Sexual Harassment (SA)

This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.

South Australians are protected from sexual harassment both under state law, in the form of the Equal Opportunity Act 1984 and under federal law, under the Sex Discrimination Act. Sexual harassment means any conduct of a sexual nature that is unwanted and that a reasonable person would find offensive. Understanding your rights and legal options is crucial if you experience sexual harassment in South Australia, whether in the workplace, educational settings, or other protected areas.

Sexual harassment creates hostile environments and can have severe psychological, emotional, and professional consequences for victims. South Australian legislation provides comprehensive protection and remedies for those who experience such unlawful conduct, ensuring that individuals can seek justice and compensation for harassment they endure.

Definition of sexual harassment

Under the Equal Opportunity Act, sexual harassment is defined as:

• Making an unwelcome sexual advance, or an unwelcome request for sexual favours; or
• Engaging in other unwelcome conduct of a sexual nature

In circumstances where a reasonable person, having regard to all the circumstances, would have anticipated that the recipient would be offended, humiliated or intimidated.
This includes statements (oral or in writing) made to a person or in the person's presence.

Section 28A of the federal Sex Discrimination Act offers a similar definition, adding that the circumstances to be taken into account include the age, sex, sexual orientation, gender identity, intersex status, relationship status, religious belief, disability, race and ethnicity of the person harassed, the relationship between the person harassed and the person complained of and any other relevant circumstance.

Types of sexual harassment behaviour

Sexual harassment can take many forms, including unwelcome physical contact, sexual propositions, inappropriate comments about appearance or body, sharing of sexual images or materials, sexual jokes or innuendos, and persistent unwanted attention of a sexual nature. The behaviour doesn't need to be repeated to constitute harassment - a single serious incident may be sufficient.

The reasonable person test

South Australian courts apply an objective test when determining whether conduct constitutes sexual harassment. The behaviour is assessed from the perspective of a reasonable person in the victim's position, considering all relevant circumstances including cultural background, workplace dynamics, and the relationship between the parties involved.

When is sexual harassment prohibited?

Section 87 of the Equal Opportunity Act 1984 makes it unlawful in South Australia for a person to sexually harass a person with whom he or she works, or a person seeking to become a fellow worker at a workplace or in circumstances where the person knows or should have known that the person was a fellow worker or was seeking to become a fellow worker.

It further provides that it is unlawful for a person who works for an educational authority to sexually harass a student or a person applying to become a student while at the education provider or in circumstances where the person knows or should know that the other person is a student or seeking to become a student. It also makes it unlawful for a student aged 16 or older to sexually harass a person who works at an educational institution.

Workplace sexual harassment

Sexual harassment in South Australian workplaces is prohibited regardless of the employment relationship between the parties. This includes harassment between colleagues, by supervisors towards employees, by employees towards supervisors, and involving contractors, volunteers, or clients. Employers have a duty to prevent sexual harassment and can be held vicariously liable for harassment that occurs in their workplace.

Educational institution harassment

Educational settings receive specific protection under South Australian law, covering harassment between staff and students, among students themselves (where one is over 16), and involving visitors or contractors at educational facilities. Universities, TAFE institutions, and schools must implement policies and procedures to prevent and address sexual harassment.

State or federal law?

Similar protection is provided by South Australian law and by federal law. To ensure compliance with anti-discrimination law, you must know your obligations under both South Australian and federal law. There may be exemptions and exceptions under one scheme that do not exist under the other.

Under the Sex Discrimination Act 1984, sexual harassment is prohibited in the workplace, in the provision of goods and service and in education. Complaints under the Sex Discrimination Act can be made to the Australian Human Rights Commission. There is no cost to make a complaint and complaints can be made online, by post or by email and can be made in any language.

Complaints about sexual harassment under South Australian law are made to the South Australian Equal Opportunity Commission.

Choosing the right jurisdiction

When deciding whether to pursue a complaint under state or federal law, consider factors such as time limits, available remedies, and the specific circumstances of your case. Federal law may provide broader coverage in some areas, while state law may offer different procedural advantages or remedies that better suit your situation.

Making a complaint and seeking remedies

Victims of sexual harassment in South Australia have several options for seeking justice and compensation. The complaint process typically begins with attempting conciliation, where parties try to reach a mutually acceptable resolution with the assistance of a trained conciliator.

