Liberal Senator Amanda Stoker has questioned the way universities are dealing with sexual assault and harassment cases, saying many cases are not being determined on the balance of probabilities, let alone beyond reasonable doubt.
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She questioned the Human Rights Commission on Tuesday on what it was doing to restore the balance.
She suggested well-meaning attempts to approach such cases "pastorally" for the victims, rather than legally, had distorted the process.
People accused faced consequences that rivaled a criminal prosecution - unable to enter their chosen profession and losing their reputation in cases that gave them no clear right to contest allegations, call witnesses of their own, be represented or appeal.
While most universities gave notice of the case against an accused and made "something of an effort" to allow them a reply, the execution of cases "is a little mixed".
There didn't appear to be a clear presumption of innocence - and the pastoral approach meant it was probably the opposite, she said, while acknowledging that the problem was "a consequence of an attempt to be as helpful as possible to people who have experienced terrible things".
She said complaints system should protect the rights of accusers but ensure proper standards of proof and intellectual rigour to ensure someone wasn't badged a harasser unfairly or with insufficient evidence.
"What do you think is necessary to ensure that we get the balance right in ensuring we are dealing with incidents sensitively and seriously because they can't be trivialised, whilst at the same time protecting the rights of people who are unfairly accused," she asked Sex Discrimination Commissioner Kate Jenkins.
Ms Jenkins agreed that the system needed repair.
"Broadly the system isn't working for most people, whichever side of the equation," she said.
"Having been an employment lawyer for 20 years I do know that it feels like it's got worse and worse over time ... and I don't think that was anyone's intent, so I think now is a good time to reconsider ...
"It really does bother me that public reputational damage harms everyone disproportionately to the incidents".
When cases ended ended up in the hands of lawyers, they tended to become major investigations, which were stressful for accusers and accused, and spiralled "out of control", she said.
"We need a new model that doesn't go straight from here's an issue to can we sack this person, that goes towards misconduct rather than resolving," she said. "... What you are looking or is an appropriate response that doesn't do more harm than good and a proportionate response to the issue."
Ms Jenkins said only 17 per cent of people who had experienced sexual harassment complained. While people thought sexual harassment "is something that used to happen in the old days", one in three people had been sexually harassed in the past five years - 39 per cent of women and 26 per cent of men. Four out of five harassers were men.
The Human Rights Commission would complete its inquiry into sexual harassment in the workplace in February.
It was considering how to help people whose allegation of sexual harassment was too long ago to bring a case, but for whom the harassment had had devastating long-term impacts on their lives and careers.
It was looking to shift the responsibility to employers rather than victims to make allegations.
She would also report on the cost of sexual harassment to the economy, she said.
Kirsten Lawson
It's about the truth for me. That means asking questions. Then asking more questions. On the best days, we get answers.
It's about the truth for me. That means asking questions. Then asking more questions. On the best days, we get answers.
