Law Letter Hub Articles
Your Positive Duty Under the WHS Act: How to Be an Active Bystander
28 February 2025
The legal profession is no stranger to discussions about workplace culture, power dynamics, and the need for reform. Despite ongoing efforts to curb sexism, discrimination, and harassment, issues persist. The Respect at Work Act 2022 now places a positive duty on employers to prevent workplace harassment and discrimination, shifting the focus from reaction to proactive prevention. This duty extends beyond policy and enforcement – it requires cultural change, and one of the most effective ways to achieve this is through active bystanders.
Lisa Stockwell, Principal at Camben HR Consulting, recently delivered training for the Law Society of Tasmania on WHS Act – Your Positive Duty: How to Be an Active Bystander. Her session explored the critical role bystanders play in shaping workplace culture and preventing inappropriate behaviour before it escalates.
The Role of a Bystander in Workplace Culture
A bystander is anyone who sees or hears an incident but is not directly involved. While many workplace interactions seem innocuous, passive acceptance of inappropriate behaviour enables a culture where sexism, harassment, and discrimination can thrive. Active bystanders take action – whether through direct intervention, support for the target, or reporting misconduct.
Stockwell highlighted that harassment and discrimination in the legal profession remain underreported. A 2019 Victorian Legal Services Board survey found that:
- 36% of respondents had experienced sexual harassment, but fewer than 1 in 5 reported it.
- 36% had witnessed sexual harassment, yet only 1 in 10 intervened or reported it.
- Confidence in workplace complaint mechanisms remains low.
Does the Positive Duty Extend to Employees?
While the positive duty legally applies to employers, employees still play an essential role in preventing workplace harassment. Although employees do not have a statutory positive duty, they are expected to uphold workplace policies, report misconduct, and, where possible, act as active bystanders. Key considerations include:
- Workplace Conduct Expectations – Employees are expected to comply with workplace policies regarding respectful behaviour; and workplaces are increasingly incorporating active bystander expectations into their policies. This shift is driven by the recognition of the vital role that bystanders play in addressing workplace issues such as harassment and bullying.
- Work Health & Safety Duties – Under WHS laws, employees have a duty to take reasonable care for the health and safety of colleagues and must comply with reasonable employer directives regarding psychosocial hazard management, which could include participation in bystander training or adherence to reporting procedures.
- Potential Consequences for Inaction – Employees who ignore misconduct could breach workplace policies and face disciplinary action, particularly if they are complicit or fail to follow internal reporting procedures.
Barriers to Intervention
Many bystanders hesitate to act due to fear of retaliation, making things worse for the victim, or professional repercussions – particularly when the perpetrator is in a senior position. Stockwell pointed out that this reluctance allows inappropriate behaviours to persist and escalate over time. She cited the case of former High Court Justice Dyson Heydon, whose decades-long pattern of sexual harassment was only formally addressed after numerous women came forward. Earlier intervention could have mitigated the harm caused to those affected.
Organisational Factors Enabling Harassment
The legal industry’s unique structures contribute to a culture where passive bystanding is common. Stockwell identified four key factors:
- Power Imbalance & Hierarchy: Seniority often dictates influence, and junior staff may fear repercussions for speaking out.
- Conformity: Cultural norms can reinforce inappropriate behaviour when it is accepted as “just the way things are.”
- Financial Motivation: Firms prioritising profit over ethics may overlook misconduct if perpetrators are high performers.
- Competition: A high-pressure environment can discourage reporting, as victims and bystanders worry about career repercussions.
How to Be an Active Bystander
Being an active bystander does not always mean direct confrontation. Stockwell outlined five key intervention strategies, known as the Five Ds:
- Distract – Defuse the situation by shifting the focus. For example, if a receptionist is being harassed by a client, interrupt with an unrelated question or request assistance from the receptionist.
- Delegate – If direct intervention isn’t feasible, find someone with authority who can address the issue, such as HR, a senior leader, or a supervisor.
- Direct – Speak up against inappropriate behaviour in the moment, ensuring the focus is on the behaviour rather than attacking the person. Keep statements clear and non-confrontational, such as: “I don’t think that comment aligns with our workplace values.”
- Delay – If immediate action isn’t possible, follow up with the person affected. Check in privately, acknowledge what you saw, and offer support. Documenting incidents can also be helpful if action is taken later.
- Document – Keeping detailed, contemporaneous notes of inappropriate incidents, including dates, locations, and verbatim remarks, can be crucial if the issue escalates or needs formal reporting.
Workplace Legal Obligations
Under the Respect at Work Act 2022, employers must take reasonable and proportionate steps to prevent psychosocial hazards, including sexual harassment and discrimination. This means that organisations must:
- Implement bystander training for all employees.
- Establish clear reporting and investigation processes.
- Provide support for bystanders who intervene or report issues.
Stockwell highlighted recent legal cases demonstrating the courts’ growing recognition of workplace misconduct:
- Taylor v Grew & Co [2023] FCA – $268,000 compensation awarded for sexual harassment.
- Bridge v Globe Bottleshops [2021] – Employee dismissed for making inappropriate comments to a customer.
- Roohizadegan v TechnologyOne [2020] FCA – $3.5 million awarded for workplace bullying and psychological harm.
Shifting the Culture
Creating an active bystander culture requires more than compliance with legislation – it demands a shift in how inappropriate behaviour is perceived and addressed. Stockwell emphasised the importance of:
- Challenging microaggressions – Small acts of discrimination, such as gendered language in performance reviews, contribute to broader inequities.
- Recognising bias – Women are three times more likely to be interrupted in meetings, and bias affects hiring, promotions, and feedback.
- Supporting reporting mechanisms – Employees must trust that complaints will be handled effectively and without retaliation.
The Takeaway: Be the Change
Workplace culture doesn’t shift overnight, but every action – no matter how small – makes a difference. Stockwell concluded with a simple but powerful call to action:
“Tell people you have done this training. Be an active bystander. Reflect on your own behaviour and language. Model good behaviour. Use your EAP services. Be the change you want to see in the legal industry.”
The Respect at Work Act has reinforced that prevention is key. By cultivating a workplace culture where active bystanders feel empowered to step in, we take tangible steps toward a safer, more inclusive legal profession.
Lisa Stockwell now a Senior HR Consultant at Harrisons Human Resources. Harrisons is currently offering a sexual harassment response and prevention plan package for all businesses.
