HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-02-19 Daily Xml
Contents
Pdf Xml

Member for Waite

The Hon. K.J. MAHER (Leader of the Opposition) (15:55): I move:

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.

The PRESIDENT: Just before you start, the honourable Leader of the Opposition, before calling on you, I need to advise that I have been made aware of concerns by some staff of the parliament that they fear that they may be identified or named during the course of the debate on this motion. Those staff members have indicated that they do not wish to be identified and have not consented to the disclosure of their names. I raise this so that members may be mindful of those wishes while making their contributions. I call the honourable Leader of the Opposition.

The Hon. K.J. MAHER: Thank you, Mr President, and thank you for your words and your guidance. I certainly will not be traversing matters or making comments that I think will go against what you have just said. This motion, at its heart, seeks to ensure that a safe workplace is provided here for members and staff. It is a matter of public record that the South Australia Police are investigating one particular incident: an alleged assault.

A police investigation into one specific thing does not prevent other matters from being referred to appropriate authorities and in this case the equal opportunity commissioner does not have a purview to investigate matters of criminality. For that reason, it is entirely appropriate that there can be joint investigations into two different elements of things that have happened.

This motion does not seek to, in any way, look at elements of criminal behaviour that are on the public record, that is, an assault. I want to make that very clear for members, that is not what this motion does. It is a matter of public record that there is a police investigation into an alleged assault. This motion does not seek to usurp or traverse ground that the police are looking at at the moment. This is looking at other sorts of behaviour: harassment, discrimination or victimisation, all things that are in the Equal Opportunity Act that the Commissioner for Equal Opportunity can look at and investigate.

As the shadow minister for industrial relations, I have a specific interest in workplace safety. People should not feel anxious about coming to work and they should not have to worry about being harassed or discriminated against at work. We have a responsibility to ensure that that does not happen in this workplace and to do less is an abrogation of our duties. The equal opportunity commissioner is on the public record discussing different ways in which they may be engaged in this matter. The opposition commends the motion to the council and indicates that they will be supporting an amendment being put forward by the Hon. Tammy Franks.

The Hon. E.S. BOURKE (15:58): I will be supporting this motion. I wish to begin my speech with a quote from the member for Waite from the other place, Mr Sam Duluk. On 3 June 2015, when discussing the intervention orders amendment bill, a bill which centres around the rights of abuse victims, the member for Waite said:

I am glad that in this amended legislation we are seeing the onus being put back on perpetrators and individuals to be responsible for their actions... As a parliament, we must encourage wrongdoers to take responsibility for their own actions...

With this quote in mind, particularly the part about taking responsibility, I would like to highlight the government's and the member for Waite's hypocrisy that has arisen over the last two months.

On 13 December, the member for Waite made the decision to crash a friendly and joyful Christmas celebration here at Parliament House hosted by our crossbenchers. He made the decision to be extremely intoxicated in his own workplace. Most disturbing, the member for Waite made the decision to harass and offend multiple people at that Christmas function. He, the member for Waite, made the decision to slap a fellow member on the behind and yell out racist and homophobic remarks.

Nobody forced him to be in that room. Nobody forced him to consume copious amounts of alcohol, and certainly nobody forced him to act as a menace against fellow members at a joyful Christmas function. These members were parliamentary colleagues not only of the member for Waite but of ours; peers and staff who were made to feel unsafe, unwelcome and disrespected in their own workplace. These are things that no-one should be made to feel at any time but especially not at their place of work.

Workplaces are meant to hold employees to a high standard where harassment, bullying and inappropriate behaviour are not tolerated. Even more than not being tolerated, workplaces are required to take action against these types of antisocial and outright threatening behaviours. But for some reason, the Premier—the leader of the South Australian Liberal Party, the leader South Australians elected—decided not to act like a leader and instead dragged his heels to right the wrongs of the Liberal member for Waite.

If we look back over the last nine weeks, few steps have been taken by the Premier, the Liberal Party or the member for Waite to take responsibility for the actions that have now tarnished that night. It was not until the issue would not leave the headlines that the government surrendered to a private investigation, which came too little, too late; an investigation that has now been abolished altogether. Then there is the apology. I quote, 'I apologise to anyone that may have been offended.' I do not know if you could call that an apology.

Clearly, the member for Waite and the Premier, leader of the Liberal Party, thought this issue would fall off the media cycle over the Christmas break. They thought they would start off the year fresh and ready to get on with being the leaders South Australia elected them to be. Instead, not only have they tarnished the Liberal brand, not only have they caused heartache for fellow colleagues and parliamentary staff, they have tarnished the institution of this place.

By not believing that the member for Waite's actions warranted a serious and prompt response, the Premier allowed, for 63 days, an elected member to get away with actions that are not only unacceptable but would simply not be tolerated in any other workplace. When no-one takes responsibility, but especially someone who is the leader of their party and of the entire state, what example does that show the public? The police have now been involved because of the lack of action and acceptance of responsibility by this government.

The police have managed to act on the allegations against the member for Waite in a swift and timely manner and have reported Mr Duluk for basic assault. While I am glad to see that some real action is finally being taken, it is disappointing that the government, the leader of the state and the man responsible have largely been unable to do the same. While some action is being taken outside this building, the investigation within has completely halted. The private investigation was already shrouded in secrecy and has now been taken away altogether.

The government has abandoned any responsibility and handballed it on in an attempt to get on with business. It is important that we continue to investigate this incident of harassment and, more importantly, that we start a conversation on how we can better manage the handling of harassment in the parliamentary workplace as, clearly, the government has failed to do so over the last nine weeks. The ball is in the government's court to make sure that all possible steps are being taken to ensure that we are all aware, and that the public who we serve are aware, that inappropriate behaviour like that of the member for Waite is not and never will be okay.

Again, due to public pressure, the Premier, the South Australian Liberal leader, and the Liberal Party have been caught playing catch-up. After 63 days, the Premier supposedly stumbled across new evidence because of the police investigation. This new evidence, found very quickly by the police and yet not by the Premier after 63 days, suddenly revealed that the member's position in the Liberal Party was 'untenable' and that the behaviour of the member for Waite that night fell 'well short of the standards expected of all members of parliament'.

Clearly, most in this building and outside of it had already come to that logical conclusion, but it took police involvement and growing public pressure for the Premier to take any sort of action against the member for Waite. But what exactly has the Premier done? He has banished him from attending Liberal party room meetings. That must be a big thing to have to do—skip meetings. For many, this would be a reward to not have to attend another meeting.

The member for Waite followed by suspending—if there is such a thing—his membership with the Liberal Party, but what did we learn in the days that followed? We learned that the member for Waite was speaking at a Liberal sub-branch meeting; again, he was showing no regard for the weight of this situation. Only a day after suspending, and again I am not sure if there is such a thing, his membership with the Liberal Party, he was at a Liberal sub-branch meeting as a guest speaker, along with two other members of the state and federal Liberal Party.

