December 2021 Building a preventative culture 2 A positive duty to take measures to eliminate unlawful discrimination 2.1 Shifting the focus to prevention The current legislative framework in relation to unlawful discrimination remains largely remedial in nature, because it requires a ‘person aggrieved’ (the victim) to make a complaint and tends to focus on discrimination that has already happened. As noted in the Respect@Work report, this places significant responsibility on individual complainants and means that employer practices are often only externally scrutinised after an allegation of sexual harassment (or discrimination) has been made,3 and the issue goes to the liability of the employer. In that inquiry, the Commission heard that, while the Sex Discrimination Act aims to eliminate sexual harassment and promote gender equality, existing laws did not place sufficient obligations on employers to prevent sexual harassment from occurring in the first place. There are vicarious liability provisions that mean that organisations can be held liable for not acting sufficiently to address discrimination and harassment, but they only come into operation when an incident of discrimination has occurred, and a complaint is made to the Commission. For example, the Sex Discrimination Act provides that if the organisation has failed in its duty to take all reasonable steps to prevent the person from engaging in the discrimination, then it can be held jointly liable for the discrimination or harassment. In submissions to the Respect@Work inquiry, the Commission received significant support for the introduction of a freestanding positive duty that would require employers to take proactive measures to prevent sex discrimination and sexual harassment in the workplace.4 To shift the reactive nature of discrimination laws, and to foster cultures that do not wait until an issue arises, change is required, in all the areas of life covered by discrimination law (such as workplaces, education, housing, and services). It is the dealing with discrimination ‘after the fact’ that is seen to be a principal reason why anti-discrimination laws have been unable to address ongoing issues of entrenched and systemic discriminatory practices. Associate Professor Dominique Allen observed that anti-discrimination laws impose very few obligations on employers and service providers to address inequality or to anticipate the discriminatory consequences of their behaviour; they do not have to do anything until a successful claim has been made against them and even in that instance, they are most likely to be ordered to pay compensation rather than to make wider, structural change.5 58 FREE AND EQUAL An Australian Conversation on Human Rights