Risky business: The act governing treatment of parliamentary staff (MOPS) needs overhaul

Mar 2, 2021

Is it asking too much to expect parliamentary staff, who are paid by taxpayers and exercise privileged influence if not direct public power, to behave with high ethical standards? The absence of clear lines of accountability and clear behavioural expectations is no longer acceptable.

An array of reviews are under way into how staff employed under the Members of Parliament (Staff) (MOPS) Act 1984 are treated and how allegations of misbehaviour have been and should be managed. The number, and roles, of parliamentary staff has increased substantially since the landmark legislation was passed 37 years ago; it is also more than 20 years since the legislation for the public service and for the parliamentary service was replaced, clarifying their respective roles, values and accountability. Judging by current, and numerous past, scandals, it is time to review the MOPS Act and the role, values and accountability of MOPS staff, not just their treatment as employees.

The MOPS Act provided a much-needed employment framework for taxpayer-funded employees serving members of parliament.

Under Whitlam, the practice of ministers having partisan support staff greatly expanded. The legislation regularised the practice while avoiding the alternative that Labor had proposed the year before of allowing political appointments into the public service at the Senior Executive Service level. It clarified that the partisanship of such staff required that they forgo any rights to tenure.

The Act is quite spartan. Staff are employed by the MP, can have their employment terminated at any time for any reason, and must cease employment if and when the MP loses office. Remuneration and conditions are authorised by the Prime Minister. There are no rules over appointment or termination processes such as the ‘merit’ requirements for public servants.

These provisions continue to make a lot of sense. Such staff are not public servants nor members of the Parliamentary Service, and they must accept the risks of politics.

But they are paid by taxpayers and these days they play a substantial role in our political and government system. The absence of clear lines of accountability and clear behavioural expectations is no longer acceptable. The Ministerial Guidelines issued by the Prime Minister include some guidance as to the behaviour of ministerial staff but these do not have any legal force; I am not aware of any written guidelines about the behaviour of staff of MPs who are not ministers.

One of the benefits of the Public Service (PS) Act 1999 and the Parliamentary Service (Parl S) Act 1999 is that they articulate the respective values required of public servants (in the executive arm of government) and parliamentary service employees (in the legislative arm), and the identification of codes of conduct. Perhaps this could provide a guide for what is needed for MOPS staff.

When I was the Public Service Commissioner and Parliamentary Service Commissioner, I presented the values in the 1999 legislation in four groups in order to relate them directly to the unique roles of each service.

The first group concerned relations with the Government and the Parliament. For the Australian Public Sercie, these included being professional, apolitical, responsive to the elected government and accountable through the system of ministerial responsibility. For the Parliamentary Service the first two values – professional and apolitical – apply but as part of the legislative arm of government it works directly to MPs, not the Government, and its accountability is via the Presiding Officers.

The second group of values concerned relations with the public. Both services are expected to act impartially and courteously and so on (though unfortunately the Parl S Act is silent in this respect). The third group related to workplace relations and again the values should be the same: the merit principle being the key value. The fourth group related to personal behaviour where both are rightly expected to adhere to the highest ethical standards given they are paid by taxpayers and exercise public powers.

Sadly the 2013 amendments to the Public Service Act muddied this clarification, the simplicity of the ‘ICARE’ (impartial, committed to service, accountable, respect and ethical) presentation of the APS Values being at the expense of losing sight of the unique institutional role of the APS and its history (extraordinarily, given the legacy of the 1854 Northcote-Trevelyan Report, ‘merit’ was relegated to the new ‘employment principles’ and even there not made the first principle).

Using my four groups, it would be possible to clarify the values that should apply to MPs’ staff. Regarding relations with the Government and the Parliament, it is time such staff were expected to be professional and accountable, but not apolitical. The values should distinguish between those working for ministers or other office-holding MPs (within the executive) and those working for other MPs (as part of the legislative arm), requiring the former to be responsive to the elected government and respectful towards the public service. Accountability of the former should therefore be, as for the APS, through ministerial responsibility (preferably removing the current convention of exemption from appearing before Parliamentary Committees), while accountability of the latter should be through the relevant MP to the relevant Presiding Officer (the Speaker or President).

While it would be unrealistic to expect MPs’ staff to be entirely impartial in their dealings with the public, they should be courteous and respectful, and be committed to serve all the constituents of their MP.

Regarding workplace relations, I do not suggest restricting MPs’ rights to hire and fire, but fairness, respect and safety should be expected.

And would it be asking too much to expect these public employees, paid by taxpayers like public servants and exercising privileged influence if not direct public power, to behave with high ethical standards?

If the legislation set out such values, the question would then be whether it should also include a code of conduct. And who might oversee such a code.

The political parties inevitably want to manage any allegations of misbehaviour from a political perspective, whether to limit political fallout or maximise political damage. Some independent process is needed: I suggest the process be under the authority of the Presiding Officers.

There is something fundamentally wrong with public servants in ministerial departments, whether Finance or Prime Minister & Cabinet, overseeing or investigating the behaviour of MPs or their staff. There seems no reason why the Parliament could not enact an independent body, or expand the role of the Parliamentary Service Commissioner (and more firmly separating their role from that of the APS Commissioner), working to the Presiding Officers, to review allegations of misbehaviour ensuring appropriate privacy is maintained.   

An edited version of this article appeared in The Canberra Times.

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