The cry is out for Tony De Domenico to stand down pending an inquiry by the Act Human Rights Office into allegations by a former member of his staff into allegations of sexual harassment. Mr De Domenico should stand his ground and the Chief Minister, Kate Carnell, should resist the cries. The reason is because of the nature of the process of investigation into sexual harassment in the ACT and indeed in the rest of Australia.
The Discrimination Act is at great pains to provide as informal process as possible. It works under the assumption that the sexual harassed and others in society likely to be discriminated against are likely to be intimidated by formality and unnecessarily complex processes to instigate an investigation. And so the Act provides that all a complainant need do is put the complaint in writing and name the alleged perpetrator. From there, the Act Human Rights Office takes over the case.
Once it does, it is given very wide discretionary powers about gather evidence and the way it will conduct its inquiry. Informality is all the rage. This is very unlike the process of criminal investigation. A criminal investigation usually begins with a complaint to the police _ not to the person or organisation that will conduct the inquiry. The police then scurry off digging up more evidence and then present it to the Director of Public Prosecutions or some other prosecuting arm. The prosecutor then decides if there is enough evidence to press charges, usually determined according to whether there is a reasonable prospect of securing a conviction.
The essential difference is that an independent person weighs up the evidence in a criminal case before charges are laid. If De Domenico had been charged with a criminal offence (which he is not) he should stand aside. However, in this case he is merely subject to a written complaint by someone. Virtually anyone could lodge such a complaint. It is a flimsy ground indeed to force someone to stand aside pending the investigation. Further, the complainant, quite properly, is immune from defamation actions removing a deterrent against making false accusations with ulterior motives more The circumstances of this complaint and the mechanics of the ACT electoral system make the case for forcing De Domenico to stand aside even less compelling.
This complaint was made as the ACT Assembly was meeting of the last time before the election and De Domenico was informed of it after the Assembly had risen for the election. The cry went up then for him to be identified and/or for him to stand aside from the election pending investigation. If he had stood aside, he would have been out for the full three years under the ACT system which has no by-elections, only count-backs from among the group of existing candidates from which the accused has been excluded. In this case, of course, nothing can be read into the timing of the complaint. However, if it became the pattern that those accused must stand aside, how easy it would be for a complainant to wait until immediately before an election to pounce to inflict the maximum amount of political damage or revenge. Three years on the sideline could be career-ruining.
The general processes of the commission also make the case for naming accused and forcing them to stand aside even weaker. The commission quite reasonably works on the inquisitorial, rather than the adversary method. Further it is not bound by the rules of evidence. This is not such a bad thing for a tribunal seeking the truth. The inquisitorial system allows the commission to admit virtually all evidence however prejudicial, but giving it varying weight. It that way it reflects the way people work in life _ 20 hearsay accounts make a convincing case. In the adversary system all are excluded and the truth remains concealed. However, all the other courts in the land work on the adversary system.
People are conditioned to their very elaborate protections for the accused and would judge the inquisitorial regime of the commission on that standard _ leaving the accused further disadvantaged. If would be different if all courts worked on the inquisitorial method. People would make an appropriate adjustment for its methods. In the meantime, the commission should use the advantage of its informal procedures to do a speedy investigation and De Domenico should not be made to move before it has finished it.