The implementation of Phase 2 was expected to commence in March 2019 and to expand the ambit for the use of PBAs to private construction contracts over $1 million inclusive of GST.
Table of Contents
The anti-discrimination laws of Australia and Queensland provide a framework for victims of discrimination to make complaints and commence proceedings for a range of remedies.
In terms of Commonwealth legislation, discrimination is generally covered under the:
- Racial Discrimination Act 1975;
- Sex Discrimination Act 1984;
- Disability Discrimination Act 1992; and
- Age Discrimination Act 2004.
These acts provide specific protections and remedies for discrimination in relation to the attributes specified in their titles.
This article will focus on discrimination under the Queensland legislation, the Anti-Discrimination Act 1991 (Qld) (the Anti-Discrimination Act). The Anti-Discrimination Act prohibits a range of conduct in relation to protected attributes including two (2) forms of discrimination:
- Direct discrimination; and
- Indirect discrimination.1
Both types of discrimination carry with them a different burden of proof and different elements that must be established – however, both must relate to at least one (1) protected attribute.
If you are considering bringing a claim for discrimination under the Anti-Discrimination Act, you may only make a claim in relation to conduct that has occurred within one (1) year of the date of the application.2
However, exceptions may apply, and it is at the discretion of a commission or tribunal to accept a complaint after the time limit has expired. This will depend on whether the complainant can show good cause, or whether the tribunal considers it reasonable on the balance of fairness.3
For a person to engage in conduct of discrimination, they must do so in relation to a protected attribute. The Anti-Discrimination Act prohibits discrimination on the basis of:
- Relationship status;
- Parental status;
- Religious belief or activity;
- Political belief or activity;
- Trade union activity;
- Lawful sexual activity;
- Gender identity;
- Family responsibilities; and
- Association with, or relation to, a person identified on the basis of any of the above attributes.4
The Anti-Discrimination Act also provides protection against other forms of discriminatory conduct, including but not limited to:
- Sexual harassment;
- Racial and religious vilification;
- Unlawful requests for information; and
- Discriminatory advertising.
If a person treats, or proposes to treat, another person less favourably because of the other person’s protected attribute, then that conduct will constitute direct discrimination.5 In order to show that you were directly discriminated against, the burden is on you to prove, on the balance of probabilities, that the person who discriminated against you did, in fact, engage in the conduct, and the conduct engaged in was less favourable to you because of a protected attribute.
It is not necessary to prove that discriminator knew the conduct would result in less favourable treatment, or that they had a motive for discriminating against you.6 For example, whilst you would need to identify the protected attribute in question that caused the discriminator to discriminate against you, you do not need to show that the person knew their comment or action would be discriminatory.
Additionally, you would need to show that, where there are two or more reasons for the unfavourable treatment, the protected attribute was a substantial reason for the treatment.7 In other words, if a person treated you unfavourably, but they also treated most other people unfavourably even without the attribute in question, it could be much more difficult to prove direct discrimination.
In considering whether direct discrimination occurred, it is a good idea to consider whether the same treatment would likely have occurred to another person in the same circumstances but where the protected attribute would not be relevant.8 This hypothetical person is generally referred to as a ‘comparator’. If the treatment would still have occurred to the comparator, then this would likely not constitute direct discrimination. On the other hand, if you can show that another person without the attribute in the same or materially similar circumstances would not have been treated unfavourably, then this could be considered direct discrimination.
Case Law Example
The Queensland Courts have held that a failure to provide alternative meal options (i.e. halal meats) to a prisoner of Muslim faith constituted direct discrimination.9 The complainant had the same access to meals as the other prisoners; but due to his dietary requirements relating to his religious belief or activity, the complainant was unable to eat the meats provided in the regular meals. Instead, the prison provided canned meats on an occasional and inconsistent basis.
On application of section 10 of the Anti-Discrimination Act, one could consider that the prison’s treatment of the complainant was the same as its treatment of other prisoners as it provided the same meals to most of its prisoners. Additionally, the respondent at trial attempted to argue that it met the prisoner’s dietary requirements as it did with its vegetarian prisoners. The President of the Anti-Discrimination Tribunal, with the Queensland Supreme Court affirming the decision on appeal, found that the complainant was not provided with an acceptable substitute diet, and was moreover provided with meats that were unreliable both in terms of content and in the regularity of the provision of these meats.10 This conduct constituted direct discrimination and resulted in the complainant being awarded compensation.
