Privatising Sexual Harassment

Following the emergence of #MeToo, sexual harassment at work attracted sustained attention all over the world. In Australia, this resulted in multiple reports which confirmed high rates of sexual harassment and led to protracted agitation for law reform. Although the ensuing recommendations have been widely praised, this article argues that the continuing privatisation of the complaint process is a noted limitation because survivors are estopped from speaking out, while harassers remain free to harass others. With regard to the Sex Discrimination Act 1984 (Cth), the article sets out to support the thesis as it pertains to the various steps associated with the individual complaint-based mechanism — namely, conciliation, non-disclosure agreements, litigation and the destruction of complaint files. While litigation is a public process, barely 1% of sexual harassment complaints proceed to a formal hearing, and there are strong disincentives for them doing so. Privatisation also ensures that the cumulative knowledge associated with individual complaints is denied to the public.