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Harassment, discrimination and bullying

 

In general, in public life people must treat you fairly and ensure that you are not unlawfully harassed, discriminated against or bullied. In Australia there are both Commonwealth (that govern the whole country) and State/Territory laws that apply to harassment and discrimination. Generally, they overlap and prohibit the same type of behaviour, but the laws apply in slightly different ways, and there are some gaps in the protection that is offered between different States and Territories and at a Commonwealth level. It is always best to seek advice.

 

What is unlawful harassment?

Unlawful harassment is behaviour towards another person/s that offends, insults, humiliates or intimidates them and that, under the circumstances, a reasonable person should have expected would offend, insult, humiliate, or intimidate them.

Harassment can be sexual in nature or it can be behaviour that targets the person on one or more of the following grounds:

  • race
  • sex
  • sexual orientation
  • gender identity
  • intersex status
  • pregnancy
  • marital or relationship status
  • disability
  • age
  • carer’s responsibilities
  • social origin
  • political belief or lack of political belief
  • religious belief or lack of religious belief.

 

Unlawful sexual harassment

Unlawful sexual harassment is unwanted behaviour towards another person that has sexual implications, such as sexual jokes or innuendo; touching; threats; repeated invitations to secure sexual involvement; sexual assault; and/or rape. Serious actions, including criminal prosecution, can be taken against anyone trying to force sexual behaviour onto another person.

 

In what circumstances do laws against harassment apply?

The law against harassment and sexual harassment in NSW applies in five main areas of public life. The exception is discrimination and harassment because of carer’s responsibilities, which is only against the law in employment. The five main areas are: 

  • employment
  • purchasing or trying to purchase most types of goods or services
  • applying for entry or enrolling in a public educational institution, including a University (and covers interactions between students and between students and staff)
  • renting accommodation such as units, houses or flats, a hotel or motel room and commercial premises
  • attempting to enter, join or engage in activities in a registered club. A registered club is any club that sells alcohol or has gambling machines.

 

What is unlawful discrimination?

Unlawful discrimination can be direct or indirect. Unlawful direct discrimination occurs when a person is treated less favourably because of a characteristic than another person without that characteristic would be treated in the same or similar circumstances. The characteristic can be in terms of:

  • the person’s race (including colour)
  • nationality
  • descent and ethnic
  • ethno-religious or national origin
  • sex including pregnancy and breastfeeding
  • sexual orientation
  • gender identity
  • intersex status
  • pregnancy
  • marital or relationship status
  • disability
  • age
  • carer’s responsibilities
  • social origin
  • political belief or lack of political belief
  • or religious belief or lack of religious belief.

Unlawful indirect discrimination occurs when a person requires another person to comply with an unreasonable requirement or condition that the other person is unable to comply with due to their race, sex, pregnancy, marital status, etc., and with which a substantially higher proportion of persons without that characteristic can or would be able to comply. 

For example:

  • an employer unreasonably says that they need a person over 180cm tall to do a certain job, which could indirectly discriminate against women and some groups based on race (sex or race discrimination)
  • a qualifying body unreasonably excludes everyone living with a physical or mental health condition from registration on safety grounds, which could indirectly discriminate against individuals whose physical or mental health condition is controlled and would not impede them from doing the job safely (disability discrimination).

 

In what circumstances do laws against discrimination apply?

Apart from discrimination because of carer’s responsibilities, which is only against the law in employment, the law against discrimination in NSW generally applies when you:

  • apply for a job
  • are at work
  • get or try to get most types of goods or services
  • rent, or try to rent, accommodation
  • apply to get into a State educational institution
  • are studying in a State educational institution, including a University
  • try to join or enter a registered club or participate in its activities.

 

What are the relevant laws and where do I find them?

In NSW state-based legislation the grounds for complaints of unlawful harassment and discrimination are set out in the NSW Anti-Discrimination Act 1977. For more information, including access to the law, examples of what might constitute unlawful harassment or discrimination under NSW law, and information about making a complaint to the Anti-Discrimination Board of NSW (ADB):

Anti-Discrimination Board of NSW (ADB)
www.antidiscrimination.justice.nsw.gov.au
(02) 9268 5554

Grounds for complaints of unlawful harassment and discrimination under Commonwealth legislation are set out in the following Acts:

Age Discrimination Act 2004
Racial Discrimination Act 1975
Sex Discrimination Act 1984
Disability Discrimination Act 1992
Human Rights and Equal Opportunity Commission Act 1986.

