Reflections on the process problems in the Barnaby Joyce sexual harassment complaint

This brief post reflects my own uncertainties on the handling of sexual harassment complaints against former Australian Deputy Prime Minister Barnaby Joyce. I note that the post has nothing to do with Mr Joyce's behaviour nor with the complaint itself. However, I need to provide some basic facts to set a context:

I am reasonably familiar with sexual harassment policies and procedures in a work place context, although they are quite complex. The Australian Human Rights Commission has a useful introduction to the Australian position in general including work place issues.

In this case, a WA woman made a sexual harassment complaint to the WA branch of the National Party about Mr Joyce. The complaint was meant to be dealt with in private, but became very public. The complainant feels that the way she has been treated since making that allegation has denied her natural justice and shows why people in her situation do not come forward.

On his side, Mr Joyce apparently learned of the complaint just before it became public when he was visited by the Party's national president and lawyer.Given the general situation at the time, he then felt that he had no choice but to resign as Party Leader and Deputy PM as the matter became public.

In organisational terms, the National Party is a Federal structure with a relatively weak national organisation. Mr Joyce is not an employee of the National Party, He is a Member of Parliament representing the seat of New England. .He was pre-selected by the New England Electorate Council and is part of the NSW Branch. The parliamentary wings are independent of and cannot be directed by the Party organisation. The only formal sanction available to the Party is to withdraw endorsement of the member. I am not familiar enough with the current constitution to know how this might be done and under what circumstances.

To the best of my my knowledge, this is the first formal complaint lodged with an Australian political party about suggested sexual harassment by one of its parliamentary members. This is new territory in a way so the process questions become important.

The complaint appears to have been lodged with the WA branch of the Party and been the subject of considerable discussion within the Parliamentary party there. Here we have two apparent process breaches.

The first is that the WA branch had no jurisdiction. It should have been referred to the Federal organisation at once. The second is the involvement of the WA Parliamentary party. This was a breach of due process that ultimately destroyed confidentiality, breached natural justice and precluded a fair outcome.

The confidentiality issue is both important and complex. If, as appears to be so in the Geoffrey Rush case, the complainant wanted the matter kept confidential even from the subject of the, then it really becomes complicated. I know of no evidence that this was so in this case. I think that while the complainant  wanted general confidentiality to be maintained, she would have every expectation that the matter would be discussed with Mr Joyce as part of the process. For completeness, I note that confidentiality becomes very complex if the process reveals a possible breach of the law.

The next question is what the complainant hoped to achieve from the process. This is unclear to me but is important because it affects the process. If she wanted the Party to formally sanction Mr Joyce within the powers that it has, then a very formal process would have been required. If her objective was to bring about behavioral change, to make an in principle point, then a more collaborative, consultative process would have been appropriate. This would have been quite difficult in the pressure cooker at the time, but became even more so with the breach of confidentiality.

I think one of the difficulties is that the National Party had no processes in place for handling all this. I suspect it is not alone. If, and it is not clear that this should be the case, the party machines are going to become a vehicle for lodging such complaints against MPs, then all parties need to define specific ways to manage those complaints.

As in so much of the Joyce affair, there are no immediate winners in this particular case, just losers.

Important correction

In writing, I had forgotten one important complication, the relationship between the WA National Party and the national National Party. The WA Party is an independent party but affiliated.in some way with the Federal Party.

I don't think that this fundamentally affects my argument. The WA Party had no power to accept or investigate a formal sexual harassment complaint against Mr Joyce on its own account since it had no jurisdiction over Mr Joyce. The only way to handle this was by referral to the Federal Party.organisation.

This might not stop the Party carrying out its own investigation for its own reasons. We have seen quite a bit of that from many quarters. However, that would not have met the apparent wishes of the complainant for a formal investigation following the rules of due process.