Building a preventative culture December 2021 2.5 Reform proposals – building a preventative culture The following reforms are required to federal discrimination law to build a preventative culture. Introduce a positive duty 1. Existing protections against discrimination in each of the federal discrimination laws should be supplemented by the inclusion of a positive duty on all duty bearers to take reasonable and proportionate measures to eliminate unlawful discrimination. The positive duty should include a non-exclusive list of factors that should be considered in determining whether a measure is ‘reasonable and proportionate’, including: a. the size of the person’s business or operations b. the nature and circumstances of the person’s business or operations c. the person’s resources d. the person’s business and operational priorities e. the practicality and the cost of the measures f. all other relevant facts and circumstances. Resource significant community and business sector outreach 2. A positive duty should be accompanied by significant education and other outreach, as well as support for the Commission, legal assistance providers and business peak bodies to be able to provide clear and accessible guidance about the positive duty. Stagger introduction of the positive duty to support awareness and compliance readiness 3. To ensure that there is broad understanding of the actions required as a result of a positive duty in discrimination law, and to enable organisations time to assess their current business practices, the Commission considers that it would be appropriate to stage the introduction of a positive duty by providing a 12-month grace period before it came into legal effect. FREE AND EQUAL An Australian Conversation on Human Rights 79