The Positive Duty under the Sex Discrimination Act

November 10th, 2023

The Positive Duty under the Sex Discrimination Act

Most organisations and businesses now have a legal obligation – or ‘positive duty’ – to eliminate certain unlawful behaviours involving work, workplaces or working relationships – including sex discrimination, sexual harassment and victimisation.

The Australian Human Rights Commission has released free and accessible resources to help you understand the positive duty and how it might affect your business. They have also established the Respect@Work Information Service to help individuals, employers and organisations to better understand their rights and responsibilities under the positive duty.

Resources on the Positive Duty

Under the Sex Discrimination Act, organisations and businesses now have a positive duty 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 Commission refers to this conduct as ‘relevant unlawful conduct’.

The new positive duty was introduced in December 2022. It imposes a legal obligation on organisations and businesses to take proactive and meaningful action to prevent relevant unlawful conduct from occurring in the workplace or in connection to work. Taking preventative action will help to create safe, respectful and inclusive workplaces.

This important change requires organisations and businesses to shift their focus to actively preventing workplace sexual harassment, sex discrimination and other relevant unlawful conduct, rather than responding only after it occurs.

Regardless of their size or resources, all organisations and businesses in Australia that have obligations under the Sex Discrimination Act must meet the positive duty. This includes sole traders and the self-employed, small, medium and large businesses, and government.

The positive duty was a key recommendation of the Commission’s landmark Respect@Work Report, led by former Sex Discrimination Commissioner Kate Jenkins AO, published in March 2020.

The Commission has new powers to investigate and enforce compliance with the positive duty. These powers will commence on the 12th of December 2023.

The Commission has developed practical guidance materials to help organisations and businesses to understand their responsibilities and the changes they may need to make to meet these new legal obligations.