9 Jun 2024

Making complaining about MPs less scary

From The House , 7:00 am on 9 June 2024

Parliament has a long-held reputation for bad bosses and even worse behaviour. The former Speaker Trevor Mallard commissioned outside advice on how to fix the problem. 

One of the many recommendations of that advice – the Debbie Francis Report – was the creation of a new role; the Independent Commissioner for Parliamentary Standards. The Commissioner is Lyn Provost, who was previously Auditor General and Deputy Commissioner of Police.

Lyn Provost after her investiture as CNZM, for services to the State, by the Governor General, Dame Patsy Reddy, on 31 August 2017.

Lyn Provost after her investiture as CNZM, for services to the State, by the Governor General, Dame Patsy Reddy, on 31 August 2017. Photo: Government House

Lyn Provost describes the Independent Commissioner role as a reserve power.  “If people have got a problem that they can't get satisfaction [for], they can come to me.”

Her role exists as an opportunity for appeal if the usual complaint processes don’t solve the issue.

“In order to get to me, the person has to have exhausted all employment or other disciplinary processes, they have to have either gone to their employer, or, in the case of MPs who do not have an employer, the whips disciplinary system has to have been invoked and gone through… The complainant would come to me and say, ‘I've done this, and I still have a problem with it’.”

She doesn’t cover everything in Parliament though. The most public behaviour – from MPs in the debating chamber – is not within her jurisdiction. That is the Speaker’s purview. 

Provost’s role is particularly focussed on MPs and the people that work around them (whether in electorate offices or at parliament). There haven’t always been great processes around MPs because they don’t really have normal employers and cannot easily be fired. 

Parliamentary problems…

“It is difficult for people in this place to make those kind of complaints, because there is a massive power imbalance between a staff member in an office and a Member of Parliament. Making a complaint against your boss is hard, making a complaint against a Member of Parliament is really hard. It's also often very public. It is challenging, but we should do our best to try and make this place the best place to work that we possibly can.” 

One possible reason MPs have a poor track record as bosses is a lack of experience in having staff. MPs come from a wider range of experience, but many have never had to manage staff. Add to that the stress of politics, and possibly sometimes a misguided sense of power or authority.

…and some fixes

Each intake of new MPs receive an induction and training from Parliament and their party, now including tips from Lyn Provost.

“One of the things I said to the new MPs at induction time was: ‘You are now the manager of your office. You need to take that seriously. You need to think very carefully about the people you employ and the way you treat them, because there are consequences if you don't treat them well’.”

MPs now also have a behavioural code of conduct – another change from the Mallard years. It was interesting to watch its adoption. The perception was that it might not have received universal cross-party agreement but the then Speaker announced it publicly, making it a fait accompli. Now any disinclined party would need to publicly argue that it shouldn’t apply to them.  

However the MPs’ code of conduct came to be adopted, Provost is a fan of the outcome.

“The behavioural statement, which I think is an excellent document …talks about what we expect from everybody that works here now: being respectful, being professional, calling it out if it's wrong, not bullying, doing the right thing; are all really important things to do. And I personally think that's one of the biggest steps we've made in recent history in terms of improving behaviour, because people cannot any longer say, ‘I didn't know that was wrong’. It is wrong, and here is what you signed up to do.”

A few years ago, when she was Auditor General, Lyn Provost chaired a discussion among Australasian MPs about the idea of introducing codes of conduct for MPs.

“There was absolute and utter debate. A lot of people said ‘you can't do that, you're usurping the right of Parliament’. And now I think, 10 years later, not only have we got it, this code of conduct, but people are signing up to it. People are using it. Is behaviour improving? I hope so – but time will tell.”

Last resort

I asked Lyn Provost whether it is problematic that she is a last resort. Under the protocol that governs her role she is not allowed to investigate behaviour until a complainant has exhausted other options. For someone bullied or sexually harassed, complaining to Parliamentary Services or Ministerial Services would be very difficult, especially considering imbalances of power. But having a complaint rejected and having to start all over again with the Independent Commissioner might be overwhelming. Is the barrier set too high? 

“Potentially, potentially it is. And I did, last year, say ‘this is too blunt’ – the protocol to actually have to formally put a complaint into writing, and that was their only access to me – didn't feel right to me.” 

“I've done a lot of inquiries, and generally I've said to the complainant, ‘come and have a chat. Tell me what your problem is. Tell me how it is affecting you’. I can then say to them, ‘well, actually, that isn't part of this role. I can't do that, but I can do that’, so it allows them to shape up their complaint in a sensible way.”

A slight loosening has meant she can also entertain those informal complaints. A chance to seek help over a cup of tea, prior to things getting official.

“It's Zoom, Teams, telephone, having a cup of coffee, having a formal meeting, even all of those. And they're absolutely entitled to have somebody with them, or not. But generally, people have just wanted to have a quiet chat. And I'm good with that.”

Informal complaints

Earlier this year Lyn Provost sent her first annual report to Parliament. It revealed she had yet to receive any official complaints. She says that her initial focus has been on making her role known, and notes that there being no formal complaints doesn’t mean there has been nothing to do.

“My annual report says I had no formal complaints. Did I have phone calls and conversations? Yes, a number of them.” 

“They are informal complaints. There are informal concerns for people. [With] some of those people I …had to say, ‘you have to go through this due process’. And they said, ‘Yes, I've read the protocol now and understand I have to do that’.”

“My offer is always that you can come back to me, and I'm glad we've touched base. Others just say, ‘I've got this problem. Can I talk about it?’ I'm very happy to talk about that. If there's any way I can help them to actually improve or to sort something out. That is much preferable to a formal complaint.” 

“So that's what I've done to date. It's not for me to judge whether that was successful or not, but I don't intend to stop it.” 

“I have a parliamentary phone that only I answer, only I have access to that number, or that email, so it's entirely confidential for people. Some people I've talked to multiple times, and that's fine. That's good. That's what the role's here for; not just the blunt – do a big investigation and take a look – because they do take time, by the time you've gone through natural justice processes, etc. So I'm hoping that the changes we made to the protocol, to allow me to have a conversation with people about their concerns, makes it less scary.

Secret information

There is another drawback to the formal protocol she operates under, but it’s not easy to avoid – natural justice; the right of the accused to know what they are accused of, and to respond.

“One of the things I am hearing and I am concerned about,” says Provost, “is that some people who believe they're being bullied or harassed want to give me evidence in secret. The protocol is based on legal principles of natural justice, due process, etc.”

In other words, if an employee complains that an MP has acted badly, and the complaint becomes official, the MP will be informed of the complaint. Given the employment relationship and the power imbalance, that is really tough.

“It is tricky,” she says, “and one of the issues that I have identified in my Annual Report is to see if there are ways that I can get to the bottom of some of that, giving me information that I can do something about, because the last thing I want is somebody being bullied and harassed, feeling like they can't go to anyone, and living with it. Because it makes their life miserable. It makes it miserable for the people around them. 

“So one of my challenges this year is to see how can we actually do something that gives those people the safety to come forward, whilst making sure that anyone complained against has all the legal privileges that they are entitled to. So it's a tricky balance, but just because it's tricky doesn't mean we shouldn't try and look at what we can do better.”

RNZ’s The House – journalism focussed on parliamentary legislation, issues and insights – is made with funding from Parliament’s Office of the Clerk.