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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-06-30 Daily Xml
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Equal Opportunity (Parliament and Courts) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 June 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (15:55): I rise today to speak on the Equal Opportunity (Parliament) Amendment Bill 2020, and I indicate I am the lead speaker for the opposition. With regard to the substance of the bill proposed by the government, it seeks to make two small but important changes. Firstly, it amends section 87 of the act to make it clear that it is unlawful for one member of parliament to sexually harass another. Secondly, it amends section 93 of the act to effectively prevent the equal opportunity commissioner from taking any action on a complaint until any related criminal proceedings are completed or permanently stayed.

It is notable that the government has not referred to the alleged misconduct of one of its former members when debating this bill. I am not going to overly dwell on this matter, but suffice to say this bill was not on the government's radar until one of its own crossed lines and the Premier failed to take action to fix this situation. In a sense, this bill is a bandaid to cover up the Premier's lack of willingness and ability to deal with problems within his own ranks.

Despite making a positive change, it is a reminder of how bad behaviour has been compounded by bad leadership and bad management. Events that have come to light in recent weeks, such as the report of the actions of former High Court Justice Dyson Heydon, serve as another reminder that this sort of behaviour is still a major problem in many of our institutions. In that case, it was reported that numerous women were harassed, including those who had secured positions as associates to a High Court judge.

Several of the victims have reportedly left the legal profession after this treatment. They cited the inability to have any confidence about progressing in a profession where the culture from the top was so toxic. We cannot have this parliament fall into the same trap. For those reasons, the opposition will support this bill but again notes that this bill seeks to remedy the unwillingness of leadership to take action when they should have.

The Hon. I. PNEVMATIKOS (15:58): I rise today in support of this bill with amendments. As with other social policy issues in this place, legislative change in this parliament is either not identified as a priority and therefore not promulgated at all. In light of the worldwide Me Too movement and re-evaluations of structures and practices within our society to tackle discrimination and inequality, it seems extraordinary that parliament sees itself above these issues. This double standard is anachronistic.

We cannot require changes in the community and in employment and not require changes in parliament. Similarly, there is no room for inequality in the Equal Opportunity Act. The bill is a great example of double standards where members of parliament maintain a position of exemption from the laws that apply to everyone else. For far too long, members have had this privilege. I recognise that I am relatively new to this place; however, I—as well as the public, I might add—am not unaware of past indiscretions and inappropriate behaviours in the roles of representatives in this state.

With privilege comes responsibility and accountability. Parliamentarians are not exempt from that. In fact, they have a duty to our community and the voting public to ensure that they are role models. Likewise, we have seen recent media attention in relation to the judiciary, highlighted by sexual harassment allegations by no less than six women lawyers against former High Court Justice Dyson Heydon. High Court Chief Justice Susan Kiefel said, quote:

We're ashamed that this could have happened at the High Court of Australia…

We know it would have been difficult to come forward. Their accounts of their experiences at the time have been believed.

Her comments were timely and welcome. They demonstrated a real attempt to grapple and address the issues raised. The Hon. Connie Bonaros's amendments on inclusion of the judiciary and the courts demonstrate another group who have placed themselves above the law.

Both parliaments and the courts have a responsibility to ensure that any power imbalances and inequalities leading to discrimination and harassment are identified and addressed. We cannot expect the community to change their structures and behaviours when the enactors and enforcers of the law are not held to the same standards.

This bill will never undo what the member for Waite's and former members' inappropriate actions and behaviours have done. I would have thought that the shame and tarnished reputation that precedes these unspeakable actions would act as a deterrent for members and result in a re-evaluation in the structures that enable this and unacceptable behaviours. But time and time again that thought is proven wrong. It is almost as if some members in this parliament see themselves as above the law. Perhaps this bill will serve as a greater warning for members to consider and re-evaluate their actions and behaviours. We have moved beyond a time when this behaviour can be tolerated and, by implication, condoned. The community expects better.

We have passed all this legislation to protect people's rights in the workplace and ensure that workplaces are safe from discrimination and inappropriate practices in workplaces. We have a responsibility to ensure that our workplace also reflects a safe working environment free from discrimination and harassment. And I hope it does because this is an issue of equal rights and equal opportunity for all.

