Transforming the culture of Parliament House
Margaret Thornton
27.04.2022
Editors’ note: This post is the first in a two-part series today on the issue of creating a safe parliamentary workplace. To see the post by Gabrielle Appleby and Prabha Nanda exploring how to developed effective accountability mechanisms to facilitate and sustain worksplace reform in Australian courts and parliament, click here.
The Jenkins Review into Commonwealth Parliamentary Workplaces was published on 30 November 2021: Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces. This post provides the context for the report and an explanation of its findings and recommendations, together with the responses by the Australian Government to date.
The Context: Sexual harassment and bullying in the workplace
Sexual harassment and bullying in the workplace have all received increasing attention in recent years. The phrase, 'sexual harassment' was coined as recently as the late 1970s by Catharine MacKinnon and other feminist legal scholars in the United States, although the phenomenon had been well known to working women for centuries. The key element of sexual harassment is that it involves sexual behaviour that is unwanted or unwelcome; it has nothing to do with consensual behaviour. Sexual harassment in the workplace was formally proscribed in Australia by the Sex Discrimination Act 1984 (Cth) (SDA).
While bullying was once associated primarily with unacceptable behaviour in the schoolyard, it is now recognised as a common occurrence in the workplace. It entails a person or group of people repeatedly behaving unreasonably towards another worker or group of workers and can also encompass a wide array of behaviours. In other words, it is a form of harassment without the sexual dimension. Bullying in the workplace was made unlawful in 2014 through amendments to the Fair Work Act 2009 (Cth).
Sexual assault is an act of a sexual nature carried out against a person’s will by means of the use of physical force, intimidation, or coercion. It has a long history and is perhaps better known as rape, a sex-specific crime. Although less common than sexual harassment or bullying in the workplace, I mention it here for the sake of completion as it completes the trilogy of unlawful acts of misconduct within the workplace that have recently received adverse public attention.
The issue of workplace harassment has become a matter of particular concern, largely because multiple high-profile sexual harassers have attracted notoriety, including senior judges, such as Clarence Thomas and Brett Kavanaugh of the US Supreme Court and Dyson Heydon, formerly of the Australian High Court. The most infamous case, in which multiple women were harassed, involved the movie mogul, Harvey Weinstein. This was to crystallise into a global movement – #MeToo – a watershed moment in the struggle for gender equality that gave rise to multifarious accounts of abuse, PTSD and destroyed careers. Those who had been silenced for so long because they felt that they would not be believed, now felt that they were able to speak out.
The deleterious impact on physical and mental health of bullying, sexual harassment and sexual assault also resulted in extensive absenteeism and economic loss for employers. Deloitte Access Economics has estimated that the cost to the Australian economy amounts to billions of dollars annually.
In response to the evidence, a proliferation of inquiries and reports emerged, including the 2020 Respect@Work report, following a major inquiry undertaken by Kate Jenkins, the Sex Discrimination Commissioner, on behalf of the Australian Human Rights Commission. Respect@Work, which was based on an Australia-wide study, revealed sexual harassment to be an everyday occurrence for thousands of workers – male as well as female.
Parliament House
Public attention was drawn to the culture of Parliament House in Canberra following a series of incidents in 2019 and 2020. This included the alleged rape of a staffer, Brittany Higgins, and its alleged cover-up by Members of Parliament. There was also an allegation of historic rape involving the then Attorney-General, Christian Porter. While the alleged incident did not occur in Parliament House and the issue could not be pursued because of the death of the accuser, it cast a cloud over the Attorney-General, the most senior legal officer of the Commonwealth, who is responsible for overseeing issues of human rights and anti-discrimination legislation.
Several other incidents came to light, which revealed that not only were sexual harassment and bullying rife in Parliament House, but there was an absence of procedural regularity in dealing with allegations. Indeed, it appeared that some Parliamentarians were able to run their offices as though they were personal fiefdoms with the power to hire and fire staff at will, which created the conditions for predatory behaviour. It was revealed that there was no code of conduct for Parliamentarians, unlike comparable Houses of Parliament in Australia, and other parts of the world.
