MPs, staffers could face hefty fines, jail for not reporting assaults, harassment

Politicians, chiefs of staff and others working at Parliament House could be fined up to $3 million or jailed for up to 15 years if they don’t report a worker’s complaint of sexual harassment, assault, discrimination or bullying to a powerful new body being created to investigate misconduct allegations.

A staff consultation document leaked to this masthead says employers would have to report allegations to a parliamentary standards commission even without staff consent if a claim were about something that could pose further workplace risk. This contradicts recommendations elsewhere for a complainant-focused approach when assault or bullying allegations are raised.

Minister for Women Katy Gallagher leads a bipartisan taskforce that will draft legislation for the Independent Parliamentary Standards Commission.Credit: Alex Ellinghausen

The document comes more than two years after an independent inquiry in the wake of former staffer Brittany Higgins’ revelation she had been raped in a minister’s office found parliament had a “revolting and humiliating” workplace culture.

A bipartisan parliamentary leadership taskforce, led by Minister for Women Katy Gallagher, is drafting legislation for the much-delayed Independent Parliamentary Standards Commission, which it is hoped will begin operations by October.

Former sex discrimination commissioner Kate Jenkins’ November 2021 report, Set the Standard, called for the creation of the commission and for it to have the power to punish people and organisations for serious breaches of workplace safety such as sexual assault, violence, harassment, bullying and discrimination.

A draft structure leaked to this masthead in April revealed the commission’s potential powers to punish MPs, staff and others in Parliament House for serious breaches, and how it could suspend politicians found to have breached the parliamentary code of conduct.

In a new document sent to staff groups on April 24, the commission is described as a “disciplinary body”, which in most cases means consent from a complainant is needed for an investigation to be carried out. But the document notes that employers have a duty under the Work Health and Safety Act to ensure the workplace is always safe, which would require them to report allegations to the commission even without the complainant’s consent.

Under the legislation, an employer has to manage and eliminate any risks that could affect the health and safety of employees, meaning that if a worker makes an allegation about something that could cause further harm in the workplace, the employer must report it to a disciplinary body.

“Sometimes you end up in situations where there’s a form of negotiation or persuasion where an organisation seeks the complainant’s permission and encourages that, and in other cases the organisation says, ‘We’ve got no choice, but we’ve got to do something,’” said employment law expert Josh Bornstein of law firm Maurice Blackburn.

Under the legislation, if an employer did not act, individuals could be fined up to $3 million or face up to 15 years’ jail and the organisation could be fined up to $15 million.

Former sex discrimination commissioner Kate Jenkins.Credit: Alex Ellinghausen

“The [Independent Parliamentary Standards Commission] framework will also need to operate consistently with the [Work Health and Safety] Act – recognising that parliamentarians and others in Commonwealth parliamentary workplaces have WHS obligations and duties that may require them to take action without complainant consent (e.g. to eliminate risk to safety of others),” the document states.

Jenkins’ 2020 Respect@Work report into sexual harassment acknowledged the paradox between prioritising a complainant’s wishes and an employer’s legal obligations, and stated it was one of the biggest challenges many organisations would face.

“It is important that the [complainant’s] report triggers action and that other preventative steps are implemented to reduce the risk associated with the reported conduct,” the report’s website states.

Staff representatives for sectors that work in Parliament House were invited to an April 24 meeting to discuss the consultation document, which also reveals the government’s proposed timeline for introducing the commission, and were asked to submit any inquiries or feedback by May 10.

Legislation for the commission is due to be introduced in July or August, the goal being for the body to begin investigations by October 1.

Gallagher said the government was meeting staff consultation groups on the draft bill for the standards commission, which was a similar approach taken when drafting legislation for the Parliamentary Workplace Support Service. That human resources organisation now operates in parliament.

“We are confident that this process will hear from all the impacted groups and will deliver the best legislation possible to ultimately keep workers in Parliament House safe,” she said.

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