(Cth) Implement a Positive Duty to Prevent Racial Discrimination in the Workplace

Noah Star, Eren Olmez & Afni Silaban
May 5
7 min read

Author: Noah Star, Eren Olmez & Afni Silaban | Publish date: 5/5/2026

Trigger Warning: Stories of racism and discrimination

P: In Australia, organisations and businesses do not have a positive duty to prevent workplace racial discrimination.
S: The Attorney-General should amend the Racial Discrimination Act 1975 (Cth) to introduce Section 15AA, to implement a positive duty on organisations to prevent racial discrimination in the workplace.
E: Race Discrimination Commissioner at the AHRC: ‘We need a positive duty to eliminate racial discrimination’ in the workplace.

Problem Identification:

Section 15 of the Racial Discrimination Act 1975 (Cth) (the Act) prohibits racial discrimination in the dismissal, hiring or upskilling processes of Australian businesses and organisations. However, according to the Australian Human Rights Commission (AHRC) Race Discrimination Commissioner, Giridharan Sivaraman, it does not include a positive duty to proactively prevent workplace racial discrimination.

According to Culture Plus Consulting (CPC), a diversity, equity and inclusion (DEI) consultancy firm, this means that the Act’s ‘focus [is] on addressing racism only after it happens.’ Sivaraman identified that this ‘requires the victims of racism, who are often traumatised, under resourced and overwhelmed and with limited power to bring a complaint’ before a remedy can occur.

Context:

The AHRC refers to racial discrimination as a situation where ‘a person is treated less favourably, or not given the same opportunities, as others in a similar situation, because of their race, the country where they were born, their ethnic origin or their skin colour.’

A positive duty refers to ‘a standard set out in legislation that requires organisations to be proactive in addressing discrimination.’

The Scanlon Foundation Research Institute reported in 2025 that 69% of adult respondents considered ‘racism … [to be] a fairly or very big problem in Australia’. Furthermore, 27% of respondents with an Asian or African background reported ‘not [being] offered a job or treated fairly at work in the last 12 months’ due to their ethnicity.

Diversity Council Australia (DCA) conducted a survey in 2022, which further revealed ‘93% of respondents agreed organisations need to take action to address’ racial discrimination. They also said that only 27% of Australian ‘organisations are proactive in preventing workplace racism.’

Arguments:

According to Peucker et al. (2024), current complaint-based legislation could ‘draw individuals into disempowering processes that require individuals to invest a lot of time, effort and emotional labour’, which could discourage victims from finding justice. Vergani and Navarro (2020) provided anecdotal evidence that the current reporting process ‘makes the victim feel that reporting is not worthwhile’ due to being ‘time consuming’ and ‘emotionally draining’. Similarly, in a survey funded by VicHealth, a respondent revealed ‘“if you report racism, straight away […] you become a target.”’ The respondents emphasised this means that those who have been subjected to racism are a ‘double victim’, by both the treatment and the reporting process available. As noted by academics from the University of Melbourne and Victoria University, when ‘racism often goes undetected and unreported’, then ‘injustice remains unchallenged and normalised’, perpetuating an environment where racism is accepted.

Sivaraman highlighted that the Act’s complaint-based model ‘requires harm to be suffered before action can be taken,’ failing to protect individuals from the harm associated with racial discrimination. Moreover, Sarah Ibrahim, a lawyer at the Racial Justice Centre, argued that the Act is ‘outdated’ and ‘ineffective’ by allowing ‘covert’ forms of racial discrimination to continue unaddressed. For example, ABC News reported that a woman of Muslim faith was asked at her workplace, ‘“What are your cousins in the Taliban going to do next,”’ which left her ‘traumatised’ and informed her decision to ‘remain silent to avoid further discrimination.’ CPC suggested that such a ‘reactive approach places the burden on individuals’, leading to ‘significant personal and professional cost[s].’

An Australian Industry Group chief executive argued that Australian businesses are already ‘being strangled by red tape’ when it comes to diversity legislation. However, workplace racial discrimination is estimated to cost the Australian economy $44.9 billion AUD annually. Dr Elias, a research fellow at Deakin University, noted that this was because workplace racial discrimination leads to a ‘loss of productivity and talent’.

Advice/Solution Identification:

The AHRC, CPC and Equality Australia have all called for a positive duty to prevent workplace racial discrimination. CPC explained that ‘a positive duty would shift the focus to prevention, requiring employers to actively identify and eliminate racism within their organisations.’

Precedent:

There is domestic and international precedent for establishing a positive duty to prevent racial discrimination at the workplace. Domestically, both VIC and the ACT have established a positive duty. Further, there is already federal precedent for a positive duty to prevent sexual discrimination. Internationally, the UK and Canada have legislated a positive duty to prevent workplace discrimination.

Public support:

Broad support:

Legal Aid NSW - Supported a positive duty to prevent racial discrimination at the state level by introducing it into the Anti-Discrimination Act 1977 (NSW).
Racial Justice Centre - ‘We maintain that a positive duty is critical to modernising anti-discrimination law. We submit that the positive duty must extend beyond the Victorian and ACT to create an independent cause of action for the victim.’ However, they have not explicitly called for the federal implementation of a positive duty to prevent racial discrimination in the workplace.

