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Parker, Christine --- "Public Rights in Private Government: Corporate Compliance With Sexual Harassment Legislation" [1999] AUJlHRights 6; (1999) 5(1) Australian Journal of Human Rights 159

[*] Post-doctoral Fellow, Faculty of Law, University of New South Wales. I would like to thank Dorne Boniface, John Braithwaite and Therese Macdermott for comments on earlier drafts of this paper.

[1] See Devereux A `Human Rights by Agreement? A Case Study of the Human Rights and Equal Opportunity Commission's Use of Conciliation' (1996) 7 Australian Dispute Resolution Journal 280.

[2] For example, Scutt J `The Privatisation of Justice: Power Differentials, Inequality, and the Palliative of Counselling and Mediation' (1988) 11 Women's Studies International Forum 503; Thornton M `Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia' (1987) 52 Modern Law Review 733, Thornton M `The Public/Private Dichotomy: Gendered and Discriminatory' (1991) 18 Journal of Law & Society 448. See also Astor H and Chinkin C Dispute Resolution in Australia, Butterworths, Sydney (1992) 12-16, 272-4.

[3] For example, Kirby M `A Bill of Rights for Australia -- But Do We Need It?' (1995) Commonwealth Law Bulletin 276; O'Neill N and Handley R Retreat from Injustice: Human Rights in Australian Law Federation Press, Illinois (1994) and Wilcox M An Australian Charter of Rights? Law Book Company, Sydney (1993).

[4] On the notion of a corporation as a `private government' see Lakoff, S and Rich D Private Government (1973), Miller A `Corporations and Our Two Constitutions' in Samuels W and Miller A (eds), Corporations and Society: Power and Responsibility Greenwood Press, New York (1987) and Dan-Cohen M Rights, Persons and Organisations: A Legal Theory for Bureaucratic Society University of California Press, Berkeley (1986) 173-6.

[5] This has been particularly true of sexual harassment law. See Mackinnon C Sexual Harassment of Working Women: A Case of Sex Discrimination Yale University Press, New Haven (1979) pp 164-74 for the classic discussion of this. See also Morgan J `Sexual Harassment and the Public/Private Dichotomy: Equality, Morality and Manners' in Thornton M (ed) Public and Private: Feminist Legal Debates Oxford University Press, New York (1995) 89, 103-105.

[6] See Morgan ibid for another perspective on the need to break down simplistic public/private distinctions in sexual harassment law.

[7] As I shall argue below, such functions have already been well recognised in the area of disability discrimination in the Commonwealth jurisdiction. However sex discrimination lags behind.

[8] For example, the US Sentencing Commission's Sentencing Guidelines provide for lesser penalties for convicted companies that have an `effective' compliance program; Brown L and Kandel A The Legal Audit: Corporate Internal Investigation Clark Boardman Callaghan, Illinois (1995) pp 7-29; environmental regulation requires corporations to take responsibility for the effects of their activities on the environment by making environmental impact statements and audits: Fischer K and Schot J (eds) Environmental Strategies for Industry: International Perspectives on Research Needs and Policy Implications Island Press, Washington DC (1993) 5; enforced compliance programs are common in occupational health and safety; Smith I, Goddard C and Randall N Health and Safety: The New Legal Framework Butterworths, London (1993). See generally Sigler J and Murphy J Interactive Corporate Compliance: An Alternative to Regulatory Compulsion Quarom Books, New York (1988) and Stone C Where the Law Ends: The Social Control of Corporate Behaviour Harpers and Row, New York (1975).

[9] Ayres I and Braithwaite J Responsive Regulation Oxford University Press, New York (1992); Selznick P The Moral Commonwealth University of California Press, Berkeley (1992).

[10] See Braithwaite J `The New Regulatory State and the Future of Criminology' (forthcoming) British Journal of Criminology; Majone G `The Rise of the Regulatory State in Europe' (1994) 17 West European Politics 77 for the notion of a new regulatory state in Britain and Europe and also Hood C and Scott C `Bureaucratic Regulation and New Public Management in the United Kingdom: Mirror-image Developments?' (1996) 23(3) Journal of Law and Society, 321. See Arthurs H and Kreklewich R `Law, Legal Institutions, and the New Economy' (1996) 34 Osgoode Hall Law Journal 1 for a description of the new economy.

