What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 28 February – 7 March 2021

Workplace Lawsuit Against Two Cabinet Ministers Looms

Two federal government ministers are facing legal action over the treatment of a former staff member, Rachelle Miller. The legal action is focused on the period Ms Miller worked for Alan Tudge when he was human services minister, and for Michaelia Cash when she was jobs and innovation minister. Former Coalition staffer Brittany Higgins – who also worked for Senator Cash and who alleged earlier this month that she was raped in Parliament House in March 2019 – has thrown her support behind Ms Miller. Ms Miller alleged in her complaint to the Department of Finance that she was belittled and humiliated by Mr Tudge while working in his office. She also alleged that she was punished for her affair with Mr Tudge after she had moved to Senator Cash’s office, with her career blocked from progressing. Workplace compensation law firm Gordon Legal has confirmed that they are acting for Ms Miller.

Government Revisits Sexual Harassment Report

The government says it is taking steps to implement more recommendations from Sex Discrimination Commissioner Kate Jenkins’ Respect@Work report (from March 2020) on workplace sexual harassment, which makes 55 recommendations. It allocated $2.1 million in the October budget to address three of the recommendations, with the bulk of the funding to set up a Respect@Work Council, led by Ms Jenkins, that will offer high-level advice to government and develop training resources for employers and their staff. The money will also go to a new online platform with sexual harassment resources, and a national survey in 2022 to gather data about the extent of the problem. Political staffers from across the political spectrum has voiced discontent about current avenues and support services regarding sexual harassment. Labor MP Sharon Claydon reported to the party’s national executive on Friday she had received “substantial feedback” from MPs and staff about “inadequate support, advice and assistance currently provided in the parliamentary environment”. Labor federal executive has also adopted a new code of conduct and policies on bullying, harassment and sexual harassment along with a new complaint handling process for everyone within the party structure.

Rape Allegation Against Cabinet Minister

An allegation of a sexual assault against a cabinet minister has been made in an anonymous letter, which was sent to Prime Minister, Scott Morrison, as well as Labor’s leader in the senate Penny Wong and senator Sarah Hanson-Young on Friday. The alleged rape occurred in 1988, before the cabinet minister entered politics. The letter came with a detailed statement attached, prepared by the complainant, for her lawyer. The woman made a complaint 12 months ago when she reported the alleged rape to NSW police. The investigation was suspended a few months later when she took her own life in June after informing police she no longer wanted to proceed with the complaint. A spokesperson for Mr Morrison on Friday evening said allegations should be referred to the Australian Federal Police. Senators Hanson-Young and Wong both released statements saying they had contacted the AFP about the letter. The alleged perpetrator has not yet been named.

Equal Opportunity Commissioner Report Reveals Sexual Harassment Allegations in SA Parliament

A damning Equal Opportunity Commission review has found sexual harassment is prevalent in South Australia’s Parliament, with eight people reporting being victims of sexual harassment by MPs or their staff in the past five years. Allegations outlined in the report by the Acting Equal Opportunity Commissioner Emily Strickland include sexually suggestive comments, indecent exposure and physical assault. The review of parliamentary behaviour was ordered last year, after Liberal MP Sam Duluk was outed for inappropriate behaviour at a Christmas Party in Parliament House. The review found power dynamics, historical convention, a lack of training and accountability for MPs were all factors in driving harassment. Almost 80 per cent of respondents who reported experiencing sexual harassment did not report it. The report found complaints made against MPs were handled particularly poorly and were marred by poor communication, a lack of procedural fairness, and a lack of support for those who report. Ms Strickland said the findings were not unique to the South Australian Parliament. She has made 16 recommendations to address the problems including training for MPs and staff, a new centralised parliamentary human resources division, and a code of conduct for MPs.

Why We’re Failing Our Female Doctors

The medical profession in Australia is losing talented, dedicated doctors such as Kadota at rates that should make all of us fearful for its future. Bullying, overwork, the pressure of the job, discrimination and “old-boys’ club” attitudes have all been cited as reasons many young doctors give up their dreams of healing the sick and saving lives. A recently updated Beyond Blue report into doctors’ mental health found doctors generally had far higher rates of depression and suicidal ideations than the broader population, and that young female doctors were the most vulnerable of all. Critically, doctors and doctors in training seem less inclined to seek help if they sense their mental health is deteriorating. A large part of the problem is that so much of a trainee doctor’s chances of selection into courses and specialities are dependent on references from superiors, thereby creating an immense pressure to perform well and to pander to bosses, leaving junior doctors vulnerable to exploitation. For women, this vulnerability is exacerbated by the power imbalance between young female doctors competing for coveted placements in training programs and older, often male doctors being given the discretionary power to grant these advancements.

QCAT Decision Allows Nurse to Keep Her Job

In a recent decision from the Queensland Civil and Administrative Tribunal, a nurse whom Hall Payne Lawyers represented in disciplinary proceedings has been allowed to keep her registration despite the QCAT finding that she engaged in professional misconduct by commencing and continuing a romantic relationship with a patient that she was treating. Following her disclosure of the relationship to her employer, she lost her job and the Office of the Health Ombudsman imposed conditions on her registration that prevented her from treating male patients. The conditions effectively meant that she was unable to work as a nurse, which resulted in her losing a second job.

