Lawyers and advocates unite to make Queensland fairer

An alliance of lawyers and advocates have pooled decades of collective experience to find better solutions and produce a ‘10-point plan’ to improve Queensland’s 30-year-old anti-discrimination laws. 

The state government tasked the Queensland Human Rights Commission (QHRC) in May last year (2021) to review the Anti-Discrimination Act 1991 (Qld) and to consider if current laws protect and promote equality and non-discrimination to the greatest extent possible.

Currently, the Act makes unfair discrimination, sexual harassment, vilification, and victimisation unlawful in Queensland.

The Act outlines the characteristics – for example, race, sex, and impairment – that are protected from discrimination; as well as the areas in which discrimination is unlawful – for example, at work or school. It also makes other types of behaviours unlawful, including sexual harassment.

The QHRC, as part of its review, has been asked to consider whether the laws need to be improved to better respond to people who have experienced discrimination. It is also considering whether the laws should have a role in identifying and eliminating systemic causes of discrimination, sexual harassment and victimisation, and in requiring organisations and workplaces to eliminate discrimination, sexual harassment, and victimisation.

A series of community conversations have been held across Queensland in recent months, including Rockhampton, Townsville and Cairns, with the QHRC setting a cut off for submissions on 1 March (2022).

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Community Legal Centres Queensland recently published a 10-point plan developed by lawyers and human rights advocates to ensure a fairer Queensland.

The alliance is made up of representatives from Queensland Advocacy Inc., Prisoners’ Legal Service, LGBTI Legal Service, Townsville Community Law, Caxton Legal Centre Inc., Basic Rights Queensland and University of Queensland School of Law.

In releasing its plan, the alliance said: “Queensland’s Anti-Discrimination Act was written 30 years ago. At the time it was world-class human rights law and represented a shift in the way we chose to live together in this state.

“A lot has changed in this time and some aspects of the law have now fallen behind contemporary standards. The Queensland Human Rights Commission is currently reviewing the Anti-Discrimination Act. This review is an opportunity for Queensland to again have world-class equality laws.

“The alliance of Queensland lawyers and advocates has scoured other jurisdictions and pooled their many decades of collective experience to find better solutions to the biggest problems with our current anti-discrimination law.’’

The alliance’s plan calls for the following:

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• No more excuses for discrimination: There are many dated, discriminatory exemptions and excuses in anti-discrimination laws that are out of step with contemporary society and reinforce harmful social constructs, stereotypes and stigmas. These should be removed.
• Expand who is protected: The list of people protected by anti-discrimination law in Queensland is out of date and does not deal well with intersectionality (when a person has a combination of attributes, such as an Indigenous woman). The list of people who are protected needs expanding and greater flexibility to better match the way people live and interact.
• Make it easier for people to access adjustments and flexibility: Sometimes true equality means people need to be treated differently or have access to special services to ‘level the playing field’. The law about this is complicated and there are too many excuses for not adjusting to accommodate difference. A fairer balance is needed.
• Remove the requirement to compare how people are treated: Treating someone badly because of their race, sex, disability, age, gender identity etc. should be prohibited outright. Currently it is necessary to compare how people are treated; this should be changed.
• When unfair treatment happens, make respondents show it was not discrimination: Instead of making victims prove why they were mistreated, the badly behaved party should have to explain themselves and show it was not discrimination.
• Spell out the positive change we want to see in Queensland: The current law mostly deals with remedies for the harm caused by discrimination rather than the positive steps needed to make Queensland fairer. The law should set out who has duties to prevent discrimination and protect others from harm, and what those duties are.
• People, especially children, need more time to complain: Currently discrimination complaints can only be made in the year following the discrimination occurring. This is not long enough, especially if there has been trauma, and for children who do not have parents or carers capable of stepping in.
• People who experience the same discrimination should be able to work together: The current provisions for representative actions were intended to deliver systemic change but in 30 years have never done so. We need a best-practice class-action regime. Hiding settled outcomes behind confidentiality clauses should be discouraged.
• An enforcement body to make sure anti-discrimination law is followed: At the moment people who have experienced discrimination have to bring their own case if they want things changed. We need an enforcement body.
• Have experts making decisions about anti-discrimination cases: We need specialist decision makers deciding anti-discrimination cases.