Federal parliament is unable to sanction a senator accused of sexually harassing three colleagues if an investigation finds action is warranted, because the independent commission proposed two years ago to deal with misconduct has not yet been established.
The Saturday Paper has confirmed the parliamentary support body to which Opposition Leader Peter Dutton referred sexual harassment allegations that emerged last week against now-independent former Liberal senator David Van has limited investigative powers and no authority to punish misconduct.
Dutton moved swiftly last week to banish Van from the federal Liberal party room after three allegations emerged, all of which Van denies. The opposition leader announced he had also alerted the Parliamentary Workplace Support Service (PWSS) to undertake an “independent process”.
His move came after independent senator Lidia Thorpe used parliamentary privilege to accuse Van of sexually assaulting her in 2021 – an allegation she later modified – and former Liberal senator Amanda Stoker revealed she had complained a year earlier about Van groping her at a parliamentary function.
Dutton later revealed a third person, who did not wish to be identified, had contacted him with another harassment allegation.
“The allegations that have been brought to my attention, I’ve referred to the parliamentary workplace authority in the parliament, which is independent of the parties,” Dutton told Radio 2GB on the day he announced his decision. “And it has the ability to investigate these matters and they’re conducting their investigation now.”
A PWSS referral is the only option available currently within the parliament, with the formal investigative and sanctioning body recommended by former sex discrimination commissioner Kate Jenkins in her 2021 “Set the Standard” report on parliamentary workplace culture still not yet in place.
The PWSS was created with multi-party backing in September 2021 ahead of the publication of Jenkins’ report. It is a service to support anyone employed or volunteering in Commonwealth precincts and affected by serious incidents, misconduct or workplace conflict. While “managers and advisers” can seek its advice, it is primarily set up to deal directly with those making a complaint and wanting a mediated resolution without necessarily taking it further.
The PWSS is able to consider whether to instigate an external workplace review in relation to particular allegations. PWSS guidelines show a review involves a balance-of-probabilities examination and can involve recommendations to “resolve the issue and benefit one or both parties”. It aims to “provide clarity on the issue and closure, where possible”.
But the body’s powers are limited and it cannot impose penalties. In deciding whether to undertake a review, it is obliged to consider factors including the time elapsed since the alleged events, the effectiveness of possible outcomes “in all circumstances”, and the wishes of the complainant and “any other person affected by the conduct”.
Short of going to police, no body exists yet within the parliamentary system to enforce codes of conduct for MPs, staff and others working in parliamentary precincts, investigate alleged breaches and impose sanctions. This is despite then commissioner Jenkins recommending one be established within 12 months. How it might investigate complaints and the options for sanctions has not been negotiated.
Minister for Women Katy Gallagher says the government is working through all of Jenkins’ recommendations, with support across the parliament.
“We are putting in place structures which will provide lasting change to the way this building operates, creating a safer workplace for all,” Gallagher says. “The government is totally committed to getting the job done.”
While negotiations are under way over draft legislation to strengthen the PWSS’s powers and make it a statutory body, there is no draft legislation for the proposed separate investigative body to be known as the Independent Parliamentary Standards Commission (IPSC). There is also no agreement yet on proposed changes to the Members of Parliament (Staff) Act, to clarify the rights and responsibilities of MPs as employers, and their employees.
Those amendments are expected to reflect recent changes to employment law, which now imposes a positive obligation on employers to provide a safe workplace, rather than claim a lack of awareness of incidents occurring within it.
Independent MP Zali Steggall, who is a member of the parliamentary leadership taskforce (PLT) steering the Jenkins report’s implementation, says it is important to move carefully on the changes and achieve buy-in across the parliament. She is frustrated at the slow pace.
“The PLT has been meeting regularly to progress implementation but aspects have taken longer than is ideal,” Steggall says.
Greens senate leader Larissa Waters, also a PLT member, calls the PWSS “a huge step forward”. “But, without enforcement powers, it cannot solve the problem …” Waters says.