[11] Sex Discrimination Commissioner, Sexual Harassment and Educational Institutions: A Guide to the Federal Sex Discrimination Act (1996).

[12] Previously, sexual harassment had to be proved to amount to sexual discrimination to be unlawful. In Australia ss 28A-28L of the Commonwealth SDA specifically define sexual harassment and make it unlawful. Similarly, various pieces of state legislation specifically define sexual harassment as unlawful: Anti-Discrimination Act 1977 (NSW) Pt 2A, s 87(11) Equal Opportunity Act 1984 (SA); Equal Opportunity Act 1984 (WA) ss 24(3), 25(2), 26(2), Anti-Discrimination Act 1991 (Qld) ss 118-120; s 22(2), Equal Opportunity Act 1995 (Vic) s 20 Anti-Discrimination Act 1992 (NT); s 17 Sex Discrimination Act (Tas). Australia was the first country to include specific provisions relating to and defining sexual harassment in its sex discrimination legislation. Contrast the US where sexual harassment was first held to be unlawful discriminatory treatment under Title VII of the Civil Rights Act of 1964 by a district court in 1976 in Williams v Saxbe 413 F. Supp. 654 (DDC 1976), and was only unequivocally accepted as such when the Equal Employment Opportunity Commission issued guidelines (non-binding administrative interpretations of the Civil Rights Act) setting out employers' liability for acts of sexual harassment in the workplace: see Conte A, Sexual Harassment in the Workplace: Law and Practice: Vol One John Wiley and Sons, New York (1994) pp 14-15.

[13] See Weeks E, Boles J, Garbin A and Blount J `The Transformation of Sexual Harassment From a Private Trouble Into a Public Issue' (1986) 56 Sociological Inquiry 432 for an analysis of how media attention, litigation and agitation by interest groups converged to transform sexual harassment from a trouble affecting many individual women into a public issue in the US during the 1970s and 1980s.

[14] Jaschik-Herman M and Fisk A `Women's Perceptions and Labelling of Sexual Harassment in Academia Before and After the Hill-Thomas Hearings' (1995) 33 Sex Roles 439.

[15] Garner H The First Stone: Some Questions About Sex and Power Pan MacMillan, Sydney (1995). See Parker C `Some Questions about Sex and Justice and Power' (1997) 22 Alternative Law Journal 122.

[16] Osborne M Sexual Harassment: A Code of Practice HREOC, Sydney (1996) p 6.

[17] Ibid and Sex Discrimination Commissioner Sexual Harassment and Educational Institutions: A Guide to the Federal Sex Discrimination Act HREOC, Sydney (1996).

[18] See CCH Australian and New Zealand Equal Opportunity Law and Practice (1997) para 59-400.

[19] See Ronalds C Affirmative Action and Sex Discrimination: A Handbook on Legal Rights for Women Pluto Press, Sydney (1991) pp 145-6.

[20] Ronalds C `Sexual Harassment and Unfair Dismissal' unpublished paper, Sydney. This opinion is consistent with the author's own 1997 interviews with equal opportunity officers and lawyers in some of Australia's leading financial institutions. Each institution had dismissed people for sexual harassment in the last few years. Other respondents to complaints had resigned when a formal investigation was commenced because they knew dismissal was a likely outcome. See Parker C `How to Win Hearts and Minds: Corporate Compliance Policies for Sexual Harassment' (1990) Law and Policy, forthcoming.

[21] Still L Glass Floors and Sticky Ceilings: Barriers to the Careers of Women in the Australian Finance Industry HREOC, Sydney (1997).

[22] Ibid p 29.

[23] Still L Glass Floors and Sticky Ceilings: Barriers to the Careers of Women in the Australian Fiance Industry, HREOC, Sydney (1997) 41-42, 44.

[24] Around 90 percent of complaints under the SDA concern discrimination or sexual harassment in employment: Sex Discrimination Commissioner Sexual Harassment and Educational Institutions: A Guide to the Federal Sex Discrimination Act HREOC, Sydney (1996) p 14.

[25] Since 1992, when the original provisions were repealed and replaced by ss 28A-28L, liability extends to sexual harassment in employment, unions, employment agencies, and the provision of goods, services and facilities. The State Acts all prohibit harassment (and discrimination) in employment, and vary in their coverage of other situations. For an overview of their coverage, see CCH Australian and New Zealand Equal Opportunity Law and Practice (1997) para 59-500.

