Queensland Introduces Positive Duty to Eliminate Discrimination

The Queensland Parliament has enacted significant reforms to the Anti-Discrimination Act 1991 (Qld) (Anti-Discrimination Act) through the passage of the Respect at Work and Other Matters Amendment Bill 2024 (Amendment Bill). This legislation introduces changes designed to enhance workplace protections against discrimination and harassment. Key amendments include the introduction of a positive duty for employers, new definitions of discrimination, expanded protected attributes, and a shared burden of proof in complaints.

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

What is changing in the Anti-Discrimination Act?

Introduction of Positive Duty

In summary, the changes to the Anti-Discrimination Act will introduce a positive duty that requires duty holders to take reasonable and proportionate measures to eliminate, as far as possible, discrimination, in addition to eliminating sexual harassment, harassment on the basis of sex and “other objectionable conduct”. Where there is a positive duty to eliminate discrimination based on sex currently in the Federal Sex Discrimination Act 1984 (Cth), the new Queensland legislation imposes a positive duty to take reasonable and proportionate measures to eliminate discrimination on the basis of all protected attributes.

In practical terms, duty holders will be required to take proactive steps to prevent conduct that would amount to discrimination, sexual harassment, harassment on the basis of sex, or other objectionable conduct rather than merely waiting for complaints to be made. This could include:

• Ensuring that organisational policies that address the importance of respectful behaviour in the workplace are in place, readily accessible and employees are trained on their application.
• Conducting workplace surveys in order to measure awareness and knowledge of unlawful conduct such as sexual harassment or discrimination, and the extent to which such conduct may have been experienced by employees.
• Engaging in informal or formal disciplinary discussions with employees who are displaying conduct that may be disrespectful and unlawful under the Anti-Discrimination Act; and
• Managers and people in positions of leadership clearly and regularly articulating expectations of respectful behaviour.

Specific protections against workplace harassment on the basis of sex, or creating a hostile work environment on the basis of sex

The Anti-Discrimination Act incorporates the definition of ‘harassment on the basis of sex’ and ‘workplace that is hostile on the ground of sex’, adapted from the Sex Discrimination Act 1984 (Cth) to align with the existing Federal provisions related to sexual harassment.

Introduction of new protected attributes

New attributes that are now protected include: ‘expunged conviction’, ‘homelessness’, ‘irrelevant criminal record’, ‘irrelevant medical record’, ‘physical appearance’ and ‘subjection to domestic or family violence’. Other protections that already existed in the Anti-Discrimination Act have been updated, including:

• expanding the protected attribute of pregnancy to include potential pregnancy;
• changing the term ‘sexuality’ to ‘sexual orientation’;
• updating the definition of race to include immigration or migration status;
• updating the definition of ‘family responsibilities’ to ‘carer or kinship responsibilities’; and
• updating the definition of parent to include those who, under Aboriginal tradition or Torres Strait Island custom, are regarded as a parent of a person.

Extension of the timeframe for making complaints

The Anti-Discrimination Act currently provides that a person is only entitled to make a complaint within one year of the alleged contravention. The Amendment Bill entitles a person to make a complaint within two years of a certain type of alleged contravention (‘a contravention on the basis of sex’) that is also a work-related matter. A contravention on the basis of sex means a contravention of the Anti-Discrimination Act that constitutes:

• Discrimination against a person on the basis of the person’s sex;
• Sexual harassment or harassment on the basis of sex;
• Subjecting a person to a work environment that is hostile on the basis of sex; or
• Victimisation of a person in relation to the above types of conduct.

Allow for Representative Complaints

Prior to the introduction of the Amendment Bill, representative complaints (i.e. complaints lodged on behalf of a complainant, rather than the complainant themselves) were only permitted where an employee is making a complaint of vilification. The updated Anti-Discrimination Act will allow for representative complaints to be made in cases of discrimination, harassment, or other contraventions from 14 October 2024.

Expand the Functions and Investigative Powers of the Queensland Human Rights Commission

Lastly, the amendments to the Anti-Discrimination Act aim to give substantial investigative power to the Queensland Human Rights Commission to conduct investigations into:

• a person’s compliance with the positive duty if the commissioner suspects that the person is not complying; and
• any matter relating to a contravention on the basis of sex that is or is suspected to be systemic and is a work-related matter, if the commissioner believes that doing so would help achieve the purposes of the Act.

A contravention on the basis of sex is considered systemic if it affects a class or group of persons, and is continuous, repetitive or forms a pattern.

After conducting an investigation, the commissioner may do one or more of the following:

• Decide to take no further action;
• If the investigation relates to failure to comply with the positive duty –
  • Help a person prepare an undertaking;
  • Accept an undertaking; and/or
  • Issue a compliance notice;
• If the investigation relates to a systemic relevant contravention – prepare a report; or
• Otherwise take any action the commissioner is empowered to take under the Anti-Discrimination Act.

Conclusion

The amendments to the Anti-Discrimination Act present both challenges and opportunities for employers in Queensland. As most of the changes commence from 1 July 2025, it is essential for employers to prepare now by investing in training, conducting regular assessments of workplace culture, and engaging with employees to create an environment that eliminates, as far as possible, unlawful conduct. If you require assistance in meeting your obligations, please call out Workplace Relations team on 1800 738 245.