For decades, the way Australia dealt with workplace sexual harassment followed a familiar pattern. Someone experienced something awful. They gathered the courage to complain. Then the system kicked into gear — reactive, slow, and often retraumatising for the person who spoke up.
That model has officially flipped.
Since the introduction of the positive duty under the Sex Discrimination Act 1984, the responsibility no longer sits squarely on the shoulders of the person harmed. It now sits with employers. And as we move through 2026, the expectation isn't just that you respond to problems — it's that you actively work to stop them before they ever happen.
If you run a business, manage a team, or sit on a board in Australia, this article breaks down what the positive duty actually means, what regulators expect, and the practical steps you should be taking right now.
What Is the Positive Duty?
The positive duty is a legal obligation that requires employers and persons conducting a business or undertaking (PCBUs) to take reasonable and proportionate measures to eliminate certain unlawful conduct as far as possible.
It came into effect following recommendations from the landmark Respect@Work report, led by former Sex Discrimination Commissioner Kate Jenkins. The report exposed just how widespread sexual harassment had become — and how poorly traditional complaint-based systems served people who were affected.
The conduct the positive duty aims to prevent includes:
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Sexual harassment and sex-based harassment
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Sex discrimination and conduct creating a hostile work environment on the ground of sex
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Related victimisation
You can read the official framework directly from the Australian Human Rights Commission, which oversees compliance and provides detailed guidance.
The key word here is proactive. You can't simply wait for a complaint to land on your desk. You're expected to anticipate risks and act to remove them — the same way you'd manage a physical safety hazard on a worksite.
Why This Shift Matters
Think about how workplace safety evolved. We don't wait for someone to fall off scaffolding before installing guardrails. We assess the risk, put controls in place, and prevent the injury.
The positive duty applies that exact logic to sexual harassment and sex-based discrimination. It treats psychological and sexual safety as something you design into your workplace, not something you bolt on after harm occurs.
This is a cultural reset as much as a legal one. According to industry reports, a significant proportion of harassment incidents in Australian workplaces never get formally reported, often because employees fear retaliation, disbelief, or career damage. A reactive system simply never sees most of what happens.
The positive duty acknowledges that reality and demands a different approach.
Who Does the Positive Duty Apply To?
In short: almost everyone running an organisation in Australia.
The duty applies to all employers and PCBUs regardless of size — from a corner café with three staff to a national enterprise with thousands. The difference lies in what counts as "reasonable and proportionate" for your situation.
A small business won't be expected to have the same compliance infrastructure as a major bank. But every organisation is expected to do something meaningful and appropriate to its size, resources, and risk profile.
Factors that influence what's reasonable include:
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The size, nature, and circumstances of your business
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Your available resources
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The practicability and cost of specific measures
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Whether you operate in a higher-risk environment
So a mining company with remote fly-in-fly-out camps will need stronger, more tailored controls than a small suburban accounting firm. Both, however, must act.
The Seven Standards Employers Should Know
The Australian Human Rights Commission outlined seven standards that guide how organisations can meet the positive duty. These aren't bureaucratic box-ticking — they're the practical pillars of compliance.
1. Leadership
Senior leaders must understand their obligations and visibly champion safe, respectful workplaces. Culture flows downhill. When leadership treats respect as optional, everyone else gets the message.
2. Culture
You need a workplace culture that is safe, respectful, and inclusive — one that genuinely empowers people to speak up without fear.
3. Knowledge
Everyone in the organisation should understand what is expected of them. That means clear policies, communicated in plain language people actually read and understand.
4. Risk Management
Treat sexual harassment as a health and safety risk. Identify hazards, assess them, and put controls in place. This connects directly to your obligations under work health and safety law, overseen by bodies like Safe Work Australia.
5. Support
Provide accessible, appropriate support to anyone affected — whether or not they make a formal report.
6. Reporting and Response
Build reporting options that are clear, trusted, and consistent. People need confidence that speaking up leads to fair, timely action.
7. Monitoring, Evaluation and Transparency
Collect data, review what's working, and adjust. Compliance isn't a one-off project — it's ongoing.
What's Changed Heading Into 2026
The positive duty isn't brand new, but the regulatory teeth behind it have grown sharper.
The Australian Human Rights Commission now holds enforcement powers. This means the Commission can investigate organisations it reasonably suspects are not complying, issue compliance notices, and enter into enforceable undertakings. In serious cases, matters can be escalated to the courts.
By 2026, the expectation is no longer "are you aware of the positive duty?" but "can you demonstrate what you've actually done about it?" Regulators want evidence — documented risk assessments, training records, updated policies, and proof that leadership is engaged.
The honeymoon period of awareness-building is over. Demonstrable action is now the benchmark.
A Real-World Scenario
Consider a mid-sized hospitality group operating several venues. Historically, late-night shifts, alcohol, and a high-pressure environment created conditions where inappropriate comments and unwanted advances were brushed off as "part of the industry."
Under the old reactive model, management only got involved when a formal complaint was lodged — which rarely happened, because staff feared losing shifts or being labelled difficult.
Now, applying the positive duty, that same group might:
Conduct an anonymous staff survey to understand where risks actually sit. Redesign rosters so junior staff aren't isolated late at night. Train shift supervisors to recognise and step into problematic situations. Create a confidential reporting channel that doesn't run through the very managers who might be part of the problem.
None of these steps wait for harm to occur. That's the entire point.
The Bystander Factor
One of the most powerful — and underused — tools available to employers is the people who witness inappropriate behaviour.
Most workplace incidents happen in front of others. Yet onlookers frequently stay silent, unsure whether to intervene, worried about getting it wrong, or assuming someone else will act. Psychologists call this the bystander effect.
