The Positive Duty: What Employers Must Actually Do to Prevent Sexual Harassment

The positive duty is a legal obligation on every Australian employer and person conducting a business or undertaking (PCBU) to take reasonable and proportionate measures to eliminate, as far as possible, workplace sexual harassment, sex discrimination, sex-based harassment, hostile workplace environments, and related victimisation. It was inserted into the Sex Discrimination Act 1984 (Cth) as a new section 47C by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, which implemented a key recommendation of the Australian Human Rights Commission's 2020 Respect@Work report.

The duty took effect on 12 December 2022. The critical word is positive. The old model was reactive — an employer dealt with harassment after a complaint landed, and could often defend a claim by pointing to a policy it had on file. The positive duty flips that. Employers must now actively prevent the conduct from happening in the first place. Doing nothing until something goes wrong is, by itself, a breach.

The duty applies regardless of business size. A sole trader with one casual and a 5,000-person enterprise both hold it. What is 'reasonable and proportionate' scales with the size, resources, and circumstances of the organisation — but the obligation itself does not switch off for small business.

The positive duty covers conduct that is connected to work, not just conduct that happens at a desk between 9 and 5. That includes work-related travel, conferences, work social events, and online channels such as email, messaging apps, and video calls. It also extends beyond the direct employer–employee relationship: the duty captures conduct involving contractors, work experience students, volunteers, and interactions with third parties such as customers and clients.

The categories of conduct the employer must work to eliminate, set out in section 47C of the Sex Discrimination Act, are: sexual harassment in connection with work; sex-based harassment; conduct that subjects a person to a workplace environment that is hostile on the ground of sex; sex discrimination; and victimisation of a person who makes or supports a complaint. An employer cannot satisfy the duty by addressing one of these and ignoring the rest.

The duty is principle-based — the Act says 'reasonable and proportionate' but does not list a checklist. To fill that gap, the Australian Human Rights Commission published its Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) in August 2023, built around 7 standards. The Commission expects organisations to work through all seven. They are:

1. Leadership. Senior leaders understand their obligations, are accountable, and ensure prevention and response measures are developed, recorded in writing, communicated to workers, and actually implemented.
2. Culture. The organisation fosters a culture that is safe, respectful, and inclusive, and that empowers workers to report unlawful conduct.
3. Knowledge. The organisation develops, communicates, and implements a policy on respectful behaviour, and supports workers to understand expected standards through training.
4. Risk management. The organisation treats sexual harassment and the other unlawful conduct as health and safety risks — identifying them, assessing them, and putting controls in place — not only as individual behavioural issues.
5. Support. Appropriate support is available to workers who experience or witness the unlawful conduct, whether or not they make a formal report.
6. Reporting and response. There are accessible ways to report, and a consistent, trauma-informed, confidential process for responding to reports and disclosures.
7. Monitoring, evaluation and transparency. The organisation collects data, monitors the effectiveness of its measures, and is transparent with workers about what it is doing and how well it is working.

The Commission also frames the work around four guiding principles — consultation, person-centred and trauma-informed approaches, intersectionality, and the recognition that prevention and response work alongside each other. The seven standards are the practical end-to-end framework employers can tailor to their workforce.

The single biggest practical shift for employers is Standard 4. The positive duty treats sexual harassment as a workplace hazard to be managed, in the same way as a chemical, a height, or a machine guard. This dovetails with separate model work health and safety obligations — Safe Work Australia's psychosocial hazards provisions already require PCBUs to manage risks to psychological health, and sexual harassment is one of those risks.

In practice that means proactively identifying where the risk is highest. Risk factors the Commission and WHS regulators point to include power imbalances, gender imbalance in teams, workforces with many young or insecure workers, isolated or remote work, late-night work, customer-facing roles, and alcohol at work events. Once identified, the employer must put controls in place and review them — not wait for a complaint to reveal the problem. An employer that has never assessed its sexual harassment risk is very unlikely to be meeting the positive duty.

For the first 12 months the positive duty had no dedicated regulator with teeth. That changed on 12 December 2023, when the Australian Human Rights Commission's compliance and enforcement functions commenced (the one-year delay was built into the Respect at Work Act to give organisations time to prepare).

