Positive Duty Explained

TL;DR

• Positive duty is a legal obligation under the Sex Discrimination Act 1984 requiring all Australian employers to proactively prevent sexual harassment, sex discrimination, and related unlawful conduct
• The positive duty was introduced in December 2022 and became subject to mandatory AHRC enforcement from December 2023
• It applies to every organisation in Australia, regardless of size, including sole traders and small businesses
• Compliance is assessed against 7 standards set by the Australian Human Rights Commission, covering leadership, culture, knowledge, risk management, support, reporting, and monitoring
• Non-compliance can result in AHRC investigations, legal liability, and significant reputational damage
• Employers can also be held vicariously liable for unlawful conduct committed by their employees

What is positive duty at work?

Positive duty is a legal obligation that requires employers to take proactive, preventative action to eliminate sexual harassment, sex discrimination, and related unlawful conduct in the workplace, rather than simply responding after harm has occurred. Under the Sex Discrimination Act 1984 (Cth), as amended by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, every organisation and business in Australia is required to take reasonable and proportionate measures to eliminate unlawful behaviour before it happens.

This represents a significant shift from the previous complaints-based model, where employers were only required to demonstrate they had tried to address bad behaviour after it had already occurred. Positive duty brings workplace sexual harassment law into alignment with existing work health and safety obligations, which have long required employers to identify and control risks before harm occurs rather than react to injuries after the fact.

The positive duty is enforced by the Australian Human Rights Commission (AHRC), which has the authority to conduct compliance assessments and initiate inquiries into organisations suspected of failing to meet their obligations.

What conduct does positive duty cover?

Positive duty requires employers to eliminate, as far as possible, five specific categories of unlawful conduct. These are all covered under the Sex Discrimination Act 1984 and must be addressed proactively, not just in response to complaints.

The five conduct types are:

• Sex discrimination in a work context — treating a person less favourably because of their sex, or imposing conditions that disadvantage people of a particular sex
• Sexual harassment in connection with work — unwelcome conduct of a sexual nature where a reasonable person would anticipate the possibility of the other person feeling offended, humiliated, or intimidated
• Sex-based harassment in connection with work — conduct that is demeaning or hostile on the basis of sex, but which may not be explicitly sexual in nature
• Conduct creating a hostile work environment on the ground of sex — workplace conditions or a culture that is intimidating, offensive, or hostile based on a person's sex
• Related acts of victimisation — treating someone adversely because they have made, or intend to make, a complaint under the Sex Discrimination Act

Understanding the distinction between these categories matters. Sexual harassment and sex-based harassment are separate forms of unlawful conduct, and a workplace can be in breach of the positive duty on the basis of a hostile environment even if no individual incident of harassment has been reported.

Why was positive duty introduced?

The positive duty was introduced because the previous complaints-based model was not working. It placed the burden entirely on individuals to report harm, which led to significant under-reporting and no systemic change. The positive duty emerged from the Respect@Work Report (2020), led by Sex Discrimination Commissioner Kate Jenkins, and shifts that burden from individuals to organisations. It applies the same preventative logic already embedded in psychosocial hazards legislation: identify and control risks before harm occurs, not after.

Who does positive duty apply to?

Positive duty applies to every organisation and business in Australia that has obligations under the Sex Discrimination Act 1984. This includes sole traders, self-employed individuals, small businesses, medium and large businesses, and government entities at all levels.

There is no size threshold below which a business is exempt. However, the concept of reasonable and proportionate measures means the specific actions required will vary depending on the size of the organisation, the resources available, the nature of the work, and the cost of implementing particular measures. A small business with five employees will not be expected to implement the same processes as a large corporation, but both are legally required to take meaningful preventative action.

What are reasonable and proportionate measures?

Reasonable and proportionate measures is the legal standard used to assess whether an employer has met their positive duty obligations. It means employers must take practical, meaningful action that is appropriate to the size, resources, and nature of their organisation. There is no single prescribed set of actions, but compliance is assessed against the 7 standards set out by the AHRC.

Factors considered in determining what is reasonable and proportionate include:

• The size of the business or organisation
• The resources and budget available
• The nature of the business and its operational context
• The cost of implementing specific measures and whether they can be implemented effectively

Smaller organisations with limited resources can still meet their positive duty through simpler, well-documented measures, such as a clear anti-harassment policy, regular staff communication, and a confidential reporting channel. Larger organisations are expected to do more, including formal risk assessments, structured training programs, and organisation-wide monitoring systems.

The 7 Standards of Positive Duty

The Australian Human Rights Commission has established 7 standards that all organisations must address to demonstrate compliance with the positive duty. These standards provide the practical framework for what reasonable and proportionate action looks like across different types and sizes of organisations.

Organisations that already have Work Health and Safety obligations in place, including psychosocial risk assessments and hazard management processes, may find significant overlap with Standards 4 and 7. Existing WHS frameworks can be extended rather than duplicated.

