Why is this happening?
In 2021, the Queensland Government asked the Queensland Human Rights Commission (QHRC) to review the Anti-Discrimination Act 1991 (Qld) (AD Act) to see if the AD Act needed updating to support equality, non-discrimination and human rights.
The Government issued its final response on 28 March 2023 and confirmed its in-principle support for all recommendations.
How extensive are the proposed reforms?
This reform is substantial and the AD Act will be repealed and replaced.
The Government plans to introduce a Bill before its term ends in October 2024 and will consult extensively with stakeholders and the community.
Which changes are the most important?
There are six key changes to keep in mind:
- Specific objects and beneficial interpretation requirements, where ambiguities in the new Act will be interpreted to benefit the person with a protected attribute.
- A revised definition of discrimination, a reverse onus of proof and a longer 2 year time limit to make a complaint.
- Positive duties to eliminate discrimination and sexual harassment and accommodate persons with a protected attribute.
- A modernised list of protected attributes.
- Changes to the QHRC’s discrimination complaint and dispute resolution.
- An enhanced proactive role for the QHRC to ensure organisational compliance.
Many employers will need to make significant workplace changes to prevent unlawful discrimination and harassment if these changes become law.
How will discrimination be defined?
Discrimination will be defined as direct or indirect (or both).
A person directly discriminates against another person if they treat, or propose to treat, that other person unfavourably because of one or more protected attributes, or because of the effect of a combination of protected attributes. For example, a person may directly discriminate if they do not employ a person because of the person’s carer responsibilities.
A person indirectly discriminates if they impose an unreasonable condition, requirement or practice in the workplace which has or is likely to have the effect of disadvantaging a person with a protected attribute or a combination of protected attributes. For example, requiring people to attend out-of-hours meetings may have the effect of disadvantaging persons with carer responsibilities, even if they are paid for their time.
Unlawful discrimination may involve one or more protected attributes and the protected attribute(s) need not be the only reason for the unfavourable treatment. Previously the protected attribute had to be the substantial reason for the treatment.
The burden of proof is now shared. This means a complainant must first show a prima facie case. After that, the employer must then prove the unlawful discrimination did not occur. This is similar to the approach in general protections claims under the Fair Work Act 2009 (Cth).
What is the extent of the positive duty?
There will be a positive duty to make reasonable accommodation for a person with a disability (and their carers) with a non-exhaustive list of criteria for guidance.
Unsurprisingly and consistent with other jurisdictions, there will be a positive duty to take reasonable and proportionate measures to eliminate discrimination and sexual harassment for Respect@Work.
What are the new additional protected attributes?
These are the new protected attributes:
- Addiction as a form of disability
- Sex workers
- Assistance animals (not limited to dogs)
- Immigration or migration status as part of a person’s race, except where discrimination occurs in direct compliance with a state or Commonwealth law
- Sex characteristics (including in respect of people who identify with a certain sex)
- Irrelevant criminal record, including expunged homosexual convictions, spent convictions and the imputation of a record relating to arrest, interrogation or criminal proceedings of any sort. This would not remove an employer’s ability to discriminate based on a criminal record that is relevant to the particular position
- Physical features, including a person’s weight, size, height, birth marks, scars and bodily characteristics. Protected physical features would not include a person’s chosen alterations to their physical appearance, such as tattoos, piercings or hair styles
- Domestic or family violence
Which protected attributes are going to change?
These existing protected attributes will be modernised:
- Impairment → Disability
- Sexuality → Sexual orientation
- Family responsibilities → Family, carer or kinship responsibilities
- “Gender identity”, “Sex” and “Gender” will be redefined to be more inclusive.
Are there any changes to specific areas of work?
These changes target specific areas of work:
- religious bodies such as schools will be prohibited from discriminating against employees based on religion where the employee is not directly involved in teaching, observing or practicing a certain religion, and
- employers working with children will no longer be able to discriminate against a person based on their lawful sexual activity or gender identity.
How will the complaint and dispute resolution processes change
The complaints process is more accessible for employees.
The QHRC may reasonably assist a complainant who needs help to put their complaint in writing. For example, transcribing an oral complaint.
The QHRC has more flexibility in handling complaints. It may make preliminary inquiries into complaints and offer suitable alternative dispute resolution services instead of conciliation. The QHRC has more discretion to decline dispute resolution services for frivolous, trivial, vexatious, baseless or out of time complaints.
This time limit for a claim extends from one to two years, with a discretion to extend.
Complaints may be made on behalf of a group of people with a protected attribute. For example, unions may make discrimination complaints against an employer on behalf of a group of employees who share the same attribute.
Organisations may make complaints of unlawful conduct as if they were an individual.
What else will the QHRC be doing?
The QHRC will have these additional functions:
- Publishing practice guidelines about discrimination and sexual harassment
- Conducting reviews of an organisation’s programs and practices for compliance
- Advising on action plans; and
- Conducting investigations on its own initiative and providing findings and recommendations (for example, publishing a public report with recommendations, issuing a compliance notice or requiring employers to enter into an enforceable undertaking with the QHRC).
What should employers do to prepare?
The new Act makes it easier for employees to make claims and on more grounds. Along with the commencement from 1 April 2023 of new Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022 and the Code of Practice on Managing Psychosocial Hazards at Work, employers now have more obligations than ever to ensure a workplace is free from discrimination and harassment.
The new positive duties for disability, sex discrimination and sexual harassment, the reverse onus or proof and proactive investigatory role of the QHRC mean that employers need to take proactive steps in the workplace.
For example, employers must
- Conduct workplace risk assessments to identify risk factors for discrimination and sexual harassment.
- Implement prevention plans for discrimination and sexual harassment in the workplace.
- Deliver refresher training to employees to identify discrimination and sexual harassment and what to do about it, including active bystander intervention
- Review recruitment processes to prevent irrelevant information about protected attributes being collected and used and ensuring decisions are merit-based.
The team at Kingston Reid are here to assist if you need support identifying and mitigating the risks within your workplace.