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Sexual Harassment (SA)

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.

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.

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.

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.

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.

If you require legal advice about a sexual harassment matter or about any other legal matter, please contact Go To Court Lawyers.

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