December 2021 Building a preventative culture Positive duties are an emerging feature of discrimination laws in Australia and overseas, reflecting a shift to a preventative focus that is proactive in dealing with discrimination and avoiding harm. The Commission’s report, Respect@Work: National inquiry into Sexual Harassment in Australian Workplaces (2020), recommended a positive duty to take measures to eliminate discrimination, sexual harassment and victimisation as far as possible. That was based on the model in Victoria that has been in place since 2010.2 The Commission considered that the positive duty should be part of a new regulatory model in relation to the continuing problem of sexual harassment in the workplace. However, sexual harassment and discrimination in the workplace are only one aspect of matters covered by federal discrimination law. The Commission considers that a broader positive duty incorporating all discrimination laws is essential if Australia is to achieve the goal of the elimination of discrimination. This language is clearly reflected in Australia’s international obligations. For example, article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) states that the commitment that Australia, and all other governments, have made is to eliminate racial discrimination in all its forms. The Commission therefore recommends that such a positive duty be a central reform to all discrimination laws – to place a new, significant focus on the prevention of discrimination. The duty would extend beyond the workplace, to all areas of public life, and incorporate all protected grounds. All organisations with responsibilities under discrimination laws would be required to comply with the duty, including employers and businesses, government entities, and providers of accommodation, education, or goods and services. This would set out a clear expectation that all these responsible organisations will always act in a non-discriminatory manner and pre-emptively consider and address risks of discrimination. The Commission also recommends that the positive duty be enforceable through several enforcement mechanisms (these are explored further in Chapter 3, sections 4.3 and 6.2). 56 FREE AND EQUAL An Australian Conversation on Human Rights