Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2024
  4. Re: North Queensland Land Council Native Title Representative Body Aboriginal Corporation - [2024] QIRC 221

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Re: North Queensland Land Council Native Title Representative Body Aboriginal Corporation[2024] QIRC 221

Re: North Queensland Land Council Native Title Representative Body Aboriginal Corporation[2024] QIRC 221

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Re: North Queensland Land Council Native Title Representative Body Aboriginal Corporation [2024] QIRC 221

PARTY: 

North Queensland Land Council Native Title Representative Body Aboriginal Corporation

(Applicant)

CASE NO:

AD/2024/51

PROCEEDING:

Application for exemption

DELIVERED ON:

6 September 2024

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

  1. The Applicant is exempt from the operation of s 14, s 15, s 15A, s 124, and s 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(g) of the Anti-Discrimination Act 1991 (Qld).
  1. The exemption applies only in respect of actions or omissions in relation to the advertising, recruitment, selection, appointment, and employment of a First Nations Engagement Officer.
  1. The exemption shall apply for a period of five years from the date of these orders.

CATCHWORDS:

EQUAL OPPORTUNITY AND DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF RACE – ANTI-DISCRIMINATION – EXEMPTION – application to grant exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) – exemption in relation to discrimination on the grounds of race so the applicant can advertise, recruit, select, appoint and employ a First Nations Engagement Officer.

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – whether granting the exemption affects a human right within the meaning of the Human Rights Act 2019 (Qld) – whether exemption is compatible with human rights within the meaning of the Human Rights Act 2019 (Qld) – exemption granted.

LEGISLATION:

Anti-Discrimination Act 1991 (Qld), ss 7, 14, 15, 15A, 24, 25, 113, 124, 127, 174B

Human Rights Act 2019 (Qld), ss 8, 9, 13, 15, 48, 58

CASES:

Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52

Lifestyle Communities Ltd (No 3) (Anti‑Discrimination) [2009] VCAT 1869

Re: Ipswich City Council [2020] QIRC 194

Re: Jet Aviation Australia Pty Ltd & Jet Aviation Australia (Qld) Pty Ltd [2024] QIRC 133

Re: Protech Personnel Pty Ltd [2019] QIRC 175

The Australian Institute for Progress Ltd v The Electoral Commission of Queensland [2020] QSC 54

Reasons for Decision

Introduction

  1. [1]
    North Queensland Land Council Native Title Representative Body Aboriginal Corporation ('the Applicant') applied for an exemption from the operation of the Anti‑Discrimination Act 1991 (Qld) ('the AD Act') ('exemption application') to allow the Applicant to recruit only Indigenous Australians for the First Nations Engagement Officer role ('the role'). The role is an Indigenous identified position to ensure effective communication, community engagement, and consultation with First Nations constituents.
  1. [2]
    The Commission forwarded a copy of the exemption application and supporting material to the Queensland Human Rights Commission ('the QHRC'). The QHRC submits that it supports the application for exemption in favour of the Applicant.
  1. [3]
    The Commission issued a Directions Order providing the Applicant the opportunity to file written submissions in support of the exemption application.
  1. [4]
    The question for determination is whether the Applicant should be granted an exemption pursuant to s 113 of the AD Act. This requires consideration of the AD Act and the relevant provisions of the Human Rights Act 2019 (Qld) ('the HR Act').

The Applicant's exemption application

  1. [5]
    In the exemption application, the Applicant submits that:
  1. (a)
    They are a Native Title Representative Body, assisting their members and traditional owners to pursue and secure their native title to the land.
  2. (b)
    The role is an identified position to support their clients and address culturally sensitive matters as relating to pursuit of their native title rights and interests.
  3. (c)
    The role is ongoing, which will ensure that the Applicant continues to meet the needs of their members and clients.
  4. (d)
    The Applicant seeks an exemption in accordance with s 25 of the Anti‑Discrimination Act 1991 (Qld) ('the AD Act').