Burden of Proof
In a claim for direct discrimination, the complainant is required to prove the respondent’s contravention of the Anti-Discrimination Act on the balance of probabilities.11
If a person imposes conditions on a group of people that a person in that group is unable to comply with because of a protected attribute, the imposition of those conditions can constitute indirect discrimination where the term is considered unreasonable.12 In essence, expecting something of a group of people that someone cannot comply with because of their protected attribute can be considered indirect discrimination.
The elements of indirect discrimination are:
- A person imposes or proposes to impose a term;
- That is not reasonable;
- With which a person with an attribute does not or cannot comply; and
- With which a higher proportion of people without the attribute do or can comply.
Determining whether a term is not reasonable depends on the circumstances of each case. This can include a variety of factors, such as:
- The consequences of the person’s failure to comply with the term;
- The inconvenience or costs of alternative terms; and
- The financial circumstances of the person imposing the term.
Burden of Proof
In a claim for indirect discrimination, the respondent is required to prove on the balance of probabilities that the term(s) they imposed, or proposed to impose, were reasonable.13
This is contrary to direct discrimination, which provides that the complainant must prove the contravention.
On the Basis of an Attribute
Both direct and indirect discrimination must occur on the basis of an attribute. This provides an array of circumstances where conduct can amount to discrimination. The Anti-Discrimination Act provides that conduct can constitute discrimination where the conduct is on the basis of:
- The attribute itself;
- A characteristic that a person with the attribute would generally have;
- A characteristic that is often imputed to a person with the attribute;
- An attribute that a person is presumed to have; or
- An attribute that a person previously had.14
This means that discrimination does not necessarily have to be based on the actual attribute of a person – it can be based on a characteristic relating to an attribute, or even a previous or perceived attribute.
Circumstances of the Discrimination
A person does not engage in discrimination if they engage in the above conduct out in public. Rather, discrimination is confined to certain spaces and scenarios such as:
- In the work and work-related areas:15
- This includes all places where, and times when, work is performed, as well as in the pre-work area. Discrimination can also occur in places and times leading up to employment. For example, in a recent case, an individual successfully established that he was discriminated against in the pre-work area due to the conduct of his prospective employer who did not hire him because of his protected attribute;16
- In the education area17:
- This can include discrimination from an educational authority in relation to student admissions and enrolments. Exceptions may apply, including in relation to age, gender and/or religion;18
- In the area of goods and services;19
- In the area of superannuation;20
- In the area of insurance;21
- In the disposition of land;22
- In the area of accommodation;23
- In relation to club membership and affairs;24
- In the administration of State laws and programs.25
- In the Local government area.26
Given this, the Anti-Discrimination Act does not apply to any acts of discrimination outside of these listed areas, such us in public spaces generally.
The Anti-Discrimination Act discussed in this article specifically applies in Queensland. However, the Queensland Anti-Discrimination Act and has counterparts in other States and Territories of Australia.
Depending on the circumstances of the discrimination, the matter can be heard in either the Queensland Industrial Relations Commission (QIRC) or the Queensland Civil and Administrative Tribunal (QCAT).
The QIRC will generally deal with discrimination in work-related matters; whereas, QCAT will deal with discrimination in most other areas.
The Act provides that a Tribunal can make a range of different orders depending on the circumstances of each individual case, including:
- An order preventing a person from further contravening the Anti-Discrimination Act against the complainant or another party;
- An order requiring the respondent to pay an amount as compensation for loss or damage caused by the contravention;
- An order requiring the respondent to do specific things;
- An order requiring the respondent to make a private or public apology or retraction including by publishing the apology;
- An order requiring the respondent to implement programs to eliminate unlawful discrimination;
- An order for interest on the compensation; and
- An order declaring void all or part of an agreement made in relation to the contravention of the Anti-Discrimination Act.
