In May 2021, Queensland’s Attorney-General asked the Queensland Human Rights Commission (‘QHRC’) to review the Anti-Discrimination Act 1991 (Qld) (‘the Act’). This review signified the first holistic consideration of the Act since its introduction more than 30 years ago, and provided an opportunity to ensure that Queensland’s anti-discrimination laws reflect the needs of contemporary society.

As a result of this review, the QHRC delivered a report in July 2022 titled ‘Building Belonging: Review of Queensland’s Anti-Discrimination Act 1991’ (‘the Report’). The Report made 46* recommendations aimed at modernising and strengthening discrimination protections in Queensland.

*Some of the recommendations were comprised of multiple recommendations.

The Queensland Government published its final response to the Report in April 2023 that supported, in principle, all recommendations of the QHRC, including to repeal and replace the Act within the current term of government.

In March 2024, the draft Anti-Discrimination Bill 2024 (Qld) (‘the draft Bill’) was opened for consultation.

If the draft Bill becomes law and passes without significant amendment, employers will need to be aware of the key proposed changes. These include, but are not limited to:

• New protected attributes;
• New positive duties;
• New definitions, tests and the burden of proof in discrimination;
• Changes to exceptions;
• New complaint handling powers and processes; and
• Application to employment connected with Queensland.

Importantly, the information provided in this article is based on the draft Bill which is subject to change and review.

New protected attributes

The draft Bill will update several existing protected attributes by modernising the terminology and definition. For example, ‘race’ will be expanded to include immigration and migration status.

The draft Bill will also introduce five new protected attributes:

• Sex characteristics
• Irrelevant criminal record
• Physical appearance
• Subjection to domestic or family violence
• Homelessness

Sex characteristics

While the Act includes the protected attributes of ‘sex’ and ‘gender identity’, it does not provide for intersex people (those with variations in sex characteristics).

The introduction of an additional and separate ‘sex characteristics’ attribute would offer this coverage.

Under the draft Bill, ‘sex characteristics’ will mean a person’s physical features and development related to their sex and includes:

• Genitalia, gonads and other sexual and reproductive parts;
• Chromosomes, genes and hormones related to the person’s sex; and
• Secondary physical features emerging as a result of puberty.

Irrelevant criminal record

Under the draft Bill, ‘irrelevant criminal record’ will mean a record, or an imputation of a record, relating to an offence (actual or alleged) if the person:

Has been charged with the offence but a proceeding for the offence is not finalised, or the charge has lapsed, been withdrawn, discharged or struck out;

• Has been acquitted of the offence;
• Has had a conviction for the offence quashed or set aside;
• Is proceeded against for the offence only by way of an infringement notice under the State Penalties Enforcement Act 1999 (Qld);
• Has a conviction for the offence, but the circumstances of the offence are not directly relevant to the situation in which the record is being considered;
• Has a spent conviction for the offence; or
• Has an expunged conviction for the offence under the Criminal Law (Historical Homosexual Convictions Expungement) Act 2017 (Qld).

Importantly, it is proposed by the draft Bill that if the work principally involves providing care, support and/or assistance to a vulnerable person (e.g. a child, a person with a disability or an aged person) you may discriminate against another person on the basis of ‘irrelevant criminal record’ if the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of the vulnerable person.

The protected attribute of ‘irrelevant criminal record’ is currently only recognised in Tasmania, the Northern Territory and the Australian Capital Territory.

Physical appearance

Under the draft Bill, ‘physical appearance’ will mean a person’s weight, size, height, birthmarks, scars or anything else about their physical appearance other than alterations that have been ‘freely chosen’ (e.g. hairstyles, piercings, tattoos, cosmetic surgery).

The protected attribute of ‘physical appearance’ is currently only recognised in Victoria and the Australian Capital Territory.

Subjection to domestic or family violence

Under the draft Bill, ‘subjection to domestic or family violence’ will mean a person is or has been subject to domestic violence*.

*Domestic violence will be defined as per section 8 of the Domestic and Family Violence Protection Act 2012 (Qld).

Homelessness

Under the draft Bill, there is no specific proposed definition of ‘homelessness’, so the term will likely be taken to have its ordinary meaning.

New positive duties

The draft Bill will introduce two new positive duties:

• A positive duty to eliminate discrimination, sexual harassment, vilification and victimisation; and
• A positive duty to make reasonable accommodation for a person with disability.

What is a positive duty?

A positive duty is a legal obligation on a person or organisation to take active steps.

A positive duty to eliminate discrimination and other prohibited conduct

Under the draft Bill, employers will be required to take reasonable and proportionate measures to eliminate discrimination, sexual harassment, vilification and victimisation as far as possible.

This is based upon the amendments to the Sex Discrimination Act 1984 (Cth) that occurred in December 2022 and introduced a positive duty on employers to take reasonable and proportionate measures to eliminate:

• Workplace sex discrimination, sexual and sex-based harassment;​
• Hostile work environments on the grounds of sex; and ​
• Certain acts of victimisation, as far as possible.

The draft Bill will prescribe the criteria that must be considered in determining whether a measure is reasonable and proportionate to comply with the duty. These are:

• The size of the business/operations;
• The nature and circumstances of the business/operations;
• The resources of the business/operations;
• Business and operational priorities;
• Practicability and cost of the measure; and
• Any other relevant matter.

