As the government works frantically to ensure the Attorney-General can fulfil the Albanese government's promise of a National Anti-Corruption Commission bill tabled by December, the drafting team would do well to look closely at crucially relevant recent government reports. Calling for particular attention is the Jenkins 2022 Set the Standards Review about misconduct in Parliament and the 2016 Moss Review of the Public Interest Disclosure Act (2013) - an act to protect whistleblowers who disclose misconduct by those entrusted with public responsibilities.
The Jenkins review received many submissions identifying how a focus by many working in Parliament on the "pursuit and exercise of power, as well as its misuse" resulted from "significant power inequalities and differentials in multiple directions". This abuse of power led to misconduct including workplace bullying, sexual harassment and sexual assault.
As an anonymous former political adviser highlighted, it may come as no surprise "that people who engage in one form of unethical conduct are often the same people who engage in other forms of unethical conduct". Stamping out any improper behaviour, including by the establishment of a National Anti-Corruption Commission, is likely to reduce rates of workplace sexual misconduct, the former staffer advocated. Similarly, we can see how creating environments where people feel safe at work, including in Parliament and other public service environments, is likely to reduce misconduct and corrupt behaviour when exercising power more broadly.
To feel safe at work must also include people feeling safe about reporting improper behaviour. How to report such behaviour becomes key in "stamping (it) out" and to the creation of a safe culture that is intolerant of improper abuses of power. Whether it be an individual subjected to the improper behaviour, or an employee witnessing it, the decision to disclose for the greater interest of the public is weighty. Due process for the person accused of the improper conduct is important, but so too is the protection for those who are prepared to raise concerns.
The Jenkins review heard from many participants who described the personal and career consequences they experienced from making a complaint. This mirrors results from the review survey indicating that most people who experienced bullying did not report it - indeed only 32 per cent of people reported bullying. There were several reasons at play, including 55 per cent who thought that things would not change or that nothing would be done. Then there were 47 per cent who thought that it would damage their reputation or career. Similarly, most people who experienced sexual harassment did not report it. Only 11 per cent reported sexual harassment - with 55 per cent thinking that it was not serious enough and 43 per cent believing that people would think that they were overreacting. In any case, 40 per cent of those who didn't report it thought that things would not change or that nothing would be done.
The Jenkins' review recommended establishing an independent complaints mechanism to ensure people working across Commonwealth parliamentary workplaces feel confident in reporting misconduct and that standards will be enforced. This is where the 2016 Moss Review of the PID Act also becomes relevant in ensuring that the final version of the NACC bill creates a streamlined and consistent framework for individuals who become aware of improper behaviour and to enable them to act without undermining their own futures. As we know, whistleblowers like Witness J, Bernard Collaery, David McBride and Richard Boyle have been prosecuted and many lose their jobs or fear being dismissed. For many there is the prospect of financial ruin, their mental health is at stake and, as others have written, "immense personal upheaval" looms large.
The Moss review acknowledged the overwhelming majority of disclosures received from agencies in submissions concerned issues like workplace bullying and harassment, forms of disrespect from colleagues or managers, or "minor" allegations of wrongdoing. The report noted the difficulty of identifying clearly what proportion of disclosures primarily related to interpersonal conflicts at work or a personal conflict. As a result, in its final assessment, the review recommended that the legislation redefine the scope of disclosable conduct to focus on fraud, serious misconduct and corrupt conduct. While Moss did not want to suggest that agencies should ignore other forms of wrongdoing or workplace conflict, he felt these matters were better resolved through less formal processes available through existing "administrative and statutory schemes, such as performance management, merits review, or disciplinary conduct procedures".
This seems to be at odds with the recommendations of the Jenkins review, which did recommend focused attention on such behaviour to be within the ambit of improper conduct - this comes down again to the culture that may tolerate or enable such behaviour to be experienced as part of the problem. It shouldn't have to get to the point of "systemic wrongdoing" as Moss ultimately determined to be misconduct, otherwise the safety of the workplace for all is at stake.
To the extent that the government can't follow both the Jenkins and Moss report recommendations at the same time, this issue should be feeding into the proper design of the commission, and how it should sit within a broader accountability framework to ensure the culture of entitlement and abuse of power that we have witnessed becomes a distant memory of an earlier period long past.
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