QLD

What is in
the "Respect at Work" Bill?

The Queensland Government have recently released the Respect at Work and Other Matters Bill.

This bill is a replacement of the highly controversial draft Anti-Discrimination Bill, and is intended to implement recommendations from the Federal “Respect at Work” report without the broader changes to anti-discrimination that significantly undermined religious freedom.

However, there are still a number of elements to the Respect at Work Bill that risk significant impact on religious communities and the freedoms of speech and religion.

These concerns all arise from sections of the legislation that go beyond the terms and recommendations of the original “Respect at Work” report.

Notwithstanding the improvements of the current bill over its predecessor, if these elements are not fixed in the bill, they would represent a significant attack on faith communities.

These concerns appear to be unintended consequences of the legislative process, and some simple amendments would correct the worst concerns while preserving the intention of implementing the “Respect at Work” report.

Vilification sections threaten reasonable speech

The new bill introduces two vilification measures – s 124C and s 124D. These sections risk unintentionally including genuine religious speech and debate, and could be weaponised against faith groups.

124C Hateful, reviling, seriously contemptuous, or seriously ridiculing conduct

  1. A person must not, because of the age, gender identity, impairment, race, religion, sex, sex characteristics or sexual orientation of another person or a group of persons, engage in a public act that a reasonable person would consider hateful towards, reviling, seriously contemptuous of, or seriously ridiculing the other person or members of the group.
  2. For subsection (1), reasonable person means a reasonable person who has the same age, gender identity, impairment, race, religion, sex, sex characteristics or sexual orientation as the other person or members of the group.
  3. Subsection (1) does not make unlawful—
    1. the publication of a fair report of a public act mentioned in subsection (1); or
    2. the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or
    3. a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.

124D Inciting hatred, serious contempt or severe ridicule

  1. A person must not, in a public act, engage in conduct that is likely to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the basis of the age, gender identity, impairment, race, religion, sex, sex characteristics or sexual orientation of the person or members of the group.
  2. Subsection (1) does not make unlawful—
    1. the publication of a fair report of a public act mentioned in subsection (1); or
    2. the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or
    3. a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.

“Hateful” conduct

S 124C introduces the concept of “hateful” conduct. However, there is no definition given for “hateful” apart from conduct that a “reasonable person” of the offended category would “consider hateful towards” them.

The ordinary English meaning of “hateful” includes:

  • arouses hate
  • deserves to be hated
  • full of or expressing hate
  • unpleasant; dislikable; distasteful

There is no indication in the legislation which meanings are intended. The parallelism in 124D with “inciting hatred” suggests an interpretation but without greater clarity the law remains dangerously ambiguous.

The terms “hate” and “hateful” do not appear in the Respect@Work report. The inclusion of this broad language cannot be argued to be an implementation of those recommendations. This addition to the list of harms is ambiguous and unnecessary.

“Reasonable person”

The definition of a “reasonable person” is shifted to only include members of the affected category. This is a significant change, as what an average Australian, or even a judge, may find “reasonable” is not relevant. Only the offended category gets to decide what is “reasonable”.

In addition, actual harm does not need to have occurred. It is enough that a “reasonable” member of the category would consider the conduct hateful, reviling, seriously contemptuous, or seriously ridiculing. The scope of what is considered to be hateful varies dramatically between sections of society.

This clause poses real risks of being weaponized by one minority group against another. Would a reasonable Christian person consider a Muslim teaching that “Christians are wrong and risk going to hell” to be “hateful” or “seriously contemptuous” – or vice versa?

Exemptions fail to protect

The new legislation provides no protection for good-faith religious discussion and debate. Sections 124C and 124D include exceptions for:

… a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.

Religious purposes are not included in this exemption, although they are included in comparable legislation in other States – e.g. the NSW Anti-Discrimination Act 1977 s49ZE

In addition, there are no protections available in the exemptions currently provided in the Anti-Discrimination Act. The exemption in s 109 would only protect religious speech that was both:

  • in accordance with the doctrine of the religion concerned; and
  • necessary to avoid offending the religious sensitivities of people of the religion.

To apply this exemption requires the courts to decide what religious teachings are “necessary” to avoid religious sensitivities. This places the courts in the position of deciding theology and regulating religious teaching.

Our Requests

Amend the legislation to ensure that sections 124C and 124D do not allow courts to regulate religious teaching by explicitly protecting good-faith religious debate and disagreement.

Remove the term “hateful” from s 124C or replace with a clearer term.

Add ‘religious’ to the list of public interest activities in s 124C(3)(c) and s 124D(2)(c).

Harassment on basis of sex

Section 120 introduces the new category of “harassment on the basis of sex”. This section, while apparently designed to protect (for example) a woman from being harassed for being a woman, has been drafted in such a way that it could unintentionally encompass discussion about the controversial issues of the nature of sex and gender.

120 Meaning of harassment on the basis of sex

  1. Harassment on the basis of sex happens if a person—
    1. engages in unwelcome conduct of a demeaning nature in relation to another person; and
    2. engages in the conduct on the basis of—
      1. the other person’s sex; or
      2. a characteristic that a person of the other person’s sex generally has; or
      3. a characteristic that is often imputed to a person of the other person’s sex; or
      4. a sex the other person is presumed to be, or to have been at any time, by the person engaging in the conduct; or
      5. a sex the other person has been, even if the person is not that sex at the time of the conduct; and
    3. engages in the conduct—
      1. with the intention of offending, humiliating or intimidating the other person; or
      2. in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
  2. For subsection (1), it does not matter whether the other person’s sex is only one of the reasons for the person engaging in the conduct.

Recently added content

This section is does not exist in the previous text of the proposed Anti-Discrimination Bill 2024, raising the question of why is has been added at the last minute. The possiblity of hasty drafting might explain the interaction of the additions.

