Workplace Reforms in Courts and Parliaments: Some Guiding Principles
Gabrielle Appleby and Prabha Nanda
27.04.2022
Editors’ note: This post is the second in a two-part series today on the issue of creating a safe parliamentary workplace. To see the post by Margaret Thornton setting out the context, for, findings and recommendations of, and response to the Set the Standard Report published in late November 2021, click here.
In the four years since the global #MeToo movement, misconduct in the workplace – and in particular sexual harassment, bullying and discrimination – continue to dominate headlines. The last two years has seen serious allegations and findings of sexual misconduct emerge in the workplaces of the courts, and Australian Parliament House. This has led to a series of workplace reviews, including an internal High Court review that led to a new workplace conduct policy, an Independent Review into Commonwealth Parliamentary Workplaces (often referred to as the Jenkins Review, resulting in the Set the Standard Report), an ongoing Independent Review into Bullying, Harassment and Sexual Misconduct in NSW Parliament, the South Australian Equal Opportunity Commission’s Review of Harassment in the South Australian Parliament Workplace, an ongoing Tasmanian review into parliamentary practices and procedures to support workplace culture by the Tasmanian Anti-Discrimination Commissioner, and an independent review into sexual harassment in Victorian courts and the VCAT (Victorian Courts Review).
As workplaces, courts and parliaments are constitutionally unique. Practically, they are complex and opaque, with tradition, convention and ambition often governing employment relations that can be generally characterised by deep power imbalances, and lack of independent oversight and redress. In line with shifts in community expectations and strengthening of legal and regulatory frameworks, many organisations are prioritising workplace cultural reform and prevention strategies. In this post, we explore the challenges of achieving accountability in courts and parliaments as workplaces and outline best practice principles for developing effective accountability mechanisms that facilitate and sustain workplace cultural reform, taking into account their constitutional contexts.
Courts and parliaments as workplaces
Workplace reform in Australian courts and parliaments faces a set of unique hurdles. (To be clear, we don’t discount that other industries and sectors might have their own set of unique hurdles, but our purpose in this post is to explore what it is about the nature of the court and parliamentary workplace that has made reform so challenging). These two workplaces are distinct, but there are shared characteristics. Judicial independence, and the constitutional independence that underpins assertions of parliamentary privilege are used to justify “self-regulated” employment relations. This is because the imposition of an externally developed, and enforced employment framework, particularly if it is done by another branch of government, is seen as the potential unconstitutional intrusion into the exercise of the functions and powers of these branches. This has meant, largely, that there has been little in the way of transparent, independent oversight of employment relationships. Increasingly, in both institutions, there is a growing understanding that accountability, if designed carefully, is not necessarily incongruent with independence and privilege. However, this has, to date, had little effect on workplace relations.
Employment relationships in courts and parliaments are varied, leading to the idea that there are many “workplaces”. There are employees who work for the institution of the Court (such as registry staff), or Parliament (such as parliamentary committee or library staff), forms of public service. There are also more personal employment relationships. These are often between senior constitutional officers (whether they be judges, Members of Parliament or Ministers) and aspiring junior employees in highly competitive positions (whether they be associates, parliamentary staff or ministerial staff). The work is demanding, and the hours are long. Tradition and convention give rise to expectations that the junior employee will dine, travel and socialise with the senior officer in this relationship, albeit in a subservient and deferential role. More than the majority of senior officers are men. Many of the junior employees are women. The profession, whether that be the law or politics, is small, and power, reputation and loyalty matter.
Courts and parliaments also hold a distinct public status – as public institutions, maintenance of their institutional integrity, and public confidence in that integrity, is vital. Revelations of sexual harassment and bullying in these workplaces is likely to lead to loss of public confidence in these institutions, as is the failure of these institutions to have an appropriate system for receiving and responding to complaints of conduct of this kind.
The key to workplace reform: accountability
Committed and consistent leadership, policies setting out clear standards of behaviour, education and continuous training are foundational to driving cultural reform.
In addition to these factors, effective accountability mechanisms are a key element to sustaining change. Indeed, numerous cultural reform inquiries and reviews have identified that along with gender inequality and power imbalances, a lack of accountability for perpetrators is a key driver of sexual harassment and bullying in the workplace (see eg, the Set the Standard Report at 80; the Victorian Courts Review at 31; Respect@Work at 155). Accountability can be a particular challenge in workplaces such as courts and parliament because they have a rigid hierarchy, consequential power imbalances and complex employment relationships. Where employees perceive there is a lack of accountability it diminishes confidence to report misconduct which can lead to a culture of silence and can significantly impair an organisation’s ability to achieve systemic change.
