Women Speak Australia has made a submission to the Queensland Government’s Strategic Review of the Human Rights and Anti-Discrimination Framework, focusing on Part C: the review of the Respect at Work and Other Matters Amendment Act 2024.
Our submission examines proposed changes to Queensland’s anti-discrimination legislation, including the meaning of equality, new prohibitions on sex-based harassment and hostile work environments, and the expansion of protected attributes.
These proposals raise important questions about the purpose and limits of anti-discrimination law, the legal recognition of biological sex, and the ability of employers and organisations to make legitimate decisions without unnecessary uncertainty or liability.
Effective anti-discrimination legislation must protect people from genuine unlawful discrimination. It must also be clear, proportionate and workable. Expanding legal protections is not necessarily an improvement if new provisions are unclear, duplicate existing protections or make legitimate conduct difficult to distinguish from unlawful discrimination.
Why is Queensland reviewing the legislation?
The Queensland Government is undertaking a strategic review of its human rights and anti-discrimination framework. Part C considers the Respect at Work and Other Matters Amendment Act 2024, including provisions that have not yet commenced.
The review provides an opportunity to reconsider whether these amendments are appropriate, adequately assessed and likely to improve the operation of the Anti-Discrimination Act 1991 (Qld).
WSA’s concern is not with protecting people from discrimination, but with ensuring that new legal obligations are properly defined, justified and capable of being applied fairly.
Why does this matter for women?
For Women Speak Australia, the starting point is straightforward:
Biological sex matters.
Sex has legal, social and practical significance. It can be relevant to privacy, bodily integrity, safety, pregnancy, motherhood, sport, employment and the provision of services.
Anti-discrimination legislation must recognise that different treatment on the basis of sex can be legitimate and necessary. If the law fails to recognise the relevance of biological sex, it risks undermining protections women depend upon.
The legislation must also distinguish genuine harassment from disagreement, criticism and discussion of matters of public importance. Women must be able to discuss biological sex, women’s rights and proposed laws and policies without legitimate discussion being unnecessarily restricted.
Equality of opportunity or equitable outcomes?
WSA supports retaining equality of opportunity and opposes replacing it with equitable outcomes.
Equality of opportunity means people should have a fair opportunity, free from unlawful discrimination. It does not require identical outcomes or mean that every difference in outcome is evidence of discrimination.
The expression equitable outcomes is less precise and risks introducing a subjective standard that may be difficult to interpret and apply consistently.
There are circumstances in which different treatment based on sex is justified, including privacy, safety, bodily integrity, pregnancy, motherhood, sport and single-sex services. The law must preserve the distinction between unlawful discrimination and the legitimate recognition of relevant differences.
Sex-based harassment: why definitions matter
WSA opposes the proposed prohibition on sex-based harassment in its current form.
The proposal extends beyond sexual harassment to conduct said to demean a person because of their sex or characteristics associated with sex. Its scope risks blurring the distinction between harassment and disagreement, criticism or legitimate discussion about sex and gender-related matters.
The meaning of sex is fundamental. WSA considers that the legislation must recognise biological sex rather than conflate it with gender identity or administrative classifications.
Our submission sets out biological definitions of female and male based on reproductive biology and the sex-development pathway. Biological sex is not determined by gender identity, social role, physical appearance or legal sex marker.
Without clarity about what the law means by sex, the scope and application of sex-based protections become uncertain.
Hostile work environments and freedom to discuss difficult issues
WSA also opposes the proposed prohibition on hostile work environments in its current form.
The proposed test raises concerns because it may apply where a reasonable person would anticipate the possibility of an offensive, intimidating or humiliating environment, even where the conduct is not directed at a particular person. This creates uncertainty about what conduct is covered and who may be held responsible.
Workplaces should be safe and free from unlawful harassment. However, employees and organisations must also be able to discuss contentious issues such as biological sex, gender identity, women’s rights and workplace policies. Ordinary disagreement or criticism should not automatically be treated as unlawful conduct.
An overly broad prohibition risks discouraging legitimate discussion and creating uncertainty for employers and employees.
Expanding protected attributes: where should the law draw the line?
A substantial part of the proposed amendments involves adding new protected attributes, including irrelevant criminal records, expunged convictions, irrelevant medical records, homelessness, domestic and family violence, potential pregnancy, expanded definitions of sexual orientation, family and carer responsibilities, and physical appearance.
WSA is concerned that this expansion goes beyond what is necessary to protect people from unlawful discrimination. Some proposals are broadly defined, others overlap with existing legal protections, and several could make it harder for employers to distinguish unlawful discrimination from legitimate decisions about suitability, workplace safety and the organisation of work.
We recognise that people can experience genuine disadvantage because of their personal circumstances. However, that alone does not establish that a new protected attribute is necessary or that anti-discrimination legislation is the appropriate response. Each proposed addition should be supported by evidence of a genuine gap in the law and assessed for its clarity, necessity and practical consequences.
Anti-discrimination legislation should not become an ever-expanding list of personal circumstances and social disadvantages. New protected attributes should be introduced only where there is clear justification and the resulting obligations are proportionate, workable and legally certain.
Existing protections should not be made more uncertain
The proposed changes also include a separate protected attribute for a combination of attributes.
WSA considers this unnecessary because section 8(2) of the Queensland Anti-Discrimination Act already addresses discrimination arising from one attribute, two attributes or their combined effect.
A further provision risks duplication and confusion rather than improving protection. New provisions should address genuine gaps, not create overlapping legal tests.
A workable legal framework matters
Anti-discrimination law has important consequences for employers, employees, service providers and organisations. People need to understand what the law prohibits and what obligations it imposes.
Employers must retain the ability to make legitimate decisions about workplace safety, suitability, inherent job requirements and the organisation of work. These decisions must comply with anti-discrimination law, but the law should not impose uncertain obligations that make legitimate decision-making unnecessarily difficult.
The objective should be effective protection through clear definitions and proportionate obligations, not the continual expansion of legal liability.
WSA has made its submission
Women Speak Australia supports strong and effective protection against genuine unlawful discrimination. However, the proposed amendments raise significant concerns about legal certainty, the scope of prohibited conduct and the expansion of protected attributes.
Our submission argues that the amendments should not proceed in their current form.
The law should recognise biological sex as a material characteristic, preserve equality of opportunity, and ensure that new obligations are clearly defined and justified.
A sound anti-discrimination framework must protect people without creating unnecessary uncertainty, undermining legitimate decision-making or making it more difficult to recognise the circumstances in which sex matters.