Effective 12 December 2023, the Australian Human Rights Commission (AHRC) will be equipped with enhanced powers to investigate and enforce an employer’s positive duty under the Sex Discrimination Act 1985 (Cth) (SDA).

The AHRC’s expanded authority includes the ability to conduct inquiries, issue compliance notices, seek Court-ordered compliance, and enter into enforceable undertakings.

Key takeaways

• The positive duty represents a significant shift in how employers must approach unlawful conduct of a sexual nature and sex-based hostility in the workplace. Such a substantial shift demands a corresponding and thorough reassessment of existing preventive measures.
• Considering the common ground now shared by the AHRC and Safety Regulators, organisations should anticipate addressing comparable issues with multiple regulatory bodies.
• The proactive approach encouraged by the AHRC emphasises not just compliance but a genuine commitment to fostering respectful, inclusive workplaces. Tokenistic or artificial measures, such as basic online training for staff in the absence of other measures, will not meet the AHRC’s expectations.

Understanding the Positive Duty

Introduced in 2022 through amendments to the SDA, the positive duty requires employers to take reasonable and proportionate measures to eliminate unlawful behaviours. The positive duty goes beyond sexual harassment to include sex discrimination, sex-based harassment, the creation of a hostile workplace environment based on sex, and related acts of victimisation. The duty also extends beyond the actions of employees and contractors to encompass conduct by third parties, such as customers or clients. While it complements existing obligations under work, health, and safety laws, it does not replace and requires a holistic and comprehensive approach for compliance.

AHRC’s New Investigative Powers

The AHRC’s authority to commence an inquiry arises when there is a reasonable suspicion that an organisation is not complying with the positive duty. This suspicion can be triggered by various sources, including other government agencies, impacted individuals, unions or worker representatives, or media reports. In cases of non-compliance, the AHRC can provide recommendations, issue compliance notices specifying corrective actions, apply for court orders directing compliance, and enter into enforceable undertakings with organisations.

Compliance Guidelines and Principles

To assist employers in meeting their obligations, the AHRC has provided guidance material outlining seven standards and four guiding principles. These standards cover a range of measures employers should adopt to eliminate unlawful conduct. While each employer is expected to address all seven standards, what is deemed “reasonable and proportionate” will vary based on factors such as organisation size, resources, and the practicality and cost of implementing measures.

Industry-Specific Scrutiny

Notably, the AHRC has indicated particular scrutiny on industries such as mining, retail, and legal services. This emphasis underscores the AHRC’s commitment to ensuring that businesses across various sectors actively work towards creating environments free from unlawful behaviours. Employers within these industries are urged to pay special attention to the AHRC guidelines to align their practices with the evolving legal landscape.