Maggie is a final year law student from Perth University.1 Maggie is undertaking an unpaid legal clerkship2 at a small law office of Blabby and Co in the Perth Central Business District. Maggie's aunt used to work at Blabby and Co, and the firm has agreed to give Maggie some work experience as a favour. She reports to a senior partner of the firm, Mr Blabby. (Mr Blabby has been in legal practice for 40 years and is close to retirement.) Maggie is an accomplished singer as she had been earning an income as a singer of a cover band in Perth as a way of financing her studies. On Wednesday 12 May 2021 she attends a 'Christmas in July' dinner function run by the Blabby &Co social committee. The function is held at a nearby CBD hotel, in a function room that has been booked for the event. The function room includes a dance floor and the social committee has hired a karaoke machine. At one point in the evening, Maggie is cajoled into performing a song on the stage at the front of the function room. As she sings the song ('I will survive by Gloria Gaynor) she cannot help but notice Darren Jones (a 28-year-old solicitor who has recently been made a senior associate). Darren is at the back of the room blowing her air kisses, and making hip-thrusting moves in her direction as she sings. She feels revolted. She throws him a look of disdain and then makes sure she does not look in his direction at all for the balance of the performance. After leaving the stage Maggie decides to visit the bathroom and then depart for home. As she exits the bathroom and turns into the corridor, she sees Darren only a few metres away. There is no one else in the corridor. Darren starts to move towards her, saying 'Come here baby, let's make sweet music together and repeats his air kissing. He manages to grab her arm and pushes her up against the wall, but Maggie wrenches herself away. She rushes out of the building and clambers into a taxi waiting at a taxi rank directly outside. Whilst in the taxi she receives an email from Darren, saying 'See you tomorrow, sexy!' with two winky face emojis. Maggie is very upset. She decides she cannot attend work the next day. She manages to go to work on Friday 14 May 2021. Mr Blabby calls her into his office to hand her some work and asks her how she enjoyed the event. Maggie replies that it was not at all enjoyable and outlines Darren's behaviour toward her. Mr Blabby approaches Maggie, puts his arm around her shoulders and says to Maggie 'Your performance on stage was certainly eyecatching and I am sure all the men in the room would have liked to take you home! Anyway, Darren just had a bit to drink, there is no harm done. Least said, soonest mended, eh?' Darren passes by her work desk several times that day, giving her a broad smile and winking at her. Maggie is so upset she quits her job on Monday 17 May 2021. She struggles to focus on her final exams for that semester and has to repeat the units, extending her studies by an additional six months.

Using the legal problem-solving methods taught in this unit:

1. an introduction to the task: " whether Mr Jones' conduct is likely to constitute unlawful sexual harassment under s28A of the SDA."

2. the purpose/s of s28A (1) of the Sex Discrimination Act 1984 (Cth) (SDA) and the overall purpose/s of the SDA with reference to intrinsic aids and the extrinsic aids and caselaw provided. (hint - should include a succinct statement summarising the purpose/s of s28A

3. whether Mr Jones' conduct is likely to constitute unlawful sexual harassment under s28A of the SDA.

4. Could Mr Blabby have breached any provisions of the SDA? Cite the specific provision, summarise the type of behaviour that will be caught by each provision, and briefly relate the provision to the facts. You are not to discuss each element of those provisions or whether those have been met.

DO NOT discuss the procedure for making a formal complaint, or any potential remedies.

refrences:

National Inquiry into Sexual Harassment in Australian Workplaces AUSTRALIAN HUMAN RIGHTS COMMISSION ? 2020

Sex Discrimination Bill 1983

SDA amendment Second reading speech 2010

Sex Discrimination Act 1984

Croucher Seeking Equal dignity without discrimination 93 ALJ 571.pdf

Ewin v Vergara 2013 FCA.rtf

Hughes v Hill 2020FCAFC0126.pdf

NSW Bar v Raphael

Von Schoeler v Boral 2020 EXTRACTS

Vergara v Ewin [2014] FCAFC 100

When still When expected to know In a written answer for assessment learning the law the law well and/or have limited time 6. Apply the law to the facts Jot down any argument that come to mind See comments in step 5 above. That is, go through each element and the law governing it and and any caselaw that rings a bell (this might argue, using the facts, whether the element has been be because the facts of the problem scenario For example, in the Patsy and Darren scenario: established by the party bearing the onus of proof (which is are similar to other caselaw you have Darren, as the driver of the car and therefore usually the plaintiff, prosecution or applicant). This will be the studied). a road-user, will Patsy, the driver of the other part of the answer which will be allocated the most marks. A car and therefore also a road-user, a duty of poor attempt at applying the law to the facts, regardless of For example, under the 'breach' element of care because of the established duty of car how good your explanation of the law, will mean that your negligence you might note: category of road-user: Imbree v McNeilly answer gets no more than a Credit grade. Darren was not speeding when he went (2008) 236 CLR 567.' hrough intersection. Reach a conclusion as to whether the element can be There was evidence of other similar Of course the more contentious the element established. Usually the conclusion will not be in absolute accidents at this intersection. (because the law is uncertain or because the terms, but in terms of likelihood. For example, 'therefore, it is facts give rise to multiple arguments) the more highly likely that this element can be established by the discussion is required for steps 5 and 6. plaintiff. Sometimes, the conclusion can be in absolute terms; for example, 'The defendant entered the plaintiff's house. A house is considered as "land" for the purposes of trespass to land (cite an authority) and so the element of land is established here.' Here you need to identify both the strengths and the weaknesses in argument being made by the party bearing the onus of proof. The weakness in this party's case will often be highlighted and argued by the party who does not bear the onus of proof (usually the defendant or respondent); however, please note that these arguments are simply counter-arguments or weaknesses in the case for making out the COA. They are NOT a defence. DO NOT call them defences. A defence is a legal excuse, with specific elements, for the defendant's conduct and the defendant bears the onus of proofing the elements of a defence