How to implement positive duty in your organisation

Meeting the positive duty requires action across several areas of organisational practice. The following steps align with the AHRC's 7 standards and reflect how to manage psychosocial hazards more broadly.

Develop clear policies and procedures

‍Every organisation needs an up-to-date anti-harassment and anti-discrimination policy that clearly defines unlawful conduct, sets out expected behaviour, and explains how to report concerns. Policies must be actively communicated to all staff, not just distributed at induction and forgotten.

Conduct regular training

‍Training should equip employees and managers to recognise, prevent, and respond appropriately to sexual harassment and sex-based harassment. It should also support bystander intervention, building confidence among staff to act when they witness unlawful conduct. Psychosocial hazards training can be structured to cover positive duty obligations alongside other psychosocial risks.

Carry out risk assessments

‍Identifying where and why unlawful conduct is most likely to occur within your specific workplace is a core compliance requirement. Psychosocial hazard risk assessments should explicitly include sexual harassment and sex-based harassment as risk categories.

Establish confidential reporting mechanisms

‍Employees must have access to a safe, confidential way to report concerns without fear of retaliation. Anonymous reporting is strongly recommended as part of any comprehensive reporting system, particularly in smaller teams where identity can be difficult to protect. This is a core feature of a well-designed Employee Assistance Program.

Provide access to support

‍Employees who experience or witness unlawful conduct need access to confidential support. EAP counselling services provide a confidential, professionally supported pathway that meets Standard 5 of the AHRC framework.

Monitor and review

‍Compliance is not a one-time action. Policies, training, and risk controls must be regularly reviewed and updated. Data on reports, near-misses, and culture survey results should inform continuous improvement.

Frequently asked questions

What is positive duty at work?

Positive duty is a legal obligation under the Sex Discrimination Act 1984 (Cth) requiring all Australian employers to take proactive, preventative measures to eliminate sexual harassment, sex discrimination, and related unlawful conduct in the workplace. It shifts the legal burden from individuals who experience harm to organisations that are responsible for preventing it.

What conduct does positive duty cover?

Positive duty covers five categories of unlawful conduct: sex discrimination in a work context, sexual harassment in connection with work, sex-based harassment in connection with work, conduct creating a hostile work environment on the ground of sex, and related acts of victimisation. Sexual harassment and sex-based harassment are legally distinct categories, and both must be addressed.

When did positive duty become mandatory in Australia?

The positive duty was introduced into the Sex Discrimination Act 1984 in December 2022 following the Respect@Work reforms. Mandatory enforcement by the Australian Human Rights Commission, including the power to conduct compliance assessments, commenced from December 2023. Please verify these dates with a legal adviser to confirm the current compliance position.

Who does positive duty apply to?

Positive duty applies to all organisations and businesses in Australia with obligations under the Sex Discrimination Act 1984, including sole traders, small businesses, medium and large businesses, and government entities. There is no size threshold for exemption.

Does positive duty apply to small businesses?

Yes. Positive duty applies to all Australian businesses regardless of size. The measures required will be reasonable and proportionate to the size and resources of the business, so a small business will not be held to the same standard as a large corporation. However, every business is legally required to take meaningful preventative action.

What are reasonable and proportionate measures?

Reasonable and proportionate measures is the legal standard used to assess compliance. It means actions that are practical and appropriate given the size, resources, and nature of the organisation. The AHRC assesses compliance against 7 standards covering leadership, culture, knowledge, risk management, support, reporting and responding, and measuring and monitoring.

Who enforces positive duty in Australia?

The Australian Human Rights Commission (AHRC) is the national body responsible for enforcing the positive duty under the Sex Discrimination Act 1984. The AHRC can initiate compliance assessments and inquiries, request documents and information, and apply to the Federal Court for enforcement orders. In Victoria, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) enforces parallel obligations under the Equal Opportunity Act 2010 (Vic).

What happens if a business does not comply with positive duty?

If the AHRC finds that an organisation is not meeting its positive duty obligations, it can issue compliance notices, make the findings public, and apply to the Federal Court for enforcement orders. Separately, organisations that cannot demonstrate they took preventative steps may face vicarious liability for unlawful conduct committed by employees, including legal action brought by affected individuals.

What is vicarious liability under positive duty?

Vicarious liability means an employer can be held legally responsible for sexual harassment or other unlawful conduct committed by an employee, even if the employer was not directly involved. The only defence is demonstrating the organisation took all reasonable steps to prevent it, which is why documented compliance with the 7 standards matters.

What are the financial consequences of non-compliance?

Non-compliance exposes organisations to AHRC enforcement action, workers compensation claims, legal costs, and reputational damage. The AHRC can initiate a compliance assessment without any individual complaint, so the absence of reported incidents is not evidence of compliance. Proactive investment in the 7 standards reduces exposure across all of these risk areas.

‍

Foremind helps organisations meet their positive duty obligations through confidential Employee Assistance Program services, psychosocial safety systems, anonymous reporting tools, and structured risk management support. To learn more about how Foremind can support your compliance journey, book a demo with our team today.