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Positive duty to eliminate unlawful acts

Oct 31, 2023


  • 2min

Positive duty to eliminate unlawful acts

Industry News, Legislative Changes
man in check suit jacket corners a woman in a green shirt against a glass wall. She is uncomfortable with her arms crossed.
Since the revised Sex Discrimination Act came into effect at the end of 2022, employers have a positive duty to eliminate unlawful acts. The unlawful acts includes discrimination on the grounds of sex in a work context, sexual harassment in connection with work, sex-based harassment in connection with work, and conduct creating a workplace environment that is hostile on the grounds of sex and related acts of victimisation. 

The goal of these changes is to help create safe, respectful, and inclusive workplaces for all. There is now a legal obligation placed on organisations and businesses to take proactive and preventative steps to stop unlawful conduct from occurring in the workplace or in connection to work.  

woman sits at an desk with her phone, laptop and diary. A male colleague is standing over her shoulders, with one hand resting on her shoulder.
Businesses and organisations must be proactively eliminating unlawful acts in the workplace.
The changes effect organisations and businesses across Australia, regardless of their size or industry. The major difference is on prevention, instead of addressing it only after an incident has occurred.  

From December 2023, the Australian Human Rights Commission (AHRC) will have new powers to investigate and enforce the positive duty.  

Respect@Work outlines the wide range of different behaviours that are considered to be sexual harassment, including:  

  • inappropriate physical contact 
  • intrusive questions about a person’s private life or physical appearance 
  • sharing or threatening to share intimate images or video without consent 
  • images or videos that are sexually suggestive or that constitute a sexual advance 
  • unwelcome touching, hugging, cornering or kissing 
  • repeated or inappropriate invitations to go out on dates 
  • sexually suggestive comments or jokes that offend or intimidate 
  • requests or pressure for sex or other sexual acts 
  • sexually explicit gifts, images, videos, cartoons, drawings, photographs, or jokes. 
  • actual or attempted rape or sexual assault 
  • following or watching someone inappropriately, or someone loitering inappropriately, either in person or via technology 
  • sexually explicit comments made in person or in writing, or indecent messages (SMS, social media), phone calls or emails—including the use of emojis with sexual connotations 
  • sexual gestures, indecent exposure or inappropriate display of the body 
  • technology-facilitated unwelcome conduct of a sexual nature—including on virtual meetings 
  • inappropriate staring or leering 
  • repeated or inappropriate advances on email or other online social technologies. 
The AHRC has published comprehensive guidelines to help businesses to understand what positive duty is, who must meet the positive duty, how positive duty will be enforced and other related legal obligations. 

They also have a Resource for Small Businesses on the Positive Duty to help small businesses to satisfy their obligations to prevent sexual harassment in the workplace.  

If you feel unsafe now, please call 000. For a full list of support services, visit AHRC Support Services.

If you are in NSW and need support, you can call Domestic Violence Line Department of Community Services: 1800 656 463 (24 hours)

In Victoria you can contact Sexual Assault Crisis Line Crisis Line: 1800 806 292 (free call).

If you need to implement workplace policy to ensure you are complying with legislation, or if you have a workplace related question, please contact our team of HR experts on 1800 868 254. Total HRM can help you create or adapt your existing policies.

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