Queensland anti-discrimination law changes passed

On 10 September 2024, the Respect at Work and Other Matters Amendment Bill 2024 (Qld) was passed by the Queensland Parliament to amend the Anti-Discrimination Act 1991 (Qld) (ADA).

Last-minute amendments by the Government went further than the Bill as introduced back in June, which had only proposed changes to protected attributes and added the positive duty and related procedural changes, refer to Queensland Anti-Discrimination Bill proposes new positive duty.

The Bill as passed now also includes significant reforms to the definitions of discrimination and to the burden of proof in discrimination proceedings, enacting more of the original recommendations from the Queensland Human Rights Commission's Building Belonging Report.

What is changing in the ADA?

In summary, the changes to the ADA will:

1. Introduce a new positive duty that requires duty holders to take reasonable and proportionate measures to eliminate, as far as possible, discrimination on the basis of all protected attributes, as well as sexual harassment, harassment on the basis of sex and other objectionable conduct (namely, the conduct covered by the federal Respect@Work obligations). This is broader than the existing positive duty under the federal Sex Discrimination Act 1984 (Cth) and means Queensland employers will have a positive duty to take reasonable and proportionate measures to eliminate discrimination based on race, age, etc.
2. Add specific protections against workplace harassment on the basis of sex, or creating a hostile work environment on the basis of sex.
3. Introduce new protected attributes of ‘expunged conviction’, ‘homelessness’, ‘irrelevant criminal record’, ‘irrelevant medical record’, ‘physical appearance’ and ‘subjection to domestic or family violence’, amend others, and add protection for a combination of two or more attributes.
4. Replace the definitions of discrimination, allowing for discrimination to be direct, indirect or both, and adopting the following tests:

(a) direct discrimination being 'unfavourable' (rather than 'less favourable') treatment. It will also not matter whether the attribute is only one of the reasons for the unfavourable treatment; and

(b) indirect discrimination being an unreasonable condition, requirement or practice that has the effect of 'disadvantaging' another person because of their attribute (rather than being a requirement they were unable or less able to comply with).

5. Creating a shared burden of proof which means a complainant needs only to establish a prima facie case of discrimination, then the burden shifts to the respondent to prove that the reason for the impugned conduct was not because the complainant had an attribute, or that there was some other non-discriminatory reason, or that an exception applied.
6. Extend the timeframe for complaints to two years (for all types of complaints – not limited to sex-based work-related complaints as originally proposed).
7. Allow for representative complaints.
8. Amend and expand the QHRC’s functions and powers to investigate compliance with the positive duty or any matter relating to suspected systemic contraventions, and take enforcement action.

These significant changes to the ADA will commence from 1 July 2025, except for representative complaints which will commence on 14 October 2024.

New QHRC powers and positive duty guidance

The QHRC is required to publish guidance material on complying with the Queensland positive duty. We expect it will be similar to AHRC guidance on the Commonwealth positive duty, but will include the additional requirement to take reasonable steps to eliminate all forms of unlawful discrimination in the workplace (and not just sex-based discrimination).

The Bill's explanatory memorandum included some guidance on the kinds of actions that will be expected to comply with the positive duty, including:

• ensuring there are organisational policies in place that address the importance of respectful behaviour;
• ensuring easily accessible information is available;
• conducting workplace surveys to measure knowledge and awareness of unlawful conduct like discrimination, and the extent to which such conduct has been experienced by staff;
• engaging in informal or formal disciplinary discussions with staff who are engaging in disrespectful or unlawful conduct; and
• managers and leaders clearly and regularly articulating expectations of respectful behaviour.

The QHRC will have enforcement powers similar to those of the AHRC to inquire into suspected breaches of the positive duty or systemic contraventions of the ADA. The QHRC is empowered to take enforcement action in the form of compliance notices and accepting enforceable undertakings, and take action for breaches of notices and undertakings. The QHRC will also be able to issue public reports on systemic contraventions.

Action required – What should Queensland organisations be doing?

Queensland organisations will be required to take steps to prevent sexual harassment and other objectionable conduct under:

1. the Commonwealth positive duty
2. the new WHS Regulation
3. the Queensland positive duty in the ADA (from 1 July 2025).

These obligations overlap and intersect, but organisations can adopt an integrated strategy that ensures all obligations are complied with. This will involve:

1. Preparing a written Prevention and Response Plan that aligns with the AHRC guidance, the specific requirements in the WHS Regulation, and any future guidance from the QHRC. The Plan must outline the measures the organisation plans to take to prevent and respond to behaviours covered by the positive duty, noting the AHRC expects this plan to be endorsed by the Board or governing body. In Queensland, the Plan will need to extend to all forms of discrimination because the new positive duty is broader.
2. Updating workplace policies to ensure they reflect person-centred and trauma-informed approaches, and legislative amendments to definitions (including sex-based harassment and other conduct that could create a hostile workplace environment on the basis of sex and discrimination on the basis of the new and amended protected attributes).
3. Undertaking risk assessments for sexual harassment and other objectionable and unlawful conduct, to inform your prevention and response plan based on the specific risks for your organisation and the control measures you determine are appropriate. Risk assessments and control measures should be undertaken in consultation with your workforce.
4. Reviewing approaches to workforce training, to ensure it covers the new and expanded protected attributes under the Sex Discrimination Act, Fair Work Act, and those now covered by Queensland's ADA, and ensure workers understand their obligations. Training is likely to be a – but not the only – reasonable and proportionate step needed to discharge the positive duty. We recommend that training consider bystander/upstander obligations for staff

Our team can help with preparing a strategy that integrates steps to comply with the Commonwealth positive duty, compliance with work health and safety laws and Queensland's new sexual harassment-focused regulations, and the new obligations under the expanded positive duty set to commence in Queensland next year.

Contact us for assistance with preparing your prevention and response plan and updating workforce policies and procedures that align with the new obligations.