Sexual Harassment and Australian Anti-Discrimination Law

DOI10.1177/135822910500700404
Published date01 September 2005
Date01 September 2005
International
Journal
of
Discrimination
and
the
Law,
2005,
Vol.
7,
pp. 87-126
1358-2291/2005
$10
©
2005
A B Academic Publishers. Printed
in
Great Britain
SEXUAL
HARASSMENT
AND
AUSTRALIAN
ANTI-DISCRIMINATION
LAW
PHILLIP
T AHMINDJIS*
International Bar Association, London, UK
ABSTRACT
This paper examines the law
of
sexual harassment in Australia and concludes that,
while there
is
extensive legislative coverage
at
Commonwealth, State and Territory
levels, this coverage
is
uneven. The differences and resulting outcomes between
local jurisdictions are considered. The differences between Australian laws and
overseas jurisdictions are also considered, particularly with respect to procedure
in sexual harassment cases and remedies in a jurisdiction where punitive damages
are not allowed. The paper considers the positive and negative features
of
the
Australian law and argues that greater education
of
the legal profession
is
needed to allow the adequate delivery
of
justice to people who have been sexually
harassed.
INTRODUCTION
A
person's
freedom
from
discrimination
and
harassment
is a basic
human
right
formally recognised
by
Australia.
1
Laws
with
respect
to
sexual
harassment
are
a
part
of
an
array
of
domestic
Australian
laws
based
on
human
rights
and
attempt
to
proscribe
activity
which
once
might
have
been
considered
acceptable
-
or
was
at
least
tolerated
-
in
Australia.
Nevertheless, sexual
harassment
remains
a
major
problem
in
Australia,
especially in
the
workplace,
with
a recent survey
reporting
that
41%
of
women
and
14%
of
men
had
been sexually
harassed
at
work.
2 However,
the
rate
of
sexual
harassment
complaints
has
fluctuated.
In
the 1986-87
financial year, sexual
harassment
represented
approximately
25%
of
the
complaints
made
under
the Sex
Discrimination
Act
1984.
In
1993-94, this
had
risen
to
50%
of
complaints.
The
current
rate
is
approximately
27%.
3
Despite
the
apparent
tempering
in
the
rate
of
complaints,
the
problem
remains
a significant
one
even in the
absence
of
a quantifiable figure
for
instances
of
harassment
which
are
not
the subject
of
a
formal
complaint
(estimated
at
two-thirds
of
instances).4
In
Australia
sexual
harassment
laws
are
substantially
separate
to
other
areas
of
law, such as
Criminal
Law
and
Torts,
88
which might otherwise apply. Nevertheless, there is a
potential
for
overlap.
This
article outlines
the
law which is specifically directed
to
sexual
harassment
in
Australia
and
raises some questions with
respect
to
those
other
areas
of
the law which, while
having
a
potential
application
in this area,
must
now
be
regarded
as being
subsidiary
to
it
in
the
operational
sense.
It
also
draws
some
compar-
isons with
the
approach
of
the
New
Zealand
legal system
to
sexual
harassment.
The
first
Australian
case
to
recognise sexual
harassment
as
unlawful
conduct
was O'Callaghan
v.
Loder5 where,
in
1984, the
New
South
Wales
Equal
Opportunity
Tribunal
found
that
unwelcome sexual
advances
amounted
to
sex discrimination (the
legislation
at
the time
prohibited
sex discrimination
but
did
not
expressly refer
to
sexual harassment).
The
notion
of
harassment
was
thus
read
into
the
legislation. However, in
the
same
year
the
Commonwealth
Sex
Discrimination
Act
was passed, which expressly
proscribed
sexual
harassment,
setting a
trend
where
the
proscription
is defined
by
legislation
rather
than
adopted
through
statutory
interpretation
by
the
courts.
The
development
of
anti-discrimination legislation in
Australia
occurred
at
a relatively late stage
and
can
be seen
to
be
the
result
of
the
interaction
of
both
international
and
internal
influences.
The
history
has
often
been
one
of
borrowing
from
templates established
by
other
countries.
To
a large
extent
this explains
the
style
of
legisla-
tion
Australia
has
adopted
and
the
processes which
make
it
function.
Australia
was
an
original
member
of
the
United
Nations,
taking
an
active
part
in the
formulation
of
the Universal
Declaration
of
Human
Rights.6
At
the same time, however, racism
has
been,7
and
continues
to
be,8
part
of
the
fundamental
characteristics
of
Australia.
