The Queensland Government's Anti-Discrimination Bill 2024 has been released for a brief window of public consultation. The Bill, which holistically re-drafts the Anti-Discrimination Act 1991 (Qld) (AD Act), was developed off the back of the recommendations made by the Queensland Human Rights Commission (QHRC) in the Building Belonging: Review of Queensland's Anti-Discrimination Act 1991 report.
If the Bill becomes law, and we think it is likely it will pass without substantial amendment, it will be crucial for employers to be aware of the following key changes:
- new tests for establishing discrimination and changes to the burden of proof for establishing indirect discrimination;
- new protected attributes;
- a positive duty to eliminate discrimination, sexual harassment, vilification and victimisation, replicating the federal framework; and
- a positive duty to make reasonable accommodations for persons with disability.
New tests and the burden of proof in discrimination
The Bill would do away with the "comparator" test which is a key feature of establishing discrimination under the existing AD Act.
To establish direct discrimination under the AD Act, a person currently has to prove they have, on the basis of a protected attribute, been subjected to less favourable treatment than another person without a protected attribute would have experienced in similar circumstances. Similarly, for indirect discrimination the term imposed has to be one with which a higher proportion of people without a protected attribute would be able to comply.
Under the proposed Bill, to establish discrimination, a person will only need to prove that:
- they have been treated unfavourably on the basis of a protected attribute (direct discrimination); and/or
- that a condition requirement or practice has been imposed, that is likely to disadvantage the person because of a protected attribute and is not reasonable (indirect discrimination).
While under the AD Act the evidential burden to establish direct and indirect discrimination rested with the claimant, under the new Bill, the burden in relation to indirect discrimination claims will flip. An entity that imposes a condition, requirement or practice will need to prove that it is reasonable in the circumstances. This may in fact see an increase in standalone indirect discrimination claims.
We expect establishing unfavourable treatment, rather than having to prove less favourable treatment in relation to a hypothetical person, will be a simpler test for individuals bringing discrimination claims to satisfy. It will then be up to organisations to establish that:
- any such discrimination was not on the basis of a protected attribute;
- an exception is available; or
- any condition, requirement or practice imposed was reasonable in all the circumstances.
New protected attributes
The Bill would modernise the language used for various protected attributes under the AD Act and introduce a range of new protected attributes:
- "Sex characteristics": while the AD Act includes protected attributes of "sex" and "gender identity", it does not provide for intersex people with variants of typical sex characteristics (physical features and development related to a person's sex). The attribute of "sex characteristics" is designed to provide this coverage.
- "Irrelevant criminal record": this is defined to mean a record, or imputation of a record, relating to an offence or alleged offence in certain circumstances. This is broader than the current position in relation to spent criminal convictions.
- "Physical appearance": this means a person's weight, size or height, a birth mark or scar, or anything else about their physical appearance, but not chosen hairstyle or any aspect of physical appearance "that has been freely chosen" (i.e. tattoos, piercings, cosmetic surgery). Currently, the protected attribute of physical appearance is only recognised in Victoria and the Australian Capital Territory.
- "Subject to domestic or family violence" and "homelessness": these phrases are not defined and are to take their ordinary meanings.
All duty holders will need to ensure that any decisions made can clearly be tied back to a non-discriminatory reason, and that these additional protected attributes do not form the basis for the decision.
Positive duty to eliminate discrimination
The Bill introduces a positive duty which will require employers to take "reasonable and proportionate measures" to eliminate discrimination, sexual harassment, vilification and victimisation as far as possible.
This change is drawn from the Sex Discrimination Act 1984 (Cth), which was amended in December 2022 to introduce a positive duty to prevent sexual harassment, in response to recommendations made in the Respect@Work Report.
In deciding what will be reasonable and proportionate, the Bill provides that the following matters will be relevant:
- the size of the business;
- the nature and circumstances of the business;
- the resources of the business;
- business and operational priorities;
- practicability and cost of the measure;
- any other relevant measure.
The Consultation Paper to the Bill clarifies that a worker will not be able to rely on a company"s failure to meet this positive duty alone to support a complaint. Instead, the Government has said this new duty will be supported by the QHRC"s education, training and support functions.
This includes to:
- conduct education and training programs including in relation to how the general duty should be complied with;
- review an entity's policies, programs, procedures, practices and services to identify non-compliance issues of a systemic nature;
- issue guidelines on how persons should comply with the general duty; and
- undertake compliance reviews, and prepare reports and action plans.
For serious and systemic issues, the QHRC will have certain investigation and enforcement powers, including the power to enter into enforceable undertakings and issue compliance notices.
Positive duty to make reasonable accommodations
The Bill also introduces a positive duty which requires employers to make "reasonable accommodations" to ensure that a person with disability is not treated unfavourably because of the disability.
The intent is to require more proactive efforts from companies to accommodate those with 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.
Examples given in the draft Bill are buying screen reading software for a person with vision impairment, or modifying a person's workstation to accommodate a wheelchair.
If a company fails or refuses to make reasonable accommodations, and the effect is that a person with disability is treated unfavourably, they may have engaged in direct or indirect discrimination.
An employer faced with a claim would have to establish that to make the accommodation would impose an "unjustifiable hardship". As with the current test, it will be up to employers to prove this. The factors relevant to this assessment are:
- the nature of the disability;
- the nature of the accommodation required;
- the feasibility and effectiveness of the accommodation;
- the effect on the person with disability if the accommodation were made and were not made;
- the cost;
- the nature of any detriment to the employer;
- any other relevant matter.
It is difficult to predict whether in practice this positive duty to make reasonable accommodations will operate differently to the existing unjustifiable hardship exception under the AD Act because an entity will still have an ability to argue an adjustment wasn't made (and no positive duty enlivened) because the accommodation posed an unjustifiable hardship. The QHRC is set to issue guidelines on how entities and individuals should comply with the positive duty to make reasonable accommodations, which may provide further support to employers in navigating the new laws.
While these won't be legally binding, the tribunal may consider evidence of compliance with the guidelines where relevant.
Other changes: reach outside Queensland, third parties and exceptions
Importantly, the Bill is said to apply to contraventions by employers that occur outside of Queensland borders where there is a connection to Queensland. Employment will be connected with Queensland where the employer is a public sector entity in Queensland, or where the employer either has a workplace in or carries on a business or undertaking in Queensland or engages employees who work entirely or partly in Queensland.
The new Bill also includes revised purposes, provisions for "affirmative measures" for members of a group with a protected attribute/s, and the ability for complaints to be made by certain interest organisations or for representative complaints in certain circumstances.
Finally, the Bill has also done away with several of the exceptions that exist in the AD Act, and revised others. In particular, the Bill no longer contains specific exceptions in relation to:
- work with children (which currently allows discrimination on the basis of lawful sexual activity / gender identity if the work involves the care or instruction of minors);
- accommodation for workers;
- single-sex accommodation;
- accommodation with religious purposes (covered by the general exceptions at s.62);
- accommodation with charitable purposes (covered by the affirmative measures provisions);
- benefits arising from membership of a club;
- special services or facilities required (replaced by a positive duty);
- welfare measures and equal opportunity measures (replaced by the affirmative measures provisions).