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

Errol PriceErrol Price, Legal Director at Symmetra Global, joins Legalwise to share Insights into the evolving workplace sexual harassment landscape, bringing context to the Sex Discrimination Act 1984 (Cth) amendments, and exploring how progress in this field can foster positive cultural changes. Price’s analysis of both the historical perspective and evolving duties required by employers, provides a clear reminder of the importance of the fundamental pillars, essential for eliminating sexual harassment from the Australian workplace.


Sexual Harassment in Review

The Term “sexual harassment” was popularized by journalist and feminist, Lin Farley in 1975 during a hearing of the New York Human Rights Commission. Public awareness was heightened and laws were passed during the 1970s and 80s in various jurisdictions prohibiting sexual harassment. In Australia it started with some States and then culminated with the passing of 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 in the workplace has remained a perennial and intractable problem in Australia, and across the globe.

After decades of little progress in the reduction of sexual harassment statistics, the same Lin Farley in a 2017 article in The N. Y. Times lamented that that the language around workplace harassment had over time been robbed of its force. She wrote: “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 next major stimulus has been the #MeToo movement which started in 2017 in the US and resounded globally. It has had significant impact in Australia as elsewhere.

The Story in Australia

Legislation, both at state and federal levels in Australia has had little appreciable effect on the alarming levels of workplace sexual harassment. The Australian human Rights Commission 2022 survey on workplace sexual harassment reflects once again some confronting statistics. 77% of Australians have experienced sexual harassment at some time in their lives-89% of women and 64% of men. About 1 in five persons have experienced sexual harassment in the last twelve months and 1 in three in the last five years.   Yet only 17% of those who said that they had been sexually harassed had lodged any kind of complaint.

The problems with the system which has existed for the past 50 years are well recognized.

  1. The laws which have been premised on a complaints-based system are largely unworkable. Grievances are time -consuming, expensive, extremely stressful for all concerned and expose complainants to victimization. Employees (mostly women) who are subjected to sexual harassment do not complain- they just leave.
  2. The type of compulsory training that have been put in place by companies in Australia, the USA and many other jurisdictions has been of little value and indeed is often counter-productive. This has been shown to be the case by robust meta- data research carried out by Professors Dobbin and Kalev examining over 30 years’ of data[Why Sexual Harassment Programs Backfire-HBR , May- June 2020]
Respect @ Work charts a New Course

The AHRC Respect@Work Commission which started its work in 2018 and finished in 2020 recognized that an entirely new approach to this issue is needed. Their report set out some 55 recommendation have now been accepted and will be reflected in changes to the law.

Amendments to the Sex Discrimination Act 1984 (Cth) and related legislation have introduced what is called the “employer’s positive duty “in relation to various types of unlawful behaviour. The legislation requires employers and persons conducting a business or undertaking (PCBUs) to “take reasonable and proportionate measures to eliminate unlawful conduct as far as possible”. The unlawful acts include sex discrimination, sexual harassment, sex-based harassment, hostile work environments and victimization.

A paradigm shift has resulted in the way the employers will be required to act in order to reduce instances of sexual harassment in their workplaces.

The Role Of The Australian Human Rights Commission (AHRC)

Since the passing of the legislation last year, employers have been given a year to prepare their organisations to meet the requirements of the new legislation. That year is up on 12th December 2023. From that date the Australian Human Rights Commission will have powers to investigate breaches of the new duty and to take measures against organisations deemed to be falling short. This will include the power to conduct investigations, compel the production of information and documentation and obtain orders from the federal courts to enforce compliance.

The AHRC has recently issued guidelines for administering the new legislation

The four overarching principles which inform the conceptual framework are:

  • Consultation;
  • Gender Equality;
  • Intersectionality; and
  • Person-centred and Trauma Informed.

Quite clearly, the conceptual focus is now upon the complainants or victims whose circumstances, interests and needs are paramount.

AHRC Guideline Standards

The actual implementation and execution of the positive duty will be assessed by the AHRC in accordance with seven standards. Employers now need to satisfy each one of the standards but obviously in a manner and to a degree that is relevant to the nature and size of their organization.

The standards are:

  • LEADERSHIP: senior leaders are expected to understand fully their obligations under the new dispensation to prevent sexual harassment. They should set clear markers for respectful and inclusive behaviour and model such behaviour themselves;
  • CULTURE: everyone in the workplace is expected to strive to create a culture that is respectful and inclusive and which values diversity and gender equity;
  • KNOWLEDGE: employees must educated about their rights and obligations under the new regime, including understanding the parameters of the law and their roles in maintaining a respectful workplace;
  • RISK MANAGEMENT: Organisations must recognize that sexual harassment poses a risk to the physical and psychological welfare of employees, both those who might be victims as well as bystanders and colleagues. A risk-based approach should be adopted to potential instances of sexual harassment.
  • SUPPORT: businesses should have structures in place to give full and continuing support to workers who experience or who witness relevant unlawful conduct.
  • REPORTING AND RESPONSE: Organisations must ensure that there are appropriate avenues for reporting and responding to instances of unlawful conduct. Responses must be consistent and not unduly delayed.
  • MONITORING, EVALUATION AND TRANSPARENCY: Organisations must collect data to understand the nature and extent of unlawful workplace behaviour and use it to assess and improve workplace culture.

Legislating the “positive duty” to eliminate sexual harassment from Australian workplaces marks an entirely new chapter in meeting this challenge. Organisations and their leaders should welcome this change. If leaders strive to meet the requirements of the AHRC seven standards they will not only reduce the risk of unlawful behaviour but will also make their organisations more respectful, more inclusive and more collaborative and they will retain many people of talent who would otherwise be lost to the organisation.

Errol Price has decades of experience in commercial law, and specifically as an advisor to leading companies on equity, discrimination and workplace relations. He has helped in formulating human resource and workplace relations policies for many multinational and blue-chip companies as well as advising clients on the impact of equity and anti-discrimination have helped position Symmetra as one of the leading consultancies on diversity and inclusion. He has expertise in the laws pertaining to discrimination, harassment and bullying in the Australian workplace. This has provided the legal foundation for Symmetra’s highly successful diversity, EEO and anti-bullying and harassment programs, delivered across Australia for the past 15 years. Connect with Errol via LinkedIn