“Without genuine consequences – such as suspension from parliament, loss of entitlements or directions to provide a public apology – there is little to deter against bad behaviour.”
She acknowledges work to establish the IPSC is complex. “But there is no doubt it’s been too slow.”
A fellow PLT member, shadow Finance minister Jane Hume, says all parties are working well together towards change.
“While we would all like to have this change implemented as quickly as possible, we acknowledge that it is important to consult staff and [other] occupants on the way these changes will impact them and their workplace,” Hume says. She says the government could limit stress on workers with families by limiting extended parliamentary sitting hours, especially at short notice.
The taskforce is due to meet again on Tuesday.
Labor MP Sharon Claydon, who chaired a joint committee on parliamentary standards that drafted the new codes of conduct, says a parliamentarians’ code was first proposed 50 years ago.
“This is not a new problem for us,” Claydon says. “Every parliament has squibbed it to date. We cannot be another parliament to squib our obligations to ensure a safe and respectful workplace for everyone.”
Claydon says drafting the codes was “the easy part”. “Changing culture is the hard work …” she tells The Saturday Paper. “Whilst it will be a difficult debate for parliament in some respects, it’s got to have the capacity to investigate alleged code of conduct breaches.”
Peter Dutton says he was unaware of the allegations against David Van until they surfaced publicly this month. A former police officer, Dutton has long spoken out on violence against women. He told 2GB last week he would not tolerate such behaviour.
“I’ve been very clear about that for many, many years, and it’s not a throwaway line for me,” he said. “I believe that very strongly, and I believe that I had to act and I did that and don’t have any regrets in doing so.”
Aside from the referral to the PWSS, Dutton took what appears to be the only other step available to him – banning Van from the party room.
The Victorian senator pre-empted any process to expel him from the Liberal Party altogether by resigning from it last weekend. MPs cannot be expelled from parliament – only voters can do that at an election.
In his letter to Victorian Liberal Party president Greg Mirabella, Van condemned what he said was a disregard for due process and natural justice.
“I cannot remain a member of a party that tramples upon the very premise on which our justice system is predicated,” Van wrote. “This is a travesty of justice and I reiterate that I deny the allegations made against me.”
Van’s resignation puts him beyond reach of any further party process. He can continue to sit in parliament as an independent.
Questions remain as to what action, if any, was taken when Stoker raised her concerns about Van’s behaviour in 2020 or when Lidia Thorpe did the same the following year.
Stoker spoke out in the wake of Thorpe’s allegation and after contact from journalists. She said Van had pinched her bottom twice at a function at Parliament House and she had “made it very clear” the next day “a repeat would not be tolerated by me or anyone else”.
“I didn’t run to the media and I didn’t try to destroy a colleague,” she said on Sky News. “I immediately registered the issue with a senior colleague to ensure record of the event and to ensure that any conduct that wasn’t in my line of sight could be detected and dealt with, should patterns emerge. It was important to me that others were safe, especially staff.”
She said Van apologised and assured her he “wouldn’t behave that way in future”.
Thorpe’s complaint post-dated that assurance. Thorpe said the Greens, her then party, raised it with the then government on her behalf, resulting in Van’s office being relocated. There is no evidence of any further investigation.
Zali Steggall criticises the Liberals’ handling from the start. “Had a due process of investigation occurred at the time the complaint was raised, I think all involved would have been better served,” Steggall says. “It would mean important information is known by those in leadership and would avoid a situation of different people knowing different aspects at different times but no one taking decisive action or responsibility.”
The Liberal Party’s national code of conduct has no enforcement provisions and defers to similar codes at the state and territory levels. The Victorian division’s code is only accessible to Liberal Party members. In the absence of a formal complaint, it appears no action was taken.
David Van took leave from parliament this week. Dutton called for him to quit parliament – a move that would see his seat returned to the Liberal Party, rather than shift to the crossbench.
A spokesperson for Thorpe confirmed this week she would co-operate with any inquiries from the PWSS or another parliamentary body. Stoker did not return The Saturday Paper’s call before time of press.
