Lessons for the Prime Minister from the everyday workplace

When should an organisation’s leader commission an independent inquiry into past allegations of serious misconduct by one of her or his senior team, not being dealt with by police?

Even more importantly, how should it be done?  As a one-off, knee-jerk reaction to a single crisis, with all the scandal and defensiveness this involves?  Or, in a way that can contribute to long term stakeholder, investor and employee confidence in the institution’s future?

Far from being rare, this challenge confronts leaders in scores, if not hundreds of Australian organisations – public agencies and private businesses alike – most days of the year.

Now, in response to the Brittany Higgins and Christian Porter allegations – among others – they are confronting the Prime Minister and top leaders of our country.  And not for the first time.

A different type of workplace?

Elected political and ministerial life is unique, as a workplace or industry.  Every other business or organisation is also accountable, but none have the same ultimate accountability in which power holders receive, retain and lose their social licence to operate through periodic, direct elections by the entire community.

Add parliamentary exposure, including under parliamentary privilege, and the level of sustained media scrutiny, and you get a lot of distinctions in how integrity issues should be handled.

However, in fundamental ways, the importance of public trust and the power being wielded – the highest lawmaking and decision-making in the land – only increase the need for parliamentary and ministerial integrity systems to at least match, and preferably surpass, what we accept as healthy and normal for other types of organisations.

So there is a simple answer to the question – should a leader have, and trigger, a mechanism for confidential, independent review of an historical allegation of serious misconduct by a senior officeholder or employee, which, for whatever reason, a police referral cannot resolve?  That answer is often, ‘yes’.

This is true for any organisation where the allegation is serious and credible enough to affect a leader’s judgement regarding a person’s fitness for office, their capacity to command internal respect and fulfil their role, and any actions needed to sustain external stakeholder trust.

What if the allegation is from years before?  In some industries the answer may be that the alleged historical misconduct either was never relevant, or no longer relevant to the employee’s role and standing.  But in other, probably many settings, reaching as good a view as possible on what actually happened may remain important and indeed, may definitely be required.

Imagine a school principal – public or private – presented with a previously unknown and untested allegation that one of their senior teachers committed a sexual assault, at any time in their past, which could not be investigated to a criminal standard, because the alleged victim had since died or refused to proceed with a criminal process.  Would that entitle the principal or the institution’s leaders to simply say “rule of law satisfied”, “I have no further power or responsibility here”?

Quite simply – no.  We would still expect that school principal to refer the matter for independent, albeit non-criminal investigation, in order to be able to assess, to the maximum extent possible, what, if any, action was needed to ensure safety, security and trust in the current organisation. Whatever those actions might be, including a more reliable exculpation.

Have we not learned the wider lessons of one of our most important and substantial public inquiries, the royal commission into institutional responses to child sexual abuse?

The equivalent test for a leader in politics and parliament is naturally different, and unique to the role of an education leader – but it is not that different.

Especially when there’s hard evidence of wider problems of conduct and culture in the federal parliamentary working environment; some current or recent, but others longstanding and even historical.

Is a focus simply on current workplace culture enough?

Thanks to Brittany Higgins, the issues of workplace culture and safety in parliament, especially for women, are now to be addressed by a major independent review by the Sex Discrimination Commissioner, Kate Jenkins. It helps to remember Australia’s federal politics are not alone in being forced to catch up on this – just in the last week, similar issues can be seen from the office of New York Governor Andrew Cuomo, to the South Australian parliament’s receipt of its own wide-ranging sexual harassment report.

But as my colleague Anne Tiernan has written – and is obvious even from the basics of the Higgins complaint – ‘reform needs to go beyond culture’ to the institutional systems behind it.

It is also important to understand how much the federal parliament is struggling, and how much the Prime Minister’s choices are limited, due to the lack of professional systems for dealing not only with gender-based power imbalances but political misconduct and integrity issues, right across the board.

While workplace sexual harassment and sexist culture are a crucial element, the challenge goes much wider. Our recent report Australia’s National Integrity System: The Blueprint for Reform points out the federal parliament is the only one in Australia – and almost the only large workplace left in the country – with no codes of conduct for its key employees (parliamentarians) or effective processes for managing misconduct issues of any kind, among its staff.

There is a ministerial code of conduct (“statement of ministerial standards”) but, infamously, it has no independent investigation mechanism… simply the discretion of the Prime Minister as to when to involve the head of his own department (currently also his own former chief-of-staff).

