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Sexual Harassment and the Law (Qld)

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.

Sexual harassment is prohibited in Queensland under the Anti-Discrimination Act 1991 and complaints about sexual harassment can be made to the Queensland Anti-discrimination Commissioner. The prohibition on sexual harassment applies in all areas of life including work, study and recreation.  Many instances of sexual harassment that occur in Queensland are also actionable under federal law and actions that constitute sexual harassment may also constitute a criminal offence.

Definition of sexual harassment

Sexual harassment disproportionately affects women. However, it can also be perpetrated against men and can occur between people of the same sex.

Section 119 of the Anti-Discrimination Act defines sexual harassment very broadly as covering:

  • Unsolicited physical intimacy;
  • Unsolicited demand or request for sexual favours;
  • Remarks with sexual connotations;
  • Any other unwelcome sexual conduct;

When the person engaging in the conduct does so:

  • With the intention of offending, humiliating or intimidating the other person; or
  • In circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

The act gives a number of examples of conduct that would constitute sexual harassment such as patting, pinching or touching in a sexual way, sexual propositions, remarks about a person’s sex life, and suggestive comments about a person’s body.

Circumstances must be taken into account

Section 120 of the Act lists the circumstances that are relevant when determining whether conduct is likely to be offensive, humiliating or intimidating. These include the age, sex, race and any impairment the other person (ie the victim) has, any other circumstances and the relationship they have with the person.

Associated objectionable conduct

The Act also prohibits requesting or encouraging a person to engage in conduct that contravenes the act. When a person does so and the request is acted on, both parties are jointly and severally liable for the discriminatory conduct and proceedings can be initiated against both of them.

The Act also prohibits requests for information upon which unlawful discrimination could be based.

State or federal law?

State and federal anti-discrimination laws overlap and provide similar protection. To ensure compliance with anti-discrimination law, you must check your obligations under both Queensland and federal law. While exemptions and exceptions may exist under one scheme, you may not be exempt under the other. Sexual harassment is prohibited under both legislative schemes and is defined very similarly in both.

Sexual harassment is prohibited in the workplace, in education and in the provision of good and services under federal law by the Sex Discrimination Act 1984. Complaints under the federal scheme can be made to the Australian Human Rights Commission. Complaints can be made online, in writing or by email and can be made in any language. There is no cost to make a complaint.

Complaints about sexual harassment that are made under the Queensland legislative scheme are made to the Anti-Discrimination Commission Queensland. If a complaint cannot be resolved through conciliation, it can be referred to the Queensland Industrial Relations Commission if it is a work-related complaint, or to the Queensland Civil and Administrative Tribunal (QCAT) in other cases. These bodies can make legally binding decisions, such as ordering a person to pay compensation, make an apology or do specific things.

Under both state and federal law, complaints about sexual harassment must be made within 12 months of the incident.

Criminal offence

Some types of behaviour that amount to sexual harassment may also constitute a criminal offence. If someone touches you sexually in the workplace, this may be indecent assault as well as sexual harassment. If you make a complaint about sexual harassment, either under state or federal law, this does not prevent you from also seeking to have the matter dealt with by police. Talk to a lawyer about your options or contact your local police and ask to make a report and give a statement.

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