And what was he saying at this Liberal Party meeting? Well, we know what he said, because it was leaked by someone within their own team—if you can call it that. The member for Waite apologised to his sub-branch for the inconvenience and hassle he had caused and he attempted to twist the narrative to make people feel sorry for him. Not once did he apologise to the real victims of his actions. Not once did he say sorry to the people that he harassed at that function. As shocking as it was to see the member is still very much active in party meetings, for him to not even have the decency to show any sign of remorse to his victims is shameful.

To further add salt to the wound of the lack of leadership, the Premier clearly has no power over his own party. Liberal Party members moved a motion of support for the member of Waite despite the Premier telling the member for Waite not to attend the Liberal party room meetings or functions. The member for Waite attended a Liberal sub-branch meeting despite the Premier stating publicly that the member's actions on 13 December were 'completely and utterly unacceptable'.

The member for Waite is attempting to rally support for his position despite the Premier declaring that the member's actions did not meet the standards required and expected of all members of parliament. All of this shows the member's lack of regard for the victims, his party, for this place, and most importantly for the Premier.

To my colleague the Hon. Connie Bonaros, I am sorry that this is what you have been confronted with. To your Friday the 13th Christmas party co-host (the Hon. Tammy Franks) and of course to all of the staff impacted by the member for Waite's behaviour, I am sorry that this has happened and I am sorry for the inaction this government has taken. As the government likes to say quite often in this place: let's be clear, were it not for the external pressures from the public and the involvement of the police, the Premier would have continued to avoid showing true leadership and would have continued to avoid taking a real stand on this very important matter.

The member for Waite suspended his own membership of the Liberal Party and took leave from parliament. Again, there was no leadership by the Premier. It is not just the members and staff in this chamber who will miss out; it is the voters in his electorate. Who will be representing those voters, who are now without a member in the parliament? With all that has happened it is obvious that the member is unfit to serve as a local member and also unfit to serve as a member of parliament. Through this whole saga, what has become even more clear is that the Premier is unable to be a true leader for his party, for the parliament and for South Australians. Instead of taking real action to stand against bullying and harassment, the Premier has stood back in the shadows and let others do the work for him.

Again, it took 63 days for any real action to be taken against the member, and we all know the real reasons why action was not taken. It is not because of any new allegations; it is because numbers in the other place are very tight. The numbers are uncomfortably tight for the Premier, so he has put party room interests before the interests of colleagues, staff and the people of South Australia. The member may have shown that he is unfit to serve the public in his role as the member for Waite, but, crucially, the Premier has shown that he is unfit to lead our state.

The Hon. I. PNEVMATIKOS (16:10): I rise to also speak in support of this motion and to stress the need for an independent investigation beyond the walls of this parliament, to be initiated by the President of this chamber, in the interests of transparency and accountability and in the spirit of gender equality. I note the comments that you made at the commencement of this discussion, Mr President, and it certainly was never my intention to refer to any individuals concerned; rather, it was to refer to the culture and the activities that exist within this workplace.

Contrary to my usual practice as well—I do not normally refer to and quote Liberal members' words—on this occasion, however, I take the opportunity to refer to the words of the member for Waite in this parliament, in the other place, on 3 July 2019, when he made reference to antisocial behaviour and gave his views on the matter. I will quote his various comments in that speech. He says:

Antisocial behaviour has no place in the streets of Adelaide in South Australia.

He further says:

We have seen a growing rise in antisocial behaviour in our nightspots…Antisocial behaviour is conduct that causes harassment, alarm and distress…

Antisocial behaviour quite often has a negative impact on the community...

And finally:

Individuals who engage in antisocial behaviour risk becoming excluded from important support mechanisms, such as school, their family and service providers.

The sentiments expressed by the member for Waite are views that all of us in this parliament and this state should uphold, and they should be reflected in our behaviours and actions. It is unfortunate that, contrary to the rhetoric, it appears that the member for Waite neither acted nor behaved in a manner appropriate for a member of parliament and a citizen of our state. Sam Duluk has already acknowledged that his behaviour was inappropriate and that, to this end, he was seeking additional support and counselling. Whilst an admirable first step, it is simply not enough.

The alleged discrimination perpetrated by Sam Duluk, as reported extensively in the media over the last two months, would be unlawful if found to be true. The allegations of discrimination perpetrated by Mr Duluk make his actions unlawful—

The PRESIDENT: The Hon. Irene Pnevmatikos, you should refer to Sam Duluk as the member for Waite.

The Hon. I. PNEVMATIKOS: Sure. Sorry, sir.

The PRESIDENT: Continue.

The Hon. I. PNEVMATIKOS: The allegations of discrimination perpetrated by the member for Waite make his actions unlawful on the grounds of sex, gender identity, sexual orientation and race. As these incidents occurred within the workplace, it is unlawful within the equal opportunities legislation, on all grounds. The allegations reported in relation to the behaviour of the member for Waite reflect a sexist and toxic culture in our society and in our parliament. Many of us have been working to ensure that people are not discriminated against or treated unfairly or inappropriately in the workplaces of South Australia. This work does not exclude our chamber, the other place and society generally.

Sexism may appear in many forms, ranging from jokes or comments and sexual harassment through to unfair treatment. Each of these acts is unlawful. Sexual harassment—and it is useful to heed this if some of us have forgotten—in particular any form of unwelcome sexual behaviour that is offensive, humiliating or intimidating can be acted in different ways. It can include things like someone touching, grabbing or making other physical contact without consent and includes leering, cracking sexual jokes and comments around and/or to you and exalting you with sexual comments, to mention a few instances.

If the alleged actions of the member for Waite were to occur in any other workplace one would hope that they would have been handled with some semblance of decorum and speedy investigation, followed by action; action not only in regard to the perpetrator but also for those who may have been affected by the behaviour as a result of the actions of the perpetrator. There can be no doubt that any person who sexually harasses another is primarily responsible for their actions and should face the full consequences for them.

Responsibility, however, also lies with the employer and the workplace. In this instance it is this very parliament that has a responsibility and, I would say, a vicarious liability to ensure that workplaces are non-discriminatory and safe for all who work in them. This parliament and the President of this chamber have an obligation to set an example and ensure that processes are established as a matter of urgency. This means that a proper investigation by an independent authority, namely the Equal Opportunity Commission, undertakes the necessary steps to arrive at conclusions and recommendations that address the various complaints, both informal and formal, that have been raised in relation to the behaviours and actions of the member for Waite.

