Matters Concerning the Minister for Small Business, Innovation and Trade

Matters concerning the Minister for Small Business, Innovation and Trade

Report of the Secretary of the Department of Premier and Cabinet 21 July 2015 1 Introduction

1.1 Background

On 21 May 2015, a Ministerial adviser to the Minister for Small Business, Innovation and Trade, Minister Somyurek (Minister) made a formal complaint to the Office of the Premier about alleged misconduct by the Minister. The complaint alleged inappropriate and threatening behaviour.

On 23 May 2015, the Premier met with the Minister to discuss the complaint. The Minister denied the allegations.

Consistent with the process outlined in the Victorian Ministerial Code of Conduct for Ministers and Parliamentary Secretaries (Code) (see section 4.3 below), on 23 May 2015 the Premier referred the allegations to me for investigation and advice. In particular, the Premier requested that I initiate an inquiry (Inquiry) into the alleged incidents of inappropriate behaviour and that the Inquiry:

 examine the operation of the Office of the Minister, including its management practices, capability and adherence to the Victorian public sector values; and

 identify, investigate and make findings of fact about the alleged incidents and determine whether there are any matters appropriate for referral to any other authorities.

The Premier stood the Minister aside from his position pending the outcome of the Inquiry.

1.2 The Inquiry

To inform the Inquiry, I retained:

 Mr Peter Allen to examine the operation of the Office of the Minister, including its management practices, capability and adherence to the Victorian public sector values (Review). The Review terms of reference relevantly provided as follows:

“The Secretary has engaged Mr Allen to conduct a capability review of the Office in accordance with the Australian Public Service methodology.

The review will consider, and identify any constraints arising from, the Office’s:

(a) management practices;

(b) capability; and

 His Honour Judge Michael Strong to undertake an investigation into the alleged incidents of inappropriate behaviour and determine whether there are any matters appropriate for referral to other Victorian authorities (Investigation). The Investigation terms of reference relevantly provided as follows:

“The Secretary has engaged [Judge] Strong to:

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 2

(a) identify, investigate, and make findings of fact in relation to, any allegations by officers employed in the Minister’s Office of conduct by the Minister, occurring since February 2015 [i.e. until 20 May 2015], that has adversely affected or could adversely affect the health, safety or well‐being of such dofficers; an

(b) advise the Secretary as to whether the facts as established are sufficient to warrant the referral of any matter to an appropriate authority.”

Mr Allen and Judge Strong were also required to adhere to the following principles in conducting the Inquiry:

 any findings of fact should be made on the balance of probabilities, in the sense explained by the majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 (see section 1.3 below);

 procedural fairness should be afforded to all parties; and

 the process should be conducted confidentially.

The process could otherwise be conducted as considered appropriate by Mr Allen and Judge Strong.

The full Terms of Reference for the Investigation and Review are provided at Attachment A.

1.3 Standard of proof for the Investigation and the Review

The Investigation and Review were asked to make findings by reference to the civil standard of probabilities.

In civil disputes in Australia, including disputes between employers and employees, judges are required to make findings of fact on the balance of probabilities.

The civil standard applies even if a dispute requires the court to make findings about whether allegations of criminal conduct or fraud are proved. Reflecting the conventional perception that members of society do not ordinarily engage in fraudulent or criminal conduct, the High Court confirmed in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd that, in these cases, strong evidence is required to establish facts relating to criminal conduct or fraud in civil litigation.

Judge Strong explained that the way he had applied Neat Holdings was that:

“… the strength of the evidence necessary to establish a fact … one th balance of probabilities may vary according to the gravity of the conduct alleged and the possible consequences for an individual of an adverse finding. … I have … proceeded on the assumption that an aggregation of adverse findings might adversely affect the Minister’s ministerial career and reputation. I have therefore approached any possible findings adverse to the Minister with the principle stated by the High Court firmly in mind.”

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 3

2 Overview of the Review

The Report prepared by Mr Allen is at Attachment B.

2.1 Context

Using the Australian Public Service Commission’s Capability Review methodology, Mr Allen’s Review focused on the Ministerial Office’s capability and performance, including areas of strength, areas assessed as ‘work in progress’ requiring further attention and development, and areas of serious concern requiring priority attention. The Review provides important context to the Inquiry and ensures that the Premier has all relevant material before him when making a determination about how to respond to the allegations made against the Minister.

2.2 Process and methodology

The methodology adopted by the Review involved the adaptation and application of the performance review framework developed by the Australian Public Service Commission and the Victorian Public Sector Values published by the Victorian Public Sector Commission. Adaptation of the performance review framework involved disapplying the value of “impartiality”, which does not apply in a Ministerial Office context.

Mr Allen undertook 15 interviews with the Minister, staff working in the Minister’s office, relevant senior officers employed in the Department of Economic Development, Jobs, Transport and Resources, advisers in other Ministers’ offices and individuals involved in establishing and supporting Ministerial offices. Staff working in the Minister’s office were asked to assess how the Office was performing against eleven capabilities, and the Ministers wa asked to comment on the assessment that those staff had made.

The Review also undertook research and analysis into the operations of Ministerial offices in Australia.

Copies of the draft report were provided to me, the Minister and the Chief of Staff for comment before Mr Allen finalised the Review report.

2.3 Summary of Review findings

The Review found that while the Office was relatively new with comparatively inexperienced staff, it operated in a very professional manner. Although individuals within the Office had experience working in national or State/Territory political offices, none had previous Victorian Government experience. There was ax ofmi experiences and capabilities within the team, with the Office being on a ‘steep learning curve’.

The Review’s dominant theme relating to the Office’s capability and performance was a positive assessment of professional dealings with and performance from the Minister, Ministerial advisers and Office as a whole. Senior department officials in regular contact with the Minister and his Office were “without exception” positive in their assessment of the performance of the Minister’s Office and provided an overall assessment that the Minister was delivering envisaged outcomes, with the requisite advice and support from his Office.

Particular strengths identified by the Review include:

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 4

 its capability to identify and focus on delivery of the Government’s and the Minister’s priorities;

 the Office having delivery plans in place consistent with the Minister’s and the Government’s strategy;

 a unifying culture had been established in the Office that promotes energy, enthusiasm and pride; and

 the Office includes role models that act with integrity, confidence and self‐awareness and a desire to achieve results.

A number of areas were assessed as ‘work in progress’, requiring further attention and development, including:

 the Office’s capability to deliver the Minister’s and whole of government objectives;

 articulating and communicating a strategy across the Office to deliver the Government’s policy commitments in relation to small business, innovation and trade;

 clarifying within the Office what success looks like and establishing benchmarks of successful achievement;

 strengthening the Office’s capability to work across government to deliver priority policy commitments; and

 building a shared commitment within the Office to continuous improvement, effective change management and overcoming resistance.

The Review identified two areas as requiring “priority attention”:

 clarification of roles and responsibilities within the Office and between the Office and the Minister, and developing procedures and mechanisms to address performance problems in the Office; and

 developing a transparent and consistent approach to performance management within the Office, alongside a capability to identify and nurture talent.

The Review noted that the Minister “broadly agreed with the overall assessment by the staff of the capability of the Office.”

The Review also identified that:

 staff in the Office indicated a desire to clarify the interrelationship, responsibilities and boundaries of roles between the Minister and the Office staff, and between staff, to minimise overlap in responsibilities and create a basis for managing performance;

 no long‐term performance management processes or schemes had been embedded but that, given that the Office was relatively new and experienced, this was “not unusual … at this early stage in its life”.

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 5

A specific challenge for the Office was unresolved: the Office’s ability to support the Minister effectively by delivering information required by him in his preferred technological format to enable him to respond to Parliamentary matters.

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 6 3 Overview of the Investigation

The Report prepared by Judge Strong is at Attachment C.

3.1 Context

Judge Strong’s Investigation specifically focused on a complaint made to the Premier’s Office on 21 May 2015. In particular, the Investigation was directed at making findings of fact about any allegations by Ministerial advisers employed in the Minister’s Office of conduct by the Minister since February 2015 that could adversely affect their health, safety or well‐being. The Investigation process is explained in section 3.2.

In written statements provided to the Investigation, the Chief of Staff, Ms Dimity Paul, and a second Ministerial adviser, Mr Xavier Smith, alleged that the Minister had engaged in a pattern of conduct involving threatening and inappropriate conduct over the four months falling within the period relevant to the Investigation terms of reference (February to May 2015). The following alleged incidents are of particular note:

 13 February 2015 – an alleged incident involving physical contact following a meeting with the Department of Economic Development, Jobs, Training and Resources;

 27 February 2015 – alleged conduct by the Minister arising in the context of the Minister’s preparation for Question Time;

 20 May 2015 – alleged conduct by the Minister arising in the context of the Minister’s preparation for his appearance before the Public Accounts and Estimates Committee on 21 May 2015; and

 20 May 2015 – purported employment termination by the Minister of Mr Smith.

The events of 20 May were described by the Chief of Staff as the catalyst for the complaint to the Premier’s Office on 21 May 2015.

3.2 Investigation process and methodology

Judge Strong notified the Minister, and Ms Paul and Mr Smith (the two likely complainants) that his Investigation would involve the following process:

 any complainants would provide written statements;

 the Minister would provide written statements;

 the complainants would provide statements in reply to the Minister’s statements;

 interviews of the complainants and, if required, any of their witnesses would occur;

 an interview of the Minister and, if required, any of his witnesses would occur;

 any draft adverse findings would be provided to the parties;

 a response to the draft adverse findings would be provided to Judge Strong; and

 Judge Strong would provide his final report to me.

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 7 Written statements from the complainants were required in the first instance to establish with clarity the details of any allegations by officers employed in the Minister’s Office and to confirm who would make allegations. It was initially contemplated that witnesses to the alleged incidents would provide written statements through the Minister or one of the complainants.

During the Investigation, Judge Strong made adjustments to the Investigation methodology in the interests of fairness. It was open to Judge Strong to make these adjustments, because the Terms of Reference allowed Judge Strong to conduct the Investigation as he considered appropriate.

The changes Judge Strong made were to:

 establish a process for witnesses to provide evidence to the Investigation directly, rather than through one of the complainants or the Minister; and

 invite the parties to the issues in dispute to nominate witnesses who may be appropriate to interview.

Following these adjustments, Judge Strong received four written statements from witnesses who preferred to provide evidence independently. Judge Strong also conducted interviews with four witnesses nominated by the Chief of Staff’s lawyers. I am advised that the Minister’s and Mr Smith’s lawyers were offered the opportunity to nominate their own witnesses for interview and did not do so.

The approach taken by the complainants and the Minister, and Judge Strong’s adjustments to the Investigation process delayed the Investigation timeline.

To ensure natural justice was afforded, on 9 July 2015 much of the draft report was provided to the Minister’s legal representatives. The Minister was asked to provide any response by 14 July 2015. Given its draft findings, it was not necessary to provide the draft report to any other person. On 14 July, Judge Strong received a 12 page response as a result of which he clarified several of his findings and added to his reasons.

3.3 Investigation findings

The investigation made the following findings:

“For much of the period covered by the Terms of Reference the Minister’s conduct was appropriate and professional having regard to the pressure of his Parliamentary and portfolio responsibilities and is not shown to have adversely affected the safety, health or well‐being of members of his staff.

On 13 February 2015 the Minister, in his Ministerial office, having been embarrassed by a comment made by his Chief of Staff, Dimity Paul, at a meeting attended by [a senior department official], took Ms Paul by the arm to prevent her from leaving his office then took her chin in his hand and shook it gently from side to side as a form of admonition whilst telling Ms Paul ‘calm down and put a filter on it’, intending to convey that she was sometimes inappropriately outspoken. This conduct diminished, to some degree, Ms Paul’s confidence in her personal safety whilst in the Minister’s presence, caused her distress and adversely affected her sense of well‐being. This was an isolated incident

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 8 inasmuch as there was no other known physical contact by the Minister with Ms Paul or any other staff member of an inappropriate kind.

There were instances of conduct by the Minister, not involving physical contact, that also diminished, to a degree, Ms Paul’s confidence in her personal safety whilst in the Minister’s presence, caused her distress and adversely affected her sense of well‐being, namely aggressive language on 27 February 2015 and aggressive language and finger pointing on 20 May 2015.

There was additional conduct of the Minister that caused Ms Paul distress and adversely affected her sense of well ‐being, namely instances of aggressive and sometimes demeaning language (for example, allegations of incompetence) by the Minister directed at Ms Paul. Such conduct was occasional rather than systematic and was invariably associated with the Minister having to perform publicly e.g. in Parliament.

Ms Paul

In the absence of a formal medical diagnosis and prognosis, it is not possible for me to further describe Ms Paul’s condition .

There was no conduct of the Minister that adversely affected or could adversely affect the physical safety of Mr Xavier Smith.

There was conduct by the Minister that adversely affected the health and well‐being of Mr Smith. Such conduct falls into two categories:

 demands, pressure and expectations of the kind one would ordinarily and reasonably expect in a Ministerial office. This conduct adversely affected the health and sense of well‐being of Mr Smith . This was acknowledged by the Minister, who was mostly very supportive; and

 several instances of verbally aggressive comments by the Minister directed at Mr Smith (fewer in number than in the case of Ms Paul). It is probable these

diminished his sense of well‐being.

At 9.06pm on 20 May 2015 Mr Smith was summarily dismissed by the Minister. The principal reason for his dismissal was that, earlier that day, Mr Smith had intervened on behalf of Ms Paul after the Minister had spoken to her aggressively. The intervention by Mr Smith occurred in the Minister’s office, with only the Minister and Mr Smith present, and involved no discourtesy by Mr Smith.

. I am satisfied that the isolated verbally aggressive language by the Minister directed at Mr Smith

diminished his sense of well‐being. He is concerned about his reputation, employment situation and future,

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 9 particularly having regard to his summary dismissal by the Minister. He is concerned about media attention associated with this Inquiry. In the absence of a formal medical diagnosis and prognosis, it is not possible for me to further describe Mr Smith’s condition . Likewise, in the absence of medical evidence, I cannot say to what extent the conduct of the Minister in the second category identified [above] has aggravated Mr Smith’s condition.”

Judge Strong noted that there was an “appreciable risk that publication of [his] Report … would .

3.4 Referral to an appropriate authority

The Terms of Reference asked Judge Strong to advise whether the facts as established warrant referral of any matter to an appropriate authority.

Judge Strong interpreted this as requiring him to form a view about whether referral would be appropriate in the circumstances, and considered the following three options:

 referral to the police for investigation and possible prosecution for common law assault in regard to the face touching incident on 13 February involving Ms Paul;

 referral to the police for investigation and possible prosecution under “Brodie’s Law” (i.e. the anti‐bullying provisions in section 21A of the Crimes Act 1958); and

 referral to the Victorian WorkCover Authority for investigation and possible prosecution under the Occupational Health and Safety Act 2004 (OH&S Act).

Ms Paul and Mr Smith both indicated to Judge Strong that they did not wish to participate in any additional investigative or curial processes or make a formal complaint to Victoria Police. Judge Strong contrasted their views against the possible public interest benefits of referring his findings to an authority. In all the circumstances, and in light of the possible adverse effects on Ms Paul’s and Mr Smith’s health, he concluded that “the facts as established are not sufficient to warrant the referral of any matter to an appropriate authority”.

Judge Strong noted in his report that:

“The incidents described by the complainants are not of a level of seriousness that calls for referral to the [Victorian WorkCover Authority] as a matter of course. In my view, referral is not warranted in the absence of an apparent breach of the OH&S Act. There is no apparent breach”.

This statement should not be interpreted as meaning that the incidents Judge Strong found to have occurred were not serious or do not have serious consequences. In forming his conclusion about referral to the WorkCover Authority, Judge Strong noted that deaths or serious injuries at workplaces should, with rare exceptions, be formally investigated under the OH&S Act as a matter of course. However, for less serious injuries where there is no apparent breach of the OH&S Act, Judge Strong indicated that he did not see the need to refer the matter to the Victorian WorkCover Authority. Further, neither complainant sought a WorkCover Authority investigation and the evidence supported the view that appropriate systems were in place and management actions were taken by the Premier’s Office.

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 10 In his concluding remarks, Judge Strong emphasised the importance of vigilance concerning the welfare of Ministerial officers, who he observed work under considerable pressure, particularly when Parliament is sitting.

3.5 The Minister’s natural justice response and Judge Strong’s reply

The Minister’s response to Judge Strong’s draft findings is at Attachment D.

Judge Strong indicated that he clarified several of his findings and added to his reasons following the Minister’s response. Judge Strong’s comments on specific submissions made in the Minister’s response are at Attachment E.

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 11 4 The standards required of Ministers

4.1 Premier’s ability to require Ministerial resignation or to effect dismissal

Ministers play a unique role in Westminster systems of government: they are ultimately responsible to Parliament for their conduct, collectively responsible for government decisions, and individually responsible for their performance and personal conduct. Individual ministerial responsibility relates to both personal propriety and professional conduct. Because of their public profile and influence on society, a high standard of personal and professional conduct is expected of Ministers.

Government and Cabinet are unlikely to function effectively unless the Premier has, and maintains, personal confidence and trust in his Ministers’ conduct and judgement. When the Premier loses that confidence and trust in a Minister, the Premier, as First Minister has an overriding ability to require Ministerial resignation. If asked to do so, a Minister will typically resign of his or her own accord.

If the Minister does not resign when they are asked, the Premier may then effect a Minister’s dismissal in his discretion. In Victoria, the Constitution Act gives the Premier the exclusive legal power to recommend that the Governor dismiss a Minister, and the Governor, by convention, will act on the Premier’s advice.

Because the Premier has the authority to ask for the Minister’s resignation or to effect a Minister’s dismissal if resignation is not forthcoming, the Premier may alternatively decide to apply other sanctions as a condition of a Minister’s continuing appointment.

The Premier’s views are the key factor in determining whether resignation or dismissal, or the imposition of some other sanction, is required when a Minister’s conduct is called into question. Key factors relevant to the Premier’s decision making include:

 Expected standards of Ministerial behaviour in the particular context (e.g. in relation to workplace conduct).

 The extent to which the confidence and trust placed in the Minister by the Premier, other members of Cabinet and the public (or any one of them) has been eroded.

4.2 Expected standards of Ministerial behaviour

As noted above, the Premier’s views about expected Ministerial standards (in this case, in relation to workplace conduct and Ministerial integrity) are a key factor in determining whether resignation or dismissal is required.

The Premier’s public statements both reflect and inform the prevailing Victorian standards relating to workplace behaviours and Ministerial conduct. Key statements indicating the Premier’s expectations include the following:

 “for the benefit of the Leader of the Opposition and all members of this house, that each of us as members of Parliament first and foremost, and those of us who are fortunate enough to be given the great gift of serving with a commission from the Governor, all need to uphold the highest standards. That is what every member of this Parliament

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 12 should do, and that is what every member of this Government will do” (17 March 2015, Legislative Assembly).

 “every single Victorian should feel safe at work” (23 May, press conference); and

 “as a Government we have set the standard on these issues and, be in no doubt, every member of my team will meet those standards” (23 May, press conference).

When determining the expected standard of Ministerial workplace conduct it is also relevant to have regard to the Australian legal framework, which establishes the Parliament’s (and through it, the community’s) minimum expectations. Under this framework:

 employees are entitled to work in safe environments in which they are protected from physical and mental harm; and

 in assessing whether physical or mental harm has occurred, it is not relevant that an employee is particularly vulnerable because of an underlying condition or vulnerability – the framework protects employees who suffer harm, even if they are more vulnerable than others.

Consideration of the appropriateness of a Minister’s conduct in the workplace also requires the Premier to consider a range of matters similar to those applied by an employer when an employee commits misconduct. For example, the Premier should consider the seriousness of the misconduct, whether the misconduct was an isolated incident or part of a broader pattern of behaviour, and the broader context in which the misconduct occurred.

4.3 The Code of Conduct for Ministers and Parliamentary Secretaries

(a) Background

Reflecting the Premier’s role as the leader of Government and his ability to appoint and dismiss Ministers in his absolute discretion, it is the Premier’s right to set guidelines, which usually take the form of a Code of Conduct, about the standard of behaviour he expects from his Ministers. The content of the guidelines is established in the Premier’s discretion.

Where they exist, they provide general guidance to other Ministers about when and how the Premier will hold individual Ministers accountable for their actions. However:

 Premiers’ guidelines are not exhaustive descriptions of expectations, and action against a Minister may be warranted in other circumstances. They do not prevent the Premier from taking action (including requiring a Minister to resign or effecting the Minister’s dismissal) in other circumstances.

 Guidelines can influence (but do not determine) the content or operation of any associated constitutional conventions, including the conventions relating to collective and individual Ministerial responsibility.

The guidelines that currently apply are set out in the Code, which was issued by former Premier Baillieu in February 2012 (Attachment F).

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 13 The Code was not widely disseminated publicly or within Government after the 2014 State election. Nevertheless the Premier confirmed the Code’s continued application in Victoria in Parliament in mid‐March 2015. On 17 March 2015, the Premier stated in the Legislative Assembly, in response to a question from the Leader of the Opposition regarding whether the Government has a Ministerial Code of Conduct, that “Arrangements around probity and standards have not changed from the previous government to this one”. In these circumstances, the Code is also relevant to determining the Premier’s views about appropriate Ministerial conduct.

(b) Standards established by the Code

The Code provides guidance on the high standard of workplace behaviour the Premier expects from his Ministers. Under clause 2.2(iii) of the Code, Ministers in the carrying out of their duties, “must accept accountability for the exercise of the powers and functions of their office – that is, to ensure that their conduct, representations and decisions … are consistent with the particular responsibilities of their office”.

The Premier’s views about the expected standard of Ministerial conduct are a key consideration in determining whether the Minister’s conduct is inconsistent with the responsibilities of his office. The Premier may require a Minister to resign if he is satisfied that a Minister has breached or failed to comply with the Code in a substantive and material manner (clause 9.2).

Under the Code:

 it is for the Premier to decide whether a Minister or Parliamentary Secretary becomes the subject of an official investigation of alleged illegal or improper conduct (clause 9.1);

 Ministers will be required to stand aside in circumstances including where the Premier regards their conduct as having constituted a breach of the Code on its face, and may be required to resign if the Premier is satisfied that they have breached or failed to comply with the Code in a substantive and material manner (clause 9.2); and

 where a genuine allegation involving improper conduct of a significant kind, including a breach of the Code, is made against a Minister, the Premier may refer the matter for investigation and advice. Advice received may be made public by the Premier (clause 9.3).

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 14 5 Has the Minister met the standards required of him?

A number of specific factors are relevant to this Inquiry.

5.1 Expected standard of conduct – treatment of advisers

A critical part of a Minister’s duties is having the ability to effectively and appropriately manage staff within his or her Office, which underpins a Minister’s ability to acquit their portfolio responsibilities. Consistent with an employer’s legal obligations, and having regard to the Premier’s public statements (see section 4.2 above), the Premier’s clear expectation is that Ministers will create and promote working environments in which employees, including Ministerial advisers, do not suffer mental or physical harm.

The Investigation’s findings indicate that, for much of the period from February to May 2015, the Minister’s conduct was appropriate and professional having regard to the pressure of his Parliamentary and portfolio responsibilities, consistent with this standard. Judge Strong also found that, in the context of particular issues relating to Mr Smith, the Minister had been “mostly very supportive”.

However, while Judge Strong concluded that no matters should be referred to a Victorian authority (see section 3.4 above), he found that the Minister’s conduct:

 on one occasion, involved physical contact with Ms Paul which “diminished, to some degree, Ms Paul’s confidence in her personal safety whilst in the Minister’s presence, caused her distress and adversely affected her sense of well‐being”;

 on two other occasions diminished “to some degree” Ms Paul’s confidence in her personal safety in the Minister’s presence, caused her distress and adversely affected her sense of well‐being;

 involved other “occasional rather than systematic” conduct that caused Ms Paul distress and adversely affected her sense of well‐being, and which was “invariably associated with the Minister having to perform publicly”; and

 included “several instances” of verbally aggressive comments directed at Mr Smith (but “fewer in number” than involving Ms Paul), which it is “probable”

diminished his sense of well‐being.