[26] The Anti-Discrimination Act (NSW) s 53 provides that employers are liable for the acts of employees unless they did not authorise the employees to do the acts expressly or by implication. The case law shows that employers can be vicariously liable for sexual harassment if they fail to take action to stop the conduct occurring: Hill v Water Resources Commission (1985) EOC 92-127. The Anti-Discrimination Act (Qld) s 133 states that persons are liable for the acts of their workers or agents except if they can prove `on the balance of probabilities that the respondent took reasonable steps to prevent the worker or agent contravening the Act'. The other State Acts also provide that employers will be liable for the acts of employees unless they can show that they took reasonable precautions to ensure employees would not breach the Act: Equal Opportunity Act (Vic), s 34 , Equal Opportunity Act (SA) ss 90, 91(1), Equal Opportunity Act (WA) ss 160, 161.

[27] See Sex Discrimination Act (Cth) s 81, Anti-Discrimination Act (NSW) s 113, Equal Opportunity Act (Vic) s 136, Anti-Discrimination Act (Qld) s 209, Equal Opportunity Act (SA) s 96, Equal Opportunity Act (WA) s127, Sex Discrimination Act (Tas) s 59, Discrimination Act (ACT) s 102, Anti-Discrimination Act (NT) s 88.

[28] [1988] FCA 170; (1988) EOC 92-222 at 77, 091. See also Hill v Water Resources Commission (1985) EOC 92-127 for a similar decision under the NSW legislation.

[29] (1986) EOC 92-165.

[30] The Human Rights Commission later became HREOC.

[31] (1996) EOC 92-828 at 79, 114.

[32] (1995) EOC 92-749.

[33] [1996] HREOCA 8; (1996) EOC 92-822.

[34] Ibid at 79, 156.

[35] Unreported, before Atkinson R G, President of the Queensland Anti-Discrimination Tribunal, 29 January 1997.

[36] Ibid 30-31.

[37] Ibid 35.

[38] New South Wales Anti-Discrimination Tribunal, M v R (1988) EOC 92-229, 77 and 173. See also Macdermott T `The Duty to Provide a Harassment-Free Work Environment' (1995) 37 Journal of Industrial Relations 495, 501.

[39] See Bennett v Everitt (1988) EOC 92-244; Horne & anor v Press Clough Joint Venture & anor (1994) EOC 92-556. See also Macdermott T `The Duty to Provide a Harassment Free Work Environment' (1995) 37 Journal of Industrial Relations 500.

[40] See Macdermott as above 38, 507.

[41] (1994) EOC 92-576.

[42] Sexual harassment may however amount to criminal conduct such as assault on the part of the individual perpetrator. See Sharpe B Making Legal Compliance Work, CCH Australia, Sydney (1996) for a general discussion of corporate compliance programs.

[43] Osborne M Sexual Harassment: A Code of Practice HREOC, Sydney (1996) p 54.

[44] MIM v Hopper, Unreported, before Atkinson R G, President of the Queensland Anti-Discrimination Tribunal, 29 January 1997. Note that the Anti-Discrimination Act, (NSW) \ts 113(1)(b)(i) limits damages to $40 000.

[45] See Fisse B and Braithwaite J The Impact of Publicity on Corporate Offenders State University of New York Press, Albany (1983) for a discussion the effects publicity can have on corporate compliance.

[46] (1995) 62 IR 28 (also summarised at (1995) EOC 92-742).

[47] Ibid 33.

[48] (1994) EOC 92-644. The Industrial Commission of South Australia made a similar decision in Gryn v Civil and Civic Pty Ltd (1994) EOC 92-581 and the Employment Tribunal of New Zealand in Wellington has also found that a dismissal for sexual harassment was justified using similar reasoning: A v R (1994) EOC 92-628.

[49] (1995) 61 IR 145. Also summarised at (1995) EOC 92-682.

[50] (1996) EOC 92-807.

[51] Ibid at 78, 968.

[52] [1992] FCA 209; (1992) 36 FCR 20 at 29.

[53] See (1996) EOC 92-807 at 78, 967.

[54] In the South Australian case of Gryn v Civil and Civic (1994) EOC 92-581, the Industrial Commission held that an employee had not been unfairly dismissed for sexual harassment when procedural justice had been followed even though the dismissal did not appear to have been dealt with according to any specific sexual harassment policy.

