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NSW Government Bulletin: Responding to the positive duty – AHRC releases guidelines

20 September 2023

#Government, #Workplace Relations & Safety

Published by:

Chloe Hamer, Christine Jones (Editor)

NSW Government Bulletin: Responding to the positive duty – AHRC releases guidelines

NSW Government agencies need to be aware of the recent Guidelines for Complying with the Positive Duty (Guidelines) issued by the Australian Human Rights Commission (AHRC) regarding the positive duty to eliminate sexual harassment and other unlawful conduct under the Sex Discrimination Act 1984 (Cth).

What is the positive duty?

The Sex Discrimination Act 1984 (Cth) (Act) enshrines a positive duty on organisations, including government agencies, to prevent sexual harassment from occurring in the workplace.

In short, the ‘positive duty’ requires an employer or person undertaking a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible:

  • sex discrimination
  • sexual and sex-based harassment
  • conduct conducive to a hostile work environment on the grounds of sex
  • related acts of victimisation.

(collectively, relevant unlawful conduct)

From December 2023, the AHRC will have the power to investigate and enforce compliance with the positive duty and may issue a compliance notice, which could be enforced by a court order, for non-compliance.

The Guidelines outline the key standards and guiding principles to assist organisations to comply with their positive duty.

The NSW Government has recently committed itself to eliminating sexual harassment, bullying and discrimination in public sector workplaces. As such, government agencies may find these guidelines helpful as they develop processes and practices to respond to and seek to eliminate incidents of sexual harassment and other misconduct.

The AHRC standards

The Guidelines set out seven standards, providing organisations with a framework to structure their practices to comply with the positive duty.

The standards are:

  • leadership: Senior leaders need to understand their obligations under the Act and stay up to date with knowledge about relevant unlawful conduct
  • culture: Organisations must maintain a safe, respectful, inclusive, and diverse culture as this standard empowers workers to report unlawful conduct, improve accountability and minimise harm
  • knowledge: Organisations must develop, implement, and communicate a policy regarding unlawful conduct and respectful behaviour, and educate their workers on engaging in safe, inclusive and respectful behaviour.
  • risk management: Organisations should acknowledge that relevant unlawful conduct poses a risk to the equality, health and safety of their workers and adopt a ‘risk-based approach’ in their responses to these risks
  • support: Organisations must provide support to victims or witnesses of relevant unlawful conduct and ensure that workers are informed about the support available
  • reporting and response: Organisations must provide options for reporting and responding to relevant unlawful conduct and regularly communicate these options to their workers
  • monitoring evaluation and transparency: Organisations must regularly collect data that depicts the nature and extent of unlawful conduct in their workplace to improve their culture and inform their prevention and response measures. 

The guidelines provide practical examples of how organisations can meet each standard. Organisations are not expected to implement all examples and only need to enact measures that are ‘reasonable and proportionate’ in the circumstances.

The AHRC guiding principles

The Guidelines provide that for an organisation to implement the standards, they should adopt the following principles:

  • consult with their workers about what they need for a safe and respectful workplace and discuss the available options to eliminate relevant unlawful conduct
  • implement measures that advance gender equality
  • adopt an ‘intersectional’ approach to the risks and impacts of relevant unlawful conduct
  • be person-centred and trauma-informed in their policies, systems and practices.

Key questions in response to the Guidelines

The Guidelines provide a timely reminder for organisations to review, refine and implement their policies and processes to comply with their positive duty. Further, given the AHRC compliance and enforcement powers will shortly come into effect, there is an imminent need for organisations to ensure they have taken steps to comply with their positive duty. 

A review process should include a consideration of the following key questions:

  • is your current ‘appropriate workplace behaviour policy’ fit for purpose? Does the policy make clear the standard of behaviour required? Is support available to workers who experience inappropriate behaviour?
  • do workers receive regular training on appropriate workplace behaviour?
  • are your processes to report and investigate sexual harassment clear, easily accessed and understood?
  • are senior leaders in the organisation aware of their obligations under the Act? Is there a communications channel where they can access up to date information?
  • has a risk assessment on the likelihood of sexual harassment been carried out? Have relevant controls been implemented in response to the assessment?
  • Does your workplace culture foster appropriate workplace behaviour? Is the culture safe, respectful, inclusive, and diverse?

