Precedent (Australian Lawyers Alliance)
GIVING THE POWER BACK
COMPENSATION FOR SEXUAL HARASSMENT
By Diana Costaras
Content warning: This article addresses factual scenarios that may be upsetting or triggering for survivors of sexual assault, harassment and violence. If you would like to seek support, a list of services is available at the AHRC website:
As legal practitioners, in addition to being aware of the prevalence of sexual assault and harassment in our community, we must be alert to the ways in which the law can respond so that we can effectively guide our clients. This article will focus on Victorian and federal legislation and case law concerning sexual harassment.
In Victoria, damages may be available to survivors of assault and harassment under personal injury law, but we should also look to anti-discrimination legislation as an avenue to maximise compensation available to survivors. The principles addressed in this article are relevant to any scenario where discrimination causes injury at work, including cases involving racism, discrimination based on gender identity, disability, sexual orientation or any other protected characteristics.
2021 – COMING INTO THE LIGHT
In January, Grace Tame was named Australian of the Year. From age 15, Grace was groomed and raped repeatedly by her maths teacher Nicolaas Bester. After his release from prison, Mr Bester bragged about his sexual assault of Ms Tame on social media. Ms Tame fought for changes to s194K of Tasmania’s Evidence Act 2001 which prevented survivors from identifying themselves as a victim of a sexual crime even though the perpetrator was free to do so. The law was amended.
Inspired by Grace Tame, on 15 February 2021, Brittany Higgins spoke out. Ms Higgins alleged that in March 2019 she was raped by another Liberal Parliament staffer. Ms Higgins felt dismissed after she reported the assault internally within Parliament. She said, ‘I was raped inside Parliament House by a colleague. And for so long, it felt like the people around me only cared because of where it happened and what it might mean for them.’
On 26 February 2021, the ABC published details of a letter that had been sent to opposition leader Penny Wong and Greens Senator Sarah Hanson-Young which alleged that a 16-year-old girl was raped in 1988 by a man who was now a senior member of Cabinet. The letter included a statement by the alleged victim who had reported the crime to NSW Police in February last year. Four months later, the alleged victim asked the police to drop the investigation. The next day she took her own life.
On 3 March 2021, the day after NSW Police found that there was insufficient admissible evidence to investigate the historic rape, Federal Attorney-General Christian Porter identified himself as the minister at the centre of the claims, and categorically denied all of the allegations. The Prime Minister refused to undertake any further investigation of the matter.
The stories of Grace Tame, Brittany Higgins and the alleged victim of Christian Porter are horrific, but they are also far too common. An estimated 1 in 5 women and 1 in 20 men in Australia have experienced an incident of sexual assault since the age of 15. The #MeToo movement brought to light the true prevalence of sexual assault and sexual harassment around the world, with the hashtag used more than 19 million times.
WORKPLACE SEXUAL HARASSMENT
In January 2020, the Australian Human Rights Commission (AHRC) released its Respect@Work report, which detailed the pervasiveness of sexual harassment in Australian workplaces and the urgent need for change. One in three people who had been in the workforce in the previous five years said that they had experienced workplace sexual harassment, with women more likely than men to have experienced it. Sex Discrimination Commissioner Kate Jenkins reported that Australia now lags behind other countries in preventing and responding to sexual harassment. On 15 March 2021, spurred on by allegations of sexual assault in Parliament, across Australia tens of thousands of people marched against sexual abuse and harassment. The protest organisers, March 4 Justice, demanded the implementation of all 55 recommendations from the Respect@Work report, citing the significant delay in any Federal Government response to the report. The Government has since agreed to the 55 recommendations either in full, in principle, or in part.
In February 2021, a report found that sexual harassment is pervasive in South Australia’s Parliament, with 27.1 per cent of survey respondents reporting that they had experienced sexual harassment in the Parliamentary workplace. Allegations included sexually suggestive comments, indecent exposure and physical assault against members of Parliament or their staff. Some reported a fear of repercussions, due to the tendency for victims to be blamed and not believed. One respondent said, ‘[They] treated me like I was to blame for everything that had happened ... in fact, it was worse than that: they just ignored me, and many of them continue to do so today.’ Another was told that their sexual harassment had occurred because they were ‘too polite’.
