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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-11-16 Daily Xml
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Parliamentary Committees

Joint Committee on the Equal Opportunity Commissioner's Report into Harassment in the Parliament Workplace

The Hon. R.I. LUCAS (Treasurer) (15:33): I move:

That the report of the committee be noted and that the recommendations of the joint committee that the code of conduct for members of parliament be adopted and that the standing orders of the council be amended to incorporate the code of conduct within the standing orders and that, upon the code of conduct being adopted by the Legislative Council, the statement of principles previously adopted be superseded by the code of conduct, be adopted.

It seems many weeks ago that I gave notice of this particular motion that the work of the committee had concluded. I, as one member of that committee, thank all the other members of the committee who represented. It was a joint committee that represented government in both houses. It represented the Labor Party in both houses. The Hon. Ms Bonaros represented the crossbench members in this particular chamber. The member for Mount Gambier represented the crossbench members in the House of Assembly.

I think it is fair to say that both houses, all sides of politics, were represented, and my understanding is that those crossbench members who were on the committee did take the opportunity to, on occasions during the proceedings of the committee, consult with other crossbench members to at least apprise them of the progress of the committee and, in particular, when we got to the recommendations stage, to a least have a broad discussion with other members.

That is an unusual process. I am not sure whether it is 100 per cent in accordance with the standing orders but, nevertheless, it was approved by the committee. Given the significance of this issue broadly and, in particular, one of the key recommendations, which is a code of conduct for members of parliament, the committee sanctioned the appropriate discussion with other members. In relation to the government and the Labor Party there was approval to consult other members of their respective parties in relation to where the committee might have been heading.

The long history of this I do not intend to delay proceedings today with, but for many years we have had what was known as a statement of principles for members of parliament, which was broadly a version of a code of conduct but short of a code of conduct. Specifically, the ICAC legislation when it was introduced originally made it quite clear that a statement of principles was not a code of conduct for the purposes of the ICAC legislation.

The intention of past parliaments, Liberal and Labor and crossbenchers at the time, was quite clear. I do not recall any opposition when these issues were debated. There would be a statement of principles which governed members' behaviour, but it was not a code of conduct for the purposes of the ICAC legislation. In recent times, by a respective collective vote or aggregate vote of 69 to nil I think it was, this parliament of all persuasions made significant amendments to the ICAC legislation and it, therefore, had impacts in relation to code of conduct related issues.

I will not go into all of those, but there were significant changes made unanimously by both houses of parliament and that did impact significantly on this whole debate and issue about codes of conduct. For a whole variety of other very important reasons, this committee was established and, as I said, one of its priorities was the establishment of a code of conduct and in relation to how it might operate and what the implications might be.

One of the changes in the ICAC legislation which I should refer to was that breaches or alleged breaches of a code of conduct would be considered by the Ombudsman in the future, as opposed to the commission, and the Ombudsman would make determinations ultimately on those that he or she might find were serious or intentional, I think were the two words that governed findings for the Ombudsman.

There may well be allegations about a breach of a code of conduct, such as the one that we are contemplating here, and the process will be that it will ultimately be for the Ombudsman to determine whether or not they were serious or intentional breaches of the members of parliament code of conduct. Ultimately, this is an issue that I am addressing at the moment by way of potential amendments being moved by the Hon. Mr Simms and it is the issue then of what occurs at the end of that particular process.

Before I address that issue again, I come back to the issue that it has been my view and I think that it has been a convention or agreement in this chamber, in the Legislative Council, which has served this chamber well, that our standing orders have, to my knowledge, always been unanimously agreed. That is, even before we had crossbench members in 1979 and subsequently, but that they were standing orders which were agreed by both sides of parliament and, since we have had crossbenchers, standing orders which have been agreed by all members of this particular chamber.

