Australia has taken significant steps in addressing and preventing sexual harassment in the workplace in recent years.
Most recently, the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 (Costs Protection Bill) passed Federal Parliament in September 2024, as a final recommendation of the Respect@Work report. The Costs Protection Bill inserts a new costs protection provision for unlawful discrimination claims (including sexual harassment) into the Australian Human Rights Commission Act 1986 (AHRC Act).
The Costs Protection Bill introduces a costs protection regime whereby applicants are now generally shielded from paying the respondent’s legal costs if their claim is unsuccessful. They can also be awarded costs, if their claim is successful.
The changes are aimed at enhancing access to justice for individuals pursuing claims of unlawful discrimination and sexual harassment. Previously, costs orders could be made in the federal jurisdiction against unsuccessful claimants, and the court could have regard to previous offers exchanged between the parties when considering awarding costs. This posed a barrier to applicants instituting proceedings in the federal jurisdiction. This barrier has now been removed, meaning that that whilst applicants who bring discrimination or sexual harassment claims in a federal court can recover their legal costs if they are successful, they are now protected from having to pay an employer’s legal costs if they are unsuccessful in their claim, aside from in some ‘limited circumstances’.
‘Limited circumstances’ include:
- when the court is satisfied that the applicant has instituted the proceedings vexatiously or without reasonable cause;
- the court is satisfied that the applicant’s unreasonable act or omission caused the other party to incur the costs; or
- the respondent is successful in the proceedings (and where none of the applicant’s grounds are successful) and the respondent does not have a significant power advantage over the applicant and does not have significant financial or other resources relative to the applicant.
Key take-aways for employers:
- Applicants who bring discrimination or sexual harassment claims in a federal court can recover their legal costs if they are successful, whilst being protected from having to pay the employer’s legal costs if they are unsuccessful.
- The removal of this barrier is also likely to see more sexual harassment claims brought in the federal jurisdiction.
- The new regime is likely to impact settlement considerations for both employers and employees in discrimination and sexual harassment claims.
- This is why it is now more important than ever for employers to ensure that they are taking proactive measures to prevent sexual harassment as far as reasonably possible.
How can employers prepare for these changes?
Sexual harassment is unlawful in Australia under both state/territory and federal laws. It is defined in section 28A of the Sex Discrimination Act 1984 (Cth) as any ‘unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate, or intimidate another person’. Sexual harassment can also occur in a sexually charged or ‘hostile’ work environment, even if the conduct is not directed at a specific person.
Sexual harassment may be physical, verbal, or non-verbal conduct, such as:
- Physical – unwanted touching, hugging or kissing, standing too close or invading a person’s space in a sexually suggestive way, sexual assault, including inappropriate or non-consensual physical contact.
- Verbal – making sexually explicit comments, jokes, gestures, comments about a person’s body or appearance in a sexually suggestive nature, leering, cat calling or making inappropriate noises, asking intrusive questions about someone’s sex life, personal life, or sexual preferences.
- Non-verbal – sending unsolicited, sexually explicit emails, text messages, social media messages, showing or distributing sexually explicit materials, displaying sexually suggestive or offensive pictures in the workplace, starring or leering.
Other examples include making employment decisions based on sexual favours or the willingness to engage in some form of sexual conduct, or otherwise creating a sexually hostile or intimidating work environment through comments, jokes or behaviour.
Significant reforms to enhance protections against sexual harassment have been adopted in response to the recommendations from the 2020 Respect@Work report by the Australian Human Rights Commission (AHRC).
These key reforms include the new positive duty imposed on employers to take reasonable steps to eliminate sexual harassment, sex discrimination and victimisation in the workplace. This means that employers must be proactive in preventing sexual harassment and not just respond to complaints.
It is recommended that employers:
- create clear anti-harassment policies and foster a respectful workplace culture. Employers should regularly review internal policies, procedures and the overall workplace to ensure they are effective in preventing sexual harassment;
- conduct regular training on sexual harassment laws and workplace expectations;
- ensure that there is a clear reporting mechanism in place for complainants to access in full faith that their complaint will be handled with sensitivity;
- when a complaint is made, employers must handle it quickly, confidentially and fairly by way of an internal investigation. Disciplinary action should be consistent and reflect the employer’s commitment to fostering a respectful workplace culture; and
- employers must treat sexual harassment as they would any other health and safety risk. This may involve conducting risk assessments, consulting employees and implementing controls to mitigate risk.
For more information in relation to the new sexual harassment regime, please review our May 2023 and December 2022 articles.
If you require advice in relation to compliance with the new legislative changes, please contact us.
This article was written by Clare Raimondo, Partner and Emma Campbell, Senior Associate.
