Home | Member Updates | Sex Discrimination Act positive duty enforcement powers commence

Summary: From 12 December 2023, the Australian Human Rights Commission (AHRC) enforces new obligations under the Sex Discrimination Act 1984 to eliminate sexual harassment and sex-based discrimination in the workplace. This includes a positive duty for organisations to prevent such behaviours, extending to all employees, agents, and even third parties. The AHRC provides resources, including a Quick Guide, outlining Standards and Guiding Principles for compliance. Their enforcement approach prioritises voluntary cooperation, with stronger measures like compliance notices if necessary. For more information, AHEIA’s legal or workplace relations staff are available for consultation.

Positive duty

The introduction of the positive duty was a key recommendation of the Respect@Work Report, published in 2020. The SDA was amended in 2022 to include a positive duty on organisations and businesses to eliminate, as far as possible, the following unlawful behaviour from occurring:

• discrimination on the grounds of sex in a work context
• sexual harassment in connection with work 
• sex-based harassment in connection with work 
• conduct creating a workplace environment that is hostile on the grounds of sex 
• related acts of victimisation. 

The duty extends beyond employers, to include their employees and agents.  The duty is also owed to third parties including customers and clients. 

During 2023, the AHRC published a range of resources to assist organisations and businesses to understand the positive duty and what is required to meet the new obligations, including A Quick Guide for Complying with the Positive Duty (Quick Guide). 

Standards and guiding principles

The AHRC expects all relevant organisations and businesses to have measures in place to address seven Standards, which are:

• leadership
• culture
• knowledge
• risk management 
• support 
• reporting and response 
• monitoring, evaluation and transparency. 

The Quick Guide provides extensive information on how to comply with the Standards, as well as information on four Guiding Principles that should underpin their implementation, being: 

• consultation 
• gender equality 
• intersectionality 
• person-centred and trauma informed. 

The positive duty requires organisations and businesses to take steps that are ‘’reasonable and proportionate’’ to eliminate the unlawful conduct and implement the Standards. What is considered "reasonable and proportionate’’ will vary according to the size, nature and resources of the undertaking, the practicability and cost of the measures, and any other relevant matter. 

Compliance and enforcement policy

The AHRC has published a Compliance and Enforcement Policy which sets out its powers, and approach. The AHRC may begin an inquiry if it ‘’reasonably suspects’’ that the positive duty is not being complied with. If the AHRC identifies any areas of non-compliance, it may first offer to work with the business or organisation on a voluntary basis (where appropriate) to support them to meet their legal obligations. If this is not successful, the AHRC has the power to:

• issue compliance notices specifying action that must be taken, or not taken, to address any non-compliance 
• apply to federal courts for an order to direct compliance with a compliance notice 
• enter into enforceable undertakings with the organisation or business whereby they agree to do, or refrain from doing, certain things. 

If you would like further information, please contact a member of AHEIA’s legal or workplace relations staff.