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House of Representatives

Parliamentary Workplace Support Service (Consequential Amendments and Transitional Provisions) Bill 2023

Explanatory Memorandum

(Circulated by authority of the Minister for Finance, Senator the Hon Katy Gallagher)

GENERAL OUTLINE

1. The Parliamentary Workplace Support Service (Consequential Amendments and Transitional Arrangements) Bill 2023 (the Bill) would provide for consequential amendments and transitional arrangements to support the Parliamentary Workplace Support Service Bill 2023 (the PWSS Bill).

2. The PWSS Bill would establish the Parliamentary Workplace Support Service (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 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).

4. The statutory PWSS established by the PWSS Bill 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.

5. 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.

6. 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.

7. Schedule 1 to the Bill would also 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.

8. 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.

FINANCIAL IMPACT

9. The Bill complements the PWSS Bill, which would establish the statutory PWSS. 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.

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:

the right to privacy and to reputation
the right to freedom of expression, and
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:

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,
a document brought into existence by the PWSS, the PWSS Advisory Board, or the PWSS Consultative Committee, and
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:

exclude the PWSS, the PWSS Advisory Board and the PWSS Consultative Committee from the operation of the FOI Act, and
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:

information the person discloses to the PWSS would not be accessible under the Archives Act within that person's lifetime, and
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:

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,
the CEO to enter into arrangements with other Commonwealth entities or individuals relating to the disclosure and use of information, and
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:

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,
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,
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
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.

GLOSSARY

Term Meaning
Archives Act Archives Act 1983
Commonwealth parliamentary workplace participant has the same meaning as in the PWSS Bill
designated worker has the same meaning as in the PWSS Bill
Finance Department the Department administered by the Minister administering the Public Governance, Performance and Accountability Act 2013
FOI Act Freedom of Information Act 1982
Independent Review the Independent Review into the workplaces of Parliamentarians and their staff conducted under the Australian Human Rights Commission Act 1986 by the Sex Discrimination Commissioner (within the meaning of that Act)
Legislation Act Legislation Act 2003
MOPS employee has the same meaning as in the PWSS Bill
parliamentarian has the same meaning as in the PWSS Bill
Parliamentary Service Act Parliamentary Service Act 1999
Parliamentary Service Commissioner the Parliamentary Service Commissioner appointed under the Parliamentary Service Act
Parliamentary Service Determination Parliamentary Service Determination 2013
personal information has the same meaning as in the Privacy Act
Privacy Act Privacy Act 1988
PWSS has the same meaning as in the PWSS Bill
PWSS Advisory Board has the same meaning as in the PWSS Bill
PWSS Consultative Committee has the same meaning as in the PWSS Bill
PWSS Bill Parliamentary Workplace Support Service Bill 2023
Set the Standard Report Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces

Notes on Clauses

Clause 1 Short title

1. Clause 1 provides for the short title of the Bill, once enacted, to be the Parliamentary Workplace Support Service (Consequential Amendments and Transitional Provisions) 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).

3. Clauses 1 to 3 of the Bill, and anything in the Bill not elsewhere covered by the table, would commence on the day the Bill receives the Royal Assent.

4. Schedules 1 and 2 to the Bill would commence at the same time as the whole of the PWSS Bill, which would commence on a single day to be fixed by Proclamation. However, if the PWSS Bill did not commence, the provisions in Schedule 1 and 2 to the Bill would not commence at all.

5. Subclause 2(2) provides 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 Schedules

6. This clause provides that legislation that is specified in Schedule 1 to the Bill is amended or repealed as set out in the applicable items in that Schedule, and an item in Schedule 2 to the Bill has effect according to its terms.

7. A note under this clause explains that the provisions of the Parliamentary Service Determination that would be repealed by the Bill upon its enactment by the Parliament, and any other provisions of that instrument, may be amended or repealed by an instrument made under section 71 of the Parliamentary Service Act. This is because subsection 13(5) of the Legislation Act provides that the amendment of a legislative instrument by an Act does not prevent the instrument, as so amended, from being amended or repealed by a person who is currently authorised under the enabling legislation for the instrument to make instruments of the same kind.