Extending external accountability frameworks
There are well-established external complaints avenues for employees experiencing misconduct such as the Australian Human Rights Commission, the Fair Work Commission, state and territory anti-discrimination bodies and the police. The 2020 report of the National Inquiry into Sexual Harassment in Australian Workplaces, Respect@Work, however, detailed the limitations of the external legal and regulatory framework in addressing sexual harassment, of particular relevance to courts and parliaments. In response to the report (and in the wake of sexual misconduct allegations at Parliament House), Parliament has made amendments to the Sex Discrimination Act 1984 (Cth) to strengthen protections for employees, for example by:
expanding protection against sexual harassment and sex-based harassment to all workplaces and workers including interns, volunteers, students and the self-employed;
removing the exemption of state public servants; and
clarifying that the Act extends to Members of Parliament, their staff and judges.
The Fair Work Act 2009 (Cth) has also recently been amended to allow the Fair Work Commission to issue a ‘stop sexual harassment order’ in the same way that it can currently issue a ‘stop bullying order’. This means workers in courts and parliamentary workplaces can apply to the Fair Work Commission for an order to stop sexual harassment.
Internal accountability frameworks
Although we are seeing improvements to external reporting frameworks, it is now well accepted that it is an organisation’s internal reporting and complaints procedure that has a greater influence on workplace culture. The 2021 Set the Standard report, following a review conducted by the Australian Human Rights Commission, found that people in those workplaces rarely access external complaints mechanisms to report bullying, sexual harassment and/or sexual assault.
The reasons behind this are likely multiple. The personal and highly sensitive nature of sexual harassment and bullying means that many employees prefer an internal resolution option with external avenues being seen as a last resort. Fear of reprisals, a lack of trust and confidence in reporting mechanisms and a perception that nothing will be done also contributes. The rigid workplace hierarchy and power imbalances in employment relationships that characterise courts and parliaments as workplaces exacerbates these factors, and the likelihood of under-reporting to external structures.
UK Professor Dawn Oliver has written (1997) that a self-regulated system of workplace standards and accountability in the parliamentary context must be governed by a set of principles, that is, the system must demonstrate:
a genuine commitment by members to upholding standards of conduct;
(merited) public confidence in the system of self-regulation;
a degree of external involvement;
separation or independence from members whose interests may be affected;
clear standards of conduct;
appropriate sanctions;
responsiveness to changing social expectations and standards; and
effective public accountability.
In the judicial context, Professors Gabrielle Appleby and Suzanne Le Mire have developed a set of similar principles for self-regulation of misconduct, including workplace misconduct. These are:
provision for a designated complaints-handling body separate from the court structure;
the decision-making body has an appropriate composition;
the system sorts complaints so that those involving substantive misconduct are considered;
the standards against which judicial conduct is measured are apt to determine the types of incapacity and misbehaviour that must be addressed;
an adequate opportunity to be heard is afforded to both the complainant and the judicial officer;
the range of consequences provides options that suit varying types of relevant incapacity and misconduct;
the system is sufficiently transparent to the public and judicial officers;
mechanisms exist to protect the integrity of the complaints process; and
the administration of the scheme is fair, accessible and timely.
These principles were largely echoed in a letter, signed by more than 500 women working in the law, written to the Commonwealth Attorney-General following the findings of sexual harassment against former High Court judge, Dyson Heydon. This letter called for reforms to judicial appointments as well as the establishment of an independent complaints process, to
ensure there is an established body to which future complainants may turn, whether they be court employees, members of the profession, the judiciary or members of the public. It would provide an independent avenue for individuals to seek redress with some guarantees of privacy and protection against recrimination, such as defamation actions.
The 2021 Set the Standard report adopted a set of principles to guide its recommendation that an enforceable code of conduct be adopted for the federal Parliament:
Independence and Impartiality;
Accessibility;
Confidentiality;
Fairness;
Transparency;
Timeliness;
Adequate resourcing;
Authority.
In the remainder of this post, we will take a deeper look into two of these principles that are particularly important for driving cultural change in relation to workplace misconduct: the existence of an appropriate regime of sanctions that will be independently and proportionality applied, and a confidential yet transparent reporting system.
Sanctions
To have trust in a complaints system employees must feel confident that, if an allegation is substantiated, the perpetrator will be held to account regardless of their position or the power they yield within the organisation, or the profession. There must be a consistent application of proportionate sanctions where misconduct is found to have occurred.