Equipping your team to safely and constructively step in transforms your culture from passive to protective. When people know that colleagues will say something, would-be perpetrators think twice, and those affected feel genuinely supported.
This is exactly why dedicated programs matter.
Ready to build a safer, more respectful workplace? Our Workplace Sexual Harassment & Bystander Intervention training gives your team the practical skills and confidence to recognise, respond to, and prevent harmful behaviour — turning your positive duty obligations into everyday action. Empower your people today.
How to Meet Your Positive Duty: A Practical Roadmap
Knowing the law is one thing. Operationalising it is another. Here's a grounded, step-by-step approach any organisation can adapt.
Start With an Honest Risk Assessment
You can't manage what you haven't measured. Look at where, when, and how harassment risks arise in your specific environment. Consider factors like power imbalances, isolated work, customer-facing roles, alcohol, and after-hours events.
Document what you find. This documentation becomes evidence of good faith if a regulator ever comes knocking.
Review and Refresh Your Policies
Dust off your sexual harassment policy. Is it clear? Does it explain what behaviour is unacceptable, how to report it, and what happens next? Does it cover work-related events, online conduct, and third parties like clients and contractors?
Policies written in dense legal language that nobody reads don't protect anyone. Rewrite them in plain English.
Train Everyone — Properly
Generic, once-a-year e-learning rarely shifts behaviour. Invest in training that's interactive, role-relevant, and revisited regularly. Make sure leaders, managers, and frontline staff all understand their specific responsibilities.
Bystander intervention training, in particular, gives people permission and practical tools to act.
Make Reporting Safe and Simple
Offer multiple ways to report, including options that bypass direct managers. Confidentiality, fairness, and freedom from victimisation are non-negotiable. If people don't trust the process, they won't use it.
You can find practical complaint-handling guidance through the Fair Work Ombudsman, which deals with many workplace conduct issues.
Support Affected People — Regardless of a Formal Complaint
Support shouldn't be conditional on someone lodging paperwork. Provide access to counselling, employee assistance programs, and clear pathways to help. Sometimes people just want the behaviour to stop, not a formal investigation.
Monitor, Review, Repeat
Set up a rhythm of review. Track reports, analyse trends, survey staff, and adjust your controls. Treat your prevention efforts as a living system, not a finished document.
The Connection to Work Health and Safety
A crucial point many employers miss: the positive duty doesn't stand alone.
Sexual harassment is increasingly recognised as a psychosocial hazard under work health and safety legislation. That means your obligations overlap. The same incident could expose you under both anti-discrimination law and WHS law.
This dual exposure raises the stakes considerably. It also means your prevention strategy should be integrated — not siloed in HR, but woven into your broader safety management system.
For more on managing psychosocial hazards, Safe Work Australia provides detailed model codes of practice.
Lessons From Around the World
Australia isn't operating in isolation. Globally, the conversation has shifted firmly toward prevention.
In the United Kingdom, employers now carry a proactive duty to take reasonable steps to prevent sexual harassment, reflecting a similar philosophy to Australia's reforms. You can explore the UK approach through the Equality and Human Rights Commission.
Internationally, the International Labour Organization's Convention on violence and harassment in the world of work — known as C190 — has set a global standard recognising everyone's right to a workplace free from violence and harassment. Details are available via the International Labour Organization.
The direction of travel everywhere is the same: prevention over reaction, systems over silence.
Diagram: The Old Model vs the Positive Duty
REACTIVE MODEL POSITIVE DUTY MODEL
─────────────── ─────────────────────
Harm occurs Assess risks
↓ ↓
Victim complains Put controls in place
↓ ↓
Investigation Train & support staff
↓ ↓
Possible action Monitor & improve
↓ ↓
(Often too late) Prevent harm before it starts
The contrast couldn't be clearer. One waits for damage. The other works to stop it.
Common Mistakes Employers Make
Even well-intentioned organisations stumble. A few recurring missteps worth avoiding:
Treating it as a tick-box exercise. Uploading a policy to your intranet and calling it done won't satisfy the positive duty. Regulators look for genuine, demonstrable effort.
Forgetting about third parties. Harassment by clients, customers, or contractors still counts. Your duty extends to protecting staff from external parties, not just internal ones.
Ignoring online and remote spaces. With hybrid work the norm, harassment now happens over messaging apps, video calls, and email. Your prevention strategy must cover digital conduct.
Leaving leaders untrained. If your executives don't model respectful behaviour, nothing else will hold. Culture is set at the top.
The Business Case Beyond Compliance
It's tempting to view all this as a legal burden. But organisations that get it right see real benefits.
Workplaces with strong respect cultures tend to retain talent, attract better candidates, and avoid the enormous hidden costs of turnover, absenteeism, lost productivity, and reputational damage. According to industry reports, the financial cost of workplace sexual harassment to the Australian economy runs into the billions when you account for lost work and staff replacement.
Doing the right thing and the smart thing happen to align here. A workplace where people feel safe is also one where they do their best work.
Putting It All Together
The positive duty represents one of the most significant shifts in Australian workplace law in a generation. It moves the burden of prevention from individuals to organisations, and it demands action rather than reaction.
As 2026 unfolds, the question every employer should be asking isn't "are we compliant on paper?" but "could we genuinely demonstrate what we've done to prevent harm?"
Start with honest reflection. Assess your risks. Update your policies. Train your people — especially in bystander intervention. Build trusted reporting channels. And keep reviewing, because culture is never finished.
The organisations that thrive won't be the ones who did the bare minimum. They'll be the ones who understood that a safe, respectful workplace isn't a legal hurdle — it's a foundation everything else is built on.