As a result of the scandal enveloping and tarnishing our major seat of government, an independent review, again by Kate Jenkins, the Federal Sex Discrimination Commissioner, was commissioned, leading to the report Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces.
Set the Standard
The Parliament cannot be conceptualised as a single workplace, for it represents a complex amalgam of workers subject to an array of legislation. Commonwealth Parliamentary Workplaces (CPWs) comprise multiple workplaces that include Parliamentarians, staff who support them—either as electorate or personal staff under the Members of Parliament (Staff) Act 1984 (Cth) (MOP(S) Act), people employed under the Parliamentary Service Act 1999 (Cth) (Parliamentary Service Act) and people employed under the Public Service Act 1999 (Cth) (Public Service Act). In addition, there are various other workers at Parliament House, including providers, media, interns, and volunteers, as well as the Australian Federal Police.
The proliferation of different workplaces meant that no single culture could be identified in Set the Standard. However, several factors could be discerned as drivers that created the conditions that may give rise to bullying, sexual harassment, and sexual assault. They included an imbalance in power relations, gender inequality—which included a dearth of women in senior roles—and a lack of accountability in the case of bad behaviour. In addition to the skewed gender pattern, there was a lack of diversity in terms of Indigeneity, sexuality, and people with a disability.
The absence of clear policy guidelines to address problems that might arise is compounded by inadequate leadership, loyalty to party politics and a workplace culture where over-indulgence in alcohol is common, a phenomenon exacerbated by isolation, a fly-in/fly-out style of working for many, and a long-hours culture. The result is a lack of work/life balance that disproportionately impacts family life. This carries over to a lack of flexibility in working hours and support for working parents.
The evidence that formed the basis of Set the Standard was collected from people currently working in CPWs. It included 490 interviews, an anonymous online survey of 935 responses and 302 written responses, which amounted to almost one-quarter of those working in CPWs. The data revealed that 37% of respondents had experienced some form of bullying, 33% had experienced sexual harassment, while 1% had experienced actual or attempted sexual assault. It is notable that that those who identified as LGBTIQ+ experienced sexual harassment at a higher rate than those who identified as heterosexual.
The evidence provided a graphic illustration of the way power was used to bully those regarded as vulnerable. The targets were usually more junior, although this was not always the case. Gender inequality was a significant driver of bullying, as it was for sexual harassment and sexual assault. In terms of gender equity, it is notable that women’s representation in the Australian House of Representatives has not kept pace with parliaments internationally: the Inter-Parliamentary Union (IPU) reveals Australia has dropped from 25th in the world in 1998 to 56th place in 2021 (31% women).
Many respondents referred to the ‘boys’ club culture’, which referred not only to the paucity of women in senior roles but also to the everyday or casual sexism. This became normalised in a workplace when it was modelled by men in leadership positions, including Parliamentarians. Women were nevertheless more likely to use bullying behaviour than men, although they tended to bully another woman rather than a man.
Despite the high rate of misconduct in CPWs, 81% of people who had experienced sexual harassment did not report their experience, and 59% of those who experienced bullying did not report their experience. Complaining about bullying, sexual harassment or sexual assault was likely to redound against complainants, who could find themselves labelled ‘difficult’ or ‘trouble makers’. The problem of raising concerns within what one employee described as a ‘kick down kiss up’ culture was heightened for those from a sexually diverse, CALD, Indigenous, or differently abled background. The lack of accountability by people who engaged in misconduct, including elected Parliamentarians—other than at the ballot box—does not inspire confidence on the part of the public.
Because of the precarious and competitive nature of employment in political and electoral offices, there was an ever-present fear that to complain could mean losing one’s job and some were, in fact, ‘bullied out of their positions’. This explains why a high proportion of people who experienced bullying, sexual harassment, or sexual assault in CPWs were unlikely to report their experience. Their fear was heightened by a sense that speaking out would not only affect their future employment but that nothing would change, as there would be no consequences for the perpetrator. However, half of the respondents did not know how to make a complaint or to whom to report their experience because training for respectful workplace behaviour, as well as management skills training, was inadequate and inconsistent.
