The commencement of the Positive Duty on 12 December 2022, with the Australian Human Rights Commission (AHRC) enforcement powers beginning on 12 December 2023, marked a pivotal moment in Australian workplace law. As we move through 2025, now is the critical time for all Persons Conducting a Business or Undertaking (PCBUs) and employers to assess whether they are taking the reasonable and proportionate measures required to meet this ongoing legal obligation.

The Positive Duty: A Proactive and Systemic Obligation

The Positive Duty, introduced into the Sex Discrimination Act 1984 (Cth), requires employers and PCBUs to eliminate, as far as possible, ‘relevant unlawful conduct’ in connection with work. This includes:

• Sexual harassment in connection with work.
• Sex-based harassment in connection with work.
• Hostile work environments on the ground of sex.
• Victimisation related to making a complaint.

This is a systemic and preventative duty, shifting the focus from simply reacting to complaints (redress) to actively designing a safer workplace that eliminates these risks. Crucially, it applies to conduct by third parties (such as clients or customers) towards workers, recognising the PCBU’s role in protecting their staff from these risks.

Meeting this duty aligns with your core Work Health and Safety (WHS) obligations—sexual harassment is a recognised psychosocial hazard that must be managed. Compliance is an investment that fosters a respectful, inclusive, and ultimately, more productive workplace culture.

Compliance and Enforcement

The AHRC is empowered to monitor and assess compliance with the Positive Duty.

AHRC Enforcement Powers

The AHRC’s powers, active since December 2023, include:

• Conducting inquiries into compliance, even without a specific complaint.
• Issuing compliance notices, specifying actions a PCBU must take.
• Entering into enforceable undertakings with organisations.
• Applying to the Federal Courts for orders to direct compliance.

This framework moves beyond individual litigation and allows the AHRC to drive systemic change across organisations and industries. While the specific uplift in compensation seen in the original article’s jurisdiction does not apply here, Australian Courts continue to make significant compensation awards in successful sex discrimination and sexual harassment claims, reinforcing the serious financial and reputational risk of non-compliance.

The recent release of the Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 provides further, highly detailed guidance on applying WHS risk management principles (Identify, Assess, Control, Review) to these psychosocial hazards.

The Australian Action Plan: What Your Organisation Must Be Doing Now

Compliance with the Positive Duty is a continuous process, not a one-off project. The AHRC’s Guidelines for Complying with the Positive Duty emphasises the importance of a structured, evidence-based approach.

If you have not yet fully implemented your plan, or are unsure of its effectiveness, focus on these four critical steps:

1. Leadership and Culture

Demonstrate visible and consistent commitment from senior leaders. This sets the ‘tone from the top’ and creates a culture of trust and respect. This includes dedicating sufficient resources and ensuring policies and values are embedded in all business practices.

2. Risk Assessment and Control

This is the foundational step. You must:

• Identify Hazards: Actively identify where and how sexual harassment risks can arise in your specific workplace (e.g., remote work, social events, client interactions, power imbalances).
• Assess Risks: Determine the likelihood and severity of harm from these hazards.
• Implement Control Measures: Design and implement the most effective and reasonably practicable control measures to eliminate or minimise the risk (e.g., specific training, redesigned work processes, clear reporting channels).

3. Consultation and Capability

You must consult with your workers and their representatives at every step of the risk management process, as required under WHS laws. Furthermore:

• Provide regular, mandatory training for all staff and managers on the Positive Duty, respectful behaviour, and reporting procedures.
• Ensure your HR/management teams have the skills to conduct trauma-informed, fair, and timely investigations.

4. Review and Evaluation

Compliance is not static. You must regularly review and evaluate the effectiveness of all measures to ensure they remain “reasonable and proportionate” as your workforce and environment change. This means:

• Repeating your risk assessment annually or after any significant change.
• Seeking feedback from workers on the effectiveness of your controls and support mechanisms.

How to Prepare for the Future

The current focus is on embedding the existing duty. However, organisations should note that the national legal framework is consistently integrating and strengthening these protections, particularly regarding WHS requirements and psychosocial risk management. Proactively embedding a robust risk management cycle now is the best way to ensure your organisation is resilient, safe, and fully prepared for any future tightening of regulatory standards.