Queensland’s Anti-Discrimination Law Changes: What Small Businesses Need to Know

The amendments expand anti-discrimination protections to include six additional attributes:

• Irrelevant criminal record – Employers cannot discriminate against a person based on a past offence unless it is directly relevant to the role. E.g. If a person has a driving offence but is applying for a job that does not involve driving, that record should not be a factor in the hiring decision.
• Physical appearance – Discrimination based on weight, height, birthmarks, scars, or other physical features is prohibited. However, this does not extend to freely chosen aspects like hairstyles or clothing unless linked to another protected characteristic (e.g. religious beliefs).
• Irrelevant medical record – Employers cannot discriminate against someone for past or existing medical conditions that do not affect their ability to perform the job.
• Subjection to domestic or family violence – Individuals who have experienced domestic or family violence will be protected from discrimination; aiming to support and protect survivors of such violence.
• Expunged convictions – A past conviction that has been legally removed from a person’s record cannot be used as a basis for discrimination.
• Homelessness – Individuals experiencing homelessness are now safeguarded under the ADA.

Additionally, the ADA will now recognise and protect against discrimination based on a combination of two or more attributes (e.g. gender and disability).

Key changes and impact on businesses

New Positive Duty: One of the most significant changes is the introduction of a positive duty. Unlike previous laws that focused on responding to discrimination, this duty requires businesses to take proactive and proportionate measures to prevent discrimination, harassment, and hostile workplace environments. It is broader than the existing federal Respect@Work positive duty, extending to all forms of discrimination, not just those based on sex.

Implications for Small Businesses:

• Employers must go beyond simply responding to complaints and take preventative action.
• Policies and procedures should be updated to promote a respectful and inclusive workplace.
• Regular training for employees and managers will be essential to ensure compliance.

Expanded protected attributes: The ADA now includes new protected attributes (‘expunged conviction’, ‘homelessness’, ‘irrelevant criminal record’, ‘irrelevant medical record’, ‘physical appearance’, and ‘subjection to domestic or family violence’). It also protects against discrimination based on a combination of two or more attributes.

Implications for Small Businesses:

• Hiring practices and workplace policies must be reviewed to ensure compliance with the expanded protections.
• Job application forms, interview processes, and employee handbooks should be updated to reflect these changes.
• Businesses must be mindful of how multiple attributes may impact an employee’s experience.

Revised definitions of discrimination: The definitions of direct and indirect discrimination have been updated. Direct discrimination is now defined as ‘unfavourable’ treatment, and indirect discrimination is an unreasonable condition that disadvantages someone because of their attributes.

Implications for Small Businesses:

• Workplace policies must be reviewed to ensure they do not unintentionally result in discrimination.
• Employees and managers should receive training on these revised definitions to prevent workplace issues.

Shared burden of proof: In discrimination cases, the burden of proof is now shared. Complainants need only establish a prima facie case of discrimination, after which the burden shifts to the respondent to prove the conduct was not discriminatory or that an exception applied.

Implications for Small Businesses:

• Clear documentation of hiring decisions, disciplinary actions, and performance management will be crucial.
• Businesses must ensure that all employment-related decisions are fair, well-documented, and defensible if challenged.

Extended timeframe for complaints: The timeframe for lodging complaints has been extended to two years for all types of complaints.

Implications for Small Businesses:

• Employers must retain records for longer periods to ensure they can respond to potential claims.
• Regular compliance reviews will be essential to mitigate legal risks.

The new positive duty intersects with the national Commonwealth Respect@Work positive duty and recent changes to Queensland’s Work Health and Safety (WHS) regulations, which require a sexual harassment prevention plan.

Preparing for the changes

While these changes do not take effect until July 1, 2025, there are steps that can be taken now to prepare:

1. Develop a prevention and response plan: Create a plan detailing measures to prevent and respond to discrimination and harassment. This plan should align with guidance from the Australian Human Rights Commission (AHRC) and the Queensland Human Rights Commission (QHRC).
2. Update workplace policies: Ensure policies reflect the new protected attributes and the revised definitions of discrimination. Policies should be person-centred and trauma-informed.
3. Conduct risk assessments: Identify and assess the risks of discrimination and harassment in your workplace and implement control measures to address these risks. 
4. Review training programs: Update training programs to cover the new and expanded protected attributes; ensuring employees understand their obligations and the importance of respectful behaviour.
5. Review criminal history and medical checks: Review whether pre-employment background checks are necessary for each role. If checks are required, ensure decisions are based on role relevance rather than outdated exclusionary practices.
6. Update control measures: Employers are required to implement measures to control the risk of sexual harassment and gender-based harassment. Now is a good time to review these measures to ensure they address all forms of discrimination and unlawful conduct.