Judge Strong’s findings about Mr Smith’s dismissal are also relevant in this context (noting that the Minister did not have formal legal authority to terminate Mr Smith’s employment). The Minister asserted to Judge Strong that Mr Smith had been “dismissed” because of his performance. Conversely, Judge Strong’s findings about the incident on 20 May indicate that Mr Smith’s dismissal resulted from him intervening on Ms Paul’s behalf:

“I do not accept the Minister’s assertion that performance issues were the sole reason for Mr Smith’s dismissal. … I accept [these] concerns … played some part in the Minister’s decision … but I am far from convinced it was the main reason. The true reason lies in Mr Smith’s account of what had occurred in the Minister’s office earlier that day. Whether it was wise for Mr Smith to intervene on his manager’s behalf is perhaps another issue, but intervene he did, and it cost him his job. Of that I am comfortably satisfied.”

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 15 In assessing the Minister’s conduct, it is also relevant to have regard to the following mitigating factors:

 There is nothing to indicate that the Minister has a history of workplace conduct of the type found by Judge Strong; rather, Judge Strong’s finding appears to be that this was uncharacteristic behaviour for the Minister.

 Judge Strong observed that for much of the period covered by the terms of reference, the Minister’s conduct was “appropriate and professional” having regard to the pressure of his Parliamentary and portfolio responsibilities. Judge Strong also noted that, in his dealings with a member of his Office who had been suffering from anxiety issues, there was “no suggestion that the Minister was other than sympathetic, concerned and supportive”.

 Senior department officials in regular contact with the Minister and his Office were “without exception” positive in their assessment of the performance of the Minister’s Office. The Minister has a good relationship with the Department of Economic Development, Jobs, Transport and Resources, and has “very professional” interactions with senior department officials, who assess him as delivering the envisaged outcomes from the Government’s policy commitments.

5.2 Expected standard of conduct – confidence and trust placed in the Minister

As noted above, a key consideration for the Premier is the extent to which the confidence and trust placed in the Minister by him, other members of Cabinet and the public (or any one of them) has been eroded.

The evidence provided by the Minister to the Investigation was found to include false denials and in a number of respects was not preferred to the evidence provided by the complainants. Judge Strong noted that while, at interview, the Minister was “calm, pleasant, articulate and responsive. My assessment of his evidence on critical issues was, however, unfavourable. He has denied too much. It is difficult to give an explanation for an event you denied ever happened”. Further:

 In relation to evidence that Ms Paul had told two third parties about the alleged incident of 13 February 2015, the Minister asserted that Ms Paul “may have been trying (in effect) to set him up – even as long ago as March – by fabricating a story she could then use to her advantage”. Judge Strong concluded that this “is implausible in my view” and that “the Minister, realising how inappropriate it was for him to deliver any form of physical admonition to an employee, has falsely denied that anything of the kind occurred”.

In particular, the Minister’s evidence was that:

“At no time did I make physical contact with her. At no point did I grab Ms Paul by the arm or take her by the chin and shake her chin. Those accusations are false”.

Judge Strong found that:

“I am satisfied [Ms Paul’s account of this incident] is not a fabrication and that there was, indeed, an incident of the kind she alleges, namely a touching of her face coupled with an admonition and caution.”

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 16  In relation to evidence relating to the alleged incident on 27 February 2015, Judge Strong stated:

“I reject the Minister’s contention that his exchange with Ms Paul that evening was benign… Even if the exchange between Ms Paul and the Minister was not of the exact character described by Ms Paul, I am satisfied her version is likely to be much closer to the truth than the Minister’s”.

 In relation to the alleged incident on 20 May 2015, Judge Strong’s report stated:

“Once these findings are made the Minister’s credibility in relation to the entire incident is severely eroded. I am satisfied that the accounts of the events that day given by Ms Paul, Mr Smith and the witnesses who support their accounts are substantially more accurate than the accounts of the Minister and witnesses who tend to support the Minister’s account”.

In contrast, Judge Strong was “satisfied that the evidence of Ms Paul and Mr Smith on critical issues was far more reliable than the evidence of the Minister”. While the Minister contended that their evidence was “not merely mistaken or exaggerated but largely fabricated”, Judge Strong was “comfortably satisfied this is not so”.

Judge Strong also made the following key findings about Ms Paul’s and Mr Smith’s credibility:

 There was “occasional conscious exaggeration in some of” Ms Paul’s evidence: she was reluctant to make concessions favourable to the Minister and, when given a choice about words that had broadly the same import, would generally choose the more critical option of the Minister.

 There was an “element of unconscious exaggeration” to Mr Smith’s evidence, consistent with him being an enthusiastic advocate in his own cause.

It is to be expected that parties to the Investigation would argue energetically for their own cause. However, there is a clear difference between vigorous advocacy and falsely denying that events occurred.

No relevant mitigating factors have been identified.

5.3 Consequences of the conduct

Judge Strong found that the Minister’s conduct caused Ms Paul and Mr Smith distress and adversely affected their sense of well‐being.

In the absence of expert medical evidence, it was not possible for Judge Strong to make findings about their medical conditions .

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 17

6 Inquiry outcomes

6.1 Conclusions from the Review

The Review found that while the Minister’s Office was relatively new with comparatively inexperienced staff, it operated in a very professional manner. The dominant theme relating to the Office’s capability and performance was a positive assessment of professional dealings with and performance from the Minister, Ministerial advisers and Office as a whole. The Minister was delivering envisaged outcomes from his portfolios, with the requisite advice and support from his Office.

There are also some areas of development identified for the Office. Addressing these issues will improve the Office’s performance and its capacity to support the Minister in delivering the Government’s priorities.

On the basis of these findings, I recommend that:

(a) the two areas identified by the Review as requiring “priority attention” should be immediately addressed. Assistance to the Premier’s Office can be provided as necessary by the Department of Premier and Cabinet’s People, Culture and Operations Group; and

(b) because the Review has identified development areas that will improve the Office’s capacity and capability to deliver the Government’s priorities, the capability review process adopted in the Review should be applied over time to all Victorian Ministerial Offices as part of a process of continuous improvement.

6.2 Conclusions from the Investigation

(a) Treatment of advisers

On the basis of the Investigation’s findings, it is open for the Premier to conclude that the Minister’s treatment of his advisers in the workplace fell short of the standards expected of him in the workplace.

This conclusion is open to the Premier because of Judge Strong’s findings that the Minister:

 on one occasion, engaged in physical contact with Ms Paul which diminished, to some degree, Ms Paul’s confidence in her personal safety whilst in the Minister’s presence, caused her distress and adversely affected her sense of well‐being;

 on two other occasions diminished “to some degree” Ms Paul’s confidence in her personal safety in the Minister’s presence, caused her distress and anxiety, and adversely affected her sense of well‐being;

 engaged in other “occasional rather than systematic” conduct that caused Ms Paul distress and adversely affected her sense of well‐being;

 engaged in “several instances” of verbally aggressive comments directed at Mr Smith (but “fewer in number” than involving Ms Paul), which it is “probable”

diminished his sense of well‐being; and

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 18  purported to dismiss Mr Smith for the main reason that he had intervened on Ms Paul’s behalf.

It is not necessary for Judge Strong to have concluded that the facts warrant referral to an appropriate authority to form this view: it is a matter for the Premier to determine the standards expected of his Minister.

The gravity of the Minister’s conduct towards his advisers in the workplace should be considered as being more serious than if only a single, isolated incident of this conduct had been found.

(b) Confidence and trust placed in the Minister

It is also open for the Premier to conclude that the confidence and trust he has placed in the Minister has been eroded on the basis of the Investigation’s findings that the Minister made at least one false denial and his evidence had been assessed “generally unfavourabl[y]”. Notably, the Minister’s credibility was found to be “severely eroded” in relation to the a critical incident on 20 May. These findings warrant consideration by the Premier of whether he can continue to entrust the Minister with the responsibilities of executive office.

The possible sanctions open to the Premier, ranging from the most to the least serious, includes:

 asking the Minister to resign, or effecting his dismissal if resignation is not forthcoming, without reappointment;

 demotion, alongside either (1) reappointment of the Minister without portfolio (e.g. an “Assistant Minister”), or (2) appointment of the Minister in another leadership role with no Executive Government authority (e.g. as a Parliamentary Secretary);

 the Minister continuing in their current role, with enhanced performance management provided by a more Senior Minister or the Premier; or

 the Minister being reprimanded and continuing in their current role, without change.

As a condition to a continuing leadership role, the Premier coulde req Ministeruire th to undertake relevant training or counselling (such as stress management training), or provide an apology.

If the Premier determines that the Minister should continue to play a leadership role within the Government, a shift to a Parliamentary Secretary role (which does not have Executive Government authority and does not entail formal management responsibility for direct reports) would substantially address concerns about the Minister’s treatment of advisers in the workplace. However, if the Premier concludes that there has been a breakdown in confidence and trust, a continuing role in the current Ministry or as a Parliamentary Secretary would need to be carefully considered.

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 19 Given the subjective nature of the Premier’s decision, it is not appropriate for me to recommend the precise sanction that should be applied to the Minister. That is a matter for the Premier to determine in his discretion having formed his own view about what is appropriate and proportionate in all the circumstances. However, I consider that it is open for the Premier to conclude that a serious sanction is warranted in the circumstances, having regard to the conclusions set out in section 6.2(a) and 6.2(b) above.

Chris Eccles Secretary

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 20

Attachments

Att Description A Terms of reference for the Investigation and Review B Report to the Secretary, DPC from Mr Peter Allen C Report to the Secretary, DPC from Judge Michael Strong D Minister’s response to Judge Strong’s draft findings E Judge Strong’s comments on specific submissions made in the Minister’s response F Victorian Code of Conduct for Ministers and Parliamentary Secretaries

Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 21 Attachment A Terms of reference for the Investigation and Review Inquiry into matters concerning the Office of the Minister for Small Business, Innovation and Trade — Terms of Reference Background 1. On 21 May 2015, the Premier’s Office received a complaint from an officer employed in the Office of the Minister for Small Business, Innovation and Trade, Adem Somyurek (“Minister”). The complaint alleged inappropriate and threatening behaviour by the Minister. 2. On 23 May 2015, the Premier met with the Minister to discuss the complaint. The Minister denies the allegations. 3. The Premier has since announced that an independent inquiry would be conducted by the Secretary of the Department of Premier and Cabinet (“Secretary”), and that he has stood the Minister down pending the outcome of the inquiry. 4. To inform his inquiry, the Secretary has engaged Mr Michael Strong and Mr Peter Allen to report to him on the following matters concerning the conduct of the Minister and the operation of his Ministerial Office (“Office”). Terms of Reference Part A – Investigation into Conduct of the Minister 5. The Secretary has engaged Mr Strong to: a) identify, investigate, and make findings of fact in relation to, any allegations by officers employed in the Minister’s Office of conduct by the Minister, occurring since February 2015, that has adversely affected or could adversely affect the health, safety or well-being of such officers; and b) advise the Secretary as to whether the facts as established are sufficient to warrant the referral of any matter to an appropriate authority. Part B – Capability Review of the Office 6. The Secretary has engaged Mr Allen to conduct a capability review of the Office in accordance with the Australian Public Service methodology. 7. The review will consider, and identify any constraints arising from, the Office’s: a) management practices; b) capability; and c) adherence to values consistent with the Public Sector Values. Process 8. In meeting these terms of reference, Mr Strong and Mr Allen must: a) make any findings of fact on the balance of probabilities, in the sense explained by the majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; b) ensure that procedural fairness is accorded to all parties; and c) ensure that the process is conducted confidentially. 9. The process may otherwise be conducted as considered appropriate. Attachment B Report to the Secretary, DPC from Mr Peter Allen

Review of the Office of the Minister for Small Business, Innovation and Trade

Final Report July 2015

For Official Use Only

1. Introduction

1.1 The review

On 21 May 2015, the Office of Victoria’s Premier, the Hon. Daniel Andrews, received a complaint from an employee in the Office of the Minister for Small Business, Innovation and Trade, the Hon. Adem Somyurek MLC (the Minister).

After meeting with the Minister to discuss the complaint, the Premier announced that an independent review would be conducted by the Secretary of the Department of Premier and Cabinet (DPC), and that the Minister would be stood down pending the outcome of the Inquiry.

To inform his inquiry, the Secretary engaged Mr Michael Strong to undertake an investigation into the conduct of the Minister, and Mr Peter Allen to conduct a capability review (Review) of the Minister’s Office (the Office).

This report documents findings of the Capability Review requested by the Secretary of DPC.

The terms of reference for the Capability Review of the Office are shown in Box 1.

Box 1. Terms of reference for Part B – Capability Review of the Office

The Secretary of the Department of Premier and Cabinet has engaged Mr Allen to conduct a capability review of the Office in accordance with the Australian Public Service methodology.

The review will consider, and identify any constraints arising from the Office’s:

a) management practices; b) capability; and c) adherence to values consistent with the Public Service Values.

In meeting these terms of reference, the Secretary required Mr Allen to:

a) make any findings of fact on the balance of probabilities; b) ensure that procedural fairness is accorded to all parties; c) ensure that the process is conducted confidentially.

1.2 Methodology

The methodology in undertaking the review comprised:

• meetings with staff working in the Office of the Minister for Small Business, Innovation and Trade, including the Chief of Staff, Ms Dimity Paul. Ms Paul also supplied the Review with a copy

For Official Use Only 1

of her sworn statement regarding matters related to both this review and the review being undertaken by Mr Strong, • a meeting with Minister Somyurek, • meetings with senior officers employed in the Department of Economic Development, Jobs, Transport and Resources (the Department) with responsibility for key areas related to Minister Somyurek’s responsibilities, • meetings with advisers in other Ministers’ offices, and individuals involved in establishing and supporting Ministerial offices, • review of research and analysis of the operation of Ministerial offices within Australia, and • adaptation and application for the purposes of this review of the performance review framework developed by the Australian Public Service Commission (APSC) and the Public Service Values published by the Victorian Public Sector Commission (VPSC). A copy of the dimensions of the APSC framework utilised for this review is at appendix 1, and the Public Service Values published by the VPSC are at appendix 3.

A total of 15 interviews were conducted by the Review, including interviews with Minister Somyurek and Ms Paul.

1.3 Review Process

The following processes were followed to ensure procedural fairness in the conduct of this Review:

• On 27 May 2015 the Minister and Ms Paul were provided with correspondence detailing the process and timelines for the Review. Attached to this correspondence was a copy of the Terms of Reference for the Review, • The Minister and Ms Paul were invited to nominate convenient times to attend a confidential interview and they were provided the opportunity to be accompanied by their legal representatives during the interview, • Similarly, other staff working in the Minister’s office who elected to participate in an interview did so on a voluntary basis and they were extended the same opportunity to be accompanied by their legal or union representatives. A number of those interviewed chose to attend the interview with their legal or union representatives, • The Minister and Ms Paul were given an opportunity to submit relevant documentary material for consideration by the Review, and • The Minister and Ms Paul were provided an opportunity to comment on the draft findings of the report prior to it being finalised.

Conduct of the review was assisted greatly by Ms Kerry McKeand, Head of Human Resources, People and Culture in Victoria’s Premier’s Department. Ms McKeand provided wise counsel and experienced insight throughout the review. Her contribution is acknowledged with thanks.

1.4 Confidentiality

All interviews were held in a confidential manner and, with the exception of the Minister and Ms Paul, the contributions of all interviewees to this report have been de-identified, and comments have not been attributed to specific individuals interviewed.

For Official Use Only 2

2. Background

On 29 November 2014 Victorian voters elected the Australian Labor Party led by the Hon. Daniel Andrews to govern Victoria through to November 2017.

The Hon. Adem Somyurek was one of 21 Ministers appointed by Premier Andrews, with responsibility for Small Business, Innovation and Trade.

An immediate task for the new Government was selection and appointment of staff to support Ministers in carrying out their assigned responsibilities. This work occurred through December and January with a significant proportion of Ministerial staff in place by late January.

The Office of Minster Somyurek has been operating since mid-December 2014 under the leadership, as Chief of Staff, of Ms Dimity Paul.

Ministerial staff employed in the Office currently totals seven. In addition, the Office includes two Departmental Liaison Officers (DLOs) and an office receptionist provided by the Department. Minister Somyurek has an electorate office employing one staff member.

Machinery of government changes to support implementation of the Government’s policy commitments occurred through to the end of January.

Priorities for all Ministers since late November have included addressing policy commitments that required immediate or early action, contributing to the development of the Andrews Government’s first budget (brought down on 5 May), representing their electorate in the Victorian Parliament, engaging with stakeholders, and attending to concerns of citizens in their electorate.

2.1 Staffing Minister Somyurek’s office

Ministerial staff working in Minister Somyurek’s office were all selected by the Minister and employed by the Premier’s Office. The three departmental officers working in the Minister’s office – 2 DLOs and a receptionist – are employed by the Department (DEDJTR).

Staffing of Ministerial offices in the newly elected Government was assisted by an available pool of individuals with experience working for Ministers at either or both State and national levels. In the case of Minister Somyurek’s office, his office staffing includes individuals who had previously worked in national or State/Territory political offices, or had worked with the Minister before the November 2014 election.

Staffing of the Minister’s office as at 2 June 2015 was:

Ms Dimity Paul: Chief of Staff. Ms Paul’s prior experience included working as an adviser to Victorian Senator David Feeney in the Australian Parliament. Ms Paul informed the Review that in early December 2014 Minister Somyurek approached her asking that she join his Ministerial Office as Chief of Staff.

The balance of staff in the Office was selected by the Minister from a central bank overseen by the Office of the Premier. Ms Paul advised this Review that she had input into some of the staff selection, but all final decisions were made by the Minister. For Official Use Only 3

Mr Scott Howard: Trade Adviser and caucus liaison adviser. Mr Howard is responsible for advising the Minister on trade matters relating to his Ministerial responsibilities. He is also the key contact between the office and elected members of the Government. Mr Howard also assisted with carriage of the Minster’s responsibilities relating to small business. Previous experience included working for the (then) Chief Minister of the ACT, the Hon. Katy Gallagher.

Dr Elie Khahil: Adviser to the Minister on his responsibilities relating to the Government’s innovation policy.

Mr Xavier Smith: Adviser to the Minister on information communications technology (ICT) matters. Mr Smith also assisted the Minister with his Parliamentary responsibilities. Mr Smith had worked for the Minister before the 2014 election.

Mr Burhan Yigit: Adviser to the Minister on small business portfolio matters.

Ms Caitlin Walsh: Media Adviser.

Ms Katelyn Butterss: Ministerial Diary Manager (and administration assistant).

In addition, the Department provided the Minister’s Office with two liaison officers (DLOs) - currently Mr Adam Smith and Ms Elizabeth Harding - and a receptionist, Ms Olivia Gobeo.

2.2 Operation of the Minister’s Office

Ms Paul advised this Review that while there was no ‘official’ description of her role, her initial responsibilities involved assisting the Minister to set up his Office and recruit staff.

After the Office was operational Ms Paul’s responsibilities included: • managing the six staff recruited by the Minister, and oversight of the three staff provided by the Department. This included quality assurance reviews of Ministerial Office briefs for the Minister, although Ms Paul advised this Review that on occasions the Minister would go direct to the staff member responsible for the advice, • primary liaison between the Minister’s Office and DEDJTR officers, • primary liaison between the Minister’s Office and the Premier’s Office, • primary liaison with chiefs of staff in other Ministerial offices, • oversight and signing-off of office accounts and expense claims, • lead adviser to the Minister, • representing the Minister in meetings when he was not available, and • managing strategic and priority issues relating to the Minister’s responsibilities.

Leadership of the Office also included quality assurance of briefs prepared for the Minister by his Office staff. Ms Paul informed this Review that she was not able to execute this responsibility when the Minister engaged directly with the Office staff.

Ms Paul also informed the Review that she had implemented a number of meetings and regular reviews to facilitate an efficient working environment. These included: • a weekly administration meeting to discuss administrative responsibilities of the office and to resolve any issues,

For Official Use Only 4

• a weekly policy meeting including policy advisers, the media adviser and the diary manager to review work in train and discuss ‘live’ issues, • staff meetings, as needed, to discuss issues affecting all staff in the Office, • a weekly meeting to discuss the upcoming media calendar. These meetings included policy and media advisers, the department’s media managers and policy advisers, • a weekly meeting with the departmental Deputy Secretaries responsible for areas of Minster Somyurek’s responsibilities. The Minister also attended these meetings when possible, • a weekly meeting between Ministerial advisers, Executive Directors and other DEDJTR staff working on issues for which the Minister was responsible.

In addition to these regular meetings Ms Paul advised this review that she had organised a full-day planning session in April for all staff. An external facilitator assisted in an afternoon session for the ‘political’ staff to discuss the roles and expectations of political advisers.

An additional dimension of Ms Paul’s responsibilities was performance reviews of ministerial office staff. This Review understands that these reviews were intended to ensure that Ministers were appropriately supported by staff with requisite skills and experience. Ms Paul advised the Review that she held at least two reviews with each of the ministerial office staff either one month, two months or three months after they joined the Minister’s office.

Other staff in the Minister’s office who met with this Review provided broadly similar perspectives: they commonly described an Office that was relatively new, with roles and responsibilities between advisers being progressively refined. Office staff acknowledged the mix of experience and capabilities within the team and that some advisers were on a ‘steep learning curve’.

For Official Use Only 5

3. Capability and performance of the Minister‘s Office

3.1 Capability of Minister Somyurek’s Office

A range of perspectives were provided to this Review on capability and performance of the Minister’s Office and individual staff within it. These included perspectives from: • senior officials working in the Department, and two (2) departmental officers working in the Minister’s office as a DLOs, • ministerial staff working in Minister Somyurek’s Office, • ministerial staff working in the Premier’s Office, and • Minister Somyurek.

Without exception, senior department officials in regular contact with the Minister and his Office were positive in their assessment of the performance of the Minister’s Office.

In broad terms, they described a Minister - new to both his role and the specific responsibilities of his assigned portfolios - who was both addressing some initial challenges arising from realignment of some responsibilities between portfolios and Budget-related program changes, and leading some complex negotiations and implementation of some contested policy commitments. Their overall assessment was that the Minister was delivering envisaged outcomes, with the requisite advice and support from his Office. They also described his interactions with senior Department officials as ‘very professional’.

Specific examples of the Minister’s capability and impact proffered by Department officials were the complex negotiations around increasing Australian Government support for Australia’s synchrotron and progress in eliminating mobile phone ‘black spots’, with priority for areas facing high bushfire risk.

Other examples outlined to this Review included the Minister’s willingness to address issues, make decisions and adopt a vigorous approach to scoping and solving problems.

Reflecting on leadership in the Minister’s Office, Department officials described Ms Paul as ‘very professional’ with a good understanding of the respective roles and responsibilities of public servants, Ministers and their Offices and, similarly, ‘very professional’ in her dealings with the Department.

That said, officials also were aware of at least one challenge facing the Office in supporting the Minister effectively: this involved delivering information required by the Minister in his preferred format to enable him to respond to questions in the Legislative Council. Officials went on to outline action the Department was taking, in consultation with the Office, to improve the timely and seamless transmission of requested information to the Minister.

Senior Department officials, with a ‘line of sight’ across several Minister’s offices, observed that no ministerial staffer in Minister Somyurek’s Office had previous experience of Victorian Government processes and, for example, the processes associated with Cabinet and Cabinet committees. In the For Official Use Only 6

words of one official, the Office ‘lacked maturity’. That said, they went on to observe that while the Office was on a steep learning curve it operated in a very professional manner.

Information was provided to this Review that the Office had not yet established a formal performance management system, including key performance indicators (KPIs) for individual staff. Implementation of a formal performance management system, with KPIs agreed between the Minister and Chief of Staff and regular reviews of individual staff performance, would be a constructive initiative.

In terms of support for the Minister in refining his approach to question time in the Legislative Council, the recent appointment of an experienced media adviser to the Office should assist this process.

