Wednesday, March 07, 2018

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 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.          


2 tanners said...

A great deal unknown here Jim. Part of the problem is that there seem to be no internal rules of due process. CT article on this today by Mark Kenny not indulging in the usual glee and making the point of separation between WA and Federal. Your comment on no winners, only losers, will be proven to be largely correct. The winners' names will never be known.

Jim Belshaw said...

I have just seen the Kenny piece, 2t. I note that the matter is apparently now with the NSW branch.

I would be reasonably sure that there were no internal processes for this is new territory. All the parties now need to address the matter, recognising that Parliamentarians are not staff and that there are some constitutional issues involved as well.

Thinking about it and wearing my manager hat, if some-one wishes to lodge a formal complaint of this type, you listen, gather information including what the complainant seeks to achieve, take notes. You are empathetic, but do not take sides. You then explain the process.

If a process does not exist as appears to be the case in this type, you say that I will need to take advice on the process to be followed. In seeking that advice, you will not reveal the complainant's name. Does the complainant wish you to do this?

If the answer is yes, you prepare a brief that sets out the facts without identifying personal details. You then seek advice. In this case, I would have sought legal advice on the due process that should be followed and discussed it with the national Chair, in both cases on a confidential basis. You then provide advice to the complainant. They then decide whether or not they want to follow through.

If the complainant has simply lodged a formal complaint with you, you speak to the complainant and then follow a similar process. In both cases, first responsibility for confidentiality rests with the person receiving the complaint, second responsibility with those consulted for advice.

In saying all this, I recognise that this was a complicated and charged atmosphere. My interest in this discussion is not to criticize although I am critical. Rather, I think that we need to focus on what might be done in future cases of this type.

Anonymous said...

This is something which bothers me with a lot of the claims that have been made in the media. I appreciate that bad behaviour and sexual harassment are inappropriate, and sometimes in the case of Harvey Weinstein, for example, there was no other option but to go public because of the way he hounded people who made private complaints. However, I am concerned that due process is not being followed, and that the rights of both victims and accused perpetrators are not being respected. I do think political parties will have to develop better procedures around this. There was an allegation last year, I think, that a Greens staffer had sexually assaulted a woman, and it became clear that, insofar as there were procedures in place, they were not properly followed, and the staffer in question went overseas before anything could be done. It may be that all organisations suffer from a desire to protect themselves, rather than the victim (regardless of whether it's a religious organisation, a political party, a corporation). However, this does not seem to operate when there's a desire within the organisation to get rid of the perpetrator, which I suggest is what was going on here - they wanted Joyce out, and were prepared to use these means to achieve it. Machiavellian really. LE

Anonymous said...

Seriously was not going to comment on this - because I'm over it.

Anyway, Jim says:

"Thinking about it and wearing my manager hat, if some-one wishes to lodge a formal complaint of this type, you listen, gather information including what the complainant seeks to achieve, take notes. You are empathetic, but do not take sides. You then explain the process.

If a process does not exist as appears to be the case in this type...."

Here, I actually agree with Barnaby Joyce: "refer these complaints to the police".

It's a complete nonsense, having spent (in Anglo society) well over 200 years developing an arms-length, investigative, innocent until proven etc., society that we now witter on about which of several unassociated branches of a political party should take the lead in investigating what is either a crime or not a crime.

Really? Get a grip.

We need to take off our "hats" and grant due process the respect we've come to rely upon. This rapid, enthusiastic, acceptance of guilty until proven innocent has got to stop, and I'm embarrassed (for you, Jim) that this sort of unscientific, pseudo-forensic, analysis of what is either a crime or not a crime has become the subject of a separate post on this blog.


Anonymous said...

Shorter version, agree with anon above - except "replace "develop procedures" with "refer to police".


Anonymous said...

"You then explain the process"

"If a process does not exist"

How could a sentient male - or any of the 30+ FB recognised gender assignments write such two diametrically opposed phrases without sitting back, and thinking:

maybe I've lost the plot?


2 tanners said...

Jim, given that there is no process, who is the "you" that the complainant approaches? If it is a disciplinary but not criminal matter, it's not the police. That effectively leaves the person without a formal avenue. As a mere member of an affiliated body (if I understand it correctly), a WA National could pretty much expect to be ignored by the Federal or NSW wing in respect of an embattled leader.

I am amazed that these parties, all of whom have had plenty of time in Government, have not thought to set up their own processes in the last 30 years. Yet another case of 'It doesn't apply to us, we're special'.

Very special.

Anonymous said...

Sounds uncomfortably like the Roman Catholic Church tanners:

"If it is a disciplinary but not criminal matter" - begs the question: who exactly decides that?

Perhaps, after present imbroglio, Pell could advise? But I do get it. This is another of those "public/private" morality questions, raised a few posts ago.

Didn't agree with the particular shade of grey being proposed then, either.


Anonymous said...

Yeah. I have been harassed in a job interview. I chose not to take it further (police or reporting him) but I did stand up and walk out. LE

2 tanners said...

Just to clarify, the complainant or the nature of the complaint decides if the police are appropriate. Staying well away from BJ, sleazy remarks might have no possible criminal repercussions whereas a huge bawling out might constitute criminal assault. In either case, if the complainant's sole aim is to stop the behaviour, the police are not appropriate in the first instance. The police are also not appropriate if the complainant is thinking about bringing a civil case against the alleged perpetrator. (LE or someone else closer to the law than I am might have better/more accurate examples.)

BTW, following on from kvd's scepticism about the public/private morality question, who gets to decide, and why? Jim's example is lovely, but ignores the fact that any manager is implicitly expected to protect the organisation. The shortcut is to protect the person accused, thereby allowing the organisation to deny responsibility by denying the incident.

Does sound uncomfortably like the Catholic Church, kvd.

Anonymous said...

Yes, now I've calmed down a bit (sorry Jim) I would "plus one" for tanners' comment.

There is an inherent bias in any internal process which is absolutely geared to the perpetuation of the organisation. That is stating the blindingly obvious - but any review of review procedures should start from that as a given, so how to progress? Waiting for some useful suggestions.

Well done to you LE. If we ever get past this present over-reaction, I hope things get better for my children and now grandchildren.


Jim Belshaw said...

Hi all. Been tied up and have just got back here.

I would agree about the protect the organisation bit. We have all seen it in operation. However, it is possible to have effective complaints procedures.

My most direct experience here, one that I drew from in the original post, was as CEO of a specialist medical college.

The first issue was an appeal by a student against a decision of the College's education wing that had spilled over into threatened legal action based on damage and a breach of natural justice. The problem here was that this was the first ever such an appeal and there were no processes or principles in place for managing it. So these had to be developed.

The second issue was the handling of complaints by patients against college fellows. All such complaints came to me. Most came by phone. It was absolutely critical here on both ethical and practical grounds that I not act to protect college or fellows by blocking or even discouraging the complaint. Equally, it was not my job to make judgements about the complaint. Rather, I listened empathetically, asked questions and took notes. I then provided factual objective advice on the the complaint processes open to the complainant within the college or the State medical bodies.

In most cases people just wanted someone to talk too and there was no further action.