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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-07-02 Daily Xml
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Equal Opportunity (Parliament and Courts) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 30 June 2020.)

The Hon. C. BONAROS (15:45): I rise to speak in support of the second reading of the Equal Opportunity (Parliament) Amendment Bill 2020. Firstly, can I thank the government for bringing this important issue to the parliament for debate. It has been a long time coming and is certainly long overdue. Those members who have been here long enough or have informed themselves of the original debates on this bill some 24 years ago would know this is, sadly, a case of the more things change, the more they remain the same.

The historical background of this bill is as follows: in 1996 it became unlawful for MPs to sexually harass their staff, the staff of other MPs, officers or members of the staff of the parliament or any other person who, in the course of their employment, performed duties in parliament. Those provisions came into effect following the enactment of the Equal Opportunity (Sexual Harassment) Amendment Bill 1996.

The bill was introduced in the Legislative Council by the Hon. Trevor Griffin MLC, the attorney-general at the time, in response to recommendations made in the Legislative Review of Equal Opportunity Act 1984, commonly known as the Martin review. The bill took eight months to pass both houses of parliament and only after a deadlock conference. Disgracefully, this was after it took 12 years for the government to implement the recommendations of the Martin review. I will say it again: the more things change, the more they remain the same.

The main point of contention was whether the legislation should apply to sexual harassment between MPs, local councillors and judges. By all accounts, if you have read the transcripts of the time, it was a heated debate. There are amendments moved by the Hon. Carolyn Pickles, the leader of the opposition in the chamber at the time, who argued, among other things, for the total prohibition of sexual harassment in parliament.

This was to accord with the unanimous recommendations of the Joint Committee on Women in Parliament, which highlighted that the uncertainty about whether sexual harassment provisions of the act encompassed conduct between MPs left open continued intimidation and harassment of female MPs by their male counterparts in a workplace where, historically, male attitudes and behaviours prevailed.

The Pickles clause was later removed in the House of Assembly, and a deadlock conference ensued for a number of reasons, including:

MPs are frequently adversary and enacting such a law would open up the possibility of complaints being raised frivolously for political purposes, and;

applying the law in this way would raise too many questions of parliamentary privilege and impede on the sovereignty of parliament.

Hansard indicated the attorney-general at the time committed to reviewing the legislation after two years. A recent search of Hansard discovered this review never took place.

I have since sought confirmation of all of this from the equal opportunity commissioner, Dr Niki Vincent, who has substantiated this as factual in her advice both to me and, as I understand it, to the Attorney. Here we are 24 years later and nothing, absolutely nothing has changed. As I said earlier, the more things change, the more they remain the same.

In her advice to the Attorney-General about the act, the commissioner outlined her concerns, and they included some very important concerns. They included:

the act does not reflect current community standards around sexual harassment in the workplace and the expected conduct of MPs as leaders in the community;

the act does not take into consideration the disparity in power that may exist between MPs and therefore is omitting to afford MPs with appropriate obligations and protections regarding sexual harassment; and

concerns regarding parliamentary privilege are overcome by the existence of section 87(6d) (i.e. that section 87(6c) does not apply in relation to anything said or done in the course of parliamentary proceedings) and by section 93AA, which requires that a complaint alleging that an MP has acted in contravention of section 87 lodged with the Commissioner for Equal Opportunity must be referred to the Presiding Officer of the relevant house to determine whether dealing with the complaint under the EO Act could impinge on parliamentary privilege.

Herein lies the next problem with this legislation. Section 87(6d) provides that:

Subsection (6c)—

that is, the one we are amending today dealing with sexual harassment—

does not apply in relation to anything said or done by a member…in the course of parliamentary proceedings.

'Parliamentary proceedings' is defined in the Equal Opportunity Act in section 5 as:

…proceedings before—

(a) the House of Assembly or the Legislative Council; or

(b) a committee of either House or of both Houses;

Leading academic Emeritus Professor Enid Campbell, in her paper on Parliamentary Privilege and Judicial Review and Administrative Action, highlights just how grey this area of the law really is. Where does parliamentary privilege end and where does subsection (6d) begin? Who is the arbiter of that process? Is it the President or is it the equal opportunity commissioner?

