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Despite Foley backtracking on defamation threat, disincentives to speak up remain
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Despite Foley backtracking on defamation threat, disincentives to speak up remain

Business people

Former NSW opposition leader Luke Foley has said he won’t proceed with legal action against the ABC and a female journalist over sexual harassment allegations, however the prospect of such litigation still affects the willingness of victims to speak out, according to a national firm.

Upon his recent resignation from state parliament, Mr Foley threatened to sue the journalist who made the allegations, Ashleigh Raper, as well as the public broadcaster (Ms Raper’s employer), for defamation.

However, he confirmed yesterday to AAP that he no longer planned to move ahead with such defamation proceedings.

“It’s in nobody's interests for this matter to be the subject of long-running court proceedings, and I won’t put everyone through this,” Mr Foley told AAP.

Speaking recently to Lawyers Weekly, Slater and Gordon Lawyers principal Diana Young said the “initiating of defamation proceedings and the recent high-profile cases that are currently playing out in the courts and through the media is likely to have an impact on the willingness of people speaking out for fear of being a defendant or witness in such defamation proceedings”.

This prospect would be applicable across all workplaces, she noted, and not just within the legal services realm.

“There is often a power imbalance at play that may discourage complaints. Given the legal mechanisms available to the alleged perpetrators of harassment and other inappropriate conduct, it is important that potential complainants seek support and advice before pursuing complaints,” she explained.

“Unions, CASAs etc may be useful sources of free advice and support. Where private law firms need to be engaged to assist complainants, there is a further concern that the costs associated with exercising rights and invoking protections can become prohibitive.”

Aside from the unpleasant prospect of the potential public interrogation that might be associated with being dragged into defamation proceedings, complainants who experience sexual harassment in the workplace might be concerned about potential victimisation and other detriment, Ms Young noted.

“For example, a complainant might complain about the conduct of a powerful person in their workplace but face threats to their ongoing employment as a result,” she said.

“Whilst there are protections available [such as anti-victimisation provisions (both state and federal) and general protections provisions in the federal Fair Work Act], the stress associated with both the potential victimisation and the time and effort involved in invoking the protections may act as a disincentive to voicing concerns about the conduct.”

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