The Sexual Harassment Positive Duty: Why Reactive Compliance Is Failing

In December 2023, Australia underwent a fundamental shift in how sexual harassment must be managed in workplaces. The introduction of the Positive Duty under the Sex Discrimination Act moved Australian businesses from reactive complaint-handling to proactive prevention, requiring employers to eliminate sexual harassment, sex discrimination, and victimization before they occur.

This wasn't a minor regulatory update. It was a wholesale transformation imposing comprehensive obligations on all Australian employers, from two-person startups to multinational corporations, backed by Australian Human Rights Commission (AHRC) enforcement powers, Fair Work Act prohibitions, and work health and safety psychosocial hazard duties that operate in parallel.

The stakes are substantial:

• One in three Australian workers experienced sexual harassment in the past five years (AHRC 2022)
• Fewer than one in five formally report it, and of those who do, about 25% saw no consequences for the harasser
• 32% of employers reporting to WGEA don't offer an anonymous way to disclose sexual harassment (WGEA, 2024)
• Average payouts for psychological injury claims, driven mainly by harassment, bullying and work pressure, rose from $32,769 in 2019 to $42,335 in 2023 (Allianz)
• Active psychological claims rose 47.5% between 2019 and 2023 (Allianz)

Yet despite two years of Positive Duty obligations being active, most Australian businesses are struggling to comply. The AHRC's seven-standard framework requires continuous, proactive monitoring, data collection, risk assessment, pattern detection, evidence management, and transparent reporting. Traditional, manual approaches using disconnected HR systems, spreadsheets, and annual surveys struggle to meet these requirements.

The Positive Duty Revolution: From Reactive to Proactive

Before December 2023, Australian sexual harassment law was reactive. Employers addressed complaints after incidents occurred. There was no legal obligation to prevent sexual harassment from happening in the first place. The Positive Duty fundamentally changed this.

What the Positive Duty Requires

Under Section 47C of the Sex Discrimination Act, Australian employers must take reasonable and proportionate measures to eliminate the following unlawful behaviors as far as possible:

• Sexual harassment in connection with work
• Sex discrimination in work contexts
• Sex-based harassment
• Conduct creating a hostile work environment on the basis of sex
• Victimization of individuals who report concerns or participate in complaints

Critically, the Positive Duty is proactive. Organizations must act before harassment occurs, identifying systemic risks, implementing controls, monitoring effectiveness, and continuously improving prevention measures. Waiting for complaints to surface, then responding reactively, does not satisfy the Positive Duty.

The AHRC, granted new investigation and enforcement powers in December 2023, has made clear that paper compliance (having policies and training programs without evidence of effectiveness) will not be accepted. Organizations must demonstrate through data and outcomes that their prevention measures are working.

Three Overlapping Legal Frameworks

The Positive Duty doesn't operate in isolation. Australian employers now face three separate but overlapping legal frameworks for sexual harassment:

1. Sex Discrimination Act – Positive Duty (AHRC enforcement). Requires proactive measures to eliminate sexual harassment and sex discrimination. The AHRC can investigate compliance, issue compliance notices, and pursue enforcement action for failures.
2. Fair Work Act – Sexual Harassment Prohibition (Fair Work Ombudsman/Commission). Since March 2023, the Fair Work Act explicitly prohibits sexual harassment in connection with work. The Fair Work Commission can issue stop sexual harassment orders and, in some cases, award compensation.
3. Work Health and Safety Acts – Psychosocial Hazards (State regulators). Sexual harassment is a recognized psychosocial hazard under WHS legislation. In South Australia, Victoria, and other states adopting the Model Code, sexual harassment must be managed through systematic risk identification, assessment, control, and monitoring.

For Australian businesses, particularly those operating across multiple states, this creates complex, overlapping obligations. A single sexual harassment incident can trigger investigations from three different regulators simultaneously.

The Seven Standards

The AHRC's Positive Duty framework establishes seven standards that Australian organizations must meet through reasonable and proportionate measures:

Standard 1: Leadership

Senior leaders must understand the Positive Duty, know what conduct is unlawful, ensure appropriate measures are taken, role model respectful behavior, and set standards for inclusion and equality.

Standard 2: Culture

Develop and maintain a respectful, safe, and inclusive culture. Ensure workers feel safe raising concerns. Address power imbalances and systemic issues contributing to sexual harassment.

Standard 3: Knowledge

Ensure all workers understand their rights and responsibilities regarding sexual harassment. Provide regular, tailored training. Make information easily accessible.

Standard 4: Risk Management

Conduct contemporaneous risk assessments. Identify specific circumstances that increase sexual harassment risk. Implement targeted control measures. Review effectiveness regularly.

Standard 5: Support

Provide accessible, confidential support for workers who experience or witness sexual harassment. Ensure support services are trauma-informed and culturally appropriate.

Standard 6: Reporting and Response

Establish multiple reporting channels. Ensure confidentiality and protection from victimization. Conduct fair, timely investigations. Take appropriate action when sexual harassment is found.

Standard 7: Monitoring, Evaluation, and Transparency

Regularly monitor sexual harassment prevalence and reporting patterns. Evaluate control effectiveness. Report publicly on actions taken. Adjust measures based on outcomes.

