Sexual harassment

For free and confidential legal advice about this topic, you can contact us here.

What is sexual harassment?

Sexual harassment is any unwelcome sexual behaviour which in circumstances where a reasonable person would anticipate you might be offended, humiliated or intimidated. It’s against the law.  This could include unwelcome:

• sexual advances:  such as unwelcome touching,  staring, unwanted requests to go on dates;  
• requests for sexual favours, including suggestive jokes; and/or
• sexual behaviour aimed at you or in your presence: such as any unwelcome gesture, action or comment of a sexual nature.  This can be spoken or in writing, for example through SMS texting, Facebook, or by displaying unwanted sexual posters or screensavers and also includes intrusive questions about your private life. It would also include physical gestures.

For behaviour to be sexual harassment, it must be unwelcome.  That means that you don’t want it to happen. So behaviour of a sexual nature which you agree or consent to, such as flirting, is not sexual harassment.

For some more information on sexual harassment, visit the Australian Human Right’s Commission website.

If you have a question about sexual harassment or need some legal help, you can contact us here.

You can also check out this video below from to learn more about sexual harassment and where to draw the line.

Is sexual harassment against the law?

Yes. Sexual harassment is against the law. You do not have to put up with it and it’s okay to complain. Remember, no-one deserves or asks to be sexually harassed. Everyone has the right to work in an environment free from sexual harassment.  It’s also against the law for an employer to take action against you (for example firing you or demoting you) because you make a complaint about sexual harassment.

Sexual harassment can also be a crime including sexual or indecent assault.  Indecent assault is when someone touches your body in a sexual way, even through clothes, without your consent. For more information on sexual assault, please see our Sexual Assault fact sheet.

Where can sexual harassment happen?

It’s against the law to be sexually harassed in the following situations:

• At work – such as by your boss  or other people you work with;
• At school – such as by a teacher  or another student;
• When you are buying  or selling goods or services  – such as when you are in a restaurant or if you are catching a taxi;
• When you are looking for accommodation, like a hotel, or buying or renting a house or apartment;
• When you are a member of a club, such as a sporting or social club;
• When you are dealing with a person working for the government;
• When you are looking for a job.  

Criminal law may protect you from this kind of behaviour in other states and territories if it amounts to sexual assault.  See the Sexual Assault Fact Sheet for more information.

Sexual harassment can happen to anyone, whether they are male or female. You shouldn’t be afraid to speak up if it happens to you.

Example:

Leo and Kate broke up after a two-year relationship. They work at the same office. At the after-work drinks (which Leo couldn’t go to), Kate showed all her work colleagues a silly video of Leo she had on her phone in which he was taking off all his clothes and dancing.

Assuming Leo did not consent to Kate’s actions, her actions would constitute sexual harassment, which is against the law.   Also, if Leo was under 18 when the video was taken, then Kate could be charged with the crime of ‘disseminating child pornography’ (check out our page on Sexting for more information about this).  Even if Leo was over 18, Kate could be charged with distributing an intimate image.

What is harassment on the grounds of sex?

A person harasses another person on the grounds of sex if the person engages in unwelcome behaviour of a seriously demeaning nature in relation to the sex, or characteristics that are related or are generally attributed to the sex of the person being harassed, where a reasonable person would have anticipated the possibility that the person harassed would be offended. This law captures behaviour that is seriously demeaning but not necessarily sexual.  

Examples include:  

• Asking intrusive personal questions about a person’s sex  
• Making inappropriate comments or jokes to a person based on their sex 
• Making sexist, misogynistic (prejudiced against women) or misandrist (prejudiced against men) remarks. 

Is harassment on the grounds of sex against the law? 

Yes. It is unlawful to be harassed on the grounds of sex in certain contexts, such as in a workplace, by a school or in the provision of goods and services, the provision of land, the provision of accommodation or within a club.  Like sexual harassment, it is never ok and it’s ok to speak up about it.

What is the difference between sexual harassment and sex discrimination?

Sex discrimination happens when you are treated less favourably than another person because of your sex.  It can happen at work, shopping, at school or in other situations. Sexual harassment can also be a form of sex discrimination in some circumstances. For more information on discrimination see our page on Discrimination.

What can I do if I have been sexually harassed?

You have lots of options.  You can do the following:

1. Tell them to stop: if it is possible, tell the offender verbally or in writing that their behaviour is offensive and unacceptable and that you want it to stop immediately. If this isn’t possible, you should discuss it with a person who is in charge, such as your work supervisor or teacher.
2. Keep a written record: you should keep a written record of everything that has happened, when it happened and the names of any people who saw what happened.  You can keep notes in your phone if you want.
3. Get some support: if someone has sexually or indecently assaulted you, you can call 1800 RESPECT to talk about your situation.  They can help you with things like reporting to the police. You can also call your local police station to report what happened. For more information on sexual assault and who you can talk to, please visit our page on Sexual Assault.
4. Make a complaint to your employer or school: depending on where the harassment occurs there may be guidelines or a policy which you need to follow to report what has happened and make a complaint. For example:
   • Workplace – most workplaces will have a sexual harassment policy which will outline the complaint procedure.
   • School –schools may have their own policy or complaints procedures for sexual harassment which can be accessed by students.  The education department in your State or Territory may also have a policy for sexual harassment that will apply to your school.
5. Make a complaint to a tribunal: if the issue is still not resolved or didn’t happen at school or work, you have the right to make a complaint to the Australian Human Rights Commission which is a statutory tribunal set up by the Commonwealth Government, or to the relevant Commission or Board set up by your State or Territory government.
   • You should get legal advice about which organisation to make your complaint to, because the federal law is different to State and Territory laws.  It is usually free to make a complaint. You generally must make the complaint no more than 12 months after the harassment happened.
   • If you make a formal complaint to a tribunal and the matter is not resolved, you may have the option to go to a tribunal or court hearing. You should get advice about this.

You can find the details for the Legal Aid in your state or territory at the following link: http://www.australia.gov.au/content/legal-aid

You can also find out more about making a complaint by contacting the Commissions using the contact details listed below.

You may feel scared about making a complaint, but it is important to know that it is against the law for someone to treat you unfairly or harm you because you made a complaint against them.  If that happens, they can be fined or imprisoned.

Tell someone

Sexual harassment is unacceptable and you should speak to your parents or another adult that you trust. If you do not speak to someone, or report what happened, then no one will know what is going on and they can’t help you. We have provided you with a list of important contacts to call at the end of this fact sheet if you would like to talk to someone confidentially.

Where else can I get help?

If you’ve been sexually harassed at work, you can call 1800 RESPECT to talk to a counsellor. You can also call the Australian Human Rights Commission, or anti-discrimination tribunal in your State or Territory to find out how to make a complaint. Generally, there is a time limit of 12 months to make a complaint at a discrimination tribunal. You can find their details below:

• Australian Human Rights Commission
• South Australia Equal Opportunity Commission

If you’re under 25 and have a question about sexual harassment that we haven’t answered here, please contact us here and we can give you free information and advice.

Youth Law Australia would like to express thanks to Hall & Wilcox and the Fair Work Ombudsman for assisting us with the preparation of this material.