Sexual Harassment

Sexual harassment is an unwelcome sexual advance, request for sexual favour or other unwelcome sexual conduct. There are laws prohibiting sexual harassment in the workplace and in a range of other contexts at both state and federal levels. This page briefly outlines the sexual harassment laws across Australia.

Federal sexual harassment laws

At the federal level, sexual harassment is prohibited in the workplace under both section 527D of the Fair Work Act 2009 and under section 28B of the Sex Discrimination Act 1984. The Sex Discrimination Act also prohibits it in a range of other areas of public life, including education, accommodation, land, clubs and in the administration of Commonwealth laws and programs.

Under section 28A of the Sex Discrimination Act 1984, sexually harassment includes:

• unnecessary familiarity and suggestive language;
• unwanted physical contact;
• prolonged staring or leering;
• displaying or sharing sexually explicit material;
• making unwanted romantic advances;
• making intrusive comments about someone’s personal life or body.

Complaints under the Sex Discrimination Act can be lodged with the Australian Human Rights Commission.

Complaints under the Fair Work Act can be made to the Fair Work Commission.

Queensland

Section 19 of the Queensland Anti-Discrimination Act 1991 defines sexual harassment as:

• unsolicited acts of physical intimacy;
• unsolicited demands or requests for sexual favours;
• sexual remarks;
• Other unwelcome acts of a sexual nature

where the conduct is done with the intention of offending, humiliating or intimidating the other person OR in circumstances where a reasonable person would have anticipated that the other person would be offended, humiliated or intimidated.

Under section 136 of the Anti-Discrimination Act 1991, a complaint can be made to the commissioner within one year of the alleged incident.

New South Wales

In New South Wales, sexual harassment is prohibited under the Anti-Discrimination Act 1977 in employment and in various other areas of public life. Section 22A of that act defines it as including unwelcome sexual advances, unwelcomes requests for sexual favours and unwelcome conduct of a sexual nature.

Complaints can be made to Anti-Discrimination New South Wales.

ACT

In the ACT, sexual harassment is prohibited under the Discrimination Act 1991. Under section 58 of the Discrimination Act, this includes unwelcome sexual advances, unwelcome requests for sexual favours and unwelcome sexual behaviour  in circumstances where other person reasonably feels humiliated, offended, or intimidated.

Complaints can be made to the ACT Equal Opportunity Commission.

WA

In Western Australia, sexual harassment is prohibited under the Equal Opportunity Act. However, behaviour only qualifies as sexual harassment if there are reasonable grounds to believe that the person being harassed may be disadvantaged in connection with:

• their employment or potential employment;
• their education;
• accommodation;

as a result of rejecting the advance, refusing the request, or objecting to the conduct.

The narrower definition of sexual harassment in Western Australia differs from the federal law and the laws of other states.

In WA, a complaint can be made to the Equal Opportunity Commission within 12 months of the alleged behaviour. If the Commission accepts a complaint, it will usually refer it to conciliation. If attempts to resolve the complaint through conciliation are unsuccessful, the Commissioner may refer the matter to the Administrative Appeals Tribunal, which can make binding orders.

Victoria

In Victoria, sexual harassment in public life is prohibited by the Equal Opportunity Act 2010. This  includes accommodation, education, workplaces, the provision of goods and services, professional associations and industrial organisations.

The definition of sexual harassment under section 92 of the Equal Opportunity Act encompasses an unwelcome sexual advance or request for sexual favours made in circumstances where a reasonable person would expect the recipient to feel offended, humiliated, or intimidated. This can include physical acts of intimacy, as well as verbal or gestural remarks or statements with sexual undertones, and any comments or actions made in the presence of the person being harassed.

In Victoria, a person may bring an allegation of sexual harassment to the Equal Opportunity Commission for dispute resolution.

Should I complain about sexual harassment at state or federal level?

The definitions of sexual harassment are similar at state and federal levels (with the exception of WA). If you want to make a complaint about sexual harassment in the workplace or elsewhere, seek legal advice as soon as possible as to whether your complaint would be best made under the state, territory or federal legislative scheme.

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