Sexual harassment and the law

The Equal Opportunity Act 1984 (SA) makes it unlawful for a person to sexually harass another person in certain areas of public life, including in a person's employment. 

The definition of sexual harassment provided in the Act is broad.

A person sexually harasses another where the person:

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

in circumstances where a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated. 

This is an inclusive, rather than exhaustive, list of what constitutes conduct of a sexual nature. 

It is a broad definition, and anything from a few brief words through to rape can meet this definition.

What is conduct of a sexual nature?

Whether conduct is of a sexual nature is an objective test and consideration is given to the facts and context. 

The recounting of a sexual experience to another person and a workplace hug have been found to be of a sexual nature in Australian case law. 

A victim must prove on the balance of probabilities that:

  • they were subjected to conduct which constitutes sexual harassment

and

  • that the conduct would have offended, humiliated or intimidated a 'reasonable person'.

Some sexual harassment, such as touching without permission, can also be a criminal offence and the police can prosecute the offender.

You must make a police report if you want police to consider prosecuting the offender.