Overall, interviewees with a ‘line of sight’ across a number of Ministerial offices reported that they would have assessed Minister Somyurek’s office as demonstrating levels of capability where there were no obvious issues requiring urgent attention, alongside some capabilities where, over time, action to improve performance would need to be taken.

3.2 Management Practices in Minister Somyurek’s Office

Ms Paul outlined to this Review a number of concerns the Minister had raised with her, at different times, regarding the support provided to him by his Ministerial Office, and the Department (DEDJTR). These appeared to reflect a common set of challenges facing any Office in ensuring their Minister has accurate information available in their preferred format to acquit their Parliamentary and Ministerial responsibilities.

That said, a specific challenge for Minister Somyurek’s Office has been to ensure factually accurate information is available to the Minister as required in his preferred format and in accord with his preferred timelines.

As explained to the Review, the Office receives information from the Department, sometimes against very tight timelines, which it then transfers to the Ministers’ personal tablet. The Minister commonly adapts this information to his preference for presentation. In circumstances where information previously provided to the Minister is updated, version control would often be difficult. In circumstances of tight timelines and intense pressure, such as question time in the Legislative Council and appearance before the Parliament’s Public Accounts and Estimates Committee, these processes appear to have increased tensions in what are commonly times of heightened pressure and stress.

Minister Somyurek clarified for this Review that he required material to be presented in a larger font and as a result he preferred to transfer information to his personal tablet to minimise the amount of paper associated with printing reformatted material. In relation to the challenges associated with version control the Minister advised the Review that he was careful to ensure that any changes he made were given back to the relevant advisor; however, he did acknowledge that there may have been an instance when he omitted to pass on his changes. For Official Use Only 7

Contrary to Ms Paul’s advice to the Review that the Minister had concerns about the support provided by the Department, Minister Somyurek advised the Review that the Department largely delivered information on time and that he had no real problems with the Department in this regard.

In canvassing the experience and capabilities of advisers in the Minister’s Office Ms Paul highlighted the wide differences in experience across the staff. She advised that a key responsibility for her was assigning work across advisers in accord with each individual’s expertise, experience and capability. This included quality assurance reviews of Office briefs for the Minister, although Ms Paul advised this Review that the Minister would sometimes deal directly with ministerial advisers, removing her capacity to provide oversight.

She described the overall performance of the Office as ‘very good’. That said, she noted that one staff member required considerable help in preparing written material for the Minister and that she often had to re-write briefs.

3.3 Adherence to Values Consistent with the Public Service Values

Applicability of the Victorian Public Service values to a Minister’s Office was challenged in some meetings with staff working for Minister Somyurek. Specifically, it was argued that Ministers’ offices were distinctively different working environments to the mainstream public service. That said, several staff indicated that with the exception of the VPS value relating to impartiality they did not observe any failure of the Office to demonstrate responsiveness, integrity, accountability, respect, leadership, or making decisions and providing advice consistent with human rights. One qualification provided to the Review was an observation that occasionally Ms Paul engaged in exchanges with the Minister that could be construed as failing to demonstrate appropriate respect.

Ms Paul informed the Review that from late December the Minister was increasingly contesting her (by Ms Paul’s account constructive) criticisms of his responses to questions in the Legislative Council. This Review was informed by another staff member of the Office that the Minister’s performance and confidence in answering questions in the Parliament improved through early 2015. Ms Paul advised this Review that the Minister had rebuffed her attempts early in 2015 to organise practice sessions for question time.

By Ms Paul’s account her own relationship with the Minister manifested heightened tension at the end of the Legislative Council’s first sitting week in February. From her perspective this appeared to compound the challenges facing the Office in providing the best possible support to the Minister for carriage of his Parliamentary responsibilities, particularly question time in the Legislative Council.

3.4 Assessing the Office’s capability

In accord with this Review’s terms of reference, interviewees were asked to offer their assessment of the Office’s capability on dimensions identified in the methodology developed by the APSC. Details of the APSC model of capability are at attachments 1 and 2.

As outlined by the APSC, a capability review is a forward looking review of an organisation that assesses its’ ability to meet future objectives and challenges. Reviews focus on leadership, strategy

For Official Use Only 8

and delivery of performance of the organisation, and aim to identify internal management strengths and improvement opportunities. As outlined by the APSC, capability reviews are designed to be short, sharp and focused, and take a high level view of the operations of an agency or office. The diagnostic is informed – as it was in this case - by interviews with the responsible Minister, senior officials in the Department and Ministerial office staff.

The APSC methodology provides that capability is assessed against the following criteria:

• strong – outstanding capability for future delivery, • well-placed – capability gaps are identified and defined but are already being addressed with improvement expected in the short-term, • development area – weakness in capability for current and future delivery with action required to close the gaps and deliver improvement over the medium term, • serious concerns – significant weakness in capability for current and future delivery that require urgent action.

Following the initial interview with Ms Paul, and interviews with senior Department officials, subsequent interviewees were asked to provide their assessment of where the Office sat on each of the ten dimensions set out in Box 2 below. While some specifics of assessment varied slightly between respondents there was a high level of consensus regarding the broadly defined current capabilities of the Office.

The assessment of the Office’s capability indicated in Box 2 reflects a comparatively inexperienced staff supporting a new Minister in a new Government, and an Office on a steep learning curve.

The staff assessment of the Office across the ten dimensions spanning delivery, strategy and leadership as illustrated in Box 2 was provided to the Minister for his observations. Minister Somyurek indicated in discussion with the Review that he broadly agreed with the overall assessment by the staff of the capability of the Office.

For Official Use Only 9

For Official Use Only

Particular strengths of the Office were identified as:

• its’ capability to identify and focus on delivery of the Minister’s and the Government’s priorities, • delivery plans were in place consistent with the Minister’s and the Government’s strategy, • a unifying culture had been established in the Office that promotes energy, enthusiasm and pride, and • the Office includes role models that act with integrity, confidence and self-awareness and a desire to achieve results.

Areas that were assessed as ‘work in progress’, requiring further attention and development were:

• the Office’s capability to deliver the Minister’s and whole-of-government objectives, • articulating and communicating a strategy across the Office to deliver the Government’s policy commitments in relation to small business, innovation and trade, • clarifying within the Office what success looks like and establishing benchmarks of successful achievement, • strengthening the Office’s capability to work across Government to deliver priority policy commitments, and • building a shared commitment within the Office to continuous improvement, effective change management and overcoming resistance.

Finally, two areas were commonly identified as requiring priority attention:

• clarification of roles and responsibilities within the Office and between the Office and the Minister, and developing procedures and mechanisms to address performance problems in the Office, • development of a transparent and consistent approach to performance management within the Office, alongside a capability to identify and nurture talent.

There were a number of staff who indicated that the Office would benefit from clarification on the interrelationship, responsibilities and boundaries of roles between the Minister and the Office staff, and between staff. The clarification of roles will minimise overlap in responsibilities and create a basis for managing performance.

The Review established that while probationary review processes were undertaken, the Office had not embedded long-term performance management processes or schemes to nurture and develop staff. This deficiency became evident from a number of interviews with staff and with Ms Paul. That said, the Office is still relatively new and inexperienced; it is not unusual that at this early stage in its life that policies and management practices for nurturing high performance have not yet been established.

For Official Use Only 11

4. Concluding observations

No one interviewed as part of this Review questioned that the Minister’s Office was on a steep learning curve, in common with many other Office’s across the new Government.

It is often forgotten that no one masters a demanding and subtle craft without practice, and occasional misjudgements. In his recent book, How to Run a Government, the former director of British Prime Minister Blair’s Delivery Unit, Sir Michael Barber, reminded us that it is widely accepted that it takes around 10,000 hours of deliberate practice to become expert in a highly skilled role. As he notes, 10,000 hours corresponds roughly to a Minister’s experience over a single term of government.

A study of advisers working in the Keating Government by Maria Maley, and quoted in Anne Tiernan and Patrick Weller’s book Learning to be a Minister, identified five key roles staff play in supporting Ministers. The first is personal support: managing the Minister’s time, being their eyes and ears on policy and political issues, helping them cope with the pressures of office, and providing intellectual support by acting as a sounding board to debate and develop ideas.

A second important role is political support, which includes assisting the Minister with ‘parliamentary work’. Maley includes in this domain development of tactics and strategies to attract and maintain political support and attack opponents. A task described as ‘issues management’ – helping Ministers capitalise on political opportunities or to manage the fallout of political problems – is another political support role identified by Maley.

A third role of advisers is to assist Ministers with communication. Maley observed that ministerial staff are ‘essential channels of communication within government’ – exchanging information across the complex networks of policy and decision making and mediating Ministers’ relationships with key players. A fourth role is steering policy, with executive coordination the final role identified by Maley.

Towards the end of their research and analysis published in Learning to be a Minister Tiernan and Weller observe that ‘offices inevitably also reflect their Minister’s experience, personality and working style. (Ministers) set the tone, culture and atmosphere of the Office, particularly with respect to work ethic and expectations of ministerial staff. How the office works is the mark of the Minister’.

Tiernan and Weller quote one of the Keating Government’s chiefs of staff as observing that ‘it’s pretty hard for even the most determined staff to change the working style of their Minister. In the end the raison d’etre is to meet the Minister’s needs. Whether and how effectively it does so is highly contingent; it depends on the mix of personalities, experience, skills and circumstances in the office at different points of time.’

A more recent study of a Minister’s office, by Minister Greg Combet’s former Chief of Staff Allan Behm, reached a similar conclusion: “….the pressures on ministers are enormous. Not only is there the constant pressure to perform, but there is the constant fear of failure and embarrassment. Quite simply a Minister’s office is a harsh operating environment. The chief of staff has to be able to

For Official Use Only 12 moderate all this. The Minister’s life is, professionally, a lonely one and the chief of staff has to ensure the Minister remains buoyant and maintains control, as far as possible.

That said, Behm goes on to observe that “each and every Minister and respective chiefs of staff bring fundamentally different personalities and ways of doing business to their roles and responsibilities and the associated tasks…..The relationship between the Minister and the chief of staff needs to be one of easy friendship, confidentially and discretion, and ruthless frankness. And ruthless frankness is necessary from time to time, especially when the Minister is tired and things have not been going well”.

For Official Use Only 13

APPENDICES

A 1: Australian Public Service Commission Capability Reviews

A Capability Review is a forward-looking, organisational review that assesses an organisation’s ability to meet future objectives and challenges. The framework used for the purposes of this review was an adaptation of the methodology developed by the Australian Public Service Commission (APSC) and utilised to guide reviews of all Australian Government departments.

A Review focuses on 3 core dimensions of capability: leadership, strategy and delivery. Reviews are designed to take a short and sharp focus on several dimensions of each of these capabilities, identifying the organisation’s internal strengths and opportunities for improvement.

For this review the following questions were used to guide assessment of each of the elements covered by the capability review.

Leadership

1. Is there a unifying culture within the Office that promotes energy, enthusiasm and pride? 2. Does the Office include role models who act with integrity, confidence and self-awareness and a desire to achieve results? 3. Does the Office identify and nurture talent and have a transparent and consistent approach to performance management? 4. Do you perceive the Office to share a commitment to continuous improvement, effective change management and overcoming resistance?

Delivery

5. Is the Office able to identify and focus on delivery of the Minister’s and the Government’s priorities? 6. Are delivery plans in place consistent with the Minister’s and the Government’s strategy? 7. How would you rate the Office’s capability to deliver the Minister’s and whole of government objectives? 8. Are roles and responsibilities within the Office and between the Office and the Minister clear? Are performance problems able to be addressed effectively?

Strategy

9. Is there a clear and well understood strategy within the Office to deliver the Government’s policy commitments in relation to small business, innovation and trade? 10. Is the Office clear about what success looks like and how you would know it had been achieved? 11. How would you describe the Office’s capability to work across Government to deliver priority policies? 12. Is the Office able to identify and focus on delivery of the Minister’s and the Government’s priorities?

For Official Use Only 14

A 2 - Australian Public Service Commission Capability Review framework

Capability Reviews undertaken by the Australian Public Service Commission are designed to be relatively short and take a high level view of the strategic operations of a department or agency. Data gathering is primarily informed by interviews with Ministers, senior department officers, stakeholders and staff of the organisation being reviewed.

Reviews focus on leadership, strategy and delivery capabilities of the organisation under review, with a set of specific questions guiding the assessment of the ten elements of the capability model.

The ten elements of the framework are set out in the figure below.

For Official Use Only 15

A 3: Victoria’s Public Service Values

Responsiveness – public officials should demonstrate responsiveness by: i. providing high quality services to the Victorian community; and ii. identifying and promoting best practice.

Integrity – public officials should demonstrate integrity by: i. being honest, open and transparent in their dealings; and ii. using powers responsibly; and iii. reporting improper conduct; iv. avoiding any real or apparent conflicts of interest; and v. striving to earn and sustain public trust of a high level.

Impartiality – public officials should demonstrate impartiality by: i. making decisions and providing advice on merit and without bias, caprice, favouritism or self-interest; and ii. acting fairly by objectively considering all relevant facts and fair criteria; and iii. implementing Government policies and programs equitably.

Accountability – public officials should demonstrate accountability by: i. working to clear objectives in a transparent manner; and ii. accepting responsibility for their decisions and actions; and iii. seeking to achieve best use of resources; and iv. submitting themselves to appropriate scrutiny.

Respect – public officials should demonstrate respect for colleagues, other public officials and members of the Victorian community by: i. treating them fairly and objectively, ii. ensuring freedom from discrimination, harassment and bullying, and iii. using their views to improve outcomes on an ongoing basis.

Leadership – public officials should demonstrate leadership by actively implementing, promoting and supporting the values.

Human Rights – public officials should protect and promote the human rights set out in the Charter of Human Rights and Responsibilities by:

i. making decisions and providing advice consistent with human rights; and ii. actively implementing, promoting and supporting human rights.

For Official Use Only 16

A 4: Bibliography

Barber, Michael. How to Run a Government so that Citizens Benefit and Taxpayers Don’t Go Crazy. Allen Lane. London 2015

Behm, Allan. No Minister: So you want to be a chief of staff? Melbourne University Press. 2015.

Rhodes, R.A.W and Tiernan, Anne. Lessons in Governing. Melbourne University Press. 2014.

Rhodes, R.A.W and Tiernan, Anne. The Gatekeepers. Melbourne University Press. 2015.

Rhodes, R.A.W. Everyday Life in British Government. Oxford University Press. 2011.

Tiernan, Anne and Weller, Patrick. Learning to be a Minister: Heroic expectations, Practical Realities. Melbourne University Press. 2010

For Official Use Only 17

Attachment C Report to the Secretary, DPC from Judge Michael Strong CONFIDENTIAL

Report to the Secretary, Department of Premier and Cabinet concerning allegations against the Minister for Small Business, Innovation and Trade

His Honour Michael Strong

17 July 2015 His Honour Michael Strong

LETTER OF TRANSMITTAL 17 July 2015

Mr Chris Eccles Secretary Department of Premier and Cabinet 1 Treasury Place Melbourne VIC 3002

Report concerning allegations against the Minister for Small Business, Innovation and Trade, the Honourable Adem Somyurek MP

Dear Mr Eccles

In accordance with your request and Terms of Reference received on 27 May 2015, I have pleasure in submitting a Report concerning certain allegations made by officers employed in the office of the Minister for Small Business, Innovation and Trade, the Hon. Adem Somyurek. The Report contains my findings and my reasons for those findings. The Report also considers whether the facts as established are sufficient to warrant the referral of any matter to an appropriate authority.

I recommend that in some appropriate way Ms Paul and Mr Smith be informed of the outcome of my Inquiry. I would regard it as undesirable for them to learn of the outcome from the media. Whether they are given access to the whole or part of the Report will be a matter for you.

There is certain to be a demand from the media, and perhaps elsewhere, for public release of the Report. I respectfully urge caution in this regard. As is evident from the Report, both Ms Paul and Mr Smith

There is an appreciable risk that publication of the Report and the further media attention that would certainly follow . Indeed, I respectfully recommend that release of information from my Report not occur without prior consultation with Ms Paul’s and Mr Smith’s respective legal advisors.

Yours sincerely

Michael Strong

2 TABLE OF CONTENTS

EXECUTIVE SUMMARY ...... 5

INTRODUCTION ...... 10

INQUIRY METHOD AND HISTORY ...... 10

STANDARD OF PROOF AND ASSESSMENT OF EVIDENCE ...... 13

CREDIBILITY OF KEY WITNESSES ...... 13

COMPLAINT BY MS DIMITY PAUL ...... 14

COMPLAINT BY MR XAVIER SMITH ...... 14

MS DIMITY PAUL – EMPLOYMENT AS CHIEF OF STAFF ...... 14

MR XAVIER SMITH – EMPLOYMENT AS MINISTERIAL ADVISER...... 15

EVENTS PRIOR TO 1 FEBRUARY 2015 ...... 15

FIRST SITTING WEEK, COMMENCING 9 FEBRUARY 2015 ...... 18

MR XAVIER SMITH: EARLY FEBRUARY - 19 MAY ...... 20

INCIDENT ON 13 FEBRUARY 2015 ...... 21

SECOND PARLIAMENTARY SITTING WEEK ...... 25

INCIDENT OF 27 FEBRUARY ...... 27

MEETING ON 2 MARCH ...... 30

CONCLUSION – 13 FEBRUARY INCIDENT ...... 32

PERIOD BETWEEN 3 MARCH – 24 APRIL ...... 33

CONCERNS ABOUT ...... 33

INCIDENT ON 24 APRIL 2015 ...... 34

BUDGET WEEK 2015 ...... 35

3 PREPARATION FOR THE MINISTER’S APPEARANCE AT PAEC ...... 35

EVENTS OF 20 MAY 2015 ...... 36

EVENTS OF 20 MAY – CONCLUSION ...... 48

OTHER EVIDENCE ...... 51

PERSONAL ATTACK ON MS PAUL ...... 58

PERSONAL ATTACK ON MR SMITH ...... 59

CRITICISM OF THE MINISTER ...... 59

EFFECT OF THE MINISTER’S CONDUCT ON THE HEALTH, SAFETY AND WELL- BEING OF MS PAUL ...... 59

EFFECT OF MINISTER’S CONDUCT ON THE HEALTH, SAFETY OR WELL-BEING OF MR SMITH ...... 60

FINDINGS ...... 61

REFERRAL TO AN APPROPRIATE AUTHORITY ...... 63

APPENDIX 1 – TERMS OF REFERENCE ...... 67

APPENDIX 2 – THE MINISTER’S RESPONSE ...... 69

APPENDIX 3 – COMMENTS ON THE MINISTER’S RESPONSE ...... 71

4 EXECUTIVE SUMMARY

Investigation methodology

1. In accordance with Terms of Reference received on 27 May 2015 and at the request of the Secretary, Department of Premier and Cabinet, I have investigated allegations made by Ms Dimity Paul and Mr Xavier Smith (the “complainants”) against the Hon. Adem Somyurek MP, Minister for Small Business, Innovation and Trade (the “Minister”). Ms Paul is the Minister’s Chief of Staff. Mr Smith is an Advisor in the Minister’s office.

2. The allegations are of verbally aggressive and intimidatory conduct by the Minister and, in the case of Ms Paul, one incident involving physical contact. My Inquiry was confined to the period 1 February 2015 to 20 May 2015.

3. No specific allegations are made by Mr Smith of incidents between early February and 19 May 2015. Mr Smith does however describe demands and pressure from the Minister that he found stressful. No specific allegations are made by Ms Paul of incidents between 3 March 2015 and 24 April 2015.

4. My task was to find the facts, not to determine whether particular conduct did or did not constitute bullying, or was otherwise inappropriate.

5. At the outset, I issued directions concerning the presentation and reception of evidence. Those directions were subsequently varied on a number of occasions to allow for exigencies that arose.

6. Statements from the complainants were received on 1 June and 2 June. Statements from the Minister and eleven witnesses were received on 9 June. Statements were subsequently received from four witnesses who wished to provide evidence to the Inquiry but preferred to do so independently. I decided to interview four additional witnesses nominated by Ms Paul’s lawyers.

7. The final stage of the investigative process involved interviews with Mr Smith on 2 July, Ms Paul on 3 July and the Minister on 6 July.

8. I prepared provisional findings and draft reasons which I forwarded to the Minister’s lawyers on 9 July, on a natural justice basis. On 14 July I received a 12 page response as a result of which I clarified several of my findings and added to my reasons.

9. I was required to make findings of fact on the balance of probabilities, in the sense explained by the majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 60 ALJR 170, namely that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities

5 may vary according to the gravity of the conduct alleged and the possible consequences for an individual of an adverse finding.

Credibility of key witnesses

10. My assessment is that there was an element of unconscious exaggeration in the case of Mr Smith, consistent with him being an enthusiastic advocate in his own cause. In the case of Ms Paul, there was also occasional conscious exaggeration. I am, however, satisfied that the evidence of each of them on critical issues was far more reliable than the evidence of the Minister.

11. My assessment of the Minister’s evidence on critical issues was unfavourable. He has denied too much. He contends that evidence given by Ms Paul and Mr Smith is not merely mistaken or exaggerated but largely fabricated – especially in the case of Ms Paul. I am comfortably satisfied this is not so.

Key findings

12. For much of the period covered by the Terms of Reference the Minister’s conduct was appropriate and professional having regard to the pressure of his Parliamentary and portfolio responsibilities and is not shown to have adversely affected the safety, health or well-being of members of his staff.

13. On 13 February 2015 the Minister, in his Ministerial office, having been embarrassed by a comment made by his Chief of Staff, Dimity Paul, at a meeting attended by , took Ms Paul by the arm to prevent her from leaving his office then took her chin in his hand and shook it gently from side to side as a form of admonition whilst telling Ms Paul “calm down and put a filter on it”, intending to convey that she was sometimes inappropriately outspoken. This conduct diminished, to some degree, Ms Paul's confidence in her personal safety whilst in the Minister’s presence, caused her distress and adversely affected her sense of well-being. This was an isolated incident inasmuch as there was no other known physical contact by the Minister with Ms Paul or any other staff member of an inappropriate kind.

14. There were instances of conduct by the Minister, not involving physical contact, that also diminished, to a degree, Ms Paul's confidence in her personal safety whilst in the Minister’s presence, caused her distress and adversely affected her sense of well-being, namely aggressive language on 27 February 2015 and aggressive language and finger pointing on 20 May 2015.

15. There was additional conduct of the Minister that caused Ms Paul distress and adversely affected her sense of well-being, namely instances of aggressive and sometimes demeaning language (for example, allegations of incompetence) by the Minister directed at Ms Paul. Such conduct was

6 occasional rather than systematic and was invariably associated with the Minister having to perform publicly e.g. in Parliament.

16. There was no conduct of the Minister that adversely affected or could adversely affect the physical safety of Mr Xavier Smith.

17. There was conduct by the Minister that adversely affected the health and well- being of Mr Smith. Such conduct falls into two categories:

• demands, pressure and expectations of the kind one would ordinarily and reasonably expect in a Ministerial office. This conduct adversely affected the health and well-being of Mr Smith . This was acknowledged by the Minister, who was mostly very supportive; and

• several instances of verbally aggressive comments by the Minister directed at Mr Smith (fewer in number than in the case of Ms Paul). It is probable these diminished his sense of well-being.

18. At 9.06pm on 20 May 2015 Mr Smith was summarily dismissed by the Minister. The principal reason for his dismissal was that, earlier that day, Mr Smith had intervened on behalf of Ms Paul after the Minister had spoken to her aggressively. The intervention by Mr Smith occurred in the Minister’s office, with only the Minister and Mr Smith present, and involved no discourtesy by Mr Smith.

The effects of conduct by the Minister on the complainants’ health

19.

In the absence of a formal medical diagnosis and prognosis, it is not possible for me to further describe Ms Paul’s condition .

20. . I am satisfied that isolated verbally aggressive language by the Minister

diminished his sense of well-being. . He is concerned about his reputation, employment situation and future, particularly having regard to his summary dismissal by the Minister. He is concerned about media attention associated

7 with this Inquiry. In the absence of a formal medical diagnosis and prognosis, it is not possible for me to further describe Mr Smith’s condition .