It is the responsibility of this parliament and the President of this chamber to ensure that we follow and apply our laws so as not to allow this parliament to fall into disrepute and appear to condone the inappropriate and unlawful behaviour of others. Mr Hepworth was quoted by the ABC yesterday as saying that the member for Waite gave his apology in rather 'beautiful words' and that, 'Parliament wasn't the only place where Christmas parties got out of hand.' It is concerning that members of the Liberal Party think that an apology is enough. 'Beautiful words' mean nothing in front of the law. When someone breaks the law only evidence and the truth matter. Clementine Ford, on an ABC interview, once stated:

What it comes down to is that men, particularly men with power and privilege, are protected and coddled and their indiscretions in the past dismissed because their…careers are considered more important than just the dignity and safety of women but also the careers of women.

This statement, to me, perfectly sums up the Waite sub-branch's reaction to the allegations. If this parliament is not prepared to uphold the laws of our state and country, what hope is there for the rest of our society to abide by and maintain our laws?

At the end of the day, there can be no room for racism, homophobia or sexism in this house. By implication, there can also be no room for the likes of the member for Waite and others who may share his view. It is with these words that I commend the motion and the amendment as proposed by the Hon. Tammy Franks to this chamber.

The Hon. J.E. HANSON (16:18): I will not revisit the two speeches that have already been given. I think they go a bit more to the specifics of a subjective matter. I obviously rise to support the motion and I am going to support the amendment to it, too. It is worth asking, when considering why you might support a motion like this, how much time we all spend at work. Having a fair bit of experience in my former life in exactly that role, I can tell you that it is a lot and it forms a great deal of how you live your life outside of work, also.

A great deal of your life will be spent at work or around work or thinking about work. With the advent of phones and emails and things like that, you might spend almost all your life at work. It is pretty important, therefore, that you feel safe at work. It is impossible to say that in some way you can distance yourself from work these days. If an event happens at work, it rests pretty heavy on you.

It is pretty important also to have people at work not fearful of basic rights. They should not be fearful for their sexuality, they should not be fearful for their race and they should not be fearful for their gender, so I think it is worth starting with everyone in this chamber. It is pretty important in this place where we make the laws that we feel safe and that everyone has an understanding of each other. That is actually pretty important because here is where we pass the laws. But we are not all lawyers, and I am certainly not saying that we need any more than what we have now.

The Hon. M.C. Parnell: Oh, no!

The Hon. J.E. HANSON: But the varied backgrounds of those who work here, Mr Parnell, is one of our strengths. We are lawyers, but we are also business owners, journalists, union leaders, health workers—some of us are refugees. The strength of who we are in coming to discuss things and the laws that we pass here is in the fact that we are not all the most talented individuals, certainly not legally, but rather that we can speak to each other from our varied backgrounds and bring to our colleagues, I would hope, from both sides of the aisle, including the crossbench, the experiences which formed us, and that allows us to make better laws.

We do work in a two-party system, but I do not think, from what I have just said, that that really sums up what we do in this place, certainly not in this chamber of this place. To give an example of this, I only need to look at the world stage where the effectiveness of democracies is, in fact, being torn apart by the transformation of representative colleagues into political opponents, where there is zero chance that either side of any metaphorical divide, if you like, has a capacity to speak to each other in any way that is not a tweet or a takedown. There seems to be a limitless capacity of some world leaders to offend.

The capacity of those leaders elected to represent people, I would say, is compromised by the slow erosion of their capacity to see, let alone understand the other side of the argument. It seems sometimes more valuable to them to put things simply, to say what they feel. They get the sugar hit, if you like, of Trump-style politics, of saying what they think and then calling those who are offended 'PC', 'snowflake', 'sensitive' or, worse, 'not fun'. I do not want to see that here. It is critical to the performance of this chamber that we do not have that here.

More importantly, I do not want to see any of that kind of discussion applying to how we treat anyone who works here. What I am saying is that what is needed in this place—and I think the Hon. Ms Pnevmatikos alluded to it as well—is a sense not just of legal understanding of the laws we pass but also the rule of law that surrounds them. For those who might not know exactly what the rule of law is, it is that no citizen is above the laws which govern us all. We make the laws surrounding racism. We make them around sexism. We are not above them. A democracy and the laws that pass us will only succeed if it represents in practice the values of those that it seeks to represent.

Arguably, the most effective way to come to an understanding of the rule of law, for anyone who has ever doorknocked anybody, is to be able to talk to people about the laws that you are passing. Arguably, the most effective way of people in this chamber to do that is to preserve situations where social occasions can occur in the workplace between colleagues and, I would certainly hope, between friends. We have to recognise the value of that workplace. That is actually really hard to maintain. You can ask any HR representative in the state how hard it is to keep a valuable workplace where workers see each other as friends. The value of such a workplace here is, of course, even higher because we have to work at maintaining it. Politics is an adversarial system, but it does not mean we get to say the first thing that comes to mind.

For those who work here it is worth remembering that, contrary to what some people might think, it takes a lot for an employee to lodge a complaint in a workplace. I know that from my former life. It is a very hard thing to do. I can tell you that, as an industrial officer, no-one walks into your office, lays down an excellent case and says to you, 'I can't wait to take this against my employer.' No-one does that. Everyone is fearful of doing that. It is a terrible thing.

For an employee to summon up the courage and tell another employee, whom they will probably see every day for at least the foreseeable future, that they are not happy with them takes a lot, and it takes even more to wait for something to be done about it. It takes an incredible amount of courage to keep turning up to work every day. So we should make it clear in this place that we encourage employees who have the courage to do that. We should not discourage that through processes that we freely admit have inadequate punishment or, worse, none at all.

To discourage actions like that, as, again, the Hon. Ms Pnevmatikos and the Hon. Ms Bourke have already referred to, only entrenches behaviours. It stops discussion. It makes it harder for us in this place to pass good laws, because we are not enforcing the rule of law around them. It makes us suspicious, it makes us fearful of each other, it makes us afraid of where we work and it makes those who work here maybe not want to work here at all.

I do not want employees feeling that they cannot be safe where I work, that they do not have rights, that there are no punishments for those who mistreat them or processes for complaint if they are injured at work. I fought my whole life to create workplaces that do not do that. I did not come here to work in a place that is going to do that. In fact, I do not think anyone else here did either.

I also do not want to see the conversation between members in this place, or the other place, grind to a halt because we feel indecision or inaction around events like this that occur. I do not want to see people in this workplace view other people in this workplace as seeing themselves somehow above the laws we are passing. I do not want to see things done that divide us and stop us from discussing things that can unite us.

We do not just need to have a safe workplace, we should have one because we should. It is a tautology: safe workplaces should just exist. We should have a safe workplace because it is going to encourage discussion of ideas. We should have a safe workplace where you can have a beer with a colleague. We should have a safe workplace where you can take that beer from an employee who works at this place and not harass them and know that the person you are having a beer with is not going to as well. This is just what we would expect of any other workplace anywhere else in South Australia.