In 2019, the Victorian Legal Services Board and Commissioner surveyed legal professionals who held current practising certificates. More than 2,000 people completed the survey which found that 36 per cent of legal professionals in Victoria have experienced sexual harassment while working in the Victorian legal sector – 61 per cent of women and 12 per cent of men.
Last year, six former associates of Dyson Heydon came forward alleging that the former High Court Justice had sexually harassed them. While Heydon categorically denied the allegations, the High Court’s independent inquiry found that the harassment had occurred. Heydon sat on the High Court for 10 years and was one of the most powerful leaders in our industry. After abusing that power, he now faces a civil action by three of his former associates who have since left the law.
These issues go to the heart of our treatment of women, men and children in society. These stories and statistics should encourage us to question Australian culture, political culture, our leadership and society more broadly.
What is sexual harassment?
Sexual harassment is unwelcome conduct of a sexual nature that a reasonable person would anticipate, having regard to all the circumstances, would offend, humiliate or intimidate.
Sexual harassment occurs on a spectrum of sexual violence, with sexual assault and rape at the most serious end. Examples of sexual harassment include:
• unwelcome touching, hugging or kissing;
• sexually suggestive behaviour, such as leering or staring;
• inappropriate physical contact, brushing up against someone, touching, fondling or hugging;
• insults or taunts of a sexual nature, requests for sex or sexual acts; and/or
• behaviour which would also be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communication.
Sexual harassment is not an interaction, flirtation or friendship that is mutual, consensual or reciprocated.
Power disparity and the abuse of power are underlying features of sexual harassment. Studies have found that power enables people to do as they please, without taking other people’s perspectives into consideration. Academic Catharine MacKinnon describes sexual harassment as:
‘[...] less an ordinary act of sexual desire directed towards the wrong person than an expression of dominance laced with impersonal contempt, the habit of getting what one wants, and the perception (usually accurate) that the situation can be safely exploited in this way – all expressed sexually. It is dominance eroticised.’
Breaking down cultural and structural barriers that reinforce gender inequality are central tenets to defeating the scourge of sexual violence in our country.
Where the crime is reported to police
In Victoria, the following avenues for compensation are open to a survivor of sexual assault or sexual harassment where the crime is reported to police.
Section 85B Sentencing Act 1991 (Vic) compensation
Where a person is found guilty of an offence, the victim of the crime may seek compensation from the perpetrator for injuries that arise as a direct result of the offence. The court is required to take into account the financial circumstances of the perpetrator. Compensation may be ordered for pain and suffering, expenses for reasonable counselling services, and medical expenses. The legislation does not provide a cap and courts have made significant awards of damages. For example, in DPP v Farquharson, the trial judge ordered the perpetrator to pay $225,000 even though his assets were only $66,000 in cash and he was serving a life sentence.
The Victims of Crime Assistance Tribunal (VOCAT) is a Victorian government-funded scheme providing financial assistance to victims of violent crime. This allows a victim to have recourse to financial assistance where compensation for the injury cannot be obtained from the offender or other sources. VOCAT will consider any assistance or payment that the applicant has received from other sources, such as WorkCover, and it must be satisfied on the balance of probabilities that the violent crime occurred. Medical expenses, safety-related expenses, loss of earnings and funeral costs may be claimed. The average amount of financial assistance to a victim is around $7,700; the maximum award to a primary victim is $60,000, with a loss of earnings maximum award of $20,000.
An intentional torts claim may be brought against the offender. Where the claim relates to an intentional act which is sexual assault or other sexual misconduct, the plaintiff does not need to comply with the significant injury provisions of the Wrongs Act 1958 (Vic) and can seek general damages without a significant injury certificate. A claim of this sort relies on the perpetrator having funds to pay compensation.
The capacity of the perpetrator to pay compensation can significantly limit the capacity for the survivor to access damages. It is therefore beneficial for a plaintiff to join an employer or institution to a civil proceeding where possible to avoid a hollow judgment.
