The enactment of the federal Sex Discrimination Act in 1984 made sexual harassment illegal in Australia for the first time. 

The subsequent evolution of sexual harassment case law—while not always smooth or linear—reveals an increasing acknowledgement of: 

• the structural and systemic mechanisms of gender inequality as drivers of workplace sexual harassment; 
• the negative and profound impacts of sexual harassment as recognised in the award of damages;  
• the need to develop, disseminate and enforce workplace sexual harassment policies and procedures to avoid employer liability;  
• the importance of education in awareness and prevention to avoid employer liability;  
• the pace of cultural change in the legal profession and society at large.  
   

The following cases chart some key moments in the evolution and understanding of Australian sexual harassment law. 

Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217.

Three women alleged sexual harassment by their employer, a male medical practitioner and clinic-owner. The Full Court of the Federal Court extensively considered when conduct is sexual harassment, whether it must be repeated, and what remedies are available for sexual harassment. The Full Court found the first instance Commissioner erred in several ways, including finding that intrusive questions about the women’s personal life and sex life during recruitment interviews were not sexual harassment, that women would be accustomed to some sexual discussion and behaviour and therefore not suffer damage, and that comments of a sexual nature which are absurd and so not to be taken seriously cannot constitute sexual harassment.  

Spencer v Dowling [1997] 2 VR 127. 

A major decision under the Equal Opportunity Act 1984, the respondent had sent a series of anonymous letters to a junior employee, expressing his love for her. She informed him, as her employer, that she was receiving such letters and that they were unwelcome. The respondent’s conduct culminated in a letter he gave her which proposed that they leave their respective spouses. Winneke P and Callaway JA (Hayne JA dissenting) affirmed this persistent conduct could give rise to a reasonable apprehension that her career prospects or working conditions were contingent on accepting those sexual advances. The court noted, however, that the wording of Act was unclear, as it did not mention sexual harassment and was aimed at preventing an abuse of power rather than harassment.  

Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334 

On appeal, Kenny, Besanko and Perram JJ found the trial judge erred in not finding a causal link between the respondent’s conduct and the complainant’s decision to leave the company. The case contained a detailed consideration of damages awards in sex discrimination cases, and noted that they had remained inappropriately low, despite changes in the value of money and recognition of the extent of harm caused by sexual harassment.  

Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728  

Here, the complainant suffered severe abuse, bullying and sexual harassment at a construction firm. As a result, she suffered a serious psychiatric illness from which she will never recover, and has become unable to return to work. T Forrest J ordered $380,000 in general damages and $980,027 in economic loss due to her permanent psychological impairment. 

Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) (2020) 273 FCR 189 

This case concerned sex discrimination, sexual harassment and victimisation at a timber plant. The first issue Flick, Robertson and Rangiah JJ considered was whether the employer took all reasonable steps to prevent the sexual harassment. This issue directs attention to whether particular steps were taken, whether it was reasonable to take those steps and whether those steps may have prevented the harassment in question. While policies and training are important, a failure to comply with policies and a lax approach to investigation may reflect a workplace that tolerates harassment. The court held the respondent’s training had been inadequate because it did not state that sexual harassment is unlawful, could result in disciplinary action and could leave the employer vicariously liable. The second issue was the six year delay in handing down the judgment, which the court found led to the primary judge ‘to take the easiest path’ by siding with the male respondent.  

Hughes trading as Beesley and Hughes Lawyers v Hill (2020) 277 FCR 511  

Hills was hired by Hughes as a paralegal. Within 2 months of starting work, Hughes began bombarding Hill with declarations of love and proposing a romantic relationship. This continued despite Hill rejecting the advances. He also prevented her from leaving a room on several occasions unless she hugged him. Perram J wrote the lead judgment (Collier and Reeves JJ concurring), and strongly denounced Hughes’ conduct. He described Hughes’ conduct as despicable, improper, altogether inappropriate, causing Hill almost intolerable stress and that his conduct of the trial was effectively a continuation of his harassment of Hill. The case provides a striking example of sexual harassment within the legal profession, and an equally striking condemnation of the conduct by an appellate court.  

Nationwide News v Rush (2020) 380 ALR 432  

While this case involved a defamation action between the actor Geoffrey Rush and the publisher of The Daily Telegraph, the judgment contains a sophisticated acknowledgement of how hierarchy and power can affect the behaviour of people who experience sexual harassment. The Full Court of the Federal Court noted that the fact that the complainant spoke favourably about Rush during promotional interviews should not have been used to assess the complainant’s credibility or reliability, as the complainant may have suppressed or subordinated her personal feelings to the corporate interest in promoting the performance. Despite this acknowledgment, the Court upheld the trial judge’s finding that The Daily Telegraph had not proved the alleged sexual harassment occurred.  

The Review of Recruitment and Working Arrangements of Judicial Staff who Work in a Primary Relationship with Judicial Officers in Victorian Courts and VCAT directs that induction training for judicial staff and judicial officers ‘acknowledge that there have been incidents of sexual harassment or inappropriate sexualised conduct by judicial officers towards court staff and other junior legal staff’. p.98. Acknowledgements are provided below.