Schedule 1 Consequential amendments

Items 1 to 7 - Archives Act 1983

8. The Archives Act governs access to Commonwealth archival records. Under that Act, a person may access most Commonwealth records in the 'open access period'. The majority of archival records enter the open access period 21 years after the year in which they were created. Cabinet notebooks do not enter the open access period until 31 years after the year in which they were created. Records containing Census information or certain information obtained at or relating to private sessions held under the Royal Commissions Act 1902, and records of the Independent Review into the workplaces of Parliamentarians and their staff conducted under the Australian Human Rights Commission Act 1986 by the Sex Discrimination Commissioner (within the meaning of that Act) (the Independent Review) do not enter the open access period until 99 years after the year in which they were created (the 99 year rule).

9. The effect of the amendments proposed in items 1 to 7 of Schedule 1 to the Bill would be 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 be subject to the 99 year rule, and
a document relating to the administration of the PWSS, the PWSS Advisory Board, or the PWSS Consultative Committee, would enter the open access period 21 years after the year in which it was created. Documents relating to the administration of these bodies could include, for example, draft annual reports, relevant policies, and internal documentation on the operation and governance of the bodies.

10. These proposed amendments complement the amendments to the FOI Act proposed in items 8 and 9 of this Schedule. Much of the information the proposed PWSS would hold will be personal information relating to a person's employment. In the context of the proposed PWSS's support, complaint resolution, and review functions in particular, this could include sensitive personal information relating to conflicts or disputes between people who work in a Commonwealth parliamentary workplace.

11. For the PWSS to achieve its goals of supporting safe and respectful workplaces for parliamentarians, MOPS employees and other Commonwealth parliamentary workplace participants, and supporting positive cultural change in those workplaces, it will be important that people who work in Commonwealth parliamentary workplaces are not discouraged from accessing PWSS services, or from providing full and frank information to the PWSS, because they are concerned that information related to their experiences could be released under the Archives Act during their lifetime.

12. The PWSS would publicly report on its operations in accordance with requirements in the Public Governance, Performance and Accountability Act 2013. Subclause 22(2) of the PWSS Bill would also require the PWSS to report annually on a range of matters where there is a strong public interest, such as progress in the prevention of, and responses to, certain alleged conduct, and work health and safety matters connected with the duties of parliamentarians, MOPS employees and designated workers.

13. Item 1 would amend the definition of 'open access period' in subsection 3(1) of the Archives Act to make clear to readers of that Act that for a PWSS document (as that term would be defined in the Archives Act by item 2 of this Bill), the term 'open access period' would have the meaning given by section 22C of the Archives Act.

14. Item 2 would insert a definition of a PWSS document into the Archives Act. PWSS documents as defined by this item would, in turn, be subject to the 99 year rule. A PWSS document would be defined to mean:

a document given to, or received by, the PWSS, the PWSS Advisory Board, or the PWSS Consultative Committee,
a document brought into existence by the PWSS, the PWSS Advisory Board, or the PWSS Consultative Committee, and
a document transferred to the PWSS under item 4 of Schedule 2 to this Bill,
other than a document relating to the administration of the PWSS, the PWSS Advisory Board, or the PWSS Consultative Committee.

15. Subsection 3(7) of the Archives Act sets out a table to assist readers of that Act to work out when a record is in the open access period. The table is primarily to assist in determining the year in which records subject to the ordinary open access period (being 21 years after the year in which a record is created) would enter the open access period. The note under the table in subsection 3(7) clarifies that certain categories of records are subject to different open access periods as set out in sections 22A, 22B and 22C of the Archives Act. Item 3 of this Bill would repeal the existing note under the table in subsection 3(7) and replace it with a new note that includes PWSS documents in the list of records that are subject to different open access periods.

16. Items 4 to 7 of Schedule 1 would amend section 22C of the Archives Act. Item 4 is consequential to items 5 to 7 of this Schedule and would amend the heading in section 22C of the Archives Act to reflect that, once amended by this Bill, it will relate to PWSS documents as well as documents of the Independent Review. Once amended, the title of section 22C would read 'Independent Review documents and PWSS documents'.

17. Item 5 would amend subsection 22C(1) of the Archives Act to provide that a PWSS document enters the open access period on and after 1 January in the year that is 99 years after the calendar year in which the record came into existence.

