Law and order

Courting progress
Australian law has made some progress on sexual harassment – but we have a long way to go

Workplace sexual harassment is now a frequent theme in Australian public discourse, due to the courage of women like Brittany Higgins and those who spoke out against former High Court Justice Dyson Heydon. Workplace sexual harassment is unlawful. Yet our (civil) legal system rarely features in these conversations. Why not?

The case of Rebecca Richardson provides insight. In 2008, Richardson was harassed by a colleague at work – “a more or less constant barrage of sexual harassment” – and sued her employer. She won, with the trial judge awarding $18,000 for her suffering. Given the immense psychological distress Richardson described in evidence, this was a paltry sum. But at the time, it was standard practice among Australian courts that damages in sexual harassment litigation should sit within the “range” of $12,000 and $20,000.

Richardson decided this was not good enough. Despite having won, she appealed. The full Federal Court, with a lead judgement written by Justice Susan Kenny, agreed. $18,000 was “manifestly inadequate”, Kenny held in 2014, instead awarding $100,000. Her Honour emphasised that “the community has generally gained a deeper appreciation of the experience of hurt and humiliation that victims of sexual harassment experience”.

Richardson v. Oracle Corporation Australia Pty Ltd was a landmark judgement, which more closely aligned the law with prevailing community standards. But more than six years later, and in light of the #MeToo movement, we wanted to find out whether the case’s impact had endured. Had Richardson actually made a difference? To answer this question, we reviewed every subsequent case to refer to Richardson. The results have now been published in the Federal Law Review.

Since the Richardson ruling in 2014, just under 50 cases have substantively cited the case. Nine of these were sexual harassment claims, including six awarding general damages (with an average award of almost $80,000). This marks a fourfold increase on the pre-Richardson range. Beyond sexual harassment, the ruling has been applied in other discrimination contexts and employment law disputes. Richardson, our research shows, has resonated widely.

It is often said that legal practice takes place in the shadow of the law. Given the limited number of sexual harassment cases decided by courts – partly because most claims settle confidentially – we supplemented this research by speaking to some of Australia’s most distinguished employment lawyers. Interviewees included Kate Eastman SC, Josh Bornstein and Michael Harmer – names synonymous with sexual harassment litigation in this country.

They told us a mixed story. Richardson, interviewees said, had led to higher damages for complainants, both in court and in private settlements. However, Richardson was no panacea. The costs of pursuing sexual harassment claims – in both financial and mental health terms – remained significant, sometimes insurmountable. “I have not met an applicant who has said I should have run my case, I shouldn’t have [settled] it,” one senior barrister told us. “Certainty and getting on with your life is much more important.”

The financial cost of bringing a sexual harassment matter is an enormous deterrent. Even if a complainant succeeds, the legal fees of protracted litigation may equal or surpass compensation received. Harassment law does not offer costs protections to complainants, meaning they risk having to pay the other party’s legal fees. One interviewee noted: “A $10,000 settlement in week one or week two is probably $9000 in the pocket of the person. A $10,000 settlement at the end of six months means a person is in deficit by 40 or 50 thousand.”

This risk ensures that the majority of sexual harassment matters settle, long before they reach the public scrutiny of the courts. This, plus the prevalence of non-disclosure agreements, which stifle a complainant’s ability to speak publicly about their experience, obscure the true extent of sexual harassment in Australia. Our research reaffirms this: across almost seven years of case law, we identified just nine decided sexual harassment cases. Yet the Australian Human Rights Commission has found that one in three Australians have been sexually harassed at work.

This disparity suggests renewed interrogation of our legal system is urgently needed. The Sex Discrimination Act 1984 was enacted almost 40 years ago to contribute to positive societal change. But the burden of enforcing sexual harassment law rests on complainants: only the individual target of sexual harassment can bring a claim. A protracted litigation process can seriously impact their health, career, reputation and family.

It is no surprise, then, that very few targets of sexual harassment come forward, even fewer make formal complaints and fewer still commence legal action. Richardson was harassed in 2008; her appeal win came in 2014. In our interview, Bornstein offered: “That’s six years. $100,000 is not worth six years.”

Eastman emphasised that while the #MeToo movement created greater awareness about sexual harassment, the underlying legal structures have not changed. This dissonance, she said, has resulted in “a very large gap between the social movement and how the law actually works”. Another interviewee added: “Those who think it’s a nirvana post-#MeToo are in for a rude shock.”

Why does this research matter? Australian law must provide accessible, worthwhile remedies to targets of sexual harassment. It is a damning indictment on our legal system that the vast majority of those who experience this horrendous conduct do not feel empowered to seek redress.

A renewed approach to assessing compensation, which more accurately reflects society’s perception of harm, is a welcome improvement. The Richardson case has pushed Australian sexual harassment law in the right direction, assisted by the #MeToo movement and greater public scrutiny. But we have a long way to go. As one of our interviewees observed, “there’s an acknowledgement that this is just not good enough anymore.”

Kieran Pender, Madeleine Castles and Tom Hvala

Kieran Pender is a writer and lawyer. He is a visiting fellow at the ANU College of Law and serves on the advisory council of the Global Institute for Women's Leadership. He previously led the International Bar Association’s work to address sexual harassment in the legal profession.

Madeleine Castles is a law student at the ANU College of Law. She previously interned at the International Bar Association Legal Policy & Research Unit.

Tom Hvala is a lawyer and researcher. He is an affiliate of the Global and Women’s Health Unit, School of Public Health and Preventive Medicine of Monash University.

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