The functions and powers of the Independent Parliamentary Standards Commission and its Commissioners

This Note provides guidance about the functions of the Independent Parliamentary Standards Commission (IPSC) and the functions and powers of its Commissioners. Developing and publishing this guidance is a function of the IPSC under the Parliamentary Workplace Support Service Act 2023 (Cth) (the Act).

Corporate Information

For the purposes of the PGPA Act, the Parliamentary Workplace Support Service (PWSS) Chief Executive Officer is the Accountable Authority for the IPSC. All corporate reporting for the IPSC is included within corporate reports.

What is the Independent Parliamentary Standards Commission (IPSC)?

The IPSC is an independent workplace investigatory body for Commonwealth parliamentary workplace (CPW) participants. The IPSC is established by s 24B of the Act. The IPSC consists of the Chair Commissioner, between 6 and 8 other Commissioners, and other persons made available by the CEO of the Parliamentary Workplace Support Service (PWSS) to assist the IPSC.

Key function of the IPSC

The Commissioners investigate conduct issues, may recommend and impose sanctions, and may prepare public statements about conduct issues. 

The Commissioners are empowered to investigate breaches of certain codes and standards that apply, in broad terms, to persons that work or volunteer in CPWs. Subject to Commonwealth laws, the Commissioners have discretion in the performance or exercise of their functions or powers and are not subject to direction by any person.

What Commissioners can investigate

Commissioners can investigate conduct issues that arise from a written complaint or a referral made to the IPSC, or that the Chair Commissioner becomes aware of in any other way. Where conduct occurred on or after 14 October 2024 (when the relevant Codes commenced), a complaint can be made about allegations of a breach of the Behaviour Code for Australian Parliamentarians, Behaviour Code for staff employed under the Members of Parliament (Staff) Act 1984 (Cth), and the Behaviour Standards for Commonwealth Parliamentary Workplaces. 

A complaint can be made about the following allegations, no matter when it occurred:

  • sexual assault
  • assault
  • sexual harassment
  • harassment
  • bullying, and
  • unreasonable behaviour towards another person that creates a risk to work health and safety. 

Such alleged conduct is reviewed against the legislation, and other policy/procedures (if applicable), that was in place at the time of the conduct. 

The Chair Commissioner must not commence an investigation into a conduct issue on the basis of an anonymous statement. Instead, conduct issues arising from anonymous statements or statements made by a person who does not wish to be identified are referred to the PWSS (subject to the Chair being satisfied that the statement is not frivolous, vexatious, misconceived or lacking in substance, and was made in good faith).

The IPSC cannot investigate conduct that forms part of proceedings in Parliament (e.g. statements made on the floor of Parliament). This conduct is instead dealt with by the respective Houses of the Parliament. The IPSC also cannot investigate a complaint about the conduct of certain people, including those employed or appointed under the Parliamentary Service Act 1999, a person employed or appointed under the Public Service Act 1999, or an AFP appointee. For more information about who can make complaints, and what complaints can be made about, see the IPSC Guidance for complainants accessible here. 

Confidentiality of IPSC processes

The confidentiality of complaints made to the IPSC and of IPSC investigations is protected in 2 ways: confidentiality notices and secrecy provisions. 

Confidentiality notices

Commissioners may issue a confidentiality notice to prevent a person from disclosing, or making a record of, certain information. Confidentiality notices can only be issued for limited purposes. These purposes include the prevention of prejudice to the fair trial of any person, the protection of the identity of individuals affected by a conduct issue or participating in an investigation, or the prevention of the disclosure of sensitive information. Confidentiality notices will specify the period for which they apply.

The duration and scope of a confidentiality notice will balance the intention that investigation outcomes and details should only become public on limited grounds with the importance of providing transparency, and the need to ensure that affected persons can speak publicly about the alleged conduct or the allegation once the investigation is complete.

A confidentiality notice will only have effect while the relevant information has not been lawfully disclosed to the public. A failure to comply with a confidentiality notice is an offence and can attract a penalty of imprisonment for 6 months or 30 penalty units (or both).

Secrecy provisions

A person who is or was an entrusted person (the PWSS CEO, an IPSC Commissioner, IPSC staff member or a consultant who has been engaged to assist in the performance of the IPSC’s functions) commits an offence under the Act if:

  • The person makes a record of any information, or discloses any information; and
  • The person obtained the information in the course of, or for the purposes of:
    • Performing functions or duties, or exercising powers, under the Act; or
    • Assisting another person to perform functions or duties, or exercise powers, under the Act.

