Sisters In Law: Teen student quizzed about her bra in class

You expect to be asked some tough questions when you show up at TAFE for a full day of class, but “are you wearing a bra?” isn’t one of them.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to harassment and racism in the classroom.

QUESTION: I am a TAFE student and there is a mature-aged student in our class who is making me dread going to class. He is an older male who has the most offensive views about everything. He makes really racist comments to the Asian and Indian students in the class, and is incredibly sexist to the women, especially the young girl who is only 17 years old, constantly commenting on her breasts and even asking her if she is wearing a bra. Last week he said he’d love to “teach her a thing or two” if he were a few years younger. It’s disgusting. Our teacher is young herself and seems completely unequipped to deal with this problem. I feel like his behaviour is completely unacceptable but he is also very physically intimidating so I don’t feel safe telling him to shut it. What can I do to make him stop? What are my legal rights when it comes to discrimination and harassment at school? — Karen, NSW

ANSWER: Sexual harassment and racial hatred continues to be in the spotlight with increased awareness across the community about what is acceptable behaviour.

Unfortunately, too many people are still ignorant to the fact their behaviours and comments are offensive and unacceptable. Similarly, some people who are on the receiving end of these remarks may be offended but not realise it is unlawful, or are worried about retaliatory behaviour or repercussions on them if it is reported.

We applaud you for wanting to speak up and hopefully by voicing your concerns, it will encourage the others who have been at the receiving end of this man’s comments to speak out too.

FORMAL AVENUES OF COMPLAINT

The benefit of increased awareness around sexual harassment and racism is that most organisations have created clear guidelines that outline behavioural standards, complaints processes and subsequent disciplinary action.

Educational institutions, such as TAFE, colleges, universities and schools, are no exception.

For example in your case, TAFE NSW affords students the right to ‘be treated fairly and with respect’ including by other students, and ‘learn in an environment free of discrimination and harassment’.

Among other things, students are not to ‘engage in behaviour which may offend, embarrass, threaten or harm other students, staff or the general public’.

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Classrooms should be free from harassment and racism. Picture: Element5 via Unsplash

The comments made by this student no doubt fit into this category and offend many students.

TAFE NSW, like most educational institutions extend these standards to behaviours beyond the ‘schoolyard’ such as social media platforms and texting.

Educational institutions have formal complaints processes that are accessible to all who feel they have been wronged.

An educational institution’s complaints process is usually available online or will be provided to students on enrolment.

This should outline the investigation process and potential outcomes, which usually includes suspension, expulsion or other disciplinary action (eg reprimand, withholding completion certificates or fines).

Misconduct in an educational institution isn’t limited to academic misconduct, it can also cover behavioural misconduct

Before lodging a complaint we’d firstly recommend you have a discussion with the students impacted and let them know your intentions.

It is likely the investigation process will involve them being contacted for information and outcome of the process will be impacted by the quality of information they share.

If they fail to take appropriate action in response to your complaints and the behaviour continues, you or other impacted students may have a civil action against the educational institution and be liable for any damage you suffer.

SEXUAL HARASSMENT

Don’t forget some types of sexual harassment may also be offences under criminal law or civil actions may be available.

To constitute sexual harassment under the law the behaviour needs to be any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature toward you, in circumstances where a reasonable person would have anticipated the possibility that you would be offended, humiliated or intimidated.

As the behaviours you refer to don’t seem to have been directed specifically at you, any complaint made to the Anti-Discrimination Commission or police in your State needs to be made by the victims.

RACIAL HATRED

The racist comments made to some of the students may be racial hatred under the Racial Discrimination Act, that is, conduct in public based on the race, colour, national or ethnic origin of these students which is likely to offend, insult humiliate or intimidate.

These students can make a complaint to the Australian Human Rights Commission which costs nothing and can be lodged online.

The Commission will investigate and contact the man who has made these comments for a response.

A conciliation will be arranged, this is an informal process that involves the students talking about the issues and trying to find a solution.

If this isn’t successful the victims can take their complaint to the Federal Court. And penalties there can be stiff: individuals can be fined up to $10,000 or get six months imprisonment, while employers can be fined up to $100,000.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email [e-mail]