Jamie Briggs case: ministerial standards must be reviewed

• JENNIFER ORIEL
• THE AUSTRALIAN 
• JANUARY 5, 2016 12:00AM

Illustration: Eric Lobbecke

The resignation of Jamie Briggs for breaching ministerial standards during a night out in Hong Kong with public servants raises serious questions about the standards and the process for investigating noncompliance.

Malcolm Turnbull signed off on the Statement of Ministerial Standards last year. The statement covers legal guidelines common to management and shareholder groups.

However, it also includes standards related to appropriate ministerial behaviour that lack clarity, appeal to due process and explicit reference to relevant legislation. Such obscure standards provide ample opportunity for abuse of process.

The finding against Briggs is that he breached ministerial standards, but the Prime Minister has not clarified publicly which standards were breached.

Briggs has conceded his behaviour constituted an “error of professional judgment”, but such an ambit admission generally would be deemed insufficient to warrant resignation from a plum political post. The ambiguity has left many questions unanswered, leading to public criticism of Briggs, the consular staff member who complained about him and government handling of allegations.

The investigation into Briggs raises questions about the quality of ministerial standards as well as procedures governing them. On the information made public, the complaint appears to have been classified incorrectly, leading to a disjuncture between proper procedure, investigative processes and natural justice.

According to reports in The Weekend Australian, the consular staff member reported that Briggs had commented on her “piercing” eyes, placed his arm around her and kissed her on the neck. Briggs claims instead that he had told another person in the bar the staff member had “beautiful eyes”, placed his arm around her when posing for a photograph and gave her a goodnight kiss on the cheek.

As with many such allegations, there are no independent witnesses to verify which is the more accurate version of events. In normal professional circumstances, such allegations would be managed under standard sexual harassment procedure. Like any procedure, it can be abused, but it provides greater legal recourse for abuse of process than the ambiguous guidelines for interpersonal behaviour found in the ministerial standards.

Some members of the governance subcommittee with responsibility for assessing the outcome of the investigation into Briggs expressed concern to The Weekend Australian about it.

They believe ministerial standards have been set impossibly high. They are right to be concerned, but the chief problem is not high standards for ministerial behaviour. It is the obscure nature of the standards and the procedure for investigating breaches of them.

I managed complaints procedure in the education sector, writing harassment and discrimination procedures in compliance with federal and state legislation. There are set stages established in good complaints processes to provide transparency and natural justice to both complainants and respondents. The case against Briggs presents problems at the earliest stage because the complainant allegedly chose not to lodge a formal complaint, requesting instead that her concerns be resolved informally by direct communication to him. In such a case, an employer may still choose to take action if they deem the threat of vicarious liability significant enough to warrant it or internal standards have been breached.

Generally speaking, however, such standards must be related explicitly to legislation to give effect to such serious remedies as the public reprimand of an employee and his resignation.

It is unclear why Turnbull and his advisers chose to manage the informal complaint about Briggs under the ministerial standards rather than procedural instruments related explicitly to the relevant legislation. The ministerial standards do not provide clear procedural steps for the classification, management and resolution of complaints about ministerial behaviour related to allegations of unwelcome sexual advances or harassment.

On the information available, the government appears to have handled poorly the allegations about Briggs. However, the apparent mismanagement may be less a consequence of the Turnbull administration in general than the ministerial standards in particular.

Successive Liberal and Labor administrations have sought to redress the problems with ministerial standards and codes of conduct. A 2012 paper on codes of conduct provided analysis of the predominant concerns in Australian and overseas parliaments.

They include unclear parameters for behaviour, a lack of independent oversight in complaints investigations and a limited range of penalties for breaches of ministerial standards. All are relevant to the complaint about Briggs.

The allegations about Briggs may not have been made formally, but they have produced official consequences. The lack of a proper complaints-handling process leaves complainants and ministers in a precarious position.

It is in the interest of both the Liberal and Labor parties to review the ministerial standards or replace them with guidelines for professional behaviour related explicitly to the law.

Jennifer Oriel is a political scientist and commentator.