Stay Updated with HR Legislation in Australia

What is Positive Duty? 

Positive Duty legislation in Australia refers to legal obligations that require organisations and individuals to actively take steps to prevent and address issues like discrimination, harassment, and victimisation, rather than just responding when they occur. This is a shift from the traditional "reactive" model of the law, where action is typically taken after harm or wrong doing has already occurred. Instead, **Positive Duty** requires proactive and preventative action.

Here are some key points regarding Positive Duty legislation in Australia:

1. Sex Discrimination Act (1984) – Positive Duty for Employers
The Sex Discrimination Act 1984 was amended in 2021 to include a Positive Duty for employers to prevent sexual harassment in the workplace.

 

• Employers are now required to take proactive steps to prevent sexual harassment, discrimination, and other forms of unlawful behaviour, rather than just responding when complaints arise.
• This includes conducting risk assessments, implementing policies and training programs, and taking action when issues are identified.
• The aim is to foster safer, more respectful work environments by making employers more accountable for the culture within their workplaces.

 

2. Workplace Gender Equality Act (2012)
Under this Act, the Workplace Gender Equality Agency (WGEA) monitors compliance with gender equality requirements. Employers are obligated to report on specific gender equality indicators, and while the Act itself doesn’t impose a direct “Positive Duty,” it encourages proactive measures to close gender gaps.

It supports organisations to move beyond compliance and foster a culture of gender equality in the workplace.

 

3. Disability Discrimination Act (1992)
Under the Disability Discrimination Act, organisations are required to take proactive steps to ensure people with disabilities can access goods, services, employment, and education without discrimination. This includes making reasonable adjustments or providing support.

4. Anti-Discrimination Legislation 

Various state and territory anti-discrimination laws impose Positive Duty obligations on employers, service providers, and public authorities to prevent discrimination, harassment, and vilification based on attributes such as race, gender, sexual orientation, and disability.

5. Human Rights and Equal Opportunity Commission (HREOC) Guidelines
In practice, the Australian Human Rights Commission (AHRC) has issued guidelines on the Positive Duty, emphasising the need for organisations to embed non-discrimination practices into their operations. This includes providing training, assessing risks, and taking reasonable steps to prevent harm before it occurs.

Key Features of Positive Duty:

• Proactive Measures: Organisations must actively prevent discrimination, harassment, and other forms of harmful behaviour, rather than just responding to complaints
• Risk Assessment: A requirement to assess and mitigate risks related to discrimination or harassment.
• Reasonable Steps: Legal obligations to take reasonable steps to prevent or eliminate discrimination.
• Accountability: Organisations and individuals are held accountable for creating and maintaining inclusive, respectful environments.

The goal of Positive Duty legislation is to shift the focus from merely responding to complaints to creating a culture of respect, safety, and equality, by addressing issues before they escalate.