Right to Equality and Anti-Discrimination Exemptions: Special Measures to Reduce Disadvantage

Department of Human Services & Department of Health (Anti-Discrimination Exemption) [2010] VCAT 1116 (29 June 2010)

In this decision, McKenzie DP granted an exemption on the basis that it constitutes an appropriate special measure to reduce disadvantage caused by discrimination, as permitted by s 8(4) of the Charter.

Facts

The Department of Human Services and the Department of Health (Departments) applied for a three year exemption from the prohibition on race discrimination under the EO Act to enable the Departments to advertise for and employ up to 118 Indigenous people for positions within the Departments.  The proposal is part of an Aboriginal Public Sector Employment and Career Development Plan (Action Plan), which aims to reduce disadvantage suffered by Indigenous Victorians by promoting the education and employment of Indigenous Victorians in the public sector.  The Action Plan is the result of wide-ranging consultation with the Indigenous community, public sector officials and key union groups.  It also has high-level endorsement, including from the Premier.

The Departments submitted extensive material setting out the proposal and the context of the proposal, including the following statistics.

• 76% of non-Indigenous Victorians complete high school, compared with 31% of Indigenous children.
• 18% of non-Indigenous Victorians enrol at university, compared to 3% of Indigenous Victorians.
• 73% of non-Indigenous Victorians of working age are in employment, compared to 54% of Indigenous Victorians.

Deputy President McKenzie acknowledged the compounding effects of disadvantage.  For example, home ownership depends on financial resources, which in turn depends on employment, which in turn depends on educational qualifications.

Decision

Deputy President McKenzie applied the same legal principles discussed above, and determined that the exemption should be granted.  She considered that the right to equality (ss 8(2) and (3)) and the right to have equal access to the Victorian public sector (s 18(2)(b)) were relevant Charter rights.

However, McKenzie DP held that s 8(4) of the Charter applies to this proposal.  Section 8(4) provides that a measure does not constitute discrimination if it is taken to assist or advance a group that is disadvantaged because of discrimination.  However, interestingly, McKenzie DP held that s 82 of the EO Act, which permits the provision of special services or benefits to a class of persons to reduce disadvantage, did not apply so clearly that the exemption is unnecessary.  This indicates a potential view that s 8(4) of the Charter has a broader and more beneficial application than s 82 of the EO Act.

Deputy President McKenzie was also of the view that the proposal was a reasonable limit on human rights in the Charter.  This is because the proposal is intended to redress disadvantage caused by discrimination, which is an important purpose, and relates to only a small fraction of the total public sector workforce.  She also noted the strong and overriding ‘public interest in addressing and reducing the clear disadvantage in employment from which Indigenous Victorians suffer’.  She considered that the proposal, in conjunction with various other support mechanisms included in the Action Plan, would not just increase employment of Indigenous Victorians, but might also encourage Indigenous Victorians to stay longer at school and enter university.

The decision is at www.austlii.edu.au/au/cases/vic/VCAT/2010/1116.html.

Melanie Schleiger is a Senior Lawyer in the Human Rights & Civil Law Service, Victoria Legal Aid, and a Board member of the Human Rights Law Resource Centre