From that date the Commission can:

• Inquire into compliance where it reasonably suspects an organisation is not meeting the positive duty — and it can do so without the organisation's consent, and without needing an individual complaint first.
• Compel information and documents, and require people to give evidence, as part of an inquiry.
• Issue a compliance notice specifying what the organisation must do, or stop doing, to address non-compliance.
• Enter into an enforceable undertaking with the organisation, under which it commits to specified actions.
• Apply to the federal courts for an order directing compliance with a compliance notice where the organisation does not comply.

A suspicion of non-compliance can be triggered by information from regulators, unions or worker representatives, affected individuals, or media reporting. This is a meaningful change: an organisation can now be examined on its prevention systems even if no one has lodged a harassment complaint against it.

It is worth being precise about what the positive duty does and does not do, because it is easy to overstate. The AHRC's positive-duty enforcement powers are regulatory — compliance notices, enforceable undertakings, and court orders to comply. A breach of the positive duty does not, of itself, create a new fine or a damages payout to a worker; the Commission's enforcement route is directed at fixing the organisation's systems.

That sits alongside the existing complaint pathway, which is unchanged: an individual who experiences sexual harassment can still make a complaint to the AHRC and, if it is not conciliated, take the matter to the Federal Court or Federal Circuit and Family Court, where compensation can be awarded. The Respect at Work reforms also expanded that pathway — for example, the conduct now expressly captures sex-based harassment and hostile workplace environments, and unions and representative bodies can bring claims on behalf of affected workers. So an employer faces two distinct exposures: a regulatory inquiry into its prevention systems, and individual or representative claims arising from specific incidents.

Standard 6 (reporting and response) is where the positive duty collides with a separate, fast-moving reform: restrictions on non-disclosure agreements (NDAs) in sexual harassment matters. For years, NDAs were used as the default term in harassment settlements, silencing the person who made the complaint and, critics argued, allowing repeat conduct to stay hidden.

Victoria has moved first. The Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025 (Vic) received Royal Assent on 2 December 2025. It restricts the use of NDAs so that they cannot be imposed as the default in workplace sexual harassment settlements — an NDA covering the worker's experience can generally only be used where the affected worker specifically requests it, and the worker retains the right to talk about their experience. Victoria is the first Australian jurisdiction to legislate this. Its provisions take effect by default on 1 November 2026 (unless proclaimed earlier), so this is now a near-term compliance date for Victorian employers.

The two reforms point the same way. An employer relying on blanket NDAs to make complaints disappear is working against Standard 6 — and, in Victoria, against the law. Employers should review settlement templates now: stop treating an NDA as automatic, draft confidentiality terms that the affected worker can decline, and make sure the response process supports the worker rather than silencing them. Our NDA ban tracker covers commencement timing, and the NDA enforceability checker helps work out whether a specific clause is likely to bind.

You do not need a consulting budget to make a serious start. Working through the 7 standards, the priorities for most organisations are:

• Get leadership on the record. Have senior leaders document, in writing, the organisation's commitment and the measures in place. The Commission expects measures to be written down — not assumed.
• Have a real policy, and train on it. A respectful-behaviour policy that defines the conduct, the standards, and the consequences — communicated to every worker, not filed away.
• Run a risk assessment. Identify where your sexual harassment risk is highest (power imbalances, young or insecure workers, late-night or isolated work, alcohol at events) and put controls in place. Treat it as a psychosocial WHS hazard.
• Make reporting genuinely accessible. Provide more than one reporting channel, keep the process confidential and trauma-informed, and ensure people who report are not victimised.
• Provide support. Make support available to anyone who experiences or witnesses the conduct, regardless of whether they lodge a formal complaint.
• Measure and review. Collect data, check whether the measures are working, and be transparent with workers.
• Fix your settlement templates. Move away from default NDAs — essential in Victoria from 1 November 2026, and good practice everywhere.

If you are a worker rather than an employer and you have experienced harassment, our incident log helps you keep a contemporaneous record, the harassment compensation estimator gives a sense of likely ranges, and the discrimination complaint letter builder helps you raise it formally. This article is general information, not legal advice — for a specific situation, speak to a lawyer, your union, or a community legal centre.