The temporary and insecure nature of tenure, which inhibits the ability to complain about improper conduct, has contributed to the slowness of the culture to change compared with large corporate workplaces. However, other employment practices commonly found in large modern Australian workplaces are also absent in the MOP(S) Act roles. They include transparency in selection and appointment, as roles as electorate or personal staff in CPWs are typically not advertised and criteria are vague. They tend to be based on political attributes, and promotion might not result from proficiency. Comparisons with large Australian public and private sector organisation data from the Workplace Gender Equality Agency reveals that approximately 75% have implemented or are implementing gender equality and flexible work policies. The CPWs are also shown to be behind other Parliaments such as that of the United Kingdom, which developed a Gender Sensitive Parliament Audit in 2018.
International codes of conduct have also been developed in the UK, Scotland and Ireland that explicitly prohibit bullying, harassment, and sexual harassment. In the UK, a unitary code of conduct was advocated for all Parliamentarians and a code of conduct for Parliamentarians’ staff. Best practice involves principles centred upon what are trauma-informed responses and which protect against victimisation so that people feel safe in reporting misconduct.
The Way Forward
Acknowledging the fact that a homogeneous culture does not exist across CPWs, Set the Standard nevertheless identified a cluster of principles that could enable the development of safer and more respectful work environments appropriate for the nation’s key political institution. These principles require that attention be paid to the following: (1) Leadership, (2) Diversity, Equality and Inclusion, (3) Performance, (4) Accountability, and (5) Safety and Wellbeing. The report contains a detailed analysis of the way that each principle might be understood and implemented.
Leadership includes a consideration of power relations and an understanding of inclusivity. It also entails transparency about misconduct, which has been notably lacking. Parliamentarians and their staff do not necessarily have people management skills when they assume office and they lack support in acquiring these skills. The culture has been oriented towards loyalty rather than a contemporary notion of inclusive leadership. The establishment of a leadership taskforce was recommended to assist incumbents develop appropriate management skills.
Diversity, equality, and inclusion were not only identified as fundamental to the concept of representative democracy but were also crucial to overcoming what one interviewee termed the ‘male, stale and pale monopoly on power’ within CPWs. A crucial point that Set the Standard makes is that best practice necessitates those systemic and structural barriers to diversity and inclusion be addressed institutionally rather than place the onus on excluded individuals themselves to change prevailing norms.
While the tenure of Parliamentarians and MOP(S) employees is inherently insecure, there was concern about the extent that an employment contract could depend on ‘the whim’ of an MP. While the MOP(S) Act contains brief practical guidance regarding dismissal, the Commission recommended that dismissal be made subject to the requirements of the Fair Work Act and that a written notice of termination be given to MOP(S) Act employees specifying reasons for dismissal.
To implement the new principles, the creation of an Independent Office of Parliamentary Staffing and Culture (OPSC) was proposed, which would provide human resource support to Parliamentarians and their staff. It would be established under the MOP(S) Act and be in Parliament House, but it would also provide services to staff in the states and territories. The role of the OPSC would be consultative and policy-oriented, driving and delivering good employment practices across CPWs; it would not play a role in the resolution of complaints or non-compliance with codes of conduct or breaches of other provisions, although it would develop clear criteria for misconduct.
Training was seen as representing the nub of cultural change for CPWs. In this regard, reference was made to the UK’s ‘Valuing Everyone’ training, which is mandatory for the administrative staff of both Houses of Parliament and for Members of the House of Lords, but voluntary for MPs and their staff. The UK Good Employer Standard was also cited in terms of the desirability of management skills training for those occupying managerial positions and for MPs.
The absence of clear and consistent standards of conduct, particularly for Parliamentarians is striking in terms of the desire to produce a safe and productive workplace. In response to the criticisms of respondents and in accordance with what is recognised as best practice, standards should encompass impartiality, independence, accessibility, confidentiality, fairness, transparency, timeliness, adequate resourcing, and authority.
