Strategic Policy and Legislation

Department of Justice and Attorney-General

GPO Box 149

Brisbane QLD 4001

Submitted via email: adactreview@justice.qld.gov.au

Friday 22 March 2024

To whom it may concern

Submission re the Anti-Discrimination Bill 2024 (Exposure Draft)

Thank you for the opportunity to provide this short submission in response to the Queensland Anti-Discrimination Bill 2024 (Exposure Draft) as released in February 2024.

I do so as a long-term advocate for the human rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians, with a particular focus on anti-discrimination and vilification law reform.

I note that this consultation has coincided with a number of other developments in LGBTIQ human rights, both federally (renewed debate about a Religious Discrimination Bill, and Sex Discrimination Act 1984 (Cth) amendments to protect LGBTQ students and teachers in religious schools) and in my home state of NSW (including the Conversion Practices Ban Act 2024 (NSW), which was passed this morning), that have restricted my ability to engage more fully with this important consultation process.

However, I did wish to make the following four brief points in relation to key aspects of the Exposure Draft as released.

First, I welcome the fact that the Bill would protect all parts of the LGBTIQ community against discrimination, through the inclusion of the protected attributes of sexual orientation, gender identity and sex characteristics (as proposed in clause 10).

This would retain the status quo, as created by the Births, Deaths and Marriages Registration Act 2023 (Qld), which ensured that non-binary people were finally included within the scope of gender identity, and that intersex people were finally protected by the addition of sex characteristics as a separate attribute (while noting that these amendments have yet to commence).

I also welcome the expansive and inclusive definitions of these attributes, as proposed in Schedule 1 of the Exposure Draft, as well as the explicit inclusion of sex work activity as a protected attribute (replacing lawful sexual activity).

Second, I welcome the fact that the Bill would protect all parts of the LGBTIQ community against vilification, through the inclusion of sexual orientation, gender identity and sex characteristics in clause 84 which regulates ‘hateful, reviling, seriously contemptuous, or seriously ridiculing conduct.’

Once again, this is consistent with the existing Anti-Discrimination Act 1991 (Qld) as amended by the Births, Deaths and Marriages Registration Act (although once again not yet commenced).

I also particularly welcome the inclusion of disability as a relevant attribute for the purposes of this clause, which would be a positive development arising out of the Exposure Draft.

Third, I welcome the narrower approach the Exposure Draft Bill takes in relation to exceptions for employment by religious bodies, and especially for employment by religious educational institutions.

Proposed clause 29, which only allows discrimination on the basis of religious belief or religious activity if: religious participation is a genuine occupational requirement of the work; the worker cannot meet this requirement because of their religious belief or religious activity; and ‘the discrimination is reasonable and proportionate in the circumstances’ – is a significant improvement on the equivalent provision in the existing Anti-Discrimination Act.

Section 25, which essentially creates a ‘Don’t Ask, Don’t Tell’ environment for LGBTQ teachers and other staff in Queensland’s religious schools, is one of the worst features of the current law, not only from an LGBTIQ human rights perspective but more broadly.

Teachers should be employed on the basis of their ability to teach, not their sexual orientation or gender identity.

Removing ‘Don’t Ask, Don’t Tell’, thereby lifting the requirement for many LGBTQ teachers and other workers in religious schools to remain in the closet and maintain hyper-vigilance to prevent unintended disclosure of their orientation or identity, would also have the consequence of allowing them to focus on doing the best job they can – to teach students.

Which means that this reform will ultimately benefit everyone.

Fourth, I welcome the retention of a narrow approach to exceptions for religious educational institutions, as proposed in clause 36.

The Exposure Draft Bill is similar to section 41(a) the existing Act, in allowing discrimination by religious schools against students, but only on the basis of their religion, and only at the point of enrolment.

I also specifically welcome proposed sub-clause 36(2):

‘To remove any doubt, it is declared that a person can not rely on subsection (1) to discriminate against another person on the basis of a protected attribute other than religious belief or religious activity.’

As well as the example provided: ‘A person can not rely on subsection (1) to discriminate against another person on the basis of the other person’s gender identity.’

These provisions are essential to ensure all LGBTQ students are protected, both at enrolment and beyond.

They also have the added benefit of supporting the religious freedom of children and young people, to learn and to grow as they engage in their education, including to question, challenge and develop their own faith, which may be different to the faith of their school.

Finally, I am aware of the submission made by the Australian Discrimination Law Experts Group (ADLEG) and endorse their position on the Exposure Draft Bill, including their specific comments and suggestions regarding a range of further improvements to this legislation.

Thank you in advance for your consideration of this short submission. Please do not hesitate to contact me, at the details provided, should you require any additional information.

Sincerely

Alastair Lawrie