Sexual Harassment (Tas)
In Tasmania, the Anti-Discrimination Act 1998 prohibits discrimination on various grounds, including age, sex, race and disability. It also prohibits sexual harassment. This article deals with how sexual harassment is defined in Tasmania and what steps can be taken when it occurs.
What is sexual harassment?
Section 17 of the Anti-Discrimination Act defines sexual harassment as occurring when a person does any of the following:
- Subjects another person to unsolicited sexual contact;
- Makes an unwelcome sexual advance;
- Makes an unwelcome sexual comment to a person or about the person in their presence;
- Makes an unwelcomes sexual gesture, action, or comment;
- Engages in conduct of a sexual nature in relation to another person;
Under circumstances where a reasonable person would have anticipated that the other person would feel offended, humiliated, insulted, intimidated or ridiculed.
When is sexual harassment prohibited?
Sexual harassment is prohibited in Tasmania in the following areas of activity.
- Education and training;
- The provision of facilities, goods and services;
- The administration of state laws and programs;
- Awards, enterprise agreements and industrial agreements.
Complaints about sexual harassment
A person who believes they have been sexually harassed in any of the above contexts can make a complaint to the Anti-Discrimination Commissioner. Complaints should be made within 12 months of the alleged sexual harassment.
A complaint may be refused for a number of reasons, include that it is trivial or vexatious, that the allegations do not amount to sexual harassment or that there is a more appropriate remedy available. The Commissioner must provide written reasons for rejecting a complaint.
After investigating a complaint, the Commissioner may dismiss the complaint, determine that it should proceed to conciliation or determine that it should proceed to the Tribunal for an inquiry.
If a person has made a complaint and is directed to attend a conciliation conference, they must comply. The person may attend the conciliation with a lawyer or support person with the Commissioner’s permission.
If no agreement is reached at conciliation, the matter may be referred to the Tribunal for an inquiry. If an agreement is reached it will be signed by both the parties.
Inquiry by the tribunal
If a matter is refereed to the Tribunal, it may undergo a number of directions conferences to ensure it is ready to proceed to hearing. At these conferences, the parties will be asked for details of the evidence they intend to call and the documents they want the Tribunal to consider. They can also be used to flag any practical issues such as the need for an audio-visual link to be used at the hearing or that a party requires an interpreter.
If it appears the matter could be resolved through conciliation, it may be referred to conciliation, depending on the wishes of the parties.
When the matter is ready to be determined, it will be listed for a hearing.
At the Tribunal will determine whether the complaint is substantiated after hearing evidence from each party and any other witnesses they call. The Tribunal is impartial and objective and must observe the rules of natural justice.
The complainant has the burden of proving the complaint, and calls evidence first.
If the complaint is substantiated, the Tribunal may make one or more of a number of orders, including the following:
- That the respondent must not repeat or continue the conduct;
- That the respondent must redress any loss, injury or humiliation suffered;
- That the respondent must pay compensation to the complainant;
- That the respondent must pay a fine of up to 20 penalty units;
- That the respondent must apologise to the complainant;
- Any other order it thinks appropriate.
If a person thinks the Tribunal has made a decision that is wrong, they may appeal to the Tasmanian Supreme Court. An appeal must be made within 30 days of the date of the Tribunal’s decision. The Supreme Court may affirm, vary, or set aside the original decision and, if fit, send the matter back to the Tribunal for reconsideration.
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