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Friday, 16 December 1983
Page: 3982


Senator MARTIN(1.27) —by leave-I move:

(7) Page 18, sub-clause 28 (3), lines 27 to 40, leave out the sub-clause, insert the following sub-clause:

''(3) A person shall, for the purposes of this section, be taken to sexually harass another person if-

(a) the first-mentioned person makes a sexual advance, or a request for sexual favours, to the other person, or engages in other conduct of a sexual nature in relation to the other person;

(b) the other person takes reasonable steps to communicate to the first- mentioned person that the advance, request or conduct is unwelcome; and

(c) (i) the first-mentioned person makes it reasonably appear to the other person that a rejection of the advance, a refusal of the request or the taking objection to the conduct would disadvantage the other person in any way in connection with the other person's employment or work or possible employment or possible work; or

(ii) as a result of the other person's rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person's employment or work or possible employment or possible work.''.

(8) Page 19, sub-clause 29 (2), lines 8 to 22, leave out the sub-clause, insert the following sub-clause:

''(2) A person shall, for the purposes of this section, be taken to sexually harass another person if-

(a) the first-mentioned person makes a sexual advance, or a request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person;

(b) the other person takes reasonable steps to communicate to the first- mentioned person that the advance, request or conduct is unwelcome; and

(c) (i) the first-mentioned person makes it reasonably appear to the other person that a rejection of the advance, a refusal of the request or the taking objection to the conduct would disadvantage the other person in any way in connection with the other person's studies or the other person's application for admission to an educational institution as a student; or

(ii) as a result of the other person's rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person's studies or the other person's application for admission to an educational institution as a student.''.

These amendments refer to the sexual harassment provisions of the Sex Discrimination Bill. I reassure Senator Walters that in moving any of my amendments I intend to take the minimum time that I think is necessary to state the Opposition's case and to avoid unnecessary elaboration. I am sure that is the spirit of all speakers today. Amendment No. (7) seeks to amend clause 28 (3) by substituting a new sub-clause (3) to provide that a person would be guilty of sexual harassment of someone else in the following circumstances:

(a) the first-mentioned person makes a sexual advance, or a request for sexual favours, to the other person, or engages in other conduct of a sexual nature in relation to the other person;

(b) the other person-

presumably the person being harassed-

takes reasonable steps to communicate to the first-mentioned person that the advance, request or conduct is unwelcome; and

(c) (i) the first-mentioned person-

that is, the alleged harassor-

makes it reasonably appear to the other person that a rejection of the advance, a refusal of the request or the taking objection to the conduct would disadvantage the other person-

the harassee-

in any way in connection with the other person's employment or work or possible employment or possible work; or

(ii) as a result of the other person's-

the harassee's-

rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person's . . .

I think the Minister Assisting the Prime Minister on the Status of Women, Senator Ryan, knows what I mean, and I am sure the Committee knows. We seek to put a provision here that it should be clear that the harassment, whatever form it takes-whether it is a request for sexual favours or whatever, but something of a sexual nature-is not welcome. I know we get into the difficult situation where some would say it could be alleged that sometimes through fright or fear, a young woman might just freeze, emotionally, and not know how to handle the situation, particularly if the person doing the harassing is someone who is older, more senior or perhaps the boss. Therefore the woman involved might appear to encourage the person making the sexual advance by, say, smiling, which is something that people do on occasion in nervous fright-it is possible-or perhaps try to ignore the problem, hoping it will go away. I know that that is one argument.

The alternative, where that distaste for the sexual advance, or the annoyance or fear that may be felt by that person in relation to the sexual advance, is not expressed in any way, could well lead to the classic defence used down through the ages: 'But I thought she liked it'. I think there is a grey area. It is probably difficult for certain men on occasions, unless they are given an indication, to realise that they are not being encouraged. It is difficult for some men, even if someone hits them on the head with a lump of wood, to be discouraged. But that is an aside; it has nothing to do really with sexual harassment. There could genuinely be a man who is attracted to someone with whom he works, someone who may be junior to him, who makes a sexual advance and believes that he has been encouraged. He does not make the sexual advance with menace or with the thought that 'I will use my position of superiority to have my evil way with this young lass whether she wants it or not'.

The difficulty of the present Bill is that it leaves this element in the mind of the person being harassed and, to a certain extent, of the person doing the harassing. I think it is necessary that the person who would make a complaint under this clause should give something that can be taken as an indication. It would not necessarily be taken as an indication, as I said a few minutes ago, by that particular individual. It may be that the girl would say: 'Keep your rotten hands to yourself'. As I said, there are some men who would take that as encouragement because of the saying that some men like to believe that, when a woman says 'No' she really means 'Yes' and who would proceed on that assumption. But if the girl did say that, or if she has done something to indicate that the advance is unwelcome, it is no defence for him to choose to misinterpret that indication.

This is probably the most aggravating clause of the Bill. That has been clear from the second reading debate and it has been clear from a lot of the nonsense during the second reading debate. A man opening a door for a woman was one example of harassment that one senator gave; and there were other such examples. Clearly, many men do not have any idea of what is harassment. That was shown in the second reading debate. This will be an area of the Bill that will cause a great deal of agitation and worry. The hope of the Opposition in moving these amendments is that we will be able to take out of the Bill something which appears to be of a one-sided nature.