The landing of the first federal discrimination positive duty: what does this mean for the legal profession?

Somali Cerise and Prabha Nandagopal

08.02.2022

On 28 November 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 was passed by Federal Parliament, heralding a new era for gender equality and the prevention of sexual harassment in Australian workplaces. The key reform introduced by the bill is the highly anticipated positive duty for employers to eliminate discriminatory conduct under the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act). The positive duty was the cornerstone recommendation in the Australian Human Rights Commission’s Respect@Work Report and will shift the burden away from individuals taking remedial action, instead putting the onus on employers to prioritise early intervention and prevention. Sex Discrimination Commissioner, Kate Jenkins considers that ‘the positive duty and the employers being focused on this will be the single most revolutionary change that will impact sexual harassment’.

Legal work environments are not immune to the issues identified in the Respect@Work Report and effectively preventing and responding to sexual harassment in the legal profession in Australia is urgent. A 2019 report by the International Bar Association found almost 30%of Australian respondents to the global survey of 7000 lawyers reported they had been sexually harassed at work.In Victoria, 61% of women and 12% of men in the legal profession reported experiencing sexual harassment while working in a legal workplace. Several high profile cases of sexual harassment have also led to a ‘tsunami of conversations’ and disclosures of sexual harassment in the profession. As well as calls for greater accountability and action, there is now an acknowledgement that sexual harassment is not an inevitable part of working life, but indeed preventable. 

In this context, this post discusses the key elements of the new positive duty and provides practical guidance to members of the legal profession on best practice compliance approaches.

New positive duty under the Sex Discrimination Act

The new positive duty is set out in s 47C of the Sex Discrimination Act. Section 47C provides that an employer or person conducting a business or undertaking (PCBU) (the duty holder) must take reasonable and proportionate measures to eliminate as far as possible sex discrimination, sexual harassment, sex-based harassment, hostile workplace environments and victimisation. The language of this positive duty is based on the positive duty in subsection 15(2) of the Victorian Equal Opportunity Act 2010.

It is important to note that the positive duty under the Sex Discrimination Act extends to protecting employees and workers from unlawful discrimination perpetrated by third parties, such as members of the public and clients. Importantly, the protections under the Act also apply to Commonwealth employees, including public servants, members of parliament and their staff and judicial officers.

The positive duty applies to all employers and PCBUs regardless of size or resources, and without exemptions. When assessing compliance with the positive duty, however, s 47C(6) sets out the matters to be taken in account by a decision-maker:

(a) the size, nature and circumstances of the duty holder’s business or undertaking;

(b) the duty holder’s resources, whether financial or otherwise;

(c) the practicability and the cost of steps to eliminate conduct covered by subsection (2) or (4);

(d) any other relevant matter

This framework allows micro or smaller businesses, volunteer organisations, for example, to be held to a standard proportionate to their means.

This positive duty is intended to enhance the proactive and preventive measures already required of employers under the vicarious liability provision in the Sex Discrimination Act. Section 106 provides that an employer is vicariously liable for sexual harassment perpetrated by an employee or agent. An employer is not liable, however, for the unlawful conduct of their employees or agents if they have taken ‘all reasonable steps’ to prevent their employees from engaging in the conduct.

Interaction with the WHS positive duty

The most debated issue surrounding the introduction of a positive duty under the Sex Discrimination Act was the potential duplication of the existing positive duty to eliminate sexual harassment under work, health and safety (WHS) regulations.

The Model WHS laws, which form the basis of the WHS Acts implemented in most State and Territories in Australia do not expressly prohibit sexual harassment. Rather, they impose a positive duty on employers to eliminate or minimise hazards and risks to a worker’s health, which includes psychological health. Workplace sexual harassment can cause both psychological and physical harm, making it a risk to health and safety.Earlier this year, the model WHS laws were amended to clarify employers' and PCBUs' obligations with respect to psychosocial hazards in the workplace. Safe Work Australia has also issued a new model Code of Practice on managing psychosocial hazards at work, which explains the laws and how to comply with them, and also includes practical steps to manage workplace risks to psychological health.

While there is overlap between the positive duties contained within the WHS model laws and the new positive duty in the Sex Discrimination Act, it is important to understand the different lens through which they operate. 

As it relates to sexual harassment, the WHS duty focuses broadly on psychological heath and frames sexual harassment as a safety risk and hazard. However, solely relying on this duty will be limited as sexual harassment is a not only a work health and safety issue, but also a form of discrimination, inequality and gender-based violence, deeply rooted in gender inequality. Permissive cultures which devalue and demean women, where everyday sexism is present, or where woman are not viewed as equal workplace participants for men, are conducive contexts for sexual harassment. The WHS system has traditionally focussed on physical risks and has only recently starting to examine issues of psycho-social safety more comprehensively. This system is not geared for addressing discriminatory behaviours and gender norms deeply entrenched in our social structures and systems.

