Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act

Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011)Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011)

Summary

On 28 November 2011, the Victorian Civil and Administrative Tribunal delivered judgments in three matters, each dealing with applications for exemption from the Equal Opportunity Act 2010 (Vic) (EOA) to enable the limiting of employment in specified roles to Indigenous persons.

The Victorian Equal Opportunity and Human Rights Commission intervened under s 159 of the EOA in all three matters to provide assistance to the Tribunal, in particular in relation to the operation of the new special measures provision at s 12 of the EOA and the application of the new factors for consideration in deciding exemption applications at s 90 of the EOA.

These are the first decisions of their kind under the EOA which came into force on 1 August 2011. They provide detailed consideration of the operation of the special measures provision under the EOA and the right to equality under s 8 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Facts

Parks Victoria applied to the Tribunal for an exemption from certain provisions of the EOA to enable it to advertise for and employ only Indigenous persons, with preference to be given to members of the Wurundjeri Tribe Land Compensation & Cultural Heritage Council Inc, in field and office based positions working to care and protect Wurundjeri country.

Cummeragunja Housing & Development Aboriginal Corporation sought an exemption to enable it to advertise for and employ only Indigenous persons in the positions of Mental Health Worker, Aboriginal Health Worker, Trainee Aboriginal Health Worker and Administration Trainee.

The Ian Potter Museum of Art applied to the Tribunal for an exemption to enable it to advertise for and employ only an Indigenous person in the role of Vizard Foundation Assistance Curator.

Decisions

In each case, the Tribunal held that the proposed conduct constituted a special measure and was, therefore, not discrimination for the purposes of the EOA. As such, the Tribunal found there was no need for an exemption and the applications were struck out under paragraph 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

Section 90 of the EOA sets out the factors that must be considered by the Tribunal in deciding whether to grant an exemption. Those factors include:

• whether the proposed exemption is unnecessary, either because the proposed conduct does not constitute prohibited discrimination or an exception or exemption already applies; and
• whether the proposed exemption is a reasonable limitation on the right to equality set out in the Charter.

Whether the proposed exemption is unnecessary

In each case, the Tribunal found that the exemption was unnecessary as the proposed conduct constituted a special measure under s 12 of the EOA. Section 12 relevantly provides:

• A person may take a special measure for the purpose of promoting or realising substantive equality for members of a group with a particular attribute.
• A person does not discriminate against another person by taking a special measure.
• A special measure must –

a)     be undertaken in good faith for achieving the purpose set out in subsection (1); and

b)     be reasonably likely to achieve the purpose set out in subsection (1); and

c)     be a proportionate means of achieving the purpose set out in subsection (1); and

d)     be justified because the members of the group have a particular need for advancement or assistance.

In Parks Victoria, the Tribunal found that the proposed conduct was intended to be engaged in for the purpose of providing employment opportunities to Indigenous people, to increase the number of Indigenous people employed by the applicant, to provide opportunities of connection and care for the Wurundjeri country by its traditional owners and also for the maintenance of the culture associated with the country. The Tribunal found that those purposes had the broader purpose of realising substantive equality for Indigenous persons and was satisfied that it would be undertaken in good faith. The Tribunal found that the proposed conduct was reasonably likely to achieve the purpose as the persons offered employment would benefit, as well as Indigenous people more broadly. The Tribunal was satisfied that the measure was proportionate in light of the fact that, at the time the application was made, only 7.6% of Parks Victoria’s workforce were Indigenous.

In Cummeragunja, the Tribunal considered that the proposed conduct was intended to be engaged in for the purpose of providing employment opportunities for Indigenous applicants, as well as for providing health services to local Indigenous people in a manner that is most relevant and appropriate. The Tribunal found that those purposes also had the broader purpose of promoting substantive equality for Indigenous people. The Tribunal was satisfied that the proposed conduct would be undertaken in good faith. The proposed conduct was regarded by the Tribunal as being reasonably likely to achieve the purpose as the individuals employed, as well as the broader Indigenous community, would benefit. In addition, it was found that, by having Indigenous staff provide the health and administrative services required, it was likely that the health services would be provided in a manner that was most relevant and appropriate. At the time of making the application, there were almost equal numbers of Indigenous to non-Indigenous staff employed at Cummeragunja, while 95% of people using the services were Indigenous. In light of those statistics, the Tribunal was satisfied that the measures were proportionate.

