December 2021 Building a preventative culture There is an inherent tension between the need for these duties to be broad enough so that implementation can be tailored to each workplace, but specific enough that duty holders know what is actually required of them. … Stakeholders also spoke about how the procedural duties accompanying a general positive duty provided a tangible step for employers to engage with that duty, and routinely come back to consider their compliance with it.93 Procedural requirements like policies, training and compliance plans, Cooper suggested, would facilitate an auditing approach that many businesses are familiar with. This was an approach that many stakeholders had seen as valuable to support compliance.94 Victoria Legal Aid submitted that it is ‘not enough to tell duty holders that they must work towards eliminating discrimination and harassment, we must tell them how to do so effectively’.95 Victoria Legal Aid gave an example, in a sexual harassment context, that ‘specific duties should be imposed on employers to implement policies, practices and training that prevent sexual harassment’.96 Victoria Legal Aid, like Cooper, referred to the need for ‘specific procedural duties to clarify what is required by the positive duty and facilitate enforcement’.97 Such guidance could include model policies and internal complaint and whistleblower processes, training modules, as well as industry-specific tailored guidance materials. A comparison is the wealth of guidance material produced by work health and safety agencies that enable compliance with the relevant law.98 In consultations for this project, some industry groups also referred to the importance of their engagement in the development phase of such materials. The Commission considers that funding for industry bodies to assist in the roll out of a positive duty, supporting their engagement with members, providing advisory support and developing tailored resources, would likely yield significant benefits over the longer term. In the Chapter 3, at section 5.2, the Commission proposes additional powers to enable it to conduct voluntary audits. This was supported by industry and would assist duty holders in complying with a positive duty. The Commission considers that using an incremental approach to reform, with the participation and cooperation of duty holders, and with the objective of helping duty holders to improve their own practice through voluntary compliance measures, will build confidence and trust in discrimination laws as measures to reduce discrimination and support equality. However, in consultations there were also concerns expressed that such a co-regulatory approach would not be sufficient of itself. The Commission heard that additional enforcement mechanisms would also need to be attached to a positive duty. 76 FREE AND EQUAL An Australian Conversation on Human Rights