The document leaked to this masthead reveals that the commission would be independent of politicians’ influence and appoint six part-time commissioners with the power to investigate complaints against parliamentarians,MPs’ staff or other parliamentary workers such as press gallery journalists and lobbyists.
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The bipartisan committee working on the draft includes Gallagher,Liberal frontbencher Jane Hume,Greens senator Larissa Waters and Nationals senator Perin Davey. Their work follows repeated incidents of poor behaviour by MPs.
Everyone including politicians,MPs’ staff and other employees in parliamentary workplaces would be bound under thebehaviour codesendorsed by parliament in February 2023.
The commission could investigate complaints against anyone working at parliament,but would pass findings on to the bosses of those employed externally,such as journalists and lobbyists,to decide on consequences.
Complaints that have already been made could also be investigated once the commission is up and running.
Independent senator Lidia Thorpe’sallegations in June last year that she was sexually harassed by Senator David Van could potentially fall under the body’s remit if properly investigated and adverse findings were made. Van denies the allegations and an investigation is still being conducted by Parliamentary Workplace Support Services.
Witnesses,complainants and respondents would have to sign confidentiality agreements when the commission began an investigation and failure to comply would be an offence.
Politicians accused of misconduct would be treated differently – as recommended in the Jenkins review – with complaints against them considered by three commissioners instead of just one for allegations against staffers and others.
If the commissioners found misconduct,a politician could face a reprimand,training or professional development,a behaviour agreement with the commission or a fine of 2 to 5 per cent of their base salary of $217,060 – between $4341 and $10,853 on the 2023 rate for all parliamentarians. It is not known if the fines would be higher for ministers or opposition frontbenchers.
The commissioner can also recommend a politician be discharged from a committee or suspended from parliament. A parliamentarian decision panel could also decide to make a public statement identifying the politician if the conduct was serious.
“The prospect of having a sanction imposed or recommended is intended to deter individuals from engaging in misconduct,” the report said. Under the Constitution,MPs can be dismissed only by voters.
Professor Anne Twomey said if the commission did not have the direct power in legislation to suspend politicians,it would be unlikely to be unconstitutional.
“Generally,it’s only the houses that can take action against a politician in terms of suspending them or taking some other action against them because they for example committed contempt of parliament,” she said.
The only member of parliament to be expelled was Kalgoorlie MP Hugh Mahon,in 1920,for speaking about the death of an Irish politician in a British prison. Mahon’s referral to the British Empire as “bloody and accursed” was considered by some members of the House of Representatives as disloyal.
There may be obligations under the Work Health and Safety Act for serious breaches of the code to be reported to the commission without a complainant’s consent.
“This recognises that parliamentarians and others in the parliamentary workplace have obligations and duties under that act that may require them to take action without an individual’s consent,” the report said.
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Findings could be kept secret under binding conditions exempted from freedom of information laws and the Archives Act for 99 years.
“The decision-maker could issue a confidentiality notice to all recipients of a final report,restricting them from publishing the report or talking about the details of an investigation,including the outcome. Failure to comply with a confidentiality notice would constitute an offence,” the report said.
A spokesperson for Gallagher said the government was working through the draft in good faith to achieve the best result to improve culture at Parliament House.
“The final design of the[Independent Parliamentary Standards Commission] will be a matter for the parliament to determine,” they said.
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