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Sex Discrimination Commissioner discusses rights under anti-discrimination legislation

ELIZABETH JACKSON: The Niland report into allegations of sexual harassment into former New South Wales Police Minister, Terry Griffiths, has made some scathing findings. In fact, the former Minister himself compared the Niland inquiry to a Star Chamber, and while the report raises lots of interesting political questions about the future of the Fahey government and, for that matter, the political future of Terry Griffiths, it also has some important ramifications for victims of sexual harassment.

In this age of political correctness, some argue it's hardly possible to say or do anything which won't offend someone in the work place, but what exactly are the rules? What happens if you break them? Just what rights do you have? Well, to answer all these questions, I'm joined now by the Federal Sex Discrimination Commissioner, Sue Walpole.

Firstly, Ms Walpole, I guess if I can ask you, how do you view the way this investigation into Terry Griffiths has been carried out?

SUE WALPOLE: Well, arm's length, I guess, to start off with since it is a State matter, but I think there's been some confusion in the discussion. This was not an investigation done under any piece of legislation. It was an investigation done at the request of the Premier, and so the criticisms about process, I think, are based on a false premise that somehow other standards of legal probity needed to apply. I don't think that that was true, but even leaving that aside, we are talking about an investigation here and it's not normal in any investigation that requirements for evidence on oath and those sorts of things are called for. That's what happens in a public trial or a public hearing in the case of anti-discrimination legislation.

ELIZABETH JACKSON: I guess the main criticism is that as far as the former Police Minister, Terry Griffiths, is concerned, the assumption is that he's guilty now that this report has been handed down, and we seem to pride ourselves in the notion of being innocent until proven guilty, yet as you accurately point out earlier, these are unsworn statements.

SUE WALPOLE: Well, I think we need to be careful about the notion of innocent before proven guilty because that's a criminal law notion. Now, anti-discrimination legislation, which also includes complaints of sexual harassment, is not a matter of criminal law. It's a matter of civil law, so it's like if you sue somebody for breaching a contract or for negligence, and there the standard of proof is on the balance of probabilities, so we're talking about two different quantums here and a different level of evidence that's needed.

ELIZABETH JACKSON: Essentially, though, these women have made these comments; they haven't had to take any oath to say that they are in fact true; there have been no formal court procedures. These comments have been collected, publicly distributed, and now Terry Griffiths is seen as a sexual harasser. I guess some people are saying: Is that really fair?

SUE WALPOLE: Well, I'm not sure in this particular case what some of the alternatives might have been. You see, politicians aren't covered by anti-discrimination legislation, so the only way that you could actually go about it - unless the women had been prepared to enter into a common law action against him which has only ever been done once in Australia - there was no other way of going about it. They are not covered by the Anti-discrimination Act in New South Wales.

ELIZABETH JACKSON: So I guess the other point is, too, that I heard Carmel Niland speaking last night, and she was saying that she felt really these women would not have been prepared to make these allegations in any other way. They wouldn't have been prepared to go to court because they were young and financially vulnerable and so forth.

SUE WALPOLE: Yes. Well, I think that's true and it's a real issue in this particular area of sexual harassment, and that's part of the reason why all anti-discrimination legislation in Australia is based on a model that starts with a confidential investigation and attempted conciliation. Now, the investigation that Carmel Niland undertook was in fact confidential. The fact that it has now been released in one form or another, I don't think, can be a criticism of the process. Nobody - there was no breach of that confidentiality during the investigation, but it is certainly true that most people will not make any complaints under anti-discrimination legislation unless there is at least the initial guarantee of confidentiality, and then a separate decision about whether or not to pursue a public hearing.

ELIZABETH JACKSON: Now, Sue Walpole, you mentioned earlier that politicians were not covered by discrimination legislation. Why is that?

SUE WALPOLE: Well, it's a peculiar quirk of the law really. All the Acts require some form of public relationship - employer-employee, educator-student, whatever it happens to be - but it's an established legal relationship between the parties. Now, in the case of politicians, they are not the employers of their staff - the State Government as a whole is - so that the staff, one way or another, are a form of public servants; they are not the individual employees of the politician. And of course, the politician is not able to be directed by the normal Public Service acting as an employer mechanism, so there isn't a relationship under the Act between the parties.

