• Positive duty

  In December 2023, the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) was amended to introduce a new positive duty that requires employers to take reasonable and proportionate measures to eliminate, as far as possible, certain unlawful conduct, including:

  • sexual harassment in connection with work;
     
  • discrimination on the grounds of sex in a work context;
     
  • conduct creating a workplace environment that is hostile on the grounds of sex; and
     
  • related acts of victimisation.

  Whilst employers are now required to show that their organisations have taken reasonable steps to meet the positive duty, there is no ‘one-size-fits-all’ approach. What constitutes reasonable steps will depend on the specific circumstances and risk profile of the workplace. 

  For further information on the positive duty, including the standards the AHRC expects employers to meet, refer to our previous article: From Reactive to Proactive: Actionable steps to achieve compliance with the Positive Duty.

• AHRC enforcement powers

  The introduction of the positive duty was accompanied by enhanced regulatory powers for the AHRC to investigate and enforce compliance. Importantly, these powers enable the AHRC to take action where it identifies non-compliance, regardless of whether an individual complaint has been made under the Sex Discrimination Act.

  The AHRC is empowered to: 

  • commence an inquiry into compliance with the duty when it ‘reasonably suspects’ that an organisation or business is not complying with the positive duty;
     
  • issue a compliance notice specifying action that a business must take, or refrain from taking, to address any non-compliance;
     
  • apply to the Federal Court for an order to direct compliance with a compliance notice; and
     
  • enter into enforceable undertakings with an organisation under which the organisation or business agrees to do, or refrain from doing, certain things.
• Standalone prohibition on sexual harassment

  In addition to the amendments to the Sex Discrimination Act, the Fair Work Act 2009 (Cth) (FW Act) was amended to include a standalone prohibition on sexual harassment in connection with work. Under section 527D, it is unlawful to sexually harass someone who is:

  • a worker;
     
  • a prospective worker; or
     
  • a person conducting a business or undertaking,

  if the harassment occurs in connection with the person harassed being a person of the kind listed above. 

  By providing complainants with a direct pathway to seek compensation and penalties through the courts, workplace sexual harassment has moved from being a “conduct issue”, often addressed and dealt with by an organisations’ internal Human Resource teams, to one that is recognised as a statutory workplace right, with substantial legal and financial consequences. 

• Stop Sexual Harassment Orders

  Another key reform is the introduction of stop sexual harassment orders under the FW Act. These orders are intended to be an early intervention mechanism, akin to that of a stop bullying order under the FW Act. 

  Where there is a risk of ongoing sexual harassment, the Fair Work Commission can make orders to stop the harassment as it has broad powers to make any order it considers appropriate to prevent the worker from being sexually harassed.

• Non-disclosure agreements (NDAs)

  The Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025 (Vic) came into effect on 1 July 2026. The Act limits the use of NDAs in situations of sexual harassment by preventing employers from using NDAs to silence complainants, protect their reputation, and conceal repeat offending. 

  Instead, NDAs can now only be used in situations of sexual harassment where it is driven by the informed choice of the complainant. Importantly, these restrictions will not only apply to workplace NDAs, but to other contracts or agreements dealing with the disclosure of material information about workplace sexual harassment, where there is a sufficient connection to Victoria.

  For further information on these new restrictions, and the implications for employers, refer to our article: NDAs Under Review: Preparing for Victoria’s proposed workplace reforms

A changing landscape: what the data reveals

In light of the above reforms, the regulation of workplace sexual harassment has shifted from a complaint-driven model to one focused on prevention, accountability and proactive risk management. The data demonstrates these reforms are having a real impact.

In 2024-25, the AHRC received 626 complaints^[1], up from 586 complaints in 2023-24^[2], with the positive duty identified as a significant driver of increased reporting and engagement with the regulatory framework. Similarly, applications relating to workplace sexual harassment in the Fair Work Commission have continued to rise, with applications for stop sexual harassment orders increasing from 29 in 2023-24 to 71 in 2024-25.^[3]

Beyond the increase in complaints, recent decisions indicate that the courts are awarding higher levels of compensation in sexual harassment matters. This was most recently illustrated in Mejia v Capital City Café-Bare [2026] FedCFamC2G 468 where an employee was award $50,000 to compensate for the hurt, distress and humiliation arising from the contravention of section 527D of the FW Act. 

