
Albanese’s ‘shag’ Kylie remark would get him fired in most workplaces
Prime Minister Anthony Albanese has issued an “unequivocal” apology after comments he made on the Bush Deep podcast caused widespread condemnation.
Asked by the podcast host to play a game of “shag, marry, date” involving Kylie Minogue, Nicole Kidman and Rhonda Burchmore, he declared he would choose “all of the above” with pop icon Kylie Minogue.
The apology came quickly. But what if those same words were said at work?
I am not a political commentator. I am a workplace lawyer. And the answer, in my professional view, is that conduct of this kind in a workplace would very likely constitute sexual harassment, and the aggrieved person could, and often does, go straight to human resources demanding an investigation.
Under the Sex Discrimination Act 1984 (Cth), sexual harassment occurs when a person engages in unwelcome conduct of a sexual nature in circumstances in which a reasonable person would have anticipated the possibility that the recipient would be offended, humiliated or intimidated.
Critically, the test is objective. It does not require proof that the perpetrator intended to cause offence – only that a reasonable person would have foreseen that possibility.
A common misconception is that sexual harassment requires physical contact. It does not. Verbal conduct alone is sufficient. A game in which named individuals are ranked by whom a participant would have sex with, marry, or date is objectively offensive because it is a hypothetical exercise of a sexual and romantic nature directed at real people who have not consented to being ranked in that way.
“Cultures are informed by the worst behaviours leaders are willing to tolerate. Men in positions of power and influence must do better.”
It may pass as informal entertainment among teenagers, but the moment equivalent conduct is directed at named colleagues in a workplace, it almost certainly crosses the line. The law does not carve out an exception for conduct dressed up as a game.
In the 2014 case of Richardson v Oracle Corporation Australia Pty Ltd, the full Federal Court awarded $130,000 in general damages to a victim of verbal sexual harassment. This landmark decision put beyond doubt that Australian courts treat verbal conduct with the same seriousness as physical harassment. Courts and tribunals assess the nature and impact of conduct, not how the perpetrator chose to characterise it.
Internationally, a United Kingdom employment tribunal found last year that a “snog, marry, avoid” game played by Derbyshire police officers using images of sex workers constituted sexual harassment under the UK Equality Act, describing it as “crass and inappropriate”. There is every reason to expect a comparable outcome in Australia.
The legal framework around the prevention of sexual harassment in Australia has grown stronger under the Albanese government. Following the Respect@Work reforms of 2022, employers now carry a positive duty to take reasonable and proportionate measures to eliminate sexual harassment before it occurs, not merely to respond to complaints after the fact.
Organisations must actively foster a culture in which this kind of conduct is unacceptable. Employers who fail face vicarious liability under section 106 of the Sex Discrimination Act and increased regulatory scrutiny from the Australian Human Rights Commission.
The Respect@Work reforms were championed by the Albanese Labor government itself. The prime minister stood behind laws requiring employers and leaders to proactively eliminate exactly this kind of conduct. He did so rightly because words matter and culture starts at the top.
His apology was swift. But apologies do not change the underlying conduct. If a manager or colleague made these comments in any Australian workplace tomorrow, they may well lose their job. If I were advising the employer, they certainly would because to eliminate sexual harassment, there must be zero tolerance and tough consequences.
Workplace cultures are informed by the worst behaviours leaders are willing to tolerate. Men in positions of power and influence must do better. The standard the law demands is not a high bar. It is simply basic respect.