Building a preventative culture December 2021 The Law Council of Australia (Law Council), for example, referring to such provisions, said: A positive duty would ideally oblige employers to take all reasonable steps to prevent discrimination from occurring, and impose civil penalties for breaches of this positive obligation. One advantage of such a positive duty is that it would help to prevent discrimination before it occurs. At present an organisation may fail to implement policy measures or introduce internal reporting mechanisms in relation to discrimination, but will not face scrutiny unless an individual makes a complaint which then engages vicarious liability provisions.73 The Law Council referred to submissions from Victorian stakeholders in their own Justice Project in 2017–2018,74 that the introduction of positive duties on government agencies had had practical and beneficial outcomes in breaking down barriers, instigating agency-wide conversations on how to address discrimination and the introduction of positive measures that would not otherwise have occurred.75 Legal Aid NSW supported the introduction of a positive duty on all individuals and organisations that have obligations under discrimination laws, to take positive measures to eliminate discrimination, referring to the Victorian model as a good example. A positive duty would encourage individuals and organisations to proactively consider the adequacy and impact of their services, policies and procedures and take steps to address shortcomings. It would also reduce the burden on individuals to bring complaints to address discriminatory conduct.76 Views opposed to the imposition of a positive duty were expressed by some employer groups – such as the Australian Industry Group (AIG) and the Australian Chamber of Commerce and Industry (ACCI). The AIG said that the imposition of such a duty would increase the regulatory burden on employers, particularly small to medium enterprises, and would ‘achieve very limited community gain and would lead to further confusion about rights and obligations of duty-holders’.77 ACCI considered that existing discrimination laws already imposed a duty on employers because employers ‘who fail to take all reasonable steps may be found to be vicariously liable for the actions of any employees or agent that may be in breach of the relevant discrimination law’.78 Such obligations were ‘sufficient’, they said.79 Similar views were put to the Commission by ACCI during the Respect@Work inquiry.80 However, as Victoria Legal Aid pointed out, a principal reason why employers and other duty holders are failing to prevent discrimination and sexual harassment is that ‘our regulatory system does not require them to do so’.81 In a comparative study of equality laws, Aimee Cooper noted that An employer is only prompted to consider whether they took all reasonable steps to prevent the discrimination or harassment if they seek to avoid vicarious liability for a legal claim made by an employee who was subjected to discrimination or harassment. FREE AND EQUAL An Australian Conversation on Human Rights 71