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Positive Duty under the Sex Discrimination Act 1984: A positive duty now requires all employers, including universities, to proactively prevent sexual harassment, sex-based harassment, discrimination and related misconduct, rather than merely reacting to complaints. This duty was introduced by the Respect\@Work amendments (effective December 2022), but crucially from 12 December 2023 it became enforceable: the Australian Human Rights Commission (AHRC) can investigate systemic non-compliance and issue compliance notices or seek court orders against organisations that don’t meet the standard[1]. For a university, this means taking active steps to ensure both its workplace (staff interactions) and its learning environment (staff–student and student–student interactions) are free from harassment. Waiting until a student or staff member complains is no longer enough – universities must continually assess risks (e.g. power differentials, residential college settings, field trip arrangements) and implement measures to mitigate them. The AHRC’s enforcement powers mean that a university with a poor track record (for instance, multiple incidents or “rape culture” concerns) could be subject to a compliance audit even without an individual complaint. The cost of inaction is high: apart from court orders, the AHRC can publicise findings, damaging an institution’s reputation.

Implications for Universities: This federal positive duty aligns with what many universities were already striving to do, but it places a legal onus on them to be systematic and thorough. Universities should have in place: comprehensive anti-discrimination and harassment policies (covering staff and students), regular training (including refreshers for faculty, admin staff, and student leaders), clear and accessible reporting avenues for students and staff, dedicated support services, and active monitoring of campus culture. Importantly, because universities deal with young adults and often hierarchical academia structures, “reasonable and proportionate measures” might include things like consent training during orientation, strict staff-student relationship policies, and bystander intervention programs. Failure to take such steps could expose the university to liability. The AHRC’s mid-2025 report Speaking from Experience has even recommended adding civil penalties for organisations that breach the positive duty[1][1], signalling that compliance expectations may tighten further.

Sex Discrimination Act – Scope Includes Education: It’s worth noting that under the Sex Discrimination Act, sexual harassment is unlawful not only in employment but also in education. For example, it is unlawful for a university staff member to sexually harass a student, or vice versa. This means the positive duty to prevent harassment extends to student-related contexts as well. Australian law clearly prohibits sexual harassment in any workplace or educational setting[2]. Universities, therefore, have a dual responsibility: as workplaces they owe duties to employees, and as educational institutions they must protect students from harassment and abuse of power. In practice, the measures a university takes under the positive duty should encompass student safety (e.g. training academic staff on appropriate boundaries, managing risks in activities like orientations, and making complaint processes student-friendly). The AHRC and state regulators will see a university’s campus and workplace culture as intertwined – a hostile environment for students can indicate broader systemic issues.

Fair Work Act 2009 – Sexual Harassment Prohibition: Since 6 March 2023, the Fair Work Act (FW Act) expressly prohibits sexual harassment in connection with work. This applies to all workplaces nationwide, including universities (most university staff are covered by the national industrial relations system). Under Part 3-5A of the FW Act, any worker (including employees, contractors, interns, and volunteers) is protected from sexual harassment at work[3]. Notably, a harasser can be any person at the workplace – so a staff member harassing another, a supervisor harassing a PhD student who is also an employee, or even a third-party (like a visitor or a student, in their interactions with staff) could fall under this. Employers are made vicariously liable for harassment by their employees or agents, unless they can prove they took “all reasonable steps” to prevent it[4]. The Fair Work Commission (FWC) can issue Stop Sexual Harassment Orders to quickly intervene in ongoing harassment situations. If a matter escalates, courts can award compensation or penalties. Importantly for universities, volunteers and unpaid interns are expressly covered by these protections – relevant because universities often have volunteers (e.g. student volunteers, honorary/adjunct staff) and placement students. The FWC’s reach means that a student on a work-integrated learning placement who experiences harassment at the university could seek orders, or a staff member could be ordered to stop harassing a student worker, etc.

Implications for Universities: The FW Act amendments basically make sexual harassment a workplace right issue similar to bullying. University HR departments must be prepared to handle harassment complaints not just through internal processes but also respond to formal FWC proceedings. If a student working as, say, a research assistant or a tutor is harassed by a supervisor, they (or their union or the Fair Work Ombudsman) can take the matter to the FWC. Universities therefore need robust systems to prevent and respond to harassment, as well as to cooperate with any FWC interventions. Non-compliance or an inadequate response can lead to legal liability. This also intersects with student protections: while a student purely in their capacity as a student would use anti-discrimination avenues, many postgraduate students or student leaders have dual roles as employees – and the FW Act gives them another pathway to seek redress.

