On 10 September 2024 the Respect at Work and Other Matters Amendment Act 2024 (Qld) (Amendment Act) was passed by the Queensland Parliament. The Amendment Act implements key reforms contained in the Queensland Human Rights Commission’s Building Belonging Report by way of substantive amendments to several important pieces of Queensland legislation.[1] Significantly for educational institutions, from 1 July 2025 the following changes to the Anti-Discrimination Act (1991) (AD Act) will take effect:
- updated definitions of discrimination, both direct and indirect;
- creation of a shared burden of proof;
- extension of the timeframe to make a complaint;
- specific protections against workplace harassment on the basis of sex, or creating a hostile work environment on the basis of sex;
- introduction of a new positive duty to eliminate all forms of unlawful discrimination, vilification and other associated objectionable conduct as far as possible; and
- expansion of the Queensland Human Rights Commission’s functions and power to investigate and publish guidance on compliance.
This Article considers each of these provisions in turn, including how it will impact educational institutions, and the steps that need to be taken to ensure compliance.
Amendments under the Act
New Protected Attributes
The Amendment Act introduces new protected attributes on the basis of which discrimination is prohibited, namely:
- family, carer or kinship responsibilities;
- subjection to domestic or family violence;
- homelessness;
- physical appearance;
- expunged conviction;
- irrelevant criminal record; and
- irrelevant medical record.
The Act also updates several existing attributes. The attribute of “sexuality”, for example, has been replaced with “sexual orientation”, and the definition updated as follows:
[a] person’s capacity, or lack of capacity, for emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.
Religious educational institutions in particular, may need to assess whether this change compels updates to their current policy framework, procedures and staff practices.
Redefining Direct Discrimination
The revised definition provides that direct discrimination will occur where a person treats, or proposes to treat, another person unfavourably because the other person has a particular attribute. Importantly, the current requirement for a comparator – being a hypothetical person without the attribute in circumstances that are not materially different – is removed.
The focus instead shifts to the nature of the conduct itself, and the reasons for it. Subsection 10(2), for example, provides that the attribute is only required to be one of the reasons, rather than the substantial reason (as is the current threshold), for the unfavourable treatment, and that it is irrelevant whether the person who discriminates considers that the treatment is unfavourable.
Shared Burden of Proof
The amendments include the introduction of a ‘shared burden of proof’ that will apply primarily to complaints of direct discrimination. The effect of the amendments will be that if there are facts from which it could be decided, in the absence of any other explanation, that the respondent contravened the provision of the Act that is the subject of the alleged contravention, the respondent is taken to have contravened the provision. This does not apply if the respondent proves, on the balance of probabilities, that the respondent did not contravene the provision.
This means that the complainant need only establish a prima facie case of discrimination, then the burden shifts to the respondent to show, on the balance of probabilities, that the reason for their conduct was not because the complainant had an attribute, or that there was some other non-discriminatory reason.
Redefining Indirect Discrimination
Presently, indirect discrimination occurs when a term is imposed which a person with an attribute does not, or is not able to, comply. From 1 July 2025, however, indirect discrimination on the basis of an attribute will occur if a person imposes, or proposes to impose, a condition, requirement or practice that—
- has, or is likely to have, the effect of disadvantaging another person because the other person has an attribute; and
- is not reasonable.
This includes creating an environment in which a person with an attributed is disadvantaged.
The onus of proving that the condition, requirement or practice is reasonable falls to the party imposing the condition. The requisite standard of proof is the balance of probabilities, and factors which may be relevant in reaching a determination include:
- the nature and extent of the disadvantage resulting from the condition;
- the proportionality of the disadvantage with the result sought to be achieved by the condition;
- whether adjustments could be made to the condition, or there is an alternate condition which could be imposed, to lessen the disadvantage;
- the costs of any adjustment or alternative condition;
- the financial conditions of the person imposing the condition; and
- any other relevant matter.
Timeframe to Make a Complaint
The complaint period within which a person is entitled to make a complaint has been uniformly increased to two years after the alleged contravention of the AD Act.
Specific Protections
The changes to the AD Act introduce specific protections against workplace harassment on the basis of sex, or creating a hostile work environment on the basis of sex.
Importantly, these protections do not limit the operation of any other provision of the AD Act. By way of example, the same conduct may amount to both subjecting a person to a hostile work environment on the basis of sex, and indirect discrimination on the basis of sex.