Additionally, where a representative complaint is made, the Tribunal has the discretion to award compensation for loss or damage to a person even if that person did not make an individual complaint.27
You may be able to recover an additional sum of money towards your legal costs if you win a discrimination matter. The Anti-Discrimination Act does not contain a costs provision; however, the Industrial Relations Act contains a costs provision for QIRC matters,28 and the Queensland Civil and Administrative Tribunal Act contains a costs provision for QCAT matters.29
The standard position for disputes brought for discrimination with the QIRC and QCAT is that each party will usually bear its own costs for the proceeding.30 However, in the interests of justice, the tribunal may order that a party pay part or all costs of another party.31 In making this decision, the tribunal can consider a range of factors, including but not limited to:
- Whether a party has acted in a way that disadvantaged another party;
- The nature and complexity of the proceeding;
- The relative strengths of each party’s claim; and
- Each party’s financial circumstances.32
Unlike in standard State and Federal Court proceedings, a tribunal hearing a complaint for discrimination is not bound by the rules of evidence.33
Instead, the tribunal must have regard to the reasons for the enactment of the Anti-Discrimination Act as stated in the preamble of the Act. Part of the preamble states:
- The Parliament considers that:
- everyone should be equal before and under the law and have the right to equal protection and equal benefit of the law without discrimination; and
- the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society; and
- the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.
- It is, therefore, the intention of the Parliament to make provisions, by the special measures enacted by the Act, for the promotion of equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct.34
Given this, the tribunal has broad power to make findings of fact, adopt decisions of other courts or tribunals that may be relevant, and allow people to give evidence.35
Suing or Being Sued for Discrimination
If you are considering making a claim for discrimination, we can prepare and submit your legal documents and represent you in conferences, applications and hearings.
For a free and confidential initial discussion about your potential claim, call our office. We have experienced anti-discrimination solicitors ready to assist.
If you need to defend an anti-discrimination case, we can assist you in drafting your response and other relevant legal documents and represent you in conciliation conferences, applications and hearings. We will attempt to have the claim dismissed or otherwise engage in negotiations with the other party to reach a reasonable settlement.
 Anti-Discrimination Act s 9.
 Anti-Discrimination Act ss 138(1) & 175(1).
 Anti-Discrimination Act ss 138(2) & 175(2).
 Anti-Discrimination Act s 7.
 Anti-Discrimination Act s 10.
 Anti-Discrimination Act s 10(2)-(3).
 Anti-Discrimination Act s 10(4).
 See Anti-Discrimination Act s 10(1).
 State of Queensland -v- Mahommed  QSC 18.
 State of Queensland -v- Mahommed  QSC 18, -.
 Anti-Discrimination Act s 204.
 Anti-Discrimination Act s 11.
 Anti-Discrimination Act s 205.
 Anti-Discrimination Act s 8.
 Anti-Discrimination Act div 2.
 Davis -v- Metro North Hospital and Health Service & Ors  QCAT 18.
 Anti-Discrimination Act div 3.
 Anti-Discrimination Act s 39.
 Anti-Discrimination Act div 4.
 Anti-Discrimination Act div 5.
 Anti-Discrimination Act div 6.
 Anti-Discrimination Act div 7.
 Anti-Discrimination Act div 8.
 Anti-Discrimination Act div 9.
 Anti-Discrimination Act div 10.
 Anti-Discrimination Act div 11.
 Anti-Discrimination Act s 209(2).
 Industrial Relations Act 2016 (Qld) sch 2.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 100 – 109.
 Industrial Relations Act 2016 (Qld) sch 2, s 2 & Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100.
 Industrial Relations Act 2016 (Qld) sch 2, s 4(1) & Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(1).
 Industrial Relations Act 2016 (Qld) sch 2, s 4(2) & Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(3).
 Anti-Discrimination Act s 208(1).
 Anti-Discrimination Act Preamble.
 Anti-Discrimination Act s 208(1).
The content of this publication is intended as general commentary only and may not be suitable or applicable to your personal circumstances. It is not intended to replace independent legal advice. You can contact us at our Brisbane Office for a free consultation on a range of litigation matters on (07) 3088 6364.
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