[55] Under the new Workplace Relations Act 1996 (Cth), s 170CE lack of procedural fairness will only be one factor to consider in deciding whether a dismissal was `harsh, unjust \tor unreasonable'. See Chapman A `Termination of Employment Under the Workplace

Relations Act 1996 (Cth)' (1997) 10 Australian Journal of Labour Law 89. As a result of this reduced role for procedural fairness it may be even easier for employers to legitimately dismiss an employee for sexual harassment.

[56] Section 55 SDA. Under proposed amendments to the SDA before the Senate, this would be the responsibility of the President of HREOC: see Leon R `Human Rights Legislation Amendment Bill' (1997) 22 Alternative Law Journal 42. Similar processes that give primacy to conciliation are mandated under the State Acts.

[57] Under proposed amendments, matters would go straight from conciliation to the Federal Court with the Sex Discrimination Commissioner able to appear as amicus curiae: see Leon R ibid.

[58] Devereux A `Human Rights by Agreement? A Case Study of the Human Rights and Equal Opportunity Commission's Use of Conciliation' (1996) 7 Australian Dispute Resolution Journal 280, 294 and 296. Private communication to the author by Commission staff suggests that this is usually HREOC policy. See also Thornton M `Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia' (1989) 52 Modern Law Review 733-758 for evidence that this is also the approach taken by the ADB.

[59] However, as we shall see below, there are presently no mechanisms available for monitoring or enforcing compliance with these agreements.

[60] Devereux A, see above 283.

[61] Sections 48 and 49 Sex Discrimination Act (Cth), s 119 Anti-Discrimination Act (NSW).

[62] Osborne M Sexual Harassment: A Code of Practice HREOC, Sydney (1996); Anti-Discrimination Board of NSW Anti-Discrimination and Equal Employment Opportunity Guidelines Anti-Discrimination Board of NSW, Sydney (1997).

[63] Anti-Discrimination Board of NSW Options Paper: Improved Guidance for Employers about Complying with the Anti-Discrimination Act 1977 (NSW) Anti-Discrimination Board of NSW, Sydney (1996).

[64] Osborne M Sexual Harassment: A Code of Practice HREOC, Sydney (1996) 7.

[65] Section 81(1)(b)(iv) of the SDA expressly uses the word `compensation'. See also Hall v Sheiban [1989] FCA 72; (1989) EOC 92-250 where it was held that damages under the legislation are remedial and not punitive. See also Ronalds C Affirmative Action and Sex Discrimination: A Handbook on Legal Rights for Women Pluto Press, Sydney (1991) p 213.

[66] Trade Practices Commission v CSR [1990] FCA 521; (1991) ATPR 41-076; Trade Practices Commission v TNT (1995) ATPR 41-375. See Fisse B `Corporate Compliance Programmes: The Trade Practices Act and Beyond' (1989) 17 Australian Business Law Review 356.

[67] (1994) EOC 92-576.

[68] (1994) EOC 92-620.

[69] Section 31 Disability Discrimination Act 1992 (Cth). The standards are to be approved by Cabinet and then laid before both Houses of Parliament and take effect after fifteen sitting days unless they are disallowed by the Parliament. See Tyler M `The Disability Discrimination Act 1992: Genesis, Drafting and Prospects' (1993) Melbourne University Law Review 211, for an overview of the Act and the policies behind it. The Australian Law Reform Commission has recommended that the SDA should be amended to contain provisions similar to those under the DDA; Australian Law Reform Commission Equality Before the Law: Justice for Women, Report No 69 Pt 1 Australian Law Reform Commission, Sydney (1994).

[70] Section 69(1) Disability Discrimination Act 1992 (Cth).

[71] Section 11, ss 59-65 Disability Discrimination Act 1992 (Cth). Each of the prohibitions of disability discrimination in the DDA also provides for a defence that the provision of facilities or services to eliminate the discriminatory act complained of would have placed `unjustifiable hardship' on the respondent.

[72] Sections 89-92 Disability Discrimination Act 1992 (Cth) make provision for representative complaints to be made.

