Note: This article shares general information to help leaders promote compliance. It is not legal advice.
Leaders often sit at a difficult crossroads: acting decisively to keep people safe while upholding a victim-survivor’s agency about how (or whether) to act on disclosure of sexual misconduct. In Australia, that tension is sharpened by overlapping duties under work health and safety (WHS) laws, the Sex Discrimination Act’s positive duty, and privacy law, This article offers a practical, trauma-informed pathway to navigate that tension—so you promote compliance with legal obligations and do right by the person who has experienced harm.
Why action is required—even when someone doesn’t want a formal report
- Positive duty (Sex Discrimination Act 1984): Organisations must take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based harassment, hostile work environments on the ground of sex, and related victimisation. This is proactive—aimed at prevention regardless of whether a complaint is made.
- WHS obligations: Sexual harassment and assault are psychosocial hazards. PCBUs must eliminate or minimise these risks so far as is reasonably practicable, guided by the national Code of Practice and NSW regulations.
What “mandatory reporting” does and doesn’t mean in Australia
- There is no universal legal requirement to report an adult victim-survivor’s sexual assault to police. NSW Police offer options (e.g., SARO) that can preserve agency without triggering an investigation.
- Separately, you must notify the WHS regulator (SafeWork NSW) if a notifiable incident occurs (death, serious injury or illness, or a dangerous incident). Some sexual assaults may meet the “serious injury or illness” threshold (e.g., immediate hospital treatment).
- Privacy: The Australian Privacy Principles generally require consent for disclosure, but permit limited disclosure without consent where necessary to lessen or prevent a serious threat to life, health or safety, and where obtaining consent is unreasonable or impracticable.
Bottom line: You can—and sometimes must—act to manage risk even if someone does not want a formal complaint, but you should do so in ways that preserve safety, choice, and dignity, which also helps promote compliance.
A trauma-informed decision pathway for leaders
- Stabilise and support first Ensure immediate safety, medical care, and psychological support. Offer confidential EAP/sexual assault services. Use person-centred, trauma-informed communication; avoid pressing for detail.
- Explain rights and options clearly Outline all avenues (internal report, de-identified WHS risk report, Fair Work/AHRC options, police—including SARO). Emphasise that the decision is theirs.
- Conduct an initial risk assessment (without a full investigation) Consider ongoing risk to the person or others (e.g., repeat offender, power imbalance), serious-harm indicators, and vulnerability factors. Your WHS duty may require interim controls (e.g., separation, supervision changes, rostering) while safeguarding confidentiality. Decide whether a formal workplace investigation is required now using a risk-led, trauma-informed threshold.
- Choose the least-intrusive effective control Start with controls that reduce risk while minimising exposure of the person’s identity. Document the rationale (WHS risk basis), not their narrative.
- Set escalation triggers (when you may need to act without consent) Act irrespective of a person’s wishes when there is an immediate or serious threat to life, health or safety; when an incident appears notifiable to SafeWork; or where there is credible risk to others (e.g., patterns/multiple reports) and lesser controls won’t manage it.
- Offer pathways that preserve agency Support de-identified WHS reporting; enable a formal complaint later if/when ready; provide practical help for FWC stop-orders or regulatory complaints—if they choose.
- Close the loop Explain the specific controls you’ve put in place and who knows what. Schedule check-ins and invite feedback on safety and process.
When should a workplace investigation be undertaken?
- Investigate now when: alleged conduct is serious or potentially criminal; there’s credible risk to others; you need procedural fairness and clear findings to make employment decisions; interim controls aren’t enough; or your policy/industrial instrument requires it.
- Defer or narrow when: WHS risk can be adequately controlled via interim measures; the adult victim-survivor does not want a formal process and there’s no credible ongoing risk; a police process is active (seek advice on scope/timing); or wellbeing considerations mean immediate interviews would cause harm (set a safety plan and check-ins, then reassess).
- Run it well: set clear terms of reference; separate investigator and decision-maker; enable informed, voluntary participation (support persons, culturally safe options); protect privacy (need-to-know, secure records); progress promptly; and pair findings with proportionate WHS controls and strong anti-retaliation measures.
What to say in the moment (script you can adapt)
“Thank you for telling me. I’m sorry this happened. Your safety and wellbeing are my priority. You control what happens next, and I’ll outline your choices—including not making a formal report. Separately, I have a duty to manage safety risks at work. That can include steps like separating you from the person and monitoring the environment. I’ll keep your information as confidential as possible and only share what’s necessary to keep you and others safe.”
System foundations that make this easier
- Two-track response model: Track A person-led response (support, options, agency, police choices including SARO); Track B WHS risk controls (de-identified where possible, escalate on defined triggers).
- Clear notifiable-incident and serious-threat protocols, with on-call legal/WHS contacts, to promote compliance in time-critical moments.
- Privacy-by-design complaint handling (need-to-know access, secure records, data minimisation).
- Manager micro-skills training (trauma-informed responses, option-setting, documentation).
- Multiple reporting channels (anonymous, third-party, culturally safe) and visible anti-retaliation messaging that promotes compliance with the positive duty.
Dos and Don’ts
Do
- Act quickly to control risk and prevent further harm, documenting the WHS rationale to promote compliance.
- Keep the person informed and in control of external reporting choices, including police options.
- Use privacy exceptions only when the legal test is met; record your reasoning.
Don’t
- Promise absolute confidentiality—explain limits up front (serious threat, notifiable incident).
- Force a police report for an adult victim-survivor. Provide options, time, and support.
- Delay action where there’s credible risk to others—laws anticipate proactive prevention; timely controls promote compliance.
Final thought
Respecting agency and taking action are not opposites. With a trauma-informed, WHS-led approach, you can reduce harm now while preserving a person’s choice, privacy and dignity—and better promote compliance with Australia’s evolving legal landscape.
Related Reading:
Trauma-Informed Grievance Processes