I am not sure for how many more decades that convention will prevail; I hope it is forever. I think it has served this chamber well. Therefore, I place great store on the fact that what ultimately this chamber is going to be asked to consider by way of an amendment to the standing orders is something that has been agreed to, through an agreed process, by Liberal Party members, Labor Party members and crossbench members in the Legislative Council and in the House of Assembly. Therefore, I, personally, and the government place great weight on the fact that we have reached agreement on a complex and complicated issue.

I assure the Hon. Mr Simms, who will explain his amendments later on, that the issues of consequence were issues addressed in detail by the members of the committee. Various alternative options were put and rejected, and the unanimous view of the committee was that these decisions as to what happens at the end of a particular process are ultimately matters for either other bodies, individuals or the parliament itself.

For example, if a member of parliament was found by the Ombudsman to have breached a member of parliament code of conduct in a serious and intentional way, then there would be considerable pressure on the leader of a major party, or indeed even a minor party, for action to be taken against that particular member within that particular political unit. That is, a shadow ministerial position might be removed, a ministerial position might be removed, a party office holder position, such as the whip, or membership of a committee or chairmanship of a committee might be removed by the political party or the leader of that particular political party.

In those examples, that is not a decision that is ultimately taken by this particular chamber. This chamber does not have the power to remove the shadow minister for regional development, for example, from her shadow ministerial responsibilities. That is a decision for either the caucus or the Labor leader or a combination of both. So there are those sorts of decisions. Clearly, if you are an Independent member of either house of parliament then you do not have a leader. You are the leader and it is an interesting question as to what the equivalent consequence is in those particular circumstances.

However, there is also the position where a house of parliament could, upon receiving a finding from the Ombudsman about a serious or intentional breach of the code of conduct, take action in relation to a variety of actions that they might want to take. We have had speculated, although we have not seen it in my time, in recent circumstances that a house of parliament might move a motion to not allow a member access to member services—for example, the bar or the lounge or whatever it is.

Whether that is within power or not would be an interesting question but it has certainly been speculated in relation to access to various services, but this chamber, and equivalently the House of Assembly, does have considerable powers and ultimately could take a range of decisions based on advice in relation to an action they might want to take, as the majority of this chamber, against a particular individual. Those options are there.

These issues were considered and, as I said, ultimately the unanimous finding of this particular committee was to report the recommendations as we have outlined. As I said, I think that is a strength of this particular report and recommended changes to the standing orders. I am anxious, speaking on behalf of my party colleagues, to resolve the issue of an agreed code of conduct for members of parliament as soon as possible, and I am certainly strongly opposed, on behalf of my party, to anything that may further delay that, divide that or splinter off what has been a unanimous agreement between all parties.

I think if, in the absence of an agreement, there is a process which this chamber, and frankly the House of Assembly, could adopt if they so chose to further ask standing orders committees to consider various other options, they could come back at another time. At least at this stage we have a recommended agreed code of conduct, and I would be hopeful that sooner rather than later we are in a position to be able to vote to support that code of conduct.

A whole variety of things were raised by way of submissions to the committee. The ICAC commissioner gave a written submission, followed up by an oral submission. There are various aspects of that particular draft code about which I have spoken publicly and opposed. I am pleased to see they are not reflected in this particular code because, in essence, if that had been picked up, any occasion a member of parliament had a spirited disagreement with a member of the public, that member of the public, he or she, could make an allegation of a code of conduct breach, that they had not been treated respectfully in their engagement with the member of parliament, and that would be something being explored by an integrity body, which now would be the Ombudsman.

Again, in my view, that is certainly not what has been recommended here. Those sorts of good standard and behaviour practices are there as a preamble to the code of conduct, but an allegation about a claimed breach of that would not constitute a breach of the code of conduct. The code of conduct covers all the traditional major elements: issues of pecuniary interests, declaration of interests, complex serious behavioural issues, and clearly the issues that have been a subject of a lot of debate recently in relation to sexual harassment, harassment and bullying. All of those issues are understandably canvassed in this particular code of conduct.

