Anti-Discrimination Law Reform on the Horizon in Queensland

QHRC Review Report

The Queensland Human Rights Commission (QHRC) has concluded its review of Queensland’s 30 year old legislation, the Anti-Discrimination Act 1991 (Qld).  The review involved wide ranging consultations with more than 120 stakeholders, 4 public consultations, and 6 roundtables.

The report, titled “Building belonging: Review of Queensland’s Anti-Discrimination Act 1991”, was tabled in parliament on 1 September 2022, and includes 46 recommendations to strengthen and clarify discrimination laws in Queensland.

According to the QLS, the Commissioner of the QHRC, Mr Scott McDougall, identified the following aims of the recommendations within the report:

• Eliminating discrimination by introducing a new Act with objects that included the protection and promotion of the right to equality and elimination of discrimination and sexual harassment.
• Refinement of key concepts to ensure legal tests for discrimination respond effectively to the problems they seek to address and are easy to understand and apply.
• Shifting focus to prevent discrimination and sexual harassment before they occur.
• Improving the complaints system to ensure it is flexible, efficient and able to enhance access to justice.
• Increasing protections to ensure all people who require protection under the Act are included and that coverage of the law extends to all contexts and settings where unfair discrimination occurs, subject to reasonable exceptions.

 

Proposed Positive Duty to Prevent Discrimination

One of the most significant recommendations, is the possible “introduction of a positive duty to compel organisations and businesses to take reasonable and proportionate steps to prevent discrimination” before it happens, according to Mr McDougall, the Commissioner of the QHRC.

In Victoria, a positive duty was already introduced in 2020, and consists of 6 minimum standards for compliance, as follows:

• knowledge;
• prevention plan;
• organisational capability;
• risk management;
• reporting and response; and
• monitoring and evaluation.

The implementation of a similar model in Queensland may require employers to take additional proactive steps to prevent discrimination before it happens, similar to workplace health and safety regulations.  Whilst it is not currently clear whether Queensland will adopt similar guidelines or standards of compliance, the implementation of a positive duty appears to be imminent.

Many employers in Queensland already have practices in place which would minimise the risk of discrimination occurring in the workplace, especially in relation to sexual harassment.   However, the implementation of a scheme for compliance may require employers to not only take additional precautions, but to also keep a record of the steps they have taken to demonstrate their compliance with the scheme.

As the current anti-discrimination legislation in Queensland is generally concerned with resolving complaints about discrimination, rather than preventing it before it happens, the introduction of a positive duty is significant.

 

Additional Grounds of Discrimination Proposed

To be eligible to make a complaint, a person must be discriminated based on a prescribed attribute in a specific area of activity.  In Queensland, those areas of activity include work and work related areas, education, goods and services, and many other areas.

The current anti-discrimination laws in Queensland already prohibited discrimination on the grounds of 16 attributes, as follows:

1. Sex;
2. Relationship status;
3. Pregnancy;
4. Parental status;
5. Breastfeeding;
6. Age;
7. Race;
8. Impairment;
9. Religious belief or religious activity;
10. Political belief or activity;
11. Trade union activity;
12. Lawful sexual activity;
13. Gender identity;
14. Sexuality;
15. Family responsibilities; and
16. Association with, or relation to, a person identified on the basis of any of the above matters.

Unless a person is discriminated based on those attributes, they will not be covered under the current anti-discrimination legislation in Queensland.

However, the recent report has proposed the introduction of five (5) additional grounds for discrimination to be prohibited, as follows:

1. sex characteristics
2. irrelevant criminal record
3. physical features (weight, height, birthmarks and scars)
4. being subject to domestic or family violence
5. homelessness

 

A New Anti-Discrimination Act Altogether?

The proposed reforms associated with anti-discrimination laws in Queensland have largely been met with support from all stakeholders, and would modernise Queensland’s dated anti-discrimination laws through the introduction of a positive duty, updated language for a number of attributes, and improvements to the overall system.

Whether the report will result in amendments, or a full rewrite of the Act, is not immediately clear.

However given the extent of the 46 recommendations made, the QBC reported that the Commissioner of the QHRC suggested that “it would be best if parliamentary Counsel were brought in to just start afresh”.

 

How can you make a complaint for Discrimination?

A person can make a complaint to the QHRC by completing a complaint form, which can be located by clicking here.

 

Discrimination Complaints Lawyers: Why Chose Potts Lawyers?

Potts Lawyers assists both employees and employers with all QHRC matters and discrimination complaints generally.  Strict limitation periods apply with respect to discrimination complaints, and so advice should be obtained as soon as possible.

We have law offices on the Gold Coast and in Brisbane.

If you believe you have been discriminated or are facing allegations of discrimination, call Potts Lawyers today so that we can provide you with meaningful guidance on your options.