While the introduction of the Members of Parliament (Staff) Act back in 1984 did thwart an attempt at the time to allow political appointments into the APS and regularised the employment arrangements for the growing numbers of staff of ministers and MPs, the act has not been reviewed since.
The Thodey Review of the APS recommended the act be amended to include a legislated code of conduct for ministerial advisers with appropriate enforcement provisions but this was rejected by the Morrison government which agreed only to work by the Secretaries Board, the APS Commissioner and the Finance Department to improve support for ministers and to provide better training and guidance for APS employees and parliamentary staff including on their respective roles and responsibilities. This led to a reasonably useful report, Strengthening Partnerships: Ministerial Liaison Reference Panel Final Report, issued by the APS Commission in May following updated guidance from the commission on Working with Ministers issued last November.
Fortunately, the Jenkins Review of the Parliamentary Workplace recommended a "comprehensive review of the MOP(S) Act". That recommendation was accepted and the review is now being undertaken by PM&C.
The review's terms of reference call for the identification of legislative, policy or other changes necessary to ensure employment arrangements are fit for purpose both to support a professional, high performing, safe and respectful workplace and to prevent bullying and harassment.
In my submission to the review, I have suggested more fundamental changes than David Thodey proposed in order to clarify the roles of different employees under the act, doing so in a way which would also clarify distinctions between their roles and those of the APS and the Parliamentary Service.
Such clarification could also help to identify a process for resolving the current dispute over the number of staff crossbenchers are allowed.
The current legislation distinguishes between ministerial consultants, staff of office-holders and staff of senators and members. A more appropriate classification would distinguish between two groups: employees of ministers and employees of senators and members who are not part of the executive arm but represent the core of the legislative arm of government.
While our parliamentary system blurs the boundaries between the executive and the legislature, there remains considerable value in the degree to which the two sets of power are separated and different lines of accountability apply. This is recognised in the legislation for the public service and the parliamentary service which includes slightly different sets of values: for example, public servants are accountable under the system of ministerial accountability while parliamentary service employees come under the oversight of the Presiding Officers.
The MOP(S) Act should articulate the respective values and employment principles for the two categories above drawing on the approach set out in the Public Service Act 1999 and the Parliamentary Service Act 1999. Similarly the legislation should include codes of conduct for the two.
This would help to clarify both the common and the different roles and responsibilities of public servants, parliamentary service employees, ministerial staff and staff of other senators and members. Similar levels of personal integrity should be required of anyone working for the Commonwealth, paid for by taxpayers and expected to be committed to serving the public. But there are important differences that need to be reflected in the statements of values, not only relating to lines of accountability but also to whether non-partisanship is required and the degree to which the merit principle should apply. Such clarification can only help build mutual respect for the different roles and responsibilities of all these Commonwealth employees who must regularly interact with each other.
Consistent with such a distinction amongst MOP(S) Act employees would be a distinction between who is responsible for the administration in respect of ministerial staff and who for staff of senators and members. I suggest the Parliamentary Service Commissioner, working to the presiding officers, should be responsible for giving directions or issuing guidelines about the values and employment principles for employees working for senators or members (the Independent Parliamentary Standards Commission being established following Jenkins should be incorporated within the Parliamentary Service Commission's office as the earlier Foster Review seemed to suggest, along with the new Office of Parliamentary Staffing and Culture); directions and guidance for employees of ministers should be provided by the Prime Minister.
The PM's guidance for ministerial staff should generally be in line with the commissioner's guidance to employees of senators and members but with some additional requirements, for example, highlighting the importance of respect for the APS and the fact that ministerial staff do not have the power to direct.
Both sets of directions and/or guidelines should be tabled in the Parliament.
Accountability for all MOP(S) Act employees should remain, first, to their employing minister, senator or member and then, through them, to the Parliament and public. This needs to be made clear to address the apparent accountability gap where a minister, senator or member does not take responsibility for the actions of an employee and the employee is not subject to any external scrutiny.
Ministerial staff should appear before parliamentary committees in the same way as public servants. In doing so, as with public servants, there would be limits to the information they might be required to provide including exemption from providing information regarding any policy advice given to a minister.
While the emphasis on merit which applies to the APS may not extend fully to MOP(S) Act employees, it is vital that the public can be confident of the competence of the employees they pay for and that appointments are not based on nepotism or involve other forms of conflict of interest.
Appointments should remain the prerogative of the employing MP, but should be subject to important statutory constraints set out in arrangements established by the prime minister (in the case of ministerial staff) or the Parliamentary Service Commissioner (in the case of staff of senators and members). The employing MP should be held responsible for ensuring the selected staff meet the relevant selection criteria and are able to perform the relevant duties.
The powers of the commissioner and the prime minister respectively to determine recruitment procedures should be included in the legislation, requiring a formal determination to be tabled in the Parliament.
While the PM should continue to determine the number of ministerial staff, he should inform the Parliament the basis for the number. Currently there are far too many ministerial staff (472 in March 2022). Ministers do need support that is not strictly non-partisan, but such support should enhance the quality of government, working professionally and collaboratively with the public service to assist ministers meet their responsibilities. We should again have more public servants in ministerial adviser positions and also enhance the role and status of departmental liaison officers by including a senior DLO at SES level.
The number of employees of senators and members should be set by the Parliament's leadership (as I suggested in the March PSI, this should include the leaders of the main parties not just the presiding officers). In March 2022, in addition to electoral staff, there were around 160, 102 working for shadow ministers. This represents around 1.5 advisers for each non-government MP. Continuing to give each crossbench MP four advisers might not be justified given the crossbench numbers now in the Parliament, but reducing it to one also seems unreasonable particularly if ministerial staff numbers are not being reduced.
Under my proposals, the Parliamentary Service Commissioner would be responsible for reporting to the Parliament on the administration of the Act in respect of staff of senators and members and the PM (through the department he gives responsibility to) would report in respect of ministerial staff. There might be advantage if the PM's report were included within the Commissioner's report to promote some consistency of reporting with similar levels of detail about staffing and performance drawing on the approach the commissioner already uses for reports on the Parliamentary Service (and the APS Commissioner uses in State of the Service Reports).
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