On behalf of government members, we therefore support the report. At the appropriate time we will be moving the code of conduct, which is consistent with the report. I flag at this stage, whilst I have only just received the proposed amendments from the Hon. Mr Simms, that it is the government's position that we will support the code of conduct that has been unanimously agreed by the committee without opening it up to further amendment.

When those amendments are moved we can discuss some of the issues in detail, but perhaps I will address the issues in relation to the amendment when the Hon. Mr Simms moves those. I assume by the nature of this motion that I will have the opportunity to conclude, but we will not have the equivalent of a committee stage, so perhaps I had better just broadly canvas it at this stage as we will not have the to and fro of an equivalent committee stage.

My major point is that we have an agreed code of conduct, and I think we should move with that. Secondly, the issue of, as I read very quickly, the shape and nature of the proposal is that it leaves open to the Legislative Council—I presume it leaves open to the Legislative Council—whether or not it leaves open the prospect of a President having separate power based on advice, or whether it is just the majority vote of the Legislative Council, it would appear to be the capacity to levy an unlimited fine on a member of parliament.

It can be a lonely place when you are in the minority in this chamber. The prospect of the Labor Party and crossbenchers levying unlimited fines of some extraordinary capacity against a member of the government is not an overly exciting prospect. I will be grateful that I will be gone by March. If this particular provision was there and the Hon. Mr Simms was moving that as a member of the government I deserved a million dollar fine because I breached the code of conduct—some of us do not have the resources to meet those sorts of fines.

Anyway, it does raise a general question in relation to it. As I said, the committee considered a range of those sorts of options and ultimately decided to leave it, as I said, that the chamber could make decisions, but in a number of respects we would be in a position where we believed the leadership of the political organisations, both large and small, would also be in a position to take action against their particular colleague who might have been found to have breached the code of conduct in a serious or an intentional way.

With that, I urge support from members in this chamber—after many years of a statement of principles to graduate to a code of conduct—to what is an agreed recommendation from Liberal, Labor, SA-Best and the Independent Mount Gambier member, Mr Bell, by way of this recommendation from the committee.

The Hon. K.J. MAHER (Leader of the Opposition) (15:51): I rise to speak on behalf of the opposition on this motion. I understand that the intention is—and I will be corrected if I am wrong—as the Treasurer sums up, that we will not be voting on the amendment being proposed today. I can indicate that the Labor opposition does not have a formal position yet on the amendment, which is reasonably new to this chamber. The first two paragraphs of the Chairperson's foreword to the committee inquiry report says:

This Committee was formed in the circumstances where a review has taken place by the Acting Equal Opportunity Commissioner Ms Emily Strickland, of the incidence of harassment in the Parliament workplace. These circumstances and indeed the findings of the Acting Commissioner are a reminder that the prevalence of harassment, including sexual harassment, and discrimination has a serious impact on individuals and workplace culture.

Parliament is not immune from scrutiny; although unique, it is a workplace like any other. All persons who work in Parliament, whether Members or staff, deserve to feel safe and receive the same level of protection as they would elsewhere. It is a matter of paramount importance that persons who experience harassment, sexual harassment, and discrimination are able to report such conduct and have confidence in the processes available to address complaints.

I echo these sentiments. I think no organisation is without fault when it comes to preventing and addressing bad behaviour in the workplace. As parliamentarians, and indeed as community leaders, we have a fundamental obligation to set the right example. When we fail, we have a further obligation to examine how we conduct ourselves, the rules around that conduct and our attitudes.

The joint committee has helped parliament to do that. A vast array of organisations provided submissions to the committee, from SAPOL and ICAC to representatives of parliaments in other jurisdictions such as Tasmania, New South Wales, the ACT and Victoria.

Importantly, the committee has proposed a code of conduct for MPs. This was included in the work of the committee thanks to an amendment moved by the member for Reynell in another place, Katrine Hildyard. As with many other important matters, it is disappointing that—and there has been good reason for this—as matters can be, this has been scheduled in what is the last scheduled sitting week before the election, although on current indications I suspect it might not be the final sitting week we face.

