Olivia is the Head of Legal at Lawpath, where she helps Australian businesses navigate complex legal challenges with practical, commercially minded advice. She specialises in employment matters, contract drafting, pre-litigation strategy, dispute resolution, commercial law and startup compliance, and has supported clients across technology, healthcare, professional services and retail. Olivia is passionate about making legal services accessible, personable and effective for every client.
The sexual harassment laws in Australia make it unlawful to sexually harass a person in connection with work, and they now put the job of preventing it squarely on the employer. Three laws apply at the same time: the Sex Discrimination Act 1984 (Cth), the Fair Work Act 2009 (Cth), and work health and safety law in your state or territory.
Here is the part most business owners miss. These are not rules you can get to later. The biggest shift, a legal duty to prevent harassment before anyone complains, has been enforceable since December 2023. If sorting your policy and training has been on the “one day” list, you are behind the law, not ahead of it. The good news: catching up is more manageable than it sounds, and this guide walks you through exactly what the sexual harassment laws in Australia ask of you.
- Three laws apply at once. The Sex Discrimination Act, the Fair Work Act and state WHS law all cover workplace sexual harassment, and they overlap rather than replace each other.
- Prevention is now the legal standard. Since 12 December 2023 the Australian Human Rights Commission can enforce a positive duty that requires you to take reasonable steps to stop harassment before it starts.
- It still counts after hours. Harassment at a work function, conference or work trip is workplace harassment, even when it happens offsite or on a Friday night.
- You can be liable for your staff. Employers are vicariously liable for harassment by their workers unless they can show they took all reasonable steps to prevent it.
- “Reasonable steps” means real action. A written policy, training, more than one reporting channel and a fast, fair response are the baseline, not a nice-to-have.
What counts as sexual harassment under Australian law?
Sexual harassment is any unwelcome conduct of a sexual nature that a reasonable person would expect could make someone feel offended, humiliated or intimidated. That is the test in section 28A of the Sex Discrimination Act, and it turns on two things: the conduct is unwelcome, and it is sexual. Whether the other person “meant it” does not come into it.
Most people picture the obvious stuff: touching, explicit messages, propositions. The law is wider than that. It also covers behaviour like these:
- Unwelcome touching, hugging or kissing
- Staring, leering or unwelcome comments about someone’s body or appearance
- Repeated invitations on dates after a clear no
- Sexually explicit emails, texts, calls or messages in a group chat
- Intrusive questions about someone’s private life
- Sharing sexual images or jokes where others can see or hear them
One point trips up a lot of employers. The conduct does not have to be aimed at a specific person. A workplace where sexual jokes, images or “banter” are part of the furniture can be a hostile environment for everyone in it, and that is unlawful too. If you want to see where harassment sits next to related conduct, our guide on discrimination versus harassment in the workplace breaks down the overlap.
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What are the sexual harassment laws in Australia right now?
Right now, three separate laws deal with sexual harassment in the workplace, and a single incident can touch all three. This is the piece older articles get wrong by treating one 2023 change as the whole story. Each law carries its own employer legal obligations, so here is how the current sexual harassment laws in Australia fit together.
| Law | What it does | Where a complaint goes |
|---|---|---|
| Fair Work Act 2009 (Cth) | Bans sexual harassment connected to work. Lets workers (and in some cases unions and the Fair Work Ombudsman) seek compensation and orders. | Fair Work Commission for stop sexual harassment orders and to resolve disputes; federal courts for penalties and compensation. |
| Sex Discrimination Act 1984 (Cth) | Bans sexual harassment and imposes the positive duty to prevent it. | Australian Human Rights Commission for complaints and for enforcing the positive duty. |
| WHS law (your state or territory) | Treats sexual harassment as a psychosocial hazard you must identify and control, the same as any other safety risk. | Your state SafeWork regulator; a worker may also lodge a WorkCover claim. |
That Fair Work prohibition took effect on 6 March 2023. In practice, a worker no longer has to prove ongoing risk to get help. They can ask the Fair Work Commission to deal with a one-off incident, and the Commission can conciliate, arbitrate, or make orders. The Sex Discrimination Act route and the WHS route sit alongside it, so your real obligation is to satisfy all three, not pick one.
