Australia’s positive duty requires every employer to take proactive steps to eliminate workplace sexual harassment and sex discrimination — not simply respond after an incident. Two years into the Australian Human Rights Commission’s enforcement role, the Commission has four active inquiries running and is scrutinising eight major retailers, with the retail and hospitality sectors squarely in its sights.
Key facts at a glance
- What it is: the positive duty under section 47C of the Sex Discrimination Act 1984 (Cth) — a legal obligation to prevent sexual harassment, sex discrimination and related conduct, not just react to it.
- In force since: 12 December 2022. The Human Rights Commission gained compliance and enforcement powers on 12 December 2023.
- Where it stands (July 2026): 4 active inquiries plus 14 organisations under voluntary monitoring; the Commission is seeking compliance information from 8 large retailers employing roughly 35,000 workers.
- Priority sectors: retail trade and accommodation and food services — the industries with the highest reported harassment rates.
- The overlap that catches employers out: sexual harassment is also a psychosocial hazard under work health and safety law, so a single incident can trigger two separate regulators.
- Why capability matters: both frameworks expect trained frontline responders — the reason employers invest in nationally accredited Psychological First Aid.
Support: if this article raises concerns about workplace sexual harassment, 1800RESPECT (1800 737 732) offers confidential national counselling and information, 24 hours a day.
What is the positive duty, and who does it apply to?
The positive duty was inserted into the Sex Discrimination Act 1984 by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, following the Commission’s landmark Respect@Work report. It requires organisations to take “reasonable and proportionate measures” to eliminate, as far as possible, sexual harassment, sex discrimination and related victimisation.
Critically, the duty is proactive and ongoing: it shifts the legal expectation from investigating complaints after harm occurs towards designing work, culture and systems so the harm does not happen. It also reaches beyond an organisation’s own staff to conduct involving third parties such as customers and contractors — a point of real exposure for customer-facing industries.
What has the Human Rights Commission actually done in two years?
Since gaining enforcement powers in December 2023, the Commission has moved from education into active regulation. As set out in its July 2026 progress update, it currently has four active inquiries — into a hospitality business, a financial services provider, a transport and logistics company, and an adult entertainment retailer — and is actively monitoring 14 other organisations.
In retail specifically, the Commission is seeking compliance information from eight large retailers that together employ around 35,000 workers. It has also convened regulators and universities — including a 2025 National Regulator Roundtable of 14 agencies — to co-ordinate on prevention.
Why are retail and hospitality in the regulator’s sights?
The Commission has been explicit that retail trade and accommodation and food services are its priority sectors, because the risk is measurably higher there. In its 2022 national survey, 40% of retail workers and 34% of hospitality workers reported experiencing workplace sexual harassment in the previous five years — both above the national average. Frequent customer interaction, a young and casual workforce and low job security all raise the risk.
The regulatory pressure is co-ordinated. In February 2026 the Commission and Safe Work Australia ran a forum for senior leaders of large retailers focused on how their obligations line up under both the work health and safety and positive-duty frameworks, and launched a joint practical toolkit developed with Australia’s National Research Organisation for Women’s Safety — a signal that the two regulators are increasingly speaking with one voice.
How does the positive duty overlap with work health and safety duties?
This is the part many employers miss. The same incident of sexual harassment can be both a breach of the positive duty and a failure to manage a psychosocial hazard under work health and safety law — different statutes, different regulators, but overlapping expectations.
| Feature | Positive duty (Sex Discrimination Act) | WHS psychosocial duty |
|---|---|---|
| Regulator | Australian Human Rights Commission | State/territory WHS regulator (e.g. WorkSafe Qld, SafeWork NSW) |
| Legal source | s47C, Sex Discrimination Act 1984 (Cth) | WHS Act + WHS Regulations (psychosocial provisions) + Codes of Practice |
| Core obligation | Proactively eliminate sexual harassment, sex discrimination and related conduct | Manage risks to psychological health so far as reasonably practicable |
| Who is covered | Own workers plus third parties (customers, clients, contractors) | Workers and others affected by the business’s work |
| Enforcement tools | Inquiries, compliance notices, court enforcement | Improvement/prohibition notices, prosecutions, fines |
| In force | Duty from 12 Dec 2022; enforcement from 12 Dec 2023 | Psychosocial WHS provisions rolling out across states since 2022–23 |
Because sexual harassment appears on regulators’ own lists of psychosocial hazards, a gap in one framework is usually a gap in both.
What can the Commission do if an employer falls short?
The Commission’s enforcement pathway escalates. It can open an inquiry and — where an organisation does not co-operate or meet the duty — issue a compliance notice specifying the action required. If a notice is not complied with, the Commission can apply to the Federal Court or the Federal Circuit and Family Court of Australia to enforce it. To date the Commission has emphasised inquiries and monitoring rather than litigation, but the machinery to escalate is now in place — the “grace period” framing no longer applies.
What should employers be doing now?
The practical takeaway is a governance one, not a checklist to hand to staff. Boards and senior leaders are expected to own the duty, understand where their harassment risks concentrate (customer-facing roles, night trade, isolated work), and be able to show the proactive measures they have put in place. Building genuine frontline capability is part of that picture — teams that can recognise distress and respond appropriately are evidence of a workplace taking prevention seriously.
FMS Training (RTO 45189) delivers accredited Psychological First Aid (PUARCV001) online and nationwide — a recognised way to build that capability across a dispersed workforce. It complements — rather than replaces — the systems, policies and consultation the two duties require, and pairs with an understanding of the underlying psychosocial hazards employers must manage and the legal requirements now in force.
Frequently asked questions
What is the positive duty in simple terms?
It is a legal obligation on employers to take proactive, reasonable and proportionate steps to prevent workplace sexual harassment, sex discrimination and related conduct — rather than only responding after a complaint is made. It sits under section 47C of the Sex Discrimination Act 1984 (Cth).
When did the positive duty start?
The duty has applied since 12 December 2022. The Australian Human Rights Commission gained the power to assess and enforce compliance one year later, on 12 December 2023.
Which industries is the Human Rights Commission focusing on?
Retail trade and accommodation and food services are the Commission’s stated priority sectors, because its research shows higher-than-average rates of workplace sexual harassment in both.
Does the positive duty replace work health and safety obligations?
No. It runs alongside them. Sexual harassment is also a psychosocial hazard under work health and safety law, so a single incident can engage both the positive duty and a WHS regulator at the same time.
What happens if a business does not comply?
The Commission can run an inquiry, issue a compliance notice setting out required action, and ultimately apply to the Federal Court or the Federal Circuit and Family Court to enforce that notice.
Does the duty cover harassment by customers or clients?
Yes. The positive duty extends beyond an organisation’s own workers to conduct involving third parties such as customers, clients and contractors — a key exposure for customer-facing retail and hospitality businesses.
How does training help an employer meet these duties?
Nationally accredited training builds the frontline and management capability both frameworks expect — people who can recognise distress and respond appropriately. Accredited Psychological First Aid (PUARCV001) is one recognised way to build that capability across a workforce.
Is Psychological First Aid the same as counselling?
No. Psychological First Aid is about providing immediate, practical support and connecting a person to appropriate help. It is not counselling, diagnosis or therapy, and accredited training makes that scope clear.