MOTION: Investigation by Equal Opportunity Commissioner into behaviour by Sam Duluk MP

Today, Mark spoke in support of the motion calling for the President of the Legislative Council to request an investigation by the Equal Opportunity Commissioner of all instances of harassment, victimisation and inappropriate behaviour committed by the Member for Waite, Mr Sam Duluk MP, in December 2019.

MOTION: That this Council 

That this council requires the President of the Legislative Council to request an investigation by the equal opportunity commissioner of all instances of harassment, victimisation and inappropriate behaviour committed by the member for Waite, Mr Sam Duluk MP, in December 2019.

I support this motion and I also support the amendment to be moved by my colleague, the Hon. Tammy Franks. The issue of what happened on the night of the crossbench MLCs' Christmas drinks last year has occupied a lot of time for a lot of people. That obviously includes people in this place, both MPs and staff, but in the community there would be very few people who do not now know or have heard something about what transpired on that night. As a resident of the electorate of Waite, I have had many people ask me in the supermarket or the hardware store what actually happened and what is now going to happen to the member for Waite.

Ever since the events of Friday 13 December have become publicly known, there has been a constant stream of news reporting and public commentary, and the whole episode has been difficult and traumatic for many of the people involved, certainly for the member for Waite but my concern is for my workplace colleagues whether they be MPs, staff of MPs, staff of the parliament or others.

When high profile people behave badly there is usually plenty of collateral damage, and that is the case here. That is why I think we owe it to our work colleagues to not only sort out the events of Friday the 13th but also to make sure that if something similar ever happens again in the future, it would be dealt with quickly and appropriately. I will come back later to the government's response in the current case, which is, in my view, woefully inadequate.

So what is normally a fairly low key end-of-year gathering of five crossbench MLCs, our staff and some invited guests has now become the talk of the town—for all the wrong reasons. What we had planned was to have a lot of fun. We had a 20-question quiz, which pitched the baby boomers against the rest. We had charades, and we had other party games. What we never planned was to be forever known, thanks to TheAdvertiser, as just another 'boozy Parliament House Christmas party'. That reflects poorly on all of us.

One of the most common reactions I have been getting in the community—and other members have alluded to this—is that in any other workplace the sort of behaviour like that perpetrated by the member for Waite would be dealt with decisively based on clear protocols and procedures premised on the simple principle that workplaces should be safe places for everyone and that inappropriate behaviour will not be tolerated. That is how the rest of the world works.

But when we look at Parliament House the first thing we have to acknowledge is that, like other workplaces, the institution is very hierarchical. There is a clear pecking order. In fact, the building is full of signs indicating where certain people may go and areas that are out of bounds to mere mortals. But despite this hierarchy there is no clear line of responsibility or accountability when the perpetrators of inappropriate behaviour are at the top of the food chain.

Members of parliament are accountable legally to their electorates. We do not have a boss or a manager in the sense that most workplaces have a chain of control and accountability. So apart from some fairly rare cases where a member becomes legally ineligible to sit in parliament, the only way an MP can be sacked is by voters at the election. This may or may not be preceded by party preselection. Certainly, MPs can be sanctioned by their peers or by their parties, but they cannot be sacked. Members of parliament are in a unique position, unlike our staff or the staff of the parliament itself.

That is why I think it is well past time that this parliament should take the matter seriously, not just the current incident but also future incidents. That raises the obvious question: who out there in the community knows about sexual harassment and other inappropriate behaviour? Who is most experienced and qualified to look into allegations and to determine appropriate responses? Who could we turn to for advice on setting appropriate procedures and protocols for dealing with future incidents in our workplace? The answer is pretty obvious when you think about it. It is the Equal Opportunity Commission, headed by equal opportunity commissioner, Dr Niki Vincent. In her last annual report Dr Vincent describes her role as follows:

In my role as the South Australian Commissioner for Equal Opportunity, I hold statutory responsibility for administering the Equal Opportunity Act 1984…to prevent discrimination, sexual harassment and victimisation, and to facilitate the participation of all citizens in the economic and social life of the community.

That begs the question as to why the equal opportunity commissioner was not the first person approached to look into this. As I understand it, the official reason offered was one of jurisdiction, but I think that is a cop-out. If we asked the commission to look at this, then that is what the commission would do.

Some might argue that the act is unclear in relation to whether it applies to conduct by one MP against another MP. At risk of fulfilling a stereotype that was offered before, as a lawyer I am going to quote chapter and verse from the legislation. Section 87 of the act deals with sexual harassment. It says in subsection (6c):

It is unlawful for a member of Parliament to subject to sexual harassment—

(a) a member of his or her staff; or

(b) a member of the staff of another member of Parliament; or

(c) an officer or member of the staff of the Parliament; or—

and this is the important bit—

(d) any other person who in the course of employment performs duties at Parliament House.

So, on a quick reading of the act, it does not specifically refer to sexual harassment by one member of parliament against another member of parliament. However, I think there is a reasonable and a strong argument that it does cover the situation. The catch-all provision in paragraph (d) says:

any other person who in the course of employment performs duties at Parliament House.

