The sexual harassment policy and procedures designed to protect staff working for Federal politicians in Australia are woefully inadequate, writes Kristine Ziwica.
As sexual harassment scandals engulf politicians in Washington and Westminster, they have shone a light on the inadequacy of the policies and procedures designed to protect staff in both places — eliciting promises of significant reform.
Here in Australia, there are growing calls to hold our own politicians to account.
With more specific allegations expected to come to light in the next few months, Women’s Agenda looked at the policy and procedures that apply to Federal politicians and their staff and found them woefully inadequate – “incomprehensible” is the exact term a very experienced employment lawyer we consulted with used.
To fully appreciate just how incomprehensible, it’s important to understand the full scale of scandals elsewhere, the inadequacies they have exposed and the changes they are ushering in. When viewed in this context, it’s clear Australia’s politicians and bureaucrats are failing to get out ahead of the (perhaps inevitable) scandal and lead by example.
Successive scandals strike Washington and Westminster
Last week in the US, Senator Al Franken of Minnesota, Representative John Conyers Jr. of Michigan and Representative Trent Franks of Arizona stepped down following a variety of allegations. Representative Blake Farenthold of Texas said he would not run for re-election.
All this played out against the backdrop of Roy Moore’s campaign for the Alabama Senate seat amidst multiple allegations of assault and harassment and of numerous women coming forward to renew their allegations against President Donald Trump.
The previous month in spectacular hearings on Capitol Hill, two female House lawmakers accused sitting members of Congress of sexual harassment. The day before the hearings, 1500 former congressional aides signed an open letter calling for mandatory sexual harassment training for all lawmakers and staff and a stronger system to handle complaints.
Last month in the UK, Michael Fallon stepped down as Britain’s defence secretary after allegations of inappropriate behaviour surfaced, a Conservative MP was suspended, and three other members of the party were put under investigation. The Labour Party also suspended two MP’s and launched an investigation into a third. This led Prime Minister Theresa May to call a crisis meeting with all party leaders to strengthen protections for parliamentary staff.
Washington & Westminster move to get their own house in order
Recent events in both Washington and Westminster have shone a light on the inadequacy of the policies and procedures in both places.
In Westminster, MP’s are effectively self-employed. There is no overarching employment structure or authority, short of police, to receive complaints. And the system of patronage that demands loyalty ensures perpetrators hold a lot of power, which in turn makes it particularly hard, if not impossible, for victims to come forward. A new independent complaints process is one of the proposals currently on the table.
In the US, Congress essentially legislated to police itself with the paradoxically named 1995 Congressional Accountability Act, which created the equally paradoxical Office of Compliance. The Office of Compliance established an account to pay secret settlements with taxpayer money and pressure women to sign confidentiality clauses. It also forced complainants to undergo months of mandatory mediation and counselling before they could file a complaint.
After public pressure, it was revealed that the Office had paid $17 million on more than 260 claims, including sexual harassment and other claims. In November, two female Democratic lawmakers introduced legislation, some call it the “MeToo Congress Bill” to address these shortcomings.
Growing calls to hold Australian politicians to account
Yet while all this was unfolding, here in Australia the conversation around “the reckoning”, the short hand phrase we now seem to be using for the tsunami of sexual harassment and assault allegations and its aftermath, has focused almost exclusively on the likelihood it would impact men in media and entertainment. On the question of whether Australia’s political culture was rife with sexual predation …. Relative crickets.
Last week on Tonightly, host Tom Ballard noted the above phenomenon, which he described as “weird”, and asked Tracey Spicer, whose investigation into sexual harassment in media and entertainment has so far brought to light the behaviour of Don Burke, whether that was about to change.
Spicer said it will happen, but it will take some time for a couple of reasons: Australia’s defamation laws are particularly tough, which makes it difficult for journalists to publish allegations against politicians or anyone else, and there’s a gentleman’s club at the top of politics that protects harassers.
She told Ballard that she had received numerous complaints about current politicians, which she was passing on to other journalists. “I do believe that stories will come out about politicians on all sides in the next couple of months,” said Spicer. Then over the weekend, the allegations against Doyle emerged.
But while we wait for more women who may be understandably concerned about vilification to come forward (the problem with #MeToo is no one wants to be #MeFirst) and for investigative journalists to unpick those allegations, here at Women’s Agenda we set out to look at this issue from another angle.
What policies and procedures are currently in place to protect those working for Federal Members of Parliament and are they good enough? Shall we take our cue from events abroad and look at systemic change, rather than putting the onus on women to come forward, at great personal risk, before taking action?
Australia’s policies & procedures raise serious concerns
So what’s the situation here in Australia?