Applicant's Written Submissions

  1. [6]
    The Applicant made the following written submissions, in summary:
  1. The Applicant is the recognised Native Title Representative Body (NTRB) for its region, which covers approximately 943,300 km2 of lands and waters, with approximately 411,164 km2 of this being land.
  1. The Applicant's mission is to ensure that the native title rights and interests of every traditional owner within its region are legally recognised, allowing Aboriginal people to benefit culturally, socially, and economically from the secure possession of their traditional land and waters. As an NTRB, the Applicant plays a crucial role in assisting Indigenous people with the preparation and progression of native title determination applications in the Federal Court. It also represents the interests of native title claimants and holders throughout the native title process, which necessitates strong relationships and connections with the Indigenous communities it serves.
  1. The Applicant seeks to fill the position of First Nations Engagement Officer, an 'Indigenous identified' role. This classification is crucial to ensure effective communication, community engagement, and consultation with First Nations constituents, aligning with the Applicant's statutory obligations and corporate goals.
  1. The role's primary responsibilities include facilitating communications, community engagement, and consultation processes between the Applicant's staff and First Nations constituents. The officer will serve as the main contact for native title claims, ensuring First Nations constituents are well-informed about meetings and relevant matters. Given the culturally sensitive nature of this role and the need for deep understanding and effective communication with Indigenous Australians, it is essential that the person in this position is of Aboriginal or Torres Strait Islander descent.
  1. Under s 25 of the AD Act, an exemption is provided for genuine occupational requirements. In this context, the requirement for the First Nations Engagement Officer to be an Indigenous person is justified as it ensures:
  1. Cultural Competency: The officer must have an intrinsic understanding of Indigenous cultural practices, traditions, and values, which is inherent in being an Aboriginal or Torres Strait Islander person.
  2. Effective Communication: The ability to communicate effectively with Indigenous communities is vital. This requires a nuanced understanding of Indigenous languages, communication styles, and community dynamics, which an Indigenous person would inherently possess.
  3. Trust and Engagement: Building trust and engaging effectively with Indigenous communities is crucial for the role. An Indigenous person is more likely to be trusted and accepted by First Nations constituents, facilitating more effective engagement and consultation.
  4. Authentic Representation: The officer will serve as a representative and advocate for Indigenous issues within the Applicant. An Indigenous person can provide authentic and firsthand perspectives on Indigenous issues, ensuring that the views and aspirations of First Nations constituents are accurately represented and respected.
  1. Given these factors, the Applicant's requirement for the First Nations Engagement Officer to be an Indigenous person is a genuine occupational requirement under s 25 of the AD Act. This exemption is necessary to ensure the role is performed effectively, respecting the cultural and communication needs of First Nations constituents and fulfilling our statutory and corporate responsibilities.

QHRC Response

  1. [7]
    By email dated 2 August 2024, the QHRC acknowledged receipt of the application and all material filed in support of it.
  1. [8]
    The email also contained the following submissions, in summary:
  1. The tribunal has a discretion to grant an exemption from the operation of a specified provision of the AD Act. As there are no express criteria in the AD Act for the exercise of the discretion, the extent of the power is to be determined by reference to the subject matter, scope, and purpose of the AD Act.
  2. The tribunal must first consider whether an exemption under s 113 of the AD Act is necessary in the sense that the conduct would otherwise contravene the AD Act. If the tribunal is satisfied that an exemption is necessary, factors relevant to the exercise of the discretion include:
  1. whether the proposed exemption is appropriate and reasonable;
  2. whether there are any non-discriminatory ways of achieving the purpose for which the exemption is sought;
  3. whether the exemption is in the community interest;
  4. whether the exemption is supported by other persons; and
  5. whether the exemption is consistent with the objects and purposes of the Act.

The tribunal also has obligations under the HR Act.

Is an exemption necessary and appropriate?

  1. The applicant must satisfy the tribunal that the conduct would arguably contravene the AD Act without the exemption, and that there is no other reasonable means of achieving the purpose for which the exemption is sought. The granting of an exemption is not a trivial matter nor routine as it deprives citizens and claimants of rights and actions they would otherwise have.
  2. Limiting employment to people of a particular race is prima facie unlawful race discrimination under the AD Act, unless an exemption applies.
  3. The Applicant submits that the requirement to be an Aboriginal or Torres Strait Islander person is a genuine occupational requirement for the role and that the exemption in s 25 of the AD Act applies. The effect of s 24 and s 25(1) of the AD Act is that it is not unlawful to discriminate by imposing a genuine occupation requirement for a position.
  4. In Queensland, the former Anti-Discrimination Tribunal determined that in considering whether a requirement is a genuine occupational requirement in terms of s 25 of the AD Act, the requirement must be objectively required, and the determination of what is a genuine occupational requirement is wholly factual.
  5. The Queensland Court of Appeal has adopted the approach of the Chief Justice of the High Court in Qantas Airways Limited v Christie and stated that in deciding whether a particular requirement was a genuine occupational requirement, it is essential to consider the function that the employee performs as part of the employer's undertaking, and not just the employee's physical ability to carry out the required tasks.
  6. It appears that being Aboriginal or Torres Strait Islander is objectively required for the role in the context of the functions of the Applicant and would be an Identified position.
  7. Even though the exemption in s 25 of the AD Act would appear to apply, the tribunal is not precluded from granting an exemption. A tribunal granted exemption would provide certainty to the Applicant and minimise the risk of defending a complaint of race discrimination.

