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25 Insertion of new ch 5C
After chapter 5B—
insert—
Chapter 5C Positive duty
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—
(a) to prevent, as far as possible, contraventions
of the Act; and
(b) to help promote, as far as possible, the
achievement of substantive equality.
(2) The purpose is to be achieved by—
(a) 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
(b) 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
Clause 1
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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.
(4) To remove any doubt, it is declared that the duty
under subsection (3) does not limit, and applies to
the person in addition to, the prohibitions
applying to the person under chapter 2, 3, 4 or 5.
Note—
See also the Human Rights Act 2019, section 58 for
other obligations applying to a public entity under that
Act.
131J Deciding whether measure is reasonable and
proportionate
In deciding whether a measure taken by a person
to comply with the duty under section 131I(3) is
reasonable and proportionate, the following
matters must be considered—
(a) the size, nature and circumstances of the
person’s business or undertaking or
operations;
(b) the resources of the person, whether
financial or otherwise;
(c) the practicability and the cost of the
measure;
(d) the person’s business and operational
priorities;
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(e) any other relevant matter.
26 Amendment of s 132 (Act’s vicarious liability purpose
and how it is to be achieved)
Section 132(1), ‘equality of opportunity’—
omit, insert—
equal opportunity and equitable outcomes
27 Amendment of ch 7, pt 1, hdg (What the Queensland
Human Rights Commission may do)
Chapter 7, part 1, heading, from ‘Queensland’—
omit, insert—
commission may do—complaints
28 Amendment of s 134 (Who may complain)
(1) Section 134—
insert—
(1A) However, for a complaint that wholly or partly
relates to a work-related matter, a person’s agent
for subsection (1)(b) can not be an employee or
officer of, or acting for, an entity (other than a
registered organisation) that purports to represent
the industrial interests of employees or
employers.
(2) Section 134(5)—
insert—
registered organisation means an organisation of
employees or employers registered under the
Industrial Relations Act 2016 or the Fair Work
(Registered Organisations) Act 2009 (Cwlth).
(3) Section 134(5), definition relevant alleged contravention,
‘section 124A’—
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omit, insert—
section 124C or 124D
(4) Section 134(5), definition relevant entity, ‘sexuality’—
omit, insert—
sexual orientation
(5) Section 134(1A) to (5)—
renumber as section 134(2) to (6).
29 Amendment of s 138 (Time limit on making complaints)
(1) Section 138(1), from ‘within’—
omit, insert—
within 2 years after the alleged contravention of
the Act (the complaint period).
(2) Section 138(2), from ‘more than’ to ‘of the Act’—
omit, insert—
after the complaint period has ended
30 Amendment of s 141A (Deferral of acceptance of
complaint for out-of-time contravention)
Section 141A(1)(a)—
omit, insert—
(a) a complaint relating to 2 or more alleged
contraventions of the Act is made—
(i) within the complaint period for at least
1 of the alleged contraventions (a
within-time contravention); and
(ii) after the complaint period for at least 1
of the alleged contraventions (an
out-of-time contravention); and
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31 Replacement of ch 7, pt 1, div 2, hdg (The investigation
process)
Chapter 7, part 1, division 2, heading—
omit, insert—
Division 2 Investigation of complaint
32 Amendment of s 154A (Investigation of complaint)
Section 154A—
insert—
(2) Part 1A, division 1, subdivision 2 applies in
relation to the investigation.
33 Omission of ss 155 and 156
Sections 155 and 156—
omit.
34 Relocation and renumbering s 157 (Commissioner may
obtain actuarial, statistical or other data)
Section 157—
relocate to chapter 7, part 1A, division 3 as inserted by this
Act and renumber as section 173S.
35 Replacement of ch 7, pt 1, div 3, hdg (The conciliation
process)
Chapter 7, part 1, division 3, heading—
omit, insert—
Division 3 Conciliation of complaint
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36 Relocation and renumbering of s 173 (Authentication of
documents)
Section 173—
relocate and renumber as section 266A.
37 Relocation and renumbering of s 174 (Judicial notice of
commissioner’s signature)
Section 174—
relocate and renumber as section 266B.
38 Insertion of new ch 7, pt 1A
After section 172—
insert—
Part 1A What the commission
may do—investigations
and compliance
Division 1 Investigation by
commissioner
Subdivision 1 Starting investigation
173 Application of subdivision
This subdivision does not apply in relation to a
matter that is the subject of a complaint that the
commissioner has accepted under section 141.
Note—
See section 154A in relation to investigations of
complaints.
Clause 1
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173A When commissioner must conduct
investigation
The commissioner must conduct an investigation
if—
(a) requested to do so by the Minister; or
(b) QCAT or the industrial relations
commission becomes aware of
circumstances that may constitute a
contravention of the Act and refers the
matter to the commissioner.
173B When commissioner may conduct
investigation
(1) The commissioner may conduct an
investigation—
(a) into a possible contravention of the Act
against a class or group of persons
discovered in the performance of the
commission’s functions, if the matter is of
public concern and the Minister agrees; or
(b) relating to an allegation of an offence
against this Act made to the commission; or
(c) into a possible offence against this Act
discovered in the performance of the
commission’s functions.
(2) Also, the commissioner may conduct an
investigation into a person’s compliance with the
positive duty if the commissioner suspects the
person is not complying with duty.
(3) Further, if the commissioner believes the
investigation would help achieve the purposes of
this Act, the commissioner may conduct an
investigation into any matter relating to a
contravention of the Act that is or is suspected to
be systemic.
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(4) For subsection (3), a contravention of the Act is
systemic if the contravention—
(a) affects a class or group of persons; and
(b) is continuous, repetitive or forms a pattern.
173C Commissioner must notify person about
investigation
(1) This section applies if an investigation under this
subdivision relates to a particular person.
