The Queensland government is being urged to overhaul the state's 30-year-old anti-discrimination laws and start afresh, in a review tabled in parliament on Thursday.
The review comes after Attorney-General Shannon Fentiman last year asked the Queensland Human Rights Commission (QHRC) to consider whether the Anti-Discrimination Act 1991 needed an update.
The QHRC's Building Belonging final report goes one step further – proposing the state government pass an entirely new Act and create a "positive duty" for institutions and individuals to prevent discrimination.
Currently, a person experiencing discrimination must make a complaint to the QHRC in order to hold an individual or institution accountable for that discrimination.
Queensland's Human Rights Commissioner Scott McDougall said a positive duty could empower the QHRC to investigate potential cases of unlawful discrimination without relying on people to come forward.
"What it means is that the system doesn't need to wait for there to be a breach and a complaint made … so it's preventative in its effect rather than reactive by relying on complaints," Mr McDougall said.
The report recommends that five additional grounds for discrimination be prohibited:
- sex characteristics
- irrelevant criminal record
- physical features (weight, height, birthmarks and scars)
- being subject to domestic or family violence
- homelessness
Discrimination is already prohibited on the grounds of 16 attributes, including: race, sex, gender identity, sexuality, religious belief and activity and impairment.
But Mr McDougall said some of those terms need updating.
"We also updated and modernised the language of a number of attributes, including changing 'impairment' to 'disability', and 'lawful sexual activity' to 'sex worker'," he said.
Strong support for 'positive duty'
When masters of education student Grace McDonald was applying for teacher aide jobs on the Gold Coast last summer, she was shocked to discover one Christian school imposed conditions on staff about their sexuality.
"Nothing in their deliberate conduct should be incompatible with the intrinsic character of their position, especially, but not only, in relation to the expression of human sexuality through heterosexual, monogamous relationship, expressed intimately through marriage," the employment material stated.
Ms McDonald was stunned to see the demand spelled out in writing and didn't apply for the job.
"I thought there was no way that I could be understanding this correctly, because surely this is against the Anti-Discrimination Act or some sort of law. I read over it maybe 10 times and realised that was what they were asking us," she said.
Former students of Brisbane's Citipointe Christian College are pursuing a discrimination complaint against the school, which demanded parents sign an enrolment contract demanding students identify with their birth sex and denounce homosexuality in January.
Lawyers at the LGBTI Legal Service have also accused a Brisbane-based religious group of exposing students to potential discrimination at its eleven Australian schools.
The Christian Community Ministries schools shared a sample enrolment contract requiring students to denounce homosexuality and express a gender identity that aligned with their birth sex.
Mr McDougall said religious schools could be covered by the positive duty "but it's important to note that the existing law already protects students in Queensland … so religious schools can only discriminate on the basis of a person's religion, and/or sex, and only at the time of enrolment".
"So we have made a recommendation just to clarify that that is a one-off opportunity for the school to discriminate at the point of enrolment."
'Few people will challenge'
The Independent Education Union's (IEU) Queensland secretary Terry Burke said they receive multiple complaints every year from teachers who are required to follow similar requirements at religious schools.
But he said this had remained largely unchallenged because LGBTQI+ teachers have been scared to bring their complaints to the QHRC.
"It's an individual against the institution and to be able to do that does require courage. It also requires resources, frankly," Mr Burke said.
"Few people will challenge. Most will accept the reality of where they are and make a decision about leaving that institution."
The IEU argued for a positive duty in its submission to the QHRC's review of the Anti-Discrimination Act.
The QHRC received 159 written submissions, 1,109 responses to an online survey and conducted more than 120 stakeholder consultations.
Mr McDougall said there was strong support from marginalised communities for a positive duty.
"It was both unfair and ineffective to expect individuals on the receiving end of discrimination to carry the burden of making complaints and stopping discrimination," Mr McDougall said.
The QHRC has recommended repealing and replacing the current exemption that allows religious schools to discriminate against staff in order to uphold their religious beliefs.
"The scope of the exemption that would be permitted for religious schools to discriminate against teachers would be limited to those teachers who are directly involved in teaching religion and religious instruction," Mr McDougall said.
Another exemption allows religious schools to exclude students who are not of the same religion from enrolling.
Mr McDougall said that needs clarification.
"Religious schools can only discriminate on the basis of a person's religion, and or sex — and only at the time of enrolment. We have made a recommendation just to clarify that it is a one-off opportunity for the school to discriminate at the point of enrolment," he said.
Victims reluctant to speak up
Under the current Act, organisations can only bring forward discrimination complaints if they relate to vilification.
The QHRC's report recommends organisations be allowed to make a complaint about any unlawful discrimination or harassment on behalf of an individual.
Queensland African Communities Council (QACC) president Beny Bol said that would make a "huge difference".
Mr Bol has brought multiple vilification complaints to the QHRC in recent years, but said it was difficult to persuade victims to speak up.
"Discrimination or racism usually occurs at the places of an imbalance of power," he said.
"A lot of people would never want to report that because they don't think there would be an outcome, nobody will listen to them, there will be no witness — it will just be a very stressful process," Mr Bol said.
"Institutions involved in the systemic discrimination will think twice because they know that it's not just going to be about this individual they are dealing with … there will also be other powerful institutions getting involved and they will act on behalf of this employee."
'Just start afresh'
Mr McDougall said it would be possible for the state government to "pick and choose" by accepting only some of the 46 recommendations, but a full rewrite of the Act would avoid any unintended consequences.
"At the very start of this exercise, I didn't anticipate that the extent of recommendations that we would be making would require a whole new Act," Mr McDougall said.
"However, once it became apparent the extent of the recommendations, we thought that it would be best if parliamentary counsel were brought in to just start afresh."
Mr Bol likewise urged the state government to accept all 46 recommendations of the QHRC.
"Power should be used to empower people, especially the voiceless and the powerless. The best way to integrate everyone in the society is to empower those who are lagging behind."
Attorney-General Shannon Fentiman said the state government would consider all the QHRC's recommendations.
"The actions of Citipointe Christian College at the start of the year highlighted the importance of having specific protections for students and staff at our schools.
"This report recommends reforms that will mean our students and staff feel safe in religious schools while still protecting religious freedoms," she said.
"It is critical that any reform in this area is informed by the views and experiences of those who have suffered from discrimination and sexual harassment, and that we hear their voices."