How can we help?

Our workplace team can assist employers with reviewing policies, running training seminars and can provide general advice on sexual harassment and discrimination laws. If you have any questions, please get in touch with us below.

Authors: Jennifer van Bronswijk & Chloe Hamer

In the media

NSW government announces $224 million social housing package
New South Wales Premier, Chris Minns, announced an allocation of $224 million towards social and affordable housing. This will be split between $70 million in direct investment in new social housing units and funding for existing social housing and homelessness programs. (16 September 2023). Read more here.

NSW sets up new $3.6 billion Essential Services Fund to cover wage rises for public sector workers
The New South Wales Government will set up a new fund worth $3.6 billion over the next four years to lift wages for public sector workers and help fill critical shortages. The Essential Services Fund will cover the wage rises for nurses, paramedics, firefighters, teachers and other frontline workers. (17 September 2023). Read more here.

NSW councils bogged down by court cases say state planning laws need to change
The New South Wales Government and councils are at odds over a planning law that requires development applications to be assessed within 40 days. The Government says the time frame is necessary to confront the housing crisis, but councils say the deadline is impossible to meet (15 September 2023). Read more here.

NSW parliamentary inquiry submissions warn of lead, gold, silver, zinc mining impacts
An Upper House committee has been tasked with examining the current and potential impacts of gold, silver, lead and zinc mining on human health, land, air and water quality. Many submissions focus on three mines in the Central West with residents and community groups telling the inquiry they did not believe the Cadia Mine near Orange was properly regulated due to recent dust pollution breaches (15 September 2023). Read more here.

NSW government halts logging within proposed Great Koala National Park
Logging has been stopped in parts of the proposed Great Koala National Park on NSW’s Mid North Coast while the state Government determines the impact on koalas and timber industry jobs. The Nature Conservation Council has described the moratorium on logging as a big win for koalas and the environment movement (12 September 2023). Read more here.

NSW government abandons Wyangala Dam expansion
Water Minister Rose Jackson announced that Labor will not proceed with an expansion of Wyangala Dam near Cowra. The expansion was announced in 2019 by the former Coalition governments, promising $650 million. However, the bill has since “ballooned”, estimated now to cost billions of dollars (12 September 2023). Read more here.

NSW government announces $3 billion investment into Western Sydney Hospitals
The NSW Government has announced it will put a record $3 billion dollars of funding into public hospitals in Western Sydney. The multi-billion dollar investment will be allocated in the state budget for spending on building new hospitals, and upgrading existing hospitals across greater Western Sydney (10 September 2023). Read more here.

State’s first youth justice trade centre
The Cobham Youth Justice Centre in Werrington has unveiled a state-of-the-art trade centre where young inmates can start rebuilding their lives. The new centre provides Cobham’s low-risk young people in custody the chance to access on-site trade training for the skills they need to secure jobs when rejoining the community (12 September 2023). Read more here.

NSW government invests $3.5 billion on school infrastructure backlog
The NSW Government will invest $3.5 billion to develop and upgrade more than 60 public schools in Sydney’s western suburbs. These upgrades will deliver new facilities and address overcrowding. The Government is due to hand down the findings of its Enrolment Growth Audit later this year to ensure education is factored into future planning for the city and expanding suburban areas (11 September 2023). Read more here.

In the courts

ATT Bulletin No. 18/2023
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. (11 September 2023). Read more here.

New South Wales Supreme Court Practice Note SC Gen 20
This Practice Note was issued on 12 September 2023 and commences on 1 October 2023. It applies to the citation of authorities in all proceedings in the Supreme Court of New South Wales, the Court of Appeal and the Court of Criminal Appeal (12 September 2023). Read more here.

Local Court of New South Wales Specialist Family Violence List Pilot Practice Note
This Practice Note was issued on 6 September 2023 and commences on 25 September 2023. It establishes the Specialist Family Violence List Pilot and the procedural measures to be applied by the Court and court users (6 September 2023). Read more here.


