The Complete Guide to Investigation Compliance Under Positive Duty

What Positive Duty Means for Investigation Teams

Since December 2023, the Australian Human Rights Commission (AHRC) has had the power to enforce the Positive Duty, the obligation for organisations to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex discrimination, sex-based harassment, hostile work environments, and related unlawful conduct.

The Positive Duty is not a new concept. It was introduced through amendments to the Sex Discrimination Act 1984 following the Respect@Work report. What changed in December 2023 was enforcement. The AHRC can now conduct inquiries, issue compliance notices, and apply to the Federal Court for enforcement orders.

For investigation teams, the Positive Duty creates specific obligations around how complaints are received, triaged, investigated, and resolved. An organisation that receives complaints but investigates them poorly, or does not investigate at all, is failing its Positive Duty obligations regardless of how comprehensive its prevention policies may be.

The Seven AHRC Standards

The AHRC has published seven standards that define what compliance with the Positive Duty looks like. Investigation teams should understand how each standard applies to their function:

Standard 1: Leadership

Leadership must demonstrate commitment to preventing and responding to unlawful conduct. For investigation teams, this means that investigation function leadership must be visible, resourced, and accountable. Investigation outcomes must be taken seriously by senior leadership, and recommendations must be actioned.

Standard 2: Culture

Organisational culture must support reporting and respond appropriately to complaints. Investigation teams contribute to this standard by conducting investigations that are perceived as fair, thorough, and confidential. If employees believe that complaints are not properly investigated, they will not report.

Standard 3: Knowledge

Employees must understand what constitutes unlawful conduct and how to report it. Investigation teams should ensure that complainants and respondents understand the investigation process, their rights, and what to expect.

Standard 4: Risk Management

Organisations must identify and manage the risk of unlawful conduct. Investigation data (complaint volumes, patterns, repeat subjects, departmental concentrations) is a critical input to risk assessment. Investigation teams must provide this data through structured reporting and analytics.

Standard 5: Support

Organisations must provide support to those affected by unlawful conduct. During investigations, this includes keeping complainants informed of progress, providing access to support services, and managing the impact of the investigation process on all parties.

Standard 6: Reporting and Response

Organisations must have processes for reporting and responding to complaints. This is the standard most directly relevant to investigation teams. It requires:

• Accessible reporting channels: multiple pathways for complaints to be received
• Prompt response: complaints must be triaged and responded to within reasonable timeframes
• Appropriate investigation: complaints that warrant investigation must be investigated using a competent, fair methodology
• Documented outcomes: investigation findings and recommendations must be documented and communicated appropriately
• Procedural fairness: all parties must be afforded procedural fairness throughout the investigation process

Standard 7: Monitoring, Evaluation and Transparency

Organisations must monitor and evaluate the effectiveness of their prevention and response measures. Investigation teams must track metrics (complaint volumes, investigation timelines, outcome patterns, recommendation implementation) and use this data to improve processes.

What a Compliant Investigation Process Looks Like

Intake

A Positive Duty-compliant intake process:

• Provides multiple reporting channels (online form, email, phone, in-person)
• Captures consistent information through structured intake forms
• Acknowledges receipt within a defined timeframe (best practice: within 2 business days)
• Applies initial assessment criteria to determine appropriate response
• Identifies whistleblower protections if applicable
• Documents the intake decision and rationale

Triage

Every complaint must be assessed and a documented decision made about the appropriate response:

• Investigate: complaints that meet investigation thresholds
• Refer: matters that should be handled by another function (HR, legal, external authorities)
• Informal resolution: matters suitable for mediation or informal intervention
• Monitor: matters that do not currently meet thresholds but should be tracked
• Close: matters assessed as not requiring further action, with documented rationale

The triage decision, decision-maker, and rationale must be documented. An immutable audit trail ensures this documentation cannot be altered after the fact.

