Sexual harassment remains a salient issue in the Australian workplace.

The Australian Bureau of Statistics reports that one in two women and one in four men are subjected to harassment at some stage in their lifetime. The Human Rights Commission (in August 2018) published the results of its national survey which reveals that 23 per cent of women and 16 per cent of men in the Australian workforce have experienced some form of workplace harassment. Less than one in five people make formal complaints. Women are more likely to experience acts of sexual harassment. However, the recommended reform cannot rely on there being a ‘shift in the onus of proof’ in favour of an accuser.

In the broader context, conduct that fosters gender inequality in the workplace facilitates an environment where sexual harassment is par for the course. Inequality enables an environment where a culture of sexual harassment is permitted to continue. When the harassment escalates to trespass to the person, (from what is often characterised by the perpetrator as mere flirting that went further consensually or the conduct was intended to be taken as a ‘joke’), it morphs into criminal conduct. It is a sexual assault and the behaviour invokes fear and operates as a barrier to women participating in the workforce.

The research confirms that sexual harassment disproportionately affects women (47 per cent of all gainfully employed people in Australia are women, 25.6 per cent work full-time, and 21.4 per cent work part-time). It is plainly clear that legislative, regulatory, and policy reforms are long overdue. However, taking steps to create a system whereby the burden of proof favours the alleged victim must be considered in the very clear light and in the context of Australia’s legal heritage. Currently, the onus of proof remains with the alleged victim in Australia.
The Sex Discrimination Act 1984 (Cth) (‘SD) prohibits workplace sexual harassment. Section 28A in the SDA defines sexual harassment as being ‘an unwelcome sexual advance’ or an unwelcome request for sexual favours’ or ‘unwelcome conduct of a sexual nature’ where ‘a reasonable person having regard to all of the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated’. The onus of proof remains with the complainant, the evidentiary burden is significant. The conduct often occurs in private in the absence of witnesses. A shift in the onus of proof would assist a complainant.

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The Fair Work Act 2009 (Cth) (FWA) is also key. It regulates the relationship between employers and employees. The statute has no unambiguous sexual harassment provisions that prohibit the conduct. Although, section 351 of the FWA has in cases been construed to cover sexual harassment. The lack of clear and plain legislative language complicates and creates difficulties for any complainant who wishes to make a claim involving sexual harassment pursuant to the general protection offered under the FWA.

FWA ought to be amended to cover volunteers and unpaid workers. The legislator should introduce a program that shifts the onus of proof to a less onerous level. The SDA and FWA ought to make it clear that the standard to be applied to claims of discrimination and sexual harassment is on the ‘balance of probabilities’ and not on the ‘Briginshaw standard’. The latter is more onerous and it is analogous to the test: ‘beyond reasonable doubt’ which is applied in criminal proceedings.

The presumption of innocence as it stands is not displaced when considering the nature of the allegation- sexual harassment. It is repugnant and society responds accordingly. And the long term effect is life-changing for an accused and when they are wrongly accused the damage remains. The challenge for Australian lawmakers: what is the proper application of the legal principle when considering sexual harassment matters in the workplace?
The famous US lawyer and academic Alan Dershowitz was accused of a sexual assault. The circumstances of that case highlight the dangers associated with the recent ‘media’ driven ‘popular call’ for there to be a shift of the onus of proof in favour of an alleged victim. He recounts his story in the book Guilt By Accusation: The Challenge of Proving Innocence in the Age of #MeToo. Deshowiztiz says: “there’s no question. Before the #MeToo movement, I had won. It had gone away. I had the submission, I had the tapes, the recording, the emails, I had a full investigation by the former head of the FBI who said it was false, I had a judge who struck it [down], the lawyers had withdrawn it…it was over! It was completely over. And then the #MeToo movement came, and suddenly it was resurrected.”

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Mr Dershowitz describes the difficulty of making his case in the court of public opinion and says the unchallenged standard is to believe all women: “If you call a woman a liar, even if you didn’t do [what you’re being accused of], you’re guilty of calling a woman a liar,… If you don’t deny it, you’re thought to be guilty. If you do deny it, you’ve committed an additional political sin. The #Me Too movement relies on credible reports of sexual misconduct and when a woman and her lawyer make false allegations and falsely accuse people, it hurts not only the falsely accused person, me, but it hurts everybody who is a true victim of sexual abuse,” Mr Dershowitz said.

It is incumbent on every person to speak out against sexual harassment in the workplace or alternatively ‘give voice’ to values that are partisan with those of every worker’s legal rights in Australia. This is the only sustainable way to effect cultural change which goes to the root of the issue regardless of whether that may bring embarrassment and hardship. The legislative parameters are not the most satisfactory and there is a need for reform but a balanced approach must be taken to any proposed legislative reform.