Imposing a ‘Positive Duty’
The Act imposes a broad positive duty on certain persons to:
take reasonable and proportionate measures to eliminate the discrimination, sexual harassment, harassment on the basis of sex or other objectionable conduct as far as possible.
The positive duty will apply to all persons—including individuals, corporations and the state—who have an obligation not to engage in discrimination, sexual harassment, harassment on the basis of sex and other unlawful conduct.
For individuals however, this duty will only apply in the context of conducting a business or undertaking, a concept which is presently used in work health and safety laws.
In practical terms, the positive duty will mean that, rather than merely waiting for complaints to be made and responding in a timely manner, duty holders will be required to take reasonable and proportionate measures to eliminate discrimination, sexual harassment, harassment on the basis of sex and certain other objectionable conduct.
The reasonableness and proportionality of the preventative measures taken will be highly dependent on the size, nature and circumstances of a business or undertaking, the available resources, the practicality and cost, operational priorities, as well as any other relevant matters.
Accordingly, the extent to which the positive duty is imposed will differ significantly between schools based on their unique circumstances. By way of example, a Prep to 12 school of 1500 pupils situated in an affluent area will be expected to impose far more rigorous measures then a small primary school comprised predominately of students from low socioeconomic households.
Compliance and Enforcement Functions of the QHRC
Guidance Material
Under the AD Act, the QHRC in its new role will be required to publish and issue guidance material relating to compliance with the positive duty, and may also be compelled to publish guidelines about any other part of the Act.
The Amendment Act introduces new compliance and enforcement functions for the Queensland Human Rights Commission (QHRC).
Investigations
The Commissioner may, in any way it considers appropriate, conduct an investigation:
- into possible contraventions of, or allegations of an offence against, the Act; or
- into a person’s compliance with the positive duty.
Compliance with the Positive Duty
If, after conducting the investigation, the commissioner considers that a person has contravened, is contravening, or is likely to contravene the positive duty, they may:
- help a person to whom the investigation relates to prepare an undertaking under which the person undertakes to take, to stop taking, or not to take, stated action to comply with the duty; and/or
- accept an undertaking of same.
If the person fails to comply with this undertaking, or has not offered an undertaking acceptable to the commissioner, the commissioner may issue a written notice (a compliance notice) to the person requiring the person to take, to stop taking, or not to take, stated action to comply with the positive duty.
Failure to comply with a compliance notice may result in the commissioner applying to the Queensland Civil and Administrative Tribunal or the Queensland Industrial Relations Commission for an appropriate order to enforce that compliance.
Taking Action to Achieve Compliance
The 1 July 2025 commencement date is fast approaching. Educational institutions and other organisations in Queensland should turn their minds to pre-emptive measures that may be employed, and steps that can be taken, to ensure ongoing compliance with the regulatory framework. This includes, but is not limited to:
- prepare written preventative policies and procedures which:
- are in accordance with current and future work health and safety regulations and guidance from the Queensland Human Rights Commission;
- address the importance of respectful behaviour in the workplace;
- undertake risk assessments in accordance with workplace policies;
- conduct workplace surveys to measure knowledge and awareness of unlawful conduct like discrimination or sexual harassment and the extent to which such conduct may have been experienced by members of the workforce;
- review and, if needed, amend, workforce training frameworks to ensure the training and education of workers is approached with an emphasis on preventing and identifying the warning signs of sexual harassment and workplace discrimination.
- engage in informal or formal disciplinary discussions with members of the organisation who are displaying conduct that may be disrespectful and unlawful under the AD Act; and
- encourage members of the senior leadership team to clearly and regularly articulate expectations of respectful behaviour.
You can view the Act as assented on 19 September 2024 here.
Vocare Law is well equipped to assist our Schools & Education clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions regarding your current School Policies or whether you would like our office to formally review any policies. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Courtney Linton & Jonas Whincop.
**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only.
Footnote
[1] AD Act, Criminal Code, District Court of Queensland Act 1967, Magistrates Act 1991, Penalties and Sentences Act 1992, Queensland Civil and Administrative Tribunal Act 2009, and Youth Justice Act 1992. It also proposes consequential amendments to the Corrective Services Act 2006 and the Human Rights Act 2019 (HRA)
