How to prepare for changes to Queensland's discrimination laws

From 1 July 2025, there are significant changes coming to Queensland's Anti-Discrimination Act 1991 (Qld) (AD Act) which includes:

• an expanded list of protected attributes; 
• a new positive duty to prevent discrimination on the basis of the protected attributes; and
• new definitions of direct and indirect discrimination.

This is a significant reform to the AD Act. In this article, we outline the key changes for employers to consider and provides guidance as to how to prepare for the changes.

Changes to the protected attributes

We have developed a list here which shows the changes or additions to the list of protected attributes and their definitions.

In summary, the new attributes are potential pregnancy, sexual orientation, family, career or kinship responsibilities, subjection to domestic or family violence, homelessness, physical appearance, expunged conviction, irrelevant criminal record, and irrelevant medical records. It also includes discrimination based on a combination of other attributes (known as intersectional discrimination).

In our view, the characteristics that will present the greatest challenge/changes for employers are:

• family, carer or kinship responsibilities – this is broader than the previous "family responsibilities" and it is worth noting that there are no restrictions on who the carer responsibilities might be towards (so could extend to a friend or neighbour);
• irrelevant criminal record – previously employers have simply considered whether a criminal conviction or charge might bring an employer into disrepute, however, there is now a requirement to consider whether the record is directly relevant to the situation;
• irrelevant medical record – note here that medical record includes a workers compensation record (that is not directly relevant);
• physical attribute – generally only includes weight, size, height, birthmarks or scars, or any other characteristic of the person’s face or body that the person has because of another attribute of the person (for example, a disability); or is not freely chosen.

Importantly, the current defences remain unchanged – for example genuine occupational requirements, workplace health and safety, public health and various acts by religious bodies.

A new positive duty

A positive duty is an obligation on a person or organisation to take active steps to prevent discrimination and sexual harassment before it happens – as opposed to reacting when a complaint is made.

As of 1 July 2025, persons conducting a business or undertaking must take:

'reasonable and proportionate measures to eliminate the discrimination, sexual harassment, harassment on the basis of sex or other objectionable conduct as far as possible.'

This duty is much wider than the obligation in relation to eliminating sexual harassment under the Commonwealth Sex Discrimination Act 1984 that has recently been implemented – it is an obligation to eliminate discrimination on the basis of all of the protected attributes.

In deciding what is 'reasonable and proportionate', the following will be considered:

• the size, nature and circumstances of the person’s business or undertaking or operations;
• the resources of the person, whether financial or otherwise;
• the practicability and the cost of the measure;
• the person’s business and operational priorities;
• any other relevant matter.

This approach is very similar to that in Victoria, meaning case law in Victoria will be particularly relevant as to how this new duty will be approached.

The Queensland Human Rights Commission will have an expanded role to educate organisations and publish guidelines, whilst also gaining powers to investigate compliance with the positive duty, and where required, take enforcement action.

Changes to the definition of direct and indirect discrimination

New definitions will be inserted into the legislation to simplify the legal tests. The new definitions are:

Direct discrimination on the basis of an attribute occurs if a person treats, or proposes to treat, another person unfavourably because the other person has an attribute. 

The main change here is using "unfavourably" rather than "less favourably than another person without the attribute", removing the direct need for a hypothetical comparator – this comparator has previously caused great difficulties for complainants and respondents alike as well as a significant amount of legal consideration. Whilst comparison may still be a useful exercise in the decision making, it is no longer an element that must be established to a particular standard.

Indirect discrimination on the basis of an attribute occurs if a person imposes (or proposes to impose) a condition, requirement or practice that:

• has, or is likely to have, the effect of disadvantaging another person because the other person has an attribute; and
• is not reasonable.

The person seeking to impose the condition, requirement or practice now has the onus of proving, on the balance of probabilities, it is reasonable.

This removes the requirement of showing a person "cannot comply" with the condition, and, again, removes the (difficult to apply) hypothetical comparator.

As it is currently, a person's motive for discriminating is irrelevant, and it does not matter whether the person who discriminates considers the treatment is unfavourable, or is aware of the discrimination.

Other changes to note

• Similar to the prohibitions that have recently been enacted in the Sex Discrimination Act 1984 (Cth), there are now prohibitions in the AD Act against subjecting another person to a work environment that is hostile on the basis of sex, and against harassing someone on the basis of their sex at work.
• The timeframe to make a complaint has been extended to two years.
• There will be a shared burden of proof in which the burden shifts to the respondent once the complainant has established a prima facie case. However, a person seeking to rely on an exemption has the onus of proving, on the balance of probabilities, that the exemption applies.

Key steps to prepare for the changes

An organisation should take active steps to implement and consider these changes by:

1. Training - ensuring leaders, managers and employees are aware of their obligations through formal and informal education and training. This may include updating training materials in accordance with the changes, and should effectively involve regular discussions with employees about the expectations of respectful behaviour beyond the one hour mandatory training.
2. Prevention Plan - developing a prevention and response plan based on guidance material, including by undertaking a risk assessment and consulting with staff, health and safety representatives and management. Note the significant overlap here with complying with Managing the risk of psychosocial hazards at work Code of Practice 2022 and the recent amendments to the Work Health and Safety Regulation 2011 which, from 1 March 2025, specifically require a PCBU to prepare and implement a prevention plan to manage identified risks to the health and safety of persons at work from sexual harassment or sex or gender-based harassment. Any prevention plan should be endorsed by the board or senior leadership team since significant cultural change is only effective when lead from the top. The requirements of a prevention plan can be found here.
3. Review Policies and Procedures - reviewing human resource policies, processes and procedures, particularly to: update discrimination and harassment policies and codes of conduct to include the new attributes and prohibitions; review internal complaints procedures to ensure they are trauma informed and person focussed; review the management and collection of information relating to medical records and criminal records. For example, reviewing recruitment and on-boarding pre-employment medical and criminal history search processes (are these required for the specific positions?), reviewing contract templates where required.
4. Cultural changes - considering the extent to which the organisational culture models respectful behaviour, and any cultural change that need to occur.

We note that these changes were made by the previous Labour State Government, and that the Liberal and National Party objected to the laws in part, particularly in relation to how they might impact on religious bodies and schools and their religious sensitivities. We expect there may be changes in relation to these areas in particular prior to 1 July 2025 when the laws commence.

¹. Queensland Human Rights Commission, Building belonging: Review of Queensland's Anti-Discrimination Act 1991, Chapter 6, July 2022.
². Queensland Human Rights Commission, Building belonging: Review of Queensland's Anti-Discrimination Act 1991, Chapter 4, July 2022.
³. The Queensland Human Rights Commission is currently developing material. The Australian Human Rights Commission has useful guidance in relation to complying with the positive duty: https://humanrights.gov.au/our...