Independent MLA Michael Moore has decided he will not force Deputy Chief Minister Tony De Domenico to stand down pending an inquiry into allegations of sexual harassment made by a former member of his staff. The Greens and the Labor Party decided he should. The Liberals and Independent MLA Paul Osborne decided he should not. It is perhaps unfortunate that none felt constrained to hear the debate in the House before making up their mind, but the way of modern politics seems to preclude that. Small wonder debates in the House are treated as almost irrelevant. Several arguments have been put on the side of standing down: a Minister should be seen to be above reproach; that whenever an allegation is made against a Minister, he or she should stand down; many other Ministers have been made to stand whenever a shadow has been cast over them; sexual harassment must be taken seriously. Several arguments have been put the other way: the presumption of innocence; the unsubstantiated nature (to date) of the allegation; the Assembly is not a judge and jury; the dangerous precedent of forcing a Minister to stand down on the strength of the allegation of one person; the possibility of mala fides by a lone accuser.
How are these factors to be weighed up? First, it is the prerogative of the Chief Minister to force a Minister to stand aside for whatever reason the Chief Minister sees fit. The Chief Minister or Premier is entitled to make a political judgment about the suitability and circumstances of the tenure of any minister at any time. Thus, the then NSW Premier John Fahey stood aside Terry Griffiths after he was accused of sexual harassment by a dozen or so staffers and former staffers. However, when the Parliament demands a Minister stand aside or resign, there must be something more principled than a political judgment _ particularly when independents hold the balance of power.
The Parliament can be a judge and jury in the case of a Minister committing an offence against the Parliament itself _ such as recklessly or deliberately misleading it, or in a case of alleged ministerial impropriety if no other body or person is charged with the duty of examining it. After all the Executive is accountable to Parliament. However, when another body is charged with the duty of assessing the Minister’s guilt, the Parliament should be more circumspect. The Labor Party clearly wanted the political advantage of a ministerial scalp. But it and the Greens also weighed heavily the argument about treating sexual harassment seriously. Mr Osborne did not want to be judge and jury.
Mr Moore appeared to take the longest time to decide and perhaps came to the better opinion. He thought that the procedures under the Discrimination Act had been made very easy and informal in order to resolve disputes rather than cast blame. It would be wrong, he thought, for those easy procedures which were designed as a shield to be used as a sword. He was further worried that the allegation of just one person could be used to force a minister to stand down. This allegation has the equivalence of a person lodging a complaint with the police _ not the equivalence of formal charges laid after consideration by a prosecutor. It is not enough for Parliament to insist the Minister stand aside.