North and West Remote Health Limited
[2016] QCAT 452
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- Unreported Judgment
- North and West Remote Health Limited[2016] QCAT 452
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North and West Remote Health Limited[2016] QCAT 452
North and West Remote Health Limited[2016] QCAT 452
CITATION: | North and West Remote Health Limited [2016] QCAT 452 |
PARTIES: | North and West Remote Health Limited (Applicant) |
APPLICATION NUMBER: | ADL046-16 |
MATTER TYPE: | Anti-discrimination matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Bridgman |
DELIVERED ON: | 23 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The application is dismissed. |
CATCHWORDS: | ANTI-DISCRIMINATION – general exemption from liability sought on the attribute of race – where specific exemption already exists – where general exemption is not required Anti-Discrimination Act 1991 (Qld) ss 25, 113 Boeing Australia Holdings Pty Limited & Ors [2003] QADT 21 National Heart Foundation of Australia [2014] QCAT 39 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]North and West Remote Health Limited (NWRH) is a not-for-profit corporation limited by guarantee, registered with the Australian Charities and Not-for-Profits Commission. It provides health services to the general community in many locations in North and Western Queensland. The services include aged care services, disability services, and health and wellbeing services. Services are provided to Aboriginal and Torres Strait Island people in the general community and in Indigenous communities.
- [2]NWRH applied for an exemption, stated to be under s 25 of the Anti-Discrimination Act 1991 (AD Act), “to identify a position to be filled only by an Aboriginal or Torres Strait Islander applicant.”
- [3]The position was originally “Manager Indigenous Initiatives”. A revised position description filed on 1 August 2016 changed the title to “Manager Community and Cultural Relations” and added a second position objective.
- [4]The objectives stated in the revised position description are:
to identify and establish structures within NWRH that improve measurable levels of cultural competence within the organisation’s governance, management and service delivery frameworks;
to support and facilitate local Aboriginal and Torres Strait Islander community relations and health service literacy, education and promotion to enable ease of access to NWRH services including aged and disability services.
- [5]There is also a requirement:
to “facilitate improved engagement in Mornington Island and Doomadgee as discrete Aboriginal communities to reduce access impediments to NWRH services; support community input into service design; and promote community understanding of NWRH services including aged disability services.”
- [6]NWRH also filed its Indigenous Employment Plan, and the Tribunal informed itself of NWRH’s scope of activities by examining online materials including the annual report, reconciliation action plan and various relevant web pages.
- [7]The application was dealt with as an application under s 113 for a general exemption on the revised position description.
- [8]The exemption is sought by NWRH on the grounds that the person performing the duties of the position:
- must work from a “knowing cultural base between mainstream Australia and Australia’s many traditional cultural groups”;
- “navigate and broker all the necessary protocols for [NWRH] to deliver health and wellbeing services that are not only culturally sensitive, but to build enhanced delivery and enhanced outcomes that [the person] will help become culturally secure”;
- develop cultural proficiency and responsiveness within the organisation;
- further the work of the NWRH’s Reconciliation Action Plan Working Group to close the gap between mainstream health and Indigenous health.
- [9]NWRH’s application was made on the basis that the position was an “identified position”, meaning a position that, in the view of NWRH, can only be discharged by an Aboriginal or Torres Strait Islander person as a genuine occupational requirement.
Anti-Discrimination Commissioner’s views
- [10]The Anti-Discrimination Commissioner’s views were sought, as required by s 113 of the AD Act, based on the amended position description.
- [11]The Commissioner did not object to the exemption sought, but drew the Tribunal’s attention to the fact an exemption may not be needed if the position was in fact an identified position. The Commissioner drew the Tribunal’s attention to United Synergies Limited [2015] QCAT 89 and National Heart Foundation of Australia [2014] QCAT 39 as well as relevant materials published by the Commissioner and the Australian Human Right Commission.
