The landscape of Australian workplace law has undergone a fundamental shift. No longer is it enough for organisations to react to harassment or discrimination after it occurs. The introduction of the Positive Duty under the Sex Discrimination Act 1984 (Cth) places a clear, proactive legal obligation on all employers and persons conducting a business or undertaking (PCBUs) to eliminate, as far as possible, unlawful conduct.

This is where the concept of the Active Bystander moves from a cultural aspiration to a critical component of legal compliance.

The Positive Duty: Shifting the Onus to Prevention

The Positive Duty, which the Australian Human Rights Commission (AHRC) is tasked with enforcing, requires organisations to take “reasonable and proportionate measures” to eliminate:

• Sexual harassment.
• Sex-based harassment.
• Discrimination on the grounds of sex.
• Conduct creating a hostile workplace environment on the grounds of sex.
• Related victimisation.

Compliance is not just about having a policy; it’s about embedding a culture of prevention. The AHRC’s Seven Standards for Complying with the Positive Duty provide the national benchmark for this culture change, and at the heart of several standards is the empowerment of the bystander.

The Critical Link: Bystander Obligations and the Seven Standards

While the legal Positive Duty rests on the employer, employees and workers have corresponding duties under Work Health and Safety (WHS) laws to take reasonable care for their own safety and the safety of others, and to comply with reasonable instructions. Crucially, fostering a culture of active bystanders directly contributes to an employer’s ability to meet several of the AHRC’s standards.

1. Culture: The Foundation of Intervention

• Standard 2: Culture requires the fostering of a safe, respectful, and inclusive culture that minimises the risk of unlawful conduct.
• The Bystander Link: A culture that explicitly encourages and protects active bystanders is a compliant culture. When employees feel safe to call out inappropriate behaviour without fear of reprisal (victimisation), it reinforces the respectful norms of the organisation. Bystander inaction is often a sign of a poor or unsafe culture.

2. Knowledge: Equipping for Action

• Standard 3: Knowledge dictates that all workers must be educated and trained on acceptable behaviour, their rights, and reporting processes.
• The Bystander Link: Training must extend beyond defining sexual harassment to providing scenario-based bystander intervention strategies (e.g., the ‘5 Ds’—Direct, Distract, Delegate, Delay, Document). This equips staff with the psychological safety and practical skills to intervene safely and effectively.

3. Support: Protecting Those Who Speak Up

• Standard 5: Support requires that accessible and trauma-informed support is available to those who experience or witness unlawful conduct.
• Standard 6: Reporting and Response mandates confidential and effective reporting options and protection from victimisation.
• The Bystander Link: Active bystanders often face immense social and professional risk when intervening, especially if the perpetrator is senior. Meeting these standards means offering specific support for bystanders and a zero-tolerance policy for victimisation. If a bystander is victimised for reporting or intervening, the organisation has fundamentally failed its Positive Duty.

4. Leadership & Risk Management: Setting the Tone

• Standard 1: Leadership requires senior leaders to champion respectful behaviour.
• Standard 4: Risk Management involves identifying and controlling risk factors for unlawful conduct.
• The Bystander Link: When senior leaders actively and publicly model bystander behaviour, calling out inappropriate jokes or microaggressions it legitimises intervention for all staff. Risk management must identify workplaces/situations (e.g., work travel, after-hours events, power imbalances) where bystander action is critical and implement controls like mandatory supervision or clear communication.

Practical Steps to Build an Active Bystander Culture

Organisations serious about compliance and a truly safe workplace must take concrete steps to transition employees from passive witnesses to active allies:

1. Mandatory, Repeat Training: Move beyond annual tick-box training. Implement scenario-based, interactive workshops focused solely on practical bystander intervention techniques.
2. Explicit Policy Protection: Your policies must clearly state that employees who report or intervene in good faith will be protected from any adverse action, and that failure to report observed misconduct may result in disciplinary action (particularly for managers).
3. Lead by Example: Senior leaders and managers must be the most visible active bystanders, setting the “tone from the top” that intervention is expected and valued.
4. Simplify Reporting: Ensure multiple, confidential, and easily accessible reporting channels (e.g., anonymous forms, trusted HR contacts, external hotlines) to reduce the friction of speaking up.

The Time for Passive Observation is Over

The AHRC’s new enforcement powers mean that compliance is no longer a legal nicety—it is a business imperative. The Positive Duty places the power of prevention firmly in the organisation’s structure, and the most powerful tool within that structure is the Active Bystander.

Building a safe workplace culture is not a solo effort by HR; it requires every individual to understand and embrace their moral and professional obligation to intervene, support, or report. By fully integrating bystander empowerment into the AHRC Seven Standards framework, Australian businesses can move beyond mere compliance to genuine cultural transformation.

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