The definition of employment in the act is unhelpful, because it just says that unpaid work is also employment, but the related definition of employee includes the following:

…the holder of a public or statutory office (not being a judicial or magisterial office)

Whilst members of parliament might not be employees in the common sense of the word, I think we are employees according to the definition in the Equal Opportunity Act. Of the wide range of public and statutory office holders, only judges and magistrates are excluded, so I think it is pretty clear that members of parliament are public or statutory office holders, which means we are employees within the meaning of the act and we are arguably covered by paragraph (d):

any other person who in the course of employment performs duties at Parliament House.

If MPs are regarded as employees, under the act at least, then we are both protected by and bound by the prohibition against sexual harassment, even if the target of that behaviour is another member of parliament. Other aspects of the act, importantly, would also apply, so to suggest that there is an insurmountable legal hurdle preventing the equal opportunity commissioner from looking at this matter is not correct, in my opinion. I know that others will say that the catch-all provision I just referred to is aimed at interns, work experience participants and private contractors who happen to be working in Parliament House. I think it is arguable that MPs are covered as well.

Ideally, we would fix the Equal Opportunity Act by specifically putting in a provision that related to the conduct of one MP against another, but even without that, I do not think that this supposed jurisdictional hurdle is insurmountable. At the end of the day, I think it really is just a convenience for the government to hide behind jurisdictional uncertainty, to keep the equal opportunity commissioner away from this current situation involving the member for Waite. I think it is much more likely that the government wanted to keep control over any investigation, including controlling who could give evidence and being able to keep any adverse findings secret.

This is certainly what the current inquiry instigated and now stopped by the Speaker of the House of Assembly looks like to me. None of us know what the investigator's instructions are. We do not know who he has spoken to or who he has not spoken to. Actually, I do know who he has not spoken to. I do know that as of last Thursday, he had not even approached key witnesses, including eyewitnesses. These are people who were there and saw what happened. In fact, key witnesses did not receive their invitation to talk to the private investigator until Friday evening, after most people had left work for the weekend.

Now that the Speaker has stopped the private investigator's inquiry, it is clear that the evidence collected to date is incomplete. In fact, it struck me, when the Speaker's private investigation was first announced, that the very first task of the investigator would have been to ask the most basic question: who was there and who might have seen or heard something? That would seem to be the starting point. It is not that hard. It was a gathering of only a few dozen people in the lower ground floor corridor, and we collectively know all of their names.

The fact that the investigator did not even contact some potential witnesses until after 5pm last Friday, which apparently was the day that he was supposed to furnish his report to the Speaker, suggests to me that he was under strict orders as to who he could talk to, which hardly fits the description of an independent investigation.

The only other thing that I would say about the Speaker's investigation is that his decision to suspend it on the grounds of a potential police prosecution misses the point entirely of this exercise. The police are only interested in potential breaches of the criminal law. A police inquiry is a narrow inquiry, with a strict burden of proof that a criminal offence has been committed and can be proven beyond reasonable doubt. The question of inappropriate behaviour, on the other hand, including sexual harassment, is much broader, and it does not necessarily involve a criminal assault. The test is not a criminal one of beyond reasonable doubt either.

In my view, the Speaker needs to step back from directly controlling the direction of the inquiry. He should not direct the investigator as to who he can and cannot talk to. He also needs to commit to public disclosure of the outcomes because leaving those people who have already given evidence in the lurch is also unacceptable. There is obviously a link between investigating individual circumstances, such as that involving the member for Waite, and addressing broader cultural problems in an organisation, and other members have spoken about that at some length. I will refer to a news report. The ABC reported this in its online news service on 4 February:

The Equal Opportunity Commissioner does not have the power to initiate an investigation unless a formal complaint is made by an individual, or unless 'invited' to conduct a broader investigation into the policies and culture of an organisation.

Dr Vincent said she had not been approached by the Liberal Party.

'I haven't had any contact from the Liberal Party on this matter, including the Speaker, [but] I have been approached by the Clerk of the House of Assembly about this matter,' she said.

Dr Vincent said she 'absolutely encouraged' anyone with a complaint to come forward.

And this is the important bit:

'I believe that bringing a complaint allows us to understand what's happening and provide us [an opportunity] not just [to] work on that particular issue but also to provide advice in regard to broader changes that might need to be made to change culture,' she said.

That brings us to the importance of my colleague's amendment to the motion; it goes to that broader question. The amended motion that is before us includes both the investigation of the events on 13 December and also to help this institution address the cultural change that is needed to keep everybody who works here safe. It is not just about identifying appropriate behavioural standards—I would have thought that that is quite easy—but there do need to be very clear pathways for any person who is unhappy about inappropriate behaviour in the workplace and it should not matter where you are on the food chain or the pecking order of parliament.

This is a workplace that involves many hundreds of people and it needs to be safe for everyone, regardless of who they are. That is why I support this motion and I also support the very sensible amendment of my colleague the Hon. Tammy Franks, which addresses the organisational cultural issues, which, at the end of the day, I think will turn out to be far more important and will help protect people who come to work in this place in the future because that is a level of protection that they all deserve.