On 14 June 2024, the Respect at Work and Other Matters Amendment Bill 2024 (the Bill) was introduced into the Queensland Parliament. Among other sweeping changes, the Bill, seeks to amend the Anti-Discrimination Act 1991 (Qld) (the Act) to:
- introduce a positive duty to eliminate all forms of unlawful discrimination, vilification and other associated objectionable conduct as far as possible;
- empower the Commission to conduct investigations in respect of this; and
- update and expand the attributes protected by the Act.
The proposed amendments represent the Queensland government’s initial legislative response to key recommendations of the Queensland Human Rights Commission (QHRC) in its report, Building Belonging – Review of Queensland’s Anti-Discrimination Act 1991.
There is some suggestion that the further recommendations of the Building Belonging Report will be pursued after the October State Election.
In this article we summarise the most pertinent amendments for educational institutions.
The Bill
Positive Duty
The Bill introduces a broad positive duty on certain persons to eliminate, as far as possible, discrimination, sexual harassment, harassment on the basis of sex and certain other objectionable conduct.
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.
However, with respect to individuals, it will only apply in the context of an individual 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, duty holders will be required to take proactive steps to prevent conduct that would be discrimination, sexual harassment, harassment on the basis of sex or other objectionable conduct in the first place.
What does this look like for educational institutions?
- ensuring there are organisational policies in place that address the importance of respectful behaviour in the workplace;
- ensuring easily accessible information is available;
- conducting 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;
- engaging 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
- members of the senior leadership team clearly and regularly articulating expectations of respectful behaviour.
In determining what measures are reasonable and proportionate in the circumstances, the Act prescribes the following factors that must be considered:
- the size, nature and circumstances of the business operations;
- the resources of the person, whether financial or otherwise;
- the practicability and the cost of the measure;
- the person’s operational priorities; and
- any other relevant matter.
Accordingly, the extent to which the positive duty is imposed will differ significantly between a Prep to 12 school of 1500 pupils situated in an affluent area, and a small primary school comprised predominately of students from low socioeconomic households.
Compliance and Enforcement
The Bill also introduces new compliance and enforcement functions for the Queensland Human Rights Commission to allow the positive duty to be enforced.
The Bill amends the Act to allow the Commissioner to conduct investigations into person’s compliance with the positive duty if the commissioner suspects that the person is not complying with this duty.
After conducting an investigation, the Commissioner may:
- decide to take no further action;
- issue a compliance notice; or
- help a person prepare and/or accept an undertaking.
Expanding on this final point, where an investigation reveals the person has contravened, is contravening or is likely to contravene the positive duty, the commissioner may enter into a written undertaking with the person that details the actions the person will take to comply with the duty.
If the non-compliance continues, the Commissioner may withdraw acceptance of the undertaking and issue a compliance notice, which requires the person to take specified actions to comply with their obligations.
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.
Review of Compliance Notice
A person who is served with a compliance notice by the Commissioner may apply to the Tribunal (QCAT) or Queensland Industrial Relations Commission for a review of the issuing of the compliance notice or any of the terms of the notice:
- within 28 days after receiving the notice; and
- as provided under the relevant tribunal Act and/or Industrial Relations Act 2016.
After a review, the Tribunal or QIRC may either confirm the compliance notice or withdraw the compliance notice. In situations where the compliance notice is confirmed, the Tribunal or QIRC will consider whether the time for compliance should be amended.
Expanding Protected Attributes
Finally, the Bill includes amendments to introduce new attributes on the basis of which discrimination is prohibited and updates some of the existing attributes. With respect to the latter, the attribute ‘sexuality’ has been updated to ‘sexual orientation’, which is defined as:
[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.
What’s Next?
Interested parties have until 2 July 2024 to make a submission to the parliamentary committee, which will table its report on 2 August 2024. It is anticipated that the Bill will progress through parliament before the October election.
This article was written by Jonas Whincop, Courtney Linton & Alistair Macpherson.