Building a preventative culture December 2021 How would a positive duty in discrimination law fit with the positive duty in WHS law? In April 2021, the Government responded to the recommendations of the Respect@Work report. In relation to the recommendation for a positive duty in relation to sexual harassment in the SDA it expressed concern that it would be complex and confusing for employers and victims to navigate a duty in addition to that set out in WHS law. While not rejecting the recommendation, the Government said it would assess whether a duty of the kind proposed in the Respect@Work report ‘would create further complexity, uncertainty or duplication in the overarching legal framework’.86 A positive duty was not included in the Government’s subsequently passed Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.87 However the Act did simplify and amend the protection from workplace sexual harassment in the Sex Discrimination Act to ensure the provisions closely align with terms used in the model Work Health and Safety law. This ensures that persons not previously covered under the Sex Discrimination Act, such as interns, volunteers and self-employed workers, are protected from harassment.88 The Commission considers that the preventative approach to health and safety, the foundation of the Robens model, is a good model. But it is an approach that revolves around work and its concern is on health and safety. Ensuring that within that system ‘psychological safety’ is appropriately acknowledged is crucial and addresses a gap in the existing regime that is often focused on physical safety risks and hazards. However, such a regime is not comprehensive enough to address the rationale for a positive duty in discrimination laws, which serve a different purpose and extend far beyond workplaces. Additionally, embedding this more limited reform in WHS will take time and result in some shift in how that system has traditionally operated. As the Commission noted in the Respect@Work report, While it will take time for all WHS regulators to develop a detailed understanding of the dynamics and drivers of sexual harassment, the Commission already has the expertise to oversee a positive duty under the Sex Discrimination Act. This is particularly important given not only the prevalence of sexual harassment, but also the significant underreporting of sexual harassment, outlined throughout this report.89 FREE AND EQUAL An Australian Conversation on Human Rights 73