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Sex Discrimination Act
The Sex Discrimination Act 1984 is vital for promoting gender equality and combating discrimination in public life. In November 2022, significant reforms enhanced protections against workplace sexual harassment. A necessary modification was the addition of the “positive duty.” On December 12, 2023, the “Guidelines for Complying with the Positive Duty under the Sex Discrimination Act […]
Sex Discrimination Act
The Sex Discrimination Act 1984 is vital for promoting gender equality and combating discrimination in public life. In November 2022, significant reforms enhanced protections against workplace sexual harassment. A necessary modification was the addition of the “positive duty.” On December 12, 2023, the “Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth)” were published, strengthening the already heavy obligation. Specifically, effective December 12, 2023, the Commission will have the power to ensure that the positive duty is followed, using these guidelines as a guide for evaluation.
What are the Newest Laws?
According to Section 47C of the Sex Discrimination Act 1984 (“the Act”), employers and persons conducting a business or undertaking (“PCBU”) are required to take appropriate measures to eliminate relevant unlawful conduct as much as is practical.
Accordingly, employers and PCBUs are now required to actively prevent unlawful sexual behaviour in the workplace rather than simply responding to such allegations.
Positive Duty
The positive duty imposes a legal obligation on employers or PCBUs to eradicate any pertinent unlawful conduct.
The primary objective of the positive duty is to prevent unlawful conduct from happening in the first place, thus requiring employers or PCBUs to go beyond mere responses to reports as they occur.
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Positive Duty to Stop Sexual Harassment at Work
Most remarkably, the Respect at Work Bill introduces a positive duty for employers to reasonably and proportionately handle discrimination, sexual harassment, and victimisation in the workplace as much as possible (Respect@Work Report recommendation 17).
Crucially, this duty applies universally to all employers, without exceptions. However, what constitutes “reasonable and proportionate” measures will vary based on the organisation’s nature, size, circumstances, available resources, and the practicality and cost of implementing the measures.
At the federal level, the Sex Discrimination Act does not require organisations to prevent workplace sexual harassment actively. Instead, an employer may incur vicarious liability for the sexual harassment misconduct of its employees or agents if it does not take “all reasonable steps” to prevent such behaviour. However, the issue of vicarious liability appears after sexual harassment has happened and an individual complaint has been lodged.
It shifts accountability from individuals making complaints to employers, who must continuously assess compliance and execute proactive and preventive steps.
Similarly, while Australia’s work health and safety (WHS) laws obligate persons conducting businesses or undertakings (PCBUs) to ensure worker health and safety to the extent reasonably practicable, this duty is enforceable solely by WHS regulators. A notable benefit of a positive duty under the Sex Discrimination Act will be the AHRC’s ability to approach sexual harassment analyses with greater sensitivity to trauma, assessing broader systemic and structural factors contributing to workplace harassment culture as part of its investigation.
The AHRC’s Authority and its Enforcement of the Positive Duty
The AHRC has the authority to:
- Conduct inquiries into an organisation’s compliance with the positive duty, even without explicit consent, and offer recommendations for achieving compliance. This means organisations can be held accountable even without formal complaints from the AHRC.
- Issue compliance notices that outline actions an organisation must take or refrain from taking to rectify non-compliance.
- Seek court orders to enforce compliance with a compliance notice.
- Negotiate enforceable undertakings with organisations wherein they agree to specific actions or refrain from certain behaviours.
- Compel the submission of information or documents and examine witnesses.
Suppose the AHRC contacts an employer or PCBU or receives a compliance notice for alleged non-compliance. In that case, it is advisable to take appropriate action. In case of receiving a court order, seeking independent legal counsel is recommended.
Law Reforms
| Legislation | Changes |
| The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 came into force on December 7, 2022. | The amendments to Part 3-5A of the Fair Work Act 2009 (Cth) presented: – Explicitly forbidding sexual harassment in contact with work. – Holding employers liable for sexual harassment unless they can prove they’ve taken all reasonable steps to stop it. – Permitting employees to apply to the Fair Work Commission for a stop sexual harassment order. |
| The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) came into effect on December 12, 2022. | The Respect at Work Act introduced amendments to the SD Act, which: – A proactive obligation to take reasonable measures to end workplace sexual harassment is imposed on employers and individuals operating a business or undertaking. – Lowered the threshold for identifying sex-based harassment. Additionally, the Respect at Work Act amended the Australian Human Rights Commission Act 1986 (Cth), including: – Granting the AHRC additional duties and authority to oversee and evaluate adherence to the positive duty beginning in December 2023. – Providing the AHRC with inquiry powers to investigate and report on instances of unlawful discrimination. – Allowing a representative body to initiate court proceedings if it has filed a complaint with the AHRC on behalf of one or more individuals and the complaint remains unresolved at the AHRC. |
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Frequently Asked Questions.
What is the Sex Discrimination Act 1984?
The Sex Discrimination Act 1984 is an Australian law that prohibits discrimination based on sex, marital status, pregnancy, and potential pregnancy.
Has the Sex Discrimination Act of 1984 undergone any modifications?
According to Section 47C of the Sex Discrimination Act 1984 (“the Act”), employers and persons conducting a business or undertaking (“PCBU”) are required to take appropriate measures to eliminate relevant unlawful conduct as much as is practical.
This implies that employers and PCBUs are now obligated to actively prevent unlawful sexual conduct in the workplace rather than merely reacting to allegations of such behaviour.
When will the changes to the Sex Discrimination Act 1984 come into effect?
The changes to the Sex Discrimination Act 1984 will become effective once the amending Act receives royal assent.
Who will be affected by the changes to the Sex Discrimination Act 1984?
Employers and service providers must make sure that their policies and practices comply with the amended laws to prevent discrimination based on intersex status, gender identity, or sexual orientation.
What should employers and service providers do to ensure compliance with the updated legislation?
To make sure they don’t discriminate against people based on their intersex status, gender identity, or sexual orientation, employers and service providers need to review their policies and procedures. Additionally, they must ensure that their staff members receive appropriate training and stay informed about legal changes.
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