What is the positive duty, and what does it mean for your business?
Of the three, the positive duty changes the most for employers. This is the statutory duty to prevent sexual harassment, and it requires you to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination, hostile workplace environments and victimisation as far as possible. It is not something you action after a complaint. It applies now, in a quiet workplace with no complaints at all.
It started under the Sex Discrimination Act in December 2022, and the Australian Human Rights Commission gained powers to enforce it from 12 December 2023. The Commission has since moved from education into active compliance, running inquiries into whole industries including retail, hospitality, finance and transport. Small businesses are not exempt. What is “reasonable and proportionate” scales with your size and resources, so a cafe is held to a different standard than a 200-person firm, but every business has the duty.
The Commission’s guidelines for meeting the positive duty, the current guidance employers are measured against, group the work into seven standards: leadership, culture, knowledge, risk management, support, reporting and response, and monitoring. In plain terms, you need to know your risks, put real controls in place, make it safe to report, respond properly when someone does, and check that any of it is working.
Who is protected, and who can be held liable?
Protection is broad, and it is not limited to permanent employees. The sexual harassment laws in Australia cover a wide group of people connected to your business:
- Employees and contractors, plus volunteers and work-experience students
- Job applicants and future workers
- Anyone running or undertaking a business who deals with your people, including clients and customers
Now the part that catches owners off guard: liability. You can be held vicariously liable for sexual harassment committed by one of your workers in connection with their work. The only way out is to show you took all reasonable steps to prevent it. A policy sitting unread in a drawer will not clear that bar. Demonstrated action will. This is exactly why the positive duty and the liability rule point to the same to-do list.
What we see in Lawpath consultations
The law is one thing. What actually walks through the door is another. Across Lawpath consultations on workplace sexual harassment, our lawyers see the same few patterns on repeat, and most of them are avoidable.
“It happened at the Christmas party, so it is not our problem.” This is the single most common wrong assumption. A large share of the incidents owners bring to us happened at an after-work function, a conference or an offsite event, and the first instinct is that the business is off the hook because it was not “at work”. It is on the hook. If the connection to work is there, the conduct is covered.
The complaint is about a manager, and the business freezes. When the person accused is senior, we repeatedly see the response stall for weeks or months while the business works out what to do. That delay is its own risk. A slow or half-hearted response can breach the positive duty and fuel a victimisation claim on top of the original one.
Owners jump straight to termination. A frequent first question is “can I sack them without notice?” Sometimes the answer is yes. But firing the accused does not discharge your duty to the person who was harassed, and a rushed exit without a fair process can turn one legal problem into two. Process first, then the decision.
It arrives as a safety claim, not a discrimination one. More matters than people expect reach us as a WorkCover or WHS issue, where harassment has become a psychosocial injury. Treating sexual harassment purely as an HR or discrimination question, and forgetting the safety duty, leaves a gap that regulators now look straight at.
What should you actually do to comply?
You do not need to become an employment lawyer. Meeting the sexual harassment laws in Australia comes down to a short list of concrete actions, and most businesses can get the core of it done in a week.
- Put a policy in writing. Define what sexual harassment is, say plainly that it is banned, and set out how to report it and what happens next. A ready-made harassment and bullying policy template gives you a compliant starting point you can tailor in an afternoon.
- Train your people, and keep a record. Everyone should know what the policy says, what to do, and who to go to. The training record is part of your “reasonable steps” evidence.
- Give more than one way to report. If the only path runs through a direct manager, a worker whose manager is the problem has nowhere to go. Offer an alternative contact.
- Act fast and fairly when something is raised. Take it seriously, protect the person who reported it, investigate without taking sides, and document what you did.
- Run a psychosocial risk check. Under WHS law, harassment is a hazard. Look at where the risk is highest in your workplace and put controls around it.
A policy is strongest when it sits alongside your other workplace rules, like a discrimination policy and a social media policy covering online conduct. If you would like the wider picture on prevention, our guide on steps to prevent workplace bullying covers the culture side, which is where most of this is won or lost.