Where would one go as an aggrieved member? If a member who has been sexually harassed or racially vilified went to the equal opportunity commissioner, would the commissioner be prevented from investigating the matter, from making further inquiries or making recommendations regarding the conduct of another member if it occurred on these premises or during parliamentary proceedings?

Who is privy to the advice of the Crown in relation to all such matters given to the government or the President or the Clerk's office? If a member was to obtain their own legal advice, how would they judge the veracity of that advice when they have not been privy to the Crown advice?

I think it is worth noting at this point that, in relation to this specific bill, one of the conversations I did have with the Attorney was whether input had been sought from our clerks and from the President and Speaker in relation to this bill. The advice was, no, they were provided with correspondence post-fact, letting them know that this bill would be coming up for debate in the chamber.

So where is the government's policy on these important issues and, more importantly, where are the parliament's policies, where are the parliament's guidelines and where are the parliament's procedures on these issues? Does one come to you, Mr Acting President, in this case, and what would your response be? Do you know? Is it in the standing orders? Will the President tell me or any other member that it is not within their responsibility, because we have heard that before? As a member of parliament, how on earth is one supposed to know what to do, when clearly this parliament does not?

In a paper dated 2001, Professor Campbell highlighted the extent of the ambiguity that exists within our current legislative and parliamentary framework. What is clear is that this is far from a black and white issue. Here are some examples to back that up. If a member was to call someone by derogatory, insulting, racist, sexually-charged names during a sitting of parliament—and I am not going to grace the chamber with any of these disgusting sorts of names, as they are all wrong—what would be the consequences of that and who would be the arbiter?

If one member was to walk past another member while in the chamber and call him or her a similar name, but not while on their feet, would that be considered to have occurred in the course of parliamentary proceedings, what would be the consequences and who would be the arbiter? Does it end with a point of order? What if the MP wanted to take the matter further? Where would they go?

If one was to walk past a member during a sitting and verbally harass them or grope them, what would be the consequences and who would be the arbiter? What about committees? If an MP was to do the same—any of those things I have just mentioned—during committee proceedings, what would be the consequences and who would be the arbiter?

What about during a tea break of a committee? If a member walked up to a person and placed their hands on him or her in an unwelcome way, sexually harassed them or racially vilified them, what would be the consequences and who would be the arbiter? What if a member texted them or called them after work in the privacy of their own home and sent them inappropriate messages? Who would be the arbiter, and what would be the consequences?

What if a member did the same at a briefing, at an information session organised by the government, at a parliamentary function in the dining room, at parliamentary proceedings that see us visit Government House, during estimates? What about a library information session? Where does parliamentary privilege end and where does section 87(6e) begin?

The work of leading academics like Emeritus Professor Campbell and case law suggest that none of this is black and white. Indeed, the circumstances leading to the recent case involving Senator Hanson-Young and former senator David Leyonhjelm suggests that none of this is black and white. The circumstances leading up the introduction of this very bill suggests that none of this is black and white.

The community has every right to expect its lawmakers to be subject to the very same laws they make for everybody else. There should not be one law for the common person and another for politicians, or judges, or councillors. As a female who has suffered from the impact of no protection, I see it as my duty, I owe it to all the women sitting in this place and, more broadly, to all the women and girls in the community who aspire to follow in our footsteps. I owe it to the men who stand with us. I, for one, will not be silenced because I have named someone in this building for their foul conduct.

Let me be clear, let me be extremely clear: every single day I get to feel the humiliation of what he did to me, and to others in this place, and the very decent people who work in this place. But every day I also feel anger, and I feel disappointment that legislative protections did not exist for me and people like me.

Like many, I entered parliament to make the unheard heard. I entered parliament to give a voice—

The ACTING PRESIDENT (Hon. D.G.E. Hood): Feel free to take a moment, Hon. Ms Bonaros, if you would like to.

The Hon. C. BONAROS: Thank you. I entered parliament to give a voice to people who might not necessarily have one otherwise, to go into bat for the underdog, for vulnerable people in our community who need our protection. That includes, in particular, anyone deprived of their rights. That includes men and women in this building who have been subjected to unacceptable behaviour but have chosen not to stand up for themselves because they know that doing so may result in them losing their job, or worse.