POTENTIAL CLAIMS AGAINST EMPLOYERS
Where sexual assault or sexual harassment takes place in the workplace, there are a number of potential avenues available to the Victorian employee against their employer, including:
• where there is a compensable injury, through workers’ compensation laws (statutory and common law);
• an action for sexual harassment under anti-discrimination legislation including the Sex Discrimination Act 1984 (Cth) (SD Act) or Equal Opportunity Act 2010 (Vic) (EO Act); and
• a claim may be made under the Fair Work Act 2009 (Cth) through the general protections provisions, breach of an enterprise agreement, the unfair dismissal regime or for bullying.
Further, where there has been a breach of a work health and safety duty, this may be investigated and prosecuted by WorkSafe. This can result in criminal sanctions for a corporation.
For the purposes of this article, I will address and compare the avenues of workers’ compensation laws and anti-discrimination legislation.
To bring a common law action, the plaintiff needs to prove they have a serious injury. This can be a significant hurdle in cases of psychiatric injury.
A plaintiff also needs to prove that the employer was either:
• vicariously liable for the harasser’s actions; or
• negligent in failing to prevent the harassment; or
• negligent in managing a complaint of sexual harassment.
An employer may be vicariously liable for the intentional wrongdoing of employees and therefore may be required to compensate the person injured by a criminal act. The High Court has imposed vicarious liability where employers have created certain kinds of risks by placing employees in ‘special positions’ of power, trust, control with the ability to achieve intimacy with the victim. This will depend on the facts of each case and in particular on the position assigned to the employee.
It has long been recognised that the employment relationship places on employers a duty to protect employees from the risk of physical and psychiatric harm.
When enquiring whether an employer failed to prevent the harassment from occurring, questions to ask include:
• Did the employer demonstrate that they did not condone sexual harassment in the workplace?
• Did the employer create a supportive workplace culture that calls out sexual harassment by taking prompt action in response to any complaint of sexual harassment from an employee?
• Was training in the workplace adequate, properly documented and properly applied?
If an employer is found to have breached their duty in this respect, the damages awarded would relate to the injury that the plaintiff suffered as a result of the harassment itself.
When enquiring whether an employer failed to properly manage a complaint, questions to ask include:
• Did the employer fail to take the complaint seriously?
• Was the complainant victimised or mistreated?
• Was the investigation promptly and properly undertaken? Was it procedurally fair?
• Did the employer fail to take appropriate management action where the complaint was substantiated, resulting in further harassment?
• Was the complainant required to continue to work with the alleged harasser?
The damages awarded would relate only to any injury suffered as a result of the employer’s failure to manage the complaint and would need to be disentangled from the damage caused by the harassment itself (except, for example, where the harassment continued after the investigation, causing further damage).
Courts are treating sexual harassment claims seriously, with significant awards of damages. This was illustrated in the case of Matthews v Winslow Constructors (Vic) Pty Ltd, in which T Forrest J awarded the plaintiff over $1.3 million.
In that case, the plaintiff was a labourer who was subjected to severe abuse, bullying and sexual harassment by other employees over a two-year period. She was shown pornographic material and asked if she would engage in similar acts, called ‘spastic’ and ‘bimbo’ and other offensive names, questioned about her sex life, and verbally threatened with sexual violence and rape. The plaintiff was reluctant to complain to her foreman because he participated in the offending conduct. The plaintiff had to stop work and was never able to return.
The plaintiff was diagnosed with bipolar disorder, anxiety and chronic post-traumatic stress disorder.
The defendant relied on surveillance video footage of the plaintiff smiling and engaging in everyday activities to show that the plaintiff's psychiatric condition was not serious. The defendant argued that the footage showed a discrepancy between the plaintiff's presentation to doctors and her presentation in everyday life.
Justice T Forrest considered the plaintiff to be an honest and largely reliable witness and did not consider the defendant’s evidence to have any material impact on the plaintiff's reliability, nor upon the nature and extent of her psychiatric illness. His Honour said that caution must be exercised in evaluating covertly recorded surveillance footage, which may only show fragments of a plaintiff's life, particularly when assessing psychiatric injuries. The plaintiff was 42 years old at the time of judgment, resulting in a significant award for past and future economic loss and an award of $380,000 in general damages.