So
has
been,
and
is, sexism. 9
The
historical
and
social
context
can
be
significant
but,
as some
commentators
have
pointed
out,
10
these
con-
texts
have
often
been
overlooked
in
so far as
the
processes
of
legally
defining
and
resolving discrimination
and
sexual
harassment
issues
are
concerned.
Anti-discrimination
legislation
at
the
Commonwealth
level
began
soon
after
the
election
of
the
Whitlam
(Labor)
government
- a
government
with
an
expressly social reformist
agenda
-
in
1973.
It
introduced
the
Racial
Discrimination
Act
1974 which was
closely modelled
on
the
New
Zealand
Race
Relations
Act
1971
and
the
then
Race
Relations
Act
1968
of
the
United
Kingdom.
It
was specifically
based
on
the
Convention
on
the
Elimination
of
All
Forms
of
Racial
Discrimination,
which
Australia
had
ratified in
1975,
and
introduced
a conciliation
model
for
the resolution
of
disputes - a
paradigm
which
has
been followed ever since.
The
conciliation
approach
had
been
adopted
not
only because
it
was
89
the
model
found
in
other
legislation,
but
also because
the
first anti-
discrimination legislation in Australia,
the
South
Australian
Prohibi-
tion
of
Discrimination
Act
1966,
had
used criminal
sanctions
and
standards
of
proof
and,
in its ten-year history,
had
been
the
basis
for only
one
successful prosecution.
The
criminal
sanctions
approach
was therefore
regarded
in
Australia
at
this time as
having
been a
failure
and
was subsequently avoided. By 1975,
the
Whitlam
govern-
ment
wanted
to
introduce
an
Act
dealing with sex discrimination
in
similar terms
to
the Racial
Discrimination
Act. This, however,
proved
harder
to
achieve
and
took
a
lot
longer. Again,
it
was the
state
of
South
Australia
which was
the
first
jurisdiction
in
Australia
to
introduce
a Sex
Discrimination
Act
in 1975,
in
response
to
Inter-
national
Women's
Year.
Having
experienced
the
problems
with
the
Prohibition
of
Discrimination
Act, this
Act
relied
on
conciliation
of
complaints
and
closely followed the
UK
Sex
Discrimination
Act
passed
in
the
same year.
The
states
of
New
South
Wales
and
Victoria
passed
anti-discrimination legislation, which included a
prohibition
on
sex discrimination,
in
1977.
11
It
was
not
until 1980
that
the
(Liberal
Party)
Attorney-General,
Mr
Ellicott,
announced
that
the
federal
government
would
introduce
a law which
would
make
it
unlawful for
the
Commonwealth
government
or
the
Territories
under
its jurisdiction
to
discriminate
on
the
grounds
of
sex
or
marital
status.
The
limitation
in
the
application
of
this legislation (it
did
not
apply
to
the
states) was
due
to
the
fact
that
the
Commonwealth
had
decided
not
to
ratify the
Convention
on
the
Elimination
of
All
Forms
of
Discrimination
Against
Women,
which
would
have
provided
the
constitutional
validity for
an
Act
applying
to
more
than
the
Com-
monwealth
itself.
Under
the policy
of
'cooperative
federalism', it
was decided
not
to
pass
an
Act
of
wider
application
until all the
states
had
agreed
to
it.
This
Bill
had
still
not
been
introduced
in
1983
when
the
government
changed.
In
the
meantime,
the
then
Shadow
Minister
on
the
Status
of
Women,
Senator
Susan
Ryan,
introduced
a
Private
Member's
Bill
which
would
have
made
discrimination
on
the
grounds
of
sex
and
marital
status
unlawful
throughout
Australia
(and
which
would
have also
introduced
a
requirement
of
affirmative
action
manage-
ment
plans
for all businesses with 100
or
more
employees).
This
Bill was never
debated
in
the
Senate.
A Sex
Discrimination
Act
was
an
election
promise
of
the
Labor
Party,
which
won
power
in 1983.
In
contrast
to
the existing racial
discrimination legislation,
to
which there
had
been some
strong
com-
munity
objection,
but
which
had
been
described
by
Peter
Bailey as
legislation passed
'in
a uniquely consensual
form
...
in
the
best tradi-
tions
of
democracy',
12
debate
on
a Bill dealing with gender equality
was
much
more
vituperative.
13
The
Bill was called
both
'anti-family'

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