Referral to an appropriate authority

21. The Terms of Reference ask me to advise whether the facts as established warrant referral of any matter to an appropriate authority. I have taken this to mean not whether a matter could be referred but whether referral would be appropriate in the circumstances.

22. I considered:

• referral to the police for investigation and possible prosecution for common law assault in regard to the face touching incident on 13 February involving Ms Paul;

• referral to the police for investigation and possible prosecution under “Brodie’s Law” (section 21A of the Crimes Act 1958 (“Crimes Act”)); and

• referral to the Victorian WorkCover Authority (“VWA”) for investigation and possible prosecution under the Occupational Health and Safety Act 2004 (“OH&S Act”).

23. There is little prospect of the police investigating an allegation of assault unless Ms Paul makes a formal complaint. She does not wish to do so

24. The allegations made, even if established, would be unlikely to result in a conviction under “Brodie’s Law”, especially in the case of Mr Smith. Moreover, neither Ms Paul nor Mr Smith wishes to make a formal complaint under “Brodie’s Law”.

25. There is, of course a public interest in appropriately responding to bullying which coexists with the interest an individual may have. I am far from convinced, however, that further investigation would be in the public interest. Neither Ms Paul nor Mr Smith wish to participate in any additional investigative or curial process and would not welcome the inevitable associated media attention. Indeed, there could be adverse effects on their health .

26. Ms Paul and Mr Smith are actually employed by the Premier under section 98 of the Public Administration Act 2004. The duties imposed by the OH&S Act fall therefore on the Premier.

27. Neither Ms Paul nor Mr Smith requested an investigation under the OH&S Act. There is, again, a public interest which coexists with the interest an

8 individual worker may have. There may also be a concern about the welfare of other workers.

28. The incidents described by the complainants are not of a level of seriousness that calls for referral to the VWA as a matter of course. In my view, referral is not warranted in the absence of an apparent breach of the OH&S Act. There is no apparent breach.

29. My advice is, therefore, that the facts as established are not sufficient to warrant the referral of any matter to an appropriate authority.

30. I emphasise the importance of vigilance by the Premier and his office concerning the welfare of Ministerial officers.

9 INTRODUCTION

1. In accordance with Terms of Reference received on 27 May 2015 (Appendix 1) and at the request of the Secretary, Department of Premier and Cabinet, I have investigated allegations made by Ms Dimity Paul and Mr Xavier Smith (the “complainants”) against the Hon. Adem Somyurek MP, Minister for Small Business, Innovation and Trade (the “Minister”).

2. My task was to find the facts, not to determine whether particular conduct did or did not constitute bullying, or was otherwise inappropriate. I have attempted to avoid value judgements. If my findings appear clinical, that is the nature of my function.

INQUIRY METHOD AND HISTORY

3. On 27 May 2015, I wrote to the Minister, Ms Paul and Mr Smith setting out the timetable for the Inquiry and my expectations of the parties and their witnesses. I provided the parties with the following directions:

i) I will receive evidence by statement, by exhibit and by oral interview.

ii) Statements should be typed, dated and signed. Paragraphs and pages should be numbered.

iii) Statements should be factual. They should not contain hearsay, rumour or argument. If it is alleged that the actions of a party or witness were actuated by bias or mala fides, the facts upon which that allegation is made should be stated. A complainant’s witnesses may describe what they said or heard if it was said or heard within hearing of the Minister. The Minister’s witnesses may describe what they said or heard if it was said or heard within hearing of one or both complainants or a complainant’s witness.

iv) The Minister’s witnesses should, in addition to their versions of relevant events, clearly draw attention to any disputed allegations of fact.

v) The complainant's reply is an opportunity for a complainant and, if appropriate, a complainant’s witness to introduce factual material by way of rebuttal. The reply must not merely restate the contents of witness statements and must certainly not introduce any new material, except by way of rebuttal. I would therefore expect replies to be brief.

vi) Draft reasons will be provided, on a natural justice basis, to any person about whom I am minded at that stage to make an adverse finding. I will not necessarily provide the whole of my findings to such a person. I will

10 provide sufficient to enable that person to fairly respond to any criticism of him or her.

vii) Responses to the draft findings should address any proposed finding said not to be justified. This will not be an opportunity to restate evidence and certainly not to introduce any new evidence.

viii) Natural justice responses will be included as an appendix to my report to the Secretary.

ix) Contact details for witnesses should be provided separately, that is to say, not included in the statements.

4. I referred to the standard of proof, then set out a timetable for delivery of statements of evidence and responses.

5. The complainants’ statements were received on 1 June and 2 June. They were not compliant with my directions. They contained considerable hearsay and addressed both Parts A and B of the Terms of Reference rather than being limited to Part A.

6. It was therefore necessary to give the Minister some latitude in the way in which he responded in order to achieve a fair and just outcome. Accordingly, I extended the time for delivery of the Minister's statements.

7. An additional constraint on the timetable, known at the outset, was that Ms Paul would be travelling overseas on the evening of 10 June and not returning for approximately four weeks. It was therefore always the case that the only opportunity for me to interview her would be on the morning of 10 June.

8. The statements of the Minister and eleven witnesses were received on the afternoon of 9 June.

9. Due to the volume of the material provided, Ms Paul’s lawyers requested an opportunity to deliver statements and other evidence in reply upon her return from overseas. I convened a meeting with the legal representatives of Ms Paul, Mr Smith and the Minister on the morning of 10 June to hear arguments on whether that request should be granted.

10. After hearing argument, I decided to defer my interviews of Ms Paul, Mr Smith and the Minister. I considered that the volume of material provided by the Minister put Ms Paul and Mr Smith in a difficult position. This was particularly the case for Ms Paul as she was preparing to go overseas. I did not consider Ms Paul or Mr Smith could do justice to themselves given the volume of material presented to them at such short notice. I was also cognisant of the potential impact on Ms Paul’s and Mr Smith’s health if they were rushed into interview, a matter that was emphasised by Ms Paul’s lawyer. I was not,

11 however, prepared to defer Ms Paul’s interview until after her return from overseas. A video link interview was therefore to be arranged.

11. The interviews having been deferred, the timetable for the remainder of the Inquiry was further revised and extended.

Independent witnesses 12. It was subsequently brought to my attention that there were persons who wished to provide evidence to the Inquiry but preferred to do so independently, that is, directly to the Inquiry, rather than through the legal representatives of the parties.

13. Given that it was my intention to interview only Ms Paul, Mr Smith and the Minister, and to avoid concern that I might give undue weight to the evidence of witnesses I met personally, I decided to accommodate self-identifying witnesses by taking their statements in one of two ways. First, I would accept a written statement prepared by the witness. Alternatively, information could be given to the Inquiry orally to my legal assistant who would assist the witness to finalise a statement. Four statements were produced by this process.

Witness Interviews 14. On 19 June 2015, Ms Paul’s lawyers raised a number of concerns about the Inquiry methodology and informed me, unexpectedly, that Ms Paul was not in a position to provide witness statements in reply. The lawyers requested that Ms Paul’s potential witnesses be interviewed by me. This represented a significant departure from the investigation methodology (to which Ms Paul’s lawyers had originally raised no objection). Nonetheless, given that the outcome of my Inquiry is to inform a process undertaken in the public interest, I took the view that findings arrived at by a process that did not involve examination of the whole of the available evidence would not satisfy that public interest because what would emerge might not be the whole truth. Therefore, in order to achieve an outcome that would include findings of fact “on the merits” in the fullest sense, I decided to interview four additional witnesses nominated by Ms Paul’s lawyers.

Interviews of Mr Smith, Ms Paul and the Minister 15. The final stage of the investigative process involved interviews with Mr Smith on 2 July (for approximately two hours), Ms Paul – who returned early from her overseas travel – on 3 July (for approximately three hours) and the Minister on 6 July (for approximately four hours).

Provisional findings and Minister’s response

12 16. Having received and considered statements and having conducted interviews, I prepared provisional findings and my reasons for those findings. On 9 July I forwarded my provisional findings and draft reasons to the Minister’s lawyers.

17. Late on 14 July I received a 12 page response from the Minister (Appendix 2). I have carefully considered the response, clarified several of my findings and added to my reasons. At Appendix 3, I also address in further detail a number of specific submissions in the Minister’s response with which I disagree.

STANDARD OF PROOF AND ASSESSMENT OF EVIDENCE

18. I am required to make findings of fact on the balance of probabilities, in the sense explained by the majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,1 namely that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the gravity of the conduct alleged and the possible consequences for an individual of an adverse finding.

19. Certain complaints concerning the Minister's behaviour, viewed in isolation, might not be of the level of gravity the High Court had in contemplation. I have, however, proceeded on the assumption that an aggregation of adverse findings might adversely affect the Minister’s ministerial career and reputation. I have therefore approached any possible findings adverse to the Minister with the principle stated by the High Court firmly in mind.

CREDIBILITY OF KEY WITNESSES

20. In an exercise of this kind, the fact-finder’s assessment of the credibility of witnesses is critical.

21. The Inquiry methodology did not permit me to interview every witness. Had I done so, the Inquiry would have been far more protracted – not only by the interview process itself, but by the need to put conflicting evidence to witnesses whose evidence was contradicted.

22. My interviews with Mr Smith, Ms Paul and the Minister were, of course vital. At the time I conducted those interviews I was familiar with the evidence and was able to bring that familiarity to the task of assessing their credibility.

23. I am satisfied that the evidence of Ms Paul and Mr Smith on critical issues was far more reliable than the evidence of the Minister.

24. My assessment is that there was an element of unconscious exaggeration in the case of Mr Smith, consistent with him being an enthusiastic advocate in his own cause. In the case of Ms Paul, there was also occassional conscious exaggeration in some of her evidence. She was reluctant to make

1 (1992) 60 ALJR 170 (“Neat Holdings”).

13 concessions favourable to the Minister. Also, given a choice of words that had broadly the same import, she would generally choose the more critical option.

25. At interview, the Minister was calm, pleasant, articulate and responsive. My assessment of his evidence on critical issues was, however, unfavourable. He has denied too much. It is difficult to give an explanation for an event that you deny ever happened. The Minister concedes occasional exasperation and impatience and moderate raising of his voice, though never yelling or shouting. He concedes mild criticism, though never abuse or deprecation. He concedes mild frustration, but never aggression and certainly never intimidation. He alleges that evidence given by Ms Paul and Mr Smith is not merely mistaken or exaggerated but largely fabricated – especially in the case of Ms Paul. This is just not right, in my opinion, as my analysis of the evidence will show.

COMPLAINT BY MS DIMITY PAUL

26. At approximately 11am on 21 May 2015, Ms Paul met Mr John McLindon, Chief of Staff to the Premier, and reported certain alleged behaviour by the Minister. Later that day Ms Paul was called back to the Premier's office to meet Mr McLindon and Ms Nada Kirkwood, Human Resources Manager in the Premier’s office. At interview Ms Paul told me Ms Kirkwood listened but did not make notes. The following day, Ms Kirkwood asked Ms Paul to provide written details of her concerns. Ms Paul told me she prepared a document (the “Statement to Ms Kirkwood”) very quickly and gave it to Ms Kirkwood around the middle of the day on Friday 22 May.

COMPLAINT BY MR XAVIER SMITH

27. Mr Smith initially made his complaint in a telephone conversation with Ms Kirkwood on 21 May 2015. He met Ms Kirkwood the following day and elaborated on some of the information he had given on the telephone. On the announcement of my Inquiry, he consulted a lawyer. On 1 June he signed a 15 page statement.

MS DIMITY PAUL – EMPLOYMENT AS CHIEF OF STAFF

28. According to the Minister, , suggested Ms Paul as the Minister’s Chief of Staff.2 Mr Smith says he also recommended Ms Paul to the Minister.3 An interview by the Minister followed. The Minister had not worked with Ms Paul prior to interviewing her, and although he had previously met her, he did not know her well.4 The formal appointment was

2 Statement of the Hon. Adem Somyurek dated 9 June 2015, [21] (“Statement of the Minister”) 3 Witness Statement of Xavier Smith dated 1 June 2015, [12] (“Statement of Xavier Smith”) 4 Statement of the Minister, [7].

14 made by the Premier's Chief of Staff on 18 December 2014, on the recommendation of the Minister. The Minister acknowledges that at the time of considering Ms Paul for the role as Chief of Staff, he was aware that she would have been the youngest Chief of Staff (at the age of ).5

29. When Ms Paul commenced, the only other staff were and Mr Smith. That was still the position at the end of the year. It was not until late January or early February 2015 that the office was fully staffed. Thereafter, came in only occasionally – perhaps once a fortnight (according to Ms Paul).

MR XAVIER SMITH – EMPLOYMENT AS MINISTERIAL ADVISER

30. Mr Smith commenced employment with then Shadow Minister Somyurek in March 2013, initially for two days per week, increasing to four days per week in January 2014 and five days in July 2014.6

31. Mr Smith was keen to join the Minister’s staff following the November 2014 election. He was, however, disappointed with the salary of he was offered as a Ministerial Advisor. He says the Minister initially offered him a salary of , and he considered the retraction of the initial offer “a kick in the guts”.7 This expression of dissatisfaction has some relevance to my assessment of Mr Smith's attitude to the Minister.

32. At interview I asked Mr Smith why he considered the salary reduction to be a “kick in the guts”. He said he felt “put down”, or reduced in status.

EVENTS PRIOR TO 1 FEBRUARY 2015

33. I am required to make findings in relation to events occurring “since February 2015”.8 Events occurring before 1 February may nonetheless be relevant if they give context to or explain events occurring after that date.

March 2014 34. Mr Smith describes an incident in March 2014 when he alleges the Minister (then Shadow Minister) made a threat as a result of Mr Smith supposedly causing the Minister to run late.9 The Minister denies having made the threat.10 This alleged incident occurred eleven months prior to the commencement of the Inquiry period. It should not have been included in Mr Smith’s statement and will form no part of my consideration of relevant events.

5 Statement of the Minister, [22]. 6 Statement of Xavier Smith, [2]. 7 Statement of Xavier Smith, [11]-[14]. 8 Terms of Reference, [5(a)]. 9 Statement of Xavier Smith, [6]. 10 Statement of the Minister, [92].

15 The only reason I mention it at all is that the Minister, at interview, cited it as an example of Mr Smith making a false allegation.

35. I do not intend to set out the nature of the threat because of its prejudicial nature. It is sufficient to say that it would be a strange allegation for Mr Smith to invent and an even stranger threat for the Minister to make, in the circumstances.

36. Mr Smith told me at interview that apart from the alleged threat, which Mr Smith did not take literally, he has no complaints about the Minister’s behaviour prior to the 2014 election.

December 2014 37. Brief mention of evidence relating to this period will assist in understanding what occurred during the Inquiry period.

38. Mr Smith's office was located next to the Minister’s. In the lead up to the first sitting day of the 58th Parliament, Mr Smith describes feeling “unnecessarily pressured”11 by the “intensity and frequency of the Minister’s demands”12 and that he “could not meet the Minister's expectations”.13 This was, alleges Mr Smith, a “shift in the Minister’s behaviour” when compared to the calm and respectful manner of the Minister when in Opposition.14 He says it made him feel as though he was not capable of doing his job.15 When asked at interview about the stress he was feeling at this time, Mr Smith said he had the feeling of “I need a break, I need a break”.

39. Mr Smith describes feeling “intimidated”16 by the Minister's behaviour but does not really explain why. There is certainly nothing in this part of his statement suggesting physical intimidation. I believe he is describing what he refers to as “the intensity and frequency of the Minister’s demands”.17

40. At interview Mr Smith told me, in effect, that he attributes the difference between the Minister’s conduct prior to the election and the Minister’s conduct after the election to the apprehension the Minister had about performing publically, such as during Question Time or having to make a major speech, where he would be open to criticism. The Minister allegedly didn’t take criticism well. Mr Smith said the office was a lot calmer when Parliament was not sitting. Issues would tend to arise on the Friday or the Monday before a Parliamentary session.

11 Statement of Xavier Smith, [17]. 12 Statement of Xavier Smith, [21]. 13 Statement of Xavier Smith, [18]. 14 Statement of Xavier Smith, [21]. 15 Statement of Xavier Smith, [21]. 16 Statement of Xavier Smith, [18]. 17 Statement of Xavier Smith, [21].

41. Mr Smith said the Minister had a fear of appearing not to be across his brief. He rarely made speeches as a Shadow Minister.

42. Mr Smith told me at interview that when the Minister was not stressed he would be friendly and usually calm. There were occasions, for example, when Mr Smith would enter the Minister’s office and the Minister would playfully handball a football to him.18 He said the Minister also had a sense of humour.

43. I believe Mr Smith was already struggling with a role for which he was probably unsuited . That isn’t a criticism. I’m sure Mr Smith is very capable: . On the other hand an employer must, generally, take their employees as they find them and moderate their demands. Mr Smith had been in the Minister’s employ for almost two years. It was the Minister’s decision to employ Mr Smith as a Ministerial Advisor.

Christmas Break 2014 44. The statements of both Ms Paul and Mr Smith describe an exchange of text messages initiated by the Minister on Christmas Day and Boxing Day 2014 in relation to the Minister’s performance in Question Time in the December Parliamentary sitting and in relation to possible parliamentary questions (“PPQs”).19 The text exchange also reveals that the Minister also took offence at a comment made by Ms Paul prior to the Christmas break.

45. These matters are outside the period of my Inquiry and I intend to say no more about them.

January 2015 46. Ms Paul outlines difficulties in January 2015 regarding the Minister’s preparation for Question Time.20 Central to the difficulties Ms Paul alleges was that the Minister made changes to PPQs without telling staff, and the Minister’s insistence on having his PPQs on his Surface Pro tablet.21 Ms Paul claims that this made it difficult to regulate version and quality control22 and for staff to get up-to-date information to the Minister in a timely manner because, rather than simply typing and printing information for the Minister, information had to be transferred to the Surface Pro tablet.23

18 Handballing of a football is also described by : see Statement of , [24] (“Statement of ”). 19 Statement of Ms Dimity Paul dated 2 June 2015, [18]-[20] (“Statement of Dimity Paul”); Statement of Xavier Smith, [23]-[32]. 20 Statement of Dimity Paul, [21]-[29]. 21 Statement of Dimity Paul, [25]-[26]. 22 Statement of Dimity Paul, [26]. 23 Statement of Dimity Paul, [27].

47. The evidence submitted to the Inquiry shows that .24 This is described by one of his advisors, , as follows:

I am aware (as was everyone in the office) that . …

. He also preferred to have all documents in soft copy on his [Surface Pro tablet] so he could enlarge the text and edit documents as he went.25

48. I raised this with Ms Paul at interview. She told me she was aware of and tried to accommodate them. She felt the Minister would be better off most of the time using paper documents rather than his Surface Pro tablet. This was a source of contention between Ms Paul and the Minister. Ms Paul told me the Minister was eventually persuaded to use paper documents.

49. This issue is not mentioned in Ms Paul’s statement. It is obviously relevant to the tension between Ms Paul and the Minister about preparation for Question Time and PPQs.26 As a matter of fairness, I would have expected Ms Paul to mention the matter in her statement. She mentioned it in the Statement to Ms Kirkwood but not in her statement of evidence.

50. Mr Smith makes no specific complaint about the Minister’s behaviour in the period leading up to the first sitting day (apart from the Christmas Day and Boxing Day text messages to which I have already referred). Like Ms Paul, Mr Smith describes difficulties arising from the Minister’s insistence on the use of his Surface Pro tablet. Mr Smith claims that the use of the Surface Pro tablet was “a source of immense frustration”.27 This is sufficiently explained by the evidence concerning , which Mr Smith likewise does not appear to acknowledge.

FIRST SITTING WEEK, COMMENCING 9 FEBRUARY 2015

51. The first Parliamentary sitting day in 2015 was on Tuesday 10 February 2015.

52. In the lead up to the session Ms Paul describes continued disagreement with the Minister about preparation for Question Time.28 In particular, Ms Paul alleges that the Minister rejected suggestions to do mock Question Time preparation, that is, practice answering questions that may be asked of him in Question Time.29 At interview, the Minister conceded that prior to Question

24 Statement of the Minister, [24]. 25 Statement of dated 11 June 2015, [8] (“Statement of ”). 26 As described below. 27 Statement of Xavier Smith, [40]. 28 Statement of Dimity Paul, [21]-[23]. 29 Statement of Dimity Paul, [21].

Time he preferred to be alone to “get into the zone” rather than being constantly prepped by staff. According to Ms Paul, the Minister’s refusal to engage in mock Question Time preparation continued through the first sitting week.30 She says the Minister appeared anxious, upset and defensive when given feedback.31 She says the Minister dismissed her concerns, saying she was “inexperienced” and “knew nothing”.32 The Minister denies saying this.33 Ms Paul does not otherwise suggest anything in the nature of threatening or intimidating behaviour in this period.

53. As noted earlier, on 22 May, Ms Paul prepared the Statement to Ms Kirkwood. This document contains details of her complaint, though in briefer form then her statement of 2 June, and sometimes in a shorthand form.

54. In the Statement to Ms Kirkwood, Ms Paul gives a thirteen line account of what occurred in the first sitting week but makes no allegation that the Minister told her, at that time, that she was “inexperienced” and “knew nothing”. When I asked the Minister about this allegation at interview, the Minister denied saying Ms Paul was “inexperienced”, but said he did recall saying to her one time words to the effect of “at I thought I knew everything”. The Minister could not recall exactly when he said this but says they were not said in a pejorative sense.

55. Mr Smith describes the major focus of the Question Time preparation sessions during this period was on the introduction of two new public holidays.34 He describes Ms Paul and advising the Minister to exercise caution when answering questions concerning the public holiday issue.35 Mr Smith alleges that:

On more than one occasion, the Minister would lose his temper, usually directed at Ms Paul, claiming that our duty was to protect and serve him as a Minister, as opposed to the entire government.36

56. At interview, the Minister described Mr Smith’s description of events surrounding the public holiday debate as misleading because it suggests that the Minister might “go rogue” on the issue. The Minister explained that the public holiday debate was a difficult one for the office to manage for a number of reasons, including having to deal with a hostile President in the Legislative Council and the fact that advocating for additional public holidays was not consistent with his small businesses portfolio. However, he stressed he had no complaints of staff regarding their work in preparing him on this issue.

30 Statement of Dimity Paul, [31]. 31 Statement of Dimity Paul, [35]. 32 Statement of Dimity Paul, [32]. 33 Statement of the Minister, [24]. 34 Statement of Xavier Smith, [41]. 35 Statement of Xavier Smith, [41]. 36 Statement of Xavier Smith, [41].

57. In his statement, Mr Smith also recalls that on 2 February 2015, he and another advisor, , accompanied the Minister to a Question Time preparation session also attended by other Ministers.37 Mr Smith alleges that after the session:

… at 4:15pm the Minister stormed into my office demanding the ICT speech [a “stump speech” concerning operating systems, the internet and social media that the Minister had asked Mr Smith to prepare]. He claimed he could have been ‘fucking humiliated’ in front of his colleagues because he was not prepared. His tone was incredibly aggressive, and I froze and could not respond. This episode severely eroded my confidence.38

58. The Minister denies these allegations. At interview he said:

After the practice Question Time preparation session on 2 February 2015 I was in a good mood. … [T]he session had gone particularly well and the feedback I got was that I was one of the best of the new Ministers.

59. The Minister agrees, however, he told Mr Smith to “get a hurry on” with the stump speech.

60. At interview, Mr Smith

61. I observe that Mr Smith frequently uses superlatives in his statement. For example, he often uses the word “incredibly” when I think he probably means “very”. At interview he explained “incredibly” to mean “at a level he did not expect”. He also told me this is the only occasion he can recall the Minister using the ‘f’ word aggressively towards him.

