Complainant’s attacks on investigation are disturbing

David O’Byrne has conducted himself properly since being accused of sexual harassment and should be promoted to ensure fairness reigns, argues GREG BARNS.

BARBARA Deegan, a former commissioner of the Commonwealth industrial tribunals from 1996-2014, was an ideal choice for the Tasmanian branch of the ALP to investigate allegations made against David O’Byrne, the now resigned and short-lived leader of the party.

Ms Deegan is forensic, fearlessly independent and now consulting with one of the largest law firms in Australia. The findings she has made in the O’Byrne matter are the fruit of a first-rate process – which is what is disturbing about the attack on the process in this dispute by the complainant, Rachel Midson, who worked with Mr O’Byrne in the union movement and who alleged Mr O’Byrne had kissed her, texted her and then sexually harassed her.

Mr O’Byrne made admissions to some of the conduct, although a careful read of his statement when he stood down as Labor leader last month, shows that he did not, in any way, “change his story” in the Deegan inquiry.

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Ms Deegan found that she “is unable to be satisfied, to the requisite standard [the balance of probabilities] that” Mr O’Byrne “sexually harassed the complainant as defined in the [Labor] policy and therefore does not recommend that a finding to this effect be made against” him.

Importantly, Ms Deegan concluded there was a “flirtatious” and “consensual” atmosphere at relevant times and did not accept Ms Midson’s various allegations that Mr O’Byrne harassed or pressured her in the workplace.

Presumably it is because Ms Midson’s allegations were not upheld by an experienced and independent investigator that she launched two extraordinary attacks on the process and on the outcome.

Rachel Midson, right, and her sister, independent MP for Clark Kristie Johnston. Picture: Nikki Davis-Jones

To put not too fine a point on it, Ms Midson and those supporting her, like her sister the independent MP for Clark Kristie Johnston, acted in a way that many people do when their allegations are not accepted as gospel.

The difference is most people vent privately to their lawyers and advisers.

Ms Midson’s first attack came about 10 days ago when she gave an interview to ABC journalist Emily Baker.

This was before the findings were released.

Ms Midson complained that she felt she was under investigation.

Perhaps she was confusing the fact that the way investigations led by capable people like Ms Deegan work is that the person making allegations is questioned as to the facts they assert are true, and generally as to the whether there is any background or motive to make a complaint. It is not the case that you can make serious allegations against another person and not expect to be rigorously questioned.

Ms Midson’s attack on the process established by the ALP should be taken with a grain of salt. Last week in a media conference she said, “I feel physically sick that this report has found that there was a consensual atmosphere about the interactions between myself and David at the time the conduct occurred,” and that she has “no faith in the investigation or its outcome. This outcome sets a precedent that should send a chill down the spine of every girl and woman in the workplace.”

This is overblown rhetoric and nothing more.

If Ms Deegan had found in her favour, Ms Midson would perhaps be telling the media what a wonderful experience it was and how brilliant Ms Deegan and the ALP had been in giving her a voice.

David O’Byrne made admissions to some of the conduct, although a careful read of his statement shows he did not “change his story” in the inquiry. Picture: Nikki Davis-Jones

What is not overblown is the dangerous signal where the attitude seems to be if you are not believed or there is insufficient evidence to make an adverse finding against someone after a robust independent process, then there is something deeply flawed about the adjudication.

In a society where we supposedly subscribe to the rule of law, procedural fairness demands that allegations are thoroughly investigated and examined, not simply accepted. Is it being suggested we should have show trials?

The person who does deserve accolades from all this is Mr O’Byrne.

He lost his job and could rightly be publicly bitter at the way he has been portrayed by others. But he has rightly, despite the media tempting him, respected Ms Deegan’s process and not delivered a running commentary on the allegations.

O’Byrne ought to be promoted to the front bench if the Tasmanian ALP caucus has any sense of ensuring that fairness and proportion rule the day. But then we are talking about politicians who in recent years have shown scant respect for such important principles.

No doubt this columnist will be accused, as has been in the case in defence of Christian Porter, of looking at the O’Byrne case from a “lawyer’s perspective”.

You bet. That’s because we are trained in bedrock principles and do not succumb to campaigns to jettison such principles.

Not every workplace or organisational investigation is perfect, but those that adhere to the fundamental principle of fairness and which find without fear or favour are exactly what one expects in a civilised society.

Hobart barrister Greg Barns SC is a human rights lawyer and former adviser to state and federal Liberal governments. His latest book is Rise of the Right: The War on Australia’s liberal values (Hardie Grant).