So I support this motion. I support the amendment that is going to be put to it. It is not about one person. This is about creating a place where we can all work.

The Hon. M.C. PARNELL (16:28): 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.

The Hon. T.A. FRANKS (16:42): I rise to support the motion 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 move to amend the motion as follows:

After 'December 2019' insert:

and invite the equal opportunity commissioner to make recommendations for reforms to facilitate the handling of harassment in the parliamentary workplace.

I rise as somebody who was at the crossbench Christmas drinks called the 'nightmare before Christmas' because it was December 13 and had a Halloween theme. Of course, it has become the nightmare after Christmas for far too many of us. I just want to start by noting an email that was sent on 14 February from a constituent that was forwarded to me just this morning by my staff. That email reads:

Dear Ms Franks,

I feel compelled to write to you about this situation you find yourself in, this has brought back horrible memories for me.

I have been sexually assaulted in the workplace and also faced homophobia. I was 19, it was the late 80s and I didn't feel that I could say anything against the person doing this, and my only option was to remove myself from the situation, so I left my job. I would hope that 30 years later we would not still be having this conversation.

He goes on to say:

This is not okay. Examples need to be set, expectations need to be set…

He also concludes with:

You are the voice of so many people, we need your voice to make change, to send a message that at any level, this is not okay, this will not be tolerated. You have a lot of support from people you have never met, stay strong and do it for us. #MeToo

I would hope that everyone in this place feels that those words apply to them, that in the future this will be a place where parliamentary privilege is no longer a protection against complaints of sexual harassment, that this is not a harasser's haven and that we set standards that are as high as any other workplace in this state.

I thanked him for his words because I have also received phone calls to my office and emails about what a nice bloke the member for Waite is. I have had people abuse my staff for me speaking out. I have attended an event where a constituent of Mr Duluk expressed her concern that he was having a hard time. My reply is now on the whiteboard in my office, which was, 'I know. I was there.' I was not the only one there. In fact, the harassment that I suffered was incredibly minor compared with that inflicted upon a number of people in this work environment.

Sexual harassment, racial harassment, prejudice, bigotry and homophobia are all things that are not tolerated in any other workplace in this state. They are all things that there are lines of responsibility for. There are standards and expectations, and should they be present by somebody in that workplace, it would be, 'Don't come in next Monday.' That would be the response. But in this place, we know it is a political environment.

I am not a lawyer, Mr President, as you know, but I am somebody who has previously complained to the equal opportunity commissioner about sexual harassment in this workplace. I complained on 25 November 2017. On 29 August 2018, I finally received a written response to my complaint. It reads:

Dear Ms Franks,

I am writing about your complaint, dated 25 November 2017, about the then Speaker of the House of Assembly.

I administer the Equal Opportunity Act 1984 (SA) (the Act), which makes many types of discrimination unlawful in specific areas of public life.

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

It goes on to outline my complaint, then reads:

Section 87 of the Act contains the 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. 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 she would not be investigating it, nor deciding whether it impinged on parliamentary privilege.

The Deputy Speaker's decision means 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 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 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 to make a complaint of sexual harassment against another MP. However, my view—

this is the view of the Commissioner for Equal Opportunity—

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.

[Signed]

Dr Nikki Vincent

So when this happened, I knew that those of us who were MPs had little recourse to make a complaint to the Commissioner for Equal Opportunity with regard to another MP. In the aftermath of that party—a party at which many of us chose to stay out of the way of a gatecrasher who behaved so offensively that people were leaving, who behaved so offensively that he was asked to leave on several occasions, and who behaved so offensively that he would not have been welcomed back at work in any workplace in this state—I knew that in many cases, we had no recourse.

One of the things that my friends asked me in the following days was, 'Why didn't you call the police?' Well, Mr President, without either the President or the Speaker allowing the police into the building, we could not have called the police. We did not have the power to have them enter the building, or to make that threat, which could potentially cause embarrassment. I am on record this week as noting that one of the people at the party attempted to shame the member by taking a photograph of his behaviour. He then made her delete that photo from the phone. I raised this because it showed that he had knowledge that his behaviour was inappropriate at the time.

To hear apologies that include the words 'journey of recovery', to see apologies on Twitter that do not actually acknowledge the actions and the hurt and harm that has been caused, that do not acknowledge—other than those who have been vocal in our complaints—that there have been incredibly large ripples into this building and to the people who work in this place. People have a pit of fear in their stomachs that they may run into him. There are people who avoid going to places where he may be. There are people who, upon coming to this building, need to compose themselves in order to deal with the anxiety, trauma and stress that the events of that night have created over the past two months of their lives.

Like the man who sent that email, often the anxiety, the trauma and the stress comes because of a range of other events that have happened in people's lives. I want to acknowledge that, and I think that we should all acknowledge that nobody comes to these situations without a range of things that they live with and live through and that we all carry with us.

I have spent weeks counselling people, supporting people and being supported by others and watching a process that has fallen far short of what would happen in any other workplace in this state. I have watched a process that has been a farce and that has been completely powerless to provide sanction, and I have watched a vacuum of leadership. We often say in this place that hard cases make bad laws, but actually we need good laws so that we do not get to the point where we have hard cases.

I move my amendment to this motion noting that the Greens are no saints in regard to sexual harassment in the workplace. In particular, there is a former member of the Greens in New South Wales who another member of the Greens had to accuse of harassment in the parliament, using parliamentary privilege, before the then leader, Senator Richard Di Natale, called for his resignation.

However, I reflect upon the political nature of how this matter has been handled. If it is the case that members of a political party backgrounded the media about this, they should reflect upon their actions. Those people who attended the party, including myself, did not want this run through the media. While it was, in the end, the only recourse for action, the only recourse for a real response, it has retraumatised everyone in a way that would not happen in any other workplace.

Imagine seeing your life on the front page of the paper when you did nothing to create that news story, when it was not your actions that were the harassment, you were simply subjected to them and you were already living with the trauma. Then you are retraumatised on the nightly news, on the front page of the paper and on the radio waves, day after day, because we do not have processes in this place that anticipate these situations and when we know that these situations have been happening for years. If we do not do something about it now, it will continue to happen without appropriate remedies and without appropriate workplace protections.

I urge members to take up the equal opportunity commissioner's offer to assist us. She has been making the offer for years. She should have been offered the opportunity to assist with this matter. In my early conversations, after I made a formal complaint, I was informed by the Speaker that he was in conversation with the equal opportunity commissioner. That was in the first week of this year. I waited and I waited—well over a week since that conversation—only to then read in InDaily, again in the media, that the equal opportunity commissioner was going to have nothing to do with this investigation. It was then another several days before I received my invitation to participate in the private investigation.