Before Dutton’s intervention, David Van gave an interview to 2GB, in which he called Thorpe’s allegation a “slur” and “utterly disgusting”.
“It’s just gobsmacking,” he said. “I don’t know where this came from.”
Van said he was hurt that the accusation had come while he was trying to uphold the “dignity” of parliament in his speech criticising Katy Gallagher’s engagement with Brittany Higgins before Higgins made her public allegation of rape against fellow former staffer Bruce Lehrmann – an allegation he denies.
The Coalition had seized on private text messages from Higgins and her partner, David Sharaz, in early 2021, which flagged discussions with Gallagher. The messages were provided under subpoena and have since been leaked in what may be a contempt of court. The Coalition accused Gallagher of misleading parliament over when she knew of Higgins’s allegation, something Gallagher denies.
A lawyer before entering politics, Zali Steggall fears the personal nature of the attacks, combined with the weaponisation of the messages, will make complainants more reluctant to come forward and negotiations on the Jenkins reforms more difficult.
“The use as a political punching bag of serious allegations makes it harder to progress the ‘Set the Standard’ recommendations,” she says.
This week, the Coalition questioned the confidential workplace compensation payout the Albanese government made to Higgins soon after taking office last year, in a process begun under the Morrison government. Gallagher said Attorney-General Mark Dreyfus handled the matter and she played no role.
As the politicking continued, new documents were published by the ACT board of inquiry into the handling of the failed criminal proceedings against Bruce Lehrmann. Those documents reveal more details about police’s unauthorised disclosure of Higgins’s personal records to Lehrmann’s lawyer. That disclosure is separate to the recent leaks of subpoenaed material by unknown sources.
Detailed contemporaneous file notes written by ACT Victims of Crime Commissioner Heidi Yates, who liaised with police and prosecutors on Higgins’s behalf, reveal Lehrmann’s original defence lawyer, John Korn, was in possession of Higgins’s private counselling records with police for more than two months after police wrongly provided them and before the USB stick containing them was retrieved. This was despite repeated pleas from ACT Director of Public Prosecutions Shane Drumgold for police to urgently rectify what they said was a mistake.
The material was part of the prosecutor’s brief and legally not allowed to be provided to the defence. Korn assured Drumgold two months after receiving it that he personally had not accessed it.
Emails between Yates and then deputy secretary of the Department of the Prime Minister and Cabinet, Stephanie Foster, reveal Foster pressed Higgins to help then departmental secretary Phil Gaetjens complete a review into what the prime minister’s office knew of Higgins’s allegations in 2019.
Foster proposed that she and police meet with Higgins to try to allay her concerns about being interviewed for Gaetjens’ review. If she insisted on not being interviewed while the trial was pending, Foster suggested they find a way to explain that in the report.
“One way or the other we need to find a way to finalise the process,” Foster wrote on August 23, 2021.
Earlier, Gaetjens had suggested to Higgins that Foster could join them in an interview “as notetaker”. A former ministerial adviser who Foster interviewed for the same review, Fiona Brown, told The Australian newspaper recently the experience was “like the Spanish Inquisition” and Foster had made no notes nor recorded the conversation.
Foster’s attempts to persuade Higgins prompted Drumgold to intervene, as Yates conveyed in a reply three days later. Gaetjens had earlier paused his inquiry for two months at the request of ACT Policing, but had notified Higgins by text message on May 11, 2021, that the AFP commissioner had phoned him to say he could resume it. Drumgold argued that finalising the report would generate publicity that could jeopardise the trial.
“Mr Drumgold’s view is that any concerns Mr Gaetjens held that his investigation could interfere with a police investigation remain equally valid for legal proceedings,” Yates wrote.
Prime Minister Anthony Albanese has told parliament it appears the process was not completed and no record can be found of a report or any documents contributing to it.
Findings from the public inquiry into the handling of the criminal case are due next month.
This article was first published in the print edition of The Saturday Paper on June 24, 2023 as "Exclusive: Dutton referred Van to a body with no real powers".
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