Compensation and remedies available

Successful sexual harassment complaints can result in various remedies including monetary compensation for economic losses, pain and suffering, and humiliation. Other remedies may include apologies, policy changes, training requirements, or reinstatement to employment. The Equal Opportunity Tribunal can award compensation up to $100,000 in certain circumstances.

Time limits for complaints

Under South Australian law, complaints must generally be made within 12 months of the alleged harassment, though extensions may be granted in exceptional circumstances. Federal complaints under the Sex Discrimination Act must typically be made within six months, but this can also be extended. Acting promptly preserves your legal options and ensures evidence remains available.

Employer obligations and liability

Employers in South Australia have significant legal obligations to prevent sexual harassment and can face substantial liability when they fail to meet these duties. Section 92 of the Equal Opportunity Act makes employers vicariously liable for harassment committed by their employees unless they can prove they took reasonable precautions to prevent such conduct.

Prevention and policy requirements

Employers must implement comprehensive anti-harassment policies, provide regular training to staff, establish clear complaint procedures, and create a workplace culture that does not tolerate harassment. Failure to meet these obligations can result in liability even if the employer was unaware of specific incidents of harassment.

Criminal offence

Some acts which amount to sexual harassment may also be criminal offences. For example, if someone touches you sexually without your consent at work, this may be indecent assault or another criminal offence, as well as being sexual harassment. If you make a complaint about sexual harassment at state or federal level, you can still seek to have the matter dealt with by police as a criminal offence. Talk to a lawyer about your options or contact your local police to make a report and give a statement.

Concurrent proceedings

Pursuing both civil and criminal remedies simultaneously is possible and may be appropriate depending on the severity and nature of the harassment. Criminal proceedings focus on punishment and deterrence, while civil proceedings aim to compensate victims and prevent future harassment through systemic changes.

Frequently Asked Questions

What should I do immediately after experiencing sexual harassment?

Document the incident with dates, times, witnesses, and details of what occurred. Keep records of any communications, and report the harassment to your employer or appropriate authority. Seek support from trusted colleagues, friends, or counselling services, and consider consulting a lawyer to understand your legal options faqs: - question: 'What is the reasonable person test in sexual harassment cases?' answer: 'South Australian courts apply an objective reasonable person test to determine if conduct constitutes sexual harassment. This test considers whether a reasonable person, taking into account all relevant circumstances including the victim''s age, sex, relationship to the harasser, and context, would anticipate that the recipient would be offended, humiliated or intimidated by the conduct. The test is not based on the harasser''s intentions but on the objective impact.' - question: 'Can I make a sexual harassment complaint under both SA state law and federal law?' answer: 'Yes, you can pursue sexual harassment complaints under both the South Australian Equal Opportunity Act 1984 and the federal Sex Discrimination Act. Both laws provide similar protections but may offer different remedies and processes. Your lawyer can advise which jurisdiction offers the best pathway for your specific circumstances, or whether pursuing complaints under both laws simultaneously would be strategically advantageous for your case.' - question: 'How much does it cost to get legal advice about sexual harassment in SA?' answer: 'Go To Court Lawyers offers a fixed consultation fee of $295 to discuss your sexual harassment matter in South Australia. During this consultation, you''ll receive expert legal advice about your rights under both state and federal laws, potential remedies available, and the strength of your case. This upfront fee structure ensures transparency about initial costs while you explore your legal options and determine the best path forward.' - question: 'How can a civil lawyer help with my sexual harassment case in SA?' answer: 'A civil lawyer can assess the strength of your sexual harassment claim, guide you through complaint processes with the Equal Opportunity Commission or Australian Human Rights Commission, gather and present evidence, negotiate settlements, and represent you in tribunal or court proceedings. They can also advise on potential compensation claims, workplace protections, and strategic decisions about pursuing state versus federal remedies for maximum benefit.' - question: 'Are there time limits for making sexual harassment complaints in SA?' answer: 'Yes, strict time limits apply to sexual harassment complaints in South Australia. Under the Equal Opportunity Act, complaints must generally be lodged within 12 months of the harassment occurring. Federal complaints under the Sex Discrimination Act also have time restrictions. Acting quickly is crucial as gathering evidence becomes harder over time, and delays may weaken your case or bar you from seeking remedies entirely.' ---