The Australian Human Rights Commission (AHRC) has reported on the steps it undertook to enforce the positive duty (to eliminate sexual harassment and related unlawful conduct in workplaces) throughout FY2024/25 and has outlined its priorities for FY2025/26. In doing so, the AHRC has provided some helpful guidance for Australian workplace on how the AHRC has used, and will be using, its new regulatory powers introduced in late 2023.
In its recent Speaking from Experience Report, the AHRC has also called for legislative reform to introduce civil penalties for breaches of the positive duty, and restrictions on the use of confidentiality clauses or non-disclosure agreements (NDAs) in sexual harassment cases.
In addition to the AHRC's increased enforcement and regulatory action at a Commonwealth level, state-based safety regulators and human rights agencies are working together to develop parallel enforcement strategies for the prevention of sexual harassment.
AHRC's enforcement actions
In FY2024/25, the AHRC commenced inquiries into businesses in four key industries:
- Retail Trade;
- Accommodation and Food Services (Hospitality);
- Finance; and
- Transport, Postal & Warehousing.
The inquiries captured approximately 7,500 workers, some of whom had been exposed to serious unlawful conduct.
The AHRC has also conducted education and training for an additional 35 employers to help them understand and meet their positive duty obligations in the Sex Discrimination Act.
For FY2025/26, the AHRC has identified Retail Trade and Accommodation & Food Services as high-risk industries requiring proactive focus. Compliance and enforcement strategies are expected to be launched in September 2025. Simultaneously, the AHRC will update its educational tools for large enterprises, small businesses, and government and community organisations.
A compliance survey and bespoke tools (including an education package for senior leaders) are being developed for the Retail Trade industry, which will be expanded to other areas of focus at a later date.
Speaking from Experience Report
The AHRC's Speaking from Experience Report draws on national consultations with over 300 victim-survivors of workplace sexual harassment, with a particular focus on the experiences of workers from diverse and marginalised backgrounds. The Report responds to Recommendation 27 of Australia's landmark 2020 Respect@Work Report, which recommended a disclosure process be established for victim-survivors of historical workplace sexual harassment matters to have their experience heard and documented with a view to promoting recovery and inform policy reform.
The new Report found gaps remain in both sexual harassment prevention and response, particularly for those facing intersecting forms of discrimination (eg based on race, disability, sexuality, age, or migration status). The AHRC made 11 recommendations for changes in workplaces, complaint and compensation management bodies, government policy and reform, and community awareness. Of particular interest to employers, the AHRC has called for legislative change to:
- restrict the use of non-disclosure agreements (NDAs) in sexual harassment cases; and
- introduce civil penalties for breaches of the positive duty.
Current Respect@Work Guidelines recommend that confidentiality clauses not be seen as a standard term of workplace sexual harassment settlement agreements and that they be used on a case-by-case basis – they do not currently restrict their use. Victoria is also currently proposing to restrict the use of NDAs, drawing from international experience.
The AHRC also commented on the need to improve workplace training, and for workplaces to avoid lengthy and complex sexual harassment policies.
Other enforcement action across Australia
The introduction of a positive duty under Queensland's Anti-Discrimination Act 1991 remains paused for further consultation. The AHRC is however working with state and territory equal opportunity commissions, via the Australian Council of Human Rights Agencies (ACHRA) Positive Duty Working Group, to facilitate collaboration regarding positive duty obligations under other state based anti-discrimination legislation (in the Northern Territory, the ACT and Victoria), and achieve consistency for duty holders wherever possible.
Meanwhile, WorkSafe Victoria and the Victorian Equal Opportunity and Human Rights Commission have developed a parallel enforcement strategy on work-related sexual harassment. As part of this strategy, the regulators have committed to sharing data to target prevention efforts, with a view to minimising the potential for duplication of effort. They will also share knowledge, insights and best practices to eliminate workplace sexual harassment.
Queensland employers still have an express obligation under work health and safety law to prepare a written Sexual Harassment Prevention and Response Plan. This express obligation regarding the proactive management and prevention of risks to health and safety from sexual harassment and sex or gender-based harassment at work, adds to existing work health and safety obligations to protect both physical and psychological health at work. State based safety regulators, including in Queensland, have been increasingly active in their efforts to ensure compliance by duty holders of their obligations to protect psychological health in the workplace.
These developments underscore the importance of alignment between HR and WHS leaders in their approach to preventing sexual harassment and related behaviours in the workplace.
These recent reports from the AHRC on enforcement and the experiences of victim-survivors provide valuable reading for Australian employers. The reports highlight areas where Australian workplaces – with HR, WHS, Legal, Integrity and Risk and Leadership all in alignment – should focus their time and attention to create and maintain safe and healthy workplaces and satisfy both human rights and safety obligations under Australian law.
Leaders should be alert to proposed developments in this space. We are monitoring developments closely.
Our national, leading Workplace team offers deep experience in workplace culture and safety, employee relations, investigations and legal compliance. For more information, visit our webpage, or contact us for a confidential discussion.
