This involves a significant cultural shift in the operation of federal discrimination laws, albeit a shift that has been occurring in discrimination laws in other jurisdictions and in work, health and safety laws. Positive duties are an emerging feature of discrimination laws in Australia and overseas, reflecting a shift to a preventative focus that is proactive in dealing with discrimination and avoiding harm. The current model of federal discrimination laws is heavily dependent on individuals bringing forward complaints of discriminatory treatment as the only available method for enforcing the law. We know that many people who have been discriminated against and treated unlawfully will never take such action. The Commission’s report, Respect@Work: National inquiry into Sexual Harassment in Australian Workplaces (2020), recommended a positive duty to take measures to eliminate discrimination, sexual harassment and victimisation as far as possible. To do so, requires a person to be prepared to relive an incident or pattern of behaviour that may have been deeply hurtful or traumatic for them. It requires them to have enough knowledge of the law, and/or of how to get legal assistance, even to know that their treatment may be unlawful. It involves a significant investment of time and often, money. It also requires them to exercise bravery and, in some instances, to risk experiencing further adverse consequences from stepping forward. Those most likely to experience discrimination on a regular basis may be less likely to bring individual actions. They are often the least resourced and least supported in our community to do so, and the cumulative impact of their exposure to such treatment on a regular basis may leave them the most disempowered in the community. The Commission’s report, Wiyi Yanu U Thangani: Women’s Voices (2020),8 is a vivid illustration of this. It details regular experiences of discrimination faced by Aboriginal and Torres Strait Islander women and girls – most of which goes unaddressed. Ensuring that there are remedies for those subject to discrimination is fundamental. It is a key component to meeting obligations to respect, protect and fulfil the right to non‑discrimination. As illustrated in Text Box 2, the Sex Discrimination Act was amended in 2022 to implement the positive duty in relation to sexual harassment and related situations. Enforcement powers of the Commission relating to this positive duty commence in December 2023. However, sexual harassment and discrimination in the workplace are only one aspect of matters covered by federal discrimination law. The Commission considers that a broader positive duty incorporating all discrimination laws is essential if Australia is to achieve the goal of the elimination of discrimination. This language is clearly reflected in Australia’s international obligations. For example, Article 2 of the ICERD states the commitment that Australia, and all other governments, have made is to eliminate racial discrimination in all its forms. The Commission therefore proposes that a positive duty be a central reform to all discrimination laws to place a new, significant focus on the prevention of discrimination. Complaints mechanisms are, therefore, of critical importance, but such mechanisms should not be the first or only mechanism for addressing discrimination, because they are focused on redress rather than prevention. 82 That was based on the model in Victoria that has been in place since 2010.9 The Commission considered that the positive duty should be part of a new regulatory model in relation to the continuing problem of sexual harassment in the workplace. Such a duty would extend beyond the workplace, to all areas of public life, and incorporate all protected grounds. FREE & EQUAL: Revitalising Australia’s Commitment to Human Rights