In The Ian Potter Museum of Art, the Tribunal held that the proposed conduct was intended to be engaged in for the purpose of providing an employment opportunity for an Indigenous person and to address the Museum’s intention to increase the number of Indigenous persons it employs to better reflect the proportion of Indigenous persons in the Australian population. The Tribunal found that those purposes had the broader purpose of promoting substantive equality for Indigenous people and was satisfied that the proposed conduct would be undertaken in good faith. The Tribunal also found that the proposed conduct was reasonably likely to achieve the purpose as the persons offered employment, and Indigenous people more broadly, would benefit. The Tribunal found that the measure was proportionate given that the proportion of Indigenous staff was dramatically less than the number required to represent the proportion of Indigenous people in the wider population.

In making each of the findings, the Tribunal took judicial notice of information from the Australian Bureau of Statistics in support of its finding that Indigenous people have a particular need for advancement and assistance.

Whether the proposed exemption is a reasonable limitation on the right to equality

The Tribunal proceeded to consider in each of the matters whether the proposed exemptions were reasonable limitations on the right to equality at s 8 of the Charter. In each case, the Tribunal was satisfied that the proposed conduct met the description at s 8(4) of the Charter as they were “[m]easures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination”. Section 8(4) of the Charter provides that such conduct does not constitute discrimination. The Tribunal was therefore satisfied that the proposed conduct was a special measure under the Charter and, therefore, would not limit the right to equality.

Implications

Special measures

The new EOA sought to clarify that special measures are not unlawful discrimination. With these decisions, the Tribunal has confirmed that where proposed conduct is found to constitute a special measure, an exemption is not required as there is no discrimination.

The Tribunal identified how to determine whether the proposed conduct constitutes a special measure stating that the definition set out at s 12(1) of the EOA comprises a test. In relation to the additional factors set out at s 12(3), the Tribunal held that they have a dual role of being further requirements that must be met, as well as going to whether the definition at s 12(1) is satisfied.  The Tribunal considered that this latter role was appropriate given that the factors at s 12(3) are consistent with previous case law considering whether special measures provisions in legislation other than the EOA are established.

In considering whether the special measure is justified because the members of the group have a particular need for advancement or assistance as required by s12(3)(d), the Tribunal held that it is not necessary for the whole group to be disadvantaged, so long as disadvantage applies to an overwhelming majority.

Charter

Section 90(b) of the EOA also now explicitly requires the Tribunal to consider whether the proposed exemption is a reasonable limitation on the right to equality at s 8 of the Charter. The Tribunal noted that the right to equality encompasses a number of rights, some of which import, to some extent, the meaning of discrimination under the EOA. As such, the Tribunal stated that arguably, where a special measure applies under the EOA, the rights which turn on discrimination in s 8 of the Charter will not arise.

However, in all three cases, the Tribunal nevertheless went on to consider whether the right to equality had been limited without reference to its finding that the proposed conduct constituted a special measure under the EOA. If reference to that finding about the scope of the Charter right had been followed, the Tribunal may have found that the right to equality was not limited on the basis that the conduct constituted a special measure under the EOA and was, therefore, not discriminatory. The Tribunal decided not to take into account that finding on the basis that “given the expansive and important objects of the Charter, it would be inappropriate to exclude consideration of the protected rights with an overly technical reading of the legislation”.

The Tribunal noted that s 8(4) of the Charter, contains a provision similar to the special measures provision in the Charter.  It provides that “[m]easures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination”.  The Tribunal held that the Charter provision is narrower in scope than the special measures provision under the EOA because the Charter provision requires that the disadvantage which the special measure seeks to remedy must exist “because of discrimination”.  The Tribunal held that where the proposed conduct is a special measure under the EOA, but not under the Charter, “it would be necessary to have recourse to the justification test in the Charter”.

The decision for Parks Victoria can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2238.html

The decision for Cummeragunja can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2237.html

The decision for The Ian Potter Museum of Art can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2236.html

Leana Papaelia is a Legal Officer at the Victorian Equal Opportunity & Human Rights Commission