Significant changes coming to Queensland’s anti-discrimination laws

Introduction

The Respect at Work and Other Matters Amendment Act 2024 (Qld)received assent on 19 September 2024.

The Respect at Work Act will make significant changes to the Anti-Discrimination Act 1991 (Qld) . This includes the introduction of six new protected attributes and a positive duty to implement measures to eliminate unlawful conduct.

These changes will take effect on 1 July 2025.

New protected attributes

Irrelevant criminal record will be added as a protected attribute to the Anti-Discrimination Act. This means that an employer will be prohibited from, for example, refusing to offer employment to a prospective employee on the basis of an irrelevant criminal record.

A criminal record will be irrelevant in two different circumstances. First, a criminal record will be irrelevant where it does not relate to a finding of guilt or a conviction. This may be the case where court proceedings for an offence are still on foot, or where a charge was made by police but later withdrawn.

Second, a criminal record will be irrelevant where a person was convicted of an offence but the circumstances of the offence are not directly relevant to the situation in which the record is being considered.

Whether a criminal record is directly relevant to the situation where it is being considered will depend on the particular circumstances. For example, if a prospective employee has a conviction for an offence involving driving, this may be directly relevant where they are applying for a position that would require driving.

Physical appearance will also be introduced as a protected attribute. The physical appearance of a person is defined as:

• their weight, size or height
• the presence of a birth mark or scar on the person’s face or body
• any other characteristic of the person’s face or body that the person has because of another attribute of the person or that is not freely chosen.

Notably, this definition of physical appearance will not extend to characteristics that are freely chosen, including clothing, hairstyle, piercings and tattoos. However, it will be unlawful to discriminate against a person on the basis of their freely chosen physical appearance where their physical appearance relates to another protected attribute, such as their religious beliefs.

Irrelevant medical record will also be added as a protected attribute. An irrelevant medical record is defined to mean a person’s medical record, or part of a person’s medical record, that is not directly relevantly to the situation in which the record is being considered. A person’s medical record includes, but is not limited to, any record of applications or claims for workers’ compensation.

A medical record will likely be directly relevant where it relates to a genuine occupational requirement. However, a medical record may be irrelevant where it does not relate to a person’s ability to safely perform the duties of a particular role.

Other new protected attributes will include being subjected to domestic or family violence, having an expunged conviction and experiencing homelessness.

The wording of some of the existing protected attributes will also be amended. For example, the protected attribute of pregnancy will be amended to pregnancy or potential pregnancy. This will include a person’s expressed desire to become pregnant and a person’s likelihood, or perceived likelihood, of becoming pregnant.

Positive duty

The Respect at Work Act will introduce a positive duty to eliminate discrimination, sexual harassment, harassment on the basis of sex and other objectionable conduct into the Anti-Discrimination Act.

At the Federal level, there is already a positive duty to eliminate unlawful sex discrimination under the Sex Discrimination Act 1984 (Cth). Under the Sex Discrimination Act, all employers have an obligation to take reasonable and proportionate measures to eliminate, so far as possible, sexual harassment, discrimination on the ground of sex, hostile workplace environments and victimisation.

The Respect at Work Act will introduce a broader positive duty. Businesses will be required to take reasonable and proportionate measures to eliminate, so far as possible, all forms of discrimination, not just discrimination on the ground of sex.

The introduction of this positive duty is intended to reinforce that employers and duty holders are required to take proactive steps to eliminate unlawful conduct, not just respond after a complaint is received.

The Queensland Human Rights Commission will be responsible for enforcing the positive duty. It will have powers to investigate complaints and enter into enforceable undertakings with businesses.

Other changes

The Respect at Work Act will make multiple other changes to the Anti-Discrimination Act, including:

• amending the definition of ‘direct discrimination’ to require treatment to be unfavourable rather than less favourable, removing the requirement for a comparator
• amending the definition of ‘indirect discrimination’ to require a condition or proposed condition to have, or be likely to have, the effect of disadvantaging another person because the other person has an attribute, removing the requirement for a person with an attribute to be unable or less able to comply with the condition
• introducing a prohibition on subjecting someone to a work environment that is hostile due to their sex, in line with the federal prohibition under the Sex Discrimination Act.

Preparing for these changes

While these changes do not take effect until 1 July 2025, there are some steps employers can take now to prepare.

If you require prospective employees to undertake a criminal history check or pre-employment medical, you may need to review whether this is necessary and ensure that you are only refusing employment in cases where a criminal record or medical condition is directly relevant to a role.

While employers are already required to implement measures to control the risk of sexual harassment and gender‑based harassment, now would be a good time to review your control measures to ensure that they address all forms of discrimination and unlawful conduct. For example, you may need to review whether your equal employment opportunity training addresses all forms of discrimination.

Conclusion

The Respect at Work Act will implement significant changes to Queensland’s anti-discrimination laws that will affect all employers.

As more information is released about these changes, we will provide further updates on our website.

If you have any questions or require assistance preparing for these changes, please contact a member of our workplace relations and safety team.