Clark v Attorney General (NSW) [2023] NSWCA 208
ADMINISTRATIVE LAW – judicial review – crime – application to set aside decision of judge to refuse to consider or otherwise deal with an application for an inquiry into a conviction – whether error of law on the face of the record or jurisdictional error.
ADMINISTRATIVE LAW – judicial review – boundary of legal unreasonableness – whether little weight accorded to a factor of great importance – need for caution to avoid review of merits.
CRIMINAL PROCEDURE – functions of judge considering an application for an inquiry into a conviction under Pt 7 of Crimes (Appeal and Review) Act 2001 (NSW) – functions non-judicial – where previous unsuccessful applications – refusal to consider or further deal with fresh application – no function to review correctness of earlier decisions.
Crimes Act 1900 (NSW) s 66C; Crimes (Appeal and Review) Act 2001 (NSW) Pt 7 ss 78, 79; Supreme Court Act 1970 (NSW) s 69; Criminal Appeal Rules (NSW) r 50C (repealed).

Sydney Trains v Argo Syndicate AMA 1200 (No 2) [2023] NSWDC 381
CONTRACTS – express terms.
CONTRACTS – formation – incompleteness – implication of terms – breach – causation – novus actus interveniens – waiver.
INSURANCE – liability insurance – professionals – exclusions – definitions.
INSURANCE – liability insurance – public liability.
INSURANCE – construction – exclusion clauses – performance warranties – professional activity.
PRACTICE AND PROCEDURE – release from Harman undertaking.
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), s 5; Compensation to Relatives Act 1897 (NSW), s 3, s 4; Corporations Act 2001 (Cth), s 601AG; Evidence Act 1995 (NSW), s 136; Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5.

Hildard Pty Ltd ATF Hildard Trust v Chief Commissioner of State Revenue [2023] NSWCATAD 247
TAXES AND DUTIES – land tax – whether trust is a fixed trust – use that can be made of unstamped documents – principal place of residence exemption.
Administrative Decisions Review Act 1997 (NSW), ss 55, 63; Civil and Administrative Tribunal Act 2013(NSW), s 41; Corporations Act 2001 (Cth), s 601RAA; Duties Act 1997 (NSW), s304; Land Tax Act 1956 (NSW), s 3AL, Sch 13; Land Tax Management Act 1956 (NSW), ss 3, 3A, 3B, 10, 25A, Sch 1A; Taxation Administration Act 1996 (NSW), ss 96,100, 101, 119; Trustee Companies Act; Uniform Civil Procedure Rules 2005, cl 31.

Rahme v North Sydney Council [2023] NSWLEC 1519
APPEAL – modification of development consent – part constructed residential flat building – building construction – consent orders hearing – public participation.
Environmental Planning and Assessment Act 1979, ss 2.19, 4.15, 4.16, 4.55, 4.8, 8.9; Environmental Planning and Assessment Regulation 2000, cl 115; Environmental Planning and Assessment Regulation 2021, Sch 6, s 3; North Sydney Local Environmental Plan 2013.

Sell & Parker Pty Ltd v Minister for Planning [2023] NSWLEC 1523
DEVELOPMENT APPLICATION – state significant development – increased throughput for metal recovery and recycling facility – acoustic walls – noise impacts on residential and non-residential receivers – project noise trigger levels – operational hours – operational noise limits – noise performance monitoring – need for real time monitoring – flooding implications of noise walls – air quality monitoring – ongoing function of Secretary of the Department of Planning and Environment – structural aspects of consent document – extensive disagreement on consent conditions.
Blacktown Local Environmental Plan 2015, cll 5.21, 7.3, 7.5; Environmental Planning and Assessment Act 1979 ss 4.12, 4.15, 4.17, 4.36, 4.38, 4.40, 4.5; Land and Environment Court Act 1979, s 39; Protection of the Environment Operations Act 1997, Ch 3; State Environmental Planning Policy (Planning Systems) 2021, ss 2.6, 2.7, Sch 1, s 23; State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 3, ss 3.11, 3.12, 4.6; State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.153, 2.122.

