Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

I’m having so much fun with the poisonous people… Legal standards and social standards in political accountability

One of the biggest stories of the past fortnight within political culture has been a number of allegations of sexual assault, harassment, and other toxic working conditions for women in Parliament House.  The question I haven’t quite answered for myself is how much people actually care about this issue.  Beyond the hyper-engaged, people don’t really care about political staffers.

And when we do hear about staffers, we hear about them disparagingly: ‘An advisor to the Minister rejected the advice of the expert committee’, ‘An advisor to the MP leaked materials but the AFP won’t investigate’, ‘Too many politicians are former staffers’.

I want to focus less on the dynamics of the specific issues and focus more on something that is my expertise: the public’s adoption of complex legal concepts to engage in political debate.

Framed more simply: is this merely a criminal matter that should be left to the police to investigate?  What about the presumption of innocence?

There is a lot of very imaginative folk law about criminality and allegations of criminal behaviour.  A large part of it is driven by journalists who confuse ‘This is the law’ with ‘This is the most conservative, risk-averse interpretation of the law’.  The public’s understanding of sub judice, for example, now extends to matters that aren’t even a little bit under a judge.

Pause here for a moment.  Who benefits from this culture of hushing things up?  And why are we suddenly thrown into this discussion?

Recall that when it came to protecting the integrity of a trial into Cardinal Pell, Australian newspapers ran front page spreads about how your right to know was under threat and that (wink, wink, nudge, nudge) you could find out the details of the case by looking at overseas media outlets.

But when it comes to this issue, suddenly people are wringing their hands about the rights of the accused and the law of contempt.

Should issues about criminal law be front and centre in this debate?

Last year, the High Court of Australia announced that it had completed an independent inquiry into sexual harrassment complaints against former Justice Dyson Heydon.  The inquiry was not about establishing criminal guilt, and one of Heydon’s complaints was that it was an administrative inquiry not undertaken with a view to legal standards of evidence.

Heydon’s complaint here, I think, shows the narrowness of view when somebody can only think about these issues in terms of criminal law.  There’s a broader context: are structures in place to reduce problems related to power imbalances in these workplaces?  That is not a question of criminal law and you don’t need a criminal standard to investigate this.

So the above is all in broad generalities.  How does it apply to the specific problem of unprovable allegations about a person who is now a Cabinet Minister?  How does it apply to allegations about people working within MP offices?

It is simply not correct to throw up your hands and say: ‘Gosh, criminal standards of evidence can’t apply here, so I guess we can’t do anything.’  The first question is whether or not political parties are doing enough to vet their candidates before putting them to the electorate.  That requires an independent investigation into the claim to establish whether or not the complaint is credible.  If it is, what stopped the political party vetting process from working?

The second question is whether or not political parties are responding appropriately to these allegations.  What can be done to make people feel safe and supported when reporting these issues?  What do parties need to do to reassure the community that they are upholding community standards about morality, professionalism, and care?  And how do you balance these issues against the presumption of innocence, rather than let the presumption of innocence ride roughshod over everything else?

The third question is what structures should be in place to reduce the risks of working in these environments.  Is there sufficient independent oversight?  When things go wrong, what options are available to people?  Whose responsibility is it to maintain a safe and healthy workplace?  Is the current process — parliamentary and electoral accountability — simply insufficient when other MPs will not use parliamentary privilege to air the complaints and when the information is hidden from the electorate?

None of the above requires a criminal standard of guilt to be established.  It is simply wrong to insist upon this standard.

As a final note, I don’t think it will stop with parliament.  Having aired problems in the High Court and now Parliament House, it is highly probable that we will see similar allegations airing in other workplaces where there are significant power imbalances, where junior people are highly dependent upon the favour of senior and established people, and which have a culture of prioritising their public image.

The deper question is why we have to go through the same public discussion each time.

One response to “I’m having so much fun with the poisonous people… Legal standards and social standards in political accountability”

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