Sexual Harassment Law in Australia: A Brief History, The New Positive Duty and AHRC Enforcement Guidelines

6 February 2024
Latest Insights From Symmetra, Sexual Discrimination, Workplace

Legal and Cultural Shifts Towards a Safer Workplace Environment


The term “sexual harassment” was brought to light by journalist and feminist Lin Farley in 1975 during a hearing of the New York Human Rights Commission. As public awareness grew, laws prohibiting sexual harassment were passed in different jurisdictions, including Australia, culminating in the federal Sex Discrimination Act in 1984. Companies proceeded to institute compulsory training on sexual harassment and took steps to sharpen their grievance procedures, despite all of this, sexual harassment continues to be a pervasive issue in the workplace in Australia and globally.

Despite legislation, little progress has been made in reducing sexual harassment statistics. In 2017, Farley expressed disappointment in an article for The New York Times, stating that the term “sexual harassment” had lost its power to shock and incite change: “at first it felt as if the term had the potential to change everything… (but now)… it has been co-opted, sanitized, stripped of its power to shock, disturb and galvanize “.

The #MeToo movement, which originated in the US in 2017, has also had a significant impact in Australia, bringing attention to the issue of sexual harassment.

The Story in Australia

The Australian Human Rights Commission’s 2022 survey on workplace sexual harassment reveals alarming statistics – 77% of Australians have experienced sexual harassment, with 89% of women and 64% of men reporting incidents. However, only 17% of those who were harassed lodged a complaint.

only 17% of those who were harassed lodged a complaint.

The current system, which relies on a complaints-based approach, is ineffective. Complaints are time-consuming, expensive, and taxing for all parties involved, often leading to victims being further victimized. As a result, many employees (usually women) who experience sexual harassment choose to leave their jobs instead of lodging a complaint.

Moreover, the mandatory sexual harassment training programs implemented by companies have been proven to be ineffective and can even have negative consequences. Research spanning 30 years, conducted by Professors Dobbin and Kalev, has shown this to be the case. [Why Sexual Harassment Programs Backfire-HBR , May- June 2020]

Respect @ Work charts a New Course

The Respect@Work Commission was established in 2018 and concluded its work in 2020, recognizing the need for a new approach to address workplace issues. It suggested 55 recommendations. Most of these recommendations have already been implemented in the law.

These changes introduce the concept of the “employer’s positive duty” where employers and PCBUs (persons conducting a business or undertaking) are required to take reasonable and proportionate measures to eliminate unlawful behaviour, such as sex discrimination, sexual harassment, and victimization. This signals a shift to how employers must address these issues in their workplaces.

The Role Of The Australian Human Rights Commission (AHRC)

The Australian Human Rights Commission (AHRC) will play a key role in enforcing this new legislation, with powers to investigate and take measures against organizations that fail to meet the requirements. To help with the transition, the AHRC has released guidelines centered around consultation, gender equality, intersectionality, and a person-centered and trauma-informed approach. This puts the focus on the victims and their needs.

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Respect @ Work AHRC Guideline Standards

Companies and institutions are now bound by law to take resolute, transparent actions to eliminate the risk of sexual harassment in Australian workplaces. The Australian Human Rights Commission (AHRC) has recently introduced the “positive duty” legislation, which requires employers to take proactive measures and create a culture that discourages harassment. With this new regulation in place, organizations are now expected to meet seven standards set by the AHRC to curb sexual harassment.

These standards include promoting the importance of respectful and inclusive behavior among senior leaders and employees alike, fostering a workplace culture that values diversity and gender equality, educating employees on their rights and obligations in preventing harassment, recognizing and managing the risks associated with sexual harassment, providing adequate support to those who experience or witness such behavior, establishing effective reporting and response mechanisms, and collecting data to monitor and evaluate workplace culture and prevent future incidents.

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The implementation and execution of these standards will be assessed by the AHRC, and organizations must strive to meet them according to the size and nature of their operations. By taking a proactive and transparent approach to eliminate sexual harassment, organisations can not only prevent unlawful behavior but also create a more inclusive, respectful, and collaborative workplace that retains talented individuals who may otherwise leave due to such incidents.

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