Insurance & Risk Management

 

Harassment

Harassment consists of offensive, abusive, belittling or threatening behaviour directed at a person or persons because of a particular characteristic of that person or persons.

The behaviour must be unwelcome and the sort of behaviour that a reasonable person would recognise as unwelcome.

This working definition refers not only to harassment based on a particular characteristic such as sex, disability or race, but also to harassment due to difference in the relative power of the harasser and the person harassed.

Types of harassment

Different forms of harassment include:

Sexual harassment

The law recognises and prohibits sexual harassment. Sexual harassment is defined in the Sex Discrimination Act 1984 (Cwlth), section 28A as:

a person sexually harasses another person (the person harassed ) if:

  • the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
  • engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

Conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Each of the states and territories also have legislation prohibiting sexual harassment, all very similar to this federal one, although the precise definition of sexual harassment varies from state to state and from the definition in the federal legislation.

Disability harassment

The Disability Discrimination Act 1992 (Cwlth), s35, makes harassment in relation to a disability unlawful. Section 36 of the Act prohibits harassment of a relative or associate of a person with a disability. While the Act does not define harassment in relation to people with a disability, it is generally understood to consist of offensive, abusive, threatening or exclusive behaviour.

Disability is defined broadly in the Act to include:

  • total or partial loss of the person s bodily or mental functions
  • total or partial loss of a part of the body
  • the presence in the body of organisms capable of causing disease or illness
  • the malfunction, malformation or disfigurement of a part of the person s body
  • a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction
  • a disorder, illness or disease that affects a person s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

It covers disability that presently exists, previously existed but no longer exists, may exist in the future, or is imputed to a person even if the person does not have a disability.

Racial harassment

The Racial Discrimination Act 1975 (Cwlth) does not deal directly with racial harassment. However, instances of harassment on the basis of race may constitute racial discrimination, which is specifically prohibited by the following provisions:

Section 9(1) states that it is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin of a person which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. [Racial harassment, such as racist comments, would constitute discrimination under this section.]

Section 15(1) makes it unlawful for an employer to refuse to offer or afford a person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description by reason of the race, colour or national or ethnic origin of that person, or of any relative or associate of that person.

Sections 16 states that it is unlawful for a person to publish or display, or cause or permit to be published or displayed, an advertisement or notice that indicates, or could reasonably be understood as indicating, an intention to do an act that is unlawful by reason of a provision of the Act.

Section 17 states that it is unlawful for a person to incite the doing of an act that is unlawful by reason of a provision of the Act, or to assist or promote, whether by financial assistance or otherwise, the doing of such an act.

 

Avoiding harassment

A key to avoiding harassment is to have an anti-harassment policy. Having and enforcing an anti-harassment policy is good risk management, and helps to establish and maintain a good reputation in the community. The Queensland Cricket policy on harrassment is contained within the general principals of the spirit of cricket and is in line with the published anti-harrassment policy of Cricket Australia. Click HERE

An anti-harassment policy:

  • deters harassment
  • ensures that complaints can be dealt with quickly, responsibly and effectively
  • provides a legal defence against vicarious liability
  • helps maintain a safe and healthy sport environment.

Providing a safe environment

Suggestions for providing a safe environment at your club include:

  • Ensure stereotypical images and language have been removed from resources, advertising and promotional material, and that inclusive language has been used.
  • Ensure people from a range of backgrounds and ages are included in promotional material wherever possible.
  • Take measures to improve the safety and accessibility of sport and recreation environments.
  • Produce guidelines that address concerns about the sexuality of members of sport and recreation organisations in ways that are consistent with non-discrimination policies.
  • Ensure that all members of the sport and recreation organisation, regardless of sexual orientation, feel welcome to bring partners to functions when invited to do so.
  • Ensure that sexual orientation is not a factor in determining eligibility for positions.
  • Conduct seminars or workshops on issues concerning awareness of sex-based prejudice and homophobia, disability awareness, multicultural awareness, discrimination law, pregnancy in sport, and other subjects.

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