18. Item 6 would insert new subsection 22C(2A) into the Archives Act to provide that the 99 year rule applies to a PWSS document brought into existence before, on or after the commencement of this item.

19. Item 7 would amend subsection 22C(3) of the Archives Act to provide that subsection 3(7) and section 56 of the Archives Act do not apply to a PWSS document. Subsection 3(7) of the Archives Act is discussed above. Section 56 of the Archives Act provides for accelerated or special access to be provided to Commonwealth records in certain circumstances, and in accordance with arrangements approved by the Prime Minister.

Items 8 and 9 - Freedom of Information Act 1982

20. The FOI Act gives a person a legally enforceable right to obtain access to a document of an Australian Government agency or an official document of a Minister, unless an exemption applies. The effect of the amendments proposed in items 8 and 9 would be that:

the PWSS, the PWSS Advisory Board and the PWSS Consultative Committee would be excluded from the operation of the FOI Act, and
Ministers and agencies would be exempt 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.

21. These proposed amendments complement the amendments to the Archives Act proposed in items 1 to 7 of this Schedule. Much of the information the proposed PWSS would hold will be personal information relating to a person's employment. In the context of the proposed PWSS's support, complaint resolution, and review functions in particular, this could include sensitive personal information relating to conflicts or disputes between people who work in a Commonwealth parliamentary workplace.

22. For the PWSS to achieve its goals of supporting safe and respectful workplaces for parliamentarians, MOPS employees and other Commonwealth parliamentary workplace participants, and supporting positive cultural change in those workplaces, it will be important that people who work in Commonwealth parliamentary workplaces are not discouraged from accessing PWSS services, or from providing full and frank information to the PWSS, because they are concerned that information related to their experiences could be released under the FOI Act.

23. While the FOI Act contains a range of exemptions which may be applied to documents and parts thereof, where relevant information cannot or should not be disclosed, the conditional nature of the exemptions likely to be able to be relied upon by the PWSS, its Advisory Board, its Consultative Committee, and those who hold their documents, would not provide the necessary level of reassurance that information provided to the PWSS will not be released under the FOI Act in any circumstances.

24. The PWSS would publicly report on its operations in accordance with requirements in the Public Governance, Performance and Accountability Act 2013. Subclause 22(2) of the PWSS Bill would also require the PWSS to report annually on a range of matters where there is a strong public interest, such as progress in the prevention of, and responses to, certain alleged conduct, and work health and safety matters connected with the duties of parliamentarians, MOPS employees and designated workers.

25. Item 8 would insert new subsection 7(2AAA) to the FOI Act. That new subsection provides that the PWSS, the PWSS Advisory Board, and the PWSS Consultative Committee would be taken not to be prescribed authorities for the purposes of the FOI Act. This would have the effect of excluding those bodies from the definition of an 'agency' in section 4 of the FOI Act which, in turn, would mean that there would not be a legally enforceable right to obtain access to the documents of those entities under subsection 11(1) of the FOI Act.

26. Item 9 would insert new subsection 7(2DC) into the FOI Act. That new subsection would have the effect of exempting a Minister and an agency from the operation of the FOI Act in relation to the following documents (regardless of when the documents were brought into existence):

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 relevant body's functions (see paragraph 7(2DC)(a)); and
a document brought into existence by the PWSS, the PWSS Advisory Board or the PWSS Consultative Committee (see paragraph 7(2DC)(b)).

27. Item 9 would also insert new subsection 7(2DD). That new subsection would have the effect of ensuring that 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.

28. Subsection 7(2DD) is intended to ensure that the exemption in subsection 7(2DC) does not have the unintended effect of curtailing access under the FOI Act to documents created for the purposes of agencies other than the PWSS, its Advisory Board, and its Consultative Committee, which are subsequently provided to one of those bodies in connection with their functions.

29. The operation of new subsection 7(2DD) would mean, for example, that a department would not be exempt from the operation of the FOI Act in relation to a document created solely in relation to its own functions, and subsequently provided to the PWSS in connection with the PWSS's functions.