[73] For example, Scutt J `The Privatisation of Justice: Power Differentials, Inequality, and the Palliative of Counselling and Mediation' (1988) 11 Women's Studies International Forum 503; Thornton M `Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia' (1989) 52 Modern Law Review 733 and Thornton M `The Public/Private Dichotomy: Gendered and Discriminatory' (1991) 18 Journal of Law & Society 448. See Devereux A

`Human Rights by Agreement? A Case Study of the Human Rights and Equal Opportunity Commission's Use of Conciliation' (1996) 7 Australian Dispute Resolution Journal 280, 283-4 for a summary of criticisms, and also Bacchi C and Jose J `Dealing with Sexual Harassment: Persuade, Discipline, or Punish?' (1994) 10 Australian Journal of Law & Society 1.

[74] These points are at the core of a well developed critical literature on informal justice and alternative dispute resolution more generally: see Fitzgerald J, `Thinking About Law and its Alternatives: Abel et al and the Debate Over Informal Justice' (1985) American Bar Foundation Research Journal 637, 641.

[75] See Scutt J `The Privatisation of Justice: Power Differentials, Inequality, and the Palliative of Counselling and Mediation' (1988) 11 Women's Studies International Forum 503 at 508.

[76] Edelman L Erlanger H and Lande J `Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace' (1993) 27 Law and Society Review 497.

[77] Ibid 530.

[78] Edelman L Erlanger H and Lande J `Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace' (1993) 27 Law and Society Review 497.

[79] See Osborne M, Sexual Harassment: A Code of Practice HREOC, Sydney (1996) 19-20.

[80] See Scutt J `The Privatisation of Justice: Power Differentials, Inequality, and the Palliative of Counselling and Mediation' (1988) 11 Women's Studies International Forum 503.

[81] Interview by the author with Westpac EEO officers, July 1997.

[82] Krygier M `Virtuous Circles: Antipodean Reflections on Power, Institutions, and Civil Society' (1997) 11 East European Politics and Societies 36, 51.

[83] Engel D and Munger F `Rights, Remembrance, and the Reconciliation of Difference' (1996) 30 Law and Society Review 7, 48.

[84] See Hulin C Fitzgerald L and Drasgow F `Organizational Influences on Sexual Harassment' in Stockdale M (ed), Sexual Harassment in the Workplace: Perspectives, Frontiers and Response Strategies Sage Publications, California (1996) p 127. Their study also found that women experience significant bystander stress in an organisation that tolerates sexual harassment even where they themselves are not personally and directly the victims of it. Indeed in their study bystander stress accounted for `more variance in job withdrawal, life satisfaction, psychological well-being, anxiety and depression, physical health conditions, and health satisfaction than did reports of sexual harassment episodes': p 145.

[85] See Fisse B and Braithwaite J Corporations, Crime and Accountability Cambridge University Press, Cambridge (1993) 15 who argue that corporate capacity to identify those responsible for corporate lawbreaking should be catalysed by the will of the public justice system to demand accountability.

[86] Empirical evidence suggests that people prefer to use formal legal processes as a last resort in their attempts to achieve justice: see Merry S E Getting Justice and Getting Even: Legal Consciousness Among Working Class Americans University of Chicago Press, Chicago (1990) 172, National Consumer Council Seeking Civil Justice National Consumer Council, London (1995).

[87] See Thornton M `Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia' (1989) 52 Modern Law Review 733 at 735.

[88] Ayres I and Braithwaite J Responsive Regulation Oxford University Press, New York (1992). See also Fisse B and Braithwaite J, Corporations, Crime and Accountability Cambridge University Press, Cambridge (1993) for an application of this theory to internal corporate justice systems. For empirical demonstrations of the theory see Braithwaite J and Makkai T `Testing an Expected Utility Model of Corporate Deterrence' (1991) 25 Law and Society Review 7, Braithwaite J and Makkai T `Trust and compliance' (1994) 4 Policing and Society 1, Grabosky P and Braithwaite J Of Manners Gentle: Enforcement Strategies of Australian Business Regulatory Agencies Oxford University Press, Melbourne (1986). See also Kagan R and Scholz J `The Criminology of the Corporation and Regulatory Enforcement Strategies' in Hawkins K and Thomas J (eds), Enforcing Regulation Kluwer Nijhoff Publishing, Boston (1984) 67.

[89] Empirical research `on the internal dynamics of corporate crime almost always identifies the existence of socially responsible individuals or groups within or around corporations' who can facilitate corporate change and law abiding behaviour when the threat of legal sanctions creates an opportunity for their voices to be heard: Pearce F and Tombs S `Hazards, Law and Class: Contextualising the Regulation of Corporate Crime' (1997) 6 Social and Legal Studies 79, 95.