A failure to comply with these provisions is an offence and can attract a penalty of imprisonment for 6 months or 30 penalty units (or both).

Individuals may be required to produce documents or information

An investigating Commissioner (or decision-maker) can, in writing (including by electronic means), require a person to give information (including by producing a document or attending an interview). This power can only be exercised if they have reasonable grounds to believe that the person has information relevant to a preliminary inquiry, investigation, preparation of a report, or review. A failure to comply with a compulsory information gathering notice is an offence and can attract 30 penalty points. 

There are exceptions where the notice concerns information relating to a PWSS support service or the identity of a journalist’s informant. Additionally, parliamentary privilege, the privilege against self-incrimination and legal professional privilege are not abrogated by the IPSC’s powers to compel the production of information.

If the respondent is a parliamentarian, or a person employed under the Members of Parliament (Staff) Act 1984 (Cth), they must cooperate with the investigation. A failure to cooperate may constitute a breach of a Behaviour Code.

The IPSC process

When the IPSC receives an eligible complaint or referral about a conduct issue (excluding anonymous complaints), the Chair Commissioner must assign a Commissioner to deal with that issue (the investigating Commissioner).

Once an investigating Commissioner has been assigned, the Act sets out a number of procedural steps that must occur.

Complaint assessment

An investigating Commissioner may decide to investigate a conduct issue only if they: 

  • are satisfied on reasonable grounds that there is sufficient evidence or information to justify an investigation, and
  • if the issue arose from a conduct complaint or conduct issue referral—either:
    • the Commissioner has the complainant’s consent to investigate the issue; or
    • the Commissioner is reasonably satisfied that a serious risk to work health or safety arises, or could arise, from the conduct concerned.

The investigating Commissioner has discretion to decide not to investigate a conduct issue. For example, they may decide not to investigate a conduct issue if they are satisfied that: 

  • a conduct issue would be more appropriately dealt with under the PWSS complaint resolution function
  • a complaint is frivolous, vexatious, misconceived, or lacking in substance or was not made in good faith, or
  • a complaint may be more appropriately dealt with, or has already been dealt with, under another Commonwealth, State or Territory law.

If they decide not to investigate the conduct issue, they may instead (in certain circumstances) refer the issue to the PWSS, the head of a public sector agency, or to be dealt with under another Commonwealth, State or Territory law.

Decision to investigate

Once a decision has been made to investigate a conduct issue, the investigating Commissioner must take reasonable steps to give written notice of the decision to the respondent, the complainant or referrer, and, in some cases, the respondent’s employer.

The investigating Commissioner may investigate the conduct issue in such a manner as the Commissioner thinks fit. This could involve gathering information and evidence to inform a decision on whether there has been a breach of the Behaviour Codes or legislation, policies and/or procedures applicable to Pre-Code conduct. Conduct issues may be investigated together. The investigation process must be completed as quickly as possible and must have due regard to the requirements of procedural fairness. Specifically, to decide that a respondent has breached a conduct requirement a Commissioner must take reasonable steps to: 

  • inform the respondent of the details of the conduct (including any subsequent variation to those details)
  • give the respondent (or any other person, if relevant) a reasonable opportunity to make a statement in relation to any preliminary findings that are critical of them, proposed recommendations to take action against them, proposed sanction to be imposed, or proposed referral of a serious breach finding
  • provide the respondent with, a summary of the evidence on which the preliminary findings are based, and
  • give proper consideration to the respondent’s statement, and any evidence they provide.

Parliamentarian Decision Panel

Where the respondent is a current or former parliamentarian, the Chair Commissioner must also form a parliamentarian decision panel (the decision-maker), consisting of the investigating Commissioner, and 2 other Commissioners.

Draft investigation report

Following their investigation, the decision-maker must prepare a draft report. The draft report must set out certain things, including:

  • the decision‑maker’s preliminary findings on the conduct issue, including whether the respondent has engaged in relevant conduct,
  • a summary of evidence and other material on which those findings are based, and
  • any recommendations or sanctions the decision-maker proposes to make or impose.