MR XAVIER SMITH: EARLY FEBRUARY - 19 MAY

62. Apart from the 2 February incident, Mr Smith makes no specific allegation of inappropriate conduct by the Minister in the lead up to or during the first sitting week. In fact, no specific allegations are made between early February and 19 May 2015. Mr Smith does however describe demands and pressure from the Minister that he found stressful. He says he was .39 He and Ms Paul discussed whether he would be better off in a different job.40

37 Statement of Xavier Smith, [38]. 38 Statement of Xavier Smith, [39]. 39 Statement of Xavier Smith, [42]-[43]. 40 Statement of Xavier Smith, [44].

INCIDENT ON 13 FEBRUARY 2015

Ms Paul’s evidence 63. Ms Paul states that on Friday 13 February she attended a meeting with the Minister, and , one of the Minister’s advisors, to discuss the future of the Australian Synchrotron. She alleges:

During the meeting there was a brief discussion about how to deal with the Federal Minister. Some discussions with stakeholders appeared to have leaked and there was some concern that the Federal Government was trying to use this as a strategy to weaken the Victorian Government’s position. I suggested some strategies to manage this.

The Minister started talking over the top of me and because of that I got the feeling that he didn’t agree with what I was saying.41

64. She continues:

After the meeting and left the office. I was following behind them and was about to leave the office when the Minister grabbed my arm and pulled me back into the office. He then shut the door.

We were both standing in front of the door facing one another when he grabbed my chin with his hand and then started shaking my face from side to side. While doing this he said to me ‘put a filter on it’.

He then told me that I say too much in front of the department about how the office is managing issues and that he wants me to keep my thoughts to myself.

After that incident I left his office and went back to my office.42

The Minister’s evidence 65. The Minister’s account of the meeting is as follows:

I do recall that at the meeting there was extensive discussion about the Synchrotron issue and that Ms Paul made inappropriate comments and statements that made me feel uncomfortable.

An inappropriate comment made by Ms Paul was to the effect that she doubted that ‘we would be in the portfolio in the next year given how we were going’. This comment was made in front of departmental staff and .43

66. In the next paragraph the Minister says:

41 Statement of Dimity Paul, [38]-[39]. 42 Statement of Dimity Paul, [40]-[43]. 43 Statement of the Minister, [30]-[31].

21 … it is important that Ministerial Advisors or Chiefs of Staff are seen to be supporting the Minister in a meeting of that nature. If there are to be debates on issues, it is preferable that they are conducted behind closed doors. Sometimes Ms Paul had a tendency to say inappropriate things in meetings. I do not recall talking over the top of Ms Paul.44

67. He continues:

At the conclusion of the 13 February 2015 meeting, as was leaving I asked Ms Paul if I could speak to her and said something to the effect of ‘Dimity can I see you for a sec’. I repeated what she had said back to her to demonstrate how that could be interpreted. I asked her, in effect, to please be careful in future with what she says, particularly in meetings.

Ms Paul acknowledged that she understood she had made an error. To illustrate what I meant, in a light-hearted way, I gestured with my hand towards her head and mouth saying words to the effect of ‘think and filter what you say’.

At no time did I make physical contact with her. At no point did I grab Ms Paul by the arm or take her by the chin and shake her chin. Those accusations are false. At no point did I try to intimidate her and from my perspective she could not reasonably have been intimidated by what I had said and did.

I did not say as she alleges that she says ‘too much in front of the Department’ but that was certainly the message I was trying to convey at the time.45

68. At interview the Minister denied being angered by Ms Paul’s comment at the meeting, though he said he did “cringe”.

The Statement to Ms Kirkwood 69. The Statement to Ms Kirkwood contains the following account of the incident in the Minister’s office on February 13:

After the meeting leaves then and I am last to walk out of the office but AS [Adem Somyurek] takes my arm to pull me back into the office and closes the door. He takes my face with his hand at my chin and gently shakes it and tells me to calm down and put a filter on. He says he thinks I say too much to the Department about how we are managing issues and I need to calm down, he likes my enthusiasm but wants me to calm down. I feel calm before this happens and am quite confused when it happens and after it happens. I go back to my office and am in autopilot after that.

44 Statement of the Minister, [32]. 45 Statement of the Minister, [33]-[36].

22 70. There are significant differences between this account and the account contained in Ms Paul’s statement of 2 June. “He takes my face with his hand at my chin and gently shakes it and tells me to calm down put a filter on” has become “he grabbed my chin with his hand and then started shaking my face from side to side. Whilst doing this he said to me ‘put a filter on it’”.46

71. In the Statement to Ms Kirkwood, Ms Paul says the Minister said “he likes my enthusiasm but wants me to calm down”. This has been omitted from the 2 June statement.

72. At interview Ms Paul said she prepared the Statement to Ms Kirkwood in haste. She also said she didn’t want to make things look “too bad for the Government”. She said, however, that by the time she made her statement for my Inquiry she had decided she needed to protect her own rights and not to sanitise events in any way.

73. The inconsistencies are of some concern. They show Ms Paul has exaggerated. She has improved her account. This naturally gives rise to a concern that exaggeration has occurred elsewhere in her evidence.

evidence 74. gives an account of the meeting on 13 February. He says during the meeting Ms Paul spoke very directly to him about whether a particular letter had been sent by post or email.47 He says he was quite embarrassed about Ms Paul’s reaction as it took place in front of the Minister and .48 He does not however say Ms Paul spoke in a way that was otherwise embarrassing to the Minister.

Prior consistent conduct by Ms Paul 75. The clear implication in the Minister’s statement is that the allegation made by Ms Paul has recently been invented. It is therefore relevant for me to consider any prior consistent conduct by Ms Paul.

76. Mr Smith, in his statement, describes a meeting with Ms Paul on a Monday in February after 8 February at Café Excello.49 According to Mr Smith, Ms Paul mentioned at this meeting the Synchrotron incident. He says:

It was at the same meeting that Ms Paul informed me that the Minister had grabbed her face. I recall Ms Paul telling me her initial reaction was shock, and her now discomfort (sic) whenever she was alone with the Minister. I recall Ms Paul’s distress at the situation, and her explaining to me that she did

46 Statement of Dimity Paul, [41]. 47 Statement of , [10(a)]. 48 Statement of , [10(a)]. 49 Statement of Xavier Smith, [44]-[45].

23 not want to be known as the woman who reported this behaviour, believing it to be career limiting within the ALP.50

77. At interview I questioned Mr Smith closely about the conversation he had with Ms Paul at Café Excello. He said he is adamant Ms Paul mentioned that the Minister touched her face. He can’t remember the exact words. He remembers her saying she was in shock over the incident and wasn’t sure whether she could be around the Minister alone.

78. At interview Ms Paul said her recollection was that she mentioned the incident to Mr Smith as they were walking to the café.

79. Ms Paul told me she didn’t tell about the incident for two weeks because she was shocked and confused by what had happened and wondered whether she had done something wrong. To my mind, this has a ring of truth.

80. . He says he has known Ms Paul on both a personal and professional level for at least five years.51 He describes a conversation he had by telephone with Ms Paul on 1 March 2015.52 He says Ms Paul was “noticeably upset” during the conversation. 53

81. According to , Ms Paul said she felt the Minister “was trying to intimidate her, including physically, during recent aggressive encounters” and that “on a recent occasion the Minister had touched her face in an inappropriate manner”.54

82. says:

Several weeks later Ms Paul said she had discussed the Minister’s behaviour – including that of the physical nature – with him, that the Minister was horrified that she felt that way, and that their relationship was improving.55

83. provided a statement of his own volition i.e. it was not provided on behalf of a party. It provides support by way rebuttal of recent invention of Ms Paul’s allegation that the Minister touched her face that day – an allegation the Minister categorically denies.

84. At interview, I drew the Minister’s attention to the evidence that Ms Paul told Mr Smith and months ago what had allegedly occurred on 13 February. The Minister said he has given careful consideration to this

50 Statement of Xavier Smith, [45]. 51 Statement dated 19 June 2015, [2] (“Statement of ”). 52 Statement of , [4]-[7]. 53 Statement of , [7]. 54 Statement of , [5]. 55 Statement of , [10].

24 evidence. His theory is as follows. Ms Paul may have been trying (in effect) to set him up – even as long ago as March – by fabricating a story she could then use to her advantage. The second sitting week had been a difficult week for the Minister. Ms Paul may have thought this would create problems for him and that she might need to look for another job. Ms Paul had spoken to the Premier’s Deputy Chief of Staff about his performance. This theory portrays Ms Paul not only as a fabricator of evidence but as a schemer of the first order. It is implausible in my view.

Conclusion on incident of 13 February 85. My findings on Ms Paul’s allegation must await my analysis later in this Report of a meeting between Ms Paul and the Minister on 2 March.

SECOND PARLIAMENTARY SITTING WEEK

86. Parliament sat on 24, 25 and 26 February 2015. Ms Paul says the Minister became increasingly stressed in the lead up to these sittings.56 She claims he would ridicule staff when they were unable to meet his deadlines.57

87. On Wednesday 25 February the Minister was asked all six Opposition questions in Question Time. Ms Paul claims the Minister did not answer some of those questions well.58 According to Ms Paul, the Minister’s staff found it difficult to give him the information he required in a timely way because of his insistence on using his Surface Pro tablet (the reason for which I have already explained).

88. Ms Paul says on one occasion during the second sitting week, the Minister told her 59 In the Statement to Ms Kirkwood, Ms Paul uses the word “ ” rather than .

89. The Minister denies .60 He denies

.61 He emphatically denies he discussed this in an offensive or inappropriate way. My comment is that evidence, particularly evidence, shows that the Minister was very sympathetic and supportive . I accept the Minister would not have referred to pejoratively.

56 Statement of Dimity Paul, [44]. 57 Statement of Dimity Paul, [46]. 58 Statement of Dimity Paul, [47]. 59 Statement of Dimity Paul, [49]. 60 Statement of the Minister, [38]. 61 Statement of the Minister, [39].

25 90. Ms Paul says that on Thursday 26 February, the last sitting day for that week, she met with the Minister in his Parliamentary office. She says:

During the course of the meeting he started yelling at me saying words to the effect of ‘you're young and know nothing’ and ‘you have no experience and you don’t know what you're talking about’.62

91. Ms Paul also says “I felt very uncomfortable being alone with the Minister in this meeting.”63 In the Statement to Ms Kirkwood she says “increasingly uncomfortable”.

92. The Minister denies the comments Ms Paul attributes to him.64 He says he saw no evidence Ms Paul was uncomfortable in his presence.65 On the contrary, he says, she was keen to join him at various external events.66 At interview, Ms Paul said these were functions she felt she needed to attend as part of her role as Chief of Staff. The Minister says this was not always the case.

93.

94. recalls an incident during a Parliamentary sitting week when was in the Minister’s small office at Parliament House with the Minister and Ms Paul.67 There was a conversation in preparation for Question Time. Ms Paul offered the Minister some advice and, according to , “the Minister raised his voice and yelled ‘no’ at Ms Paul. The Minister’s voice was at a volume that I considered rude.”68

95. This may coincide with the incident described by Ms Paul as having occurred on 26 February.

96. At interview, the Minister said he sometimes had to say “no” a little firmly to Ms Paul and that he might add “I am the Minister”. He said he did this because Ms Paul was very persistent in offering advice even when he didn’t necessarily want it.

97. also says the Minister was quite frustrated and exasperated at his office (in Exhibition Street) during a period when he was expected to

62 Statement of Dimity Paul, [51]. 63 Statement of Dimity Paul, [52]. 64 Statement of the Minister, [42]. 65 Statement of the Minister, [42]. 66 Statement of the Minister, [42]. 67 Statement of dated 25 June 2015, [4]-[8] (“Statement of ”). 68 Statement of , [7].

26 support an election commitment to introduce a new public holiday.69 does not allege any other inappropriate conduct by the Minister towards Ms Paul.

98. provided a statement of own volition i.e. it was not sent to me on behalf of a party and I have no reason to doubt what says.

99. At interview Ms Paul told me the Minister’s aggression and abuse were generally associated with stress: for example major decisions, sittings of Parliament – especially in the lead up to Question Time; media commitments. She said at other times he was affable and would “joke with people”. She agrees with a comment she is said to have made to the Minister on 20 May “You’re lovely most of the time”. She told me this was true: the Minister was “lovely” most of the time. Then, she says, there would be a blow-up, though the next day it would be as though nothing had happened.

INCIDENT OF 27 FEBRUARY

Evidence of Ms Paul 100. Ms Paul states she had ongoing concerns about the way the Minister was preparing for Question Time. It was a source of conflict between them. She says that before leaving the office on the afternoon of Friday 27 February 2015, she went into the Minister’s office and told him “he and I would need to have a serious discussion on the following Monday about Question Time” and how the office was structured.70 Ms Paul says she mentioned to the Minister that the Premier's Office had raised concerns with her about the Minister’s Parliamentary performance.71

101. According to Ms Paul, the Minister responded “that he didn’t understand what he was doing wrong” and insisted Ms Paul show him in the transcripts [Hansard] “exactly what is good and what is bad”.72 Ms Paul claims the Minister appeared agitated.73 Ms Paul said she was tired and suggested they review the transcript on Monday.74 She said “I didn’t think that we were going to achieve much late on a Friday after a busy week.”75

102. What then occurred is described by Ms Paul as follows:

He then yelled at me and said “you can’t tell me things like that and then leave”.

At that point I started to cry and I told the Minister I wanted to leave.

69 Statement of , [10]. 70 Statement of Dimity Paul, [62]. 71 Statement of Dimity Paul, [64]. 72 Statement of Dimity Paul, [65]. 73 Statement of Dimity Paul, [66]. 74 Statement of Dimity Paul, [66]. 75 Statement of Dimity Paul, [68].

27 He responded to the affect that he has never asked me to stay after hours and he needed to go through all of this now. He told me I was “weak” and “hopeless”.

I told him I needed to leave because my had had a and I needed to go to hospital and see .

He yelled at me and said ‘I can’t believe you are saying this’. He then yelled “get out, get out of my sight, you disgust me, you are useless, get out!” He was gesturing with his hands for me to leave the office.

I got up and left his office and he slammed the door behind me.

I felt shaken after this incident. I went into my office and closed my door and cried in my office for some time. I needed some time to pull myself together before I could drive home.76

103. Ms Paul said when she got home she told her husband of this incident.77

Evidence of the Minister 104. The Minister’s account of the incident is brief. He says he had been at the International Air Show at Avalon for the majority of the day and returned to his office late in the afternoon. He says:

… I wanted to go through Hansard with Ms Paul. Ms Paul had been critical of my Parliamentary performance from earlier in the week and I wanted to look at the details of exactly what had been said in Parliament.

I wanted to consider any matters raised over the weekend as there were new sessional orders to deal with in the Upper House.

I do not accept the balance of the comments asserted by Ms Paul. She was in my office sitting on the boardroom table. I was sitting at my desk and Ms Paul became upset. I queried what the issue was and she indicated that she was tired, wanted to go home and had a sick . I asked if she was okay and immediately said she should leave.78

105. At interview the Minister elaborated on this explanation. He agreed that in the course of his conversation with Ms Paul she informed him she had been speaking to , Deputy Chief of Staff to the Premier about the Minister’s Parliamentary performance. The Minister considered he had simply been defending the Government’s position regarding introduction of two new public holidays. The Minister said that as soon as Ms Paul mentioned that her was unwell and became tearful he (the Minister) said “of course we can do it on Monday”. The Minister said if he had known from the start Ms Paul’s was unwell he would not have asked her to stay. The Minister said

76 Statement of Dimity Paul, [69]-[75]. 77 Statement of Dimity Paul, [76]. 78 Statement of the Minister, [44]-[46].

there was no anger involved in the incident at all. He says Ms Paul’s account of the conversation must be a fabricated account because it is so completely different from what actually occurred.

Evidence of 106. is employed in as a . recalls an incident in late February:

… when and I were with the Minister for a full day of meetings offsite. The Minister and I returned to the 121 Exhibition Street office late in the afternoon/early evening. Ms Paul had let me know earlier in the day that her was . Shortly after returning to the office, I overheard (but did not see) a very heated argument between the Minister and Ms Paul which occurred in the Minister’s office. Both were in effect screaming at each other. After the incident, I saw Ms Paul – clearly distressed – collect her possessions and leave the office.79

107. I believe this to be the incident on Friday 27 February. At interview, the Minister confirmed had accompanied him to .

108. provided a statement of his own volition i.e. it was not sent to me on behalf of a party and I have no reason to doubt what he says.

109. There is no other witness to this alleged incident.

110. The Minister disputes evidence that he (the Minister) and Ms Paul were screaming at each other. At interview he said Ms Paul was crying quite loudly by the time she left the room, but the only reason for this was her concern for her .

Conclusion 111. I reject the Minister’s contention that his exchange with Ms Paul that evening was benign. I have no reason to doubt evidence that the Minister and Ms Paul had a very heated argument and were screaming at one another. Even if the exchange between Ms Paul and the Minister was not of the exact character described by Ms Paul, I am satisfied her version is likely to be much closer to the truth than the Minister’s.

112. The Minister had had a difficult week. He had been targeted by the Opposition. He was now being told by his Chief of Staff – rather provocatively, perhaps – that the Premier’s office was concerned about his Parliamentary performance. Ms Paul had previously questioned the way in which the Minister prepared for Question Time. It was a source of conflict between them. Ms Paul’s evidence that the Minister reacted strongly and

79 Witness Statement of dated 19 June 2015, [4(d)] (“Statement of ”).

aggressively to her refusal to discuss the issue at that time does not surprise me. heard shouting and saw that Ms Paul was clearly distressed. The Minister himself describes Ms Paul as crying quite loudly – but attributes this solely to her concern about her . What, then, of the shouting? As so often occurred in this Inquiry, the Minister is in complete denial. He proffers an improbable explanation, totally inconsistent with evidence of a heated argument and shouting. Ms Paul may also have been shouting. I therefore make no finding as to what exactly was said.

113. The fact that I might not be satisfied of the precise circumstances of an alleged incident does not prevent me from recording a finding – so long as there is satisfactory evidence, in relation to that incident, of conduct by the Minister that has adversely affected Ms Paul’s health or well-being. I am satisfied that the Minister’s anger and language contributed to Ms Paul’s distress and that this should be recorded as part of the narrative of the Minister’s conduct toward her.

MEETING ON 2 MARCH

Evidence of Ms Paul 114. Ms Paul says that on or about Monday 2 March 2015 she met with the Minister “to discuss his behaviour towards me”.80 She says:

I told him that I feel very uncomfortable and frightened when he disagreed with my advice, especially that time when he grabbed my face several weeks before.81

115. She continues:

After I made this comment the Minister put his face in his hands and started breathing really heavily. He then said ‘oh no no no no no no. I didn’t mean anything by it. You have misunderstood’.

He said he saw me ‘like a daughter’ and that he wanted to help my husband and I in our careers. He said he was very loyal to us and that I shouldn’t tell anyone about that incident.

I told him that I felt threatened and unsafe when he did that. He stood up and started pacing up and down. He then turned and faced the wall for about 30 seconds without speaking. He turned and said to me ‘what do you want from me?’

I was taken aback. I responded ‘all I want is to do my job and for you not to touch me. I also said that I wanted to be respected and for the staff to be respected’.82

80 Statement of Dimity Paul, [77]. 81 Statement of Dimity Paul, [79].

30 Evidence of the Minister 116. The Minister, in his statement, says the following in relation to this conversation:

I do recall Ms Paul walking in and saying to me that she felt ‘uncomfortable’ and ‘intimidated’ by me. She referred back to the day of the meeting with and to do with the Synchrotron. She did not at any time suggest I had physically touched her and in particular grabbed her by the arm, pulled her into the room, touched her on the face or shook her jaw.

Ms Paul suggested that she felt intimidated as a result of my telling her off and waving my finger at her that day.

I was surprised and upset that she was making this claim, in particular the statement that she was intimidated by me because in my view I had done nothing that had led her to feel that way.

I also recall not only being concerned by the claim she was making but also concerned as to why she was making such an allegation and where it might lead.

I did not say the things Ms Paul now asserts I said …

There was no basis for Ms Paul to feel intimidated as a result of the Synchrotron meeting as I had not done as she alleged and her behaviour towards me after that meeting to this day was unchanged. Ms Paul would still debate, argue and enter my office at what seemed to be her absolute discretion.83

117. The Minister goes on to describe how Ms Paul had later attended a number of events with him.84

Statement to Ms Kirkwood 118. The account of this conversation in Ms Paul’s Statement to Ms Kirkwood is a little different, but the differences are probably not significant, except for one. In the Statement to Ms Kirkwood, Ms Paul says she accused the Minister of “touching” her face. In her 2 June statement Ms Paul says she accused him of “grabbing” her face. This appears to be another example of exaggeration, in the sense that Ms Paul has chosen a harsher word.

119. There is no other evidence relevant to this issue other than that of witnesses who say that anything in the nature of violent or aggressive behaviour would be out of character for the Minister.

82 Statement of Dimity Paul, [80]-[84]. 83 Statement of the Minister, [48]-[53] 84 Statement of the Minister, [54]-[55]

CONCLUSION – 13 FEBRUARY INCIDENT

120. I think it likely the Minister was irritated and embarrassed by what occurred at the Synchrotron meeting. According to the Minister, Ms Paul had said she doubted “we would be in the portfolio in the next year, given how we were going.” The Minister agrees he asked to see Ms Paul after the meeting. He describes a gesture with his hand towards her head and mouth but denies touching her.

121. At interview the Minister explained and demonstrated this gesture. As he was saying “put a filter on it” he pointed to Ms Paul’s head, then her mouth as if to say “think before you speak”. That was the extent of it, he says.

122. The differences between Ms Paul’s version and the Minister’s version are so stark that they cannot be explained by genuine differences in recollection. Ms Paul’s version is either true (or substantially true) or it is a fabrication. I am satisfied it is not a fabrication and that there was, indeed, an incident of the kind she alleges, namely a touching of her face coupled with an admonition and caution. The difficulty is to determine the precise dynamic of the incident. The key to it can, I think, be found in the following extract from her account of the incident, which I repeat:

After I made this comment the Minister put his face in his hands and started breathing really heavily, He said ‘Oh no no no no no no. I didn’t mean anything by it. You have misunderstood’. … He said he saw me like a daughter…85

123. In my view, it would take a fertile and sinister mind to fabricate such a unique piece of narrative. It is unlikely to be an invention, in my view. Therefore, putting really the fairest interpretation on the incident from the Minister’s perspective, I am satisfied he was delivering an admonition to Ms Paul of the kind some parents might deliver to a child, namely by taking the child’s chin to focus the child’s attention and saying, in effect, “don’t do that again”. In the Statement to Ms Kirkwood, Ms Paul said the Minister shook her head “gently”. At interview she sought to resile from this word in her evidence, but it was obviously a word deliberately chosen. I am not satisfied that the incident was other than as described in the Statement to Ms Kirkwood. In that statement Ms Paul says the Minister told her at least three times to “calm down”. This, again, assists in understanding the dynamic of the incident.

124. The Minister, realising how inappropriate it was for him to deliver any form of physical admonition to an employee, has falsely denied that anything of the kind occurred.

85 Statement of Dimity Paul, [80]-[81].

PERIOD BETWEEN 3 MARCH – 24 APRIL

125. Ms Paul states that the Minister’s behaviour “improved for a short period” after the meeting on 2 March.86 She says “he was not raising his voice as much and disagreed with advice less frequently.”87 She says, in relation to Question Time preparation:

The Minister still appeared to be highly stressed, but his behaviour to me and the other staff had moderated and he was raising his voice less frequently.88

126. Ms Paul also says the Minister acknowledged many times that she had been right about preparation for Question Time.89

CONCERNS ABOUT

127. Ms Paul was concerned about . She discussed this with the Minister.90 There is no suggestion the Minister was other and sympathetic, concerned and supportive.

128.

129.

130.

131.

86 Statement of Dimity Paul, [86]. 87 Statement of Dimity Paul, [86]. 88 Statement of Dimity Paul, [92]. 89 Statement of Dimity Paul, [92]. 90 Statement of Dimity Paul, [93]-[96] 91 Statement of . 92 Statement of . 93 Statement of .

132.

133.

