Exclusive: Government refuses to release staff bullying report
The federal government is refusing to reveal the results of an investigation into a bullying complaint involving the office of Indigenous Affairs Minister Ken Wyatt, including to the woman who made it.
The Department of Finance has rejected an application from Wyatt’s former chief of staff, Kate Johnson, made under freedom of information laws, for access to a copy of the report into the complaint she made two years ago against Wyatt’s former policy adviser Paula Gelo.
“It is disgraceful that a taxpayer-funded report was kept secret from the people whose lives it affected the most,” Johnson told The Saturday Paper on Thursday.
She confirmed she received the rejection of her FOI request from Finance in recent weeks. She has appealed the decision to the Office of the Australian Information Commissioner.
The refusal highlights the opaque and circular nature of the only complaints process available to parliamentary staff when concerns about bullying, sexual harassment or other workplace issues arise – and the confusion over who actually employs them.
While the Finance Department pays the salaries of those employed under the Members of Parliament (Staff) Act, they are hired and fired directly by the MP or senator for whom they work.
Johnson was sacked in 2018, five weeks into her job as Wyatt’s chief of staff, after raising concerns about what she alleges was serious bullying of staff in the office.
Johnson explained her concerns to the office of then prime minister Malcolm Turnbull. Turnbull’s chief of staff telephoned Wyatt to ask about the issue. Wyatt fired her on the spot. Turnbull was ousted and replaced by Scott Morrison 11 days later.
A week after that, Johnson discovered Finance was not investigating her complaint, despite Wyatt saying publicly that he had referred the issue himself.
Kate Johnson then made a formal complaint, at the request of the department, which triggered the investigation.
Departmental officials later told a senate estimates committee hearing that Wyatt had contacted the department but had not formally referred the matter.
Following Johnson’s complaint, CPM Reviews conducted an inquiry at an eventual cost of just under $37,000. Johnson and other staff were interviewed and two months later a report was provided to Wyatt. A month after that, the interviewees were notified that the investigation had been finalised.
But Johnson was never allowed to know the findings.
It is understood at least one member of Morrison’s office saw the Finance report though the PM’s office could not confirm that. It is not clear what the investigation found or what action, if any, was taken as a result. Gelo no longer works in Ken Wyatt’s office. The Saturday Paper is not suggesting any impropriety.
On Thursday, Wyatt’s spokesperson responded to a list of questions from The Saturday Paper with a single sentence: “Minister Wyatt has acted in accordance with the processes outlined under the Members of Parliament Act – any questions regarding adopted processes should be directed to the Department of Finance.”
The Department of Finance said it could not comment on individual cases and “does not release information where there is a risk that, when combined with publicly available information, this may allow individuals to be identified”.
It said once an investigation is finalised, it discussed “options for further action” with the parliamentarian involved.
In January last year the department notified Johnson that the matter had been concluded but that consistent with its workplace bullying and harassment policy and obligations under the Australian Privacy Principles “participants are not provided with the findings of the investigation or any actions taken as a result”.
Head of employment law at Maurice Blackburn Josh Bornstein questions that argument. “In my opinion, that’s complete bullshit,” he told The Saturday Paper. “There’s no privacy attached.”
Bornstein argues that such investigatory processes should have greater transparency and accountability.
Five years ago, he acted for Dimity Paul, the former chief of staff to then Victorian government minister Adem Somyurek, when she lodged a bullying complaint against her boss. Premier Daniel Andrews appointed a former judge as an independent investigator. Somyurek lost his job as a result.
“The outcome was made clear and public and decisive action taken,” Bornstein says.
He warns that failing to properly resolve an allegation of bullying or harassment can be worse for a complainant’s health than the original alleged incident.
“There are a lot of mental health issues associated with the process,” Bornstein says. “The longer the process drags out, the more harm to mental health occurs.”
He says it is increasingly common in the private sector to withhold such findings on the basis of legal professional privilege. He calls this “a rort” which is rarely challenged in court.
In federal politics, the issue is worsened by the fact complaints are referred back to the minister for action – even if they are the subject of the complaint.
Johnson says the Department of Finance has told her it has no capacity to take disciplinary action against either a parliamentarian or another employee when a complaint is found to be substantiated. That falls to the minister.
“The politician gets to decide whether the law applies and any action that will be taken, even if serious misconduct has occurred,” Johnson says.
Under questioning during a senate estimates committee hearing last year, Finance described the employer of parliamentary staff as “the Commonwealth”. In practice, the minister makes the employment decisions.
Josh Bornstein says the “particularly unusual environment” in which parliamentarians’ staff work is part of the problem.
“The capacity to mistreat them is greater than in many other workplace environments,” he says. “… And they’re working in a political ecosystem where, if they speak up … they will be likened to whistleblowers and punished within an inch of their lives.”
Bornstein says there is a flipside – that staff sometimes engage in “the dark arts” of politics on ministers’ behalf and there is little accountability for that, too.