I think I am possibly unique in this place in that I have participated in both the private investigation and the police investigation. I will put on record right now that I participated in that police investigation just a few short days ago. At the end of my participation, I asked the detective sergeant whether or not I should now no longer make any public comment on the matter—and that was not the case.

He said that as long as I did not go to the particular evidence in the statement that I had given, which was on a specific area of the matters that happened that night, then there was no reason that I should not talk publicly, and he was certainly aware that I was going to talk this afternoon to this particular motion and there was absolutely no advice from him that I should not continue to speak up and speak out.

I want that to sink in with people, because I am gobsmacked that this week we have now seen the private investigation suspended. It is almost two weeks since I sat down with the private investigator and I gave him 11 names during that session, with email addresses and phone numbers, for him to contact, and it was not until Friday that those people were contacted—Friday the 14th, just gone by, at the end of the day. That does not give me great faith in that process.

I would have thought that, if you have an independent private investigator, that person should be enabled to talk to whoever they want and whoever they saw fit and follow the train of that investigation as quickly as possible so as not to further continue the trauma in this place. But it was confirmed in the other place that the Speaker would not rule out veto. I just cannot, for the life of me, see why the Speaker needed to have the names run past him by the private investigator if this was truly an independent process.

But I will also acknowledge and thank the Speaker, particularly for a conversation today, which was brief, but previously I have had excellent and fruitful discussions with the Speaker about raising the standards in this place. Previously, he has been very supportive and, indeed, his actions have been to curtail harassment in the other place and in this parliament, so I do have some level of goodwill left but I certainly think that this process has been very, very far from perfect.

I point out that in the correspondence that I received from the Speaker, following my questions to him about how the private investigation would be undertaken, he stated:

As Speaker, I do not have a formal role expressly in relation to investigating and resolving complaints about alleged sexual harassment by a member of the House of Assembly. However, by virtue of my position as Speaker, I am responsible for the general purpose of maintaining order whether that be good governance of the House of Assembly and more broadly the parliamentary precinct including the welfare of those people who work and visit Parliament.

To fulfil my role as one of maintaining order, I feel it is necessary to undertake some investigations so that I can form a preliminary view as to whether the allegations of sexual harassment by Mr Duluk are well founded.

It is for this reason I am seeking the assistance of an experienced independent investigator to assist me with this task, noting that neither the investigator nor myself have powers of compulsion when dealing with this matter. Relevant people can be invited to participate, answer questions or provide information, but no powers of compulsion can be exercised.

Based on the findings of the investigation, my preferred course of action may be to invite relevant persons to participate in a conciliation or mediation process. If there is agreement, I would ask an independent person to facilitate the conciliation or advise me on how best to conduct the conciliation.

As I have no formal power to resolve the matter, if conciliation fails there is nothing more I can do. To assist that reflection I seek clarification on some…

It then goes on to say that the terms of reference for the investigation are:

To evaluate and consider the evidence sourced in respect to the alleged behaviour of Mr Duluk that took place on 13 December 2020 at a Christmas function organised by the Cross-Bench Members of the Legislative Council in the Council's lower ground corridor and a Liberal Party Christmas function held on the same day.

In response to my question of whether the purpose was only to confirm the events and sequence of events, the response from the Speaker was:

Yes, the scope of the independent investigator's inquiries will be to endeavour to obtain full particulars as to what took place concerning the alleged conduct of Mr Duluk and to provide a report for the Speaker's consideration.

With regard to my question as to what would then happen with that report, it said:

I will be the sole recipient of the report.

That being the Speaker. It continued:

In the first instance, the report will be provided to me. When I have had the opportunity to review it, I will determine whether and to whom the report will be released.

Finally of note for this particular debate, 'What sanctions are within the remit of yourself as the Speaker?' was my question to him, and the response was:

As Speaker, I have no authority to impose any sanction on Mr Duluk if the alleged behaviour complained of is proved to be founded as a result of the independent investigation.

I am already on public record as saying that I think the investigation process is a farce. I think very highly of the private investigator undertaking the job. I found him professional, thorough, and I believe that the report will be of great use to the equal opportunity commissioner. I would encourage strongly—through you, Mr President—that the Speaker consider that and also consider resuming the work of that private investigator in pulling together that report.

One of the reasons I say so is we have already been traumatised enough in this place. I have had to tell the story twice, and if there is a court case we may well see that process unfold, but in the meantime that is only on one very small aspect of that night and it provides no remedy and no recourse for those people currently struggling with working in this place and feeling that this place does not support them, feeling that perhaps they should look elsewhere for work, feeling that perhaps it is just easier to give up, but I urge those people not to give up and I urge the members of this council not to put them in a position where they feel like they should give up.

I do not doubt for a second that processes will be used politically. I do not doubt for a second that both sides of politics that are not the crossbench have seen this through the political prism, that people have played games with it. As one of the anecdotes goes, to the new member that sits on their bench and looks across the chamber, 'Look at that,' they say, 'there's the enemy on the other side, and we know that we have the bloodline in the other place.' To which the wise and old politician says, 'No, no, that's not the enemy. The enemy is sitting next to you. That's just the opposition.'

I know that the political games played on this are many layered and that, as crossbenchers, we are the least powerful members of this parliament in terms of these situations. I am getting a snide little look now, but I shall ignore it. If I had a problem with a colleague, I could use my internal party processes. If my problem was with a member of another party, I do not have those internal party processes at my disposal, but I am sure that every member of this place knows at least two or three stories of inappropriate behaviour by people in their own parties.

Where they cross into an infliction on another person who is not in their party, that person has very little recourse. When it is done in public life and there are no processes in this parliament, the only recourse a person has is either to give up or to go public and to shift the shame that they have been made to feel onto the perpetrator, where it rightfully belongs. That is not a situation that anyone who has been the subject of victimisation, bullying, harassment, racism should have to take on. They should have the very full and fierce protection of the law behind them and clear, transparent processes that will support them on their journey of recovery.

I could say much more, but with those few words I support the amended motion. I flag that in the coming weeks I will bring before this place a bill for a standards commissioner that I hope will see us create better processes in the future.

The Hon. R.I. LUCAS (Treasurer) (17:09): I rise as Leader of the Government. At the outset, speaking as the Leader of the Government, I want to offer to the Hon. Connie Bonaros in the first instance, who has publicly identified her concern and distress at the circumstances of that particular evening, my sincere and genuine and heartfelt apology for the distress and pain that she suffered on the evening, and in subsequent days and weeks, from that particular event.