30. New subsections 7(2DC) and 7(2DD) would be consistent with the approach taken to exempting documents given to, received by, or brought into existence by, the Independent Review. That Review resulted in the Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (the Set the Standard Report). The PWSS Bill would implement a key recommendation of that report, 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.

31. Despite the amendments proposed in items 8 and 9 of Schedule 1 to the Bill, a person would be able to seek access under the Privacy Act to personal information about them that is held by the PWSS, the PWSS Advisory Board or the PWSS Consultative Committee. This is because the PWSS, the PWSS Advisory Board and the PWSS Consultative Committee would each be an 'APP entity' for the purposes of the Privacy Act. APP entities must not do an act, or engage in a practice, that breaches an Australian Privacy Principle (those principles are set out in Schedule 1 to the Privacy Act).

32. An individual will be able to seek access under Australian Privacy Principle 12 to personal information held about himself or herself from the PWSS, the PWSS Advisory Board and the PWSS Consultative Committee. If the PWSS, the PWSS Advisory Board or the PWSS Consultative Committee refused to give access for a legitimate reason, they would be required under Australian Privacy Principle 12.5 to take such steps as are reasonable in the circumstances to give the individual access in a way that meets the needs of the body and the person. The process for an individual to seek access to their personal information from the PWSS, the PWSS Advisory Board and the PWSS Consultative Committee will be outlined in publicly available policy documents such as an administrative access policy.

Items 10 and 11 - Parliamentary Service Determination 2013

33. Items 10 and 11 would repeal clause 112B of the Parliamentary Service Determination, and related definitions. This is because the existing PWSS, which is established as a function of the Parliamentary Service Commissioner under clause 112B of the Determination, will be integrated into the statutory PWSS.

34. Item 10 would repeal clause 112B of the Parliamentary Service Determination. This would mean that, when Schedule 1 to the Bill commences, the Parliamentary Service Commissioner could no longer perform the function to establish and maintain the existing PWSS. Schedule 2 to the Bill contains certain application and transitional provisions that would provide for how the statutory PWSS could deal with certain matters dealt with by the existing PWSS.

35. Item 11 would repeal the definitions of terms currently in the dictionary in Schedule 1 to the Parliamentary Service Determination, which currently only appear in clause 112B of the Determination and will therefore not be required once clause 112B has been repealed.

Schedule 2 Application and transitional provisions

Item 1 - Definitions

36. Subitem (1) of this item provides that, in Schedule 2 to the Bill, 'PWSS Act' would mean the PWSS Bill once enacted.

37. Subitem (2) of this item provides that a term used in Schedule 2 to the Bill, that is defined for the purposes of the PWSS Bill, would have the same meaning in Schedule 2 as it would in the PWSS Bill. Such terms include, for example, 'CEO', 'core participant' and 'relevant conduct'.

Item 2 - PWSS may perform functions regardless of when alleged relevant conduct occurs

38. This item provides that the PWSS could perform its support function (under clause 15 of the PWSS Bill), its complaint resolution function (under clause 16 of the PWSS Bill) and its review function (under clause 19 of the PWSS Bill) in relation to alleged relevant conduct that occurs before, on or after the commencement of this item.

39. This item will ensure the statutory PWSS will not be prevented from providing support and complaint resolution services, and reviewing complaints about alleged relevant conduct, where the alleged relevant conduct occurred prior to the establishment of the statutory PWSS (provided the PWSS otherwise has the power to provide support or complaint resolution services, or review the complaint (whichever is relevant) under clause 15, 16 or 19).

Item 3 - Transfer to the PWSS of complaints made before commencement under the existing PWSS mechanism

40. This item makes provision for the transfer to the statutory PWSS of any complaints about alleged relevant conduct made to the existing PWSS before the commencement of this item, where:

a review of the complaint has been commenced by the existing PWSS (whether or not the review has been completed), or
a decision had not been made by the existing PWSS whether to review the complaint.
Under this item, the statutory 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.

41. Enabling the PWSS to deal with complaints made to, and potentially already subject to review by, the existing PWSS, ensures a person's complaint would not be abandoned by reason only of the proposed repeal of section 112B of the Parliamentary Service Determination.

