Adjudication No. 692 (January 1994) [1994] APC 1

ADJUDICATION No. 692 (January 1994)

The Australian Press Council has upheld in part a complaint by Mrs Josephine Tiddy, the Equal Opportunity Commissioner for South Australia, against the Adelaide Advertiser.

Mrs Tiddy complains about a news story and feature dealing with amendments to the Equal Opportunity Act (1984) she proposed in her annual report. The two items appeared in The Advertiser on 3 December 1992 and, according to Mrs Tiddy, made several erroneous claims, including:

• that South Australian workers would face secret investigations in sexual harassment cases under the proposed changes;

• that anyone facing equal opportunity complaints could be investigated without their knowledge under wider powers sought by the Commissioner;

• that persons or companies being investigated would not be given the right to respond to allegations;

• that employers would be legally liable for damages in all sexual harassment cases proven against their employees;

• that the Commissioner was seeking a new power to require any person to give evidence in a case.

Mrs Tiddy regarded the first three of these claims as the most damaging, as they suggested that she was prepared to deny natural justice to the subjects of equal opportunity complaints.

The Equal Opportunity Act provides an avenue for dealing with matters which have not been the subject of a specific complaint, but which, from allegations made to the Equal Opportunity Commission, offer prima facie evidence that the Act may have been breached. In these circumstances the allegations are not investigated immediately, but an investigation may be initiated by the Equal Opportunity Tribunal on an application by the Commissioner approved by the Minister.

On lodging an application to the Tribunal for approval to conduct an investigation, the law as it now stands (S.93A (2)) requires the Commissioner to furnish a copy to the person the subject of the application. Mrs Tiddy proposed that this requirement be abolished because "it could prove to be costly and inefficient and goes well beyond the requirements of natural justice". If the application was successful, however, and the Tribunal approved an investigation by the Commissioner, the subject of the application would be informed as soon as possible.

It is obvious that, before the Commissioner decided to seek the Minister's and the Tribunal's approval to conduct an inquiry under S.93A, she would have to make some assessment of whatever allegations and information she had. However, this assessment would not entail any evaluation of the basis of the allegations or interviewing of their sources, and could not fairly be described by The Advertiser as an "investigation", secret or otherwise.

Any subsequent inquiry approved by the Tribunal would warrant such a description but, as the subjects of this action are informed of the Tribunal's decision, the term "secret" is equally inappropriate in this context.

The Advertiser confused two quite distinct processes [Dhatch] an application to the Tribunal to conduct an investigation, and the investigation itself. It also appears to have confused the different procedures for handling specific complaints to the Commissioner, and non-specific allegations which might prompt the Tribunal to authorise an investigation. The emphasis on sexual harassment in this matter was of the paper's own making, and did not reflect the recommendation in the Commissioner's annual report.

The reports which resulted were therefore misleading.

When Mrs Tiddy complained to The Advertiser, the paper promptly published her denial that she proposed any change to the procedure for investigating non-specific allegations. She considered the prominence given to the denial "in a small story ... on the left bottom corner of page 2" on 4 December to be inadequate, but the Press Council believes it was reasonably prominent.

However, a reader could still have been left with the impression that there were two possible interpretations of the true effect of her proposals. One, as reported on 3 December, was that complaints could be secretly investigated. This was wrong, and the paper should have acknowledged that it had made an error. This major aspect of the complaint is upheld.

The Council considers a number of secondary aspects of the complaint to be matters of interpretation of The Advertiser's coverage, and not of factual accuracy.

On the questions of employer liability in sexual harassment cases involving employees for example, and of the proposed extension of the Commissioner's powers to obtain information during the investigation and conciliation of complaints, The Advertiser's report could be seen as reflecting a worst case scenario, but not intending to misinform readers.