134. At interview Ms Paul told me that when she became concerned about health she notified Ms Kirkwood. Ms Paul said Ms Kirkwood was very responsive. Ms Kirkwood had engaged an employee assistance provider (EAP) whom staff could contact if they needed support. Ms Paul informed staff that the EAP was available and believes this information was also circulated in an email from the Premier’s office.

135. Ms Paul also told me Mr McLindon emphasised to the Chiefs of Staff that he had an open door and they should not hesitate to approach him if they had any concerns. Ms Paul did not raise any concerns with Mr McLindon prior to 21 May. Her reasons were, I suspect, the same as the reasons she gave for not raising those concerns earlier with Ms Kirkwood, namely that if she said anything “something would need to be done”, which might have significant ramifications for her future.

INCIDENT ON 24 APRIL 2015

136. Ms Paul alleges the Minister was “very verbally aggressive” towards her and other staff on the morning of 24 April 2015 prior to a scheduled interview by Neil Mitchell on 3AW.97 Ms Paul says:

Prior to the interview he was yelling at me and other staff including and saying that he did not like our preparation for his interview. He told us we were ‘hopeless’.98

137. denies this allegation.99

94 Statement of . 95 Statement of . 96 Statement of . 97 Statement of Dimity Paul, [97]. 98 Statement of Dimity Paul, [99]. 99 Statement of dated 11 June 2015, [49] (“Statement of ”).

34 138. The Minister denies ever using the word “hopeless”.100 He says a Hansard word search of over 1000 speeches he has made over 13 years does not record him using the word “hopeless”.101

139. In response to this Ms Paul told me at interview that if the Minister did not use the word “hopeless” it may have been “useless” or some other word or words to convey that she was actually hopeless and useless. She said she can recall asking the Minister at one stage why he employed her if he thought she was hopeless and useless. According to Ms Paul, the Minister said he liked her energy and that she was bright or smart (or words to that effect).

140. I make no specific finding about this incident.

BUDGET WEEK 2015

141. The 2015 Victorian Budget was delivered on Tuesday 5 May. Ms Paul describes the Minister as being “particularly verbally aggressive towards me on that day”.102 She also describes him as being “very demeaning of Mr Smith”.103 Mr Smith makes no such allegation in his statement.

142. Both the Minister and Ms Paul told me there was tension in the office that day because of the delay in receiving the Budget Papers. The Minister told me they did not arrive until around 1.30pm, with Question Time due at 2.00pm. The Opposition had been in a lock-up with the Budget Papers since 9.30am.

143. Ms Paul alleges the Minister accused her that day, in front of the whole Ministerial office team, of not giving him information he needed for Question Time preparation.104 She says “he was being very [verbally] aggressive”.105

144. At interview Ms Paul told me the Minister was later critical of her for looking at him in a particular way when he was criticising her in front of the staff.

145. The Minister has denied all these allegations. Ms Paul also says the Minister missed a number of commitments that week, but I do not consider this to be relevant other than to suggest he may have been under work pressure.

PREPARATION FOR THE MINISTER’S APPEARANCE AT PAEC

146. The Minister was scheduled to appear before the Public Accounts and Estimates Committee (“PAEC”) on Thursday 21 May. The Minister’s preparation for this event had begun weeks beforehand.

100 Statement of the Minister, [61]. 101 Statement of the Minister, [61]. 102 Statement of Dimity Paul, [105]. 103 Statement of Dimity Paul, [105]. 104 Statement of Dimity Paul, [106]. 105 Statement of Dimity Paul, [107]

35 147. description of the atmosphere in the week leading up to PAEC is as follows:

The week … was spent preparing briefing papers and supporting material. Over the course of the week, the environment in the office was becoming extremely fraught. Updated and final versions of material was still being prepared by our Department. The Minister was rejecting material prepared by staff in the Department and attempting to rewrite the material, causing significant angst among a number of staff members, including me.106

148. The Minister says he wrote a speech for PAEC based on a PowerPoint presentation which he was later told was out of date.107 He seems clearly to blame Ms Paul for failing to provide him with the final, fact-checked PowerPoint so the speech could be revised, if necessary.108

149. According to Ms Paul, the Minister declined to accept her advice on a number of issues relating to the PAEC presentation, became annoyed with her, blamed her for wasting his time, and said everyone in the office was “hopeless” and “incompetent” and that “he had to do their work and that was why he had not yet read his PAEC folder”.109

150. Mr Smith does not comment directly on these issues.

151. The Minister denies that he ever described Ms Paul or the staff as “hopeless”.110

EVENTS OF 20 MAY 2015

152. Accounts of what occurred on 20 May, in whole or in part, have been given by numerous witnesses. It is well recognised that in this situation, even honest witnesses will have different and conflicting recollections of what occurred. It is often impossible to entirely rationalise the evidence of such witnesses – nor is this necessarily required.

153. According to Ms Paul, the events of 20 May provided the catalyst for her complaint to Mr McLindon and Ms Kirkwood the following day.

154. At around 2.00pm on 20 May, Ms Paul received the final PAEC PowerPoint presentation from the Department.111 This presentation formed the basis of the Minister’s PAEC speech, a draft of which had been prepared from a draft PowerPoint presentation a few days earlier. The final presentation was

106 Statement of , [4(e)]. 107 Statement of the Minister, [68]. 108 Statement of the Minister, [70]. 109 Statement of Dimity Paul, [118]-[127] 110 Statement of the Minister, [73]. 111 Statement of Dimity Paul, [134].

36 inconsistent with the draft speech and Ms Paul started to fact check the content of the speech against the final presentation.112

155. Ms Paul alleges that at around 4.00pm the Minister started to pace up and down outside her and other advisers’ offices asking for information and when it would be done.113 also describes the Minister pacing the office and demanding information from various advisers for much of the day.114 At interview, the Minister told me, in effect, that this is an exaggeration.

First exchange – office and hallway 156. Ms Paul recalls the Minister becoming increasingly frustrated that his speech was not ready at 5.00pm, as he wanted to leave the office.115 She says she saw the Minister and in office looking over shoulder at the presentation, and heard the Minister angrily comment that the presentation should have been completed two weeks ago.116 Referring to this specific event, states he did not think that the Minister spoke angrily to Ms Paul.117 At interview, the Minister denied he was looking over shoulder. He said he was standing in the doorway of office.

157. In her recollection of events, Ms Paul then went into office to “check in” and explain the presentation had only been received that afternoon.118 Ms Paul alleges the Minister responded by calling her “hopeless”.119 When Ms Paul attempted to give reasons for the delay – that the Minister had re-written the speech off unverifiable information and therefore staff had to check all of the facts to make sure the information was correct – Ms Paul alleges that the Minister “erupted”:120

After I made this comment the Minister erupted. He raised his voice and told me that I had to stop telling him that he hasn’t done it the right way. He told me that I should have assisted more and if I wasn’t so hopeless, and had demanded things from Mr Richard Bolt (Department Secretary) earlier he would not be in that situation.121

158. When Ms Paul told the Minister to lower his tone and that it was not appropriate to speak to her and other staff in this way, Ms Paul alleges that:

112 Statement of Dimity Paul, [134]. 113 Statement of Dimity Paul, [135]. 114 Statement of , [4(f)]. 115 Statement of Dimity Paul, [137]. 116 Statement of Dimity Paul, [138]. 117 Statement of , [50]. 118 Statement of Dimity Paul, [139]. 119 Statement of Dimity Paul, [141]. 120 Statement of Dimity Paul, [141]. 121 Statement of Dimity Paul, [141].

… the Minister moved close to me and started pointing his finger in my face. At the same time he said in an aggressive and intimidating manner that ‘I can speak how I want to. This is how I am, this is how I act’.122

159. At interview Ms Paul told me that when the Minister pointed his finger at her, his posture was very aggressive.

160. The Minister denies he yelled at Ms Paul, pointed his finger at her, acted in an aggressive or intimidating manner or used the words alleged above.123 The Minister also denies calling Ms Paul “hopeless”.124 Rather, the Minister recalls saying words to the effect of:

… the PowerPoint has been sitting there in the folder for 2 weeks and I have consistently asked you for the final version so that we could finalise my speech, you should have checked all the facts by now.125

161. Ms Paul allegedly replied “the Department was hopeless and dragging its heels”.126

162. The Minister states he then asked Ms Paul for the latest version of the PowerPoint presentation to fact check at home later that night127 and walked away from Ms Paul. Ms Paul allegedly followed the Minister and said “you are normally so good to work with”, to which the Minister recalls responding “Dimity, if you don’t like working with me you are welcome to leave”.128

163. Ms Paul alleges that the Minister walked out of office down to Mr Smith’s office and yelled “this is the way I am if you don’t like it you can all leave”.129

164. recalls the end of the exchange differently, stating:

At this point the Minister stood outside office and got very angry, yelling, swearing and suggesting he would get the Departmental Secretary [Mr Bolt] on the phone to take up with him how late some of the information had come through. He was in an extremely agitated state. I heard the Minister say to Ms Paul in very strong terms she was not doing her job properly and that she should have dealt with the matters at hand sooner.130

165. also notes the Minister’s tone was “serious and strong”.131

122 Statement of Dimity Paul, [142]. 123 Statement of the Minister, [72]. 124 Statement of the Minister, [73]. 125 Statement of the Minister, [71]. 126 Statement of the Minister, [71]. 127 Statement of the Minister, [72]. 128 Statement of the Minister, [72]. 129 Statement of Dimity Paul, [143]. 130 Statement of , [4(f)]. 131 Statement of , [4(f)].

166. Immediately after the exchange, states Ms Paul turned to and said, with tears welling in her eyes “Did you see how he just spoke to me?”132

167. Mr Smith describes hearing this exchange from his office sometime between 5.00pm and 5.20pm. He states he heard shouting between the Minister and Ms Paul (implying both were shouting).133

168. recalls the exchange being more subdued. He describes the Minister saying “just give me whatever the Department has provided so I can get out of here and on to home” before leaving the office and walking towards Mr Smith’s office.134 then describes Ms Paul following the Minister and hearing (but not seeing) the following exchange:

Minister: Is it ready? Where is it? Give me what you have

Ms Paul: You shouldn’t be doing things this way

Minister: If you can’t do it, you shouldn’t be here. You can leave if you want.135

169. notes in his statement that while the Minister’s voice was raised above conversational level, the Minister was not yelling.136 says he thought the Minister’s response was “calm and reasonable”. In my view this is entirely at odds with the preponderance of the evidence.

170. said he spoke to Ms Paul a short time later.137 recalls that Ms Paul said the Minister “had waved his finger at her and she felt threatened”.138 Ms Paul also said it wasn’t the first time and that “this has been happening for six months”.139

171. was a in the Minister’s office. shared an office with . provided brief information to my legal assistant on 18 June under a protocol I developed for that purpose.

172. said that on the night prior to the Minister’s PAEC hearing was in his office with . said heard the Minister shouting. It was quite loud.140

132 Statement of , [4(f)]. 133 Statement of Xavier Smith, [65] 134 Statement of , [27]. 135 Statement of , [30]-[32]. 136 Statement of , [34]. 137 Statement of , [35]. 138 Statement of , [35]. 139 Statement of , [36]. 140 Transcript of meeting with on 18 June 2015.

39 173. said the following day, Thursday 21 May, “Dimity came into my office and she asked me if I heard the Minister shouting the previous evening, to which I replied to her that I had.”141

174. I did not interview and did not therefore have the opportunity to obtain more detail of allegation of the Minister “shouting”.

175. commenced employment in the Minister’s office and is still employed in that capacity. In relation to the events of 20 May states:

There had been a 6.00 p.m. timeline to get the presentation back to the PAEC team so that they could print it. Ms Paul and were quite irritated, so their voices were raised about the timelines of the presentation having to be back in the department by 6.00 p.m. It was clear that the staff were quite stressed.

After that, and Xavier Smith were going over the presentation because thought there were some discrepancies in the trade data. in the Office, and I were in and we heard the Minister yelling really loudly in the vicinity of Ms Paul’s office. I could not tell who the Minister was yelling at. I heard only one person yelling.

… I heard the Minister yelling and I could hear almost exactly what he was saying: “This presentation should have been done weeks ago. Why hasn’t it been done?”. The Minister sounded angry that the presentation was not ready.

I was afraid to leave the office because the sound of the Minister’s voice was so scary, so I stayed in until it had stopped.142

176. I find evidence credible for a number of reasons. First, made no other criticism of the Minister. said “Apart from the events of 20 May 2015, I found the Minister to be pleasant”.143 Next, did not know Ms Paul, Mr Smith or the Minister prior to commencing employment. Finally, although was suggested as a potential witness by Maurice Blackburn on behalf of Ms Paul, told me, and I accept, that has had no contact with Ms Paul, Mr Smith or the Minister or their legal representatives since 21 May.

Second exchange – Mr Smith’s office 177. Following the first exchange between the Minister and Ms Paul, the Minister walked into Mr Smith’s office. Mr Smith states the Minister then demanded he print the “hot issues” folder, reaching over Mr Smith’s shoulder, pointing at the screen, and claiming it should have been completed two hours earlier.144 The

141 Transcript of meeting with on 18 June 2015. 142 Statement of dated 24 June 2015, [5]-[8] (“Statement of ”). 143 Statement of , [13]. 144 Statement of Xavier Smith, [67].

Minister states he asked Mr Smith how long he was going to be with his work, and said words to the effect of “You’ve had all day to complete the task and that he should just print the document” and “Come on mate just press the print button – I need it now”.145 The Minister acknowledges he may have been speaking louder that a conversational tone, but says he did not yell at Mr Smith.146

178. Mr Smith, in his reply, does not dispute the Minister’s words but maintains the Minister was shouting, aggressive and angry, “standing very close behind me”.147

179. Ms Paul states that, having followed the Minister to Mr Smith’s office, she then tried to intervene and explain that the office was doing its best to support him.148 Mr Smith recalls Ms Paul was visibly upset by this stage149 and that she said to the Minister “you’re so lovely most of the time”.150 At interview Mr Smith told me that when Ms Paul said this she was almost crying. Ms Paul alleges the Minister then told her to go away, and repeated that if she didn’t like the way he behaved she should leave.151 Mr Smith recalls the Minister saying “you are free to leave at any time Dimity”.152 Ms Paul’s recollection is that this exchange occurred before the Minister entered Mr Smith’s office.

180. says he saw the Minister walk into Mr Smith’s office, followed by Ms Paul. The following exchange then allegedly occurred:

Ms Paul: Your reaction is not helping

Minister: Leave me alone

Ms Paul: You have really been so good to us, but the way you are behaving today is not helping

Minister: I said leave me alone, if you don’t like it you can go elsewhere, you can all find another job.153

181. says Ms Paul did not speak to the Minister in as loud as manner as the Minister spoke to Ms Paul. While the Minister’s voice was raised above conversational level, he was not shouting or screaming.154 Again, this is contrary to the preponderance of the evidence, in my view.

145 Statement of the Minister, [75]-[76]. 146 Statement of the Minister, [76]. 147 Witness Statement in reply of Xavier Smith, [17] (“Reply statement of Xavier Smith”) 148 Statement of Dimity Paul, [144]. 149 Statement of Xavier Smith, [68]. 150 Statement of Xavier Smith, [68]. 151 Statement of Dimity Paul, [144]. 152 Statement of Xavier Smith, [68]. 153 Statement of , [18]-[21]. 154 Statement of , [23].

182. Following this exchange, Ms Paul recalls that the Minister went into his office and was followed by Mr Smith.155

183. Mr Smith, however, recounts that after the Minister left, he and Ms Paul were joined by who said words to the effect of “first the Minister gets stressed, then he shouts, then he gets physical”.156 This allegation is strongly [Witness redacted 157 denied by above] . Mr Smith then indicated to Ms Paul that he would speak to the Minister.158

184. Ms Paul does not describe this particular three-person discussion.

185. Mr Smith recalls seeing Ms Paul, visibly distressed, speaking with at approximately 5.45pm in her office.159

186. describes a sequence of events at around this time when the Minister approached Mr Smith’s office and asked him to update a table of contents for one of the PAEC documents. Mr Smith allegedly responded “You should have asked me to do this an hour ago, not now”.160 says he was “shocked” at the way Mr Smith spoke so dismissively to the Minister.161

187. Mr Smith, in his reply, agrees he said words to that effect.162 Indeed on a number of occasions in his reply Mr Smith makes concessions of this kind, which I found quite refreshing. Mr Smith says he did not intend to speak dismissively to the Minister. He says he was frustrated by the Minister’s demand, which he thought was unreasonable.

Third exchange – The Minister’s office 188. Mr Smith states he went to the Minister’s office at approximately 6.00pm.163 At interview he told me that when he entered the Minister’s office he was angry. Mr Smith said he had been melancholy leading up to 20 May because of the recent death of his college chaplain, but was surprised how his mood changed after the earlier events of 20 May. He told me he felt the Minister’s behaviour was unacceptable and someone needed to have a discussion with him. He indicated to Ms Paul that he would speak to the Minister. He thought he was the appropriate person to do so because he had worked the longest with the Minister and because the Minister was stressed and he (Mr Smith) understood what it was like to be stressed.

155 Statement of Dimity Paul, [145]. 156 Statement of Xavier Smith, [70]. 157 Statement of , [55]. 158 Statement of Xavier Smith, [71]. 159 Statement of Xavier Smith, [73]. 160 Statement of , [28]. 161 Statement of , [32]. 162 Reply Statement of Xavier Smith, [31]. 163 Statement of Xavier Smith, [74].

42 189. Mr Smith went into the Minister’s office and closed the door. They discussed the presentation. Mr Smith recalls the Minister appearing agitated, claiming he should have been provided with the materials two weeks ago.164 Ms Paul (who was standing outside the door, listening) alleges that during this exchange, the Minister was yelling, saying the presentation should have been completed two weeks ago and that Mr Smith was “hopeless”.165 The Minister denies calling Mr Smith “hopeless”.166

190. Mr Smith recounts that when he raised the earlier events, the Minister agreed he should not have spoken to Mr Smith as he did, and that he should have left Mr Smith alone.167 Mr Smith states that when he then mentioned Ms Paul, the Minister became aggressive168 and made the following statements:

“I can speak to my staff any way I like”

“You and anyone else want to leave, they can”

“I am who I am”

“You have no right to lecture me”

“I have given Dimity too much latitude”

“You do not understand the issues”

“You’ve overstepped the mark” 169

191. appears to deny that the Minister made any of the statements quoted above, other than to the effect “You and everyone else wants to leave, they can”.170 statement in this regard is confusing because he refers to comments by the Minister to Ms Paul. I am satisfied the door to the Minister’s office was closed during this exchange. I am also satisfied Ms Paul was standing at the door listening (confirmed by her at interview). was in an adjoining office. He gives no account of the conversation, other than to (apparently) deny Mr Smith’s version. It is unclear what he could have heard through the wall – other than, perhaps, the Minister’s raised voice.

192. For reasons I will give later in the Report, I accept Mr Smith’s version of the conversation.

193. At interview, Mr Smith said the Minister was shouting at him (though he does not allege shouting in his statement). He said Ms Paul knocked on the door,

164 Statement of Dimity Paul, [146], Statement of Xavier Smith, [76]. 165 Statement of Dimity Paul, [146]. 166 Statement of the Minister, [80]. 167 Statement of Xavier Smith, [77]. 168 Statement of Xavier Smith, [78]. 169 Statement of Xavier Smith, [79]. 170 Statement of , [56].

opened it, and stuck her head in saying words to the effect “the presentation was nearly complete”.

194. The Minister does not recall Mr Smith raising anything regarding the treatment of Ms Paul.171 The Minister alleges Mr Smith simply asked if he had everything he needed and whether “we could all be friends”.172 Mr Smith, in his reply, denies making this remark.173 At interview the Minister said he also told Mr Smith the PowerPoint should have been done two weeks previously and something like “all that matters now is PAEC or there might not be an us”. The Minister told me the tone and volume of the exchange with Mr Smith were “conversational”. There was no yelling. There was no mention of Ms Paul.

195. Mr Smith strongly asserts that he confronted the Minister about the way the Minister had spoken to Ms Paul. Mr Smith relies in this regard on notes he said he made the following day and which are attached to his statement in reply. In regard to this exchange the notes state:

Asked if he needed anything

Asked if he was okay

Discussed presentations and how office has had problems

I said I understood it was stressful and I couldn’t imagine his feelings

Said we need to talk about “before”

Adem said he was going to talk to me late tonight about his attitude, he knew he shouldn’t have been so aggressive

I said I was fine, but we would have to talk about Dim

He didn’t understand why or that there was a problem, I said the agression [sic]

“He” has the right to talk to his staff any way he wishes and if she or anyone else wants to leave they can” – I am who I am

Adem: I have given you and Dimity too much latitude [sic]

You’ve overstepped the line/mark

I had no right to lecture him

Dim should’ve provided lecture 2 weeks ago174

171 Statement of the Minister, [81]-[82]. 172 Statement of the Minister, [78]. 173 Reply Statement of Xavier Smith, [18]. 174 Reply statement of Xavier Smith, [XS-1].

196. The Minister disputes almost entirely Mr Smith’s account of the conversation in the Minister’s office as recorded in Mr Smith’s notes. For reasons I will further explain in my conclusions on this topic, I am satisfied that the notes are substantially accurate.

197. The Minister recounts that he then received a call from about the PAEC preparation and that Mr Smith left the office at this stage.175 This is inconsistent with the accounts of both Ms Paul and Mr Smith.

198. Ms Paul recalls waiting outside the Minister’s office while the discussion between Mr Smith and the Minister occurred. She then tried to intervene.176 She alleges the Minister yelled at her for not getting Mr Bolt on the phone and asked why the Department hadn’t helped more.177

199. At this stage, Ms Paul recalls approaching her and suggesting she get a Departmental officer up to the office to assist. Ms Paul declined as she did not want Departmental officers in the office when the Minister “was like he was” as it looked bad and was bad for his reputation.178 does not describe this conversation. Mr Smith’s recollection of this conversion is limited. He simply states Ms Paul entered the office saying she wanted to advise on the presentation progress, before leaving.179

200. After Ms Paul left the Minister’s office, Mr Smith alleges the Minister claimed that he was “taking over the office and that everything would come through him”.180 Mr Smith apologised to the Minister if the earlier conversation appeared as though he was trying to lecture the Minister and reiterated that staff were there to assist the Minister.181

201. Upon returning to his office, Mr Smith recalls coming into his office and stating that it was best to leave the Minister when he is “like that” and repeating that the Minister gets aggressive and then gets physical.182 Mr Smith confirmed this at interview. emphatically denies he said this to Mr Smith.183

202. According to Mr Smith, this was the second time said words to the effect that the Minister gets “physical”.184

175 Statement of the Minister, [84]. 176 Statement of Dimity Paul, [147]. 177 Statement of Dimity Paul, [147]. 178 Statement of Dimity Paul, [148]. 179 Statement of Xavier Smith, [80]. 180 Statement of Xavier Smith, [81]. 181 Statement of Xavier Smith, [82]. 182 Statement of Xavier Smith, [85]. 183 Statement of , [57]. 184 Statement of Xavier Smith, [85].

45 203. Ms Paul describes a similar conversation with occurring after she left the Minister’s office:

then approached me and told me that he thinks the Minister’s behaviour is out of line. He said that we have to keep him calm so that he doesn’t get violent. He then said that the office will have to deal with the Minister’s issues in the morning as he can’t be reasoned with when he is like he is.185

204. denies this account of what was said. He states he simply asked Ms Paul whether the Minister had become violent:186

You have said this is happening all of the time for the last six months. Verbal abuse and threats. The next step would be violence, has this happened?187

205. made handwritten notes of the events of 20 May after being contacted by Ms Kirkwood. He says he made those notes on 25 May.188 On this issue the notes simply state “at one point somehow I asked if there was anything physical. She [Ms Paul] said ‘No’”.189

206. Ms Paul disputes evidence of the context in which he used the word “physical”. At interview, she said looked very concerned and said words to the effect “this is not good”.

