Quantum awards in sexual harassment claims have historically shown substantial disparity from comparable fields, suggesting that the accepted range may be manifestly inadequate as compensation judged by reference to prevailing community standards.

The mischief that s 28B of the Sex Discrimination Act is directed to addressing is the elimination of sexual harassment from the work-based relationships and workplace environment of persons who work together for or in a common enterprise or common workforce, not simply harassment which merely occurs at a workplace.

For conduct to constitute 'unwelcome' within the meaning of s 28A of the Sex Discrimination Act, it must be conduct that is disagreeable to the person to whom it was directed, not solicited or invited, and regarded as undesirable or offensive by that person.

Sexual harassment is defined by s28A of the SDA as conduct where a person makes an unwelcome sexual advance, requests sexual favours, or engages in other unwelcome conduct of a sexual nature in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. There are three essential elements: (1) conduct of the specified kind; (2) that it was unwelcome; and (3) that the unwelcome conduct occurred in circumstances where a reasonable person would have anticipated such possibility.

'Unwelcome' simply means conduct that is disagreeable, not solicited or invited, and regarded as undesirable or offensive by the person to whom it was directed. It is a subjective question depending on the attitude of the complainant at the time the conduct took place.

The intention of the alleged harasser is entirely irrelevant to the determination of sexual harassment. If the subjective intention of the perpetrator were determinative, the greater the subjective tolerance of the alleged harasser for sexually inappropriate conduct, the more difficult sexual harassment would be to prove.

Conduct of a sexual nature may be explicit or implicit. Conduct which, when considered in isolation, appears to have no sexual connotation may still amount to conduct of a sexual nature when assessed in its context. Context is everything.

Repeated unsolicited gifts, which in fact are unwelcome, may constitute conduct of a sexual nature even if the gifts are not patently sexual in nature, as their character may be determined from all the circumstances including the nature of the gift and the occasion.

The sexualisation of women in the workplace often is not explicit. Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome.

The failure to make a contemporaneous complaint or to inform the alleged harasser at the time that the conduct is unwelcome does not (at least without more) signify the converse – that the conduct was welcomed.

Section 28B is a remedial provision in legislation intended to protect human rights and should therefore be broadly construed. Temporal considerations, such as whether the conduct occurred during working hours or while the people in question were working, are not mentioned and the legislation was not intended to be limited by such considerations.

For the purposes of determining whether the objective criterion in s28A is satisfied, the reasonable person is assumed to have some knowledge of the personal qualities of the person harassed. The extent of such knowledge is a function of the 'circumstances' required to be taken into account, including the nature of the relationship between the harasser and harassed.