The Newsletter of the ADCQ
Issue Sixteen - March 2003
Features
Disclaimer
Views expressed by contributors are not necessarily endorsed by
the Anti-Discrimination Commission Queensland. No responsibility
is accepted by the Commission for the accuracy of information
contained in the newsletter.
Amendments to the Anti-Discrimination Act
On 6 December 2002, amendments to the Queensland Anti-Discrimination
Act 1991 (the Act) were presented to Parliament by the
Attorney-General and Minister for Justice, Rod Welford. The reforms
were passed a week later on 13 December, although a date for the
changes to take effect is yet to be advised.
The amendments represent the most significant change to the Act
since its implementation in 1991. In the second reading speech,
Minister Welford commented that the changes protect ‘the
fundamental human rights of all Queenslanders, no matter who they
are.’
Acting Commissioner, Susan Booth welcomed the changes ‘which
would promote human rights and fairness in Queensland.’
This special issue of ‘Balancing the Act’ focuses
on the legislative amendments – what they are, who is affected,
and some of the detail.
Please call the Commission on 1300 130 670, or check our website
on www.adcq.qld.gov.au
for further information.
Major changes at a glance:
Substantive changes
- Inclusion of new attributes (grounds)
- family responsibilities
- gender identity
- sexuality
- Changing current attributes of
- breastfeeding (includes all areas)
- lawful sexual activity (means a lawfully employed sex worker)
- religion (becomes religious belief or activity, and also
includes not holding a religious belief).
- Re-definition of the term ‘spouse’ in all Queensland
legislation includes de facto partners, regardless of their
sexuality
- Inclusion of sexuality and gender identity in the vilification
provisions
- Provision for complaints of vilification to be lodged by
organisations on behalf of individuals
- Extension of the ground of victimisation
- Provision of an exemption in assisted reproductive technology
services.
- Extension of the ‘genuine occupational requirement’
exemption, and the ‘work with children’ exemption
The reforms also include a range of procedural changes which
are discussed under a separate heading.
Major changes at a glance:
Procedural changes
- Community groups will now be able to bring a complaint of
vilification (racial, religious, sexuality or gender identity)
on behalf of those people they represent
- A complaint now needs to state the complainant’s address
for service as well as still needing to be in writing, lodged
with the Commission and indicating an alleged breach of the
Act
- Several changes have been made to the process of advising
a respondent about a complaint. The main ones are that the respondent
now has a choice about whether to respond in writing to the
complaint, and a compulsory conference will be held within six
weeks of the respondent being notified of the complaint
- If a complaint is unresolved after a conference has been
held, the complainant can give written notice requiring referral
to the Anti-Discrimination Tribunal, and then, unless the Commissioner
acts under section 168 of the Act, the complaint must be promptly
referred to the Tribunal, and a copy of the complaint given
to the respondent.
Overview of procedural changes
Procedural changes to the Act will mean that in most cases,
a complaint lodged will be set down for a conciliation conference
about two months after it has been accepted. We think it is
important to get complainants and respondents together quickly
– that way people can say what they want, and try to sort
it out.
In the past, complainants and respondents felt that there was
too much letter writing, and they wanted to “get on with
it”. These new amendments will help this. Of course, it
won’t be possible in every case to get a matter sorted
quickly. For example, where a complaint is not lodged within
the required 12 months, it has to be decided whether it is fair
to everyone to accept the complaint.
Another important change is where there is a vilification complaint.
Now vilification has been extended not only to racial and religious
vilification, but also to sexuality and gender identity. In
the past, some individuals have been reluctant to complain,
as they have been fearful about identifying situations where
vilification has occurred. Now a community organisation –
with its greater resources – can bring the complaint.
We are confident that people who are vilified will be more likely
to go to their own community organisation to assist and run
their complaint on their behalf.
The changes in more detail
Family responsibilities
The ground of family responsibilities applies when a person needs
to care for or support members of their immediate family. This
ground goes beyond what’s covered by the existing attributes
of parental status and pregnancy. For example, the change makes
it unlawful for an employer to treat someone less favourably because
they need to look after their aged parents.
Immediate family means -
- spouse, ex-spouse or defacto partner including a same sex
defacto partner;
- child, spouse’s child, stepchild, adopted child, past
or present foster child, spouse’s past or present foster
child; and
- parent, spouse’s parent, grandparent, spouse’s
grandparent, grandchild, spouse’s grandchild, sibling
and spouse’s sibling.
Examples of discrimination on this ground might include:
- a man not getting a job because the employer says he would
be distracted at work because he has too big a family to look
after
- a part-time worker’s hours being unreasonably changed,
meaning she can’t collect her children from child care.
Gender identity
Gender identity is now included in the grounds covered by the
Act. Gender identity is defined as a person who identifies as
a member of the opposite sex by living or wanting to live as someone
of that sex, or a person of indeterminate sex , who seeks to live
as a member of a particular sex. (see also changes to vilification
provisions)
Examples of discrimination on this ground might include:
- a transgender person not getting a job because the employer
says ‘you wouldn’t fit in with the rest of the staff’
- a transgender person being refused service in a shop after
the assistant refers to her as ‘it’
- someone being told in a pub to ‘use the other toilet’,
where this doesn’t fit with their gender self-identity.
The amendments to the Anti-Discrimination Act also change another
Act which will allow transgenders over 18 who have undergone re-assignment
surgery to have their gender altered on their birth certificate.
Sexuality
The ground of sexuality covers those who are heterosexual, lesbian,
gay or bi-sexual. While in the past, people had to rely on the
ground of lawful sexual activity to lodge a complaint, the new
ground more accurately reflects sexual preference rather than
sexual activity. This change provides much clearer protection
for the lesbian and gay community. (see also changes to vilification
provisions)
People who are in a same sex defacto relationship are also protected
from discrimination on the basis of their relationship status.