The lack of proportionate sanctions, independently determined, is one of the ongoing concerns in relation to judicial misconduct. While there have been improvements in the courts as a workplace in terms of the development of expected standards, increased training and education, reducing situations in which abusive of workplace relations is likely to occur, and providing an avenue of complaint, to date, there has been little progress in the development of a system with sanctions for those engaging in misconduct, short of removal by the relevant parliament.
Sanctions drive change in culture and can also be a deterrent. An absence of meaningful consequences, on the other hand, will undermine the integrity of any investigation process and more broadly an organisation’s commitment to preventing misconduct and improving workplace culture. Complaint handling policies should clearly articulate the range of sanctions that may be applied such as:
a requirement to make an apology and ongoing supervision;
verbal or written warnings;
demotion or a requirement to forego a scheduled pay rise; and
suspension or dismissal.
Accountability through sanctions was a focus for the parliamentary context in the Set the Standard Report. The report found that a lack of accountability – in particular, the perception that Parliamentarians will not be held to account for misconduct – was a key driver of sexual harassment, bullying and sexual assault in Commonwealth parliamentary workplaces.
The recommendations in the report for a robust system of parliamentary standards, reporting and accountability carefully navigate the complexities of the federal Parliament’s constitutional position, and workplace pressures. While maintaining a self-regulated process, as outlined by Margaret Thornton the report recommends the establishment of Codes of Conduct for parliamentarians and their staff, overseen by an Independent Parliamentary Standards Commission, exercising delegated powers from the Houses to investigate and enforce through sanctions.
Transparency and Confidentiality
The common law principle that justice must not only be done but be seen to be done holds true in the modern workplace. A challenge for all organisations, however, is being transparent about the application of sanctions while maintaining privacy and confidentiality. Transparency about complaint outcomes is crucial to shifting perceptions that complaints won’t be taken seriously and promoting accountability. In the judicial and parliamentary context, with the necessity of maintaining public confidence in the institutions, the need to demonstrate an independent, fair, rigorous and proportionate complaints handing process is becomes an imperative.
However, equally important is the need to maintain confidentiality throughout the investigation process in order to protect the privacy of all parties. Striking the right balance between transparency and confidentiality will help embed a safe reporting environment, a culture of prevention and act as a powerful deterrent for future offenders.
The Champions of Change Coalition have developed transparency and confidentiality principles for organisations to apply in relation to high profile sexual harassment cases. The following six principles represent a significant shift in organisational practice towards transparency and prevention:
organisations will be transparent with internal and external stakeholders about the fact that sexual harassment claims exist;
the identity of those involved will be protected by organisations at all times during the investigation process;
organisations will ask everyone involved to keep any workplace process confidential while that process is underway with an exception for receiving expert counselling or support;
once any investigation is complete, organisations will not restrict the complainant’s right to speak;
where there is a legitimate public or stakeholder interest and an investigation has found that allegations are substantiated, organisations may identify the offender;
if a financial settlement is reached with a complainant, the fact of the settlement will be disclosed by organisations to relevant stakeholders, together with the restrictions it imposes but not the amount.
Principle four raises for consideration the contentious issue around the use of non-disclosure agreements (NDAs) against employees who make complaints of sexual harassment and bullying. The Respect@Work and Set the Standard reports expressed concern that notwithstanding that NDAs can benefit complainants who want their privacy protected, the misuse of NDAs to protect organisations can contribute to a culture of silence and repeat offending.
Urgent, but careful, reform needed
The last two years have, repeatedly, highlighted the need for urgent reform across Australia’s court and parliamentary workplaces to counter a culture in which workplace sexual harassment, bullying and intimidation has been allowed to occur with impunity. While these workplaces are constitutionally unique, they are not exceptional and robust accountability is achievable. Indeed, as the Set the Standard Report demonstrates, self-regulated but independent, fair and transparent processes can be crafted within constitutional boundaries. These systems should be designed to create the maximum public confidence that such behaviour will not be tolerated, it will be investigated fairly, victims will be protected, and perpetrators will be appropriately sanctioned.
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Gabrielle Appleby is a Professor at the Faculty of Law & Justice, UNSW. She was engaged as a consultant on constitutional matters and institutional design for the Independent Review into Commonwealth Parliamentary Workplaces.
Prabha Nanda is a Human Rights Lawyer. She was the Director of Legal for the Independent Review into Commonwealth Parliamentary Workplaces.
Suggested citation: Gabrielle Appleby and Prabha Nanda, ‘Workplace Reforms in Courts and Parliaments: Some Guiding Principles’ on AUSPUBLAW (27 April 2022) <https://www.auspublaw.org/blog/2022/04/workplace-reforms-in-courts-and-parliaments-some-guiding-principles>