Sexual Harassment in Western Australia

In Western Australia, legislative protections against sexual harassment exist both under the Equal Opportunity Act 1984 and under the federal Sex Discrimination Act 1984. If you experience sexual harassment in Western Australia, you can make a complaint either to the Western Australian Equal Opportunity Commission or to the Australian Human Rights Commission. Which body you should complain to depends on the circumstances. It is always advisable to seek legal advice to ensure that you direct your complaint to the commission best placed to resolve it.

What is sexual harassment?

Sexual harassment is defined differently under the Sexual Discrimination Act and under the WA Equal Opportunity Act.

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 person harassed would be offended, humiliated or intimidated.

In assessing the circumstances, 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.

Under the federal legislation, it is unlawful to sexually harass a person in a broad range of circumstances 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.

Equal Opportunity Act

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

• Making an unwelcome sexual advance;
• Requesting sexual favours;
• Engaging in other unwelcome conduct of a sexual nature

with another person when there are reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person’s 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 taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person’s employment, possible employment, education or accommodation.

This means that sexual harassment in Western Australia is defined more narrowly than under the federal legislation.

WA 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 sexual harassment. However, in some circumstances the Commission may accept complaints that include allegations of incidents that occurred more than 12 months ago. You can make a complaint on your own behalf or on behalf of yourself and others.

When making a complaint, the onus is on you to establish that unlawful sexual harassment in Western Australia occurred. You need to provide information that supports your allegations and as much detail as possible about where and when the incidents occurred.

If the Commission accepts your complaint, it will usually refer it to conciliation. The conciliation process can result in a resolution of the situation in a way that is acceptable to both parties, such as by the making an apology or by agreeing on 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 can make binding orders.

Australian Human Rights Commission

If you have a complaint of sexual harassment in Western Australia and wish to complain to the Australian Human Rights Commission, you must do so in writing, either online or by post. If your 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 it is not resolved at conciliation, you can take the matter to the Federal Court of Australia or the Federal Circuit Court. The court can decide whether the conduct your are complaining about is unlawful sexual harassment and make binding orders. You must apply to the court within 60 days of the Commission finalising your complaint.

If you require legal advice or representation in respect of sexual harassment in Western Australia or in any other legal matter please contact Go To Court Lawyers.