To be published in the April/May 2022 Edition of Clubs Queensland’s Club Insight magazine.
The idea of lockdowns and mandates was something that a few years ago most of us would never have dreamt would become a necessity and yet the dynamic and frequently changing nature of these restrictions has become a part of our daily lives. Thankfully, it seems like we may be nearing the end of the more onerous restrictions, however, their imposition during the pandemic has certainly seen human rights considerations become a hot topic for discussion.
Community sentiment in relation to the importance of preserving human rights appears to be at an all-time high and this has been reflected in the number of complaints that have been made to the QLD Human Rights Commission (QHRC) recently. Therefore, clubs must be increasingly vigilant in their dealings with all stakeholders to ensure they do not violate the Anti-Discrimination Act 1991 (Qld) (the Act). We are aware of a number of discrimination complaints that have been against clubs and other licensed venues due to patrons being refused entry for failure to wear a mask or vaccination status.
The Act prohibits conduct that discriminates against any of the following attributes: sex, relationship status, pregnancy, parental status, breastfeeding, age, race, impairment, religious beliefs/activities, political beliefs/activity, trade union activity, lawful sexual activity, gender identity, sexuality and family responsibilities. Another key feature of the Act is that it separates discriminatory conduct into two categories:
- Direct Discrimination: This is when a person with one of the attributes listed above is treated less favourably than a person that does not have the attribute in circumstances that are the same in all material respects.
- Indirect Discrimination: This is when an unreasonable term is imposed where a person with one of the attributes listed above is not able to comply with but a higher proportion of people without the attribute can comply with.
As you can imagine, it is the indirect discrimination category that businesses could potentially find themselves contravening in some circumstances. It is also very important to understand that the Act is underpinned by the concept of reasonableness and as a result, there are a number of exceptions where conduct that would otherwise be considered discriminatory is deemed exempt. Some of the more relevant exemptions are when the potentially discriminatory conduct is done to comply with an existing law or is reasonably necessary to protect public health or the health and safety of people at a place of work.
Even if you are vigilant and ensure that your practices and procedures do not contravene the Act you may still find yourself the subject of an investigation by the QHRC due to a complaint being lodged by an individual who perhaps is less informed regarding the Act and may mistakenly believe they have been discriminated against.
Generally, the QHRC will inform you they are investigating the complaint and request further details from you so they can consider whether the complaint should be accepted. There is quite limited scope to refuse to provide the requested documents to QHRC, with the only ground for objection being legal professional privilege. Often the information requested by the QHRC may be personal or sensitive information so you may need to consider whether your privacy policy is broad enough to permit you to discuss such information (though a potential breach of a privacy policy will not be adequate grounds to refuse to provide the requested documents).
The QHRC will then consider the material and notify you of whether they have decided to accept the complaint. It is important to keep in mind that if they do decide to accept the complaint, it does not mean the complaint is substantiated or proved, it just means that at least one allegation contained in the complaint is about conduct that may potentially be a breach of the Act.
If a complaint is accepted, the QHRC will schedule a conciliation conference, which allows the parties to discuss the complaint and potential resolutions with the assistance of an impartial conciliator from the QHRC. The conciliator’s role is not to make a binding decision and any resolution must be reached by mutual agreement between the parties. If the complaint cannot be resolved via conciliation, then the complainant may choose to have the matter referred to a tribunal who will hear the matter and make a legally binding decision.
If your club finds itself the subject of an anti-discrimination investigation and would like some specific advice, or you have some concerns that your privacy policy may not be sufficiently robust to contemplate the disclosure of information to the QHRC, please don’t hesitate to contact me on (07) 3224 0353 to discuss further.