Carver v State of New South Wales [2023] NSWCA 223
CIVIL PROCEDURE – Court of Appeal – stay of judgment pending appeal – judgment for possession of Crown land – where applicant claims adverse possession – whether proposed appeal raises an arguable case – whether balance of convenience favours stay of enforcement of judgment.
Crown Land Management Act 2016 (NSW), s 13; Limitation Act 1969 (NSW), ss 27, 28.

Joseph v Kiama Municipal Council (No 3) [2023] NSWCATAD 243
ADMINISTRATIVE LAW – administrative review – government information – application for recusal – alleged improper conduct of the agency – whether a GIPA applicant can seek an order referring an Agency to the responsible minister before completion of an administrative review – whether allegations made by a GIPA applicant in relation to s 112 of the GIPA Act operate such that the respondent is deemed to have waived privilege over documents sought under a summons under s 125 of the Evidence Act.
Administrative Decisions Review Act 1997 (NSW); Civil Procedure Act 2005 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Copyright Act 1968 (Cth); Evidence Act 1995 (NSW); Government Information (Public Access) Act 2009 (NSW); Government Information (Public Access) Regulation 2018 (NSW); Interpretation Act 1987 (NSW); Privacy and Personal Information Protection Act 1998 (NSW).

oOh!media Fly Pty Limited v Transport for NSW [2023] NSWLEC 26
COMPULSORY ACQUISITION – claim for compensation – resumption of leasehold interest – 18 advertising billboards owned by claimant – billboards located on road between international and domestic terminals at Sydney Airport – compensation claim for hypothetical digitisation of signs prior to date of acquisition – no legal basis for a claim – if wrong, contingent determination of number of signs which might have been digitised – two signs would have been digitised.
COMPULSORY ACQUISITION – method to be used for calculating value of leasehold interest – discounted cashflow method appropriate basis of calculation – determination of input factors for such calculation.
COMPULSORY ACQUISITION – claim for “Digital advantage” – “Digital advantage” claim separate from “Halo effect” claim – no proper evidentiary basis for “Digital advantage” advantage claim – claim rejected.
COMPULSORY ACQUISITION – claim for “Halo effect” – “Halo effect” said to arise because of claimant's ability to market billboards in combination at multiple airport locations in other cities – no proper evidentiary basis for claim – claim mere assertion – claim rejected.
COMPULSORY ACQUISITION – claim for fees of forensic accountant – fees claimed pursuant to s 59(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 – fees said to be incurred as part of providing legal advice to claimant – fees properly claimed – reimbursement of claimed fees to be ordered.
DIRECTIONS – matter adjourned to permit the parties to consider the findings and calculate compensation based on them and to bring in orders to reflect the determined outcomes.
Land Acquisition (Just Terms Compensation) Act 1991; Land Tax Act 1956, s 3AL; State Environmental Planning Policy No. 64 ‑ Advertising and Signage.