As the Premier has indicated, and we in the government all support his statement, the actions of the member for Waite on that particular evening were completely unacceptable and were certainly not supported by the Premier nor myself as Leader of the Government in this chamber nor indeed any member of the Liberal parliamentary party. I repeat: as Leader of the Government, I offer, for what it is worth, my sincere and genuine and heartfelt apology for the pain and distress that the Hon. Connie Bonaros suffered and is suffering as a result of those actions.

Clearly, as has been indicated by way of the statement you made, Mr President, others have not publicly identified themselves in terms of being subject to the unacceptable behaviour of the member for Waite on that particular evening. In particular, I am referring, as I understand it, to staff who may or may not be members of staff of the parliament, or other members' officers. Indeed, I am not aware of all the people who were at this particular corridor party but, whoever they might be, I again offer, as Leader of the Government, a sincere and heartfelt apology for any pain and distress they may have suffered and are suffering as a result of the unacceptable actions of the member for Waite on that particular evening.

What I will also say is I have known the member for Waite in a much closer fashion, I guess, as a candidate and as a member of parliament in recent years, but I did know him prior to becoming a candidate and a member of parliament. Whilst I know some members in this debate have believed that the apology he has given is not genuine in their judgement, all I can say is that, having known the member for Waite, I think, better than any of the others who are commenting in this particular debate, I do believe it to be a genuine and heartfelt apology that he has made. He accepts that his actions were unacceptable. He accepts his actions have caused pain and distress.

Whilst it is certainly the prerogative of others in this chamber not to believe that it is a genuine apology, all I can put on the public record is, having known the man, the young man who made a terrible series of decisions on a particular evening, the apology that he has given is genuine, is sincere, and he accepts that he is very much in the wrong in relation to it.

There are a number of issues that I want to address, given the contributions that have been made. Firstly, in relation to the nature of the particular motion that we are being asked to support, together with the amendment moved this afternoon by the Hon. Tammy Franks, certainly the very strong advice that I have received is that what is being suggested in this particular motion, even should it pass—and I accept the fact that the numbers are in the chamber for this motion to pass—will not be able to be implemented because the legislation does not allow it.

The legislation is quite clear. With great respect to the Hon. Mr Parnell's very fertile reinvention of the legislation, I disagree strongly with his attempt at rewriting the legislation from his perspective. I would refer him to his colleague's very erudite speech after his, where she quoted at length the view not of herself but of the equal opportunity commissioner in relation to her interpretation of the law. This is the person who is actually responsible for the implementation of the legislation. I am not sure how long the commissioner has been there, but she has been there for a little while.

With great respect to the Hon. Mr Parnell's very, as I said, fertile attempt to rewrite the legislation from his perspective, I would refer him to read closely the contribution that the Hon. Ms Franks gave and perhaps reconsider his interpretation of the legislation. Certainly, the view that the Hon. Ms Franks puts on the record—and I thank her for that—was similar to some of the commentary I have seen from the commissioner in terms of public commentary; that is, in relation to what she sees as the restrictions of the current legislation and what she is allowed to do or is able to do under the current legislation and what she is not able to do under the current legislation.

As the Hon. Ms Franks indicated, she is giving notice, not in a formal sense but in an informal sense, that she is going to be moving legislation, I assume, to seek to address some of those particular aspects that perhaps the commissioner has raised and indeed others might have raised as well. So as I said, I disagree strongly with the Hon. Mr Parnell's interpretation of the legislation.

The advice that I have, on behalf of the government, is that at law a formal complaint needs to be made to the equal opportunity commissioner by a person directly affected by the behaviour complained of. The equal opportunity commissioner must refer it then to an appropriate authority. In some of the cases we are talking about here, particularly in relation to staff of the parliament, that appropriate authority would be the Speaker or the President, who must consider whether the privileges of parliament would be impugned in addressing the complaint.

If it is considered the privileges would not be impugned, the appropriate authority would be remitted to the equal opportunity commissioner to deal with under the Equal Opportunity Act. So through that particular mechanism the equal opportunity commissioner has the capacity to investigate a complaint of harassment by a staff member against a member of parliament, going through that particular process which is clearly outlined in the legislation.

I have seen public commentary from the commissioner, who has indicated exactly that; that is, staff members who wanted to make a complaint against a member of parliament had the opportunity under the legislation to do so. In fact, I have seen television commentary where she has invited people to do so. Importantly, when asked by one media reporter as to whether or not she had received a complaint, she made it quite clear that she was not in a position to indicate whether she had or she had not under the provisions of the legislation in terms of confidentiality.

So she did not confirm as to whether or not she had received a complaint under these particular provisions of the Equal Opportunity Act. I do not know—I am not entitled to know—whether or not she has received a complaint under those particular provisions of the legislation, but certainly I have seen commentary where she has invited people in the circumstances I have just outlined to make a complaint, should they wish to do so, in relation to it.

The further advice to me is that pursuant to her statutory obligations the equal opportunity commissioner cannot disclose if she has received a complaint or whether she is investigating a particular matter. Furthermore, the equal opportunity commissioner does not have jurisdiction to investigate all aspects of the member for Waite's conduct in question for the reasons as follows. Specifically, sexual harassment of a member of parliament by another member of parliament is not unlawful conduct for the purposes of the Equal Opportunity Act.

I will not go through all of the argument there, but I think the letter the Hon. Ms Franks has read, albeit in relation to her complaint back in 2017 against the former Speaker and the reasons why the commissioner, albeit 12 months later, said she could not pursue that particular complaint, validates what I have just put on the record there, that the interpretation of the legislation is pretty clear to everyone except the Hon. Mr Parnell. More importantly, it is not possible for the equal opportunity commissioner, who is implementing the legislation, to investigate a member of parliament wishing to complain about harassment against another member of parliament.

I want to address a range of other claims that have been made during this particular debate, but in terms of addressing this specific motion, as I said, whilst I accept that the government does not have the numbers in this particular chamber and the numbers are therefore for the motion to be passed, in the end, in our view, it will go nowhere, for the reasons the equal opportunity commissioner has outlined; that is, she does not have the capacity to initiate, of her own right, an investigation into all the instances of harassment, victimisation and inappropriate behaviour committed by the member for Waite in December 2019.

I note that it is not a particular date, it is actually for the whole month of December 2019, so the terms of the resolution relate to any activity the member for Waite engaged in from 1 December to 31 December and not just the events of the particular evening about which there has been complaint. That is the drafting that is evidently going to be passed and that is the drafting that is before the parliament at the moment.

The Leader of the Opposition, in moving this particular motion, said—and I believe him to be quite wrong—that this motion does not cover the issues relating to the police inquiry. That claim from the leader is clearly wrong. One only has to look at the drafting that he has moved, when he says:

…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.

It does not carve anything out at all in relation to it, and clearly the specific complaint being investigated by the police is covered by the terms of the wording that has been proposed by the Leader of the Opposition. His claim in his contribution that the motion does not cover issues relating to the police inquiry is clearly wrong.

