Sex workers in Queensland experience extremely high levels of discrimination, and reporting of discrimination is incredibly low. Consultation with sex workers and a review of discrimination cases in Queensland demonstrates that the attribute ‘lawful sexual activity’ does not provide adequate discrimination protection for sex workers and fails to provide clear direction to the courts or the community. Significant barriers to reporting and problems with the complaint and conciliation processes are also clear.
This submission is informed by consultations, workshops and online discussions held by Respect Inc and a survey by DecrimQLD of 204 sex workers on experiences of discrimination and barriers to reporting. In the recent survey, 72.5% of participants had experienced discrimination and a further 14.2% were unsure if what they had experienced would be considered discrimination.
This scale of discrimination points to widespread and normalised unfavourable treatment of sex workers across many areas of life. Survey participants provided detailed examples in the areas of goods and services provision, health care settings, accommodation, banking, superannuation and insurance, education, work and administration of state laws and programs as well as sexual harassment and vilification.
RECOMMENDATIONS:
- Respect Inc and DecrimQLD recommend that the Act clarifies that direct and indirect discrimination are not mutually exclusive, by adopting the approach taken in current ACT legislation. (Q.1-4)
- Respect Inc and DecrimQLD recommend the removal of the requirement for a comparator, allow for combined attributes (intersectionality), and make judgments on the basis of ‘unfavourable treatment’ rather than ‘less favourable’, and ‘disadvantage’ rather than ‘ability to comply’. (Q.1-4)
- Respect Inc and DecrimQLD recommend the introduction of a unified test for both indirect and direct discrimination. (Q.1-4)
- Respect Inc and DecrimQLD recommend the adoption of a positive duty to make ‘reasonable adjustments’ or ‘reasonable accommodations’ in all areas to prevent discrimination against sex workers both within the workplace and outside of it. (Q6)
- Respect Inc and DecrimQLD recommend an approach that protects people who experience discrimination on the basis of combined grounds and does not require a person to prove that their protected attribute is the only or main reason for the discrimination; instead it is preferred that it is only necessary to prove the protected attribute is one of the reasons for the discrimination. (Q.7)
- Respect Inc and DecrimQLD recommend shifting the onus of proof to the respondent in order to prove that they did not discriminate. (Q.8)
- Respect Inc and DecrimQLD recommend against explicitly prohibiting creating an intimidating, hostile, humiliating, or offensive environment on the basis of sex due to the potential for overreach. (Q.9)
- Respect Inc and DecrimQLD recommend that ‘in the presence of a person’ be included in the Act. (Q.9)
- Respect Inc and DecrimQLD recommend an amendment to the Act so that it specifically refers to sexual harassment covering sex workers and sex work workplaces and for HRC resources to include examples and information to that effect, including on their website. (Q.9)
- Respect Inc and DecrimQLD recommend against introducing a further contravention of sex-based harassment due to the lack of clarity on the definition and need for more inclusivity. (Q.9)
- Respect Inc and DecrimQLD recommend that the Act include a direct right of access to the tribunals and a right to apply directly to the Supreme Court in all circumstances. (Q.10)
- Respect Inc and DecrimQLD recommend a review into the use of non-disclosure agreements as standard practice in conciliation agreements as the outcome is erasure of the outcome of decisions, and knowledge of the ability to pursue complaints. (Q.10)
- Respect Inc and DecrimQLD recommend accepting complaints in non-written form and providing assistance with complaint lodgement. (Q.12)
- Respect Inc and DecrimQLD recommend the law be adapted to allow a more flexible approach to resolving complaints by ensuring the approach is more individually tailored and the potential for external interference is mitigated. (Q.13)
- Respect Inc and DecrimQLD recommend that the timeframe to lodge a complaint be extended to at least five years. (Q.14)
- Respect Inc and DecrimQLD recommend that representative bodies including Respect Inc and trade unions be able to make a complaint on behalf of an affected person in both the conciliation process and the tribunal. (Q.16)
- Respect Inc and DecrimQLD recommend that the Act not retain barriers that create undue difficulty for prisoners to access anti-discrimination protections. (Q.17)
- Respect Inc and DecrimQLD recommend a process allowing anonymous complaints to be made by sex workers and other groups who have significant barriers to lodging a complaint. (Q.18)
- Respect Inc and DecrimQLD recommend the current approach, which allows for discretionary decisions on anonymity should instead be guaranteed for all sex workers lodging complaints. (Q.18)
- Respect Inc and DecrimQLD recommend that financial barriers to sex workers progressing cases beyond QCAT be mitigated. (Q.18)
- Respect Inc and DecrimQLD recommend a review into the use of non-disclosure agreements as standard practice in conciliation agreements as the outcome is erasure of the outcome of decisions, and knowledge of the ability to pursue complaints. (Q.18)
- Respect Inc and DecrimQLD recommend a change that clarifies the intention of the legislation to the courts and to those considering reporting discrimination. (Q.19)
- Respect Inc and DecrimQLD recommend that welfare measures and equal opportunity measures be retained and collapsed into a single special measures provision. (Q.20)
- Respect Inc and DecrimQLD recommend that the Act adopt an approach similar to Victoria’s Equal Opportunity Act 2010 to ensure the special measures are assessed in a way that is not open to misuse. (Q.20)
