The Commonwealth positive duty on sexual harassment

The duty, whole

“(1) An employer or a person conducting a business or undertaking (the duty holder) must take reasonable and proportionate measures to eliminate, as far as possible: (a) conduct covered by subsection (2) by persons covered by subsection (3); and (b) conduct covered by subsection (4).”

Sex Discrimination Act 1984 (Cth), s 47C(1)

The words that carry the weight are “reasonable and proportionate” and “as far as possible”. The duty is to act ahead of time: the Commission describes it as shifting responsibility to organisations and businesses to eliminate this conduct actively, “rather than waiting until after an incident occurs.”

What conduct, and whose

Subsection (2) covers four kinds of conduct: sex discrimination made unlawful by the Act’s provisions on employment, commission agents, contract workers and partnerships; “sexual harassment, or harassment on the ground of sex, that is unlawful under section 28B”; conduct unlawful under section 28M, which the Act labels “hostile workplace environments”; and related acts of victimisation.

Subsection (3) says whose conduct that is: the duty holder itself, an employer’s employees, the workers in a business or undertaking, and the duty holder’s agents. Subsection (4) reaches further, under the Act’s heading “Other conduct towards employees and workers by any person”: sexual harassment or harassment on the ground of sex of the duty holder’s employees or workers that is unlawful under subsection 28B(6) or (8), conduct unlawful under section 28M in the workplaces where they work, and related victimisation against them.

The Commission sums up the behaviour in plain terms as sex discrimination, sexual harassment, sexist behaviour and related victimisation.

Where a manager stands in this

The duty sits with the duty holder: the employer, or the person conducting the business or undertaking. A manager who is an employee appears in the section twice over. Their own conduct is among the conduct the employer must work to eliminate, because subsection (3) covers the duty holder’s employees. And the people they manage are among those subsection (5) protects from conduct by anyone at all.

Victimisation is in the list for a reason a manager will recognise: subsection (2)(d) covers “acts of victimisation (within the meaning of section 47A) that relate to complaints, proceedings, assertions or allegations” about the other conduct in the list. So the way a person who raised a complaint is treated afterwards falls inside the duty.

How compliance is measured

The Act lists the matters taken into account in deciding whether a duty holder has complied:

“(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 measures to eliminate conduct covered by subsection (2) or (4); (d) any other relevant matter.”

Sex Discrimination Act 1984 (Cth), s 47C(6)

The Commission expects every organisation and business to have measures addressing each of the seven Standards in section 5.2 of its Guidelines, tailored to its own circumstances. And subsection (7) keeps work health and safety duties intact: the section “does not limit, or otherwise affect” a duty under the Work Health and Safety Act 2011 or a state or territory work health and safety law.

Where it came from, and who enforces it

The Commission describes the duty as a key recommendation of the 2020 Respect@Work: Sexual Harassment National Inquiry Report. The Commission says that inquiry found workplace sexual harassment still widespread, and that workers often didn’t report it because they felt unsafe or unsupported. Section 47C itself was added to the Act by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, No. 85 of 2022, assented to on 12 December 2022.

The Commission has the power to enforce compliance with it. The Act’s own outline of this Part says that Part II, Division 4A of the Australian Human Rights Commission Act 1986 gives the Commission’s President functions for the duty, “including inquiring into compliance, giving compliance notices and accepting undertakings.” Anyone can raise a concern about an organisation or business not complying through the Commission’s online Positive Duty Form.

Side by side with Victoria’s duty

A manager in Melbourne can work under both. They overlap on sexual harassment but are not the same duty, and each has its own regulator and standards.

The two positive duties, each row from the regulator’s or the Act’s own words

	Commonwealth (Sex Discrimination Act)	Victoria (Equal Opportunity Act)
Who carries it	Employers and persons conducting a business or undertaking with obligations under the Act	A person with a duty under Part 4, 6 or 7 of the Equal Opportunity Act not to engage in discrimination, sexual harassment or victimisation (s 15(1))
What it targets	Sex discrimination, sexual harassment, sexist behaviour and related victimisation	Discrimination, sexual harassment and victimisation
Standards	Seven Standards, section 5.2 of the Commission’s Guidelines	Five minimum standards, updated November 2024
Regulator	Australian Human Rights Commission	Victorian Equal Opportunity and Human Rights Commission

For Victoria’s side in full, with its five standards quoted, see Victoria’s positive duty. The Victorian standards also name performance review processes as one place where leaders can role model respectful behaviour; managing performance is the subject of the underperformance guide.