‘The rooster and the sunrise’: Court finds 71-year-old was not discriminated against when job offer was withdrawn

In the recent decision of Heather v Hikvision Australia Pty Ltd [2021] FCCA 196, the Federal Circuit Court of Australia had to consider whether an employer’s lack of contemporaneous evidence was enough to disprove a prospective employee’s claim that he had been discriminated against because he was 71 years old. The prospective employee had been offered a role as a business development manager with Hikvision Australia Pty Ltd. However, after receiving the offer of employment in writing, which set out his remuneration and commencement date, and then providing his identification and employment information, which disclosed his age, the offer was rescinded. In the proceedings, Hikvision provided affidavit evidence from its CEO, supported by the HR manager, that showed the CEO had made the decision to rescind the offer because he had received the business’ mid-year review around the same time and decided to change the business’ strategy. Ultimately, the Court was satisfied that Hikvision had discharged its onus of proof and it had not engaged in unlawful adverse action by rescinding the job offer because of the prospective employee’s age.

Christian Porter Speaks to Rape Allegations

Federal Attorney-General Christian Porter has publicly confirmed that he is the cabinet minister accused of the rape of a 16-year-old girl more than 30 years ago in an anonymous 30-page letter was sent to several members of Parliament, but has strongly denied any wrongdoing. In a press conference, Christian Porter commented: “What has been put in various forms and allegations simply did not happen. He added that he waited to come forward until after NSW Police had concluded their consideration of the matter. He said that while he stayed silent, he has been “subjected to the wildest…. accusations that I can remember in Australian politics”. The Australian Women Lawyers (AWL) and president Leah Marrone have called for an urgent independent investigation into the allegations. Mr Porter refuses to reign on the basis that, should he do so “because of an allegation that simply did not happen” then “any person in Australia can lose their career, their job and their life’s work based on nothing more than an accusation.”

NSW Liberals Will Not ‘Tolerate’ Sexual Harassment, Bullying and Discrimination

On Friday night, the NSW State Executive voted unanimously to adopt a mandatory Code of Conduct and Ethics, which includes a promise, not yet codified in the party’s constitution, to establish an autonomous Conduct Review Committee to deal with complaints. The Code requires members to “treat others with dignity, courtesy and respect” and singles out text messages, emails, teasing, nicknames and emails as forms of possible bullying. It lists grounds on which discrimination can occur including breastfeeding, gender identity, race, sex and religion. It defines bullying as “unreasonable and inappropriate behaviour directed towards an individual or a group which creates a risk to physical or mental health and safety”. It is the first formal code of conduct adopted by the state party announced following an allegation of rape in Parliament House by one former Liberal staffer against another, and the airing of an allegation of historical rape against a cabinet minister.

ADF chief tells cadets they should avoid making themselves ‘prey’ to sexual predators

Freshly-recruited female army cadets say they felt “uncomfortable” after the Chief of the Australian Defence Force gave them some shocking advice on how to ‘avoid’ being sexually assaulted. General Angus Campbell told first-year cadets they should avoid making themselves “prey” to sexual predators by being aware of the “Four A’s” – alcohol, alone, attractive, and being out after midnight. His comments come at a pivotal time in the debate around sexual assault in Australia — with several sexual assault allegations rocking Federal Parliament— but General Campbell has stood by the remarks. Labor frontbencher Kristina Keneally said the comments were troubling and sent the wrong message. “Unfortunately his implication is that women were responsible for not being raped,’’ she said.

Christian Porter’s internal investigation into Dyson Heydon reveals more complaints

An inquiry by the Attorney-General’s Department into whether former High Court justice Dyson Heydon faced any complaints of workplace behaviour during his time as the trade union royal commissioner reported back last week, finding two former staff members made “relevant disclosures” but did not want the department to take any further action.
The revelation comes as the minister to whom the department reports, Attorney-General Christian Porter, faces an allegation in an anonymous letter that he raped a 16-year-old girl 30 years ago. There are now growing calls for an independent inquiry into the allegation to be held by a retired judge. Mr Porter has faced criticism for his stance on an inquiry into the allegations about him, after ordering the Heydon review on the back of a High Court inquiry into multiple claims of sexual harassment of female staff at the High Court. Prime Minister Scott Morrison has dismissed calls for an inquiry, suggesting this would be tantamount to a breakdown in the rule of law.

Kate Jenkins to Conduct Review into Parliamentary Workplace Culture

Sex Discrimination Commissioner Kate Jenkins is set to undertake an investigation into the workplaces of parliamentarians and their staff. The review will be conducted by the Australian Human Rights Commission (AHRC), which, Ms Jenkins posits, is “uniquely positioned” to conduct an inquiry of this nature as Australia’s national human rights institution. The announcement follows the events of the past week, in which Attorney General, Christian Porter revealed himself to be the member of cabinet accused of sexually assaulting a 16-year-old over thirty years ago – an accusation he strongly denies. The review is set to build on the “landmark” findings of the Human Rights Commission’s National Inquiry into Sexual Harassment in Australian Workplaces last year, titled, “Respect@Work”. Investigations into individual matters or allegations will not form part of this review. The final report, complete with findings and recommendations, shall be tabled in Parliament in November 2021.