- Respect Inc and DecrimQLD recommend a positive duty requiring services to take reasonable and proportionate measures to prevent discrimination, sexual harassment and vilification. A positive duty should cover all aspects of discrimination. (Q.21)
- Respect Inc and DecrimQLD recommend that the statutory framework be changed to include organisation complaints in order to better inform the members of that community on how to act going forward given the case outcome, and to effect change in cases where there is systemic discrimination and insurmountable access barriers for individual sex workers exist (Q.22)
- Respect Inc and DecrimQLD recommend that the Human Rights Commission be given the power to take action, including progressing a discrimination case where there is evidence of systemic discrimination, sexual harassment or vilification. (Q.22)
- Respect Inc and DecrimQLD recommend that a specialist list be created. In relation to sex work cases, a tribunal decision-maker should be required to have extensive professional subject matter knowledge. (Q.23)
- Respect Inc and DecrimQLD recommend that decisions from all conciliation and tribunal hearings should be published, with the name/s of the sex worker or PLHIV complainant protected. (Q.23)
- Respect Inc and DecrimQLD recommend that sex worker outreach organisations be specifically resourced to provide education to the broader community on how anti-discrimination legislation protects sex workers. (Q.24)
- Respect Inc and DecrimQLD recommend the addition of a broader attribute of disability that covers all types of physical and mental impairment in line with the Convention on the Rights of Persons with Disabilities. (Q.25)
- Respect Inc and DecrimQLD recommend the addition of an attribute that recognises people living with HIV in line with the NAPWHA and QPP submission. (Q.25)
- Respect Inc and DecrimQLD recommend a new definition of gender identity in the Act, to remove the binary language and promote inclusiveness of all identities. (Q.26)
- Respect Inc and DecrimQLD join with Queensland Council of LGBTI Health to recommend expanding the protected attributes referred to in the Anti-Discrimination Act 1991 (Qld) to specifically refer to a person’s sexual expression, including all identities. (Q.27)
- Respect Inc and DecrimQLD recommend the protected attribute ‘lawful sexual activity’ be replaced by a new attribute with both ‘sex work’ and ‘sex worker’. (Q.28)
- Respect Inc and DecrimQLD recommend definitions for the new attributes of ‘sex work’ and ‘sex worker’: ‘sex work means the provision by a person of services that involve the person participating in sexual activity with another person or persons in return for payment or reward’ and ‘sex worker means a person who performs sex work’. (Q.29)
- Respect Inc and DecrimQLD recommend that the attribute irrelevant criminal record be added to the Anti-Discrimination Act. (Q.30)
- Respect Inc and DecrimQLD recommend that the attribute irrelevant medical record be added to the Anti-Discrimination Act. (Q.31)
- Respect Inc and DecrimQLD recommend that the attribute immigration status be added to the Anti-Discrimination Act. (Q.32)
- Respect Inc and DecrimQLD recommend that the attribute physical features be added to the Anti-Discrimination Act. (Q.34)
- Respect Inc and DecrimQLD support the Queensland Council of LGBTI Health recommendation for the attribute to be expanded to specifically refer to a person’s gender identity and gender expression, while also expanding the definition of gender identity to clearly include non-binary and gender diverse people. (Q.35)
- Respect Inc and DecrimQLD support the Queensland Council of LGBTI Health and IHRA recommendations to expand the attributes to cover sex characteristics. (Q.36)
- Respect Inc and DecrimQLD recommend that the attribute subject to domestic violence be added to the Anti-Discrimination Act. (Q.37)
- Respect Inc and DecrimQLD recommend that the attribute accommodation status be added to the Anti-Discrimination Act. (Q.38)
- Respect Inc and DecrimQLD recommend that the protected attribute ‘lawful sexual activity’ be replaced with a new attribute of both ‘sex work’ and ‘sex worker’. (Q.39)
- Respect Inc and DecrimQLD recommend the introduction of a new attribute to protect people who use drugs. (Q.39)
- Respect Inc and DecrimQLD recommend that the exemption that allows religious bodies, service and accommodation providers to discriminate be repealed. (Q. 41-44).
- Respect Inc and DecrimQLD recommend the repeal of exemption 28(1) that allows discrimination against sex workers (or intersex, gender diverse, non-binary or transgender people) in ‘work involving the care or instruction of minors’. (Q.45)
- Respect Inc and DecrimQLD recommend that the exemption for assisted reproductive technology services be repealed. (Q.46)
- Respect Inc and DecrimQLD recommend that exemption 106C be repealed to make accommodation discrimination against sex workers unlawful. (Q.47)
- Respect Inc and DecrimQLD recommend that the citizenship/visa status exemption be repealed. (Q.49)
- Respect Inc and DecrimQLD recommend that there should be no exemptions to insurance and superannuation providers allowed on the basis of sex work. (Q.50)
- Respect Inc and DecrimQLD recommend that non-profit goods and services providers should not be exempt from discrimination toward sex workers or on the basis of sex work (Q.52)
- Respect Inc and DecrimQLD recommend that financial discrimination of sex workers should not be allowed under exemptions in State or Federal law. (Q.55)
- Respect Inc and DecrimQLD recommend that sections 28 (1) and 106C be repealed as they are incompatible with the Human Rights Act 2019 (Qld). (Q.56)
- Recommendation 56: Respect Inc and DecrimQLD recommend that Attribute 7 (l) be replaced by the attribute ‘sex work’ and ‘sex worker’as it is incompatible with the Human Rights Act 2019 (Qld). (Q.56)