Sexual Harassment Prevention:
Your Positive Duty

What is the positive duty?

Section 47C of the Sex Discrimination Act 1984 requires all employers to take reasonable and proportionate measures to eliminate, as far as possible:

• Sexual harassment
• Sex-based harassment
• Sex discrimination
• Hostile work environments on the ground of sex
• Related acts of victimisation

This is a positive duty — it requires action regardless of whether anyone has complained. You must take steps to prevent these behaviours, not just respond after the fact.

Australian Human Rights Commission enforcement

The AHRC has new enforcement powers that commenced on 12 December 2023:

• Inquiries — the AHRC can inquire into whether an employer is complying with the positive duty, without a complaint being made
• Compliance notices — if non-compliance is found, the AHRC can issue a compliance notice requiring the employer to take specific actions within a set timeframe
• Court enforcement — if a compliance notice isn't followed, the AHRC can apply to the Federal Court for orders, including civil penalties

The AHRC has stated it will take a "constructive" approach initially, focusing on education and support. But it has also signalled that enforcement action will follow for employers who fail to take the duty seriously.

The 7 standards

The AHRC's Guidelines for Complying with the Positive Duty set out 7 standards that employers should address:

Building your prevention plan

A compliant prevention plan should include:

1. Policy — a clear, written sexual harassment prevention policy that defines prohibited behaviour, reporting channels, investigation processes, and consequences
2. Training — regular training for all workers (not just managers) on recognising harassment, bystander intervention, and reporting. Training should be refreshed annually.
3. Risk assessment — identify workplace-specific risk factors: power imbalances, isolated work, alcohol at work events, customer-facing roles, late-night shifts
4. Reporting channels — multiple accessible pathways for reporting (direct manager, HR, anonymous hotline, external contact). Workers must feel safe reporting.
5. Investigation process — documented process for investigating complaints, including timeframes, confidentiality, procedural fairness, and outcome communication
6. Support services — EAP access, reasonable adjustments during investigations, protection from victimisation
7. Record keeping — document all training, risk assessments, complaints, investigations, and outcomes. This is your evidence of compliance.

What about small businesses?

The duty applies to all employers regardless of size, but what's "reasonable and proportionate" scales with your resources:

• A 5-person business isn't expected to have a dedicated HR team or anonymous hotline
• But you are expected to have a written policy, provide training, and take complaints seriously
• The AHRC has published specific guidance for small businesses
• Off-the-shelf training modules and template policies can satisfy the knowledge and policy requirements cost-effectively

Consequences of non-compliance

• AHRC compliance notices and court orders — as described above
• Vicarious liability — if harassment occurs and you haven't taken "all reasonable steps" to prevent it, the employer is vicariously liable under section 106 of the Sex Discrimination Act
• Workers compensation claims — psychological injury claims arising from harassment can be costly, and premiums may increase
• Reputational damage — AHRC inquiry outcomes can be published, and court proceedings are public
• Talent impact — businesses known for poor culture struggle to attract and retain staff