Work Health & Safety – Psychosocial Hazard Code: In March 2025, Safe Work Australia released a new model Code of Practice: Managing Sexual Harassment and Gender-Based Harassment as WHS Risks[1]. This was adopted in multiple jurisdictions (NSW, SA, etc.) as an approved code. While at the federal level the code is advisory for Commonwealth workplaces, it signals a national consensus that sexual harassment is a workplace health and safety issue. Under WHS laws (which apply to universities as PCBUs – Persons Conducting a Business or Undertaking), employers must ensure the health (including psychological safety) of workers and others in the workplace so far as is reasonably practicable. The new code provides practical guidance on identifying harassment risks, implementing controls, and responding to incidents in a trauma-informed way[1][1]. For example, it suggests conducting anonymous surveys to gauge prevalence, considering risk factors like isolated study environments or high-power-difference relationships (common in academia), and taking corrective action.

Implications for Universities: Although a code is not law, it can be used as evidence of what is reasonably practicable in WHS prosecutions[1]. A university that ignores this guidance risks breaching its WHS duties. Practically, universities should integrate sexual harassment into their WHS risk assessments. This might involve the Health & Safety office working alongside equity offices to track reports of sexual harassment as they would physical injuries. Safety committees should include sexual harassment prevention on their agenda. If a laboratory or field trip poses particular risks (e.g. a lone PhD student working with an older supervisor off-site), those should be identified and mitigated (perhaps have a policy of at least two students per trip, etc.). WHS regulators in each state can inspect and enforce psychosocial safety – a notable development for universities, which historically were more focused on laboratory safety and the like. Now, an unsafe campus culture is officially a safety breach.

National Higher Education GBV Code (2025): A landmark development specifically for universities is the new National Code to Prevent and Respond to Gender-Based Violence in Higher Education. This was agreed by Education Ministers in February 2024[1] and legislated by the Federal Parliament in August 2025[1]. The code is binding on all Australian universities (and other higher education providers) and is aimed at systematically tackling sexual assault and sexual harassment of students. Key features: universities must report annually on their progress in reducing sexual violence and exhibit continuous improvement[1]; they are required to implement training programs for both staff and students about consent, respectful relationships, and responding to disclosures[1]; they must have specialized staff and support services for survivors (and ensure staff handling complaints are properly qualified)[1][1]; and they need specific policies for higher-risk contexts like residential colleges and off-campus activities[1][1]. Compliance will be overseen by a new GBV Unit in the federal Department of Education, working in tandem with a National Student Ombudsman. The Ombudsman provides an external avenue for student complaints about how a university handled a sexual misconduct issue[1][1]. The Ombudsman can investigate and make recommendations (e.g. policy changes, training, even recommending fee refunds to affected students)[1], and under the Code universities are required to act on those recommendations[1]. Failure to comply with the Code can result in penalties – the legislation gives teeth to enforce standards.

Implications: This National Code is a game-changer for university governance. While many universities had policies, the Code creates uniform, enforceable benchmarks. University leadership (Vice-Chancellors and Councils) must treat this as a top priority risk area, akin to financial or research compliance. We can expect universities to update their student codes of conduct, staff training modules, and reporting systems in line with the Code’s requirements. For example, an outcome might be a mandated consent module that every student must complete each year, or compulsory bystander training for faculty. The Code’s implementation also means greater transparency – universities will be compelled to publish data on incidents and actions taken, something only about half were doing voluntarily[1][1]. Students, for their part, gain a stronger voice: with the Ombudsman and public reporting, if a university mishandles a case (as has occurred in the past), there’s now an independent body that can step in. Universities should anticipate more external scrutiny of their handling of sexual harassment/assault cases. In short, the sector is moving from self-regulation to external regulation on student safety, and universities must align their practices accordingly.