For further discussion of this decision, and other cases involving similar conduct, refer to our article: Respect@Work reforms in action: How two recent decisions show the reshaping of sexual harassment liability.

Further reform on the horizon 

Despite the significant reforms implemented to date, further change is on the horizon. We explore some of these upcoming developments below.

• Management of psychosocial hazards

  Under recently expanded work health and safety (WHS) laws, employers are now required to identify, assess and control psychosocial hazards so far as is reasonably practicable. Sexual harassment is expressly recognised as a psychosocial hazard across all Australian jurisdictions. 

  Regulatory activity in this area is increasing across Australia. Safety regulators in Victoria, NSW, Queensland and Western Australia have each published enforcement strategies, issued improvement and prohibition notices, and pursued penalties for failures to manage psychosocial risks. It is also clear that WHS duties now operate alongside anti-discrimination obligations, and regulators are increasingly testing that overlap. As a result, employers should approach psychosocial safety and sexual harassment prevention as part of a single, integrated risk management framework. 

• Civil penalties

  Contravention of provisions under the FW Act can result in civil penalties. Section 527D is a civil remedy provision which, in the case of contravention, can attract a pecuniary penalty order of up to $21,840 for an individual and $109,200 for a body corporate. 

  At present, the AHRC does not have the power to seek civil penalty orders where the positive duty has been breached. However, in its June 2025 Speaking From Experience Report, it made the recommendation, which was later echoed by the Australian Law Reform Commission, to introduce civil penalties for breaches of the positive duty under the Sex Discrimination Act.

• Further NDA restrictions

  Following Victoria's introduction of legislation limiting the use of NDAs, other Australian jurisdictions have begun exploring similar reforms. The South Australian Labor Government has recently indicated its intention to consult on legislation regulating the use of NDAs in workplace sexual harassment matters. At the national level, the AHRC has also recommended amendments to the Sex Discrimination Act to restrict the use of NDAs in a manner broadly consistent with the Victorian model.

  Although legislation of this nature has not yet been introduced in other jurisdictions or at the national level, guidance materials such as the “Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 (Cth)” and the AHRC's Guidelines on the “Use of Confidentiality Clauses in the Resolution of Workplace Sexual Harassment Complaints (2022)” reflect a clear regulatory expectation that the routine use of NDAs in relation to sexual harassment complaints is inappropriate. 

• Statutory review

  An independent statutory review of the positive duty under the Sex Discrimination Act is required to take place by 12 December 2026. The intention of the review is to examine, among other things, whether the regime is operating effectively and whether the AHRC has adequate resourcing and powers.  Although no public announcements have been made, we anticipate that the review may provide an opportunity to consider further reforms, such as civil penalties for non-compliance and further restrictions on the use of NDAs.

Key takeaways 

The regulation of workplace sexual harassment continues to evolve. Under the current enforcement framework, employers are expected not only to respond to incidents of sexual harassment, but also to take proactive steps to identify, eliminate and prevent the risk of such conduct occurring in the workplace. 

In light of this shift towards prevention and accountability, employers should:

• ensure they have clear, up-to-date, and effective policies addressing sexual harassment, including conduct by third parties;
   
• provide regular and tailored training for employees, managers and senior leaders;
   
• implement effective reporting mechanisms and ensure complaints are addressed promptly and in a trauma-informed manner;
   
• undertake risk assessments and implement appropriate control measures to minimise the risk of sexual harassment;
   
• review the use of confidentiality clauses and NDAs when resolving sexual harassment complaints. For employers operating in Victoria, NDAs should no longer be included as a standard term in settlement agreements; and
   
• ensure that any existing NDA templates, and any proposed use of an NDA in a workplace sexual harassment matter, comply with the new legislative requirements.

^{[1]  AHRC's Annual Report 2024-25, page 18
[2] AHRC's Complaint Statistics Table 2023-24, on page 11 
[3] Harassment positive duty a game-changer: Cody}