What happens if you get it wrong?
Getting this wrong has become more expensive, and the bill lands from several directions. A worker can take a dispute to the Fair Work Commission or a complaint to the Human Rights Commission. Courts can order compensation, and the amounts are no longer token. The landmark case is Richardson v Oracle, where the Full Federal Court in 2014 lifted a sexual harassment damages award from $18,000 to $130,000, resetting the going rate for every case since.
On top of private claims, the Australian Human Rights Commission can investigate and enforce the positive duty, and your state WHS regulator can act where harassment is a safety failure. There is a reputational bill too, which for a small business can bite harder than the legal one. If a complaint has already landed, or you are not sure where you stand, it is worth getting advice early. You can hire a lawyer through Lawpath for a fixed-fee consultation rather than waiting for a problem to grow.
Frequently asked questions
Are the sexual harassment laws in Australia new?
No. The main changes are already in force. The Fair Work Act prohibition started on 6 March 2023, and the positive duty under the Sex Discrimination Act has been enforceable since 12 December 2023. If your business has not acted yet, you are behind the current law, not preparing for a future one.
Does the positive duty apply to small businesses?
Yes. Every employer has the positive duty. There is no small-business exemption. What counts as “reasonable and proportionate” scales with your size and resources, so a small team is not expected to do what a large company does, but a written policy, basic training and a clear reporting path are expected of everyone.
Is harassment at a work social event covered?
Yes. Conduct at a Christmas party, a conference, a work trip or a client event is workplace sexual harassment if it is connected to work. The location and the time of day do not get the business off the hook. This is one of the most common things employers get wrong.
Can an employer be liable for harassment between two employees?
Yes. You can be vicariously liable for harassment by one worker against another when it happens in connection with work. The defence is to show you took all reasonable steps to prevent it, which means a real policy, training and a proper response, not a document nobody has read.
What is the difference between the Fair Work Act and the Sex Discrimination Act here?
Both ban sexual harassment, but they offer different paths. The Fair Work Act lets a worker take a dispute to the Fair Work Commission, including for a single incident. The Sex Discrimination Act bans harassment and adds the positive duty to prevent it, enforced by the Australian Human Rights Commission. A worker can choose their route.
Do I need a written sexual harassment policy?
You are not forced to have one specific document, but in practice a written policy is the clearest way to show you took reasonable steps. Without it, proving you met the positive duty or the vicarious-liability defence is much harder. A tailored policy plus training is the simplest way to cover both.
What should I do if someone makes a complaint?
Act quickly. Take the complaint seriously, protect the person who raised it from any backlash, and investigate fairly without deciding the outcome in advance. Keep clear records of each step. Do not rush to terminate the accused before a proper process, as that can create a second legal problem.
Can contractors or volunteers make a claim?
Yes. Protection reaches beyond permanent staff to contractors, volunteers, work-experience students and even job applicants. If someone is connected to your work and is harassed in that context, the law can apply, and your duty to prevent harassment covers them too.
Is sexual harassment illegal in Australia?
Yes. Sexual harassment connected to work is unlawful under both the Fair Work Act and the Sex Discrimination Act, and it can also breach work health and safety law. Sexual harassment law treats it as prohibited conduct, and a person who is harassed has several avenues to make a claim.
What are an employer’s legal obligations for sexual harassment in the workplace?
Your core obligation is to prevent sexual harassment in the workplace, not only to respond once it happens. In practice that means a written policy, training, clear reporting channels, a fair and fast response, and managing harassment as a safety risk. Meeting these employer legal obligations is how you satisfy the positive duty and limit your liability.
Where to start
If this feels like a lot, take a breath. You are not behind for a business at your stage, and you do not have to fix everything at once. Most of what the law asks for comes down to one clear policy, one training session and a reporting path your team trusts. Get those three in place and you have covered the bulk of your duty.
Start with the document that does the heavy lifting. Set up your harassment and bullying policy today, and tick off the biggest part of meeting the sexual harassment laws in Australia.
