December 2021 Building a preventative culture Issues of compliance and enforcement are separate matters, but necessary considerations in the design of a positive duty in federal discrimination laws. The Commission recommends that a positive duty be backed by effective enforcement mechanisms. This is discussed further in Chapter 3. 2.3 Comparative experience The experience in the UK, under the Equality Act 2010, and Victoria since the introduction of the Equal Opportunity Act 2010 (Vic) is instructive and was referred to by stakeholders in support of the introduction of a similar positive duty in federal discrimination laws. Most recently, this has been a focus of the Commission in the Respect@Work report in relation to sexual harassment. (a) Victoria Victoria overhauled its anti-discrimination laws in 2010.18 The Act ‘features a number of dynamic provisions’ which were included ‘in an attempt to address systemic discrimination and promote substantive, rather than formal, equality’.19 The 2010 Act followed upon the review of Victoria’s anti-discrimination laws after the introduction of the Charter of Human Rights and Responsibilities Act 2006 (Vic). It was conducted by former public advocate, Julian Gardner, who recommended that the Act ‘take a more proactive approach in tackling discrimination, explicitly articulate its goal of eliminating discrimination, and include measures to address systemic discrimination’.20 The positive duty applies to a person who is potentially liable for discrimination, harassment or vilification under the Act. It provides that ‘a person must take reasonable and proportionate measures to eliminate that discrimination, sexual harassment or victimisation as far as possible’.21 In determining whether a measure is reasonable and proportionate, the following factors must be considered: • the size of the person’s business or operations • the nature and circumstances of the person’s business or operations • the person’s resources • the person’s business and operational priorities • the practicability and the cost of the measures.22 The positive duty in the 2010 Act applies to all organisations covered by the Act, including government, business, employers and service providers. 62 FREE AND EQUAL An Australian Conversation on Human Rights