The ACT Leader of the Opposition, Rosemary Follett, sailed very close to the wind on radio yesterday on naming the person involved in a sexual-harassment case contrary to a court order. Not that it matters much, practically, because half of Canberra knows who it is. Ms Follett said she was disappointed that the Chief Minister, Kate Carnell, had included him in her ministry. That narrows it to three: Tony De Domenico, Gary Humphries and Bill Stefaniak (in alphabetical order). She said NSW Premier John Fahey had done the right thing with the Terry Griffith case last year because he had moved to disendorse him as a Liberal candidate and had said he would not have him in the Ministry until the case had been dealt with. In the ACT, however, the alleged harasser has, according to Ms Follett, been sworn into the Ministry and should not have been. Is there an inconsistency? Not really, the two cases are different. In the NSW case, half a dozen women came forward with complaints about Terry Griffith. Statements he made himself about his personality gave rise to at least an apprehension that his conduct might approach sexual harassment. In the ACT case, there was only one complainant. Moreover, the timing of the complaint was consistent with a political motive.
It was made immediately before an election and without enough time for the appropriate commission to deal with it _ even though the conduct giving rise to the complaint occurred some time before. If the harasser were to be stood aside pending the case, he would have lost his political career because of the supervening election. Now, it may be this timing has an explanation. None the less, under the Follett view anyone accused of sexual harassment should stand aside until the case is heard. If that happens just before an election, it means the ruin of a career. It means also that anyone wanting to stir up political strife can put up a case of harassment on the flimsiest, or no, evidence. This would become more prevalent if it was normal procedure for those accused to be stood down.
We have seen this in family law. Early on, all a woman had to do was assert sexual-abuse, and custody (except supervised access) went with the event, pending the outcome of the trial. What judge would be seen giving access to a man accused of abuse? Now the court has woken up to that game. The tragedy is that genuine cases of harassment and sexual abuse get less concern because the currency is debased. So what is a political leader to do in these circumstances? The courts and commissions that deal with sexual harassment take ages to act and they often act in private. It is impossible to wait for them because even a week is a long time in politics. In fact, what has to happen is the political leader, in the absence of a definitive finding by a court or commission, has to come to his or her own conclusion.
In short, Fahey thought Griffiths was guilty and would be found guilty and so dumped him; whereas Carnell does not think her Minister is guilty or will be found guilty. Of course, they would not be game enough to say so _ because it would only add to the layers of egg on the face that might have to be peeled off if they are later proved wrong. It is a risky business, but there is no other way. To stand all accused down invites manipulation and injustice; not stand any down invites the belittling of the issue and genuine concerns women have in the workplace. When Griffith was disowned by Fahey, various commentators said it was an outrageous injustice because Griffith was entitled to natural justice: to know the case against him and have a chance to meet it.
The argument is fallacious. The rules of natural justice do not apply to ministerial appointments and party endorsements; they are of their nature a matter of personal choice. Natural justice applies in varying degrees according to what is at stake: a murder charge requires rights of representation, cross-examination, notice of witnesses etc etc. A player being sent off by a referee does not get a chance to be heard, but a player facing a six-week suspension does. A politician on a criminal charge is in a different position from one accused of sexual harassment. Someone is only charged with a criminal offence after a prosecuting authority has established a reasonable prospect of conviction. In that case someone should not be in a Ministry until it is cleared up.
However, sexual-harassment accusations are made from the workplace floor. In the absence of a quick-acting prosecuting authority and with the usual delays of court and commission proceedings, the Chief Minister or Premier has to make up his or her own mind about guilt and take the risk _ usually couching the decision in different terms. In Fahey’s case he said he would not tolerate someone suspected of sexual harassment in his party; in Carnell’s case that she would not be judge and jury. To the extent there is an inconsistency between Fahey and Carnell, it is not in what they did, but in the explanations they gave for it.