Parliamentary Workplace Support Service Amendment (Independent Parliamentary Standards Commission) Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 176 (11 September 2024)

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Purpose	The bill seeks to amend the Parliamentary Workplace Support Service Act 2023 to establish two bodies: the Independent Parliamentary Standards Commission (IPSC) and the Parliamentary Joint Committee on Parliamentary Standards. The bill also seeks to amend a number of other Acts which interact with the IPSC's responsibilities and functions as an investigative entity, such as the Freedom of Information Act 1982 and the National Anti-Corruption Commission Act 2022.
Portfolio	Finance
Introduced	House of Representatives on 21 August 2024
Bill status	Before the House of Representatives

Overview

1.41 This bill seeks to establish the Independent Parliamentary Standards Commission (the IPSC) as a workplace investigation framework for Commonwealth parliamentary workplaces which would be enabled to handle complaints, make findings about misconduct and make recommendations on sanctions for parliamentarians, an employee of a parliamentarian (MOPS employee) and other staff.

1.42 The committee considers the explanatory memorandum accompanying the bill to be of high quality and welcomes the inclusion of numerous examples, and the overall high level of detail. The committee notes that a number of provisions of the bill initially raised scrutiny concerns, however, the explanations provided in the explanatory memorandum largely addressed these concerns.

Reversal of the evidential burden of proof^[43]

1.43 The bill seeks to make it an offence for a person to make a record of or disclose information that is obtained in the course of, or the purposes of, performing functions or duties or exercising powers under this framework.^[44] The offence would carry a maximum penalty of 30 penalty units or 6 months imprisonment.^[45] The bill also creates a number of exceptions to this offence, including where the defendant has made a record of, or disclosed information where the recording or disclosure:

1.44 By making these exceptions to the offence, the evidential burden of proof is reversed as the defendant would have to provide evidence suggesting a reasonable possibility of the above matters.

1.45 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.46 The committee expects any such reversal of the evidential burden of proof to be justified and for the explanatory memorandum to address whether the approach taken is consistent with the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers which states that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence) where:

1.47 In relation to the above matters, while the explanatory memorandum provides a detailed explanation of how the provisions are expected to operate, it only provides the following as a justification of why it is appropriate to reverse the evidential burden in these circumstances:

The defendant would bear an evidential burden in relation to these defences, consistent with subsection 13.3 of the Criminal Code. It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that their disclosure was authorised by this Subdivision because the reasons why an entrusted person obtained, recorded or disclosed information would be solely and entirely within the knowledge of the entrusted person, and it would not be onerous for the person to adduce or point to evidence that suggests a reasonable possibility of that purpose. In addition, it would be onerous for the prosecution to disprove matters peculiarly within the knowledge of a defendant, including the reasons why an entrusted person obtained, recorded or disclosed information and it would be unlikely that a prosecution would be brought where information indicating the availability of the defence—that the disclosure was authorised—is available to the prosecution.^[51]

1.48 It is not clear to the committee that all of the matters relevant to these defences are peculiarly within the defendant’s knowledge or would be significantly more costly or difficult for the prosecution to disprove. For instance, in relation to disclosures that are for the purpose of complying with a requirement under the bill or an Act, the committee queries how matters in relation to compliance with a law can be peculiarly within any person’s knowledge.

1.49 The committee also understands that in relation to defences (b) and (d) specified above, the information has been disclosed to another entity, such as a court, tribunal or police body, who would have knowledge of the disclosed information and the purpose for which it was disclosed. From the provisions of the bill and the information provided in the explanatory memorandum, it is does not appear these matters would be peculiarly within the defendant’s knowledge or significantly more difficult for the prosecution to prove. It is also not clear why some of these matters could not be made elements of the offence (rather than a defence).

1.50 The committee considers that where a provision reverses the burden of proof the explanatory memorandum should explicitly address relevant principles as set out in the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.^[52]

1.51 The committee considers it has not been established that reversing the burden of proof for all of the defences in the bill is appropriate, noting the matters do not appear likely to be peculiarly in the defendant’s knowledge. The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to the exceptions to the offences (as set out above).

Immunity from civil liability^[53]

1.52 This bill seeks to confer immunity from liability in civil proceedings to Parliamentary Workplace Support Services (PWSS) and IPSC officials, including the PWSS Chief Executive Officer (CEO), the Commissioners of the IPSC, the staff of the PWSS, persons whose services are made available to the PWSS and IPSC and consultants engaged to assist the IPSC or a Commissioner or the PWSS in the performance of their functions. The immunity from liability is only applicable to an act done or omitted to be done in good faith in the exercise of the person’s functions, powers or duties.

1.53 This immunity therefore removes any common law right to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that lack of good faith is shown. The committee notes that in the context of judicial review, bad faith is said to imply the lack of an honest or genuine attempt to undertake a task. Proving that a person has not engaged in good faith will therefore involve personal attack on the honesty of a decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.54 The committee expects that if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified. In relation to this immunity, the explanatory memorandum states:

This immunity would ensure that PWSS and IPSC officials are able to perform their functions, powers and duties under the Bill without fear of personal liability for any actions they perform in good faith. Without immunity from civil proceedings, PWSS and IPSC officials may be exposed to civil liability in the performance of their duties. For example, an IPSC Commissioner may be exposed in circumstances where a respondent wishes to bring legal action to seek compensation for damage to their reputation as a result of allegedly defamatory statements contained in a report finding the respondent has engaged in relevant conduct. Such an outcome would be likely to create an actual or perceived risk that a Commissioner may improperly constrain their findings to avoid any risk to their personal interests. By providing an immunity from civil liability for acts or omissions done in good faith in the performance or exercise, or purported performance or exercise, of their functions, powers or duties under the PWSS Act, this section would reduce the risk that officials would adopt a less rigorous approach to the performance of their functions to protect their personal interests at the expense of the public interest.^[54]

1.55 The committee notes this explanation and considers it has been established why individuals in these positions may require immunity from civil liability. However, the committee considers that the explanatory memorandum should also have addressed what, if any, alternative protections are afforded to an affected individual to seek a remedy for any potential damage done as a result of the actions of the PWSS or IPSC officials, given that the normal rules of civil liability have been limited by the bill.

1.56 The committee requests the minister’s advice as to what recourse is available for an individual (other than by demonstrating a lack of good faith) affected by actions taken by a PWSS or IPSC official or consultants. In particular, would action be available against the Commonwealth for negligence or defamation for the actions taken by such persons, and if not, why is this appropriate.

^[42] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Parliamentary Workplace Support Service Amendment (Independent Parliamentary Standards Commission) Bill 2024, Scrutiny Digest 11 of 2024; [2024] AUSStaCSBSD 176.

^[43] Schedule 1, item 41, proposed sections 24FL, 24FM, 24FN, 24FP and 24FQ. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

^[53] Schedule 1, item 51, proposed section 40C. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests