CHAPTER 28

• Jurisdiction: United States

CHAPTER 28

The #MeToo Movement in Australia: Silenced by Defamation and Disbelief

Karen O'Connell¹

Introduction: "Women Are Burning with a Kind of Cold Fury"

In October 2018, a state politician, minister David Elliott, made an allegation against his political opponent, Opposition Leader Luke Foley, under parliamentary privilege. He claimed that Foley had harassed a journalist at a function at Parliament House. The incident had never been reported. The journalist, Ashleigh Raper, made a statement following the public airing of the incident, saying that Foley had put his hand down the back of her dress and into her underpants in front of a colleague at the function. She had chosen not to report the harassment because "[i]t is clear to me that a woman who is the subject of such behaviour is often the person who suffers once a complaint is made," and that she feared she would lose her job, which she "cherished."² Around the same time, businesswoman Catherine Marriott was publicly revealed to have made a confidential report against another very senior politician, Barnaby Joyce, about an incident at an official function a year earlier. Marriott said that she was motivated in part by #MeToo, but that the leaking of the case to the media and the ensuing publicity was "horrific."³

These stories have all the hallmarks of sexual harassment cases in Australia: even egregious cases mostly go unreported; women are scared to speak up for fear of losing their jobs or reputations; and when they try to maintain privacy—or even cover up the harassment—to protect themselves from the fallout, their wishes may be overridden. Both of the women in these cases, despite never making a complaint, were threatened with defamation suits by their alleged harassers. It is hardly surprising, then, that the same day that the Raper statement was released, journalist Julia Baird wrote that "women are burning with a kind of cold fury."⁴

The State of the Law in Australia: Strong on Paper, Weak in Practice

The way that law has been brought to bear on #MeToo allegations in Australia has been markedly different from the experience of countries such as the United States. While some legal cases are still before the courts, it is clear that Australia's strict defamation laws have had a chilling effect on public discussions of specific allegations of sexual harassment or assault and have arguably acted as a further deterrent to individuals reporting harassment.

The negative role that law has played in the #MeToo cases to date is especially disappointing because Australia has, on paper, strong and comprehensive sexual harassment laws. There are legislative prohibitions against sexual harassment in every state and territory jurisdiction, as well as federally. These laws are embedded in a broader antidiscrimination framework, and with no bill of rights or Constitutional guarantee of equality, Australian antidiscrimination laws are our primary means of protecting equality rights.

Sexual harassment is made unlawful at the federal level in the Sex Discrimination Act of 1984, one of four federal anti-discrimination acts.⁵ Sexual harassment has a stand-alone provision (s28A), but it is also a form of sex discrimination, and so is additionally covered by the general prohibition on sex discrimination in the same legislation. Sex-based harassment, that is, harassment that is because of a person's sex, such as demeaning nicknames or detrimental behavior that is gendered but not sexual, is also covered by sex discrimination prohibitions, but is rarely argued.

The key element of sexual harassment is that there is unwelcome conduct of a sexual nature in circumstances in which a reasonable person "would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated." This term was amended in 2011 to make it easier to prove—there only has to be a foreseeable possibility that the person targeted would be impacted by the conduct.

The federal sexual harassment law also attempts to address intersectional sexual harassment by stating that the relevant "circumstances" to be considered include factors such as the age, sexual orientation, gender identity, relationship status, religious belief, race or disability of the person harassed, as well as the relationship between the person harassed and the person who engaged in the conduct, along with "any other relevant circumstance" (s28A(1A)). This provision, however, is very rarely used.

The "sexual" element of the conduct has been defined broadly to include, for example, declarations of love, telling jokes, and flicking an elastic band at a colleague's legs (in the context of other behavior).⁶ The case law on whether an applicant has shown that the behavior is "unwelcome" is less clear. For example, the fact that a woman participated in a sexually charged workplace culture did not prevent a successful complaint in one case, while a woman responding to sexual comments in a "friendly" way undermined another.⁷ A single incident can constitute sexual harassment, and there is no test of seriousness.

Sexual harassment at the federal level is protected in specified areas of public life, such as employment, education, and the provision of goods and services. However, in a state jurisdiction—Queensland—sexual harassment is simply unlawful without any area limitations.

Much effort has been put into crafting sexual harassment laws that are broad and inclusive. However, Australian anti-discrimination laws are overwhelmingly directed at individual redress and as such are reactive: that is, they are set up to respond to individual harms that have already occurred, rather than preventing systemic and institutional sexual harassment. This necessarily means that they are limited in impact.

One area in which institutional change is required is in relation to vicarious liability, where employers would be liable for their employees' sexually harassing behavior unless they took "all reasonable steps" to prevent it occurring. "All reasonable steps" is understood to mean active, preventive measures; a lack of awareness that the harassment was occurring is not in itself a defense for employers.⁸ This means that all employers should have a sexual harassment policy, provide anti-harassment training to all...