Noting delays that have occurred in both the original equal opportunity report and the committee report itself, I do not want to delay process any longer. I think the quote I read at the start from the Chairperson's foreword sums up where we are and what we need to do quite well.

I will, in closing, note that it has been at the core of the Labor Party and the labour movement for 130 years: fighting for better protections and conditions for workers. I think we owe it to ourselves, the community, our own staff and the staff of the parliament to provide a safe place to work, and I commend the committee's report to the council.

The Hon. R.A. SIMMS (15:54): The Greens are also supportive of this report and the recommendations. In particular, I want to put on record our support for the code of conduct that has been proposed. I recognise, as the Leader of the Government and the Leader of the Opposition have done, that this has come out of a multiparty committee process, but it should be noted that it was not a committee that involved active participation from the Greens.

It has always been our view that when you are developing a code of conduct it is important to include penalties to ensure that we have something in place that has real teeth, that the community can have faith in, that members of this place can have faith in, and that the staff who work in this building can have faith in.

With all due respect to the Hon. Mr Lucas, I am not sure that this Liberal government has the best track record when it comes to enforcing the behaviour of their members of parliament. This is the party that said, 'Let's not progress any investigation into the alleged conduct of Sam Duluk, let's just let that slide.'

The PRESIDENT: The member should be referred to by his seat, the member for Waite.

The Hon. R.A. SIMMS: I apologise, the member the Waite. 'Let's just let that slide and let's instead exhibit such a failure of leadership that it's over to the member for Waite to announce that he is going to run as an Independent,' because nobody in the Liberal Party hierarchy had the courage to move to disendorse him. So I am not sure that the argument, 'Well, the political parties will take care of their business and the government will discipline people who do the wrong thing,' really carries much weight.

I also refer to the conduct of the former SA minister, Stephan Knoll, who was found to have engaged in misconduct over his interactions with the cemeteries board by the Ombudsman. I am not sure what action has been taken by the government in relation to that behaviour. It is important that there are some clear consequences that flow if people do the wrong thing. That is the case in any other workplace in the state of South Australia and that is what the community expects of this workplace.

In terms of the amendment, I will talk to that later when I have the opportunity to do so, but in general terms what it does is imposes or provides the opportunity for the parliament to impose fines, compel a member to apologise or suspend a member from the service of this council. Members may well ask—and the honourable Treasurer has made this point—how long would the suspension last, what is the fine, and so on? These are matters that are dealt with in the Victorian model from which this language has been drawn, and were this to be implemented we could certainly finesse some of those issues through further changes to the standing orders.

It is not the desire of the Greens to hold up this process in any way. We are absolutely supportive of a code of conduct. It has taken a very long time for us to get here and with that in mind we do think it is appropriate that we ensure that any code of conduct we put in place has real teeth and ensures that there are real consequences that flow to those few bad apples who do the wrong thing.

The Hon. C. BONAROS (15:58): I will be brief. I might at the outset begin by acknowledging you and your role, Mr President, as President of this place and your position on the committee, which has resulted in this report and this code of conduct. I echo the sentiments of all three of my colleagues in one degree or another, and agree with those views that have been expressed.

I think what became clear throughout the committee process was the absolute need for this code of conduct and an acknowledgement of this parliament of behaviour that has previously gone unchecked in this place, and behaviour that does not meet any community standards in anyone's language. I think this was the wake-up call that we all needed in relation to that. I think the committee received ample evidence as a result of the Strickland review but also as a result of submissions made that showed that something needed to be done.

I do want to, just for one moment, speak about the commissioner's recommendations and the reasons why SA-Best was not supportive of those. Whilst I do not disagree with the outline that has already been provided by others and the deliberations of the committee, and I will not mention the case in particular, our hesitation in relation to those had more to do with the culture that underpins those legislative frameworks rather than the proposals themselves. In my view, and for reasons that are currently before tribunals where other similar conduct commissions exist, it is clear that, unless we address the culture underpinning those legislative frameworks, it will not result in any meaningful change whatsoever.