Do not think for a second that this is not happening. Sadly, this is not the first time I have suffered humiliation in this place, and I suspect it will not be the last in my capacity as a member of parliament. As I have said before, my skin has thickened a lot since becoming a member of parliament but I am still a person, and I have the privilege that others in this building do not. As difficult as it may be I can stand up in this place today and call out this behaviour for what it is. It is difficult, it is humiliating, and it is hurtful—not just for me but also for family members and others impacted by this sort of behaviour.

All too often we have become so consumed by the political pointscoring in this place, obsessed, absolutely obsessed and incensed with protecting our own political patch, that we fail to acknowledge the impact our behaviour has on others. All too often there is no regard for our families, our loved ones and our children. There was absolutely no regard for the fact that day in and day out for weeks on end my husband, my father, my siblings, my family, my four-year-old son got to see my face splashed across their TV and papers and social media headlines for all the wrong reasons in what became a media frenzy.

There was no regard for the fact that those same people got to read the comments of keyboard warriors and social media trolls; although, overwhelmingly, members of the community were very supportive. There was no regard for what I or we or others in this place impacted may have been going through personally in our lives that that time. There was no regard for the fact that attending functions to which I was invited in my capacity as a member of this place became absolutely impossible for the very same reasons.

There was no regard—absolutely no regard—for the fact that fronting up to my workplace, the place where I work, was humiliating and distressing, especially when, for a long time, so many members of the government treated me like I was to blame for everything that had happened in their own political party. In fact, it was worse than that: they just ignored me, and many of them continue to do so today. This is victimising 101. Was I okay? No, I was not. Am I okay? Clearly, no, I am not.

As terrible as it is, I am probably the only person in this place who drew a breath of relief when COVID-19 first hit the news cycles because, finally, there was some reprieve, at least from the media. And can I say I do not blame the media for what they did, for their level of interest in this issue. I did not ask for this matter to be made public. I did not ask for my face to be strewn across the page of the paper on the day that the story broke, with no mention of any other member involved, but that is what transpired.

But I have to say genuinely, there were a number of journalists in Adelaide who could not comprehend how it is that this parliament could be exempt from laws that in their own workplaces would have resulted in the immediate dismissal of an employee. Can I say also, of course there are those members, and not just members, but people who work here, decent people who work here, who we all work with, who reached out to me with wonderful words of support and, frankly, without whom I do not know how I would have dealt with things at the time. To them I am extremely grateful for their ongoing support.

Mr Acting President, with all due respect to our President and to his predecessors, it is entirely unacceptable that up until now conduct such as that, which this bill seeks to address, albeit not in an entirely satisfactory way, is left for you to deal with. As for the Speaker of the house, let me make it abundantly clear for the record: at no point, not once, has he bothered to approach me and speak to me personally about the conduct of one of his members. These are not disparaging remarks; this is fact. He has spoken about me, but he has not spoken to me. Again, these are not disparaging remarks; they are fact, and it goes to the heart of the bill that we are dealing with today.

He has made decisions that significantly impact me and others in this place without once thinking to pick up the phone and/or speak to me and them directly. He has addressed concerns by other members of this place—presumably by other members of this place—about the physical location of the offending member's office in Parliament House without a single thought that I and that other people in this place now have to walk past that member's office each and every day not once but several times a day to get our offices, to get to our meetings, to get to our lunch breaks, to get to our cars.

We have to walk directly past the member's office, and not once did the Speaker think, 'Maybe I should talk to them about this before I make this decision.' It never occurred to him to pick up the phone and say, 'Connie, do you think this might impact you at all?' It never occurred to him to make inquiries with other staff in this place before accommodating the need of a member of his chamber and formerly of his own party.

Given the member's public statements about not returning to parliament, I would have thought it appropriate, in the circumstances, that perhaps you, Mr President, perhaps the Speaker or perhaps somebody from either of the Clerks' offices—anybody, anybody at all in this place, in this parliament—would have thought it appropriate to notify those who have been impacted by another member's actions in this place. This is where we work. We spend the majority of our time here, and not one person in this place thought it appropriate to come to talk to us about the physical location of a member post the events that resulted in him being moved.

