Frequently Asked Questions - FAQs

​What else can you tell me about Positive Duty?

Positive Duty is a legal obligation requiring employers and persons conducting a business or undertaking (PCBUs) to take proactive, reasonable, and proportionate measures to eliminate unlawful behaviours before they occur. Rather than waiting for a complaint to be lodged, duty holders must actively prevent discrimination, harassment, and related harms in the workplace.

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What federal laws establish Positive Duty across Australia?

At the national level, Positive Duty is established under section 47C of the Sex Discrimination Act 1984 (Commonwealth), introduced following the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Commonwealth), which passed federal parliament on 28 November 2022. The Australian Human Rights Commission was granted statutory powers to investigate and enforce compliance starting on 12 December 2023.

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How does the Positive Duty law in the Northern Territory differ from federal law?

The Northern Territory introduced its own Positive Duty through amendments to the Northern Territory Anti-Discrimination Act 1992, effective from 2 January 2024, with full enforcement commencing on 6 January 2025. NT law is significantly broader than federal provisions:

• Federal focus: Targets sex discrimination, sexual harassment, sex-based harassment, conduct creating a hostile workplace environment on the ground of sex, and related victimisation.

• NT focus: Applies across all 24 protected attributes (including race, language, disability, age, religious belief, and gender identity) across seven designated areas of public life, including work, education, goods, services, and accommodation.​​​​​​​​​​

 

Who is required to comply with Positive Duty?

The obligation applies to all employers and PCBUs regardless of operational size or financial resources. This includes:

• Sole traders and self-employed people

• Small, medium, and large businesses

• Public and private corporations

• Not-for-profit organisations and associations that engage paid staff

• Government departments, agencies, and local councils

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What specific behaviours must organisations eliminate?

Under federal and NT legislation, duty holders must take proactive action against:

• Direct and indirect discrimination

• Sexual harassment

• Demeaning sex-based harassment

• Hostile working environments

• Unlawful victimisation of any person asserting their rights or assisting in a report

• Unlawful workplace bullying and psychosocial hazards under complementary Work Health and Safety (WHS) laws

 

Are businesses responsible for the actions of customers, clients, or third parties?

Yes. Positive Duty requires organisations to implement reasonable control measures to prevent and respond to unlawful conduct perpetrated by third parties—such as customers, patrons, suppliers, clients, and patients—towards workers. It also covers improper conduct by workers directed at third parties during work operations.

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What does reasonable and proportionate measures mean in practice?

Compliance is assessed objectively based on specific factors relevant to the entity:

• Size, operational nature, and business circumstances

• Financial and operational resources, including access to dedicated human resources or legal capabilities

• Practicability and cost of proposed control measures

• Relevant industry risk factors, working patterns, and workplace dynamics

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What are the seven Standards required by the Australian Human Rights Commission?

The Australian Human Rights Commission expects organisations to satisfy seven interrelated standards in terms of Positive Duty:

• Leadership: Leaders actively understand obligations, model respectful conduct, and implement prevention plans.

• Culture: Fostering an inclusive, safe, and accountable workplace.

• Knowledge: Implementing comprehensive written policies and delivering ongoing education.

• Risk management: Treating unlawful conduct as both an equality risk and a WHS psychosocial hazard.

• Support: Offering confidential, trauma-informed support to workers regardless of whether a formal report is submitted.

• Reporting and response: Establishing clear, safe, and transparent reporting channels with proportionate consequences.

• Monitoring, evaluation, and transparency: Collecting de-identified data to continuously assess and improve systems.

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How do Positive Duty laws interact with Work Health and Safety (WHS) obligations?

Positive Duty operates alongside the Work Health and Safety Act (National Uniform Legislation) in the Northern Territory and national model WHS regulations. Harassment, bullying, and hostile work environments are classified as psychosocial hazards. Businesses and organisations must proactively identify, assess, and control these risks to ensure physical and psychological safety so far as is reasonably practicable.

 

What are the legal risks and consequences of non-compliance?

Failure to comply exposes businesses to substantial legal, financial, and reputational liabilities:

• Regulatory action: The Australian Human Rights Commission can initiate formal inquiries, issue binding compliance notices, and seek federal court orders or enforceable undertakings. In the NT, the Anti-Discrimination Commission enforces territory-specific compliance.

• Vicarious liability: Under section 106 of the Sex Discrimination Act 1984 (Commonwealth), an employer can be held liable for unlawful acts committed by employees or agents unless the business can prove it took all reasonable preventative steps.

• Industrial and civil claims: Unresolved harassment and bullying claims can result in adverse actions via the Fair Work Commission or substantial civil compensation awards.

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Sector Specifics and Intersectionality

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Male-dominated Industries: What proactive steps must businesses take where gender imbalances are severe?