In relation to the code of conduct itself, I acknowledge the comments by the Leader of the Government, the Leader of the Opposition and also the Hon. Mr Simms and agree with those sentiments. I am sure we will have an opportunity to speak further to the amendment that we have seen today. I appreciate the reasons why the Hon. Mr Simms has put this in. In fact, I recall the conversation I had with him on the day that we first spoke of the report, because I had the precise same conversation with my colleague the Hon. Frank Pangallo.

In principle, this is not something we are opposed to. I think it is something that we have fleshed out significantly in the course of deliberations in terms of what can and what cannot be done. I can tell you, speaking from personal experience, that it has been a frustrating process when you do not know where you can go to and what you can or cannot have done as a result of a complaint. I think one of the things that we established, though, is that a referral to an ombudsman does not necessarily preclude—in fact, I think all of us will imagine that it would include—recommendations or suggestions as to possible outcomes when a complaint is made.

If an apology is warranted, then there would be nothing preventing the Ombudsman from making that recommendation or suggestion. If further training in the areas of sexual harassment or bullying or discrimination are required, then there would be nothing preventing the Ombudsman from making those suggestions or recommendations. Of course, they are only suggestions or recommendations. I think that goes to the heart of what the Hon. Robert Simms has been trying to highlight, that they are only recommendations or suggestions, but I do not think they will be recommendations or suggestions that would be easily ignored by this parliament or by any member of this parliament. If we were to embark on including penalties or fines or things of that nature in the code itself, then we would need to have some very clear parameters around that.

The one thing that the committee process did highlight to me overwhelmingly is that the workplace that we are in is unique, and there are a number of challenges that present themselves here that simply do not present themselves in any other workplace. That has been one of the biggest obstacles that we have had to overcome. That said, through this code of conduct, I think it is worth acknowledging that we are also making ourselves, as members of this place, accountable to more individuals than any other employer would be accountable to.

Our level of responsibility extends, if this code comes in, not only to the way we treat our own staff but to the way we treat basically every individual worker who comes into this place, whether they work for the library or security personnel or catering, whether they are visiting with one of their ministers, or whatever the case may be. We will now have a responsibility towards those individuals that is broader than any responsibility that any other employer would have in the general community. I think that is rightly the case because, as I have said before, as people who are responsible for making the law, I think there is an added level of responsibility on us to be leading by example.

The only other thing I will say at this point—and it is one of the points that I raised and we deliberated on during the committee process—is that I acknowledge that none of this is perfect and, in fact, for me, it is far from perfect. The glaring issue that stood out to me, which this code will do nothing to address, is the issue of parliamentary privilege and the way we conduct ourselves during parliamentary proceedings.

I have canvassed this issue in here extensively before, but I will briefly outline again that if something were to occur in this chamber while parliament was sitting and it involved perhaps you and me, Mr President, while we were not on our feet or were not taking part in a debate, then that would not be captured by this code of conduct. If I were to walk past a colleague and racially vilify them, even though I have no role whatsoever in the debate that is taking place, that will still be subject to parliamentary privilege.

Of course, there will have to be a privileges committee and all the rest of it that is established as a result, but this code of conduct is not bulletproof—I suppose that is the point I am making. There is lots of behaviour, unacceptable behaviour, that could still take place in this place during parliamentary proceedings that would not be covered by this code of conduct. That extends to committees, it extends to anywhere where parliamentary privilege extends.

I acknowledge also that in the deliberations it is fair to say that this inquiry did not extend as far as considering issues or problems that we have with parliamentary privilege, but I note it because I think it is something that in the future we will need to address as a parliament. Bad behaviour cannot be justified purely because of parliamentary privilege, and that is not something I accept is okay, but I also accept that it is not something that can be dealt with in this code of conduct and that there is a lot more work that this parliament needs to do in that space and more generally, but this is a very good first step.

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

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