Shift of focus to prevent discrimination
The draft new Anti-Discrimination Bill 2024 (Qld) incorporates the recommendations by the Queensland Human Rights Commission (QHRC) in its 2022 Report: Building Belonging: Review of Queensland's Anti-Discrimination Act 1991 to shift the focus of Queensland discrimination law to preventative rather than reactive.
The Department of Justice and Attorney General has published a comprehensive overview of the draft Bill in its Consultation Guide, but our summary of the key reforms is below:
What you need to know about the key reforms
A new positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and other prohibited conduct
Similar to the recent Respect at Work changes which have introduced a positive obligation under the federal Sex Discrimination Act 1984 (Cth) to take reasonable steps to prevent sexual harassment in workplaces, the draft Bill builds on this to introduce a new positive duty on Queensland based businesses and operations to take reasonable measures to eliminate discrimination, sexual harassment, vilification or victimisation as far as possible.
The draft Bill lists several factors to consider when deciding if a measure is reasonable and proportionate to comply with the duty, including the size and resources of the business or operations, and the practicability and costs of the preventative measure.
A positive duty to make reasonable accommodations for a person with a disability
A person must make reasonable accommodations to ensure that a person with a disability is not treated unfavourably. A reasonable accommodation is something that is 'necessary, appropriate and effective' to ensure the person is not treated unfavourably and which does not impose unjustifiable hardship on the person making the accommodation. In deciding whether an accommodation would impose an unjustifiable hardship, the draft Bill details a number of considerations, including the nature of the disability and accommodation, effectiveness of the proposed accommodation, effects if made or not made, costs and detriments.
Although this proposed positive duty is new for Queensland legislation, it is already a feature of the federal Disability Discrimination Act 1992 (Cth).
New protected attributes
The draft Bill introduces some new protected attributes, and expands the definition of some existing protected attributes:
- 'race' is expanded to include immigration and migration status;
- ‘sex characteristics’ is added as a new protected attribute, to provide specific coverage for intersex people;
- ‘irrelevant criminal record’ is added as a new protected attribute, which will exclude criminal records, or imputation of a record, relating to an offence or alleged offence, but will explicitly exclude expunged convictions and spent convictions;
- ‘physical appearance’ is added as a new attribute, which is restricted to a person's physical appearance (i.e. weight, height, scars) which are not 'freely chosen'. This means that dress, hairstyles, piercings and tattooing will not be protected by this proposed new attribute; and
- ‘subject to domestic or family violence’ and 'homelessness' are also added as new protected attributes.
Updated definitions of direct and indirect discrimination
The new draft Bill proposes to amend the definitions of both direct and indirect discrimination to simplify them, and to clarify that the person’s protected attribute only has to be one of the reasons for the unfavourable treatment for discrimination to occur.
Changes to exceptions
Under the current legislation, there are several exemptions which provide a defence to an allegation of unlawful discriminatory conduct. Under the draft Bill, these will be renamed as 'exceptions', although there will remain the ability to apply to the QHRC for a temporary exemption.
The number and scope of the available exceptions will also be changed. For employers, the 'genuine occupational requirements' defence will remain available, but the draft Bill will require that any requirement is 'reasonable and proportionate'. When dealing with ill or injured workers, the new obligation to provide 'reasonable accommodations' will also be relevant.
The grounds on which a religious body can discriminate in the area of employment are also narrowed to religious belief and religious activity, and only where participation in the teaching, observance or practice of the religion concerned is a genuine occupational requirement of the work. Under the draft Bill, the religious belief and activity exceptions also cannot be relied upon to discriminate on other protected attributes, such as sexual orientation, gender identity or relationship status.
The exceptions available in the area of education (sex, disability or religion) are also proposed to be narrowed under the draft Bill to only apply at the time of admission of students.
New complaint handling powers and processes
The Queensland Human Rights Commissioner will be given new powers to inquire into complaints and provide services to facilitate the resolution of complaints. There is also a new complaint period, providing that a complaint may be made within 2 years after an alleged contravention, through the Commissioner has discretion to deal with a complaint outside the period if there are exceptional circumstances. The Bill imposes a requirement for the Commissioner to use best endeavours to finish dealing with a complaint within 12 months after it being made.
Shared burden of proof
Under the draft Bill, if a complaint is made, the complainant will still need to prove that - in the absence of any other explanation - the respondent has contravened the Act. The respondent is responsible for proving that their action, or inaction, did not breach the Act, for example, because the action taken was reasonable.
Please contact us if you would like to discuss the proposed changes and what they mean for you, or if you would like assistance submitting feedback on the draft Bill. Submissions close at 5pm on Friday 22 March 2024.
