Pearls and Irritations

The review into parliament, following allegations of sexual assault, has not specifically highlighted the most important piece of legislation for ensuring the safety of Parliament workers, the Work Health and Safety Act. Without the act’s enforcement, Parliament will remain unsafe and its workers vulnerable.

The Work Health and Safety Act 2011 (Cth) (WHS Act) applies to all Commonwealth workplaces, including the Parliament House office in which political staffer Brittany Higgins was allegedly raped in 2019. Non-compliance with its incident reporting and incident site preservation duties has disadvantaged both victim and police.

Late February/early March 2021 saw Australia transfixed by the allegation that on 23 March 2019, Ms Higgins had been sexually assaulted in an office within the suite occupied by Senator Reynolds, for whom she and her alleged rapist were working.

As noted in the 2020 Safety at work report of Sex Discrimination Commissioner Kate Jenkins, workplace operators have a WHS Act “primary duty of care” to proactively eliminate (or at least minimise) serious risks to workers’ safety and health (including psychological health). The WHS duty non-compliances attract criminal penalties, whereas other work-related Acts lack such sanctions, and focus mainly on civil redress.

On 5 March 2021, Finance Minister Senator Simon Birmingham announced that Ms Jenkins was to conduct an “Independent Review into the workplaces of Parliamentarians and their staff.” Her report is due in November 2021.

The Terms of Reference make no mention of the WHS Act: rather, they require Kate Jenkins to “assess the extent to which [all] current legislation, policies, processes and practices promote or impede safe and respectful workplaces, including the operation of the Members of Parliament (Staff) Act 1984 (MOP(S) Act)”. The MOP(S) Act gives MPs and Senators, whether Ministers or not, ‘hire and fire’ power over their staffers.

Which workplace-related laws are most able to cauterise the federal Parliament’s toxic workplace culture? Four features of the WHS Act make it the most powerful of them:

• the pro-actively preventative duty of care it imposes on workplace operators;
• the personal duty it imposes on top “officers” to ensure their operator complies;
• its Comcare inspectors’ power to issue compliance-compelling notices; and
• its deterrent criminal sanctions for very serious non-compliances – an up to $3 m fine for corporate/government entities, and an up to 5 years jail term for officers.

Such is the superior enforcement potency of WHS and OHS Acts that, on 9 March 2021, Victoria announced plans to explicitly “require employers to notify WorkSafe [the OHS Act regulator] of workplace sexual harassment” (my italics).

Two WHS Act duties were crucially relevant in the early hours of 23 March 2019. Unfortunately for Ms Higgins and the police, they were apparently not complied with.

WHS Act says Comcare should have been notified, and the incident site preserved

Under section 38, the party in charge overall (the Finance Department, apparently) had a duty to promptly report the matter (a “notifiable incident”) to Comcare, the Act’s regulator, e.g., on its 24/7 phone number. Under section 39, Finance’s duty was to preserve the incident site until a Comcare inspector attended. Finance should’ve made security staff perform both duties overnight, and on non-working days. If it didn’t, why not? The maximum penalty for a duty non-compliance is a $50,000 fine.

Amazingly, no media outlet has yet (to my knowledge) explained that the relevant government department was compelled by law, on pain of heavy fines, to promptly notify the health & safety regulator of the Higgins incident, and preserve the site.

The ‘notify Comcare’ duty only applies if the incident “[arises] from the conduct of the … [workplace]”. Given Parliament’s notoriously toxic workplace culture, a narrow reading of “conduct” would be inapt. The incident surely arose from staffer-related ‘conduct of the workplace’ aspects – intense workload pressure, very close collegial working relationships, extraordinarily long working hours – that tend to induce frequent resorting to alcohol-hyped socialising (sometimes at the workplace) for stress relief.

According to various media reports, the 24-year old Higgins, after a long Friday night drinking session with colleagues, accepted a lift home with a colleague who, on a pretext, took her into Parliament House. Tired and very drunk, she was asleep on her office couch when the alleged assaulter acted: she awoke but couldn’t stop him. He left. Security staff later found her lying on the couch, comatose and half undressed. They considered calling an ambulance but didn’t.

The WHS Act only explicitly requires police notification if there’s a workplace death, and merely refers to “[assisting] an injured person” without mentioning ambulances. But the primary duty of care’s prevention scope is so intrinsically far-reaching that questions arise.

(1) Were night shift security staff instructed to (a) promptly notify police of any serious crime, and (b) call an ambulance in all cases of, e.g., unconsciousness or serious injury or illness?

(2) If not, why not?

If notified, police would have, on arrival, cordoned off ‘the crime scene’ if security staff hadn’t already done so; and ordered that any cleaning of couch or office must not occur until forensic investigators have been given access to obtain all potentially relevant biological evidence, such as fingerprints, and DNA-containing semen.

Accordingly, the fact that the couch was cleaned later the same day (23 March 2019) clearly suggests that neither WHS duty was complied with, and the police were not notified. Finance, Comcare, and police should now be asked to confirm or deny.

If called, an ambulance would surely have taken Ms Higgins to Canberra Hospital’s Forensic and Medical Sexual Assault Care unit. Unit staff might well have advised Ms Higgins that:

(1) ‘sampling access’ to her body or clothing by forensic investigators requires her permission;

(2) semen deposited on or in a body only remains useful as evidence for a few days;

(3) allowing forensic sampling does not imply permitting police to conduct a full investigation;

(4) police will not fully investigate until asked to do so.

(Ms Higgins didn’t ask police to investigate until 9 February 2021.)

Had the site been preserved and police notified; had an ambulance taken Ms Higgins to Canberra Hospital’s FMSAC unit; and had relevant biological samples been taken, an ensuing Crimes Act prosecution’s prospects of success would have been enhanced.

As at 30 June 2020, Comcare had not charged Finance with breaching its ss 38 & 39 duties (Annual Report 2019–20, pp 58–60). If Comcare hasn’t already investigated with a view to possibly prosecuting, the Minister with portfolio responsibility for the WHS Act and Comcare, Christian Porter – or acting Industrial Relations Minister Senator Cash – should be pressed to ask Comcare if and when it intends to do so.

For completeness, let me add that, even if a security staffer did phone Comcare to report the incident early on 23 March 2019, the response of the inspector concerned might have been, in essence: the incident is not “notifiable” as it’s not “arising from the conduct” of the workplace; and, with no “notifiable incident”, there’s no duty to preserve the site. So, Comcare’s CEO should be asked at Senate Estimates whether:

• Comcare calls workplace sexual assault a “notifiable incident”? If not, why not?
• if Comcare was notified of the 23 March 2019 event, on what date and at what time did that occur, and what (if anything) did Comcare state or do in response?

Share and Enjoy !

SHARE TWEET SHARE COPY EMAIL PRINT