In consultations and submissions, the
Commission heard that Australia’s
defamation laws discourage sexual
harassment victims from making a
complaint. Further, the Commission
heard about cases where the privacy
and confidentiality of alleged victims of
sexual harassment was breached, with no
legal recourse. This included cases where
private complaints had been made public
by the media or others, sometimes even
prior to the victim making any formal
complaint.
In November 2019, the Council of
Attorneys-General Review of the Model
Defamation Laws (CAG Review) released
the draft Model Defamation Amendment
Provisions 2020 (Draft Defamation
Amendments). The Commission
encourages the CAG Review to consider
the operation of the Model Laws, as
proposed to be amended by the Draft
Defamation Amendments, as they relate
to workplace sexual harassment matters.
The Commission also heard concerns
about the lack of protection for alleged
victims of sexual harassment where they
are witnesses in defamation or other civil
proceedings, and their sexual harassment
allegations are raised in circumstances
where they have not made a formal
complaint or given permission for this to
be made public.60
The Commission recommends that
consideration be given to introducing
protections for witnesses in this
situation. Such measures could include
a standard direction or presumption in
favour of suppression of witness details
in defamation proceedings, where the
defamatory material includes allegations
of sexual harassment.61 Drawing upon
developments in criminal law matters
aimed at minimising the re-traumatisation
of victims, consideration should also
be given to providing witnesses with a
broader range of additional safeguards.
Other legal and regulatory responses
While the Inquiry has focused on antidiscrimination, employment and WHS
law, to provide a broader picture of
the complex and intersecting legal and
regulatory issues relating to workplace
sexual harassment, the Commission has
considered other general civil and criminal
laws and regulatory responses that may
also be relevant.
The Commission was also told about
police and judicial responses in workplace
sexual harassment matters which
lacked sensitivity and understanding.
The Commission heard the devastating
accounts of victims who had been retraumatised through their interaction with
the legal system.
Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces • 2020 • 33