Last Updated 14 June 2017
The sexual harassment provisions of the Anti-discrimination Act 1991 (Qld) (Anti-discrimination Act) (ss 117–120) prohibit sexual harassment, and allow complaints of sexual harassment to be made and dealt with under the same procedures for dealing with other complaints of unlawful discrimination under the Act. Sexual harassment complaints are the largest single area of complaint to the Queensland Anti-discrimination Commission.
Sexual harassment is not restricted to specific areas of activity (e.g. occurring in employment or education) that apply to all the other attributes of discrimination. The prohibition against sexual harassment applies in all spheres of life, both public and private.
Sexual harassment is not restricted to the harassment of women by men or men by women; it can be between persons of the same sex.
Definition of sexual harassment
The definition of sexual harassment (s 119 Anti-discrimination Act) is extremely wide and lists some examples of sexual harassment. Sexual harassment includes, but is not limited to, the following conduct:
- unsolicited acts of physical intimacy (e.g. touching, hugging, kissing, unzipping of uniforms, fondling and pinching of breasts and genitals, rubbing against a person in a sexual way and acts of sexual intercourse)
- unsolicited demands or requests for sexual favours or the offer of money for sex
- remarks with sexual connotations addressed to a person (e.g. offers of marriage, comments about the size of a person’s breasts and questions about a person’s sex life)
- other unwelcome conduct of a sexual nature, such as showing pornographic videos, websites or photographs and the exposure of a person’s sexual organs.
Intention to harass
Behaviour can only be classified as sexual harassment if one of two criteria is satisfied:
- the person performing it has an intention to offend, humiliate or intimidate the person subject to the alleged sexual harassment
- a reasonable person would have anticipated the possibility that the person who was subjected to the conduct would be offended, humiliated or intimidated by the conduct (ss 119(e)–(f) Anti-discrimination Act).
Circumstances to be taken into account
Section 120 of the Anti-discrimination Act lists circumstances that can be taken into account when looking at whether a person should have anticipated that another person would be offended, humiliated or intimidated by their conduct. These circumstances include the age, sex, race of the person, any impairment the person has, and the relationship between the people involved and any other circumstances of that person.
Associated objectionable conduct
If a person displays objectionable conduct by requesting or encouraging another person to contravene the Anti-discrimination Act, such persons, if joined, become jointly and severally (individually) liable under the Anti-discrimination Act for any discriminatory conduct, and a proceeding may be taken against both or either of them (ss 121–123 Anti-discrimination Act).