Once becoming aware of the incident, the Premier and the Attorney-General initially took swift action, but from then until now nothing else has progressed. We have had to wait six months for this legislation which, quite frankly, should have been done months ago. When the state government cannot even act on an issue this serious in a timely manner it sends a powerful message to the public that encourages inaction. This incident has reignited the discussion on the deep-rooted inequalities and inappropriate practices that go on in this place.

Recently, we marked 10 years since the first female prime minister, Julia Gillard, was appointed. Perhaps one of her most memorable speeches was directed at leader of the opposition Tony Abbott about his awful display of misogyny and sexism towards Ms Gillard. Using Tony Abbott's own words and actions against him showed the validity of her argument and the hypocrisy that transpires in parliaments. Her speech forced the debate of harassment and sexual inequalities within the parliament. It is unbelievable that this speech happened 10 years ago and that we can still see similarities in our parliaments today.

We can no longer ignore the disproportionate sexism and harassment women receive in this place. This government has labelled this bill as a 'minor technical fix up', but we know that its implications have a much greater effect on the whole culture of this place. The bill before us today is only one piece towards growing a safer and more equal parliament. Members must commit to changing the attitudes and some of the practices in this place.

The Hon. T.A. FRANKS (16:04): I rise to support this bill and welcome that we will finally address this matter before the parliament. It is unfinished business from the 1980s. It is unfinished business for many members of this place who have been sexually harassed, who have been subjected to degrading and vindictive behaviours in a way that would not be acceptable in any other workplace of this state.

This bill will make it unlawful for a member of parliament to sexually harass another member of parliament. Very simple words, but I think most members of the South Australian community would be astounded that currently it is lawful for a member of the South Australian parliament to sexually harass another member of the South Australian parliament.

We know with the suffrage anniversary—not the one just passed but the one before that, now over 25 years ago—that the work of that committee ensured that staff in this place and in our electorate offices were no longer able to be sexually harassed by members of parliament with impunity, but that impunity has continued for over 25 years since that particular debate.

We know from the Hansard back in the 1980s and 1990s that everyone knew that these behaviours went on in this place, that everyone knew who the perpetrators and the harassers were and that everyone chose not to legislate to stop it, and yet this is our job: we make the laws of this land but when it comes to sexual harassment, for decade after decade the majority in these chambers have decided not to take action on these issues.

I wrote to the equal opportunity commissioner in November 2017 about the then Speaker of the House of Assembly, now retired—Mick Atkinson—who on Twitter had sent myself and another member of this chamber faux vaginas, continued to harass us and say that we should enjoy what he called 'jolly japes', and continued to harass many women who held elected positions in this place over a number of years. The equal opportunity commissioner wrote back to me in August 2018 stating:

I understand that you feel the treatment that you have experienced may seem unfair. However, I can only make inquiries into your complaint if it is covered by the Act.

In your complaint you say the Speaker was opposed to the results of a vote on the decriminalisation of sex work and as a result engaged in a course of conduct regarding you. You say he presided over innuendo regarding you in the House of Assembly, without sustaining points of order and was uncivil, demanding you attend meetings and respond to correspondence. You say he re-tweeted a message containing an inappropriate image, asking you and a colleague to comment on it. You believe his actions constitute sexual harassment.

The equal opportunity commissioner went on to state that:

Section 87 of the Act contains a provision relating to sexual harassment and outlines the various areas of public life the prohibition relates to. Section 87(6c) specifically relates to Members of Parliament and covers complaints by: members of an MP's staff; an officer or member of staff of the Parliament; or other persons who in the course of employment perform duties at Parliament House.

The method of dealing with complaints regarding allegations of sexual harassment by MPs is set out in section 93AA of the Act. This states the complaint must be referred to the appropriate authority, which in this case was the Deputy Speaker of the House.

Given the complaint was about the Speaker of the house. The letter further stated:

By letter dated 22 December 2017, the Deputy Speaker advised that the allegation did not come within section 87(6c), as the section did not apply to an allegation made by another Member of Parliament. As such she advised that she would not be investigating it, nor deciding whether it impinged on parliamentary privilege.