42. In this item, 'existing PWSS mechanism' means the mechanism established by the Parliamentary Service Commissioner in accordance with paragraph 112B(1)(a) of the Parliamentary Service Determination, as in force at any time before the commencement of this item (see subitem (6) of this item).

43. Subitem 3(1) provides that this item would only apply if:

a complaint was made before the commencement of this item under the existing PWSS in relation to alleged relevant conduct (within the meaning of the PWSS Bill), and
the PWSS would have the power to review the complaint under subclause 19(2) of the PWSS Bill, once enacted, if it were made to the statutory PWSS on or after that commencement, and
before that commencement, either:

-
the complaint had started to be reviewed under the existing PWSS mechanism (whether or not the review had been completed), or
-
a decision had not been made under the existing PWSS mechanism whether to review the complaint.

44. This means that this item would apply, for example, if a complaint had been made in July 2023 in relation to alleged relevant conduct engaged in by a MOPS employee in the course of performing duties as a MOPS employee, which affected another MOPS employee, and the existing PWSS had not yet decided whether to review the complaint.

45. Subitem (2) of this item would require the PWSS to deal with a complaint covered by subitem (1) on and after the commencement of this item as if the complaint had been made to the PWSS under clause 19 of the PWSS Bill, subject to subitems (3) to (5) of this item. To continue the above example, this subitem would require the PWSS to deal with the July 2023 complaint as if that complaint had been made to the statutory PWSS, subject to subitems (3) to (5) of this item.

46. Subitem (3) of this item provides that any steps taken under the existing PWSS mechanism for the purposes of according a person procedural fairness in relation to a complaint covered by subitem (1) are taken, on and after the commencement of this item, to have been taken by the statutory PWSS. To continue the above example, this subitem would mean that any steps taken under the existing PWSS mechanism to give the MOPS employee alleged to have engaged in the relevant conduct that is the subject of the July 2023 complaint a reasonable opportunity to be heard would be taken to have been taken by the statutory PWSS.

47. Subitem (4) of this item provides that if, before the commencement of this item, a review of a complaint covered by subitem (1), conducted under the existing PWSS mechanism, had been completed and a decision was made under the existing PWSS mechanism about whether the complaint is upheld, then:

that decision would be taken, on and after the commencement of this item, to have been made by the PWSS; and
if the complaint was upheld:

-
any report of the review completed before the commencement of this item would be taken, on and after that commencement, to have been prepared by the statutory PWSS under subclause 19(3) of the PWSS Bill, and
-
any recommendation made in relation to the complaint under the existing PWSS mechanism before the commencement of this item would be taken, on and after the commencement of this item, to have been made by the statutory PWSS.

48. To adjust the above example, if when this item commenced, the July 2023 complaint had been reviewed by the existing PWSS and a decision had been made to uphold the complaint under the existing PWSS mechanism, then the report of that completed review would be taken to have been prepared by the statutory PWSS, and any recommendations made would be taken to have been made by the statutory PWSS.

49. Subitem (5) of this item provides that if a report of a review to which subitem (4) applied had been completed before this item commenced and included a recommendation to a parliamentarian, then:

the PWSS would be required to engage with the parliamentarian under subclause 19(4) of the PWSS Bill, on and after the commencement of this item, in relation to implementing the recommendation,
any engagement by the Parliamentary Service Commissioner with the parliamentarian before the commencement of this item in relation to implementing the recommendation would be taken to have been carried out by the statutory PWSS, and
if the recommendation was not implemented, the statutory PWSS would be required, under subclause 19(5) of the PWSS Bill, to give a copy of the report to the President of the Senate or the Speaker of the House of Representatives (as required).

50. To continue the above example:

if a report about the July 2023 complaint included a recommendation to the parliamentarian who employed the MOPS employee who was the subject of the complaint, then this item would require the PWSS to engage with the parliamentarian about implementing that recommendation,
any engagement by the Parliamentary Service Commissioner before the commencement of this item would be taken to have been carried out by the statutory PWSS; and
if the recommendation was not implemented, then the statutory PWSS would be required to give a copy of the report about the July 2023 complaint to the President of the Senate or the Speaker of the House (depending on whether the employing parliamentarian was a senator or a member of the House of Representatives).

51. The statutory PWSS's review function is intended to 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 statutory 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'.