In environments with significant gender skew, unlawful conduct thrives when everyday sexism and exclusionary attitudes go unchallenged. Organisations must take active measures to balance recruitment, appoint diverse leadership, and eliminate demeaning sex-based comments or assumptions regarding capability. Leadership at all levels must visibly role model respectful language, implement bystander intervention training, and ensure transparent, proportionate disciplinary consequences regardless of an employee's technical skill, rank, or commercial value to the company.

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Mining: How does Positive Duty apply to fly-in fly-out (FIFO) arrangements and site villages?

Positive Duty extends beyond the physical mine pit or plant to encompass all work-related environments, including accommodation villages, mess halls, transit flights, and recreational facilities. Because mining operations frequently combine isolated living arrangements, heavy shift patterns, and alcohol access, duty holders must implement comprehensive physical and environmental safety controls. Practical measures include establishing secure, well-lit accommodation walkways, providing private amenities, strictly enforcing responsible service of alcohol policies, and guaranteeing confidential, 24/7 access to external support services and independent reporting lines.

 

Remote Operations: What specific controls are required when workers operate in isolation or across remote locations?

Remote operations present distinct psychosocial hazards due to physical isolation and limited immediate supervision. Employers must implement safe working protocols, such as pairing workers for high-risk offsite visits, establishing reliable communications equipment (including duress alarms and satellite phones), and scheduling regular welfare check-ins. Pre-departure briefings must outline clear boundaries, available support networks, and transparent reporting avenues so remote workers never feel isolated or unsupported.

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Construction: How can Positive Duty be satisfied on dynamic building sites with multiple subcontractors?

On construction sites, Positive Duty obligations are shared across principal contractors, head contractors, and individual subcontractors. Meeting the standards involves embedding behavioural expectations into site inductions, daily toolbox talks, and contractor engagement agreements. Management must eliminate hostile work environments, such as offensive banter, graffiti, or exclusionary conduct, and ensure that amenities such as change facilities and toilets offer genuine safety, security, and privacy for all workers.

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Hospitality: How are venues required to protect customer-facing staff from harassment by patrons?

The Positive Duty explicitly covers unlawful conduct perpetrated by third parties, including pub patrons, restaurant diners, and event guests. Hospitality businesses cannot rely on a mindset where the customer is always right. Control measures include displaying clear conditions of entry signage stating that disrespectful behaviour is prohibited, training supervisors to intervene early, supporting staff who refuse service to abusive individuals, and designing floor plans with high counters, clear lines of sight, and secure retreat areas for workers.

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Retail: What measures must retailers take to eliminate customer abuse and protect young or casual workers?

With customer-instigated sexual harassment representing a substantial risk in retail settings, businesses must actively adapt their operational systems. Effective controls include ending sole-person evening rostering in favour of paired shifts, providing staff duress buttons at checkout registers, and prohibiting workers from using personal mobile devices or private social media accounts to interact with customers. Clear escalation procedures must empower front-line workers to disengage from disrespectful customers without fear of negative performance reviews.

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Office Environments: How does the Positive Duty apply to corporate spaces, flexible arrangements, and digital interactions?

In professional and corporate environments, Positive Duty requires eliminating subtle forms of discrimination, hostile work cultures, and digital misconduct. Organisations must actively monitor online communication channels, virtual meeting chat streams, and work messaging platforms to prevent inappropriate jokes, memes, or after-hours messaging. Duty holders must also audit performance assessment systems and flexible working arrangements to ensure that workers with caring responsibilities or flexible hours are not disadvantaged in promotions or project allocations.

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Intersectionality: What is intersectionality, and why are certain workers disproportionately impacted by workplace misconduct?

Intersectionality recognises that individual workers possess multiple social identities—including race, cultural background, First Nations identity, gender, sexual orientation, disability status, age, and visa status—which intersect and compound one another.

Workplace misconduct is driven by overlapping structural power imbalances, meaning individuals belonging to multiple marginalised groups experience significantly higher rates of harm and face greater barriers to reporting:

• First Nations workers: Experience disproportionately higher rates of sexual harassment and racial discrimination due to systemic exclusion and historical disadvantage.

• Culturally and racially marginalised workers and visa holders: Often endure overlapping racial and sex-based discrimination, frequently compounded by insecure employment and fear of job loss or visa implications if they speak out.

• LGBTIQ+ employees: Face heightened exposure to hostile workplace environments, invasive personal questioning, and sexual harassment driven by rigid gender stereotypes.

• Workers with disability: Are statistically subject to increased rates of workplace harassment and power disparities.

• Young and casual workers: Experience significant vulnerability due to lower organizational power, reliance on shift allocations, and unfamiliarity with workplace rights.

Adopting an intersectional approach requires businesses to look beyond one-size-fits-all policies, consult directly with diverse workforce cohorts, and tailor support systems to account for compounded risks.​

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