Unlike anywhere else in the Australian public sector, or any Australian company, there are no comprehensive whistleblower protections for federal parliamentary staff who report serious wrongdoing, of any kind; nor anyone else reporting wrongdoing by a parliamentarian or their staff.

Unless modified, current proposals for a Commonwealth Integrity Commission would also do little to change this, as its jurisdiction would be limited to criminal investigations only for parliamentarians, ministers and around 80% of the public service.  This would leave out inquiries into ‘grey area’ corruption and misconduct issues, often at the heart of corruption risk, public trust and corruption prevention, irrespective of what can be proved in a criminal court.

Here we see shades of the current claims, in response to the Porter allegation, that once the option of criminal investigation is closed, nothing else is either possible, necessary or desirable.  But often – as in this case, but even more so for official misconduct – that claim is just wrong.

This dire situation is not the fault of simply the current Government.  It is a product of history, over a long period of time, involving parties of all persuasions, based on wishful thinking that somehow, alone, our federal parliament did not need stronger integrity systems of this kind.

Lessons for leaders, including the PM

Every organisation trying to move past a scandal – from Rio Tinto to Crown Casino – knows that having a process equipped to deal with some things, but not everything serious and relevant likely to be thrown at it, can breed more mistrust when it’s seen to turn those issues away.

The answer with the Commonwealth Integrity Commission is twofold – a combination of safeguards to ensure independent investigations of non-criminal misconduct are not abused for political purposes, and strengthening the whole parliamentary conduct regime so there are viable options for reliably resolving issues involving politicians, without needing the ‘sledgehammer’ of the CIC unless truly justified.

The answer in respect of parliamentary culture and accountability more generally, including all the current and past sexual and sexist misconduct allegations, is also twofold.

First, the new independent review needs the power, people and resources to thoroughly vet and advise the prime minister and parliament on the knowable facts of all unresolved misconduct claims – current, recent or historical – which right now are so severely affecting public trust in the national parliament, including Cabinet.

The best path would be for historical allegations affecting personal fitness for ministerial office to be included in this scope, for confidential inquiry and response – both because it’s needed to bring political life into line with the basic principles of institutional integrity that should be followed by all leaders, and because the new review is going to attract these allegations anyway, along with witness accounts of more recent in-workplace harassment.

Second, even more importantly, the review can then use this information to inform a holistic response to the current lack of a parliamentary integrity regime. Effective systems for managing conduct and ensuring trust are not piecemeal, dealing only with sexual harassment via a new process over here, while having weaker or inconsistent processes for addressing other abuses of power or resources, from uses of expenses to conflict of interests, elsewhere.

The lesson for the Prime Minister is that this is a chance to put in place a more robust, general code of conduct system covering all the first principles of good conduct relevant to parliamentary and ministerial life – like any other large organisation might have.  So that effective, often confidential but also more reliable and independent mechanisms can be used to handle and prevent allegations.

This broader, “clearing house” approach can better contribute to real reform, not only by providing public confidence that individual allegations have been independently assessed, but helping put in place better processes for preventing and handling misconduct issues of all types.

The ultimate test for any leader, looking to the long term, is what will best earn and retain the trust of key stakeholders – internal and external – on which the sustainability of every organisation relies.  In this case, the fact that the trust of the entire public is at stake, should only sharpen the minds of decision-makers in all types of organisations about the choices they may face.

A J Brown is Professor of Public Policy and Law at Griffith University and a boardmember of Transparency International, globally and in Australia.  His recent Australian Research Council-funded projects have seen him lead Transparency International’s assessment of Australia’s national integrity system (Australia’s National Integrity System: The Blueprint for Reform, November 2020) and the world’s most comprehensive research into whistleblowing in organisations, with support of the Australian Securities & Investments Commission, Commonwealth Ombudsman, Australian Institute of Company Directors and many others (Clean As A Whistle: A Five-Step Guide to Better Whistleblowing Policy and Practice in Business and Government, August 2019).  He was lead editor of the International Handbook on Whistleblowing Research (Edward Elgar, 2014) and a member of the Commonwealth Ministerial Expert Panel on Whistleblowing (2017-2019).

A J is the Convenor of the Griffith Professional course Strategic Approaches to Integrity and Anti-Corruption.