Harassment refers to a wide spectrum of offensive behaviour, not all of which may have been captured by appropriate legislation. In Australia, unlawful harassment is dealt with under the anti-discrimination laws, rather than through specific harassment legislation, like in the United Kingdom.
Harassment includes any unwelcome behaviour that offends, humiliates or intimidates a person. Generally, unlawful harassment occurs when someone is subjected to such behaviour for a reason that is prohibited under anti-discrimination legislation. Put another way, unlawful harassment is a form of discrimination. For example, intimidating a person because he or she belongs to a particular ethnic group is unlawful because racial discrimination is outlawed by both Commonwealth and State legislation.
Harassment can involve physical conduct, verbal conduct or visual conduct (eg in the form of posters, email, or SMS messages).
4.1 Sexual harassment
In Australia, sexual harassment is a legally recognised form of sex discrimination. It is the most common form of harassment. Generally, sexual harassment is any form of sexually related behaviour that is:
- unwelcome; and that
- offends, humiliates or intimidates a person;
in circumstances where a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.
Sexual harassment can result from a one-off incident. It does not have to be repeated or continuous to be against the law. Under the EOA, sexual harassment is unlawful in the areas of employment, education, and accommodation. However, under criminal law or Commonwealth anti-discrimination legislation, sexual harassment in other areas of public life may be unlawful sex discrimination.
The Commonwealth Sex Discrimination Act 1984 makes sexual harassment unlawful in a wide range of areas that could apply to incorporated associations. For example, in the areas of clubs and sport, and in the provision of goods, services and facilities.
The Human Rights and Equal Opportunity Commission has published Sexual Harassment: A Code of Practice to assist employers to understand their responsibilities under the Commonwealth Sex Discrimination Act 1984.
|View the Code of Practice on the Human Rights and Equal Opportunity Commission website.|
4.2 Racial harassment
Racial harassment generally includes racially based threats, taunts, abuse or insults that disadvantage another person in their workplace or other area covered by anti discrimination laws. Racial harassment could include, for example, racist jokes, racist graffiti and name-calling.
The EOA only deals with racial harassment in the areas of work, education and accommodation. However in some circumstances, racial harassment could be unlawful racial discrimination, or unlawful under criminal law or Commonwealth anti discrimination legislation.
Under the Commonwealth Racial Discrimination Act 1975, racial harassment extends to other areas that could apply to incorporated associations (for example, in the provision of goods, services or facilities). Under this Commonwealth Act, it is unlawful to perform an act (other than in private) if the act is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people because of race.
In terms of the workplace, sending racially sensitive or offensive emails to colleagues, even if they are meant to be funny, may be considered unlawful racial harassment.
In certain circumstances, aspects of racial harassment can constitute a criminal offence.
4.3 Racial vilification
The Western Australian Criminal Code makes aspects of racial harassment, and incitement to racial hatred criminal offences punishable by substantial jail terms.
4.4 Disability harassment
Under the Commonwealth Disability Discrimination Act 1992, disability harassment is unlawful in employment, education and provision of goods and services. In some circumstances, disability harassment may be unlawful disability discrimination.
It is unlawful to subject, or threaten to subject, someone to a detriment because they assert their rights under anti-discrimination legislation. This is known as victimisation.
An employer is generally liable for acts of discrimination and/or harassment committed by employees or agents in connection with their employment or duties, unless the employer can establish that it took all reasonable steps to prevent the discrimination or harassment. A lack of knowledge of discrimination or harassment taking place is not an automatic defence.
An individual may also be personally liable for acts of discrimination or harassment, depending on the circumstances.