Under new Australian laws, employers can no longer wait until after sexual harassment or discrimination occurs before taking action. Every Australian business — regardless of size or industry — now has a positive duty to proactively prevent unlawful workplace conduct. The Australian Human Rights Commission (AHRC) oversees compliance, and employers who fail to act face serious legal, financial and reputational consequences.
Why this matters now
Although the positive duty under the Sex Discrimination Act 1984 (Cth) took effect in December 2022, the AHRC’s enforcement powers only commenced on 12 December 2023. That means 2025 is the first full year of active compliance monitoring and enforcement.
In recent months, the Commission has:
- Begun targeted audits in high-risk sectors such as hospitality, health care, education and mining
- Released updated guidance and resources for employers to demonstrate compliance
- Indicated it will investigate organisations where systemic risks or failures are identified
At the same time, work health and safety regulators — including WorkSafe Victoria — are recognising sexual harassment as a psychosocial hazard. This alignment means employers could now face dual scrutiny from both the AHRC and WHS regulators if they fail to manage harassment risks effectively. In short, the grace period is over. 2025 is the year where employers must be able to show evidence of prevention, not just response.
What Is the Positive Duty?
The positive duty was introduced under the Sex Discrimination Act 1984 (Cth) following the Respect@Work reforms. It requires employers and organisations to take reasonable and proportionate measures to eliminate:
- Sexual harassment
- Sex-based harassment
- Discrimination on the grounds of sex
- Conduct creating hostile workplace environments on the grounds of sex
- Victimisation
This obligation is proactive, not reactive — meaning employers must identify and manage risks before misconduct happens.
From 12 December 2023, the AHRC gained new enforcement powers under the Human Rights Legislation Amendment (Protection of Costs) Act 2024. These powers include the ability to:
- Conduct inquiries and workplace audits
- Issue compliance notices
- Accept enforceable undertakings
- Apply to the Federal Court for orders against non-compliant organisations
The AHRC can now act on its own initiative where systemic risks are identified, even without a formal complaint.
Why it matters for employers
These laws represent a major cultural and legal shift in workplace governance. Employers who fail to meet their obligations risk:
- Financial penalties and court orders
- Public exposure through AHRC enforcement actions
- Insurance and reputational damage
- Employee claims and legal costs
Compliance is not optional — every employer must demonstrate that they have taken practical steps to prevent harassment and discrimination.
The seven standards for compliance
The AHRC’s Guidelines for Complying with the Positive Duty (2023) outline seven standards that form the national benchmark for compliance.
| Standard | What employers must do |
| 1. Leadership | Senior leaders must understand their obligations, champion respectful behaviour, and allocate resources for prevention. |
| 2. Culture | Promote inclusion and respect through policies, communication and role-modelling. Encourage early reporting and bystander action if disrespectful behaviour is witnessed. |
| 3. Knowledge | Train all staff on acceptable behaviour, reporting processes, and rights. Provide induction and refresher programs. |
| 4. Risk management | Identify and control risk areas — such as isolated work, power imbalances, events and social settings. |
| 5. Support | Offer accessible, trauma-informed support to anyone impacted. This includes counselling, referrals and confidentiality. |
| 6. Reporting and response | Provide multiple confidential reporting options. Handle complaints promptly and fairly. |
| 7. Monitoring, evaluation and transparency | Regularly review policies and track the effectiveness of prevention measures. |
What is considered to be “reasonable and proportionate” will depend on your business’ size, resources, industry and risk profile. However, every employer must be able to justify their approach with evidence — including policies, training records and consultation notes.
Applying the positive duty in Victoria and beyond
While the positive duty applies nationwide under the Sex Discrimination Act, employers must also consider how it interacts with state and territory workplace safety laws.
Victoria
In Victoria, the Occupational Health and Safety Act 2004 (Vic) requires employers to provide and maintain a working environment that is safe and without risks to health — including psychological health. WorkSafe Victoria recognises sexual harassment as a workplace hazard, which must be identified, assessed and controlled like any other risk.
Other jurisdictions
Each state and territory has similar Work Health and Safety (WHS) laws that impose duties to manage psychosocial hazards, including harassment and bullying. For example, in Queensland, businesses and employers must prepare and implement a sexual harassment prevention plan as a proactive method of preventing harassment.
Employers operating across multiple jurisdictions should ensure their compliance framework meets both federal discrimination laws and local WHS obligations. By aligning your Respect@Work obligations with relevant safety legislation, you can create a cohesive, defensible compliance system that applies across Australia.
Practical steps to get compliant
If your organisation hasn’t yet reviewed its policies and training, now is the time.
Here’s where to start:
- Conduct a workplace audit: Review your policies, training and culture against the AHRC’s seven standards.
- Update or create a prevention plan: Ensure your plan covers both federal obligations and the state or territory safety laws that apply to your operations.
- Deliver meaningful training: Provide scenario-based training that promotes respect, early intervention and bystander awareness.
- Strengthen leadership accountability: Make sure executives and managers understand their responsibilities and model compliant behaviour.
- Create multiple reporting options: Offer confidential, anonymous and external reporting channels where appropriate.
- Document your actions: Keep records of risk assessments, training attendance and consultation — these will be vital if the AHRC investigates.
- Review annually: Compliance is an ongoing process. Review and update your approach each year to ensure it remains effective and legally sound.
Why expert legal advice matters
Every workplace is different. Compliance with the positive duty must be tailored to your organisation’s size, structure, risk profile and culture. Generic templates or “DIY” solutions may overlook complex legal and governance issues, as well as risk factors specific to your business.
Engaging experienced employment lawyers ensures your frameworks, documentation and training are aligned with the Sex Discrimination Act, AHRC Guidelines, and relevant state or territory WHS laws — and defensible if challenged.
Key takeaways
- The positive duty applies to all employers under the Sex Discrimination Act 1984 (Cth).
- The AHRC can investigate and enforce compliance without a formal complaint.
- Employers must meet the seven compliance standards in the AHRC Guidelines.
- State and territory safety laws — including Victoria’s OHS Act 2004 — reinforce the duty to manage psychosocial risks.
- Legal advice is essential to create a proportionate, defensible compliance framework.
How MST Lawyers can help
MST Lawyers’ Employment Law team advises employers across Australia on their obligations under the Sex Discrimination Act and WHS laws.
Based in Victoria, our lawyers assist national and regional businesses with:
- Reviewing and updating workplace policies and compliance systems
- Conducting positive duty audits and risk assessments
- Delivering tailored training and governance workshops
- Advising on AHRC investigations and enforcement actions
To ensure your organisation meets its positive duty obligations, contact MST Lawyers today.
Send us an enquiry
+61 3 8540 0200
