Sexual Harassment (WA)

A person who experiences sexual harassment in Western Australia can complain either to the Western Australian Equal Opportunity Commission or to the Australian Human Rights Commission. This page deals with sexual harassment in WA.

Legislation

In Western Australia, legislative protections against sexual harassment exist both under the Equal Opportunity Act 1984 (WA) and under the federal Sex Discrimination Act 1984.

State of federal complaint?

Sexual harassment is defined differently in the state and federal legislation. Which Commission a person should complain to depends on the circumstances.

It is always advisable to seek legal advice to ensure that a person directs their complaint to the commission best placed to resolve it.

Sexual harassment under the Sex Discrimination Act

Section 28A of the federal Sex Discrimination Act defines sexual harassment as

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

towards another person in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated.

In assessing whether conduct amounts to sexual harassment, the following are to be taken into account:

(a)  the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;

(b)  the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

(c)  any disability of the person harassed;

(d)  any other relevant circumstance.

Sexual harassment is unlawful in a broad range of areas of life including in employment, education, in the course of providing goods and services, in the context of management of a club or in the course of dealing with real estate.

Sexual harassment under the Equal Opportunity Act

Under the Western Australian Equal Opportunity Act, sexual harassment is defined as

• making an unwelcome sexual advance; or
• requesting sexual favours; or
• engaging in other unwelcome conduct of a sexual nature

in circumstances where:

• there are reasonable grounds for believing that a rejection of the advance, a refusal of the request or the objection to the conduct would disadvantage the other person in connection with their employment, possible employment, education or accommodation; 
• or where, as a result of the other person’s rejection of the advance, refusal of the request or objection to the conduct, the other person is disadvantaged in connection with their employment, possible employment, education or accommodation.

In other words, the definition of sexual harassment under the Equal Opportunity Act is considerably narrower than the definition under the federal legislation.

Complaining to the Equal Opportunity Commission

If you have a complaint of sexual harassment in Western Australia and wish to complain to the WA Equal Opportunity Commission, you must make the complaint within 12 months of the alleged sexual harassment. However, in some circumstances the Commission may accept complaints relating to incidents more than 12 months ago.

A person can make a complaint on their own behalf or on behalf of themselves as well as others.

When a person makes a complaint, the onus is on them to establish that unlawful sexual harassment occurred. They must provide information that supports the allegations and as much detail as possible about where and when the incidents occurred.

If the Commission accepts a complaint, it will usually refer it to conciliation. The conciliation process may result in a resolution of the situation in a way that is acceptable to both parties, such as the perpetrator making an apology or agreeing to a payment of compensation.

If attempts to resolve the complaint through conciliation are unsuccessful, the Commissioner may refer the matter to the Administrative Appeals Tribunal, which has the power to make binding orders.

Australian Human Rights Commission

If a person believes they have experienced sexual harassment in Western Australia and wishes to complain to the Australian Human Rights Commission, they may do so in writing, either online or by post. If the complaint is accepted, the Commission will usually contact the person complained about and ask them for information. It may also contact other persons for information.

If the complaint is substantiated, the matter will usually proceed to conciliation. If the matter is not resolved at conciliation, the complainant can take the matter to the Federal Court of Australia or the Federal Circuit and Family Court (FCFCA).

The court can decide whether the conduct complained about was unlawful sexual harassment and if so, make binding orders.

A person must apply to a court within 60 days of the Commission finalising a complaint.

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