In a world of inappropriate behaviour, what comments count as sexual harassment?

Disgraced TV personality Don Burke is facing multiple accusations of varying degrees of sexual misconduct from groping to lude jokes. Among them are allegations of Burke making sexual comments, such as Susie O’Neill’s account of him asking of a flower painting in her home, “Is your c*** as big as that?”

The comment left the former Olympian “flabbergasted” and she complained. Channel Nine took no meaningful action against Burke, something O’Neill considers was an “injustice” as the 2000s incident has “stayed” with her to this day.

(Image via Getty.)

By her account, O'Neill did all she could to see that Burke face serious consequences and yet his denial was enough to quash her complaint. This got us wondering if there were any legal avenues for women such as O'Neill to go after men who make sexual comments. In other words, in the eyes of the law, what language constitutes as sexual harassment?

The Sex Discrimination Act is clear.

In Australia, offences of sexual harassment are legislated under the Sex Discrimination Act 1984 (last updated in July 2016) - specifically Part 2, Division 3.

Under section 28A, the meaning of sexual harassment is defined as a person making an "unwelcome sexual advance, an unwelcome request for sexual favours or engages in other unwelcome conduct of a sexual nature in relation to the person harassed". It also states this applies in circumstances where a "reasonable person" could anticipate that the other person may be "offended, humiliated or intimidated".

The Act clarifies that sexual harassment is unlawful when the behaviour is committed at, among other places, somewhere considered a workplace, between two "workplace participants".


Listen: On this bonus episode of Out Loud, Holly, Rachel and Jessie discuss Don Burke and ask the question - what happens next?

The Australian Human Right's Commision further defines sexual harassment as including behaviours such as making "suggestive comments or jokes" or posing "intrusive questions or statements about your private life" among a dozen others.

Armed with this information, it's clear that Burke's comments fall easily under the banner of "unwelcome conduct of a sexual nature" and are unlawful, and therefore, a complaint could be made, investigated and resolved.

However, just because sexual harassment is "unlawful" does not make it "criminal" and therefore punishable.

Unlike many of the accusations that have come against Burke and other men with high profiles that involve indecent exposure, groping, assault or rape, which can be prosecuted under criminal law, verbal sexual harassment alone cannot.

It doesn't mean the person, if found to have been sexually harassing someone, won't face any consequences for their actions. Almost every workplace will have a policy against sexual harassment and most will state it as a sackable offence. And if the person who has been harassed wants to take civil action and sue for damages, they can pursue that too.

What can you do if you've faced any kind of sexual harassment?

If you've been a victim of sexual harassment, you can make a written complaint to the Australian Human Rights Commision, although, depending on your circumstances, this may not be the first step you take.  For more information about making a complaint, visit the AHRC website.

What follows will be a process known as conciliation, where everyone involved will speak to someone impartial who can help you settle the matter.

"Conciliation is a very successful way of resolving complaints. Feedback shows that most people find our process fair, informal and easy to understand," the AHRC website states. "It also helps them to better understand the issues and come up with solutions that are appropriate to their circumstances."

The complaint might result in an apology, your job reinstated if you lost it or compensation for lost wages, or changes made to your workplace.

If there's anything we've learned from the revolution that started with the women outing Weinstein, now's the time to speak up.

Listen: Tracey Spicer is poised to expose other men in Australian media who women allege have sexually harassed them.

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