I do not know all the details about others impacted, but I do know what they have said to me personally. To those members in here or in the other place who might think that this is all a load of rubbish, I have one question for you: if it were your daughter, would you be happy for them to be working in this often toxic environment day in and day out? If it were your child, let alone your daughter, would you be encouraging them to get into politics? I know that I am not encouraging my son to get into politics. Yet this is how we choose to treat victims of harassment in this place. The last time I checked, members of this place breathe the same air as everybody else—perhaps other than the legal profession, where some of this behaviour is still deemed okay.

I do thank the Attorney for her commitment to date, not just on behalf of myself but on behalf of all the current and future politicians who should expect to go to work without being subjected to unwanted and inappropriate behaviour. It is not a compliment to be sexually harassed at work, it is offensive. As I have detailed, more needs to be done.

Putting aside the question of parliamentary privilege, a recent media report highlighting ongoing allegations of sexual harassment by a former High Court judge, who was until recent days still practising, demonstrates clearly that there is no justification for exempting the judiciary, or indeed local councillors, from these laws. I acknowledge that there is a review into how local councils will deal with these issues, but frankly it is not good enough.

As with members of parliament, the Equal Opportunity Act makes no provision for complaints of sexual harassment between members of the judiciary and councillors. It begs the question, the very same question: why should judges and councillors be held to a different set of rules for their conduct? The reputation of the legal profession is in absolute tatters following revelations that former High Court justice Dyson Haydon subjected six of his associates to sexual harassment. The Chief Justice of the High Court, Susan Kiefel, last week took the unprecedented and bold step of issuing a public statement on behalf of the High Court, following an inquiry. She said:

The findings are of extreme concern to me, my fellow Justices, our Chief Executive and the staff of the Court. We're ashamed that this could have happened at the High Court of Australia.

We have made a sincere apology to the six women whose complaints were borne out. We know it would have been difficult to come forward. Their accounts of their experiences at the time have been believed.

The leadership shown by the Chief Justice is admirable. She has acknowledged one of the worst-kept secrets: that the legal profession is rife with sexual harassment. The profession is competitive and it is hierarchical. There are strong power imbalances in the workplace, which is traditionally a male-dominated profession, although the majority of graduates coming through the ranks now are female.

In South Australia, we know only too well that when a member of the legal profession chooses to speak out against sexual harassment, they run the very real risk of being dragged through disciplinary proceedings for bringing their profession into disrepute—again, victimising 101. It taints their reputation forever for something they did not ask for and they are not to blame for. They are the victims. Let's not forget that.

We cannot afford to continue to provide excuses for certain people occupying positions of power and we certainly cannot continue to tell members of the political profession or the legal profession, or any other profession for that matter, not to rock the boat because it may be detrimental to their professional progression plan. We cannot continue to sit idly by as it happens. None of us should be above the law but those laws must meet community expectations.

I foreshadow today during this bill, because it is relevant to this bill, that in the next sitting week I will move a motion that deals precisely with sexual harassment in the legal profession. I will be asking the Attorney-General to undertake an investigation into claims of sexual harassment or the extent of sexual harassment throughout the legal profession. Again, I acknowledge the Attorney taking the time to personally brief me on this issue and provide the rationale for leaving out the judiciary from the proposed bill. I have given the matter long consideration but do not believe it is appropriate. I will speak to this further during the committee stage. I note for the record my discussions with the opposition and their in-principle support for those amendments.

Today, more than ever, there is no question that an investigation into the legal profession is absolutely required. I am going to end with this. I was not raised to back away from uncomfortable, difficult situations and, as tempting as it might be sometimes, I am not about to start now. The standard you walk past is the standard you accept. Sometimes, as I have said, it seems easier to walk past it and do nothing, mainly because it comes at great personal cost. But the more we do that, the more things stay the same.

I, for one, am done with accepting inappropriate behaviour and I am certainly done with accepting that sort of behaviour in the place where I work. We should all be done with accepting inappropriate, bad, offensive behaviour in the place we work. I will call it out when I see it, and we should all do the same.

With those words, I indicate my support for the second reading of the bill and note that I have at least two amendments on file and still seek to have some clarification from our Attorney in relation to the issues that I have pointed out with section 87(6d). I raised those with her at the briefing. I have not had a response yet but I look forward to getting some clarification from her, and perhaps from you, sir, and perhaps from our Clerks on their understanding of those provisions and how they interact with issues of parliamentary privilege.

Debate adjourned on motion of Hon. D.G.E. Hood.

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