In response, the review recommends the creation of an Independent Parliamentary Standards Commission (IPSC), designed to overcome the fear that respondents evinced in reporting or making a complaint. The power of the IPSC should be delegated by the Houses of Parliament, with the appointment of the Chair and Commissioners strictly monitored. Set the Standard notes that appropriate protocols would need to be developed should a Commonwealth Integrity Commission be established to govern the relationship between the institutions. Set the Standard has recommended that the Houses of Parliament establish a Code of Conduct for Parliamentarians, a Code of Conduct for Parliamentarians’ Staff and Standards of Conduct for the Parliamentary Precincts.
Three different pathways are suggested for those reporting misconduct: (i) support and advice; (ii) making an informal complaint, or (iii) making a formal complaint, which would result in an investigation. If a person chooses to proceed with a disclosure or a complaint, it is recommended that they should continue to receive direct case management. There is an ongoing question as to whether historic complaints should be dealt with or not, which has been considered in the UK.
Negotiated outcomes can be effected by complainants seeking a remedy, following a formal inquiry, which might include monetary compensation, an apology, or an acknowledgement of harm. However, the review suggests that non-disclosure agreements (NDAs) should not be made a condition of settlement. Mandatory NDAs have been very contentious in sexual harassment complaints lodged under the SDA. As an alternative to pursuing a course of action through the IPSC, affected individuals may choose to lodge a complaint with an external body, such as Comcare, the Fair Work Commission or the Australian Human Rights Commission.
The UK House of Commons Standards and Accountability for Members sets out standards of behaviour in its Behaviour Code. If an MP is found to have breached the Bullying and Harassment, or Sexual Misconduct policy, a range of sanctions are available that increase according to the level of seriousness, culminating in suspension, or even expulsion, sanctions that can be imposed by the House on the recommendation of the Independent Expert Panel. Set the Standard recommends this model and that the IPSC be empowered to impose minor sanctions, such as requiring the offender to attend training sessions; more serious sanctions, proportionate to the misconduct, should be the prerogative of the relevant House on the recommendation of the IPSC. An appeal pathway is also recommended, with appeals being made to a panel of the IPSC, rather than being heard by a single Commissioner.
Responses to date
The Australian Government is sensitive to criticisms of the culture of Parliament House made in Set the Standard. In a media statement on release of the report, the Prime Minister, acknowledged the need for practical and cultural changes to make Parliamentary workplaces safer and to ensure that the outcomes recommended in the report would be achieved. To date, the following issues have been addressed.
In February 2021, prior to completion of Set the Standard, the Prime Minister, Scott Morrison, requested a review of procedures and processes for identifying, reporting, and responding to serious incidents that occur in parliamentary employment. The review was conducted by Stephanie Foster, who reported in June 2021, finding that the current procedures and processes were unable to respond appropriately to serious incidents in the parliamentary workplace.
In September 2021, the Government announced the launch of the Parliamentary Workplace Support Service, which was given priority ahead of completion of Set the Standard.
On 4 February 2022, the Honourable Simon Birmingham, Minister for Finance, announced the creation of a multi-party Leadership Taskforce, with Ms Kerri Hartland as the independent expert chair, to oversee the implementation of all 28 recommendations in Set the Standard.
On 8 February 2022, the first sitting day of Parliament for the year, a Statement of Acknowledgement was issued on behalf of the Parliamentary Cross-Party Leadership Taskforce in response to a recommendation by Commissioner Jenkins that apologised for the failure to provide a safe and respectful workplace in the past. The Statement acknowledged that the Parliament ‘should serve as a model workplace for our nation’.
On 22 February 2022, the Parliamentary Workplace Reform (Set the Standard Measures No 1) Act 2022 (Cth) was passed. It amends the MOP(S) Act to require a notice of termination of employment to specify a ground or grounds that are relied on for the termination. The Act also clarified the status of MOP(S) staff under the Work Health and Safety Act 2011 (Cth) and anti-discrimination legislation.
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Margaret Thornton is an Emerita Professor and Public Policy Fellow in the ANU College of Law at The Australian National University.
Suggested citation: Margaret Thornton, ‘Transforming the culture of Parliament House’ on AUSPUBLAW (27 April 2022) <https://www.auspublaw.org/blog/2022/04/transforming-the-culture-of-parliament-house>