207. appears to be saying he was challenging Ms Paul’s allegation that the Minister might behave violently, rather than acknowledging that such behaviour might actually occur. I would be surprised if Mr Smith and Ms Paul have simply invented this part of the narrative. However, not having had the opportunity to interview and I refrain from making any finding on this issue.

208. explanation is, however, of significance for another reason. Although his statement is generally favourable to the Minister (overly so, in my view) and critical of Ms Paul (again, overly so, in my view) he acknowledges that Ms Paul complained of other “abuse and threats”.

209. denies saying that the Minister cannot be reasoned with when “like this”, rather that they should not deal with the issue that night as PAEC was the next morning.190

210. After this, Ms Paul sat in her office and waited for the Minister to leave before attending a pre-organised dinner with her husband.191 She states she was

185 Statement of Dimity Paul, [149]. 186 Statement of , [52]. 187 Statement of , [37]. 188 Statement of , [44]. 189 Statement of , Annexure 1. 190 Statement of , [52].

tearful and cried in her office, and that came into her office to check in with her.192

Aftermath 211. Mr Smith recalls accompanying Ms Paul to her dinner function at the Spaghetti Tree restaurant at approximately 7.00pm.193 He recalls Ms Paul expressing distress at the earlier events and whether she should inform the Premier’s office, as well as the implications for her career.194 Ms Paul does not refer to this conversation in her statement.

212. At interview, Mr Smith said when he was walking with Ms Paul to the Spaghetti Tree restaurant she was agonising about what she should do – whether she should report what had happened. She was concerned about the effect on her career and recriminations in one form or another.

213. Mr Smith states that at about 9.06pm the Minister called to tell him that they needed to part ways and not to come into the office the next morning.195 Mr Smith asserts the following statements from the Minister, recorded in notes he made the following day:

“Look, you don’t need to come in at 7am tomorrow.”

“We need to part ways.”

“I’ve tried to be loyal to you.”

“You will need to find another job.”

“Regular procedures will be followed.”

“So, don’t come in at 7am.”

“Good luck to you.” 196

214. At interview, the Minister did not dispute Mr Smith’s account as recorded in his notes, except for the line “you need to find another job”. The Minister also says he told Mr Smith that HR would be contacted the following day (this is not in the Minister’s statement: Mr Smith has not therefore had an opportunity to respond to it).

215. Ms Paul recalls that at around 9.15pm, she received a phone call from Mr Smith informing her he had been dismissed.197 They met later in the evening.

191 Statement of Dimity Paul, [150]. 192 Statement of Dimity Paul, [150]. 193 Statement of Xavier Smith, [88]. 194 Statement of Xavier Smith, [88]. 195 Statement of Xavier Smith, [90]. 196 Statement of Xavier Smith, [90]. 197 Statement of Dimity Paul, [153].

Ms Paul subsequently sent a text message to Mr McLindon to arrange a meeting the following day.198

216. Mr Smith believes he was dismissed “for standing up to the Minister for his treatment of Ms Paul”.199 The Minister emphatically denies this.200 The Minister says he dismissed Mr Smith because “the problems with his work efficiency were too significant”. According to Mr Smith, there was no mention of his performance in the dismissal telephone call, nor is there any such mention in the notes made by Mr Smith the following day. I will return to this issue in my conclusions on the events of that day.

217. The Minister says that “Ms Paul was photographed celebrating at an ALP function that night”.201 Mr Smith says in his reply that he walked with Ms Paul to the restaurant where the function was held and that she was “visibly distressed as to what happened between her and the Minister beforehand”.202 There is, in my view, ample evidence of Ms Paul’s distress that day.

Complaint by Dimity Paul on 21 May 218. Ms Paul reported for work the next morning at 7.00am as requested by the Minister. She had decided to make a complaint but says she wanted to keep the Minister calm before PAEC “so he can perform the best he can”.203 She accompanied the Minister from his office to Parliament House. At about 11.00am Ms Paul met Mr John McLindon and, she says, informed him what had occurred the previous night and over the preceding five months.204 In doing so she says she became distressed and tearful.205

219. At interview Ms Paul told me her decision to speak to Mr McLindon was actuated mostly by the dismissal of Mr Smith. She said she was ambivalent about how much she should say because she felt ashamed about what had happened to her.

220. Later that day Ms Paul was called back to the Premier’s office to meet Mr McLindon and Ms Kirkwood. As stated earlier, Ms Paul produced a typed account as presented it to Ms Kirkwood the following day.

EVENTS OF 20 MAY – CONCLUSION

221. In my view the key to what occurred on 20 May is to be found in the reason for, and circumstances of, Mr Smith’s dismissal.

198 Statement of Dimity Paul, [155]. 199 Statement of Xavier Smith, [92]. 200 Statement of the Minister, [89]-[90]. 201 Statement of the Minister, [91]. 202 Reply statement of Xavier Smith, [25]. 203 Statement of Dimity Paul, [159]. 204 Statement of Dimity Paul, [166]. 205 Statement of Dimity Paul, [167].

48 222. Mr Smith told me he made his handwritten notes (referred to earlier) on 21 May. It is not surprising that a person dismissed in circumstances he (or she) regards as unfair would make notes of what occurred. Mr Smith didn’t then know there would be a formal inquiry – or indeed any inquiry.

223. I took the Minister, first of all, to Mr Smith’s account (set out above) of the dismissal telephone conversation at 9.06pm on 20 May. As I said earlier, the Minister is in substantial agreement with the accuracy of this account (which differs slightly - though not significantly – from Mr Smith's statement of evidence).

224. Earlier in his handwritten notes Mr Smith set out, in point form, an account of his conversation with the Minister, in the Minister’s office, late in the afternoon of 20 May. The thirteen dot points of that handwritten account also appear earlier in the Report. The notes do not describe any other aspect of the events of that day. This is understandable: Mr Smith was recording the circumstances surrounding his dismissal, as he perceived them.

225. As I have observed, the Minister disputes almost entirely Mr Smith’s account of the conversation as recorded in his notes. He agrees that what Mr Smith has recorded, if wholly untrue, can only be a fabrication.

226. So Mr Smith has made substantially accurate notes of the telephone conversation, but has fabricated an account of the meeting in the Minister’s office hours earlier? This is improbable.

227. As earlier stated, the Minister disputes there was any mention of Ms Paul in the conversation in his office. He disputes he had said or done anything at all that would give Mr Smith cause to intervene on her behalf. The most the Minister will concede is that he had been exasperated by the delay in producing what he needed for PAEC and may earlier have raised his voice “above conversational level” to express that exasperation. He denies yelling at Ms Paul, or any display of aggression or discourtesy.

228. At interview, the Minister conceded that, until this Inquiry began, he had not experienced Mr Smith making false allegations or telling lies.

229. In the midst of the conflicting evidence of what occurred that day are pointers to the truthfulness of Mr Smith’s explanation for his visit to the Minister’s office: evidence (supported by ) of the Minister “yelling really loudly”, so “scary” that was afraid to leave office;206 evidence of the Minister in an extremely agitated state and the Minister yelling, swearing and criticising Ms Paul;207 evidence of Ms Paul, with tears welling in her eyes saying “Did you

206 Statement of , [6], [8]. 207 Statement of , [4(f)].

49 see how he just spoke to me”;208 Ms Paul’s evidence of listening through the door and hearing Mr Smith challenging the Minister’s treatment of her.209

230. There is, of course, contradictory evidence, but it cannot resolve the stark difference between the Minister’s account of his conversation with Mr Smith and the account so tellingly recorded in Mr Smith’s notes and which, to my mind, explains why the Minister telephoned Mr Smith at 9.06 that evening. I do not accept the Minister’s assertion that performance issues were the sole reason for Mr Smith’s dismissal. The Minister agrees performance issues were not mentioned in the telephone conversation. The Minister had been very supportive of . The Minister says that although those issues resulted in , “ Mr Smith was more than capable of producing good quality work.”210 The Minister knew – this is clear from the Minister’s statement and was reiterated by him at interview. He says he had discussions with Ms Paul about whether Mr Smith needed to be moved on but was concerned “it may damage his self-confidence”.211 The Minister had had discussions with a , about a possible position for Mr Smith . The Minister told me that at the time he dismissed Mr Smith, this position was still an option, though he did not mention it in the telephone call. The Minister did not tell Ms Paul he was about to dismiss Mr Smith. Ms Paul told me at interview she was very surprised to learn the Minister had done so having regard to his previous concerns.

231. Despite all this, without any formal warning, without further discussion with Mr Smith or Ms Paul, without speaking again to , without mentioning performance issues in the telephone conversation, without any arrangements for counselling or support, the Minister impulsively rang Mr Smith at 9.06pm to dismiss him. The Minister told me he did this because when he looked at Mr Smith’s work that night he was again unimpressed with it. I asked him why. He said the content in the “hot issues” folder was satisfactory but the formatting was most unhelpful and not what he required. The Minister said Mr Smith had been unable to provide him with basic information he required during the day. The Minister said he had plucked up the courage to dismiss Mr Smith that night but was concerned he might have lost it by the next day.

232. I accept concerns about Mr Smith’s work performance played some part in the Minister’s decision to dismiss him, but I am far from convinced it was the main reason. The true reason lies in Mr Smith's account of what had occurred in

208 Statement of , [4(f)]. 209 Statement of Dimity Paul, [146]. 210 Statement of the Minister, [56]. 211 Statement of the Minister, [57].

50 the Minister’s office earlier that day. Whether it was wise for Mr Smith to intervene on his manager's behalf is perhaps another issue, but intervene he did, and it cost him his job. Of that I am comfortably satisfied.

233. I had the opportunity to interview Mr Smith and to make an assessment of him. I am quite convinced he has not fabricated his account of his conversation with the Minister in the Minister’s office on 20 May or his reasons for it.

234. Once these findings are made the Minister’s credibility in relation to the entire incident is severely eroded. I am satisfied that the accounts of the events that day given by Ms Paul, Mr Smith and the witnesses who support their accounts are substantially more accurate than the accounts of the Minister and witnesses who tend to support the Minister’s account.

OTHER EVIDENCE

235. is the In this role, he met with the Minister and Ms Paul 20-30 times between February and May 2015.212 He observes that the relationship between the two was no different from what he had seen in many other Ministerial offices and that he witnessed no bullying or inappropriate interaction.213 states that Ms Paul was professional and competent in all his dealings with her.214 Equally, states that all his dealing with the Minister were positive and constructive.215

236. Ms Paul does not dispute this evidence.

237. general observation in the lead up to PAEC was of the Minister’s nervousness, which puts down to the Minister having recently been intensely questioned in the Legislative Council.216

238. states that sometime between 7.00am and 7.30am on Thursday 21 May, he called Ms Paul as he had missed a call from her the evening prior.217 By this stage, he was aware that the Minister had requested a restructure of his PAEC folder late the evening before. He says:

At the start of the phone call I asked Ms Paul if everything was okay and if the Minister was all set for his PAEC hearing. Ms Paul’s usually confident voice

212 Statement of dated 3 July 2015, [6] (“Statement of ”). 213 Statement of , [7], [9]. 214 Statement of , [10]. 215 Statement of , [10]. 216 Statement of , [3]. 217 Statement of , [4].

51 was wavering and I sensed that something was not right. She sounded upset. Ms Paul advised me that there was an incident the previous night in the Minister’s office and the Minister had walked out. Ms Paul also advised there were some other issues going on and she would deal with them after PAEC. She did not elaborate further nor did I ask her to. Dimity sounded very fragile and I again asked if she was okay. I told her that she had done a great job on preparing the Minister for PAEC and that the advice and direction she provided to the Minister in each meeting I had attended was exactly right and that she should feel very comfortable with her actions and advice.218

239. A statement from was provided by the Minister’s lawyers. is a . He met Ms Paul through the ALP about five years ago.

. .219

240. says he has spoken to Ms Paul on a number of occasions about various matters including her employment by the Minister. He says although Ms Paul has been critical of the Minister in a number of respects, she has never alleged he was aggressive, inappropriate or intimidating.220 most recent discussions with Ms Paul were in early May.

241. At interview Ms Paul told me she was selective in who she told about what was actually occurring at work. She said she was concerned about the effect on the government and herself. As I mentioned earlier, she claims she didn’t tell about the incident on 13 February for two weeks because she was shocked and confused by what had happened and wondered whether she had done something wrong.

242. On the Minister’s own admission, Ms Paul told him on 2 March that she felt “uncomfortable” and “intimidated” – at least as a result of the incident on 13 February.221 She had also complained to – whose evidence I accept.

243. Ms Paul told me the reason she didn’t raise her concerns with Ms Kirkwood before 21 May were various. They included a realisation that if she made a report to Ms Kirkwood, “something would need to be done”, which could have an impact on her career in politics and her employment outside of politics.

244. For these reasons I attach limited weight to evidence of his conversations with Ms Paul – which occurred in or prior to early May.

218 Statement of , [5]. 219 Review into the conduct of Adem Somyurek MP toward his Chief of Staff: Statement from dated 8 June 2015, page 1 (“Statement of ”). Statement of , page 2. 221 Statement of the Minister, [48].

245. A statement from was provided by the Minister’s lawyers. says he knew Ms Paul socially .222 . has known the Minister for approximately years.223

.224

246. says he has been “involved in the political life and governments of the Australian Labor Party (ALP) over the last decades.”225 He says:

Ministerial offices are not 9-5 workplaces and are often highly charged with long hours and staff, particularly senior staff, work under considerable pressure and tight timelines.226

247. He goes on to say, however, that “this was one of the quietest offices I have ever worked in or known.”227

248. says that in the initial weeks, he and Mr Smith were the Minister’s sole advisors.228

249. It is clear considered Ms Paul a poor appointment as the Minister’s Chief of Staff. He did not consider she had sufficient experience.229 says he attempted to mentor Ms Paul but found her “unreceptive to suggestions or advice”.230 Notwithstanding Ms Paul’s appointment as Chief of Staff, the Minister asked .231 According to , Ms Paul was unimpressed by this decision, regarded as a potential competitor and went to great lengths to marginalise him.232

250. says:

The Minister’s behaviour in the office and generally was to my own mind at all times measured and appropriate. I never heard the Minister raise his voice or

222 Statement of in relation to the Inquiry into matters concerning the Office of the Minister for Small Business, Innovation and Trade: The Hon. Adem Somyurek dated 10 June 2015, [9] (“Statement of ”). 223 Statement of , [5]. 224 Statement of , [14]. 225 Statement of , [3]. 226 Statement of , [7]. 227 Statement of , [7]. 228 Statement of , [5]. 229 Statement of , [10]. 230 Statement of , [12]. 231 Statement of , [14]. 232 Statement of , [13], [15]-[19].

shout or yell in the office or otherwise act in an unseemly or inappropriate way.233

251. In contrast he is highly critical of Ms Paul’s behaviour.

252. is unable to throw light on any of the specific incidents discussed in these findings. At interview, Ms Paul told me came into the office “sporadically”, perhaps once a fortnight, once the office was fully staffed towards the end of January.

253. comments about the Minister’s behaviour are so contrary to other evidence I can only assume wasn’t present when the Minister’s conduct was other than he has described, alternatively has allowed his obvious dislike of Ms Paul to colour his perception. I do not find his evidence helpful.

254. was employed in the Minister’s office from .234 has years’ experience in .235 . Initially, worked under the direction of , and describes working with and Mr Smith preparing for the Minister ahead of the Parliamentary sitting.236

255. When Ms Paul commenced the role of Chief of Staff, found her to be “bright and energetic”237 but subsequently “chaotic”,238 “emotional and unprofessional at times”,239 and “inappropriate and unprofessional”.240 says “put most of the above issues down to Ms Paul’s apparent lack of experience”.241 says felt Ms Paul “was probably a little over her head in such a senior role”.242 says one of the reasons left in was because of the “unprofessional environment”.243

256. describes the Minister’s manner as “very professional, pleasant, courteous and nice”,244 although did not work with him directly. says never witnessed or experienced the Minister touching any person in the

233 Statement of , [21]. 234 Statement of dated 9 June 2015, [3]-[4] (“Statement of ”). 235 Statement of , [2]. 236 Statement of , [5]. 237 Statement of , [10]. 238 Statement of , [11]. 239 Statement of , [13]. 240 Statement of , [13(b)]. 241 Statement of , [14]. 242 Statement of , [14]. 243 Statement of , [15]. 244 Statement of , [6].

54 office in an inappropriate way or shouting at anyone or threatening anyone or raising his voice.245 description of the Minister is consistent with that of – that is, that the Minister was generally pleasant.246

257. was in the Minister’s office for only five weeks of the relevant period. I can understand a of long experience being unimpressed by a -year-old manager whom regarded as brash, abrasive, overconfident, domineering and under-qualified. It is clear, however, that while had a very poor regard for Ms Paul, thought highly of the Minister. evidence must be viewed through that lens.

258. I am satisfied from other evidence that there was behaviour prior to which Ms Paul found to be aggressive and demeaning. Apparently this did not occur within sight or hearing of .

259. The Minister’s lawyers have provided a statement by . is employed . has worked in that role, on a full time or casual basis since .247

260. describes the Minister as always calm and supportive.248 says:

I have never witnessed [the Minister] being aggressive, intimidating or swearing at anyone in the office … I have also never witnessed or experienced the Minister physically touching any person in an inappropriate way.249

261. Further, if a staff member made a mistake, says, “the Minister would not shout at, ridicule or become visibly upset or aggressive towards us”.250 continues: “I have certainly never witnessed the Minister refer to staff or any other person as “hopeless” or “useless”, or use any derogatory or profane language directed at another person”.251

262. is highly critical of Ms Paul and Mr Smith. criticisms can fairly be described as an attack on their character. I will deal generally with attacks on Ms Paul’s and Mr Smith’s character later in this Report.

245 Statement of , [8]-[9]. 246 Statement of , [14]. 247 Statement of dated 9 June 2015, [1] (“Statement of ”). 248 Statement of , [8]. 249 Statement of , [7]. 250 Statement of , [8]. 251 Statement of , [8].

263. A statement by has been provided by the Minister’s lawyers. is currently employed by as .

264. begins by describing Ms Paul and as “ ”.252 doesn’t explain “ ”. When asked about this at interview, Ms Paul noted that she wasn’t aware that no longer considered her a friend until she read his statement provided to the Inquiry.

265. says Ms Paul was very critical of two members of Parliament by whom she was previously employed.253 If it is being suggested that Ms Paul has a propensity to make complaints about her employers, I observe that she has not previously complained, so far as I am aware, of being bullied.

266. says has spoken to Ms Paul and her husband on a number of occasions this year. says Ms Paul spoke positively about her work with the Minister and made no complaint about aggressive or intimidating behaviour.254

267. has known the Minister for five years and describes him as a “mentor”.255 says worked with the Minister during the election campaign and at no time did the Minister raise his voice in anger.256 says is struggling to comprehend the allegations made about the Minister.257

268. As I have already said, there may be reasons why individuals choose not to share unpleasant experiences in the workplace with others. In this regard I note describes speaking to , amongst others, at a fundraiser on 24 April 2015.258 says highlighted how much Ms Paul was enjoying working for the Minister. Obviously, made no mention to of matters he has included – credibly, in my view – in his statement (e.g. outbursts of exasperation and irritation by the Minister; a very heated argument between the Minister and Ms Paul in the Minister’s office in February when both were “in effect screaming at each other”; Ms Paul’s clear distress).

252 Statement by dated 9 June 2015, page 1 (“Statement of ”). 253 Statement of , page 4, 5. 254 Statement of , page 2-3. 255 Statement of , page 7. 256 Statement of , page 8. 257 Statement of , page 8-9. 258 Statement of , page 3.

269. then speaks of experiences with Mr Smith, whom has known since 2010 in Labour Party circles.259 is critical of Mr Smith’s competence in his work Mr Smith with Victorian Young Labor.260 Again, I will deal with attacks on the character of Mr Smith and Ms Paul later in this Report.

270. says that maintained contact with Mr Smith’s after Mr Smith’s appointment to the Minister’s office. said Mr Smith always indicated that he enjoyed working for the Minister.261 This is a good illustration of how an individual might be reluctant to talk about problems at work. There is an abundance of evidence Mr Smith found work in the Minister’s office very stressful at times. Even the Minister was aware of Mr Smith’s stress. Obviously he didn’t share all this with . That doesn’t mean it didn’t happen. Mr Smith simply chose not to share it.

271. A statement by was provided by the Minister’s lawyers. has been a since .

272. describes several conversations he had with the Minister in January and February 2014 which left him with the “impression” that prior to the election, when Mr Smith was working on a particular policy paper for then Shadow Minister Somyurek, Mr Smith “was unable … fully fulfil the task”.262 The only possible relevance of this might be in relation to Minister’s decision on May 20 to dismiss Mr Smith. In view of the conclusion I have reached and expressed, there is no connection at all.

273. also says he would bump into Mr Smith in 2015. They would have a brief conversation and Mr Smith always said things were going well.263 This evidence is not helpful. I would not expect Mr Smith, in brief exchanges with , to be airing grievances about his experiences in the Minister’s office.

274. also had a conversation with Mr Smith at a fundraiser on 24 April 2015. asked Mr Smith how he was getting on in the Minister’s office. He said Mr Smith was “favourable” in his assessment.264 As at 24 April, Mr Smith was finding work is stressful and was concerned about

259 Statement of , page 1. 260 Statement of , page 6. 261 Statement of , page 7. 262 Inquiry into the office of the Hon. Adem Somyurek MP, Minister for Small Business, Innovation and Trade dated 3 June 2015 and signed 9 June 2015, page 4 (“Statement of ”). 263 Statement of , page 4-5 264 Statement of , page 5.

57 the pressure he felt he was under, but had no specific complaints about the Minister’s conduct at that time.

and 275. For the reasons discussed in the preceding paragraphs and elsewhere in this Report, I see no need for me to deal specifically with the statements of and .

PERSONAL ATTACK ON MS PAUL

276. A number of statements provided by the Minister’s lawyers contain strong personal criticism of Ms Paul – indeed, a strong attack on her character. Supporters of Ms Paul might well contend that Ms Paul, having been bullied at work was bullied again when she had the affront to complain. I don’t characterise the criticisms of Ms Paul in that way, but I have to say I found the criticisms to be excessive and, in some respects, gratuitously unkind. I will however, give them the weight they deserve – which isn’t very much at all.

277. It is said, for example, Ms Paul was openly critical of the Minister and her former employers.265 The relevance of this is not clear – except, perhaps, to show she had a propensity to complain and to disparage her employers. On the other hand, I am unaware of any suggestion she accused a previous employer of inappropriate physical contact, or of speaking to her in an aggressive, demeaning way or hurtful way.

278. Next it is said, in effect, that Ms Paul was at times overconfident, difficult, overbearing, strident, loud and coarse.266 Again this evidence (if accurate) could only be relevant if it in some way bears upon the truthfulness of the assertions she makes about the Minister’s conduct. I assume what is being said is that Ms Paul’s own conduct is inconsistent with Ms Paul herself being the victim of any form of bullying. If that is the argument, it does not persuade me. Next it may be said Ms Paul’s own conduct is inconsistent with an allegation she was psychologically harmed by the conduct of the Minister. I would find such a contention equally unpersuasive. I accept Ms Paul is a robust individual, essentially. There is ample evidence, however, that she was no less prone to distress and tears than any other employee would be in the circumstances.

279. One of the criticisms of Ms Paul is that she would use the word “fuck” or variations of it.267 Mr Smith told me at interview that the Minister used that word, sometimes aggressively. The Minister, at interview, conceded occasional use of the word, though never in anger. Mr Smith told me he (Mr

265 See, e.g., Statement of , Statement of . 266 See, e.g., Statement of , Statement of and Statement of 267 Statement of dated 9 June 2015, [13(d)].

Smith) also used that word at times, as did . I attach no weight to any of the criticism of Ms Paul on this score.

