Building a preventative culture December 2021 The outcome sought was a greater ‘upstream’ focus of the responsibility of discrimination laws: a focus on preventing discrimination, rather than just responding to a complaint in a specific instance. As stated in the Explanatory Memorandum for the 2010 legislation: The duty will mean that duty holders will need to think proactively about their compliance obligations rather than waiting for a dispute to be brought to elicit a response. It may involve organisations doing such things as – • identifying potential areas for non-compliance; • developing a strategy for meeting and maintaining compliance (such as undertaking training or establishing policies); • reviewing and improving compliance where appropriate. It is intended that, by stating the existing obligations in a positive and explicit way that does not rely on an individual dispute being brought, this duty will promote proactive compliance with the Bill and provide [VEOHRC] with a platform to facilitate compliance in the absence of a dispute.23 Gardner recommended including a specific duty to eliminate discrimination that is expressed in a positive way, rather than as a duty not to discriminate, recognising that ‘an individual complaints system cannot adequately address systemic discrimination because it relies on the individual to lodge a complaint rather than placing the obligation on the respondent to comply.24 Gardner also recommended that the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) have the power to enforce the duty by conducting inquires and issuing compliance notices. VEOHRC now has some powers to conduct an investigation, which are less than Gardner recommended, into a suspected contravention of the positive duty that is serious in nature, relates to a class or group of persons and cannot reasonably be expected to be resolved by dispute resolution or at the Victorian Civil and Administrative Tribunal (VCAT).25 The Victorian legislation also provides that an employer can be held vicariously liable under the Act when an employee or agent engages in discrimination, victimisation, or sexual harassment during their employment or when acting on the organisation’s behalf.26 An employer will not be held liable if they can prove that they took reasonable precautions to prevent the behaviour. Guidelines produced by VEOHRC explain that the combination of the positive duty and vicarious liability provisions in Victoria mean that employers have to be ‘proactive’ in addressing the causes of discrimination, sexual harassment or victimisation and provides support to enable them to realise their obligations.27 The question of whether an employer is vicariously liable for the actions of its employees only arises after sexual harassment or discrimination has already taken place and an individual complaint has been made. The positive duty applies to employers all the time and does not rely on an individual complaint to be made. FREE AND EQUAL An Australian Conversation on Human Rights 63