Exemptions under the Anti-Discrimination Act
- [12]The AD Act makes direct and indirect discrimination unlawful based on certain attributes including race (s 7(g)), in stated areas including pre-work (s 14) and work (s 15), subject to various exemptions. It would be unlawful discrimination to restrict recruitment to a particular position to Aboriginal or Torres Strait Islander people unless an exemption applied.
- [13]There are three types of exemption under the AD Act:
- exemptions that apply in a particular area and stated in the Act (eg s 25 about genuine occupational requirements in work and work-related areas);
- exemptions under ss 104-112;
- an exemption granted by this Tribunal, in its discretion, on application under s 113.
- [14]The first two types of exemption arise on the facts in each case and the Tribunal’s endorsement is not necessary. They operate as a defence to a claim of unlawful discrimination.
- [15]Matters relevant to the grant an exemption under s 113 were considered in Boeing Australia Holdings Pty Limited [2003] QADT 21. The Tribunal determined that to exercise its discretion the following factors were relevant:
- whether it would be “appropriate and reasonable to do so”: Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782:
- whether the exemption was necessary: Mt Isa Mines Ltd [2001] QADT 166;
- whether there were available other, non‑discriminatory ways of achieving the same object: City of Brunswick: re Application for Exemption from Provisions of Equal Opportunity Act 1984 (1992) EOC 92-450;
- whether it was in the community interest: City of Brunswick; and
- whether others supported the application.
- [16]In considering a similar application, Senior Member Endicott said in National Heart Foundation of Australia [ 2014] QCAT 39:
[9] The term “genuine occupational requirement” or very similar wording found in anti-discrimination legislation in Australia has been the subject of judicial consideration. In Qantas Airways v Christie (1998) HCA 18, [36], Justice Gaudron of the High Court of Australia explained that determining if a requirement is an inherent requirement must involve consideration as to whether a position would be essentially the same in the absence of the requirement.
[10] The proposed position of Senior Aboriginal Advisor has inherent requirements that the person fulfilling the role must not only understand issues affecting Aboriginal and Torres Strait Islander peoples but must also have lived experience of those issues. This is important as the person must have a commonality of experience in order to communicate effectively on health issues with Aboriginal and Torres Strait Islander communities. The role arises from positive action taken under the organisation’s Reconciliation Plan. It would defeat one of the purposes of the role, to promote equality of opportunity, for a non-indigenous person to be appointed to the role and undermine the Reconciliation action undertaken by the organisation. In other words, the role would not be essentially the same in the absence of the requirement for the person to be an Aboriginal or Torres Strait person.
[11] In order to fulfil the requirements of the role and to perform the functions effectively I am satisfied that the Senior Aboriginal Advisor must be an Aboriginal or Torres Strait person.
[12] I am able to conclude from the evidence that it is a genuine occupational requirement for the role Senior Aboriginal Advisor to be filled only by an Aboriginal or Torres Strait person. Once that conclusion is reached that a specific exemption exists that renders lawful conduct that would otherwise be unlawful discrimination, the need for a general exemption under section 113 of the Act does not arise. I conclude that section 25 would be available to the organisation as a defence to complaints of discrimination based on the attribute of race in the arrangements for the role.
- [17]On the information before the Tribunal, I conclude it is a genuine occupational requirement that the position of Manager Community and Cultural Relations be filled by an Aboriginal or Torres Strait Islander person. Consistently with Qantas, the combination of the following objectives and occupational requirements inherently require, not just an understanding of Indigenous issues, but commonality of experience and culture:
- cultural knowledge and sensitivity on the occupant’s part;
- enhancing the cultural sensitivity of NWRH’s services, delivery and outcomes;
- developing cultural proficiency of the NWRH;
- improving measurable cultural competence within the organisation;
- improving health literacy in Aboriginal and Torres Strait Islander communities;
- supporting and facilitating Aboriginal and Torres Strait Islander community relations; and
- the specific role of advancing service delivery and community access in the Aboriginal communities of Mornington Island and Doomadgee.
- [18]The exemption is unnecessary because the exemption in s 25 applies to the position.
- [19]The application is dismissed.