Investigation

Compliant investigations must demonstrate:

• Competence: the investigator has appropriate qualifications, experience, and training
• Independence: the investigator has no conflict of interest
• Methodology: the investigation follows a documented, repeatable methodology
• Scope: the investigation scope is defined and communicated to all parties
• Evidence collection: evidence is collected systematically with chain-of-custody controls
• Natural justice: respondents are informed of allegations and given an opportunity to respond
• Timeliness: the investigation is completed within a reasonable timeframe
• Confidentiality: information is shared only on a need-to-know basis

Decision and Documentation

Investigation outcomes must be:

• Based on evidence and reasoned analysis
• Documented with reference to the evidence supporting each finding
• Consistent with previous decisions in similar matters (or with documented reasons for deviation)
• Communicated to complainants and respondents appropriately
• Accompanied by actionable recommendations

Follow-Up

Post-investigation obligations include:

• Implementing recommendations within defined timeframes
• Monitoring for retaliation against complainants or witnesses
• Tracking recommendation implementation
• Contributing investigation data to trend analysis

Common Failures

Investigation teams commonly fail Positive Duty compliance in these ways:

Delayed response. Complaints sit in email inboxes for weeks before triage. The AHRC expects prompt response, not perfection, but evidence that complaints are being actively managed.

Inconsistent methodology. Different investigators follow different processes. One investigator conducts detailed interviews and produces comprehensive reports. Another conducts a cursory review and produces a one-paragraph summary. Without a structured platform enforcing methodology consistency, quality varies with the individual.

Inadequate documentation. Investigation decisions are made but not documented. When the AHRC asks why a particular complaint was not investigated, the organisation cannot explain because the triage decision was made verbally and never recorded.

No trend analysis. The organisation investigates individual complaints but never analyses patterns. Twenty complaints about the same department over two years go unconnected because each was handled as an isolated matter.

Procedural fairness failures. Respondents are not given an adequate opportunity to respond to allegations. Findings are reached without considering the respondent’s account. These failures not only undermine Positive Duty compliance but also expose the organisation to Fair Work Commission challenges.

How SentinelOps Supports Positive Duty Compliance

SentinelOps provides the structured platform that Positive Duty compliance requires:

• Structured intake with multiple reporting channels and consistent data capture
• Documented triage decisions with immutable audit trail records
• Configurable investigation workflows that enforce consistent methodology across investigators
• Evidence management with chain-of-custody controls
• Procedural fairness documentation: prompts for natural justice steps at key investigation milestones
• Immutable audit trails demonstrating the process followed for every complaint
• Trend reporting identifying patterns across complaints, subjects, and business units
• Deadline tracking ensuring timely response and investigation completion

Frequently Asked Questions

Can the AHRC penalise organisations for inadequate investigation processes?

The AHRC can conduct inquiries into an organisation’s compliance with the Positive Duty. If the AHRC finds non-compliance, it can issue compliance notices requiring specific actions. If compliance notices are not followed, the AHRC can apply to the Federal Court for enforcement orders. The investigation process is a key element of Standard 6 (Reporting and Response).

Does every complaint require a formal investigation?

No. Not every complaint requires a formal investigation. Some matters may be appropriate for informal resolution, referral, or monitoring. However, every complaint requires a documented triage assessment that explains the decision and rationale.

What qualifications should investigators have?

The AHRC does not prescribe specific investigator qualifications. However, investigators should have appropriate training in investigation methodology, procedural fairness, and the relevant legal frameworks. Organisations should be able to demonstrate that investigators are competent for the matters they are assigned.

How does Positive Duty interact with WHS psychosocial hazard obligations?

Positive Duty and WHS psychosocial hazard regulations overlap significantly. Workplace sexual harassment is both a Positive Duty matter and a psychosocial hazard under WHS legislation. Investigation processes should address both frameworks simultaneously.

What records should we keep for Positive Duty compliance?

At minimum: complaint records, triage decisions with rationale, investigation plans, evidence collected, interview records, findings with supporting evidence, recommendations, and implementation tracking. SentinelOps captures all of these within an immutable audit trail.