 A positive duty to make reasonable accommodations  

Under the draft Bill, employers will be required to make reasonable accommodations to ensure that a person with a disability is not treated unfavourably because of the disability.

A ‘reasonable accommodation’ is defined as an accommodation that:

• Is necessary and appropriate to be made, and effective, to ensure the person is not treated unfavourably; and
• Does not impose unjustifiable hardship on the person making the accommodation.

The draft Bill provides some examples of what may be a ‘reasonable accommodation’.

Examples

• For a person with vision impairment – purchasing screen reading software
• For a person who uses a wheelchair – modifying their workstation to accommodate a wheelchair

If an employer fails or refuses to make a ‘reasonable accommodation’ and this leads to the unfavourable treatment of a person with disability, the employer may have engaged in discrimination (either direct or indirect).

The draft Bill will prescribe the criteria that must be considered in determining whether an accommodation would impose an unjustifiable hardship. These are:

• The nature of the disability;
• The nature of the required accommodation;
• The feasibility and effectiveness of the accommodation;
• The effect on the person with the disability if the accommodation was made and was not made;
• The cost of the accommodation;
• The nature of any detriment to the person making the accommodation; and
• Any other relevant matter.

This proposed positive duty is already included within the Disability Discrimination Act 1992 (Cth).

New definitions, tests and the burden of proof in discrimination

The draft Bill will simplify the definitions of discrimination (both direct and indirect) and introduce clearer tests.

Under the Act, the ‘comparator test’ is used to establish direct discrimination. This test involves a comparison between the treatment of a person with a protected attribute, and the treatment that is or would be afforded to a real or hypothetical person (‘the comparator’).

The draft Bill will remove the ‘comparator test’ and replace it with other tests:

• For direct discrimination, the draft Bill will use the ‘unfavourable treatment test’
• For indirect discrimination, the draft Bill will use the ‘disadvantage test’

Under the draft Bill, to establish discrimination, a person will only need to prove that:

• They have been treated unfavourably because of a protected attribute; and/or
• A condition, requirement or practice has been imposed, that is likely to disadvantage them because of a protected attribute and is not reasonable.

For the purpose of determining whether a person has been treated unfavourably, it does not matter whether the person’s protected attribute is only one of the reasons for the unfavourable treatment.

Under the draft Bill, the burden of proof will be shared.

Changes to exceptions  

Under the Act, there are several ‘exemptions’ which provide a defence to discrimination (i.e. they allow discrimination in certain circumstances). The draft Bill proposes to use the term ‘exceptions’ rather than ‘exemptions’.

Several ‘exemptions’ of the Act will be removed by the draft Bill. These include, but are not limited to:

• Work with children (allows discrimination on the basis of lawful sexual activity or gender identity if the work involves the care, or instruction, of minors);
• Accommodation for workers;
• Special services or facilities required (replaced by a positive duty);
• Accommodation with religious purposes (covered by the general exceptions);
• Accommodation with charitable purposes (covered by the affirmative measures provisions);
• Benefits arising from membership of a club; and
• Welfare measures and equal opportunity measures (replaced by the affirmative measures provisions).

New complaint handling powers and processes

Powers and functions of the QHRC 

Under the draft Bill, the QHRC will be given broader powers and functions to:

• Inquire into complaints and provide services to facilitate their resolution; and
• Promote compliance with the new duties and obligations (using the ‘regulatory pyramid approach’).

Complaint period

Under the draft Bill, a new complaint period will be introduced. The draft Bill provides that a complaint may be made within 2 years after an alleged contravention. If the complainant was a child when the alleged contravention occurred, a complaint may be made within 2 years after they turn 18.

Application to employment connected with Queensland

The draft Bill will extend the application of the legislation to contraventions (in the area of employment) that occur outside of Queensland where there is a connection to Queensland.

Under the draft Bill, employment will be connected with Queensland where the employer:

• Is a public sector entity in Queensland; or
• Has a workplace in, or carries on a business or undertaking in, Queensland, or engages employees who work wholly or partly in Queensland.

What does this mean for employers?

The draft Bill was subject to a brief period of public consultation. Submissions closed at 5pm on Friday, 22 March 2024.

If passed without significant change, the draft Bill will introduce new obligations on Queensland employers.

Subsequently, you will need to think proactively about:

• Reviewing and updating relevant policies (e.g. Equal Employment Opportunity and Anti-Discrimination Policy, Sexual Harassment Policy) and training materials
• Establishing an internal process for responding to any complaints about discrimination, sexual harassment, vilification or victimisation
• Providing training to staff (including refresher training)
• Identifying and planning to address possible risk factors for discrimination, sexual harassment, vilification or victimisation within the workplace

Further information and support   

Business Chamber Queensland members with HR services as part of their membership are invited to contact the Workplace Advisory Services team:

P: 1300 731 988

E: [email protected]

Businesses who do not have a HR membership may also seek assistance however a competitive consultancy fee will apply for any advice and assistance provided.

For membership enquiries, please contact our membership team on 1300 731 988.