Building a preventative culture December 2021 The Commission considers that there is a place for a positive duty in all federal discrimination laws as a foundation for reshaping the understanding and operation of those laws. It reflects a sharing of the overall burden of discrimination laws. As Professor Beth Gaze and Associate Professor Belinda Smith explain, Positive duties are forward-looking, systemic and seek to impel social transformation toward a system that prevents discrimination occurring and promotes substantive equality, in contrast with the backward looking, individualised nature of anti-discrimination law enforcement. Positive duties focus on capacity to bring about change, rather than on fault.6 Positive duties across all discrimination laws would require proactive steps to address potential discrimination by organisations with discrimination law obligations, including government entities, businesses, employers and service providers. The Commission considers that a positive duty, and associated reforms, would be beneficial to the business sector in particular. The introduction of such a positive duty for businesses also aligns with the expectations on both governments and business under the United Nations Guiding Principles on Business and Human Rights.7 Such a duty should be accompanied by guidance, industry codes and professional standards to embed it in the culture of organisations. Currently, federal discrimination law offers limited support for businesses that seek to embed nondiscrimination into their operations. As an example, the Commission is unable to certify that actions taken to promote diversity through Indigenous specific recruitment processes or practices to employ persons with a disability amount to a special measure and is not discrimination. This leaves businesses at risk of legal action where they seek to do ‘the right thing’. The focus of a positive duty would be on prevention. The corollary of placing a duty to focus on this is that businesses would have a ‘protective shield’ from legal actions where they have taken proactive steps to enhance workplace protections against discrimination. It is highly likely that there would be cost benefits for business from the impact of shifting the focus from having to deal with complaints of unlawful discrimination, both in terms of damage to business reputation but also disruption to business. These costs benefits extend to the unseen financial and productivity implications of discrimination, for organisations and the economy as a whole. As noted in Chapter 1, section 2.2, the findings of the Deloitte report as to the economic impact of sexual harassment, were stark: that it was costing the Australian economy an estimated $3.8 billion, annually, including approximately $2.6 billion in lost productivity and $249.6 million in individual ‘lost wellbeing’.8 These are striking figures, even without consideration of the economic impact of any other forms of discrimination. FREE AND EQUAL An Australian Conversation on Human Rights 59