The next point I want to address is the issue of the Speaker's inquiry, because partly this particular debate—although I do acknowledge in part the contribution of the Hon. Ms Franks in relation to the competence of the independent investigator—but certainly some of the media commentary and, as I understand it, some of the voiced complaints by at least one or two members of this chamber to members of the media, sought to cast some doubt on the independence of the independent investigator, Mr Paul Hocking, from Quark and Associates.

As I have indicated to a couple of members of the media who have raised the question with me, I did, without identifying the investigator concerned, place on the public record in a speech a couple of years ago issues that related to complaints of bullying and harassment made by staff members against Michael Atkinson. They are part of the public record.

There was an investigation commissioned, under the control of the former Labor government, into staff allegations from more than one staff member against Mr Michael Atkinson in relation to bullying and harassment. The investigation was into issues that related to those bullying and harassment claims against Mr Atkinson. In that investigation, the person and the organisation that was commissioned by the former Labor government to do the inquiry was Mr Paul Hocking from Quark and Associates.

Similarly, Mr Paul Hocking from Quark and Associates was commissioned to conduct the investigation into allegations against a current member of the Labor caucus, who was a frontbencher, in relation to inappropriate behaviour towards a member of staff under the former Labor government. I sought copies of documentation in relation to both investigations and the former Labor government refused the release of any documentation in relation to those inquiries.

The situation was that the investigator for both of those inquiries—and there may well have been others—clearly took statements from individual witnesses, took statements from the two members of parliament who were concerned, and summarised those to provide a confidential report to persons underneath the former Labor government. Persons with appropriate delegated authority then made decisions in relation to those particular inquiries. What those decisions were, we were never able to find out. Those confidential reports were never released. The argument clearly from the former Labor government was that, because of the confidential nature of those particular inquiries, it was not appropriate to release the details of the evidence that had been taken from the staff members and the member of parliament involved and that it was not appropriate for those to be released publicly and certainly not to the Hon. Rob Lucas as a member of the opposition.

Therefore, the hypocrisy of the Labor Party in relation to this particular issue of the process of an independent inquiry, quite contrary to their own practice, demanding that all of the details of the confidential inquiry in the report be released publicly, should be apparent to anyone who is prepared to have a sensible look at this particular debate. I do note that that particular inquiry is suspended or on hold, or whatever phrase the Speaker has put, contrary to the claim made by the Hon. Ms Bourke that the inquiry had been abolished altogether, which is wrong. It has not been stopped or abolished altogether. It has been, as other members of this debate have more correctly indicated, put on hold, pending the results of the police inquiry.

As I said, that is in relation to the hypocrisy of the Labor Party in relation to the confidentiality issues. I think it is important also to note that for members who want or would have preferred these events to be investigated by the Equal Opportunity Commission, I repeat that if the equal opportunity commissioner did or was going to conduct an inquiry into these events, she would not be able to indicate that she had received a complaint, she would not be releasing whom she spoke to, she would not be releasing the details of any evidence that she took and she would not be releasing, for all and sundry to see, the final summary of all of the claims that have been made and who made them and the details of all of that as part of the process.

Anyone who has been involved with the processes the equal opportunity commissioner has gone through would understand the confidentiality provisions in relation to these sorts of processes. In many of the cases, as I understand it, there is an attempt to seek to conciliate or mediate—I am not sure what the right word is under the act—in essence to try to come to some understanding between the two parties, or the number of parties depending on who they are, to see whether or not some satisfactory resolution might be reached that might satisfy the complainant or complainants in relation to the issues.

Those people in the media, in this chamber and elsewhere who say, 'Let the equal opportunity commissioner do it,' with this inferred notion that, in some way, this is going to cast greater public light and transparency on the particular complaints, are either sadly misunderstanding the legislation or deliberately trying to mislead the media and the community in relation to this particular issue. The processes of an equal opportunity commissioner, by virtue of the act, would be secret and confidential.

The sort of transparency that some are jumping around saying is required in relation to this issue would not be permissible under the equal opportunity legislation as it is currently structured. If the Labor Party or anybody else wants to move legislation that says that all the processes involved under the equal opportunity legislation ought to be public and transparent, good luck to you, but I suspect that in the end, in the cool light of day, sensible people will probably see that that is not the way to try to resolve many of these difficult issues in relation to harassment and bullying on worksites.

The other thing I want to address in general terms is the claim that has been made, particularly in the public but by one or two in this particular debate, that the unacceptable behaviour of the member for Waite on that evening has in essence led to no consequences at all. In the first instance, I have indicated that he has made what I believe to be a sincere apology. He certainly indicated an acknowledgement that he has to undertake counselling for the use and abuse of alcohol, and he is undertaking that sort of counselling at the moment.

More specifically, there are other issues that have occurred and have been taken over the last few weeks. He has resigned from the position of Presiding Member of the Economic and Finance Committee of the House of Assembly. Some media reports said that that was of no consequence. Well, it is a prestigious position but, in addition to being a prestigious position, it is something that pays an extra $35,000 or so a year by way of additional salary. There is a significant financial penalty.

As I understand it, any penalty that might have been applied by the Equal Opportunity Act, if it were to apply in these circumstances, would be significantly less, I can assure you, than $35,000 a year for the remaining 2½ years of this particular parliamentary term, together with anything additional. Clearly, you get superannuation on your extra $35,000 and a variety of other ongoing benefits as a result of that additional salary. Some people are saying that under the equal opportunity legislation you can get a financial penalty. Any financial penalty would be significantly less than that particular financial penalty.

He has stood down from a number of committees. I know there is some debate about one particular committee, but we have passed motions in this house acknowledging a number of joint committees where there might have been particular difficult circumstances for him given that some of the complainants might have been either serving, working on or associated with particular committees. He has certainly resigned from those joint committees and some of the other committees as well. He is no longer a member of the joint parliamentary party room. Someone in the Labor Party flippantly said, 'That's of no great consequence. He doesn't have to attend a few meetings.' The ridiculous nature of that particular claim should be apparent to anyone. The Labor Party has examples in the recent past of members who are no longer able to attend the Labor Party caucus.

Whether they were expelled from your party because they crossed the floor on Roxby Downs or ETSA or whether in circumstances where they faced criminal charges they were removed from the joint party room. The flippant response is that this is of no great consequence, not turning up to a few meetings, but this is in essence your parliamentary team that you have been removed from and you are no longer able to attend those particular meetings.

His membership of the Liberal Party has been suspended. One member from the Labor Party in this particular debate cast doubt as to whether or not that had occurred, or whatever it might be. As of Monday evening, the state executive of the Liberal Party, which represents the whole of the party and the organisation—it is our governing body—accepted the suspension of his status as a member of the Liberal Party in that particular circumstance, and his membership of the Liberal Party has been suspended.