ELIZABETH JACKSON: Does that law need to change, in your view?

SUE WALPOLE: Well, it is an anomaly. Certainly, I think in some respects, the questions that have been raised about the Griffiths case perhaps couldn't have been raised if people had been able to take action under the legislation. On the other hand, I suppose, it's a very small group of people we're talking about, but they do occupy positions of great power and influence and are expected clearly, I think - as illustrated by this case - to obey the laws like everybody else so, in that sense, they should be covered.

ELIZABETH JACKSON: Now, what about this suggestion for a watchdog body to be formed to oversee the actions of our politicians? Do you think that could be successful?

SUE WALPOLE: Well, it's a good halfway house, if you like. I mean, my view is that everybody should be covered by anti-discrimination legislation in the long run but it is a good halfway house. I think that's probably the least that we would all expect. We expect our politicians to have to abide by the same laws as we do.

ELIZABETH JACKSON: Now, let's talk just very briefly, generally, about discrimination and then sexual harassment in the workplace. What exactly are your rights, let's say, on the first hand if you are harassed, and then secondly, if you are accused of harassment?

SUE WALPOLE: If you are harassed, your rights are to lodge a claim and to have that claim investigated and attempts made to conciliate it, and if that fails, then you have an option of going to public hearing. Now, I want to stress that going to public hearing happens in less than 10 per cent of all cases, so mostly investigation and conciliation are successful.

If you are a respondent or the person accused, you have the rights to have all the accusations laid out in front of you; to have your counter-claims or responses fully investigated, too, so you've got a right to due process as any other person who is accused of doing something has as well. And all the legislation requires that the conciliation process is about reaching a mutual agreement between the parties. So both the person complaining and the person complained about agree to the conciliated outcome. And I think that's very important in terms of ensuring that procedural fairness is followed.

ELIZABETH JACKSON: It's obviously a difficult area because exactly what sort of behaviour constitutes sexual harassment? I imagine it's very different for different people.

SUE WALPOLE: Yes. There are two tests. One is exactly the test that you're describing which is a subjective test and that's how the person making the complaint feels. The other test though, which must also be made out by the person complaining, is that it was reasonable for them to feel that way in all the circumstances, and that's an objective test. It takes into account the environment, the nature of the action and all of those sorts of things.

But as for sexual harassment itself, we're talking about unwanted and unreciprocated behaviour of a sexual nature in one of those relationships that I was describing before - most commonly employment. That's the one that we hear about all the time.

ELIZABETH JACKSON: Are there any trends that have been identified with sexual harassment? Are these incidents becoming more common or are we in fact improving?

SUE WALPOLE: Their reporting is becoming more common. I think you'll find that all the annual reports are starting to come out now. And numbers are going up in all jurisdictions. Now, I think there are probably a few reasons for this. I think it indicates a growing level of confidence in the legislation, a growing knowledge that the legislation is there and can be used, and also I think it would be true to say, a growing assertion - particularly by young women - that they do have rights in the workplace to have a safe workplace and a non-threatening workplace.

ELIZABETH JACKSON: Do you ever receive any complaints from men?

SUE WALPOLE: Yes, we do, in fact. About 10 per cent of all of our complaints each year are from men, and I think that that's particularly notable in the case of the Sex Discrimination Act which is seen as an Act for women even though it applies both to men and women - not so much in the area of sexual harassment, however. The percentage there would be lower, and the reason for that, I think, is that most sexual harassment does occur in positions where there's an unequal power distribution and, generally speaking, men have better positions in the work force than women do.

ELIZABETH JACKSON: Sue Walpole, thank you very much for your time. That's Sue Walpole, the Federal Sex Discrimination Commissioner.

And we've just taken a call from the ACT Attorney, Terry Connolly. He called in to clarify and say that the case here, in the ACT, is a little bit different to the one which Sue Walpole outlined. Apparently, the bulk of the ministerial staff and all of the Opposition and independent staffers are employed in such a way that their political masters, in fact, would be subject to discrimination laws if a Griffiths case did arise here in the ACT.