280. I cannot depart this topic without recording that Ms Paul appears to be well regarded by a number of members of the Minister’s staff and others with whom she had contact in the course of her duties. In particular, I note the independent statements I received all describe Ms Paul as being enjoyable to work with and being “very approachable”,268 a “positive” person,269 and “very professional and competent”.270

281. These paragraphs will explain why I declined to interview two character witnesses whose names were presented by Ms Paul’s lawyers, namely and . It was not apparent that they could add relevantly to the issues in dispute.

PERSONAL ATTACK ON MR SMITH

282. I have dealt with the criticisms of Mr Smith, particularly those of and , above. Overall, the allegations against Mr Smith are historic and fall outside the Inquiry period. They are not relevant to the issues raised by my Inquiry and I did not find them helpful. As to the attacks on Mr Smith’s character (by , for example), I repeat, with necessary adaptation, what I have said about the character attack on Ms Paul.

CRITICISM OF THE MINISTER

283. Undoubtedly, the contents of the first statements of Ms Paul and Mr Smith contravened my original directions and contained some inappropriate and irrelevant material. That may have been a catalyst for the attack on their character that followed.

EFFECT OF THE MINISTER’S CONDUCT ON THE HEALTH, SAFETY AND WELL-BEING OF MS PAUL

284. Ms Paul remains stood down on full pay.

285. Ms Paul is, I believe, years of age.

286. Ms Paul told me she had concerns for her physical safety as a result of the incidents on 13 February, 27 February and 20 May. I do not find that her personal physical safety was actually at risk, though I am satisfied she had a perception of risk, albeit fairly remote risk.

287. Ms Paul alleges she as a result of the Minister’s conduct . She says as a

268 Statement of , [15]. 269 Statement of , [15] and Statement of , [12]. 270 Statement of , [10].

result of making her complaint, the Inquiry and associated publicity

.271 At interview, Ms Paul told me that in the week following the making of her report to the Premier’s office, . .

I accept all this evidence.

288. No medical reports have been provided.

289. Conduct by the Minister “that has adversely affected or could adversely affect the health safety or well-being of such officers” would include adverse effects from reasonable action in making a complaint, the stress of the resulting Inquiry and media attention following the taking of such action. The action would not be reasonable if the allegations had no foundation or were greatly exaggerated.

290. There is an abundance of authority on the actual and potential health effects of conduct that could generically be described as “workplace bullying”. Recourse to the literature permits of no doubt that it is capable of . Anxiety about the consequences of making a complaint is also a natural part of a bullying complaint. I do not think it possible or necessary to apportion t to the conduct of the Minister on the one hand and the making of the complaint and the publicity on the other. Ms Paul told me at interview, and I accept, that the Inquiry process . She is also concerned about the impact the making of the complaint will have on her future. Again, none of this is surprising.

291. I cannot comment on the severity of in the absence of expert medical opinion.

EFFECT OF MINISTER’S CONDUCT ON THE HEALTH, SAFETY OR WELL- BEING OF MR SMITH

292. Mr Smith remains stood down on full pay.

293. Mr Smith is, I believe, years of age.

294. At interview, Mr Smith told me he was physically intimidated by the Minister on 2 February, though he doesn’t suggest he felt the Minister was about to strike him. Mr Smith explained that he felt physically intimidated because the Minister was “in my space” and aggressive. He doesn’t believe he felt

271 Statement of Dimity Paul, [175].

60 physically intimidated by the Minister on any other occasion. He does not think the Minister ever intended to cause him physical or mental harm.

295. I have referred to Mr Smith’s elsewhere in the Report. At interview Mr Smith told me . He said that on 26 May .

296. Mr Smith told me, and I accept, that he still has . He is concerned about his employment situation and his future. . He is also anxious about the media reports regarding the Inquiry as well as his name being mentioned in Parliament. He is concerned about his reputation as a result of being dismissed.

297. I think it highly probable that the occasional verbally aggressive language by the Minister directed at Mr Smith . It also diminished his sense of well-being. In the absence of medical evidence, I cannot say to what extent the conduct of the Minister in the second category .

FINDINGS

298. For much of the period covered by the Terms of Reference the Minister’s conduct was appropriate and professional having regard to the pressure of his Parliamentary and portfolio responsibilities and is not shown to have adversely affected the safety, health or well-being of members of his staff.

299. On 13 February 2015 the Minister, in his Ministerial office, having been embarrassed by a comment made by his Chief of Staff, Dimity Paul, at a meeting attended by , took Ms Paul by the arm to prevent her from leaving his office then took her chin in his hand and shook it gently from side to side as a form of admonition whilst telling Ms Paul “calm down and put a filter on it”, intending to convey that she was sometimes inappropriately outspoken. This conduct diminished, to some degree, Ms Paul’s confidence in her personal safety whilst in the Minister’s presence, caused her distress and adversely affected her sense of well-being. This was an isolated incident inasmuch as there was no other known physical contact by the Minister with Ms Paul or any other staff member of an inappropriate kind.

300. There were instances of conduct by the Minister, not involving physical contact, that also diminished, to a degree, Ms Paul’s confidence in her personal safety whilst in the Minister’s presence, caused her distress and adversely affected her sense of well-being, namely aggressive language on

61 27 February 2015 and aggressive language and finger pointing on 20 May 2015.

301. There was additional conduct of the Minister that caused Ms Paul distress and adversely affected her sense of well-being, namely instances of aggressive and sometimes demeaning language (for example, allegations of incompetence) by the Minister directed at Ms Paul. Such conduct was occasional rather than systematic and was invariably associated with the Minister having to perform publicly e.g. in Parliament.

302. Ms Paul

. In the absence of a formal medical diagnosis and prognosis, it is not possible for me to further describe Ms Paul’s condition .

303. There was no conduct of the Minister that adversely affected or could adversely affect the physical safety of Mr Xavier Smith.

304. There was conduct by the Minister that adversely affected the health and well- being of Mr Smith. Such conduct falls into two categories:

• demands, pressure and expectations of the kind one would ordinarily and reasonably expect in a Ministerial office. This conduct adversely affected the health and sense of well-being of Mr Smith

This was acknowledged by the Minister, who was mostly very supportive; and

• several instances of verbally aggressive comments by the Minister directed at Mr Smith (fewer in number than in the case of Ms Paul). It is probable diminished his sense of well-being.

305. At 9.06pm on 20 May 2015 Mr Smith was summarily dismissed by the Minister. The principal reason for his dismissal was that, earlier that day, Mr Smith had intervened on behalf of Ms Paul after the Minister had spoken to her aggressively. The intervention by Mr Smith occurred in the Minister’s office, with only the Minister and Mr Smith present, and involved no discourtesy by Mr Smith.

306. I am satisfied that the isolated verbally aggressive language by the Minister directed at Mr

62 Smith diminished his sense of well-being. . He is concerned about his reputation, employment situation and future, particularly having regard to his summary dismissal by the Minister. He is concerned about media attention associated with this Inquiry. In the absence of a formal medical diagnosis and prognosis, it is not possible for me to further describe Mr Smith’s condition . Likewise, in the absence of medical evidence, I cannot say to what extent the conduct of the Minister in the second category identified in paragraph 304 of this Report has .

REFERRAL TO AN APPROPRIATE AUTHORITY

307. The Terms of Reference ask me to advise the Secretary whether the facts as established warrant referral of any matter to an appropriate authority.

308. I assume I am being asked not whether the matter could be referred but whether referral would be appropriate in the circumstances

309. At interview, I canvassed this matter with Mr Smith and with Ms Paul, both of whom were legally represented. The possible options canvassed were:

• referral to the police for investigation and possible prosecution for common law assault in regard to the face touching incident on 13 February involving Ms Paul;

• referral to the police for investigation and possible prosecution under “Brodie’s Law” (section 21A of the Crimes Act 1958 (“Crimes Act”)); and

• referral to the Victorian WorkCover Authority (“VWA”) for investigation and possible prosecution under the Occupational Health and Safety Act 2004 (“OH&S Act”).

310. I made it clear to both Mr Smith and Ms Paul that I had not, at that point, formed other than provisional views as to the outcome of the Inquiry.

Common law assault

311. Physical contact of the kind described by Ms Paul on 13 February without her consent would prima facie be assault. I told Ms Paul there would be little possibility of the police proceeding unless she made a formal complaint. Her counsel, Mr Matthews, was of the same opinion. Ms Paul told me she does not wish to make a formal complaint.

63 Brodie’s Law

312. Victoria’s anti-bullying legislation includes what is colloquially known as “Brodie’s Law”, although the formal designation of the offence is “stalking”. Brodie’s Law was introduced in 2011 after the tragic suicide of 19-year-old Ms Brodie Panlock, who was subjected to sustained bulling in her workplace. Brodie’s Law applies to all forms of bullying, including physical bullying, psychological bullying and verbal bullying.

313. Brodie’s Law does not define bullying (whether in the workplace or elsewhere in the community) but extends the stalking provisions under section 21A of the Crimes Act to cover behaviour commonly associated with serious bullying, such as:

• using abusive or offensive words to or in the presence of the victim;272 and

• acting in any other way that could reasonably be expected to cause physical or mental harm to the victim, or to arouse apprehension or fear in the victim for his or her own safety or that of another person.273

314. I told Ms Paul and Mr Smith that the allegations made, even if established, would be unlikely to result in a conviction for the offence of stalking, especially in the case of Mr Smith. Proof is required of intention (actual or constructive) to cause physical or mental harm, or fear of harm. There also appears to be a defence of absence of malice (though its ambit in a case of this kind is somewhat obscure). Frankly, I doubt whether the conduct alleged in this case meets the threshold of serious conduct or consequences the legislature had in contemplation when expanding the operation of s 21A of the Crimes Act.274 Ms Paul’s counsel agreed with this assessment. Mr Smith’s legal representative did not disagree. Again, I told them the police would almost certainly take no action in the absence of a formal complaint. Neither Ms Paul nor Mr Smith wish to make a formal complaint or participate in any further investigative process.

315. There is, of course a public interest in appropriately responding to bullying in the community which coexists with the interest an individual may have. Theoretically, the police could, in the public interest, seek to persuade Ms Paul and/or Mr Smith to make statements notwithstanding their reluctance to do so. I am far from convinced, however, that this would be in the public

272 Crimes Act 1958, s 21A(2)(db). 273 Crimes Act 1958, s 21A(2)(g). 274 In the second reading speech for the Crimes Amendment (Bullying) Bill 2011, which introduced Brodie’s Law, it was stated that: “Bullying conduct in the workplace is normally prosecuted and punished under the Occupational Health and Safety Act 2004. If, however, the conduct and consequences of the bullying behaviour are extremely serious, the bill provides another response – that of prosecution under the Crimes Act for the offence of stalking” (emphasis added).

64 interest. I repeat, neither Ms Paul or Mr Smith wish to participate in any additional investigative or curial process, nor do they want the inevitable associated media attention. Indeed, there could be adverse effects on their health .

316. It follows from the above that, in my opinion, referral of any matter arising from my findings to Victoria Police is not warranted.

Occupational Health and Safety Act

317. The final issue is possible investigation and prosecution under sections 21 and/or 22 of the OH&S Act. Under section 21 of the OH&S Act, employers must, so far as is reasonably practicable, provide and maintain for employees a working environment that is safe and without risks to health. Employers must also, so far as reasonably practicable, monitor employee health, monitor workplace conditions, and provide information to employees concerning health and safety at the workplace (section 22).

318. In this regard I observe that Ms Paul and Mr Smith are in fact employed by the Premier under section 98 of the Public Administration Act 2004. The duties imposed by the OH&S Act fall therefore on the Premier. Those duties are non-delegable but can be discharged by the taking of appropriate action to eliminate risks to employees’ health.

319. I did not consider it part of my role to undertake a full-blown occupational health and safety investigation. I have, nonetheless, given consideration to whether I should refer the allegations made by Ms Paul and Mr Smith to the Victorian WorkCover Authority to enable it to assess whether such an investigation should be undertaken. Neither Ms Paul nor Mr Smith seek such an investigation, for reasons I have already mentioned, but again there is a public interest which coexists with the interest an individual worker may have. There may also be a concern about the welfare of other workers.

320. In my view, a death or serious injury at a workplace should – with rare exceptions – be formally investigated under the OH&S Act as a matter of course. In cases such as this one, however, where injury is of a substantially lesser order, I see no need for referral to the VWA in the absence of an apparent breach of the OH&S Act. There is no apparent breach here, in my view. The evidence indicates that a competent Human Resources Manager (Ms Kirkwood) was assigned to attend to the welfare of Ministerial staff. An independent employee assistance service was also available. Ms Paul told me she informed Ms Kirkwood well prior to 20 May of . The management of those issues appears to have been appropriately considered.

65 321. Ms Paul did not report any issues in the nature of bullying to Ms Kirkwood or Mr McLindon prior 21 May. I referred earlier in the Report to her explanation for not having done so. One of the reasons was that the Minister’s alleged conduct was occasional, not systematic. As earlier stated, Mr Smith does not allege any specific incident between early February and 19 May. Ms Paul does not allege any specific incident between 3 March and 24 April. Ms Paul told me Mr McLindon emphasised to Chiefs of Staff that he had an “open door” policy and that they should not hesitate to approach him if they had any concerns. was the who appears to have had the most frequent contact with Ms Paul. He regularly attended the Minister’s office for meetings. He told me no behaviour in the nature of bullying was observed by or reported to him. Had that occurred, he said, the conduct would have been reported.

322. Taking these matters into account, and giving appropriate (but not undue) weight to Ms Paul and Mr Smith’s strong preference not to be involved in any further investigative process, I have concluded that referral of my findings to the VWA is not warranted.

323. Before departing this topic, I think it appropriate to emphasise the importance of vigilance by the Premier and his office concerning the welfare of Ministerial officers. Anecdotally, Ministerial staff work under considerable pressure, particularly when Parliament is sitting. They are not under the immediate watch of the Premier’s Chief of Staff and the Ministerial staff Human Resources Manager. Ministers require, and are given, considerable autonomy in the management of their offices and staff, yet they may have varying attitudes to occupational health and safety. Ultimately it falls to the Premier and his senior staff to set the standard.

66 Appendix 1

Terms of Reference

67 [This page intentionally left blank]

68 Inquiry into matters concerning the Office of the Minister for Small Business, Innovation and Trade — Terms of Reference Background 1. On 21 May 2015, the Premier’s Office received a complaint from an officer employed in the Office of the Minister for Small Business, Innovation and Trade, Adem Somyurek (“Minister”). The complaint alleged inappropriate and threatening behaviour by the Minister. 2. On 23 May 2015, the Premier met with the Minister to discuss the complaint. The Minister denies the allegations. 3. The Premier has since announced that an independent inquiry would be conducted by the Secretary of the Department of Premier and Cabinet (“Secretary”), and that he has stood the Minister down pending the outcome of the inquiry. 4. To inform his inquiry, the Secretary has engaged Mr Michael Strong and Mr Peter Allen to report to him on the following matters concerning the conduct of the Minister and the operation of his Ministerial Office (“Office”). Terms of Reference Part A – Investigation into Conduct of the Minister 5. The Secretary has engaged Mr Strong to: a) identify, investigate, and make findings of fact in relation to, any allegations by officers employed in the Minister’s Office of conduct by the Minister, occurring since February 2015, that has adversely affected or could adversely affect the health, safety or well-being of such officers; and b) advise the Secretary as to whether the facts as established are sufficient to warrant the referral of any matter to an appropriate authority. Part B – Capability Review of the Office 6. The Secretary has engaged Mr Allen to conduct a capability review of the Office in accordance with the Australian Public Service methodology. 7. The review will consider, and identify any constraints arising from, the Office’s: a) management practices; b) capability; and c) adherence to values consistent with the Public Sector Values. Process 8. In meeting these terms of reference, Mr Strong and Mr Allen must: a) make any findings of fact on the balance of probabilities, in the sense explained by the majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; b) ensure that procedural fairness is accorded to all parties; and c) ensure that the process is conducted confidentially. 9. The process may otherwise be conducted as considered appropriate. Appendix 2

Minister’s response to provisional findings and draft reasons

69 [This page intentionally left blank]

Appendix 3

Comments on certain submissions in Minister’s response

I wish to address in greater detail a number of specific submissions in the Minister’s response with which I disagree.

Standard of proof

1. The Minister submits that a number of my findings “do not meet the requirements set out by the High Court in Neat Holdings and most certainly do not meet the requirement of ‘clear, cogent, strong and strict proof’ discussed in Briginshaw”. My response is that references to “clear and cogent proof” and generalisations of similar effect to those discussed in Briginshawi can, as the High Court made clear in the passage quoted below, sometimes be unhelpful or misleading. This is particularly so in a fact finding exercise of the nature of this Inquiry, namely where there are competing and mutually inconsistent allegations. As the majority of the High Court in Neat Holdings state:

When an issues falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations ..., generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard.ii

2. The majority continues:

The most that can be validly said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.iii

3. As I have stated in my Report, I have approached my task with the principle stated by the High Court in Neat Holdings firmly in mind and I have not taken lightly the gravity of the allegations nor the consequences of adverse findings against the Minister.

The credibility of witnesses

4. In my draft reasons I said there was an element of conscious exaggeration in the evidence of Ms Paul. This has been escalated, in the Minister’s response, to “prone to exaggerate”. What I intended to convey by the use of the word “element” is that, in my view, there was occasional conscious exaggeration in Ms Paul’s evidence. In this regard the following sentence in the draft report

71 may have been misleading. I said “given the choice of how to describe a particular incident involving the Minister [Ms Paul] would generally choose the more critical option”. What I meant to convey is that, a given a choice of words that had broadly the same import, Ms Paul would generally choose the more critical option.

5. The Minister’s reply gives scant regard to my generally unfavourable assessment of his evidence. I had sought to express that assessment as temperately as I could, knowing its potential impact. I have been compelled to make my assessment clearer.

6. The general tenor of the Minister’s reply is that I have relied too much on the evidence of Ms Paul and Mr Smith having regard to my assessment of their credibility. This criticism fails to allow for my unfavourable assessment of the evidence of the Minister. Where the standard of proof is “the balance of probabilities” (even with a Neat Holdings gloss), a generally unfavourable assessment of the evidence of one party will inevitably put the opposing party at a considerable advantage, even where there may be an element of exaggeration in the evidence of that party.

7. In my assessment of the Minister’s credibility I gave particular attention to his account of the circumstances of Mr Smith’s dismissal. (The use of “dismissal” is also criticised in the Minister’s response. It is the appropriate word. Mr Smith was undoubtedly dismissed from the Minister’s service). As set out in my Report, I reject the Minister’s evidence of what occurred, and why it occurred, relevant to Mr Smith’s dismissal. I go on to say “once these findings are made, the Minister’s credibility in relation to the entire incident [on 20 May] is severely eroded”. My conclusions as to the truth behind Mr Smith’s dismissal are challenged in paragraphs 28 -35 of the Minister’s response, but the frailty of reasoning in that challenge serves only to reinforce my satisfaction in the conclusions I provisionally reached.

8. The various incidents discussed in my Report were not considered in isolation. For example, my assessment of the Minister’s credibility regarding Mr Smith’s dismissal properly informed my assessment of his general credibility.

9. Paragraph 7 of the Minister’s response also suggests, in effect, that less weight should be given to the evidence of Ms Paul and Mr Smith because it has not been tested by cross-examination. But nor has the evidence of any witness, including the Minister. That is the usual nature of inquiries of this kind.

10. I had the opportunity to make my assessment of the credibility of Ms Paul and Mr Smith over approximately five hours.

72 11. At paragraph 9 of the Minister’s response it is suggested that I have preferred the evidence of witnesses “who might be regarded as independent in the sense that their statements were not provided through the Minister’ s legal representatives, seemingly on that basis alone.” This is certainly not the case. The apparent independence of a witness is a matter that goes only to the weight to be given to his or her evidence. Further, the attribution of independence to some witnesses but not others does not mean that those others were adjudged to lack independence, merely that their independence was less apparent. I can only act on what is apparent.

Investigation methodology

12. The Minister’s response is critical of the investigation methodology. There is oblique criticism at paragraph 8 of my failure to personally interview every witness and “prepare witness statements”. The history of the investigation is outlined earlier in this Report. It may well be that the Minister’s compliance with my direction that witness statements should emanate from the parties placed the Minister at some disadvantage when the investigation methodology, per force of circumstances, was varied. There was, however, a corresponding advantage. The Minister’s statements were produced with the assistance of his lawyers. The statements of “self-identifying” witnesses and those interviewed by me at the request of Ms Paul’s lawyers were obtained in entirely neutral circumstances, if I may put it that way. I do not mean to be critical of the Minister’s lawyers. The point I make is that few lawyers would consider it a disadvantage to have control over the preparation of witness statements. If I had taken statements from the Minister’s witnesses, they would have been considerably shorter.

13. For every disadvantage in litigation there is often a corresponding advantage. It is sometimes described as the “cut and thrust of litigation”. I am not satisfied that the investigation methodology, viewed globally, has been unfair to the Minister.

Incident of 13 February

14. In addition to matters of general application, there are several issues in the response concerning the events of 13 February which I will address specifically.

15. It is suggested, at paragraph 15, that “if the element of physical touching is removed, the version of events provisionally accepted by your Honour is very close to the Minister’s evidence regarding this incident”. This is coupled with a description of the evidence of and Mr Smith of their subsequent conversations with Ms Paul as being “in general and vague terms”.

73 16. If, as appears to be conceded, the real issue is whether the Minister touched Ms Paul’s face, there is nothing vague about Mr Smith and evidence of being told of that aspect of the incident. In his statement of 1 June Mr Smith says “it was at the same meeting [in March] that Ms Paul informed me that the Minister had grabbed her face”.iv Mr Smith told me at interview he is absolutely certain Ms Paul made that allegation. said in his statement Ms Paul told him on 1 March 2015 the Minister had touched her face. The significance of both these pieces of evidence is their capacity to rebut the Minister’s implicit allegation of recent invention.

17. Paragraph 14 of the Minister’s response states “it is worth observing that in Ms Paul’s own statement, she describes no upset or distress” arising from the face touching incident of 13 February. This is incorrect. In Ms Paul’s 2 June statement, she says “I told him that I feel very uncomfortable and frightened when he disagreed with my advice, especially that time when he grabbed my face”.v This is reiterated in her reply statement when she says “I was scared when the Minister had my face in his hand. I cannot recall what I said at this moment other than feelings of fear, shock, confusion and disbelief”.vi Ms Paul also describes feeling upset or distressed in the Statement to Ms Kirkwood. She says she was “quite confused when [the face touching] happens and after it happens. I go back to my office and am in auto-pilot after that”vii and “… I felt very uncomfortable and frightened when he touched my face”.viii

Incident of 23 February

18. As to paragraphs 21-22 of the Minister’s response, I have re-considered the evidence of the exchange between the Minister and Ms Paul on 27 February. I have come to the same conclusions, but have more fully expressed my reasons.

19. The fact that I might not be satisfied of the precise circumstances of an alleged incident does not prevent me from recording a finding – so long as there is satisfactory evidence, in relation to that incident, of conduct by the Minister that has adversely affected Ms Paul’s health or well-being.

i Briginshaw v Briginshaw (1938) 60 CLR 336. ii Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 60 ALJR 170 at [3]. iii Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 60 ALJR 170 at [3]. iv Statement of Xavier Smith, [45] v Statement of Dimity Paul, [79]. vi Dimity Paul: Statement in reply dated 2 July 2015, [12]. vii Statement to Ms Kirkwood, page 1. viii Statement to Ms Kirkwood, page 3.

74 Attachment D Minister’s response to Judge Strong’s draft findings

Attachment E Judge Strong’s comments on specific submissions made in the Minister’s response Appendix 3

Comments on certain submissions in Minister’s response

I wish to address in greater detail a number of specific submissions in the Minister’s response with which I disagree.

Standard of proof

2. The majority continues:

The credibility of witnesses

10. I had the opportunity to make my assessment of the credibility of Ms Paul and Mr Smith over approximately five hours.

Investigation methodology

Incident of 13 February

14. In addition to matters of general application, there are several issues in the response concerning the events of 13 February which I will address specifically.

Incident of 23 February

74 Attachment F Victorian Code of Conduct for Ministers and Parliamentary Secretaries