AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
• a positive WHS duty to eliminate or minimise risks to health and safety, including from sexual harass - ment and sex or gender-based harassment; • protection from victimisation under the SDA; and • the ability for workers to seek a “stop sexual har - assment” order under the FW Act. Employer responses to sexual harassment com - plaints are now subject to heightened scrutiny, given the recent developments of the explicit prohibition of workplace sexual harassment under the FW Act and the introduction of the positive duty under the SDA. Sexual harassment is also recognised as a psychoso - cial hazard under WHS laws, requiring employers to identify, assess and control associated risks. In Victo - ria, forthcoming legislation effective from 1 November 2026 restricting the use of NDAs in sexual harassment matters will further shape how employers manage complaints and resolution processes. 8.3 Other Forms of Discrimination and/ or Harassment Including Bullying and/or Mobbing Protections also apply to allegations of discrimination, harassment, bullying and mobbing under federal and state laws. These include: • protection from adverse action taken for making a complaint about bullying, harassment or discrimi - nation; • protection from adverse action taken for a discrimi - natory reason; • prohibitions on discrimination based on protected attributes (such as sex, race or age); • a positive duty under state based WHS laws to eliminate risks to health and safety; and • the ability for a worker to seek a “stop bullying” order under the FW Act. 8.4 Criminal Cases As outlined in 2.2 Communication to Authorities and 6.6 Communications to Authorities , allegations that are also criminal in nature can require referral to police or other authorities. Regardless of whether police are involved or charges have been laid, concurrent HR investigations and criminal processes can raise complex issues, includ -
ing the employee’s privilege against self‑incrimina - tion, the risk of prejudicing criminal proceedings, and potential challenges to the admissibility or reliability of evidence obtained through the workplace inves - tigation. Accordingly, it is prudent for employers to seek legal advice when dealing with allegations that may amount to criminal conduct. Depending on the circumstances of the matter, employers may need to adopt modified procedures, such as: • pausing or suspending the internal investigation while criminal proceedings are under way; • modifying the investigation – for example, limiting investigative steps, focusing on interim workplace risk management measures, or deferring ultimate findings until conclusion of the criminal process; • providing clear communication to participants about the distinction between the internal investi - gation and any criminal process; and • remaining alert to the impact of publicity surround - ing criminal allegations, as media coverage or workplace discussion can affect witness recollec - tion, independence of evidence, and willingness to participate. 8.5 Multi-Jurisdictional HR Internal Investigations There are no special procedures for multi-jurisdictional investigations; however, employers should be aware of legal and practical complexities involved. Relevantly, the FW Act has extraterritorial reach in some circumstances, in relation to “Australian-based employees” or any employees of an “Australian employer”. Foreign employers may carry out investigations in Australia, and, similarly, Australian employers may carry out investigations abroad. In all cases, employers should consider: • which jurisdiction’s laws apply to the employment relationship and conduct in question;
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