Staff working directly for Members of Parliament, though chosen by the Member, are technically employed by the Department of Finance, with whom they have an employment relationship. That relationship is governed by the 1984 Members of Parliament (Staff) Act and its accompanying framework.
We contacted the Department of Finance and asked them what policies and procedures they have in place to prevent and address sexual harassment by Members of Parliament and their staff. We then compared this to the best practice guidance from the Australian Human Rights Commission. We also asked the Department how many formal complaints of sexual harassment they have had in the last ten years from staff working for Members.
Perhaps not surprisingly, the Department would not tell us how many formal complaints they have had without an FOI (we are working on that, stay tuned).
They did, however, send a link to their Workplace Bullying and Harassment Policy and Procedure and respond to questions about the support and advice the Department provides in relation to sexual harassment.
After looking at the policy and further information the Department provided and comparing it to the Australian Human Rights Commission’s guidance we were, quite frankly, shocked.
It is essentially a bullying policy that outlines the Department’s responsibilities under the 2011 Work Health and Safety Act. It mentions various forms of harassment more broadly, but not sexual harassment specifically.
It does not specifically address sexual harassment as defined by the Sex Discrimination Act (which clearly defines sexual harassment as unwelcome contact of a sexual nature), give examples of behaviour that would constitute unlawful sexual harassment, and, perhaps most egregiously, it does not clearly spell out an employee’s options for pursuing a sexual harassment claim and relevant time limits. The appropriate legal avenue is to make an individual complaint to the Australian Human Rights Commission, but a six-month time limit applies.
The absence of any specific mention of sexual harassment in the Department of Finance’s policy is particularly strange, given the policy is very comprehensive on the subject of bullying and the Work Health and Safety Act – it does all of the above, including clearly laying out the option of taking up the issue with the Fair Work Commission.
The Human Rights Commission’s guidance for employers states that a good sexual harassment policy should both clearly define sexual harassment as per the Sex Discrimination Act, give specific examples and outline the available options for dealing with sexual harassment, including lodging a complaint with the Commission itself.
Reading on, we found the description of the independent investigation procedure and its outcome very worrying:
“Where a complaint is substantiated, Finance has no capacity to take disciplinary action against either a Senator or Member or a MOP (S) Act employee.”
It also states:
“Where a complaint against a Senator or Member is substantiated, any follow up action is a matter for judgement by the employee(s) concerned, taking into account the particular circumstances and consequences of the complaint. Follow up action could include raising the matter with Comcare or the Fair Work Commission, depending on the circumstances. An employee considering other action should seek independent legal advice.”
So even if a Senator of Member is found by an independent investigation to have committed the more broadly defined “harassment” as per the Department’s policy, the Department can’t take any disciplinary action.
The complainant would still have to get a lawyer (at personal expense) and take it up via another avenue, though she or he may not know where to go given the Human Rights Commission is not specifically mentioned as an option.
Alex Grayson, a Principal who manages the Employment and Industrial Relations Practice at Maurice Blackburn’s Sydney office, also read the Department of Finance’s policy and additional information they sent through and concurred that there are worrying gaps.
“It is incomprehensible in this day and age that there isn’t a policy dealing specifically with sexual harassment in the workplace that applies to MPs and their staff,” she said. “A sexual harassment policy should be introduced as a matter of urgency and all employees should be trained on the policy and do regular refresh training.”
“In order that employees understand their rights, any policy should detail any time limits on making a complaint and the correct legal avenue to resolve a complaint of sexual harassment. The policy provided refers to the Fair Work Commission (which is where a bullying complaint should be made) and not the Australian Human Rights Commission, the correct forum for a sexual harassment complaint, “added Grayson.
Kate Jenkins, Australia’s Sex Discrimination Commissioner, would not comment specifically on the Department’s policy, but she encouraged all employers to draw upon the Commission’s guidance.
“Many employers have created initiatives to combat this serious problem, including developing and implementing policies and procedures on sexual harassment. The Australian Human Rights Commission recommends ALL workplaces do so,” said Jenkins.
Women still carrying the burden to force change
The policy was so lacking, we wondered if the Department had made a mistake, so we followed up with them twice to clarify that this was indeed the correct policy for cases of sexual harassment (they confirmed).
And we put to them concerns. On the latter, the Department declined to offer further comment, saying, “Please be advised that the Department’s response, as previously provided, stands.”
Given the short and dismissive response from the Department to concerns the policy may be inadequate, we can’t help but conclude that the penny has not yet dropped – in the Department of Finance or in political circles in Australia more widely – that a reckoning may be coming.
Perhaps events will conspire over the next few months to prompt them to reconsider some of these questions. In the meantime, it’s a pity the burden remains largely on women’s shoulders to come forward and force that change.