Statutory protections enshrined in the EO Act and SD Act impose a duty on employers to take reasonable and proportionate measures to eliminate discrimination, sexual harassment or victimisation as far as possible.
Under the Acts, employers can be found vicariously liable for the actions of their employees where the harassment is ‘in connection’ with employment. This suggests a broader application of the test for vicarious liability than in personal injury cases, which require that the harassment takes place ‘in the course or scope of the employee’s employment’.
The plaintiff is not required to prove that they have a serious injury to claim general damages under anti-discrimination legislation. This is significant in cases where the plaintiff may not have an injury that satisfies the serious injury threshold.
Until recently, damages for sexual harassment were extremely low, with awards of general damages ranging between $12,000 and $20,000. However, the Federal Court decision of Richardson v Oracle Corp (Australia) Pty Ltd significantly changed that.
In that case, Ms Richardson and Mr Tucker were employed as sales representatives of the respondent and worked closely together preparing tender proposals. Ms Richardson alleged that Mr Tucker made repeated and numerous comments, slurs and sexual advances over a number of months, some of which occurred in front of clients and colleagues. The conduct included comments such as: ‘We should go away for a dirty weekend sometime’; and ‘I love your legs in that skirt, I’m going to be thinking about them wrapped around me all day long.’ Ms Richardson would reply with comments such as, ‘My legs are none of your business’ or ‘You’re disgusting. Go away and leave me alone.’
Ms Richardson complained to her employer and the respondent conducted an investigation. Throughout the investigation, Ms Richardson was required to continue working with Mr Tucker. Mr Tucker was ultimately issued with a first and final warning, apologised to Ms Richardson and was permitted to keep his position. Ms Richardson resigned and took a position with another company for a lower salary.
As a result of Mr Tucker’s conduct, Ms Richardson was diagnosed with chronic adjustment disorder, anxiety and depression, and she experienced problems in her sexual relationship with her partner. The psychological damage to Ms Richardson, while not insignificant, did not prevent her from working. By the time of the trial, she was working full-time, and the symptoms of her condition had largely resolved.
At first instance, the Court found that Ms Richardson had been sexually harassed by Mr Tucker and that the employer was vicariously liable under the SD Act. The employer was ordered to pay $18,000 in damages for pain and suffering. However, the claim for economic loss, being the difference in salary between Ms Richardson’s previous role and current role, was rejected.
On appeal, the Full Court held:
• Ms Richardson should have been compensated for the damage that the harassment had caused in her sexual relationship with her then partner.
• Although Ms Richardson was not ‘forced’ to resign, there was a sufficient link between Mr Tucker’s conduct, the respondent’s handling of the matter and Ms Richardson leaving her employment to justify an order for economic loss.
• In awarding damages, the Court should look at compensation awarded in personal injury claims in which significant emphasis is placed on the pain and suffering and loss of enjoyment of life suffered by the victim. The award of $18,000 was manifestly inadequate having regard to prevailing community standards and the impact on Ms Richardson. In light of the psychological impact and effect on her relationship, the Full Court awarded $100,000 in damages for pain and suffering and $30,000 for economic loss.
For an applicant with a more debilitating injury, the award of damages has the potential to be higher, keeping in mind that Ms Richardson’s health had improved at the time of the trial and she had obtained another job.
Key factors to consider in relation to anti-discrimination cases include:
• Where proceedings are commenced under the EO Act, they will be heard in VCAT.
• Where proceedings are commenced under the SD Act, they will be heard in the Federal Court or the Federal Circuit Court.
• No serious injury is required to claim general damages. The condition need not be permanent and ongoing.
• Claims are to be brought within 12 months of the alleged harassment under the EO Act and within six months under the SD Act.
• Economic loss, non-economic loss and aggravated damages may be claimed.
• Under Victorian legislation, costs do not follow the event whereas under the Commonwealth legislation, costs can follow the event.
