Note: this story discusses sexual assault.
A young female employee was found, semi-clothed and not well, in a secure part of her employer’s premises where she should not have been. This is not a hypothetical.
We are learning by the hour, as is the employee Brittany Higgins, more and more about what her employer did next. Putting aside the increasingly fevered politics of this exploding scandal, it is appropriate to examine what was done, and compare it to what should have been. Any employer or institution can easily find itself in the same situation and should know how to respond.
Even before an allegation of sexual assault was made, there was more than enough cause for extreme alarm. When the allegation was added, that alarm should have gone to DEFCON 1.
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The employer in question was, technically, the minister for whom Higgins worked, Defence Minister Linda Reynolds. However, the executive federal government — led by the prime minister and encompassing the ministry, public service and parliamentary staff — should from the perspective of legal responsibility treat itself as a single institution with an absolute duty of care to all who work within it.
Upon discovery of an employee in a potentially compromised state, in the context of a serious security breach, the very first priorities should have been dual: to ensure and protect her safety and wellbeing; and to preserve the evidence. Until more was known, the minister’s office should have been quarantined and sealed. Medical attention should have been provided and reassurance given. The matter should have been escalated to the minister, at least, immediately.
After Higgins reported that she had been raped, the first two priorities should have been maintained and enhanced. And they should have been joined by the next essential step: an investigation of the allegation. There is no workplace incident more serious than sexual violence, and the highest degree of intervention is required. Procedural fairness is essential, for all parties, and should in such a case mandate external, independent conduct of the investigation.
The investigation would result in findings, which must then be acted on. This is strictly within the context of the relevant employment relationships and the employer’s obligation to ensure that its workplace is safe. It says nothing about the allegation as a crime.
The employer must do everything required to provide its employees with guaranteed safety, both in general and specifically with regard to the complainant. The seriousness of the alleged crime would necessitate that the matter be escalated to the most senior person in the organisation: the prime minister.
Critically, at every stage, the safety, wellbeing and interests of the alleged victim must be championed as the first and highest priority.
There is then the question of the alleged act itself, which is of course an extremely serious crime. The victim had the right to make and pursue a police complaint, and the right not to do so. The employer should have ensured that its employee was fully aware of her rights (and fully informed of the facts known to the employer), and was confident of the employer’s unqualified support.
There must be no coercion, explicit or implicit, to remain silent or to act in anyone’s interest apart from the victim’s own.
Finally, if following its investigation the employer’s conclusion is that a serious crime did occur in its workplace (on the balance of probabilities), then it had to consider from the perspective of its over-arching responsibilities what it should do about that.
I do not see how, regardless of the choice exercised by the victim, an employer in that situation could do otherwise than report the matter to the police of its own volition. It’s not something you can just pretend didn’t happen. The obligation is moral.
That is what should have happened in the case of Brittany Higgins.
What did happen was that no steps were taken to ensure her physical and mental wellbeing; her safety was not prioritised or protected; she was bullied into silence; the crime scene, far from being preserved, was washed clean with suspicious haste; the alleged perpetrator was quietly removed; no investigation with any remote level of procedural regularity or integrity was conducted; critical evidence was withheld from the victim; and the whole thing was — evidently — actively covered up.
All of that is derived from what has been revealed so far. There will be more, and worse, to come.
Few institutions handle sexual assault incidents well. Not many would handle them worse than the Morrison government has handled this one.
If you or someone you know is impacted by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.
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Dreadful mob.
scomo to wife “jen how do we spin this one”
morally bankrupt all of them
Michael suggests that Brittany Higgins’ employer “technically” was her minister.The employer in question was, technically, the minister for whom Higgins worked, Defence Minister Linda Reynolds. However, the executive federal government — led by the prime minister and encompassing the ministry, public service and parliamentary staff — should from the perspective of legal responsibility treat itself as a single institution with an absolute duty of care to all who work within it.
I agree there was a broad based duty of care extending to the PM but I question whether the Minister for Defence was technically Brittany’s employer.Of course the Minister had the right to hire and fire, more or less at will, but under the statute, the Minister’s power to engage is exercised “on behalf of the Commonwealth‘.
The position correctly stated would seem to be that MOP staff are special classes of employees of the Commonwealth. De facto, Ministers etc have some powers of a direct employer over their MOP staff; de iure, I believe it to be the case, at least it is strongly arguable, that the Commonwealth is the employer and vicariously responsible for the conduct of its Ministerial minions. I have always taken the sexual harassment case instituted against Speaker Slipper and the Commonwealth, (albeit eventually discontinued against the latter),to have been validly founded upon that legal proposition.
The offical position is stated to be ” The employment of all staff under the MOP(S) Act is also subject to the following Acts:
It’s good there are Acts such as at least 5 relevant ones that you list. It is abominable, however, that the Commonwealth does little to supervise and enforce the Acts. Legislation has higher standing than, say, Royal Commission recommendations. The problem in both is lack of implementation, notably under this government of the day. There are also criminal laws against sexual violence and banking malfeasance (e.g.) But I don’t trust the AFP or the NSW Police to scrutinise and charge where relevant. This is becoming a terrible country.
Technically, my understanding is that the employer is the commonwealth (through whichever dept employs Ministerial staff).
The position reports to the Minister of Defence. It’s a reasonably clear arrangement. The Minister is never the employer, they don’t pay their wages and don’t issues contracts for employment.
Not only was this handled badly from the alleged victim’s point of view but the accused has roamed the corridors of Parliament House freely ever since & possibly perpetrated other incidents.
We wouldn’t know what’s happened since as the unspoken rule is for the women to stay quiet.
No he hasn’t. He was sacked for the breach of security that he was responsible for.
But I believe he is roaming the lobbying halls somewhere, replete with glowing references from Reynold’s department.
Why isn’t this scummy individual being outed and held up to the same scruting Higgins is suffering?
Few institutions handle sexual assault incidents well. True. And sexual assault does differ from sexual harassment.
But we do have an example of a case being well handled. From the few details we have, CJ Susan Kiefel of the High Court seemed to model a suitable response to the complaints of associates and staffers about their sexualised treatment by another judge of the High Court. Perhaps CJ Kiefel could be consulted.