Meeting all seven standards on an ongoing basis, using manual, disconnected systems, is a genuine and substantial undertaking for any organisation, not a one-off compliance exercise.

Why Traditional Reactive Systems Are Failing

Despite two years of Positive Duty obligations being active, most Australian businesses struggle to achieve genuine prevention. The problem isn't lack of intent, it's that traditional, reactive systems were never designed for proactive compliance.

Massive under-reporting masks the true risk profile

The AHRC's 2022 survey found that fewer than one in five workers who experience sexual harassment report it formally. WGEA's 2024 data shows 32% of the employers that report to it don't offer an anonymous way to disclose sexual harassment. Why the under-reporting? Fear of reprisal, concern about career implications, belief that nothing will change, stigma, power imbalances. When sexual harassment incidents do surface through formal complaints or workers' compensation claims, the harm is typically entrenched and difficult to remediate.

Disconnected systems prevent pattern detection

Sexual harassment risk indicators live across multiple disconnected platforms: anonymous hotline reports (if they exist), formal HR complaints, workers' compensation claims, exit interview feedback, employee surveys, turnover data. Manually cross-referencing all of these, every time, to spot a pattern involving the same manager or department is not realistic for most organisations, by the time a correlation becomes visible through manual review, serious harm has often already occurred.

Manual evidence management struggles to demonstrate proactive measures

The AHRC requires organizations to demonstrate proactive measures through data and outcomes: evidence of regular risk assessments, data on prevalence and reporting trends, documentation of controls, proof of effectiveness monitoring, and evidence that reporting leads to meaningful action. Producing this efficiently from scattered emails, spreadsheets, and disconnected systems is a real, ongoing burden, and it shows when an AHRC investigation actually requests the evidence.

The Financial and Legal Consequences of Non-Compliance

Direct Costs of Harassment and Psychological Injury Claims

• Average psychological injury claim payout: $42,335 in 2023, up from $32,769 in 2019 (Allianz)
• 47.5% rise in active psychological claims between 2019 and 2023 (Allianz)
• Average time off: 81 days for mental health claims

For a South Australian business, workers' compensation premiums are experience-rated. Multiple sexual harassment psychological injury claims drive substantial premium increases.

AHRC Enforcement Powers

Since December 2023, the AHRC has powers to investigate compliance, issue compliance notices requiring specific actions, publish findings about non-compliance, and potentially seek civil penalties for repeated failures (pending legislative reform). The AHRC's ‘Speaking from Experience’ report (June 2025) recommended introducing financial penalties for Positive Duty non-compliance, indicating future enforcement will intensify.

Director and Officer Liability

Under Australian corporate law, directors and officers have duties to ensure organizational compliance with statutory obligations, including the Positive Duty. Failure to implement reasonable and proportionate measures exposes directors to personal liability if non-compliance results from failure to exercise due diligence, potential penalties under WHS legislation if sexual harassment causes serious harm, and reputational damage from AHRC public reporting. Directors cannot delegate Positive Duty compliance to HR and assume their obligations are satisfied.

Indirect Costs: Turnover, Reputation, Culture

Beyond direct costs: talent exodus (high performers who experience harassment resign rather than complain), recruitment costs, reputational damage from public findings, cultural decay, and legal fees defending claims and investigations. For many Australian businesses, these indirect costs exceed the direct workers' compensation claim expenses.

How Salus Supports Positive Duty Compliance

Guided reporting supports Standard 6 (Reporting and Response)

An employee raising a concern about sexual harassment or inappropriate behaviour is guided through compiling a clear report by an AI-led conversation, never a form, anonymous or identified, informed by the relevant legislation and the organisation's own policy. Lowering the friction of reporting is designed to directly address the underreporting problem described above.

Obligation mapping supports Standards 4 and 6

The moment a report is received, the responsible person is shown exactly what they're required to do for that report type, sourced from legislation and policy, relevant to both risk management and response obligations.

Evidentiary logging supports Standard 7 (Monitoring, Evaluation, and Transparency)

Every action taken on a report is timestamped and individually signed, building the documented record the AHRC looks for when assessing whether an organisation's prevention measures are genuinely working, not just documented.

Policy gap analysis supports Standard 4 (Risk Management)

Existing policies are assessed against current legislation to surface gaps proactively, rather than discovering them during an AHRC inquiry.

Standards 1 (Leadership), 3 (Knowledge/training), and 5 (Support/EAP) depend on genuine leadership behaviour, training content, and support services that sit outside what a reporting and case-management platform provides, worth being upfront about rather than implying otherwise.

Conclusion: Prevention Requires More Than Policy

The Positive Duty transformed Australian sexual harassment law from reactive complaint-handling to proactive prevention. For the first time, organizations must eliminate sexual harassment before it occurs, demonstrating through data and outcomes that prevention measures are working.

The consequences of non-compliance are real: average psychological injury claim payouts of $42,335 (Allianz, 2023), a 47.5% rise in active psychological claims since 2019, AHRC enforcement action, director liability, and cultural and reputational damage.