• Generally, awards of damages are lower in anti-discrimination claims as compared to personal injury claims.
As there is a short time frame within which to bring a claim under anti-discrimination legislation, it is worth considering early whether to bring a discrimination claim. Key considerations include whether your client is likely to reach the serious injury threshold and whether vicarious liability might be easier to prove without the more stringent test that applies in personal injury cases.
Personal injury lawyers in Victoria often look straight to workers’ compensation legislation for compensation for their clients. In cases of sexual harassment, and any kind of discrimination at work for that matter, claims under anti-discrimination legislation should also be considered. Bringing a claim of this nature does not prevent the client from ultimately making a serious injury application. An award of general damages in one jurisdiction, however, will be considered in the other.
In light of the fact that general damages are often awarded in higher amounts in the personal injury jurisdiction, that might be the first port of call. But where it is unclear whether your client has a serious injury, an anti-discrimination claim may prove to be the best course as the serious injury threshold does not need to be reached for an award of general damages.
This approach applies to any client who has suffered injury because of discrimination at work related to their race, age, disability, sexual orientation, gender identity or other protected attributes. This scenario may arise, for example, in stress or bullying claims where the bullying involves elements of racism. Claims under anti-discrimination legislation therefore have the capacity to significantly increase the damages available to an injured worker.
Diana Costaras is a barrister on Foley’s List at the Victorian Bar. Her practice is in personal injury law and employment law, and she is passionate about human rights. EMAIL firstname.lastname@example.org.
 In Victoria, the protected characteristics in the Equal Opportunity Act 2010 include, among others: age, breastfeeding, gender identity, disability, employment activity, status as a parent or carer, physical features, pregnancy, race, sex and sexual orientation.
 M Rae, ‘Australian of the Year Grace Tame lauds Brittany Higgins after speaking out about alleged Parliament House rape’, 7 News, 17 February 2021, <https://7news.com.au/politics/grace-tame-lauds-brittany-higgins-courage-c-2180239>.
 Four Corners, ‘Don’t Ask, Don’t Tell’, ABC, 22 March 2021, <https://www.abc.net.au/4corners/dont-ask,-dont-tell/13268122>.
 L Milligan, ‘Scott Morrison, senators and AFP told of historical rape allegation against Cabinet Minister’, ABC Four Corners, 26 February 2021, <https://www.abc.net.au/news/2021-02-26/pm-senators-afp-told-historical-rape-allegation-cabinet-minister/13197248>.
 Australian Bureau of Statistics (ABS), Personal Safety Survey 2005 (Survey, 21 August 2006) <https://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4906.0Main+Features12005%20(Reissue)?OpenDocument>.
 E Brockes, ‘#MeToo founder Tarana Burke: “You have to use your privilege to serve other people”’, The Guardian, 15 January 2018, <https://www.theguardian.com/world/2018/jan/15/me-too-founder-tarana-burke-women-sexual-assault>.
 AHRC, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 2020) 18, <https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020>.
 AHRC, Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces (Report, 2018) 26, <https://humanrights.gov.au/our-work/sex-discrimination/publications/everyones-business-fourth-national-survey-sexual>.
 Ibid, Commissioner’s foreword.
 E Golledge, D Anagnos, M Causbrook and S Bowes, ‘The government’s “roadmap” for dealing with sexual harassment falls short. What we need is radical change’, The Conversation, 8 April 2021, <https://theconversation.com/the-governments-roadmap-for-dealing-with-sexual-harassment-falls-short-what-we-need-is-radical-change-158431>.
 SA Equal Opportunity Commission, Review of Harassment in the South Australian Parliament Workplace (Report, February 2021) <https://eoc.sa.gov.au/review-harassment-south-australia-parliament-workplace>.
 Ibid, 67.
 Ibid, 63.
 Ibid, 66.
 Victorian Legal Services Board and Commissioner (VLSBC), Sexual Harassment in the Victorian Legal Sector: Study of Legal Professionals and Legal Entities Report of Findings (Report, 2019) <https://lsbc.vic.gov.au/lawyers/practising-law/sexual-harassment/sexual-harassment-report>.
