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Explaining the 'positive duty' and its positive impacts

Written by Tom Veale

 

Introduction

 

In December 2022 the ‘positive duty’ legal obligation was introduced into the Sex Discrimination Act 1984 (Commonwealth) under section 47C as a key recommendation from the Australian Human Rights Commission. This recommendation was informed by the Respect@Work: Sexual Harassment National Inquiry Report (2020).

 

 

The Respect@Work report found that the legal framework for workplace harassment that was in place at the time, was ineffective at preventing sexual harassment because it focused on employers demonstrating that they had taken measures to prevent future harmful behaviour, after an initial incident had occurred. Moreover, they also found that most people who experienced relevant unlawful conduct didn’t report the incidents.

 

 

The positive duty aims to prevent unlawful conduct by requiring businesses and organisations to take preventative measures, rather than reacting to conduct after it has already caused harm.

 

 

 

 

Positive duties: the legal obligation to prevent unlawful conduct

 

Organisations and business (regardless of size) now have a legal obligation to take reasonable and proportionate measures to eliminate ‘relevant unlawful conduct’ in connection with work, rather than just responding to an incident after it occurs.

 

 

Relevant unlawful conduct includes:

  • Discrimination on the grounds of a person’s sex
  • Sexual or sex-based harassment
  • Conduct creating a hostile workplace environment on the grounds on sex
  • Related acts of victimisation

 

 

The Australian Human Rights Commission can also investigate and enforce the positive duty. This includes entering into agreements with organisations and businesses, requiring the production of information and documents, or issuing court enforceable compliance notices.

 

 

 

 

 

 

Guidance for complying with your positive duty

 

The Australian Human Rights Commission have provided numerous resources, including guidelines for complying with the positive duty, to help organisations and businesses understand their obligations and how to satisfy the positive duty.

 

 

They have broken these guidelines down into seven standards.

 

 

1. Leadership: senior leaders play an important role in setting the ‘tone from the top’ and implementing the standards for the rest of the organisation. They are also able to set the allocation of resources towards the prevention of unlawful conduct.

 

2. Culture: a good workplace culture can encourage trust and confidence. Certain policies and practices can help shape culture by addressing any biases in recruitment or shaping the accepted ways of interacting with colleagues.

 

3. Knowledge: understanding the causes and nature of unlawful conduct is critical for eliminating them.

 

4. Risk management: risk management is a standard requirement for any organisation or business, however, knowing when and where relevant unlawful events might occur can help in assessing those specific risks in the workplace.

 

5. Support: a good support framework can help workers make decisions about unlawful action which enables workplaces to prevent further incidents.

 

6. Reporting and response: depending on the size of the organisation, having informal and formal, internal and external methods of reporting can give affected workers a choice in the process. This can be useful in situations when an investigation may not be the best first option.

 

7. Monitoring, evaluation and transparency: appropriate monitoring can help assess and improve work culture and identify what further measures might need to be taken.

 

 

 

 

 

 

 

Beyond the Commonwealth Act: the states’ approach to the duty

 

While the positive duty applies to all states and territories under the Sex Discrimination Act 1984 (Commonwealth), individual states and territories may have specific state-level requirements in relation to their anti-discrimination laws and work health and safety laws that operate concurrent to the commonwealth positive duty.

 

 

For example, Victoria has its own positive duty written into law in the Equal Opportunity Act 2010, as does the Northern Territory and the ACT in their respective anti-discrimination laws, and Queensland is currently in the drafting and consulting stage for their own.

 

 

While the state Acts have similar wording and share the common aim to proactively prevent harassment and discrimination, each state may vary in its scope. For example, the positive duty in the Northern Territory Anti-Discrimination Act 1992 is broader than the federal law and extends to more protected attributes that may face discrimination.

 

 

Moreover, since the positive duty is found in the state specific legislation, the regulators of those Acts are able to regulate compliance and conduct investigations alongside the Australian Human Rights Commission.

 

 

Likewise, each state may have different resources and guidance materials that pertain specifically to their legislation. For example, in Victoria, the Victorian Equal Opportunity and Human Rights Commission has set out five minimum standards which organisations must meet to comply with the Victorian specific positive duty. They have also developed a sexual harassment support and response tool, which is an interactive chat providing information in the event of workplace sexual harassment. Alongside this, they provide tailored courses helping workplaces prevent and respond to sexual harassment.

 

 

 

 

 

 

 

Concluding notes

 

The positive duty sets out the legal obligation that all Australian businesses and organisation have in regard to the proactive prevention of discrimination, victimisation and sexual harassment. Overseen and enforced by the Australian Human Rights Commission, this change aims to prevent all relevant unlawful conduct from occurring regardless of the size or industry of the organisation or business. While many of the requirements overlap with anti-discrimination and WHS legislation, it is important that all businesses and organisations have taken the necessary steps to comply with the specific requirements of the positive duty.

 

 

 

 

 

 

 

Keeping compliance with the positive duty

 

Summaries of the Sex Discrimination Act 1984 and the concurrent state or territories laws in relation to the positive duty are presently available in our safety online directory, SafetyLaw. If you’re subscribed to SafetyLaw you will be notified of any updated summaries through our updates email service.

 

 

Our HSE Bulletin is also a great source for keeping on top of any changes to the legislation that may affect your compliance with the positive duty.

 

 

If you don’t have an Environment Essentials subscription but want to stay in touch with the progress of workplace health and safety laws, then sign up for a free trial or contact us on (03) 9095 6533.

 

 

 

 

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