Anti-Discrimination Law: NSW’s Anti-Discrimination Act 1977 (ADA) prohibits sexual harassment in employment and in educational institutions, but this legislation has not yet been comprehensively updated by 2025. Unlike some other states, NSW still does not have a state-level “positive duty” provision or the newer concepts like hostile work environment in its ADA. However, NSW universities (like all NSW employers) are directly subject to the federal laws discussed above – notably the Sex Discrimination Act (with its positive duty and broad definitions) and the Fair Work Act harassment ban. Practically, most harassment complaints in NSW can be pursued through federal mechanisms (AHRC, FWC or federal courts), which offer broader remedies than the aging state law. There is, nonetheless, ongoing work towards reform: the NSW Law Reform Commission has reviewed the ADA, and changes may be on the horizon that could align NSW law with the Respect\@Work standards. For now, NSW universities should operate on the assumption that federal standards apply – meaning proactive prevention and zero tolerance of sexual harassment.

Work Health & Safety (WHS) – Psychosocial Hazards: NSW has been proactive in treating sexual harassment as a safety issue. Since October 2022, the WHS Regulation 2017 (NSW) explicitly requires PCBUs to identify and manage “psychosocial risks” at work, which include harassment, bullying, and violence. Building on this, in mid-2024 NSW adopted the new national code of practice on sexual harassment as an approved code. For a university, this translates to a need to integrate anti-harassment efforts into campus safety management. For example, a university should include scenarios like “student harasses tutor” or “professor harasses postgraduate student” in its risk assessments and then implement controls to prevent these (such as clear behaviour codes, safe meeting protocols, multiple avenues to report issues etc.). The approved code offers a framework: it suggests looking at workplace factors (e.g. imbalance of power, isolated work – think of a PhD student in the field with a supervisor), putting in place appropriate controls, and reviewing effectiveness regularly. Under the NSW WHS Act, while the code itself isn’t law, deviating from its guidance could leave a university exposed if an incident occurs. SafeWork NSW can issue improvement notices or fines if psychosocial risks are not being effectively managed. Notably, a university’s WHS duty extends to anyone at the workplace – which includes not just staff but students and visitors. So if, say, a student is sexually assaulted in a university dorm by another student or staff member, SafeWork NSW might investigate whether the university failed to ensure a safe environment.

Institutional Liability and Process: NSW universities should be keenly aware of vicarious liability: under both state and federal law, an institution can be held liable for harassment done by its employees (or even agents, like a person acting on behalf of the uni) unless it took all reasonable steps to prevent it[5][5]. This likewise applies if a staff member harasses a student – the university can be sued or face Commission proceedings for failing to prevent that. As the Daynes v I-MED case highlights, however, handling such matters requires care. In that case (in the healthcare context), the employer’s rush to dismiss without solid evidence backfired legally. For universities, which often handle misconduct by faculty or students via internal tribunals, the message is to maintain procedural fairness. For example, if a student alleges harassment by a lecturer, the university should conduct a fair and impartial investigation: give the lecturer a chance to respond to detailed allegations, weigh evidence objectively (perhaps with an independent investigator), and then take action. If the misconduct is proven on the balance of probabilities, the university must act decisively (as per its policies, likely dismissal for serious misconduct). Conversely, if evidence is inconclusive, the university may need to consider alternative measures (monitoring, warnings, additional training) rather than a punitive action that could be deemed unfair. Striking this balance is critical – both to avoid legal challenges by staff and to fulfill the duty of care to students and staff who report issues.

University Specific Context in NSW: NSW hosts many large universities (University of Sydney, UNSW, etc.) that have significant residential populations and diverse communities. These institutions should leverage the new national initiatives (like the GBV Code) and state guidance to update their campus strategies. The independent National Student Ombudsman (federal) is expected to take complaints from NSW students too[1][1], so NSW universities will effectively be answerable to both SafeWork NSW and the federal Ombudsman for issues of sexual harassment. Universities should ensure their internal complaint processes (like Title IX-like offices or “Respectful Relations” units) are well-resourced and capable of both preventing incidents and handling them properly when they do occur. Full compliance with the new federal Code will likely cover much of what NSW law expects, but the added layer of WHS duty means, for example, if a pattern of harassment in a particular faculty emerges, the university must treat that as a safety risk and address root causes (not just individual incidents).