Queensland’s Parliament has passed the most significant changes to the state’s Anti-Discrimination Act since its introduction over 30 years ago, placing a new onus on businesses, organisations and government agencies.
Managers and business owners will now be responsible for preventing discrimination before it occurs, rather than merely responding to it—while significantly expanding the categories of people protected under the Act.
A ‘Positive Duty’ to Prevent Harm?
The expectation that organisations will take steps to prevent discrimination and vilification is called a “positive duty,” and those who fail may be subject to as-yet-unspecified penalties.It will apply across all the areas of public life covered by the Anti-Discrimination Act, including workplaces and providers of education, accommodation, or goods and services.
The Queensland Human Rights Commission (QHRC)—which will be expanded to enable it to police the new legislation—says such organisations will only be required to “take action that is reasonable and proportionate.”
“This means that what’s required will be different depending on the size of your business, organisation or agency, and the sector you operate in,” its initial advice says.
Organisations will need to take “all reasonable steps” to prevent discrimination based on sex, race, age, religion, and sexuality, among other things, sexual harassment, vilification, victimisation, and even requesting unnecessary information.
The range of protected persons has also been expanded to include victims of domestic and family violence, people experiencing homelessness, those with expunged criminal convictions or irrelevant criminal or medical records, and people discriminated against because of their physical appearance (for example, their height, weight, size, birth marks, and other features).
Think Tank Says Law Places Freedom of Speech At Risk
The proposal has caused alarm in some quarters.The free market think tank, the Institute for Public Affairs—which in its submission to Parliament that was provided to The Epoch Times—called the Bill “a dramatic and direct assault on freedom of speech in Queensland.”
It warned that on the surface the focus was on protecting vulnerable parties, but it could be misused by activists to silence debate.
“Lowering the standards of unlawful speech to anything a complainant perceives to be ‘hateful’ is highly subjective.
“Had these laws been in place at the time of The Voice referendum last year, an accusation that political speech was motivated by ‘hate’ could well have been used to silence the opinions of any one of the 2.2 million Queenslanders who voted ‘No,’” said the IPA’s Director of Research Morgan Begg.
In its submission, the Institute argued that determining whether a public act is “hateful” is not an objective legal standard.
“The ambiguity implicit in the term renders it inappropriate to use in legislation without objective measures and specific guidance as to how the provision would be enforced. This is particularly problematic in a legislative provision that includes penalties and liabilities,” it said.
Unless subsequent consultations promised by the QHRC can clearly define what steps an organisation must take to comply with its “positive duty,” the Institute fears many may inadvertently fall afoul of the new law when it comes into operation.
“Worryingly, the Queensland Human Rights Commission has been given broad powers to unilaterally launch investigations of organisations it ’suspects’ of not complying with the duty, exposing Queenslanders to the risk of a politically motivated witch-hunt by an unelected government agency,” Begg said.
Former State Premier Concerned With Regulatory Burden
Former Premier Campbell Newman, speaking on behalf of the Libertarian Party, also expressed concern, fearing that the additional regulatory burden would adversely affect businesses at a time when they are already facing challenges.“Only today the Business Council of Australia are echoing the Minerals Council in warning that red tape on business has reached an intolerable level in this country,” Newman said. “Major companies are reporting that they are looking to reduce their take up of new employees in Australia and turning to invest in other countries.
It’s all very well to have these laws, but if Queenslanders don’t get a job in the first place, they are of little use,” he said.
He also criticised the QHRC for its silence “when the most outrageous assault on the freedom and rights of Queenslanders took place during the COVID-19 over-reaction of 2020 to 2022.”
The QHRC was approached for comment, specifically asking for clarification on the operation of the new legislation, but referred all questions to the Attorney-General Yvette D’Ath, who had not provided a response by the time this article was published.
On its website the Commission acknowledges that “The legal tests and definitions of discrimination in the Act have been complex and can be interpreted in different ways. Key concepts in the Anti-Discrimination Act will be refined so the law is easier to understand and apply, to make sure it is responding effectively to the problems it seeks to address.”
It also commits to “working with industry, experts, and peak bodies over the coming months to develop our guidance material together, to make sure it is as easy as possible for duty holders to comply with their obligations under the Act.”