More importantly, in terms of consequences, there are people who say there have been no consequences for this individual. The member for Waite's reputation—and not unreasonably; I am not arguing that this is unreasonable—is in tatters. He has been the subject of public debate and criticism for two months. I accept that this is the reality: if you make mistakes and do things on a certain evening, this is the cost and the consequence. However, I do not accept the argument, as some are saying, that there has been no consequence in relation to these particular circumstances.

Given that he is no longer a member of the Liberal Party, he is not attending the joint parliamentary party room, he is no longer holding a position as presiding member of a committee and has resigned from virtually all of the committees with the possible exception of one, the only thing that remains is that he is still the member for Waite.

As I think the Hon. Mr Parnell rightly pointed out, there have been media commentators, Labor Party members and others saying that in any other workplace, he would lose his job. Nobody—not the Premier, not Rob Lucas as Leader of the Government in the upper house, the party room or anyone else—has the power to remove him as the member for Waite. That is a decision that is ultimately to be taken by the electors of Waite at an election. No-one can remove him from his seat. So, short of that, I am not sure what else can be done.

Some people have suggested that he should be banned from Parliament House forever. That would not be sustained. There have been court cases elsewhere in terms of preventing a duly elected member from undertaking the job for which he or she has been elected. I am not the lawyer here, but the advice I have received is that this is not possible.

Neither the parliament, the JPSC, the Speaker nor the President can say, 'We are just going to ban you; you can't turn up to Parliament House.' That is just not possible. There are other minor things that could be done. Clearly, the Speaker does have the power to move offices. That is one of the limited powers the Speaker has.

In relation to access to facilities at Parliament House, which I am sure would be seen by the community to be at the minor end—that is, as I saw speculated in the media, 'You can't go to the parliamentary bar' or 'You can't go to the dining room'—I do not think there would be many in the community who would see that as being a huge penalty or impost. I assume that the JPSC potentially has the power to address that, but the Speaker alone does not have the power to make those sorts of decisions. That would possibly be a decision for the Joint Parliamentary Service Committee; I do not even know whether they have the power to do that.

Really, the only remaining thing is his position as the member for Waite, and nobody other than the electors of Waite at the next election has the power to do anything about that issue. At some stage, someone from the media needs to ask everybody who is baying for even more blood from the member for Waite, 'What more are you expecting to be done?' What more can be done in relation to a consequence? I do not accept the view that there has been no consequence for the unacceptable behaviour of the member for Waite on that particular evening in December.

Other claims have been made in the media in relation to these particular events, and I want to correct them for the public record. It was reported last Friday, when this story first broke in the media, that the member for Waite had been 'reported' in relation to basic assault or assault. For me, as a non-lawyer, that was an unusual phrase.

It was also reported that he would be summonsed in the near future to the Magistrates Court to respond to those particular charges. That is wrong in relation to the issue, because the issue is that ultimately there has to be a decision taken as to whether or not he is going to be charged. When he is charged, he is then in the position of being summonsed and having to appear and whatever else it might happen to be.

There is still another step to be taken in regard to the member for Waite. Someone—I am not sure whether it is the police or the DPP, but I suspect it would be police prosecutions—has to make a decision as to whether or not there is sufficient evidence for him to be charged. The media has been reporting that he has been 'reported', that he is going to be summonsed and that he is going to have to appear in the Magistrates Court in the near future. That may occur if he is charged, but certainly, since the last advice I had on the weekend, it had not occurred, and I believe it had not occurred as of Monday either.

The second thing the media have been reporting is that if he is found guilty or convicted of assault, which is the rumoured 'report' made by the police, he automatically loses his seat in parliament. That is not correct. The Constitution Act makes it clear: there are a range of offences for which you automatically lose your seat in parliament if you are convicted. If it is basic assault or assault, as opposed to assault causing harm or a more serious offence—and, again, there are gradations, and I think there is aggravation or something else where you may well lose your seat if you are convicted. But if it is basic assault, as the media reports have been, then you do not automatically lose your seat as a result of that. However, the media have been reporting quite freely that if he is convicted of this particular offence he automatically loses his seat, and indeed that is not the case.

Finally, a minor issue is that one or two journalists have been reporting that, as a result of the member for Waite no longer being part of the joint parliamentary party room, we now have a minority government in South Australia. I suggest to those journalists that 24 votes out of 47 votes, even on my meagre mathematics, is still a majority. I would advise those particular journalists to perhaps do their sums.

I conclude by indicating that I accept, from the speeches that have been given, that there will be majority support for this particular motion, as amended, as has been indicated. But even if this motion is to be passed what is sought to occur here cannot occur. In the government's view it will not be able to occur for the reasons that I have outlined. I think some members, by way of reading correspondence from the Commissioner for Equal Opportunity, have already indicated the restrictions under the legislation at the moment. For those reasons, the government will not be supporting the motion, or indeed the amended motion.

The Hon. F. PANGALLO (17:43): I want to correct something that the Hon. Mark Parnell had said in relation to the party, namely, that there were five crossbenchers there. In fact, I was not in attendance, and I believe the Hon. John Darley was also not in attendance at the party. So there were probably three, although there were staff members from my office who were in attendance. Just for the record, we were not in attendance.

The Hon. K.J. MAHER (Leader of the Opposition) (17:43): I thank speakers for their contributions to this motion. I think the Leader of the Government's arithmetic is correct in that there probably will be support for this motion in the chamber. There is really only one thing I want to quickly go to, and that is the contribution by the Leader of the Government. The Leader of the Government tried to persuade us that we ought not to do this because it might not have any effect.

The Leader of the Government cites two conditions precedent that are necessary for the equal opportunity commissioner to conduct an investigation under the Equal Opportunity Act. The first condition precedent is that there has to be a complaint. As the Leader of the Government correctly points out, we do not know if there has been a complaint. There may well have been a complaint or, if there has not been, there may well be a complaint. The second condition precedent needed, as the Leader of the Government points out, is a reference from an appropriate authority. The appropriate authority in this case being either the Speaker or the President.

It seems a quite odd argument from the Leader of the Government to try to say, 'Don't vote for this because by voting for this you create one of the conditions precedent needed for an investigation.' I would have thought that just creates an incentive, if there was a desire for the equal opportunity commissioner to look at it, for us to pass this motion, for us to require that the President of the Legislative Council request an investigation by the equal opportunity commissioner, the second of the two conditions precedent as set out by the Leader of the Government.

The other precedent is a complaint and, as the Leader points out, there may well have already been one and, if there has not been one, there may well be one forthcoming, particularly if those who may have grounds for the complaint know that that second condition is now fulfilled by virtue of the passing of this motion.

Amendment carried; motion as amended carried.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT