Sexual Harassment (ACT)

In the ACT, the Discrimination Act 1991 prohibits discrimination on the basis of certain attributes, including disability, age, race and gender identity in the workplace and in a number of other area of public life. Complaints about sexual harassment in the ACT can also be made under the Discrimination Act 1991 to the ACT Human Rights Commission. This page deals with the ACT’s sexual harassment laws.

What is sexual harassment?

Under section 58 of the Discrimination Act 1991, sexual harassment includes the following behaviour which occurs in circumstances where the other person reasonably feels humiliated, intimidated or offended:

• Unwelcome sexual advances
• Unwelcome requests for sexual favours
• Unwelcome conduct of a sexual nature

Sexual harassment may consist of verbal or written comments, questions about a person’s intimate life, the sharing of images, unwanted touching and sexual assault. It may consist of a single incident, or it may be an ongoing course of conduct.

What is not sexual harassment?

Behaviour that is not unwelcome is not sexual harassment under the Discrimination Act 1991. Therefore flirting, touching and other sexual behaviour in which participants willingly take part is not sexual harassment.

For conduct to be found to have amounted to sexual harassment, it is necessary that a reasonable person in the position of the complainant would have felt offended, humiliated or intimidated in the circumstances. If a reasonable person would not have felt this way, the conduct does not amount to sexual harassment.

When is sexual harassment prohibited?

In the ACT, sexual harassment is prohibited in the following settings:

• In workplaces, between employers and employees, between employees, between contract workers, between partners and between workplaces participants (section 59 of the Discrimination Act 1991)
• In educational institutions, between staff and students and between students (section 60 of the Discrimination Act 1991)
• In the course of providing access to premises to which the public is entitled to have access (section 61 of the Discrimination Act 1991)
• In the course of providing goods, services or facilities (section 62 of the Discrimination Act 1991)
• In the course of providing accommodation (section 63 of the Discrimination Act 1991)
• By management committee members of clubs towards members (section 64 of the Discrimination Act 1991)

Complaining about sexual harassment in the ACT

If a person has experienced sexual harassment in the ACT, they can complaint to the ACT Human Rights Commission. The complaint should provide as much detail as possible as to what happened, when it happened and who was involved.

When the Commission receives a complaint, it will generally contact the person being complained about, provide them with a copy of the complaint and ask them to respond. It may also need to contact other people mentioned in the complaint.

The Commission may decide not to investigate a complaint. If this occurs, it will advise the complainant of why this decision was made.

Conciliation

The Commission may decide to refer a complaint to conciliation. Conciliation is a form of alternative dispute resolution where the parties are assisted to try to resolve the situation. The conciliator talks to each person separately and this may be done face to face, over the phone, or even in writing. Any resolution that is achieved in conciliation is confidential and cannot be used in any later action.

If the complaint cannot be resolved through conciliation, the Commission will finalise it. It may then be possible to take the matter to ACAT for hearing and determination or review.

Federal law

Sexual harassment is also prohibited in a range of areas of public life under federal law under section 28B of the Sex Discrimination Act 1984. Sexual harassment in the workplace is also prohibited under section 527D of the Fair Work Act 2009.

Complaints about sexual harassment under federal law can be made to the Australian Human Rights Commission. If you are unsure whether to complain about an incident under ACT or federal law, seek legal advice.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.