In contrast, the newly introduced positive duty in the Sex Discrimination Act operates more broadly within a human rights framework designed to promote gender equality. As a result, conduct such as sex discrimination and sex-based discrimination may be unlawful under the Sex Discrimination Act even if it does not pose a specific risk to health and safety. The positive duty under the Sex Discrimination Act is also broader, extending beyond sexual harassment to include sex discrimination, sex-based discrimination and victimisation.

The Respect@work inquiry thoroughly considered both regimes and intended ‘with these differing but complementary approaches, the two positive duties would work in a mutually reinforcing way’.

Enforcement of the positive duty

Consistent with the recommendations of the Respect@Work Report, the Australian Human Rights Commission Act 1986 (Cth) has been amended to enable the Australian Human Rights Commission (the Commission) to monitor and assess compliance with the positive duty. These functions will only commence 12 months after the bill receives Royal Assent, in order to provide organisations sufficient time to implement measures to comply with the positive duty. The suite of enforcement mechanisms conferred to the Australian Human Rights Commission includes the power to:

• conduct inquiries into a person’s compliance with the positive duty and provide recommendations to achieve compliance;

• give a compliance notice specifying the action that a person must take, or refrain from taking, to address their non-compliance;

• apply to the federal courts for an order to direct compliance with the compliance notice; and

• enter into enforceable undertakings in accordance with the Regulatory Powers Act.

The Commission has also been provided with a broad function to inquire into systemic unlawful discrimination unlawful discrimination. Such inquiries may initially focus on organisations, industries or sectors of concern.

Meeting positive duty obligations

Legal work environments often possess characteristics that increase the risk of sexual harassment such as rigid hierarchies, power disparities and leaders with unquestioned authority. Under-representation of women and diverse groups in leadership roles in the profession also remains a key challenge.

In recent years the legal profession has been increasingly proactive in its commitment to eliminating sexual harassment in the workplace. In December 2021, the Law Council of Australia issued the National Model Framework Addressing Sexual Harassment for the Australian Legal Profession. Another example is the NSW Office of the Legal Services Commissioner  (OLSC) which offers several options ways to report inappropriate professional or personal conduct about legal practitioners. This includes an Inquiry Line that provides initial assistance to those considering making a report against a legal practitioner. Informal disclosures and formal reports can      be made via an online portal, email or letter, with the option of anonymity.  

The legal profession should build on this momentum to take proactive steps to be ready for compliance with the new positive duty. In the past the prevailing view has been that a lack of complaints means there is no problem to be addressed. The Australian Human Rights Commission’s fifth national survey on workplace sexual harassment found that reporting of incidents remains low. Fewer than one in 5 people (18%) who experienced workplace sexual harassment in the last 5 years made a formal report or complaint about the harassment. Of those who did make a report or complaint, one quarter said it resulted in no consequences for the harasser.

The new positive duty requires a significant shift in mindset and approach. A policy and once-off training is not sufficient to prevent sexual harassment and advance gender equality. A more comprehensive and pro-active approach to creating a safe, equal and respectful culture includes taking actions to:

• Establish sexual harassment as a core leadership issue, with leaders clearly setting expectations and role modelling safe and respectful behaviour

• Proactively understand the nature and extent of sexual harassment in the workplace beyond complaints through employee surveys and reviews that can identify hot spots

• Build skills and knowledge through evidence-based programs to increase understanding of sexual harassment and its impacts and empower individuals to intervene early to stop issues escalating

• Establishing trauma informed and people centred reporting and response processes that create a safe reporting environment to create better outcomes for individuals and organisations

• A focus on transparency around outcomes and actions taken to help the organisation learn and build confidence in reporting and systems

• Promoting gender equality, diversity and inclusion including achieving diverse representation in leadership, closing pay gaps and addressing everyday sexism.

The Australian Human Rights Commission has a statutory function of preparing and publishing guidelines for complying with the positive duty and it is expected this material will be produced shortly. There is, however, nothing stopping the profession from getting ahead of the curve now with the actions articulated above.  

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Somali Cerise is a gender equality and human rights expert with 20 years’ experience leading significant policy and research initiatives across Australia and globally

Prabha Nandagopal is a leading human rights and discrimination lawyer with over 16 years of broad experience across Government, NGOs, United Nations and private legal practice.  

Suggested citation: Somali Cerise and Prabha Nandagopal, ‘The landing of the first federal discrimination positive duty: what does this mean for the legal profession?' on AUSPUBLAW (8 February 2023)<https://auspublaw.org/blog/2023/2/the-landing-of-the-first-federal-discrimination-positive-duty-what-does-this-mean-for-the-legal-profession>