In the House last night there was some extraordinary scenes. They were reminiscent of Muldoon vs Moyle when Muldoon made allegations under parliamentary privilege. To avoid potential defamation I will quote exactly from Hansard:
It started with Chris Bishop asking:
In relation to the Francis Review and the publicly reported comments that have led to an ex gratia payment to a former employee of the Parliamentary Service, when did he find out that what he said was wrong, and who told him what he’d said was wrong, and why, thirdly—to start things off—he then told his lawyers to tell the plaintiff that he intended to plead truth in the defamation claim lodged by the plaintiff? …
So the question that obviously follows from that is if the Speaker knew he’d made a mistake within 24 hours—a number of questions follow from that. Firstly, why he didn’t apologise straight away and admit that he’d made a mistake—because it’s worth recalling this has ended up costing the taxpayer $340,000 and rising, and we need to know why there wasn’t an immediate admission of wrongdoing. Why, when the plaintiff wrote to him, or his lawyers, and said, “I’d like an apology and a retraction and a commitment to not say it again,” that was not met with immediate acceptance. Again bearing in mind he knew immediately or nearly immediately he’d made a mistake, why was that not met with acceptance? Why was that rejected?
Not only was that rejected, the defendant in this case, the Minister, wrote and said, “If the case proceeds, I will plead truth,” which, as any defamation experts watching will know, means, actually, at trial, the defendant will lead evidence to prove that what he said—and in relation to this it’s about rape—was correct and true.
Now it is important to define here what rape is, and what sexual assault is. The Crimes Act defines rape as:
Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis without person B’s consent to the connection
So rape is non consensual penetration of someone’s genitalia by the person’s penis. This is what the former staffer was alleged to have done by The Speaker, and what The Speaker said he would prove is true in court.
The Speaker replied:
I have apologised for a mistake which I made. I shook the man’s hand in September. The paperwork was completed in December. But my mistake doesn’t erase the fact that there were serious allegations from staff members that had to be taken seriously. I have a duty of care to make sure that staff are safe. I believe in taking a victim-centred approach, and I want to be really careful about causing further distress for the three or more women who have suffered serious sexual assaults as a result of working here.
The Speaker has stated as a fact that the former staffer committed serious sexual assault. He doesn’t just say this is alleged. He states it as a fact, under parliamentary privilege.
Now sexual assault is not in the Crimes Act, but sexual violation and indecent assault is. Sexual violation has the same maximum penalty as rape. It is regarded as non consensual penetrative sex which is not rape. So it includes penetration with objects, fingers etc.
Now the former staffer has said that the complaints about him were unwanted hugs. We of course don’t know what the complainants have alleged, but if this is correct then calling that sexual violation is just as defamatory as calling it rape.
Possibly the Speaker meant indecent assault. The Community Law Centre states it as:
If someone intentionally touches your penis, vagina or anus with their fingers or hands, this could be a different crime called “indecent assault”.
The Rape Prevention Trust states:
Indecent Assault covers all other sexual stuff that may not include penetration such as unwanted sexual touching or flashing. Indecent Assault is defined as “the doing on the person of an indecent act that, without the person’s consent, would be an indecent assault of the person”.
Now it is possible an unwanted hug could be viewed as indecent assault, especially depending on where it occurred. It would have to be regarded as sexual touching.
But the Speaker labelled it as serious sexual assault. That suggests not some fleeting unwanted contact, but an indecent assault at the more serious end of the scale.
If the former staffer is correct about the allegations are about unwanted hugs (and of course it might be more than that), then labelling what he did as serious sexual assault is also defamatory, if not done under parliamentary privilege.
That is not to say that unwanted hugs or contact isn’t an issue an employer should take seriously and stop. Those who complained should have an employer who makes them feel safe at work.
The issue is whether it helps to have the employer label it initially as rape and then as serious sexual assault.
Of course the courts should be the finders of fact in this case, not allegations under parliamentary privilege.