If the draft report sets out preliminary findings that are critical (either expressly or impliedly) of a person, or suggests an action, sanction or referral to the Privileges Committee of the relevant House of Parliament be taken, the decision-maker must give the person a reasonable opportunity to respond.

Apology by the respondent

At any point before a final decision is made, if the decision-maker is satisfied that it would be appropriate and the conduct concerned would not constitute an offence, the investigating Commissioner or decision-maker may facilitate the making of an apology by the respondent. Both the respondent and the person affected must consent to the making of the apology. An apology is not an admission of fault or liability and cannot be admitted as evidence in any civil proceedings. 

For further information on the IPSC process, see the IPSC Guidance notes for complainants, respondents and support persons. All of these are accessible here.

Final decision on conduct

After considering any response to matters raised in the draft report (if applicable), the decision-maker must decide whether they are satisfied, on the balance of probabilities, that the respondent has engaged in the relevant conduct. If so, the decision-maker must consider whether to make a recommendation, impose a sanction (in relation to conduct by current or former parliamentarians only), or refer a serious breach finding to the relevant Privileges Committee (in relation to conduct by current parliamentarians only).

A final report on the investigation must be prepared by the decision-maker. The final report will set out any proposed sanctions and a summary of the evidence and other material on which decisions and findings are based.

Factors decision makers might consider in deciding to make a recommendation, impose a sanction or refer a serious breach finding

The making of recommendations and the imposition of sanctions are disciplinary measures, which are intended to be protective of the parliamentary workplace. The types of sanctions vary depending on whether the respondent is a current or former parliamentarian, a current or former person employed under the Members of Parliament (Staff) Act 1984 (Cth), or another parliamentary workplace participant.

The decision-maker can only make a recommendation, impose a sanction or refer a serious breach finding if they are satisfied that it is necessary to do so to promote appropriate conduct in Commonwealth parliamentary workplaces. 

There are various factors that may be considered in determining any sanction. These could include:

  • the nature and seriousness of the breach
  • whether the misconduct was uncharacteristic
  • the respondent’s response and likelihood of recurrence
  • mitigating factors (such as any provocation by others, the extent to which a respondent’s personal circumstances may have influenced their conduct, and extent to which a breach reflected a systemic problem in a work area)
  • any sanctions or other management actions that have already been imposed, and
  • any apology made by the respondent that was facilitated by a Commissioner.

For further information on sanctions, see the IPSC Guidance on sanctions accessible here.

Review of decision

The complainant and the respondent can apply to the IPSC for a review of certain decisions set out in the final report; a review panel of Commissioners will then be constituted. Further information can be found here.

Reporting conduct that may constitute an offence to the police

The proceedings of the IPSC are disciplinary proceedings. They are not criminal, civil, or regulatory proceedings. If the IPSC investigates a conduct issue and makes a finding against a respondent, it would not be a finding of criminal guilt. Parliamentarians and other people who work in Parliament are subject to the criminal laws applicable to the jurisdiction they are in. Relevant Federal, State and Territory police can investigate workplace misconduct that may be a criminal offence. 

The IPSC may disclose information to Federal, State or Territory police if the disclosure is reasonably necessary to assist the police to perform their functions or activities, or exercise of their powers. An exception to the IPSC’s authorisation to disclose information to the police is if the conduct concerned may constitute a serious offence against a person, in which case the IPSC requires the consent of the alleged victim to report to the police. A serious offence is defined to mean an offence against a law of the Commonwealth, a State or a Territory involving assault or sexual assault.

The importance of early reporting to the police

Early reporting to the police is important so that any investigation into the conduct can proceed without delay. Early reporting will allow the police to gather evidence of a crime while it remains fresh. Future investigations and prosecutions of conduct that constitutes an offence may be impacted by a delay in reporting such conduct to the police. A delay in the investigation may result in evidence being lost or damaged. Early reporting also allows police to take steps to prevent similar incidents from occurring again in the future. 

Other functions of the IPSC

The IPSC and the Commissioners also have other functions that are conferred on them by the Act or another Commonwealth law (and associated incidental functions). These include certain information-sharing functions under the Act and functions relating to the making of public statements about conduct issues.

 

Get support

The Parliamentary Workplace Support Service (PWSS) can provide you with counselling and support, if something has happened to you, or a complaint has been made against you, in the workplace. 

The PWSS can be contacted 24 hours a day, 7 days a week.

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