'Positive duty' laws lack teeth without court action, warn lawyers
Requirements for companies to proactively prevent sexual harassment and sex discrimination are untested in the courts. Lawyers say that’s a problem.
In late 2023, two key developments reshaped enforcement efforts against sexual harassment. For the first time, “positive duty obligations” legally required companies to proactively prevent sexual harassment and sex discrimination — or risk enforcement action. Additionally, the Federal Court of Australia issued record damages in a workplace sexual harassment case.
The threat of enforcement and decisive court action sent a clear message to employers.
However, the Australian Human Rights Commission (AHRC) has yet to take any legal action since gaining positive duty enforcement powers. Secrecy provisions also prevent the watchdog from disclosing the companies it investigates.
As a new year begins, lawyers argue that legal action from the commission is the only way to create a meaningful deterrent for businesses.