This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.

News Coverage:

ABC News - “Researchers say racism is costing the Australian economy billions”. The article reported on the direct and indirect costs of workplace racism, revealing how it impacts all Australians. By: Roje Augustin | Sat 3 Jul 2021 - Read the article here.
ABC News - “Race discrimination commissioner releases plan to end racism in 10 years”. The article reported on the Race Discrimination Commissioner’s approach to combating systemic racism in Australia. By: Shalailah Medhora | Tue 26 Nov 2024 - Read the article here.
Australian Financial Times - “Workplace racism costs economy $37b a year: AHRC”. The article examined the financial costs associated with workplace racism. By: Rachael Bolton | Fri 1 Aug 2025 - Read the article here.
The Senior - “Stubborn workplace racism sparks call for major inquiry”. The article provided reasoning for a national inquiry into workplace racism, building on the precedent set by the inquiry into sex discrimination. By: Tom Wark and Tess Ikonomou | Wed 5 Nov 2025 - Read the article here.

Where to go to learn more:

(2024) The National Anti-Racism Framework Full Report | Australian Human Rights Commission - This report served as a society-centred approach to end racism, by providing 63 recommendations to call for reform across Australia’s systems and structures. Included was the establishment of a positive duty to prevent racial discrimination in the workplace. View the report here.
(2024) Guideline: Race discrimination in the workplace | The Victorian Equal Opportunity and Human Rights Commission - The guideline aimed to assist employers to eliminate racism in the workplace and to comply with the Equal Opportunity Act. It provided recommendations on how to prevent and respond to race discrimination, including through complying with a positive duty. View the guideline here.
(2026) Respect at Uni: Study into antisemitism, Islamophobia, racism and the experience of First Nations people | Australian Human Rights Commission - This study was grounded in the stories of over 76,000 university students and staff who have suffered racism and discrimination. This study offered a national, long-term approach designed and developed to measure and track racism in universities. View the report here.
(2026) Inclusion@Work Index 2025-2026 | Diversity Council Australia - The report showed a significant rise in workplace inclusion, with 62% of workers now seeing organisational action, and a record high of 56% inclusion in teams. In contrast, inclusive manager ratings have remained stagnant since 2019 and have continued to suggest the marginalisation of certain groups. View the report here.
Racial Discrimination Act 1975 (Cth) - View the full Act here.

Human Perspective:

Trigger Warning: Racial discrimination

Amara is a mid-level project manager at an Australian accounting firm. Despite her qualifications, Amara consistently found herself excluded from high-stakes client meetings and overheard ‘jokes’ about her accent in the breakroom. This persistent exclusion and mockery fostered a deep sense of professional alienation, eroding her self-confidence and degrading her mental health. Amara knew this treatment was not fair or right, but she feared backlash from her colleagues and upper management if she spoke up. She also knew how long and expensive the legal process was if she filed an official complaint. Because of this, she decided not to go through the complaint process and continued to suffer in silence. She felt trapped in a workplace where her dignity was an afterthought rather than a protected right.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement:

N/A

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Reference list:

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Australian Human Rights Commission. (2025, June 17). 50th anniversary of the Racial Discrimination Act 1975. https://humanrights.gov.au/about-us/media-centre/speeches/race/50th-anniversary-racial-discrimination-act-1975

Australian Human Rights Commission. (2025, August 6). Race Discrimination Commissioner Sivaraman National Press Club address. https://humanrights.gov.au/about-us/media-centre/speeches/race/race-discrimination-commissioner-sivaraman-national-press-club-address

Australian Human Rights Commission. (2015, February 11). Racial discrimination. https://humanrights.gov.au/resource-hub/by-resource-type/publications/race/racial-discrimination

Australian Human Rights Commission. (2008, March 31). An international comparison of the Racial Discrimination Act 1975. https://humanrights.gov.au/__data/assets/file/0019/52246/RDA_int_comparison.pdf

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Culture Plus Consulting. (2024, December 5). Preventing racism in Australian workplaces: The case for a positive duty. https://cultureplusconsulting.com/preventing-racism-in-australian-workplaces/

Deakin University. (2016, April 6). Counting the billion-dollar cost of racism in Australia [Media Release]. https://www.deakin.edu.au/about-deakin/news-and-media-releases/articles/counting-the-billion-dollar-cost-of-racism-in-australia

Diversity Council Australia. (n.d.). Implementing positive duties. https://www.dca.org.au/resources/di-planning/compliance/implementing-positive-duties

Diversity Council Australia. (2022, March 20). New Australian research shows businesses how to address racism at work [Media release]. https://www.dca.org.au/news/media-releases/how-businesses-can-address-racism

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Vergani, M. & Navarro, C. (2020, June 30). Barriers to reporting hate crime and hate incidents in Victoria: A mixed methods study. Centre for Resilient and Inclusive Societies, Deakin University. https://www.crisconsortium.org/research-reports/hate-crime-barriers