(2) The commissioner must give the person written
notice of the investigation.
(3) The notice must invite the person to make
submissions in relation to the investigation within
a stated reasonable time.
Subdivision 2 Conduct of investigation
173D Application of subdivision
This subdivision applies in relation to an
investigation under section 154A or subdivision
1.
173E Conduct of investigation generally
(1) The commissioner may conduct an investigation
in the way the commissioner considers
appropriate.
(2) In conducting an investigation under section
173Aor section 173B(1)(a), the commissioner has
the same powers the commissioner has in dealing
with a complaint about a contravention or alleged
contravention of the Act.
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173F Power to require information or document
(1) This section applies if the commissioner believes
a person may have information relevant to an
investigation.
(2) The commissioner may, by written notice, direct
the person—
(a) to give the commissioner the information
within a stated reasonable time; or
(b) to attend before the commissioner at a stated
reasonable time and place to give the
information to the commissioner.
(3) For information in an electronic document,
compliance with the direction requires the giving
of a clear written reproduction of the information.
(4) The person must comply with the direction unless
the person has a reasonable excuse.
Maximum penalty—100 penalty units.
(5) It is a reasonable excuse for the person to fail to
comply with the direction because, for example,
complying with the direction—
(a) would require the person to disclose
information that is subject to legal
professional privilege; or
(b) for an individual—might tend to incriminate
the individual or make the individual liable
to a penalty.
(6) A person who attends before the commissioner
under subsection (2)(b) is entitled to be paid by
the commission an amount equivalent to the
amount the person would receive under the
Supreme Court of Queensland Act 1991 if the
person’s attendance before the commissioner
were attendance in a Magistrates Court as a
witness.
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(7) In this section—
information includes a document.
173G Outcome of investigation
After conducting an investigation under this
subdivision, the commissioner may—
(a) decide to take no further action; or
(b) take any other action the commissioner may
take under this Act in relation to the matter
the subject of the investigation.
Example of action for paragraph (b)—
After conducting an investigation relating to an
offence against this Act under section 173B(1)(b)
or (c), the commissioner may decide to start a
proceeding under section 226 for the offence.
Subdivision 3 Action relating to
contravention of the Act
173H Referral to tribunal
(1) This section applies if the commissioner—
(a) conducts an investigation under section
173Aor section 173B(1)(a) about a matter
involving a contravention or alleged
contravention of the Act; and
(b) believes the matter can not be resolved by
conciliation.
(2) The commissioner may refer the matter to the
tribunal as if it were a complaint.
(3) If the commissioner refers the matter to the
tribunal, the commissioner is, for the purposes of
the relevant tribunal Act, the applicant.
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Subdivision 4 Action relating to
compliance with positive
duty
173I Action commissioner may take
(1) This section applies in relation to an investigation
under section 173B(2) relating to a person’s
compliance with the positive duty.
(2) The commissioner may do 1 or more of the
following—
(a) help a person to whom the investigation
relates to prepare an undertaking for the
purposes of section 173J;
(b) accept an undertaking from a person to
whom the investigation relates under section
173J;
(c) give a compliance notice to a person to
whom the investigation relates under section
173L;
(d) prepare a report about the investigation, and
publish the report or give the report to the
Minister, under section 173O.
173J Undertakings
(1) If the commissioner considers the person has
contravened, is contravening, or is likely to
contravene the positive duty, the commissioner
may accept a written undertaking from the person
under which the person undertakes to take, to stop
taking, or not to take, stated action to comply with
the duty.
(2) If the commissioner refuses to accept a written
undertaking from the person, the commissioner
must give the person a written notice stating the
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commissioner’s decision not to accept the
undertaking and the reasons for the decision.
(3) The commissioner and the person may agree to
amend an undertaking at any time.
(4) The commissioner may publish an undertaking
under this section—
(a) on the commission’s website; and
(b) in any other way the commissioner
considers appropriate.
173K Compliance with undertaking
(1) This section applies if the commissioner has
accepted an undertaking from a person under
section 173J.
(2) If the person fails to comply with the undertaking
the commissioner may apply to the tribunal for an
order under subsection (3).
(3) If the tribunal is satisfied the person has failed to
comply with the undertaking, the tribunal may
make—
(a) an order requiring the person to comply with
the undertaking; and
(b) any other order the tribunal considers
appropriate.
Note—
See the Industrial Relations Act 2016, section 544 in
relation to enforcing orders of the industrial relations
commission and the QCAT Act, section 132 in relation
to enforcing orders of QCAT that are not monetary
decisions.
(4) If the person fails, or continues to fail, to comply
with the undertaking after an order is made under
subsection (3), the commissioner may withdraw
the commissioner’s acceptance of the
undertaking.
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(5) Before withdrawing the commissioner’s
acceptance of the undertaking under subsection
(4), the commissioner must give the person an
opportunity to show, within a period of at least 14
days, to the commissioner’s satisfaction that the
person is complying with the undertaking.
173L Compliance notices
(1) This section applies if—
(a) after conducting the investigation, the
commissioner considers the person has
contravened, is contravening, or is likely to
contravene the positive duty; and
(b) either—
(i) the person has not offered an
undertaking acceptable to the
commissioner in relation to the
contravention or likely contravention;
or
(ii) the commissioner accepted an
undertaking in relation to the
contravention or likely contravention
under section 173J but—
(A) the person has failed to comply
with the undertaking as required
by an order under section
173K(3)(a); and
(B) the commissioner has withdrawn
the commissioner’s acceptance of
the undertaking under section
173K(4).
(2) The commissioner may issue a written notice (a
compliance notice) to the person requiring the
person to take, to stop taking, or not to take, stated
action to comply with the positive duty.
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