The truth does need to see the light of day. Just don’t hold your breath

By Verona Burgess

Friday February 26, 2021

Brittany Higgins
Former staffer Brittany Higgins interviewed on The Project (Image: Channel 10)

Let’s hope that at least one of the six inquiries spawned by the alleged rape of Brittany Higgins will, this time, yield overdue reform, writes Verona Burgess.

Now that former ministerial staffer Brittany Higgins has formalised her allegation of rape by a colleague to the Australian Federal Police, the government’s problem has become a monster with three heads: criminal, political and institutional.

The details of who inside the beltway (or the “Canberra bubble”) knew and what they did or didn’t do, which may emerge during the four ad hoc inquiries commissioned by an evidently panicked Scott Morrison since the story broke, are hardly likely to prejudice a future trial, except for evidence from eye-witnesses.

But the truth does need to see the light of day. Just don’t hold your breath.

Nor will the Opposition’s enthusiastic hunt for a political scalp (preferably the PM’s) obscure the accountability black hole that is the Members of Parliament (staff) Act 1984.

On October 7 it will be 20 years since the so-called “children overboard” affair, in which Howard government ministers, just before the 2001 election, alleged, wrongly, that asylum seekers had thrown children overboard in order to win safe passage to Australia. Brittany Higgins would have been just five years old.

After the protracted Senate “A Certain Maritime Incident” inquiry, another Senate inquiry was held into the MOPS Act in 2003, as we mentioned last week.

It produced 20 recommendations, many of which never came to pass or did so only temporarily.

Some were, sadly, never going to fly. These included making it compulsory, under certain circumstances, for ministerial advisers (who exist as extensions of their ministers and are not supposed to separately wield executive power) to appear before parliamentary committees.

Others went to such issues as amending the MOPS Act to include a statement of values for all staff and to require the PM to promulgate a code of conduct for ministerial staff.

Neither happened, unfortunately, although in 2008 the Rudd government, under then special minister of state John Faulkner, did develop and promulgate a code of conduct. It was a good code but was never legislated and has languished in subsequent years. It is, however, deficient in one unforeseen respect: there is no explicit reference to duty of care.

One recommendation, No 14, may, if enacted, have had a bearing at least partly on current circumstances – a position of ethics adviser to educate and advise ministerial staff on their responsibilities under the code. “It recommends that the position be either a statutory position under the MOPS Act or a position in the Parliamentary Service.”

The MOPS Act, the Fair Work Act and the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 (which expired nominally on April 19 last year and whose renegotiation was put on hold because of COVID-19) are the three main pieces that apply to parliamentary staffers.

None exactly oozes with compassion or duty of care, let alone provides for mandatory reporting of an alleged sexual or other serious criminal offence.

Clause 62 of the enterprise agreement says the Department of Finance will provide employees with access to a professional counselling service “to assist with work or personal issues through the Employee Assistance Program” and refers to the relevant guideline.

That guideline is hardly an inviting prospect for anyone experiencing the kind of trauma that Ms Higgins evidently suffered, who would need immediate expert care with no bureaucratic barrier.

That is not to say ministers should envisage having an (alleged) rapist on their staff. But the human cost of inadequate protections and deficient accountability is already horribly high.

Ms Higgins has not only evidently suffered a major trauma but has also stepped away from her chosen career. Her partner has had to give up his own job. A senior security officer at Parliament House reportedly left in disgust at the way the matter was handled in 2019. Defence minister Linda Reynolds, in whose office as Defence Industry minister the attack allegedly took place, has been hospitalised and may lose her job. And the alleged perpetrator was stood down from a corporate position where the presumption of innocence was apparently deemed too great a reputational risk.

Various senior ministerial staffers are also now in the spotlight, an absolute no-no. Until Ms Higgins spoke out, most Australians had probably never heard of Scott Morrison’s COS, Dr John Kunkel, let alone seen his photo, despite his decades spent in and around politics. Ditto Morrison’s Principal Private Secretary, Yaron Finkelstein and director of operations, Fiona Brown, who was acting COS in Senator Reynolds’s office at the time of the alleged rape.

As Allan Behm, who served as chief of staff to former Labor minister Greg Combet during the Rudd/Gillard years, wrote in his 2015 book No, minister – so you want to be a chief of staff?: “The principle of ‘unity of command’ means that chiefs of staff should be invisible. They are not (or at least should not be) political players, and their ability to maintain discretion and the confidentiality of the office depends on avoiding the limelight.”  True, unless you’re Peta Credlin working for Tony Abbott, but exceptions do prove the rule.

So far none of Morrison’s peeps have stepped into the library with a revolver but the night is yet young.

The alleged rape of Brittany Higgins has already spawned six inquiries: Former Inspector-General of Intelligence and Security Vivienne Thom’s original inquiry into the security breach; WA Liberal Celia Hammond’s inquiry into the coalition’s workplace culture; Prime Minister and Cabinet deputy secretary Stephanie Foster’s inquiry into what support for staffers is and should be (let’s hope she asks staffers what they really think, but again don’t hold your breath); a cross-party inquiry into Parliament House’s working culture (ditto); PM&C secretary Phil Gaetjens’ inquiry into who knew what in the PMO; and the AFP criminal  investigation.

Let’s hope that at least one of them will, this time, yield overdue reform.

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