Action on the Jenkins Report: good progress on behaviour, but more needed on institutional issues

Dec 18, 2022
Connecting last jigsaw puzzle piece.

It is now a year since the Jenkins Report on parliamentary standards was published. With the release last week of the Final Report of the Joint Select Committee on Parliamentary Standards with its proposed codes of conduct, and the Review of the MOP(S) Act by PM&C reporting earlier in November, we now have the wherewithal to implement all the Jenkins recommendations.

This represents an important and long-overdue consensus amongst our politicians about the behaviour the public expects politicians and their staff, and others working in the Parliament, to adhere to and be held responsible for.

Jenkins focused on the evidence she found about atrocious behaviour in Parliament House including bullying and sexual harassment. Concerted action was needed not only to stop this misbehaviour but to work to regain public respect for the Parliament as our central democratic institution.

But this is also an opportunity for important institutional reform, an opportunity that could and should be taken by some minor tweaking of the measures proposed.

The institutional concerns relate not only to those working in and for the Parliament but also to the standing of the APS and its relationship with ministers, ministerial staff and the Parliament. Amongst its recommendations aimed to enhance the standing of the APS, the Thodey Report for example called for amendments to the MOP(S) Act to clarify the role and accountability of ministerial staff and their relationship with the APS through a statutory code of conduct. Thodey also emphasised the role of the APS in serving the Parliament and the public as well as the Executive and recommended some revisiting of the APS Values, Principles and Code of Conduct. And Thodey recommended applying the APS Values to employees of other Commonwealth agencies.

I do not agree with some of the specific Thodey proposals, but he was right to focus on these core institutional issues affecting roles and responsibilities and lines of accountability, and it is pleasing that the Albanese Government has agreed to revisit his recommendations.

Some of these institutional issues are touched upon by the Jenkins-related measures now being pursued. The MOP(S) Act review recommends distinguishing between electorate staff, other personal staff of MPs and other personal staff of ministers. This would facilitate recognition of ministerial staff as belonging to the executive arm of government and the other staff as belonging to the legislature, providing the opportunity to clarify their respective lines of accountability.

The Joint Select Committee report recommends distinct codes of conduct for MPs and their staff, recognising the differences between those who are elected and those who are not, while also proposing a broad code to apply to everyone in the Commonwealth Parliamentary workplace. Such codes can go some way towards clarifying respective roles and accountabilities.

What is disappointing is that these distinctions are not sufficiently followed through in a way that might help the different groups to appreciate their distinct roles and responsibilities, a necessary condition for working together respectfully and making our democracy work well.

For example, the proposed distinction between MOP(S) Act staff in the executive and staff in the legislature is not matched with a distinction between who sets the detailed rules on appointments and terminations etc. or determines numbers of staff and their allocation, for each group. In other jurisdictions, the Parliament (led by the Presiding Officers) has the final say for those working in the legislature, but the PM&C report leaves too much to the PM.

Also, the Joint Select Committee surprisingly makes no mention of the existing codes of conduct for the APS and the Parliamentary Service in recommending codes for MPs and their staff. In focusing only on personal behaviour, they omit important requirements (consistent for example with PGPA Act requirements) common to all Commonwealth officials, such as:

  • Acting with care and diligence in performing public duties;
  • Using Commonwealth resources in a proper manner;
  • Taking reasonable steps to avoid conflicts of interest (real or apparent) and disclosing any material personal interest.

Neither report suggests statements of values for the different groups, though such statements for the APS and the Parliamentary Service help to define their respective roles and responsibilities (including their different lines of accountability).

Given the political consensus that has now been achieved – a credit to all involved – I do not suggest any major change to what has been agreed. But before the various measures are finally settled in the coming weeks and months, the Government and the Parliament should carefully consider some minor but important tweaking involving:

  • Some modification to the structures proposed for promoting good behaviour amongst employees in the Parliamentary workplace (including MOP(S) Act employees); and
  • Capacity for directions and guidance to the different MOP(S) Act employees akin to that now provided by the APS Commissioner to APS employees and the Parliamentary Service Commissioner to that Service’s employees, with regard to values, employment principles and codes of conduct.

The Jenkins’ proposed Office of Parliamentary Staffing and Culture would be best placed under the Parliamentary Service Commissioner who reports to the Presiding Officers and has the independence required. This would be consistent with the approach Stephanie Foster took in her earlier report which led to the establishment of the Parliamentary Workplace Support Service under the Commissioner. Broadening the Commissioner’s role should also mean the current practice of having the APS Commissioner fill the role should cease.

The MOP(S) Act Review makes a number of sensible recommendations to strengthen recruitment and termination provisions and to set out the employment principles the employing MPs must adhere to. Though some of these could be strengthened, its main weakness is in leaving too much authority with the PM. I suggest the legislation allow the Parliamentary Service Commissioner to issue directions and provide guidance with respect to MOP(S) Act employees working in the legislature, particularly relating to the code of conduct and the employment principles. The PM could do likewise for ministerial staff. In the absence of legislated values, the Commissioner could still give guidance in this area recognising the differences between MOP(S) Act employees and strictly non-partisan Parliamentary Service employees.

Perhaps when the legislation is reviewed again in five years, as recommended, renewed consideration could be given to including values statements.

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