Sexual harassment law in Australia has undergone a fundamental shift in recent years. Since 12 December 2023, employers are no longer judged solely on how they respond once a complaint is made. Instead, under the Respect@Work reforms, all employers now have a positive duty to take proactive and reasonable steps to prevent sexual harassment, sex discrimination, hostile workplace environments, and victimisation before they occur.

This change represents one of the most significant workplace compliance developments in recent years, and it has far-reaching implications for corporate governance, HR practices, and leadership accountability.

What is the “positive duty”?

The positive duty is contained in section 47C of the Sex Discrimination Act 1984 (Cth), as amended by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022. It requires employers and persons conducting a business or undertaking (PCBUs) to take reasonable and proportionate measures to eliminate, as far as possible:

• sexual harassment
• sex-based harassment
• sex discrimination
• hostile workplace environments on the grounds of sex, and
• victimisation.

Crucially, compliance is not achieved by having a policy and waiting until a complaint is lodged. The duty is ongoing and preventative in nature. Employers must be able to demonstrate that they have actively identified risks and implemented controls to address them.

Enforcement powers for the AHRC

The Australian Human Rights Commission (AHRC) has enforcement powers under Part IIB of the Sex Discrimination Act. These powers materially change the risk profile for employers.

The AHRC can now:

• initiate investigations on its own motion (without an individual complaint)
• require employers to produce information and documents
• issue compliance notices requiring specific corrective action
• enter into enforceable undertakings, and
• commence Federal Court proceedings for serious or systemic non-compliance.

This marks a shift from a purely complaints-based model to a regulator-led compliance regime, similar to work health and safety enforcement. Organisational culture, leadership conduct, and prevention frameworks are now squarely within regulatory focus.

What does compliance actually look like?

In response to widespread uncertainty, the AHRC has published detailed guidance, including its “Guidelines for Complying with the Positive Duty”. These guidelines make clear that compliance is contextual — what is “reasonable” will depend on factors such as the size of the organisation, industry, workforce composition, and known risk factors.

However, there are several consistent expectations across all workplaces.

First, leadership accountability is critical. Boards, partners, directors and senior executives are expected to actively lead cultural change, model respectful behaviour, and allocate resources to prevention measures. Sexual harassment prevention is no longer a purely HR issue.

Second, employers are expected to conduct risk assessments to identify where and how harassment risks arise. This includes considering power imbalances, gender composition, remote or isolated work, customer-facing roles, alcohol-related events, and complaint handling weaknesses. This aligns closely with psychosocial hazard obligations under work health and safety legislation.

Third, policies and procedures must be contemporary, accessible, and practically implemented. This means updating sexual harassment and discrimination policies to reflect the positive duty, clearly explaining behavioural expectations, and ensuring complaint pathways are safe, confidential and trauma-informed.

Fourth, training must be meaningful, not tokenistic. One-off online modules are unlikely to be sufficient on their own. The AHRC guidance expressly refers to tailored training for leaders, managers and staff, with refresher programs and scenario-based learning.

Finally, employers must regularly monitor, review and improve their measures. This includes analysing complaint trends, reviewing survey data, testing reporting systems, and adjusting controls where gaps are identified.

State-based considerations

While the positive duty is a federal obligation, employers must also consider overlapping state and territory regimes. For example:

• In Queensland, New South Wales and Victoria, sexual harassment is recognised as a psychosocial hazard under work health and safety laws, triggering additional duties to identify, assess and control risk.
• State anti-discrimination legislation may also impose parallel obligations and remedies.

A failure to address sexual harassment proactively can therefore expose employers to multiple regulatory pathways, including AHRC enforcement, WHS prosecutions, discrimination claims, and workers’ compensation exposure for psychological injury.

Final thoughts

The positive duty fundamentally reframes sexual harassment compliance. The question is no longer “How did we respond to the complaint?” but rather “What did we do to prevent this from happening at all?”

For employers and HR consultants, now is the time to audit existing frameworks, test whether prevention measures are genuinely effective, and ensure leadership capability matches the new legal standard. In this regulatory environment, prevention is no longer best practice — it is a legal requirement.

How Winter Workplace Consulting Can Help

Navigating the new positive duty requires more than updated policies — it demands a structured, legally sound and practical approach to prevention, culture and leadership accountability.

At Winter Workplace Consulting, I work with employers, boards and HR teams to translate the positive duty into clear, workable systems that stand up to regulatory scrutiny. This includes:

• auditing existing policies, training programs and reporting mechanisms against the AHRC’s Positive Duty Guidelines
• conducting tailored sexual harassment and psychosocial risk assessments aligned with WHS obligations
• delivering practical, scenario-based training for leaders and managers on prevention, early intervention and lawful response
• reviewing and redesigning complaint handling frameworks to ensure they are safe, trauma-informed and procedurally fair
• supporting organisations through AHRC enquiries, compliance notices and remediation programs.

If you would like assistance reviewing your current arrangements or building a compliant, prevention-focused framework, please get in touch. Early, proactive action is the most effective way to protect your people — and your organisation.