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Legal experts weigh in on Malcolm Turnbull’s new ban on sexual relationships with staff - news.com.au

By Alan J. McDonald


Prime Minister Malcolm Turnbull recently introduced a “sex ban” between ministers and staffers after it was found Deputy Prime Minister Barnaby Joyce had an affair with former staffer, Vikki Campion.

McDonald Murholme Managing Director Alan McDonald, comments on how it can be inherently dangerous to impose a ban on sexual relations between consenting adults as it is contrary to the principals of current workplace laws.

Legal experts weigh in on Malcolm Turnbull’s new ban on sexual relationships with staff – news.com.au

LAST week, Prime Minister Malcolm Turnbull made international headlines after introducing a “sex ban” between minsters and staffers.

The controversial announcement followed the ongoing fallout from Deputy Prime Minister Barnaby Joyce’s affair with former staffer Vikki Campion who is now pregnant with his child.

The scandal also raised questions about a possible breach of ministerial standards regarding two high-paid, government-funded positions given to Ms Campion.

In a 60 Minutes interview, Mr Turnbull said he sought the advice of his wife Lucy before introducing the ban.

He has also said he would sack any minister who breached the ban in future.

“I don’t care if the ministers are married or whether they are single,” Mr Turnbull said.

“The minister can be the most eligible bachelor or young woman in the country and be absolutely free in terms of who they can have relations with, but if they’re a minister in my government, they cannot have sexual relations with their staff.”

But the PM’s tough new rules, known as a “bonk ban” on social media, have been questioned by several Australian legal experts.

McDonald Murholme managing director Alan McDonald, an employment lawyer, said dictating who minsters can sleep with was “inherently dangerous”.

“It is dangerous for the PM to impose a ban on sexual relations between consenting adults on the advice of his wife which is contrary to the principles of current workplace law,” Mr McDonald said.

“It has the propensity to give employers the impression that they can follow the PM’s lead and impose such bans in workplaces.

“This would be against the law, especially if the employer tried to force current employees to sign onto such a code or dismissed an employee who refused to do so.”

Mr McDonald said the Fair Work Act 2009 protected employees against such interference by their employers.

“Under section 351 of the Fair Work Act 2009 (Cth), it is unlawful to dismiss an employee because of the attribute of marital status,” he said.

“A person’s marital status includes whether they are single, married or separated.”

Mr McDonald warned “sex bans” — whether they were in place in parliament or regular workplaces — could potentially breach the Fair Work Act, the Sex Discrimination Act or the Equal Opportunity Act.

“The Prime Minister’s code doesn’t depend on legal status but he gets away with it by saying, ‘If you want to be on my team, these are the conditions.’ But it’s not a lawful requirement a company could impose,” he said.

Mr McDonald said companies couldn’t force employees to adhere to a sex ban unless it was a condition of their employment in the first place.

“It’s risky for employers trying to impose these codes of conduct that don’t relate to the working capacity of people — at the heart of legislation in Australia is that we want all hands on deck, we don’t want people discriminated against and out of work based on sex, colour, disability or marital status,” he said.

“When you look at overseas examples, it’s not good when a leader is allowed to dictate things to their deputy if the conduct is not unlawful, but he just doesn’t like it.”

Shine Lawyers’ employment law expert Will Barsby said the new rules were “merely a guideline”, similar to those seen in corporate Australia.

“It’s not so much about sex and consent, but more about integrity in government, which should operate without fear or favour,” Mr Barsby said.

He said relations between ministers and subordinates could cause potential conflicts of interest, and that ministers “should know how to behave”.

But he warned that a sex ban would be difficult to enforce.

Reference: Legal experts weigh in on Malcolm Turnbull’s new ban on sexual relationships with staff, news.com.au, Tuesday 20th February 2018