Sexual Harassment Laws in Australia Explained

Sexual harassment has no place in any workplace. Beyond the personal harm, it can seriously impact culture, productivity and your brand. If you’re running a business in Australia, it’s essential to understand how the law defines sexual harassment, what’s changed in recent reforms, and the practical steps you must take to prevent it.

Recent updates to federal laws have strengthened protections and raised expectations on employers. In short, regulators now expect you to proactively prevent sexual harassment - not just respond when something goes wrong.

This guide breaks down the legal definition, outlines your duties, and gives you a clear, step-by-step approach to handling complaints in a way that’s fair, compliant and supportive of everyone involved.

What Counts As Sexual Harassment in Australia?

Let’s start with the legal definition so you’re clear on where the line is drawn.

The Legal Test (Plain-English Summary)

Under the Sex Discrimination Act 1984 (Cth), sexual harassment is unwelcome conduct of a sexual nature in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Key points to remember:

• It’s about the effect of the conduct, not the intent. “I didn’t mean it” doesn’t excuse behaviour that meets the legal threshold.
• “Conduct of a sexual nature” covers words, actions, images and digital communications.
• It can occur at work, offsite, online or at work-related events (e.g. conferences, client dinners, work drinks).

Examples You’ll Recognise

• Unwanted touching, hugging, or brushing up against someone.
• Sexual comments, jokes, “banter” or innuendo - including in chats or emails.
• Persistent requests for dates or sexual favours after a “no.”
• Sharing or displaying sexual images, memes or videos.
• Suggesting benefits for agreeing to sexual advances, or negative consequences for refusing.
• Derogatory remarks about someone’s sex, sexuality, gender identity or appearance.

How It Differs From Other Unlawful Conduct

• Sex discrimination: Unfavourable treatment because of a person’s sex (or related attributes), even if there’s no sexual conduct.
• Hostile work environment on the ground of sex: Creating or allowing a workplace environment that is offensive, intimidating or humiliating for someone because of their sex - for example, pervasive sexualised jokes or displays.
• Bullying: Repeated unreasonable behaviour that creates a risk to health and safety. While bullying can overlap, “sexual bullying” isn’t a defined legal category - the conduct will typically be treated as sexual harassment or discrimination, depending on what happened.

Is Sexual Harassment Unlawful - And What Changed Recently?

Yes. Sexual harassment is unlawful across Australia, and several overlapping regimes apply:

• Sex Discrimination Act 1984 (Cth): Prohibits sexual harassment and related conduct across workplaces, education and other areas.
• Fair Work Act 2009 (Cth): Enables the Fair Work Commission (FWC) to make “stop sexual harassment” orders in connection with work.
• Work health and safety (WHS) laws: Treat sexual harassment as a psychosocial hazard. You must manage the risk like any other safety risk.
• State/territory anti-discrimination laws: Additional protections sit alongside federal law.

Respect@Work Reforms - What Employers Need To Know

Recent reforms (progressively implemented from late 2022 through 2024) lifted the bar on prevention and enforcement. Highlights include:

• Positive duty: Employers and PCBUs (persons conducting a business or undertaking) must take reasonable and proportionate measures to eliminate, as far as possible, unlawful sexual harassment, sex discrimination and hostile work environments on the ground of sex.
• Regulator oversight: The Australian Human Rights Commission (AHRC) can monitor and enforce compliance with the positive duty.
• FWC jurisdiction: Workers can apply for stop sexual harassment orders to quickly address ongoing or foreseeable risks.
• Broader coverage: Protections apply to employees, contractors, volunteers, interns, work experience students, job applicants and even some third parties like customers and clients in connection with work.

The takeaway: it’s not enough to have a policy on paper. You need to show active, ongoing prevention and a robust response framework.

Workplace Duties: What Employers Must Do Now

In practice, meeting your positive duty and WHS obligations means building a system that prevents harm, encourages speaking up and resolves issues fairly. Here are the essentials.

1) Put Clear Policies In Place

Have a tailored, up-to-date anti-sexual harassment policy that defines unacceptable conduct, explains how to report concerns, and sets out investigation and outcome processes. Many businesses group this with other behaviour standards inside a single Workplace Policy or in a broader Staff Handbook so expectations are easy to find.

2) Train Everyone - Regularly

Induction and refresher training should cover what sexual harassment is, how to be a bystander, how to raise concerns and what happens next. Keep records of sessions and attendance. If you’re unsure where to start, see our overview of legal requirements for training employees and build a schedule that suits your risk profile.

3) Enable Safe, Confidential Reporting

Offer multiple reporting channels (e.g., HR contact, manager, anonymous webform). Make it clear that victimisation of any person who reports or participates in a process is prohibited and will lead to disciplinary action.

4) Investigate Fairly and Promptly

Use a trauma-informed, procedurally fair approach. This generally means appointing an impartial investigator, interviewing parties and witnesses, documenting evidence, and providing the respondent with an opportunity to respond to the allegations before decisions are made.

5) Take Reasonable Interim Steps

While assessing a report, you may need to manage immediate risks - for example, temporary changes to rosters or reporting lines. In appropriate cases, you might consider suspending an employee pending investigation to preserve safety and integrity of the process.

6) Apply Outcomes Consistently

Outcomes may include training or coaching, warnings, role changes or termination (in serious cases). If termination is on the table, ensure your documentation is sound and that you’re using appropriate steps like show cause letters and the right termination documents to reduce risk.

7) Build Prevention Into Everyday Work

Regularly assess your risks (e.g., high customer contact, lone working, after-hours events), consult workers, and adjust controls. Reinforce expectations through leadership, team meetings and performance management.

Vicarious Liability - Can You Be Liable For Staff Conduct?