The Deputy Speaker's decision meant that section 93AA(d) applies and I thereby need to decide whether the complaint can be dealt with under the Act. Initially I believed that in order to do this the Deputy Speaker had to decide the issue of parliamentary privilege; however, after receiving further information, including a relevant section of the Hansard record, I no longer believe that this is necessary.

The Hansard record indicates that there was some debate on the bill in 1996-7, which amended section 87 to include Members of Parliament. The Opposition at the time expressed disappointment that a recommendation of the Select Committee on Women in Parliament was not taken into account by recognising that sexual harassment can occur between one MP and another. The then Attorney-General was clear on this point. He quoted from the review of the Equal Opportunity Act by Mr Martin QC, which indicated the issue of power inequality was central to consideration of the areas of public life where the provision relating to sexual harassment would apply. He said MPs:

'…are in a different position from the normal workplace participant. They are frequently adversaries in the public eye. Other means of coping with offensive behaviour are readily available and there are dangers associated with an attempt to intrude into these relationships' (page 1708 Hansard).

The letter from the equal opportunity commissioner goes on to state:

The Attorney-General indicated the Government agreed with that view and opposed any attempt to extend the Act to cover sexual harassment by one Member of Parliament against another.

In my view this debate and the wording of the amendment, makes it clear that section 87(6c) was not intended to apply to complaints of sexual harassment by one MP against another. It is further my view that given section 87(6c) is the section which specifically applies to MPs, then section 87(1), by virtue of this fact and its wording, relating to sexual harassment in the workplace, does not apply to the situation you describe in your complaint, involving the actions of the Speaker.

You evidently believe an MP should be able to utilise the provisions of the Act—

meaning the Equal Opportunity Act—

to make a complaint of sexual harassment against another MP.

I certainly did believe that. The letter goes on:

However, my view is that the situation you describe does not come within the Act, in its current form. As such I do not have jurisdiction to enquire into, or examine the substance of your complaint.

Although I do not believe this is a complaint within my jurisdiction, the subject of sexual harassment in all areas of public life is of concern to me. I continue to promote awareness on the issue and I am always grateful for the opportunity to reflect on whether the current form of the Act is an appropriate reflection of community values and expectations. Furthermore, I will continue dialogue with the Government in relation to the question of possible future amendments to the Act.

I thank her at least for that response, which put into words what we all knew in this place. When I was inducted to this place, the previous Clerk, Jan Davis, outright told me that I had no protections against sexual harassment as a member of parliament but my staff did. I was given the history at that time in that induction that this had been attempted to be amended back in 1996 and 1997. Three decades on, here we are finally actually changing the act. Here we are finally coming in, not to the 21st century but to the 20th century, with appropriate workplace protections.

The complaint that I made to the equal opportunity commissioner at that time was about more than the Speaker, it was about many members of the opposition and their behaviour and the way that the Speaker had presided over it. In this place, if we wish to raise a point of order, if we think something is out of order, we have the power to stand up and challenge it at the time. We have the power to make a personal explanation if we feel that we have been misrepresented. When on the public record in perpetuity similar slanders, similar denigrating comments are made, we have no power, if we are elected in this place, to stop what they say about us just a few metres away in the parliament in the other chamber.

When I made this complaint, I got my staff to do a Hansard search. We found that between July 2015 and late 2017, the time frame in which I lodged the complaint, there had been dozens of instances where I had been subject to denigrating language, aspersions on my character, accusations of sexual relationships, accusations that in any other workplace would not be suffered, as I had to do, and would not be put up with by management. Certainly, they would not be presided over in the way the Speaker did as to his entertainment to paraphrase one particular ruling when the now Speaker made a point of order against what the member for West Torrens was saying at the time.