Independent Liquor & Gaming Authority v 4 Boys (NSW) Pty Ltd [2023] NSWCA 210
LICENSING – Gaming Machines Act 2001 (NSW) – gaming machine entitlements (“GMEs”) – gaming machine threshold – application to Independent Liquor & Gaming Authority (“Authority”) to increase gaming machine threshold from 20 to 24 – application accompanied by “Local Impact Assessment” (LIA) – application and LIA approved – subsequent applications to transfer seven GMEs – applications approved and gaming machine threshold increased from 24 to 27 – application to Authority seeking revocation of earlier approval – power to revoke earlier approval of LIA – whether power to revoke earlier approval of increase in threshold – whether power to revoke earlier approval of transfer of GMEs – power of Authority to reduce threshold – whether power to “set” threshold under s 32(1) of Gaming Machines Act could be re-exercised from time to time to permit increase or decrease in threshold.
ADMINISTRATIVE LAW – Interpretation Act 1987 (NSW), s 48(1) – exercise of function from time to time as occasion requires – whether s 48(1) confers power to revoke previous decision made under a statutory power – whether s 48(1) requires every function to which the provision is directed to be interpreted as including power or authority to revoke earlier exercise of that function – effect of re-exercise of function or power may be to reverse or revoke earlier exercise of power – power conferred by s 19(2)(a) of Gaming Machines Act to approve transfer of GMEs does not include power to revoke earlier approval of transfer of GMEs – power conferred by s 34(4) of Gaming Machines Act to approve increase in threshold does not include power to revoke earlier approval of increase in threshold – in the alternative Gaming Machines Act manifests contrary intention to implication of any such powers of revocation.
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 64; Acts Interpretation Act 1901 (Cth), ss 5, 32, 33; Gaming Machines Act 2001 (NSW), ss 10, 11, 16, 19, 20, 25, 32, 34, 35, 36, 56; Gaming Machines Regulation 2019 (NSW); Interpretation Act 1889 (UK), s 32; Interpretation Act 1897 (NSW), s 32; Interpretation Act 1987 (NSW), s 48; Liquor Act 1982 (NSW), s 182; Liquor Act 2007 (NSW), s 53; Migration Act 1958 (Cth), ss 12, 501; Sir H. Meux’s Settled Estate Act 1863 (UK), s 3; Supreme Court Act 1970 (NSW), s 101.


NSW legislation

Bills introduced by Government
Motor Dealers and Repairers Amendment Bill 2023 – passed LC 14 September 2023
Radiation Control Amendment Bill 2023 – introduced LC 14 September 2023
State insurance and Care Governance Amendment (ICNSW Governance) Bill 2023 – introduced LA 13 September 2023
Paintball Amendment Bill 2023 – introduced LA 13 September 2023

Bills introduced by non-government
Parliamentary Evidence Amendment (Ministerial Accountability) Bill 2023 – introduced LC 13 September 2023
Petroleum (Onshore) Amendment (Liverpool Plains Prohibition) Bill 2023 – introduced LC 13 September 2023
Rural Fires Amendment (Red Fleet) Bill 2023 – introduced LA 14 September 2023

Bills passed by both Houses of Parliament
Sydney Olympic Park Authority Amendment (Hill Road Upgrade) Bill 2023 – 13 September 2023
Explosives Amendment Bill 2023 – 14 September 2023
Crimes Amendment (Corrupt Benefits for Trustees) Bill 2023 – 12 September 2023
Civil and Administrative Tribunal Amendment Bill 2023 – 14 September 2023

Regulations and other miscellaneous instruments
Public Health Amendment (Scheduled Medical Conditions and Notifiable Diseases) Order 2023 (SI 442) – published LW 11 August 2023
Local Government (General) Amendment (Tendering) Regulation 2023 (SI 101)


Acts compilation
International Transfer of Prisoners Act 1997 18/09/2023 – Act No. 75 of 1997 as amended
Telecommunications (Interception and Access) Act 1979 16/09/2023 – Act No. 114 of 1979 as amended
Crimes Act 1914 16/09/2023 – Act No. 12 of 1914 as amended
Surveillance Devices Act 2004 16/09/2023 – Act No. 152 of 2004 as amended
Foreign Evidence Act 1994 16/09/2023 – Act No. 59 of 1994 as amended
Privacy Act 1988 16/09/2023 – Act No. 119 of 1988 as amended
Australian Crime Commission Act 2002 16/09/2023 – Act No. 41 of 1984 as amended
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 16/09/2023 – Act No. 169 of 2006 as amended
Mutual Assistance in Criminal Matters Act 1987 16/09/2023 – Act No. 85 of 1987 as amended
Biosecurity Act 2015 16/09/2023 – Act No. 61 of 2015 as amended
Crimes Act 1914 12/09/2023 – Act No. 12 of 1914 as amended
Carob Credits (Carbon Farming Initiative) Act 2011 12/09/2023 – Act No. 101 of 2011 as amended
Environment Protection and Biodiversity Conservation Act 1999 08/09/2023 – Act No. 91 of 1999 as amended
Social Security (Administration) Act 1999 07/09/2023 – Act No. 191 of 1999 as amended

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Chloe Hamer, Christine Jones (Editor)

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