Yes. Employers can be vicariously liable for sexual harassment by employees or agents if it occurred in connection with work, unless you can show you took all reasonable steps to prevent it. That’s why policy, training, accessible reporting and consistent enforcement are critical - they’re both good practice and part of your legal defence.

Workforce Coverage - Who’s Protected?

Protections extend to employees (full-time, part-time, casual), contractors and subcontractors, volunteers, interns and apprentices, work experience participants, job applicants and, in many cases, clients and customers when the conduct is connected to work.

Don’t Forget Contracts and Onboarding

Your Employment Contract should require compliance with workplace policies, including your anti-harassment policy. Refer to these policies during onboarding and training so expectations are crystal clear.

Handling A Complaint: Step-By-Step For Employers

When a concern is raised, act quickly and carefully. Here’s a practical approach you can adapt to your policies.

Step 1: Acknowledge and Support

• Thank the person for speaking up and explain next steps.
• Discuss immediate safety or wellbeing needs and available support services.
• Reassure them about confidentiality and protections against victimisation.

Step 2: Assess Immediate Risk

• Consider interim measures (e.g., separating parties, adjusting duties or rosters).
• In higher-risk scenarios, consider temporary suspension pending investigation if proportionate.

Step 3: Plan the Process

• Decide on an informal resolution (where appropriate) or a formal investigation.
• Appoint an impartial decision-maker or investigator and set timeframes.

Step 4: Investigate Fairly

• Gather information from the complainant, respondent and any witnesses.
• Give the respondent clear particulars of the allegations and a fair chance to respond.
• Document everything carefully - chronology, evidence, findings and reasons.

Step 5: Decide and Implement Outcomes

• Apply outcomes consistently with your policies and the evidence.
• If disciplinary action is warranted, follow a procedurally fair process - often using a show cause letter before making a final decision.
• Communicate decisions appropriately to the parties and confirm next steps (e.g., training, monitoring, support).

Step 6: Review and Improve

• Identify any systemic issues and update policies, training or controls.
• Consider leadership messaging to reinforce expectations.

Important: Retaliation against anyone who reports or participates in a process is unlawful and should attract swift action under your policies.

Where Can Complaints Go - And What Are the Consequences?

While many matters can be resolved internally, workers also have external options.

Fair Work Commission (FWC)

The FWC can make “stop sexual harassment” orders where harassment has occurred or there’s a risk it will continue or repeat in connection with work. These orders focus on stopping the behaviour - for example, by directing certain conduct to cease or imposing controls to prevent further contact.

Australian Human Rights Commission (AHRC)

Complaints under the Sex Discrimination Act are typically resolved through conciliation. If not resolved, they may proceed to the Federal Court or Federal Circuit and Family Court for determination. The AHRC also has powers to inquire into and enforce the positive duty on employers.

State and Territory Bodies

Each state/territory has its own commission and complaint pathway under local anti-discrimination laws. A complainant will usually choose one route (federal or state/territory) for a particular matter.

What Outcomes Are Possible?

Consequences vary depending on the forum and the facts, and may include:

• Orders to stop the conduct or to implement preventive measures (policies, training, supervision).
• Compensation for harm and, in some cases, penalties.
• Apologies or other agreed remedies via conciliation.

Reinstatement is not a typical “sexual harassment remedy” in its own right. However, where employment law is engaged (for example, if disciplinary action was procedurally unfair), other employment remedies may come into play depending on the claim.

When To Get Extra Help

If a matter is complex or sensitive - for instance, it involves multiple parties, customer interactions, or potential criminal conduct - it’s wise to seek specialist assistance. Our team regularly advises on workplace harassment and discrimination claims and can help you navigate strategy, process and documentation.

Documents and Tools To Support Compliance

Having the right documents (and using them) is a core part of meeting your positive duty and WHS obligations. Consider the following foundation set.

• Anti-Sexual Harassment Policy: Defines unacceptable conduct, reporting options, investigation steps and outcomes.
• Code of Conduct: Sets clear behavioural standards for everyone, including expectations at work events and online.
• Workplace Policy or Staff Handbook: A single home for key policies and procedures; a Staff Handbook keeps everything consistent and easy to update.
• Employment Contract: Requires compliance with policies, outlines disciplinary processes, and sets reporting lines and duties - start each engagement on solid footing with a tailored Employment Contract.
• Complaint Handling Procedure: A practical, step-by-step guide for managers and HR to ensure confidentiality, fairness and timeliness.
• Training Materials and Records: Content and attendance logs showing you’re actively preventing harassment.
• Investigation and Outcome Templates: Tools such as show cause templates and an employee termination documents suite to support fair process when disciplinary action is needed.

Policy plus training plus consistent enforcement is what demonstrates “reasonable and proportionate measures” in practice.

Key Takeaways

• Sexual harassment is unlawful in Australia. The legal test focuses on unwelcome sexual conduct where a reasonable person would have anticipated the possibility of offence, humiliation or intimidation.
• Respect@Work reforms created a positive duty: you must take reasonable and proportionate measures to prevent sexual harassment and hostile work environments, not just respond after the fact.
• WHS laws treat sexual harassment as a psychosocial hazard, so risk management, consultation and control measures are essential.
• Employers can be vicariously liable unless they took all reasonable steps to prevent harassment - strong policies, regular training and consistent enforcement matter.
• Build a practical framework: a clear Workplace Policy, a readable Staff Handbook, tailored Employment Contracts, and scheduled training backed by good records.
• If a complaint arises, move quickly: support the person, assess risk, investigate fairly, document decisions and apply outcomes consistently.
• External routes (FWC, AHRC and state bodies) can lead to orders, compensation and enforceable undertakings - prevention is always the safer, cheaper path.

If you’d like a consultation on your sexual harassment policy, legal obligations or a specific complaint process, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.