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Sexual Harassment in Australia’s Highest Court

The Chief Justice of the High Court of Australia, the Honourable Susan Kiefel AC recently issued a statement in relation to the media reports in respect of a former High Court Judge, Dyson Heydon AC QC.

This statement confirmed that following allegations of sexual harassment against the former justice, an investigation was conducted. The investigator found that six former High Court staff members, who were Justice Heydon’s Associates, were sexually harassed by the former justice.

The High Court statement advised that the High Court is ashamed that this could have happened and issued an apology to the six complainants.

There is a legal definition of sexual harassment. Sexual harassment is an unwelcome sexual advance, unwelcome requests for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated, and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.

A person who sexually harasses is primarily responsible for the sexual harassment under the Sex Discrimination Act. However, in many cases, employers can be held responsible under the Sex Discrimination Act for acts of sexual harassment done by their employees or agents.

Employers may limit their liability if they can show that they took all reasonable steps to prevent the sexual harassment occurring. Reasonable steps may include policies and procedures designed to create a harassment free environment. It could also include procedures to deal with allegations of discrimination made by employees or customers. To be effective, policies must be well implemented, through the provision of ongoing training, commitment and reinforcement.

The independent investigation into the High Court matter made six recommendations in which the Chief Justice has advised that the High Court is acting upon including:-

  1. The Court developing a supplementary HR policy relevant to the particular employment circumstances of the personal staff of judges including Associates.
  2. The Court reviewing the induction it provides to Associates.
  3. The Court identifying an appropriate person to form a closer working relationship with Associates to regularly check in and provide support where required.
  4. The Court clarifying that the confidentiality requirements for Associates relate only to the work of the Court.
  5. The Court making clear to Associates that their duties do not extend to an obligation to attend social functions.
  6. The Court to consider canvassing current Associates to find out more about their experiences while working at the Court.
Liability limited by a scheme approved under Professional Standards Legislation

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