The positive duty to prevent sexual harassment.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.

Since December 2022, employers and persons conducting a business or undertaking have a positive duty under the Sex Discrimination Act 1984 (Cth) to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based harassment, sex discrimination, hostile workplace environments and related victimisation. This shifts the law from reacting to complaints toward preventing harm before it happens.

This duty sits alongside two other developments. Sexual harassment is treated as a psychosocial hazard under work health and safety law, to be managed like any other risk. And since 6 March 2023, the Fair Work Act 2009 (Cth) contains an express prohibition on sexual harassment in connection with work, backed by the Fair Work Commission's power to make orders. For the performing arts, with its power imbalances, short engagements and intimate work, these obligations are directly relevant.

What the positive duty requires

The positive duty is proactive. It requires an organisation to take reasonable and proportionate measures to prevent the relevant conduct, judged against the size of the organisation, its resources, and the nature of its work. A large company and a small independent producer are held to the same standard of reasonableness, but what is reasonable for each will differ. Doing nothing until a complaint arrives is no longer enough.

The Australian Human Rights Commission standards

The Australian Human Rights Commission has published guidelines built around seven standards: leadership, culture, knowledge, risk management, support, reporting and response, and monitoring, evaluation and transparency. In practice, meeting the duty means visible leadership on the issue, clear and known policies, training, a genuine and safe way to report, a fair response process, and a habit of checking whether the measures are actually working. The guidelines are not themselves binding, but the Commission uses them to assess compliance.

The Commission's enforcement powers

From 12 December 2023, the Commission gained powers to assess and enforce compliance with the positive duty, including inquiring into compliance and issuing compliance notices. This is not a paper obligation. An organisation that has taken no reasonable steps is exposed, independently of whether any individual has made a complaint.

The Fair Work prohibition and stop sexual harassment orders

Separately, the Fair Work Act now prohibits sexual harassment in connection with work. A worker who is harassed can apply to the Fair Work Commission, which can make a stop sexual harassment order and can deal with the dispute, including by conciliation and, with consent, arbitration for remedies such as compensation. An application generally must be made within a set period after the conduct. An employer can also be vicariously liable for harassment by its workers unless it took all reasonable steps to prevent it, which again points to prevention.

Why this matters in the performing arts

The sector carries features that raise the risk: sharp power imbalances between established figures and early-career artists, freelance and short-term engagements where people fear speaking up, physically intimate performance work, late nights, touring, and blurred lines between social and professional settings. These are not reasons to accept the risk; under the positive duty they are reasons to manage it actively.

Practical steps for arts organisations

Reasonable measures for a company or producer usually include a clear sexual harassment policy that names conduct and consequences, training for cast, crew and leadership, a safe and credible reporting pathway that does not force a complaint through the alleged harasser, and a fair response process. For intimate or physically demanding work, using an intimacy coordinator and setting clear consent and boundary practices is part of managing the risk. Touring and after-hours settings should be covered too, because the duty is not limited to the rehearsal room. Finally, review whether the measures work, because monitoring is one of the standards.

For individual performers

If you experience harassment, you have options: an internal report, a complaint to the Australian Human Rights Commission, an application to the Fair Work Commission, or a work health and safety complaint to the regulator. Time limits apply and differ between avenues, so early advice helps you choose the right path and preserve your position.

Frequently asked.

What is the positive duty to prevent sexual harassment?

A duty under the Sex Discrimination Act 1984 (Cth), in force since December 2022, requiring employers and PCBUs to take reasonable and proportionate measures to eliminate sexual harassment and related conduct, rather than only responding to complaints.

Does the positive duty apply to small arts organisations?

Yes. It applies to employers and PCBUs of all sizes. The standard is reasonable and proportionate measures, judged against the organisation's size and resources, so what is required scales, but doing nothing is not an option.

Can the Fair Work Commission stop workplace sexual harassment?

Yes. Since 6 March 2023 the Fair Work Act 2009 (Cth) prohibits sexual harassment in connection with work, and the Commission can make stop sexual harassment orders and deal with disputes, including by conciliation and, with consent, arbitration.

Can an organisation be liable for harassment by its people?

Yes. An employer can be vicariously liable for sexual harassment by its workers unless it took all reasonable steps to prevent it, which is why prevention matters.

What should an arts organisation actually do?

Put in place a clear policy, training, a safe reporting pathway and a fair response process, address intimate work and touring settings, and monitor whether the measures work, in line with the Australian Human Rights Commission's seven standards.

If you are a performer, producer, venue, or independent practitioner and this raises a question about your own situation, Aaron Kernaghan and the team at Brady & Associates Lawyers can give you tailored guidance. Call 0421 717 019 or contact the firm.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship. It reflects the law in Australia as at 13 September 2026, with a focus on Commonwealth law and New South Wales and ACT practice. The law changes and applies differently to every set of facts. Written by Aaron Kernaghan, Brady & Associates Lawyers.

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