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Sexual Harassment (ACT)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

People living in the ACT are protected against sexual harassment by both territory and federal law. The Discrimination Act 1991 prohibits sexual harassment in the ACT and the Sex Discrimination Act makes it unlawful at a federal level. People living in the ACT who experience prohibited behaviour can complain either to the ACT Human Rights Commission or to the Australian Human Rights Commission. It is important to get legal advice to ascertain which complaints avenue is more suited to your situation.

What is sexual harassment?

Section 58 of the Discrimination Act defines sexual harassment as ‘an unwelcome sexual advance, or an unwelcome request for sexual favours’ or ‘other unwelcome conduct of a sexual nature in circumstances in which the other person reasonably feels offended, humiliated or intimidated.’

Examples of behaviour that can amount to sexual harassment are:

  • Sexually suggestive jokes or comments;
  • Sexual gestures;
  • Touching;
  • Sending sexual material by email or social media;
  • Repeatedly asking someone out on dates;
  • Requests for sex;
  • Comments about a person’s personal life;
  • Displaying pornography.

Sexual harassment can occur on an ongoing basis or can be a one-off incident.
The Discrimination Act prohibits sexual harassment in the context of:

  • Employment;
  • Contract work;
  • Partnerships;
  • Educational institutions;
  • Access to public premises;
  • The provision of goods, services or facilities;
  • The provision of accommodation;
  • Clubs.

What is not sexual harassment?

Mutual flirtation and consensual sexual behaviour is not sexual harassment. However, if a person engages in flirtation, he or she is still entitled to draw the line if the situation becomes uncomfortable.

Making a complaint

A complaint about sexual harassment under the Discrimination Act can be made to the ACT Human Rights Commission. The Commission will gather the information to determine whether the act has been breached. The commission can then decide to:

  •  Close the complaint and take no action;
  • Attempt to resolve the dispute via conciliation;
  • Decide that resolution of the dispute via conciliation is unlikely to be successful.

If the matter proceeds to conciliation, parties will be invited to sit down and talk about the issues and try to arrive at a mutually acceptable agreement. If the complaint is closed, the complainant may seek a hearing before the ACT Civil and Administrative Tribunal (ACAT).

Federal law

Sexual harassment is also prohibited under the federal Sex Discrimination Act, which contains the same definition of sexual harassment as the ACT Discrimination Act. The Sex Discrimination Act provides that in determining whether the person ought to have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated, the following factors are to be taken into account:

  • The sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, national or ethnic origin of the person harassed;
  • The relationship between the person harassed and the person responsible for the conduct;
  • Any disability of the person harassed;
  • And other relevant circumstance.

Complaints

A person wanting to make a complaint of sexual harassment under the federal legislation can do so to the Australian Human Rights Commission. The Commission resolves complaints through conciliation. The parties involved talk through the issue with the help of an impartial third party and settle the dispute on their own terms. The outcome of a complaint may be an apology, reinstatement to a job, changes to policy or developing and implementing anti-discrimination policies.

Criminal offence

An incident that amounts to sexual harassment may also amount to a criminal offence. For example, if a person touches you sexually without your consent while you are at work, you are entitled to make a sexual harassment complaint, but there is also a potential for a criminal charge  of indecent assault to be laid. Consider reporting the incident to police and asking them to take a statement from you. 

If you require legal advice or representation in a discrimination matter or in any other legal matter please contact Go To Court Lawyers.

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