Building a preventative culture (a) December 2021 Alignment with the expectations of the United Nations Guiding Principles on Business and Human Rights The introduction of a positive duty to take reasonable and proportionate measures to eliminate discrimination in the workplace also aligns with the expectations of the United Nations Guiding Principles on Business and Human Rights (UNGPs).91 The UNGPs are the current, authoritative global standard on preventing and addressing businessrelated human rights harms (including discrimination). They are increasingly reflected in a wide range of regulations, standards and corporate practice globally. Australia co-sponsored the resolution for the introduction of the UNGPs, which were unanimously endorsed by the Human Rights Council in 2011. The UNGPs reiterate the expectation in international law that all governments have a duty to protect against human rights harms occasioned by business. The UNGPs expect that governments will do this through a ‘smart mix’ of regulation, policy and facilitating judicial and non-judicial mechanisms for remedy. This duty to protect against business-related harms also extends to the activities of the government as an economic actor. The UNGPs expect that businesses will take steps to prevent infringing on the human rights of others. Businesses meet this ‘responsibility to respect’ human rights in accordance with the UNGPs by carrying out ‘human rights due diligence’ to identify, prevent, mitigate and remediate human rights harms arising in their direct activities or through their business relationships (such as supply chains). Human rights due diligence is a business-risk management framework, but one that focuses primarily on preventing risks to people, rather just risks to the business. A prevention-focused positive duty on businesses to avoid discrimination would create an enabling environment for Australian businesses to meet the expectations of the UNGPs by prompting businesses to undertake human rights due diligence to identify and address discrimination risks in their business. The introduction of such reforms arguably creates a ‘level playing field’ for businesses that are already taking steps to address discrimination in the workplace, and incentivise action from laggards in this space. The expectation that businesses remediate discrimination where it occurs, and provide complaints mechanisms to facilitate pathways to remedy also aligns with the UNGPs’ expectations of business. (b) Enabling compliance It is critical that duty holders are supported to implement the positive duty if it is to play the kind of forward-looking, systemic role that it should. In her research, Aimee Cooper learned of the value of positive duties on employers in Sweden and the UK to prevent discrimination and sexual harassment occurring. She also heard about the need for ‘detailed meaningful procedural requirements to accompany the general duty because the general duty itself can be so vague that it is not possible to meaningfully enforce it’.92 She stated further: FREE AND EQUAL An Australian Conversation on Human Rights 75