[90] See Parker C `Some Questions about Sex and Justice and Power' (1997) 22 Alternative Law Journal 122.

[91] Minson J `Social Theory and legal Argument: Catharine MacKinnon on Sexual Harassment' (1991) 19 International Journal of the Sociology of the Law 355; `Second Principles of Social Justice' (1992) 10 Law in Context 1.

[92] See Minson (1991) ibid, 373.

[93] See Minson (1992) see above 33 where he states that internal corporate regulation of sexual harassment is a minimal ethical and political condition for a democratic culture in the workplace. As Anne Phillips argues `it is absurd to espouse democracy at the level of the state when there is subordination in our lives elsewhere': Engendering Democracy (1991) 39.

[94] See Morgan J `Sexual Harassment and the Public/Private Dichotomy: Equality, Morality and Manners' in Thornton M (ed) Public and Private: Feminist Legal Debates Oxford University Press, New York (1995) 89, 109-110 for a similar commentary on Minson.

[95] See Bacchi C and Jose J, `Dealing with Sexual Harassment: Persuade, Discipline, or Punish?' (1994) 10 Australian Journal of Law and Society 1, for a discussion for the need for personal and structural solutions to sexual harassment.

[96] See Trade Practices Act 1974 (Cth) s 87B; ACCC v NW Frozen Foods Pty Ltd (1996) ATPR 41-515; ACCC v Pioneer Concrete (Qld) Pty Ltd (1996) ATPR 41-457. See Dellit C and Fisse B `Civil and Criminal Liability Under Australian Securities Regulation: The Possibility of Strategies Enforcement' in Walker G & Fisse B (eds) Securities Regulation in Australia and New Zealand Oxford University Press, Auckland (1994) 570, who show how the ACCC has used its powers to negotiate settlements that include undertakings to implement compliance programs to great effect.

[97] Contrast this proposal with the DDA regime in which standards are set but there is no provision for the court or HREOC to order prospective compliance with the standards.

[98] See Fisse B and Braithwaite J Corporations, Crime and Accountability Cambridge University Press, Cambridge (1993) 82-3 on punitive injunctions in the context of corporate criminal liability.

[99] Macdermott T `The Duty to Provide a Harassment-Free Work Environment' (1995) 37 Journal of Industrial Relations 495.

[100] This is the approach taken in recent trade practices cases to encourage compliance policies: see the case cited in note 96.

[101] See discussion in note 69. Draft Disability Standards for public transport, education, employment, Commonwealth government information and communications and computerised information are already available.

[102] Following the High Court decision in Brandy v HREOC [1995] HCA 10; (1995) 183 CLR 245, complaints must be determined by the Federal Court in order to be enforceable.

[103] Anti-Discrimination Board of New South Wales Options Paper: Improved Guidance for Employers about Complying with the Anti-Discrimination Act 1977 (NSW) Anti-Discrimination Board of NSW, Sydney (1996) 12-16.

[104] See Braithwaite J and Braithwaite V `The Politics of Legalism: Rules Versus Standards in Nursing-Home Regulation' (1995) 4 Social and Legal Studies 307.

[105] For example Thornton M The Liberal Promise: Anti-Discrimination Legislation in Australia Oxford University Press, Melbourne (1990).

[106] Braithwaite V `The Australian Government's Affirmative Action Legislation: Achieving Social Change Through Human Resource Management' (1993) 15 Law & Policy 327, 331-333. Note that Braithwaite's analysis of the data shows that in practice these criticisms may not have been borne out to the extent expected.

[107] Ibid at 350.

[108] Thus there is potential for the linkage of sex discrimination liability to the affirmative action regime to go far beyond the DDA regime in which companies are encouraged to submit voluntary action plans for eliminating discrimination to HREOC although nothing mandates them to do so.

[109] See Stone C Where the Law Ends: The Social Control of Corporate Behaviour Harper and Row, New York (1975).

[110] Small businesses that aspire one day to be taken over by a large company are prudent to model themselves on larger companies in their legal risk management strategies.

[111] HREOC suggests that even businesses with less than twenty employees ought to have a written sexual harassment policy. Where a written policy is impractical in very small businesses the employer might make a diary note when they personally inform staff that sexual harassment will not be tolerated to use in evidence if necessary: Osborne M, Sexual Harassment: A Code of Practice HREOC, Sydney(1996) pp 21-22.