Our submission on defamation law’s chilling effect on victims of sexual harassment

Our submission on defamation law’s chilling effect on victims of sexual harassment

Monday, 21 June 2021

We’ve contributed to a review of Model Defamation Provisions. While the responsibility of defamation laws falls to individual states and territories, the review aims to develop a uniform, national response to defamation laws.

The second stage of the review is specifically considering defamation law’s chilling effect on the reporting of alleged criminal conduct to police and statutory investigative bodies and on the reporting of unlawful conduct to disciplinary bodies and employers.

Our Equality Law Program (ELP) is in a unique position to respond to this review given our role working with victims of sexual harassment and discrimination. ‘Among numerous challenges and barriers these clients face, some are hesitant to report sexual harassment because of the fear of being sued for defamation,’ said Melanie Schleiger, Program Manager Equality Law.

‘The silencing effect caused by the actual or perceived threat of a defamation action, results in the underreporting of sexual harassment and threatens the safety of women at work and in the community’, she said.

The ELP assisted Lydia (not her real name), who decided not to pursue her case further for fear of retaliation.

‘I felt that the threat of defamation, on top of everything else, was enough to scare me out of proceeding with a complaint’ said Lydia.

Our organisation hears stories from clients about employers and alleged perpetrators actively using the threat of defamation against them when they have raised concerns about sexual harassment.

Christine (not her real name) was a junior employee who was sexually harassed by the owner of the company she worked for. She told us she feared losing her job as she needed to support her family and felt vulnerable and helpless because of her position. When she made a complaint about sexual harassment, she was sent a letter warning her about defamation. ‘I felt scared to make any further reports and scared to speak publicly in fear of being sued for defamation’, said Christine.

We called on the review to consult directly with Aboriginal Community Controlled Organisations to adequately consider the impact of defamation laws on the reporting of sexual assault and discrimination by First Nations people. ‘We know that First Nations people experience sexual harassment at higher rates and face additional and compounding barriers to reporting sexual harassment and discrimination, and therefore their contribution is crucial to improve the safety and wellbeing of all in the community’, said Melanie.

Our recommendations

We called for the review to extend protections in defamation law to ensure the law doesn’t silence victims, including sexual harassment or discrimination complaints made to:

  • employers, or to investigators engaged by employers
  • professional disciplinary bodies
  • statutory bodies including the Victorian Equal Opportunity and Human Rights Commission, the Australian Human Rights Commission and the Fair Work Commission.

We also urged that the recommendations from the Review of Sexual Harassment in Victorian Courts be implemented to ensure that the balance is met between the protection of the interests of both parties to a sexual harassment complaint, including that investigations:

  • should afford procedural fairness
  • must be prompt and timely, although not at the expense of objectivity, neutrality, fairness, or employee safety
  • are completed by well-trained, objective and neutral investigators
  • offer reasonable support to all employees involved, and
  • apply sufficient privacy and confidentiality obligations to all parties to the investigation.

More information

Our Equality Law program worked with stakeholders across diverse sectorsto make a joint submission to the national inquiry into sexual harassment. Read about the Power to Prevent coalition.

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