In December, the Australian Human Rights Commission gained new powers to investigate and enforce compliance with ‘the positive duty’. We asked human rights lawyer Prabha Nandagopal what this means for consulting businesses.

All Australian organisations and businesses are now legally required to eliminate, as far as possible, sexual harassment and sex discrimination under the Sex Discrimination Act 1984 (Cth). Known as the positive duty, the new regulatory framework will shift the burden away from individuals making complaints, instead putting the onus on employers to prioritise early intervention and prevention.\

Businesses can now be liable for failing to meet their positive duty obligations and face legal and reputational risk even if a complaint has not been made.

Former Sex Discrimination Commissioner, Kate Jenkins, told Australian Parliament that the positive duty would be “ the single most revolutionary change that will impact sexual harassment”.

It is important to note that the new positive duty extends to protecting workers from sexual harassment and sex discrimination perpetrated by third parties, such as members of the public, customers and clients.

The Australian Human Rights Commission has been conferred powers to monitor and enforce compliance with the positive duty. These powers were introduced on 12 December 2023. The Australian Human Rights Commission can commence an inquiry when it ‘reasonably suspects’ that an organisation is not complying with the positive duty. Where non-compliance is found, a compliance notice may be issued which is enforceable through the courts. 

The Australian Human Rights Commission undertakes a national survey every five years. According to the 2022 National Survey, one in three workers in Australia has experienced workplace sexual harassment in the past five years and no organisation or industry is immune. Only 18% of those who experienced harassment reported it, and of these reports, a quarter saw no consequences for the harasser.

Businesses of every size must make sure their leadership teams – whether that’s the board, executive and people in charge of teams at every level – understand these new positive duty obligations.

The Australian Institute of Company Directors recommends that businesses request a briefing session for the board and senior management, to be delivered by experts, on the positive duty.

Businesses need to consult with workers about sexual harassment in the workplace to help identify circumstances that might increase the risk of sexual harassment occurring.

They need to review policies, practices, reporting and response systems to ensure they meet the positive duty compliance framework developed by the Australian Human Rights Commission.

Businesses need to consider measures that will eliminate sexual harassment and sex discrimination in the workplace. 

They need to prepare a prevention and response plan. It’s not enough to just identify possible risks; businesses need to work out what and how they will prevent incidents and how they will respond if they do happen.

Businesses should invest in quality education and training so all staff, including leaders, know their obligations and to ensure everyone not only feels safe, but actually is safe. 

Investing in the positive duty is a smart investment for businesses because strengthening workplace culture will improve recruitment, retention and organisational performance. 

Prabha Nandagopal, human rights lawyer and founder of Elevate Consulting Partners, previously worked as a senior lawyer with the Australian Human Rights Commission. Elevate Consulting Partners is a multi-disciplinary consultancy that provides tailored services to help businesses promote positive social change.