If a person is in a same sex defacto relationship, and their
partner or other member of their immediate family is in need of
care and support, then it is unlawful to discriminate against
the person based upon their family responsibilities.
Examples of discrimination on this ground might include:
- a lesbian couple being refused a motel room for the night
because the manager said he didn’t “want your sort
here”
- a gay man not being promoted at work because others wouldn’t
feel “comfortable” working with him as a boss.
The law allows some exemptions or exceptions to the rule. This
means that some actions are not breaches of the Act. One example
might be a person seeking work in a school established by a religious
body. In working at the school, the person must not openly act
in a way that is contrary to the employer’s religious beliefs.
Vilification
Vilification or hatred because of gender identity and sexuality
are now also unlawful. The law works the same way as it does for
vilification on the basis of race or religion, which are already
covered by the Act.
Examples of vilification might include:
- co-workers asking a transgender person regularly what sex
she is today, publicly abusing her, and trying to get other
staff members to do the same
- a website being set up, encouraging the ‘elimination’
of gays .
A further, important change is that organisations (as well as
individuals) will now be able to make a complaint of vilification
on behalf of those people they represent. Prior to this, complaints
had to be made by individuals or their agents. This was unsatisfactory
for two main reasons: one was that vilification is often directed
to a whole group rather than an individual, and the other was
that individuals can fear being singled out, and so are often
reluctant to lodge a complaint.
Breastfeeding
Before the changes to the Act, discrimination on the ground of
breastfeeding was unlawful only in the area of goods and services.
The change makes discrimination unlawful across the full range
of areas under the Act, in particular in the area of work. This
change recognises the need for mothers who are breastfeeding to
do so in most situations.
Examples of discrimination on this ground (including both direct
and indirect discrimination) might include:
- an employer unreasonably refusing to provide a clean quiet
place for a breastfeeding woman to express milk while at work
- a woman being refused a promotion because she is still breastfeeding
and her boss says the extra stress wouldn’t be good for
her or the baby
- a coffee shop assistant asking a woman to leave when she
starts to breastfeed her baby.
Lawful sexual activity
While the term ‘lawful sexual activity’ is already
an
attribute under the Act, its meaning has changed. The new
meaning of lawful sexual activity refers to lawfully employed
sex workers.
Examples of discrimination on this ground might include:
- a real estate agent refusing private accommodation when she/he
becomes aware of a person’s occupation as a sex worker
- a bank refusing to give credit facilities when a person’s
occupation becomes known. This is despite a stable financial
record, and a long history of dealing with this bank.
Religion
The wording of this ground has changed from religion to religious
belief or activity, to provide protection for those who hold or
don’t hold a religious belief, and for those who engage
or don’t engage in religious activity. It also ensures that
people who have no religious belief are covered by the law.
‘Spouse’ definition
Under the new definition of de facto partner, there is no reference
to the ‘opposite sex’. This is an important change
recognising that the gender of the people in the relationship
isn’t relevant. The change amends or affects most Acts that
involve spouses, and ensures that all de facto partners have similar
legal rights and obligations as married spouses.
Exemptions
The ‘genuine occupational requirement’ exemption
has been extended to allow religious bodies to ‘reasonably
discriminate’ (except on the basis of age, race or impairment),
in the area of employment, against a person who openly acts in
a way contrary to the employer’s religious beliefs.
The exemption regarding work with children has also been extended
to allow employers hiring people to work with children, to discriminate
on the basis of gender identity (but not sexuality), lawful sexual
activity (which now means sex workers), people with a conviction
for a child sex offence, or people disqualified from working with
children under any Act in Australia.
More information
The Commission produces a range of publications which provide
information on all aspects of the legislation.
In an effort to ensure that people are informed of these important
changes, we’ve produced a series of A4 leaflets, which explain
the changes in detail. The titles of these leaflets are:
- gender identity
- making a complaint
- sexuality
- responding to a complaint
- breastfeeding
- all about conciliation conferences
- family responsibilities
- an overview of the legislative changes
- vilification
- information for advocates
- lawful sexual activity
- religion
Please contact your nearest Commission office or check the website
for copies.
International Human Rights Day
This commemorative day took on a new significance in 2002,
when more than 50 people crowded into the Commission training
room, to celebrate the event. The focus of the day was on the
legislative changes to the Anti-Discrimination Act.
The Commission hosted a lunch and invited a range of speakers
to share their experiences and their personal stories as members
of groups affected by changes to anti-discrimination legislation
in Queensland.
Susan Booth, Acting Commissioner, welcomed the reforms, particularly
coverage for transgender people, and the increased provisions
for lodging complaints of vilification. She said the extended
coverage of the Act now brought legislation into line with both
community standards and other state legislation, and committed
to an increased role for community members to ensure the Commission
was kept informed about issues of importance.
Gina Mather from the Australian Transgender Support Association
spoke convincingly of the long-term need for coverage of transgenders,
and of her own battles for change.
Iain Clacher, publisher of Queensland Pride, then entertained
the crowd with his highly personal coming out story, and the
difference legislative coverage would mean to lesbians and gays
in Queensland.
The last speaker, Rashida Joseph, of the Romero Community Centre,
in a serene and measured talk, outlined the role of Islam and
of women, and the need to recognise and appreciate differences.
Special guests included a group of secondary students from
the Milpera School, which provides special services for newly-arrived
migrant children.
Special Guests at International
Human Rights Day included (left to right) Mustafa, Mersija,
Adele (Principal), Semhar and John.
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