultative Committee if the document was created other than in connection with the performance of the functions of the PWSS, the PWSS Advisory Board or the PWSS Consultative Committee, and a right of access otherwise exists, or has otherwise existed, to that document under the FOI Act.
15. These proposed amendments seek to encourage a person to engage with the PWSS (in particular with its support function, its complaint resolution and its review function) by assuring the person that:
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- information the person discloses to the PWSS would not be accessible under the Archives Act within that person's lifetime, and
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- another person would not have a right of access to that information under the FOI Act.
16. Information a person might disclose to the PWSS could include sensitive personal information relating to conflicts or disputes between people who work in a Commonwealth parliamentary workplace.
17. Accordingly, these measures enhance the right to privacy of the individual who provides information to the PWSS, and the privacy and reputation of third parties who may be named or otherwise identified in that information.
Transfer of information:
18. Item 7 of Schedule 2 to the Bill provides that Part 7 of the PWSS Bill, once enacted, would apply in relation to the use or disclosure of information by a person on or after the commencement of that item, whether the information was obtained by, or disclosed to, the person before, on or after that commencement. Part 7 of the PWSS Act enables:
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- the PWSS and its Chief Executive Officer (CEO) to disclose certain information (including personal information) to, and to request certain information from, other Commonwealth entities,
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- the CEO to enter into arrangements with other Commonwealth entities or individuals relating to the disclosure and use of information, and
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- the PWSS to request a parliamentarian or MOPS employee to give the PWSS specified information.
19. Because this item would apply Part 7 of the PWSS Bill to certain circumstances, it may limit the right to privacy and to reputation of the individual to whom information being used or disclosed in accordance with Part 7 relates, or of third parties who may be reasonably identifiable in the information. Any limitation on the right to privacy must be authorised by law and must not be arbitrary.
20. To the extent the right to privacy and reputation is limited by the power of the PWSS to share and disclose such information under Part 7 of the PWSS Bill once enacted, this is provided for in the PWSS Bill and would therefore be authorised by law.
21. Interference 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. The potential limitations on these rights provided for under Part 7 of the PWSS Bill go to the legitimate objectives of assisting the PWSS and other Commonwealth entities to effectively perform their functions and exercise their powers, including to report annually on progress in the prevention of, and responses to, bullying, sexual harassment and sexual assault in Commonwealth parliamentary workplaces. The measures are reasonable and proportionate, given the various safeguards in place under the PWSS Bill, once enacted, that would:
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- prevent the disclosure of information under Part 7 of the PWSS Bill if to do so would constitute an offence against a law of the Commonwealth,
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- provide for arrangements made by the CEO with Commonwealth entities or individuals to make provision for the confidentiality of information disclosed in accordance with the arrangements,
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- provide that the use or disclosure information will not be authorised under Part 7 of the PWSS Bill if the use or disclosure would contravene an information sharing arrangement made by the CEO under Part 7 of the PWSS Bill, and
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- prohibit the disclosure of personal information in public reports published by the PWSS in accordance with section 22 of the PWSS Bill, subject to clause 23 of the PWSS Bill, 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.
The right to freedom of expression
22. Article 19(2) of the ICCPR guarantees the right to freedom of expression. This includes the right to seek, receive and impart information of all kinds. Article 19(3) of the ICCPR recognises that freedom of expression carries special duties and responsibilities, and is subject to restrictions as provided by law and necessary for respect of the rights or reputations of others or for the protection of national security, or of public order, or of public health or morals.
23. To the extent that the Bill would amend the Archives Act and the FOI Act to prevent access to certain information, these amendments would limit this right. However, these limitations are permissible in that they are prescribed by law and are reasonable, necessary and proportionate to achieving a legitimate objective recognised by article 19(3).
24. The amendments the Bill proposes to the Archives Act and the FOI Act pursue the legitimate objective of protecting the rights and reputations of others. The amendments are intended to protect personal information, often of a particularly sensitive nature, as well as information that could reasonably identify others, to protect the rights of such persons to privacy and to their reputation. To the extent that the right to privacy and reputation is limited by these amendments, this is provided for in the Bill and would therefore be authorised by law.
25. The amendments are necessary to assure a person who is considering engaging with the PWSS that the information they disclose would not be released under the Archives Act or the FOI Act in the individual's lifetime. The amendments would be a reasonable limitation given the sensitive nature of the relevant information and the implications its disclosure may have for the individual and for others if it were made publicly available. The amendments would not operate to exclude a right of access to documents relating to the administration of the PWSS, nor would they prevent individuals from accessing personal information about themselves that is held by the PWSS by other means. Accordingly, they are proportionate to the objective in that they only capture those documents which may include information of a sensitive nature.
The right to an effective remedy
26. 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.
27. Item 2 of Schedule 2 to the Bill would allow the PWSS to perform its support function (clause 15 of the PWSS Bill), its complaint resolution function (clause 16 of the PWSS Bill) and its review function (clause 19 of the PWSS Bill) in relation to alleged relevant conduct (within the meaning of the PWSS Bill) that occurs before, on or after the commencement of that item.
28. Item 3 of Schedule 2 to the Bill would also, in effect, transfer to the PWSS any complaints made to the existing PWSS in relation to alleged relevant conduct. The PWSS would have the power to review the complaint, decide to uphold the complaint and make recommendations about the complaint as if the complaint had been made to the statutory PWSS.
29. The Bill therefore promotes the right to an effective remedy by allowing the PWSS to provide support and complaint resolution services, and to review and make recommendations about complaints, in relation to alleged relevant conduct that occurs before the PWSS is established. Enabling the PWSS to deal with complaints made, and potentially already subject to review, ensures a person's complaint would not be abandoned by reason only of the proposed repeal of section 112B of the Parliamentary Service Determination 2013. The Bill therefore furthers the right to effective remedy for individuals who have made complaints under the existing PWSS to ensure such complaints are dealt with appropriately.
Conclusion
30. 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.