Broad definition of “basis of sex”

It is worth noting that the language of “on the basis of sex” is used frequently in the Respect at Work report. In those terms, the report is seeking to prevent discrimination against a woman for being a woman. In itself, this is a worthy ideal.

However, the definition of “basis of sex” has been broadened to permutations of sex that a person is or has been, using language that is not in the original report, nor in the relevant sections of the Sex Discrimination Act 1984 (Cth).

This broadened definition potentially encompasses discussion, debate and disagreement concerning the controversial issues surrounding biological sex, gender, transitioning etc.

Lower Bar

The section uses the criteria of “conduct of a demeaning nature”, where a similar section in s 124 uses “seriously contemptuous of, or seriously ridiculing”. The lack of the adverb “seriously” creates a very low bar. The bar is further lowered with the qualification that the conduct is “in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended…”.

This is the same bar found in the Sex Discrimination Act 1984 (Cth). However, combined with the broader definition of the “basis of sex”, this low bar risks being applied to the broader societal conversation about the nature of sex and gender – an area which is not part of report and not in the stated scope of the legislation.

Impact on debate and teachings

In the broader discussion of sex and gender, positions of belief from both sides can often be defined as demeaning by the other side, and offense is very easy to anticipate on both sides.

For example, some activists have declared activities such as “misgendering” (not using the gender a person currently identifies as), or “dead-naming” (using a name they previously used when identifying as another gender), as inherently demeaning. Equally, other activists define men transitioning into women to be demeaning to biological women.

Without the higher bar of “seriously demeaning”, a wide scope of debate or disagreement would trigger this legislation, even if unintentional or incidental.

Secondly, organisations who hold beliefs about this issue – e.g. faith-based organisations or schools – could  be considered to be “harassing on the basis of sex” by consistently teaching their beliefs about sex and gender, in the knowledge that their beliefs, while many people agree with them, can also be reasonably anticipated to offend some.

These possibilities should be ruled out with exemptions.

Exemptions fail to protect

The exemptions in s 109 would protect religious institutions, but may not protect individuals teaching and speaking about their beliefs.

It is more complicated if employment is involved, for instance a faith-based institution speaking about its beliefs and some employed or volunteer staff taking offense. It is plausible that could be considered to be in the “work or work-related area” and hence not protected.

Schools and other education facilities – including higher education – are not exempted by s 109.

In regards to higher education and theological institutions, s 109 provides protection for

  • the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or
  • the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice”

This may not provide enough protection for theological institutions that are training people for non-ordained ministry to teach what they believe.

Our Requests

Upgrade the bar of offense by

  • changing 120(1)(a) to “conduct of a seriously demeaning nature”

Amend the legislation to ensure that the meaning of “harassment on the basis of sex” so that it does not include

  • statements, discussions and the use of language – religious or otherwise – based on views about the nature of sex and gender
  • religious organisations and schools operating in an otherwise lawful way according to their beliefs about sex and gender.

Positive duty to eliminate harassment

The new Bill introduces a “positive duty” for organisations and individuals to 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.”

131H Act’s positive duty purpose and how it is to be achieved

  1. One of the purposes of this Act is to promote equal opportunity and equitable outcomes for
    everyone by providing for the taking of positive action—
    1. to prevent, as far as possible, contraventions of the Act; and
    2. to help promote, as far as possible, the achievement of substantive equality.
  2. The purpose is to be achieved by—
    1. imposing a positive duty on certain persons to eliminate, as far as possible, discrimination, sexual harassment, harassment on the basis of sex and certain other objectionable conduct; and
    2. providing for investigation into, and enforcement of, a person’s compliance with the positive duty under chapter 7, part 1A.

Note—A contravention of the positive duty is not a contravention of the Act for which a complaint may be made under chapter 7, part 1—see schedule 1, definition contravention.

 

131I Duty to eliminate discrimination, sexual harassment, harassment on the basis of sex and other objectionable conduct

  1. This section applies to a person who, under chapter 2, 3, 4 or 5, must not engage in discrimination, sexual harassment, harassment on the basis of sex or other objectionable conduct.
  2. However, this section applies to an individual only if the individual is a person conducting a business or undertaking.
  3. The person 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.

Investigation powers

The Anti-Discrimination Commissioner is empowered to investigate any organisation that they suspect is not carrying out the positive duty and to enforce that duty through a tribunal.

‘Basis of Sex’

As with harassment, the language in this amendment is different from the language in the proposed Anti-Discrimination Bill 2024, in that it introduces the concept of “harassment on the basis of sex”. This raises the same concerns as described above, but with the additional positive requirement to change how an organisation functions in order to prevent this “harassment”.

Impact on faith-based organisations

As with the harassment on the basis of sex, it is unclear whether a faith-based organisation teaching their beliefs about sexuality, sex and gender, and other similar issues would be considered “harassment”.

Accordingly, a positive duty to prevent that “harassment” would effectively be forcing a religious institution to stop teaching what they believe, and might force them to promote positions contrary to their doctrines.

Exemptions fail to protect

It is unclear if the exemption in s 109 would apply to the positive duty for churches or other faith organisations, or if the positive duty would be considered to be a “work or work-related area”.

Schools and other education facilities – including higher education – are not exempted by s 109.

In regards to higher education and theological institutions, s 109 provides protection for

  • the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or
  • the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice”

This may not provide enough protection for theological institutions that are training people for non-ordained ministry.

Our Request

Amend the legislation to ensure that the positive duty does not prevent religious bodies and schools from teaching their beliefs, or require them to promote values within their organisations that are inconsistent with their doctrines

NOW is the time act!

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