 For more information, including access to the laws, examples of what might constitute unlawful harassment or discrimination under Federal law, and information about making a complaint to the Australian Human Rights Commission (AHRC)

Australian Human Rights Commission
www.humanrights.gov
(02) 9284 9600

SUPRA can also help in this area through either our Legal Service or our Student Advice and Advocacy service.

 

What are the University’s responsibilities?

The University has a legal obligation to protect you from harassment, discrimination and bullying by another student or staff member. To this end, the University also has a responsibility to provide effective procedures for preventing such behaviour and for reporting and resolving any complaints. These are set out in:

Bullying, Harassment and Discrimination Prevention Policy 2015
Bullying, Harassment and Discrimination Resolution Procedures 2015
Resolution of Complaints Policy 2015
Student Complaints Procedures 2015.

Other relevant policies are the Student Code of Conduct and Staff Code of Conduct.

All policies can be downloaded from the Policy Register.

In summary, University policies require that all staff, students, and affiliates not promote or engage in unlawful harassment or discrimination. All managers and supervisors, including academic staff in relation to their students, are responsible for intervening to prevent unlawful harassment and discrimination. Breaches of the policy including any victimization of, or detrimental action towards any person who makes a complaint under the policies, can result in disciplinary action.

 

Making a complaint against harassment or discrimination

Most complaints concerning other students at the University can be resolved under the Resolution of Complaints Policy 2015 and Student Complaints Procedures 2015.

If you are also employed by the University or are a student on placement, your complaint may be dealt with under the Bullying, Harassment and Discrimination Resolution Procedures 2015. If raising your concerns with the person responsible for the behaviour, or with a workplace manager or supervisor, has not been satisfactory or is inappropriate, you should make a complaint in a timely manner to the Case Management Group where the matter will be assessed by a specialist member of the University’s Human Resources unit. You do not need to disclose your name.

Where the subject of the complaint is a staff member or other worker, such as an external placement educator, the case coordinator will attempt a local resolution that may include convening discussions with relevant parties before deciding.

Where attempts at a local resolution are unsuccessful, or considered inappropriate, the case coordinator (in consultation with the Case Management Group) must determine if the complaint should be referred to either or both of the University’s Security Service or the police, or for other further action. The complaint may also be dismissed. Where the complaint by a student involves another student, it must be referred to the Student Affairs Unit (SAU), and follow procedures under the Student Complaints Procedures 2015. Complaints to the SAU will normally not be investigated if the complainant does not disclose their name.

SUPRA recommends you contact us for advice if you are considering making a complaint of harassment, discrimination or bullying; or if you are the subject of a complaint.

 

What complaint options do I have outside the University?

You can complain to the NSW Anti-Discrimination Board (NSW ADB) or the Australian Human Rights Commission (AHRC). You normally have to lodge the complaint within 12 months of the incident of unlawful harassment or unlawful discrimination. In the case of serious vilification, and if you are lodging such a complaint with the NSW ADB, it may be referred to the NSW Attorney General and prosecuted as a crime, so you should lodge your complaint as soon as possible. This is because prosecution must commence within six months from the date when the vilification occurred.

As you cannot have your complaint heard by both bodies, you will also need to choose which complaint route to take. The best option for you will depend on the nature of your complaint, so you should seek advice on your matter before starting the complaint process. The SUPRA legal service can provide you with advice about your options.

 

What is bullying and what can I do about it?

Bullying is repeated, unreasonable behaviour that is directed towards a person or a group of people, and may create a risk to their health and safety. Bullying includes: repeated physical or verbal abuse; yelling, screaming or offensive language; exclusion from a community; spreading of rumours or innuendo; psychological harassment; unjustified criticisms; and interfering with personal property or equipment. Single instances of sufficient severity can also constitute bullying. Any student who wishes to lodge a complaint against bullying by another student or University staff member should read the above policies and procedures and contact a Student Advice and Advocacy Officer at SUPRA for support and advice.

 

Where can I go for more help?

SUPRA can provide free, confidential, professional and independent advice in relation to making a complaint of unlawful harassment or discrimination or in regard to bullying; or for seeking advice if you are the subject of a complaint.

Disclaimer

This information is current as at June 2018 and is intended as a guide to the law as it applies to people who live in or are affected by the law as it applies in NSW. It does not constitute legal advice.

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