The Saturday Paper is aware of another department that was asked to investigate their own minister’s behaviour, but the issue was not escalated to Finance.
It is not clear whether other complaints have reached the same level as Kate Johnson’s.
This week, following an investigation by the ABC’s Four Corners, former ministerial adviser Rachelle Miller lodged complaints of bullying and unfair treatment against two ministers. Miller alleged the treatment was linked to a consensual sexual relationship she’d had with one of them, her then boss Alan Tudge, now Cities and acting Immigration minister.
When the relationship ended, Miller was moved to the office of then Jobs minister Michaelia Cash and told she could accept either a demotion or a redundancy payout. Her second bullying complaint also includes that alleged “fake redundancy” restructure. Cash has denied any wrongdoing.
Miller revealed details of the affair with Tudge, who was married at the time, in the Four Corners program that aired on Monday night. Tudge has apologised for his actions.
The program also alleged that Attorney-General Christian Porter had an extramarital affair with a member of another minister’s staff and at least five people had seen them kissing in a Canberra bar. Porter denies the allegation.
The program canvassed sexist and degrading language and behaviour from Porter’s university years – behaviour he said he regretted.
Malcolm Turnbull told Four Corners he heard rumours of the incident and raised them with Porter during a private meeting in late 2017, warning him that such behaviour could expose him to blackmail or exploitation by foreign spies.
Expressing similar contemporary fears unrelated to this incident, the Australian Security Intelligence Organisation has written to all MPs in the past fortnight, warning them to be vigilant about their associations and activities.
At the time of Turnbull’s “fatherly” talk to Porter, he was about to appoint him to the attorney-general’s portfolio. Despite the concerns about the risk of compromise, he proceeded with the promotion. This week, he said he had not been aware of the alleged past behaviour.
“If I’d known at the time what was broadcast tonight I would’ve made further inquiries before I made him attorney-general,” he told the ABC’s Q&A program.
In 2018, after it was revealed that then deputy prime minister Barnaby Joyce was expecting a child with his former media adviser, Vikki Campion, Turnbull introduced a ban on ministers having sexual relationships with their staff.
Turnbull confirmed this week that Joyce was not the only minister he had in mind when he did so.
While Tudge’s behaviour would have been in breach of the amendment to the ministerial code of conduct had it been in force at the time, the allegations levelled at Porter would not because they involved the employee of a colleague.
This week, Scott Morrison strongly reiterated that ministers must uphold high standards of behaviour. He had been one of the few ministers who strongly supported the Turnbull changes.
Morrison said he was not aware that Tudge, Porter or any other minister had done anything during his prime ministership that breached the code, and therefore no disciplinary action was warranted.
He also declined to extend the ban to relations with staff from other offices, limiting it to the direct employment relationship.
“It is not what I’d call some sort of moral policeman or code more broadly,” Morrison said on Tuesday. “What it is about is dealing with genuine workplace issues in a workplace.”
He called on the opposition to adopt the relationship ban, in addition to a process it previously established for Labor staff. On Wednesday night, Labor leader Anthony Albanese announced he had done that.
Morrison said issues of employment standards and ministerial behaviour were “very important”.
“Everyone should feel safe in their workplace,” he said. “… Everyone should have proper channels through which they can deal with any issue about which they are uncomfortable. I think that is incredibly important.”
While the sentiment is welcome, Kate Johnson says the reality doesn’t always match.
“No one should be above the law,” she says. “No politician should get to decide whether the law applies to them. They should have to provide a safe working environment and comply with legislation like everyone else.”
She sympathises with Rachelle Miller’s situation and says people should be able to raise concerns about alleged inappropriate conduct without being punished.
“No employee should be worse off for speaking,” she says.
Scott Morrison said he also sympathised with the women who aired concerns on Four Corners and with the families affected by marital breakdown.
“There is considerable cost and hurt and we are all accountable for our own behaviour and we apply standards to ourselves, and should,” he said. “I am not one that seeks to judge others on these things … What is important is there are standards and the standards are adhered to and under my administration, under my government, I take that code very seriously and my ministers are in no doubt about what my expectations are of them, absolutely no doubt … and I expect them to be lived up to.”
Josh Bornstein believes more is required. He says the government needs to “enshrine stronger legal protections and greater transparency in addressing grievances and complaints … including transparent investigations and outcomes”.
Kate Johnson is not convinced by the prime minister’s assurances, either. “I have no confidence that anything will come of the investigation by the Department of Finance into the issues raised this week,” she says.
“… Until bullying and sexual harassment is taken seriously in political offices, taxpayers will continue to fund investigations that remain secret. Australians have a right to know what goes on in political offices of the people they elect to represent them.”
This article was first published in the print edition of The Saturday Paper on Nov 14, 2020 as "Exclusive: Government refuses to release staff bullying report".
A free press is one you pay for. In the short term, the economic fallout from coronavirus has taken about a third of our revenue. We will survive this crisis, but we need the support of readers. Now is the time to subscribe.