With the tweeting at myself and the Hon. Michelle Lensink of a faux vagina that Christmas, I decided enough was enough and I was not going to put up with it anymore. I knew as I did so in the words of Jan Davis, the former Clerk, that I probably had no protection whatsoever. Certainly, over the course of time, I had had conversations with members of the opposition. I had one occasion where a member of the opposition had weighed in on this childish debate and piled in on me that day and I would receive text messages from some of those in the opposition who were disgusted by their colleagues' behaviour saying, 'They are doing it again.' Much of it, of course, was not even recorded in Hansard but we found dozens over many years of this gutter trash in Hansard.

That day, I ran into that member who I was quite disappointed in who I thought was a respectful colleague who had weighed in thinking it was all a bit of fun. I was on my way to an event in The Old Chamber and I ran into him in the corridor. He said, 'How are you, Tammy?' I said, 'Not very well, thank you. I don't like what you said in question time today,' to which he started to retreat away saying, 'You should take it as a compliment. It means you are a powerful woman.' The implication that one, as a woman in this place, somehow has to resort to some perceived fabricated sexual wiles is something that belongs in the script of Mad Men, not in the chambers of the South Australian parliament in the 21st century.

At that time, I was deeply upset. This had been sustained over years and I was sick of it. I was sick of the snide remarks in public ways that were presided over by a Speaker who thought they were all a bit of fun and was entertained by them. I was sick of having stakeholders and constituents tell me that they had been told things about me by members of the opposition, then in government, holding positions of ministers of the Crown. I was fed up with those sympathetic members of the opposition who would text me and offer me quiet consolation, and that nobody called it out. I did raise this with the then premier and I did raise this with many members of the opposition, and I was told, 'Yes. He is awful to us, too. What can we do about it? We have to put up with similar types of behaviour. Just keep away from him.' Seriously?

This is a party that says they stand up for workplace rights, and I have to say the member for Ramsay was the only one who had the guts to say to me, 'You know what, Tammy? In any other workplace, this would not be accepted and they only do it because you are a woman. They only do it because they think that you can get away with it.' I thank her for that because that solidarity that day actually showed me that not everyone in the opposition felt this way and thought that this behaviour was appropriate.

I am reasonably sure there have been instances of it under this government but with a different Speaker it is a little harder to get away with this type of behaviour in the other place. I do say that I think because we have a chamber where the government does not have the numbers and it is not as adversarial that we do not see that sort of behaviour in this chamber. But we should not see it in any chamber. It should not be accepted by any political party of any colour in any parliament of this country and yet here we are today finally fixing up what we should have done back in 1996-97.

I am frustrated that members of the opposition have focused on the current situation, again leading up to Christmas—perhaps there is something in the air around Christmas in this place—of the member for Waite. I think his behaviour was appalling, I think it was unacceptable, and I have made several complaints in formal ways. I look forward to the interview that I had with the private investigator being part of a resumed investigation into what happened that particular evening in this workplace.

I also look forward to the equal opportunity commissioner's offer to do what she has done with SAPOL and do an audit of this workplace, this parliament, to ensure that this sexist behaviour, this sexual harassment, beyond the letters of the law that we will change in this coming debate—but that in the culture of this place people will not revert back into their red or blue camps, revert back to victim blaming, revert to gaslighting people who do complain, revert to snide innuendo and false claims about people who you disagree with politically, thinking that it is somehow a legitimate political tool.

I do hope this parliament takes up the equal opportunity commissioner's offer to do the audit work with us and I understand that the Sex Discrimination Commissioner federally is most interested in this particular workplace. We have a proud history but we also have a dirty little history in this place as well where we all pretend that somehow these behaviours are either not happening or not affecting people in their workplace.

I actually got really quite upset that this debate was brought on earlier than I expected. Emotionally and mentally I had to prepare to talk about this because it is not something that I want to talk about in this parliament. It was something that I have deliberated on for weeks whether I would, but I think it is actually time we called it out and stopped blaming victims and stopped pretending that we are not all culpable when we turn away from it, and to actually realise as well that this is not just for the equal opportunity commissioner to address but it is for each and every member of this parliament to change the way that we behave or change the standard that we are currently walking past and accepting, and to call it out no matter who it is or how powerful they might be in this place. With those few words—because I could say a hell of a lot more—I commend the bill.

Debate adjourned on motion of Hon. I.K. Hunter.

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