Item 4 - Transfer of records

52. This item would facilitate the transfer of relevant records to the statutory PWSS, to ensure the statutory PWSS has all the records and documents required to perform its functions.

53. Subitem (1) of this item would require records and documents covered by subitems (2) and (3) of this item to be transferred to the PWSS after the commencement of this item.

54. Subitem (2) of this item covers records or documents that were:

in the possession of the agency (within the meaning of the Public Service Act 1999) known as the Australian Public Service Commission immediately before the commencement of this item; and
given to, received by, or brought into existence by, that agency for the dominant purpose of the performance of the function that:

-
was conferred on the Parliamentary Service Commissioner by subclause 112B(1) of the Parliamentary Service Determination before that commencement; and
-
is to be performed by the PWSS after that commencement.

55. This would mean, for example, that records and documents the Australian Public Service Commission holds that were given to, received by, or brought into existence by, that agency for the dominant purpose of establishing and maintaining the existing PWSS mechanism are to be transferred to the PWSS after the commencement of this item. This subitem reflects that records of the existing PWSS are held by the Australian Public Service Commission.

56. Subitem (3) of this item covers records or documents that were:

in the possession of the Finance Department immediately before the commencement of this item; and
given to, received by, or brought into existence by, that Department for the dominant purpose of the performance of a function that is to be performed by the PWSS after that commencement.

57. This would mean that records and documents the Finance Department holds that were given to, received by, or brought into existence by that Department for the dominant purpose of the performance of a function that the PWSS would perform are to be transferred to the PWSS after the commencement of this item.

58. Subitem (4) of this item defines the term 'Finance Department' in this item to mean the Department administered by the Minister administering the Public Governance, Performance and Accountability Act 2013.

Item 5 - Confidential information

59. Subitem 1 of this item provides this item would apply to any confidential information given to a person before this item's commencement for the performance of a function that was conferred on the Parliamentary Service Commissioner by subclause 112B(1) of the Parliamentary Service Determination before that commencement, and that is to be performed by the statutory PWSS after that commencement.

60. Subitem 2 of this item provides that information covered by subitem 1 would be taken, immediately after the commencement of this item, to have been given to the statutory PWSS.

61. This item is intended to ensure that the statutory PWSS can deal with any confidential information given to the PWSS in the same way as the existing PWSS could prior to the commencement of this item.

Item 6 - Reports by the PWSS

62. This item would implement a staged approach to the imposition of the requirement in subclause 22(2) of the PWSS Bill. Subclause 22(2) of the PWSS Bill provides that the PWSS must, at least once each financial year, prepare a report 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, alleged relevant conduct.

63. Subitem (1) provides that subclause 22(2) of the PWSS Bill would apply in relation to financial years starting on or after 1 July 2024, subject to subitem (2). It is expected that the PWSS would be established in the 2023-24 financial year, so the operation of subitem (1) of this item would allow the PWSS to meaningfully report on those matters in its first report under subclause 22(2) of the PWSS Bill.

64. Subitem (2) of this item provides that paragraph 22(2)(d) of the PWSS Bill would apply in relation to financial years starting on or after 1 July 2025. Paragraph 22(2)(d) of the PWSS Bill would require the PWSS's annual report to contain information relating to progress in the prevention of, and responses to, alleged relevant conduct that is engaged in:

in the course of a core participant performing duties as a core participant; or
at places covered by paragraph (a) and (b) of the definition of 'Commonwealth parliamentary workplace' in clause 5 of the PWSS Bill.

65. A note under subitem (2) of this item briefly outlines the information to which paragraph 22(2)(d) of the PWSS Act relates. The intent of the operation of subitem (2) of this item is to allow the PWSS, in its first report for the purposes of paragraph 22(2)(d) of the PWSS Bill, to meaningfully report on information relating to progress in the prevention of, and responses to, alleged relevant conduct.

Item 7 - Use and disclosure of information

66. This item provides that Part 7 of the PWSS Bill, which would establish information sharing arrangements in order to support the PWSS and the CEO to carry out their functions, would apply in relation to the use and disclosure of information by a person on or after the commencement of this item, whether the information was obtained by, or disclosed to, the person before, on or after that commencement.


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