House of Representatives

Explanatory Memorandum

(Circulated by authority of the Special Minister of State, Senator the Hon Don Farrell)

GENERAL OUTLINE

1. The purpose of the Members of Parliament (Staff) Amendment Bill (the Bill) is to implement recommendations from the Review of the Members of Parliament (Staff) Act 1984 (MOPS Act) undertaken by the Department of the Prime Minister and Cabinet and published on 7 October 2022 (the Review). The MOPS Act sets out a framework for parliamentarians and office-holders to employ people, on behalf of the Commonwealth.

2. The proposed amendments to the MOPS Act are intended to modernise these employment arrangements, provide greater clarity on roles and responsibilities and improve transparency within the MOPS Act employment framework.

3. The MOPS Act has been in effect for 39 years with minimal amendment. The Australian Human Rights Commission's Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (Set the Standard Report), tabled on 30 November 2021, recommended a comprehensive review of the operation and effectiveness of the MOPS Act to ensure consistency with modern employment frameworks (recommendation 18). The Review found that the MOPS Act is broadly appropriate but recommended some amendments.

4. This Bill would substantially implement 11 of 15 recommendations made in the Review. The remaining 4 recommendations would be implemented by the proposed statutory Parliamentary Workplace Support Service (PWSS) to be established by the Parliamentary Workplace Support Service Bill 2023.

5. Main amendments to the MOPS Act provided for in Schedule 1 of the Bill would:

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insert an objects clause that declares that one of the objects is to establish a framework for employing people to assist parliamentarians and office-holders that supports a safe, respectful and accountable workplace,

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define categories of employees that better reflect the categories of employees in practice (being electorate employees, personal employees (ministerial) and personal employees (non-Ministerial),

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repeal redundant provisions for the engagements of consultants,

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repeal redundant provisions relating to superannuation,

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insert employment principles to guide expectations about the workplace and to support professionalisation,

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clarify the roles of parliamentarians, office-holders and the Prime Minister,

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clarify the responsibilities of parliamentarians, office-holders and employees,

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require parliamentarians to engage staff based on their capability to perform the role,

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require certain determinations of terms and conditions of employment applicable to all, or classes of, MOPS Act employees to be notifiable instruments which will be made publicly available,

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require directions that defer an automatic termination of employment to be made as legislative instruments, unless they apply to specified individuals,

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clarify the triggers for automatic termination of employment, including by providing the Prime Minister the power to make determinations that further clarify the circumstances where automatic terminations occur,

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provide that the employment of electorate employees of Ministers, and other holders of a 'relevant office', does not automatically terminate when their employing parliamentarian is appointed to another relevant office or office-holder position to improve job security,

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provide a power for parliamentarians to suspend employees,

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require the Act to be reviewed within 5 years of the amendments commencing,

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make other amendments to modernise and streamline the Act.

6. Schedule 2 of the Bill provides for amendments to the MOPS Act that relate to the proposed statutory PWSS. The PWSS will provide human resources support to parliamentarians and employees engaged under the MOPS Act and have other related functions. Proposed amendments to the MOPS Act in Schedule 2 would:

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require parliamentarians to consult the PWSS before making a decision to terminate the employment of a MOPS Act employee,

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require parliamentarians to inform the PWSS about a decision to suspend a MOPS Act employee before, or as soon as practicable after, making the decision,

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require parliamentarians to consult the PWSS about whether exceptional circumstances exist to justify suspending a MOPS Act employee without pay before suspending an employee without pay,

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allow, in limited circumstances, the CEO of the PWSS to suspend MOPS Act employees with the agreement of an employing parliamentarian,

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give the CEO of the PWSS limited employer powers where there is no longer an employing parliamentarian for an employee,

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make other amendments to reflect the role of the proposed PWSS within the MOPS Act employment framework.

7. Schedule 3 of the Bill makes provisions dealing with application and transitional matters.

8. Schedule 4 of the Bill makes consequential amendments primarily to omit terminology and references used in the MOPS Act that would be repealed by amendments in the Bill. An amendment in Schedule 4 to the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) would extend an exemption from section 13 of the ADJR Act to include the suspension of MOPS Act employees. Decisions relating to the employment or termination of MOPS Act employees are already exempt from the operation of section 13 of the ADJR Act. Section 13 of the ADJR Act provides for decision makers to provide written reasons for a decision when a person makes an application under section 5 of the ADJR Act. This amendment would mean decision makers who suspend MOPS Act employees will not be required under the ADJR Act to provide written reasons for the decision.

FINANCIAL IMPACT

The Bill has no financial impact.