 K McClymont and J Maley, ‘High Court inquiry finds former justice Dyson Heydon sexually harassed associates’, The Sydney Morning Herald, 22 June 2020, <https://www.smh.com.au/national/high-court-inquiry-finds-former-justice-dyson-heydon-sexually-harassed-associates-20200622-p5550w.html>.
 E Byrne, ‘Three women to sue former High Court judge Dyson Heydon over sexual harassment allegations’, ABC, 23 June 2020, <https://www.abc.net.au/news/2020-06-23/dyson-heydon-sexual-harassment-complainants-seek-compensation/12383978>.
 Equal Opportunity Act 2010 (Vic), s92; Sex Discrimination Act 1984 (Cth), s28A.
 VLSBC, above note 17, 44.
 See for a list of activities that constitute sexual harassment: AHRC, Effectively Preventing and Responding to Sexual Harassment: A Code of Practice for Employers (Code of practice, 2008) <https://humanrights.gov.au/sites/default/files/content/sexualharassment/employers_code/COP2008.pdf>.
 Ibid, 11.
 AHRC, above note 23, ch 3.
 VLSBC, above note 17, 32.
 C Anderson and JL Berdahl, ‘The experience of power: Examining the effects of power on approach and inhibition tendencies’, Journal of Personality and Social Psychology, Vol. 83, No. 6, 2002, 1362–77; referred to in VLSBC, above note 17, 32.
 C MacKinnon, Sexual Harassment of Working Women, Yale University Press, New Haven, 1979, 162. Power and dominance are also an integral aspect of the test for vicarious liability in the High Court case of Prince Alfred College v ADC  HCA 37; (2016) 90 ALJR 1085 (Prince Alfred).
 C Batton and EM Wright, ‘Patriarchy and the structure of employment in criminal justice: Differences in the experiences of men and women working in the legal profession, corrections, and law enforcement’, Feminist Criminology, Vol. 14, No. 3, 2019, 287–306; referred to in VLSBC, above note 17, 32.
 Sentencing Act 1991 (Vic), s85H.
 As ‘grief, distress and trauma’ are included in the definition of injury under the Sentencing Act, the scope of injury that may be compensated under the Sentencing Act is broader than injury compensated at common law: DPP v Farquharson  VSC 186 (Farquharson) (Cummins J), . The principles applying to these applications are summarised by T Forrest J in Moresco v Budimir  VSC 51 and Weinberg JA in Brooks v Meade  VSC 172.
 Farquharson, ibid.
 Victims of Crime Assistance Act 1996 (Vic).
 Ibid, s1.
 Ibid, s25.
 VOCAT, Applying for financial assistance from VOCAT, <https://www.victimsofcrime.vic.gov.au/going-to-court/applying-for-financial-assistance-from-vocat>.
 Wrongs Act 1958 (Vic), s28LC(2). The plaintiff must have a 10 per cent or more WPI in the case of psychiatric injuries or more than a 5 per cent WPI for physical injuries to obtain a significant injury certificate.
 Fair Work Act 2009 (Cth), s351.
 Ibid, s50.
 Ibid, s385.
 Ibid, s789FD.
 Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss326–7; Accident Compensation Act 1985 (Vic), s134AB.
 Prince Alfred, above note 28.
 Ibid, 159–60 .
 Ibid, 161  (leading judgment) and 171  (concurring judgment).
  VSC 728.
 Ibid, .
 Sex Discrimination Act 1984 (Cth), s106.
 Prince Alfred, above note 28.
  FCAFC 82; (2014) 223 FCR 334.
 Ibid, .
 Ibid,  and .
 Victorian Civil and Administrative Tribunal Act 1998 (Vic), s109.
 Federal Court of Australia Act 1976 (Cth), s43; Federal Circuit Court of Australia Act 1999 (Cth), s79.
 Equal Opportunity Act 2010 (Vic), s6; Sex Discrimination Act 1984 (Cth); Age Discrimination Act 2004 (Cth); Racial Discrimination Act 1975 (Cth); Disability Discrimination Act 1992 (Cth).