Application of the Human Rights Act 2019 to the tribunal

  1. The HR Act applies to the tribunal when it is:
  1. interpreting statutory provisions;
  2. acting in an administrative capacity; and
  3. performing functions relevant to the human rights.
  1. The tribunal acts in an administrative capacity when deciding an exemption application under s 113 of the AD Act. When acting in an administrative capacity, the tribunal is a public entity, and s 58 of the HR Act applies to require the tribunal to give proper consideration to, and make a decision in a way that is compatible with, human rights.
  2. The obligations under s 58 of the HR Act are both substantive and procedural. The substantive obligation under s 58(1)(a) is to act and make decisions in a way that is compatible with human rights, and the procedural obligation in s 58(1)(b) is to give proper consideration to human rights that are relevant to the decision.
  3. The discretion of the tribunal to grant an exemption must be exercised compatibly with human rights.
  4. The term 'compatible with human rights' is defined in s 8 of the HR Act as follows:

An act, decision or statutory provision is compatible with human rights if the act, decision or provision –

  1. does not limit a human right; or
  2. limits a human right only to the extent that is reasonable and demonstrably justified in accordance with section 13.
  1. Guidance about the meaning of giving proper consideration to a relevant human right is provided for in s 58(5), by stating that it includes, but is not limited to:
  1. identifying the human rights that may be affected by the decision; and
  2. considering whether the decision would be compatible with human rights.

Human rights considerations

  1. Whether an exemption under s 113 of the AD Act would engage human rights can be determined by reference to the effect of the exemption if granted. The effect of the proposed exemption would be to allow the applicant to discriminate on the basis of race in the work and work-related areas. This affects the rights to equality and to equal protection of the law without and against discrimination in s 15 of the HR Act.
  2. The purpose of s 15(5) is to promote substantive equality. If the activity is a special measure within s 15(5) the activity would be human rights compatible. If it is not a special measure, then the justification test in s 13 of the HR Act is to be applied. The standard of proof is the balance of probabilities.
  3. The applicant has not specifically addressed human rights considerations in its submission. Although the onus of establishing that the activity to which the exemption is sought is a measure within s 15(5) or is justified under s 13 lies with the Applicant, the QHRC considers there is sufficient information in the material and of which notice can be taken to determine compatibility.
  4. It can be taken that many Indigenous people experience and are disadvantaged by discrimination in various aspects of life. However, the QHRC considers that the proposed exemption is not a measure under s 15(5). Limiting eligibility for the role to Indigenous people is not a measure to ameliorate discrimination of Indigenous people in work.
  5. Therefore, the tribunal must consider whether the limitation is demonstrably justified in a free and democratic society based on human dignity, equality, and freedom, in accordance with s 13 of the HR Act. This is referred to as the proportionality test. The factors in s 13(2) are important but not exclusive. The nature of the test is comprehensively described in Lifestyle from [323] to [334]. At [326] the tribunal said:

To establish a limitation is reasonable and justified in a free and democratic society, the purpose (the end) of the limitation must be legitimate and of sufficient importance to warrant overriding a human right protected by the Charter. Further, the limitation (the means) must be proportionate and appropriate for achieving that purpose.

  1. Every individual in Queensland has an equal right to be protected from discrimination. Any limitation of the right must not exceed what is necessary to achieve the legitimate purpose. The purpose of the limitation is to ensure that the interests of Indigenous peoples and communities within the area are recognised and protected through the Native Title process. The limitation is consistent with the promotion of human dignity, equality, and freedom from discrimination, and there is no other less restrictive and reasonably available way to achieve the purpose.
  2. The application does not specify the provisions from which the exemption is sought, and states that the period for which it is sought is ongoing.
  3. An exemption of this nature would usually be granted from the operation of sections 14, 15, 15A, 124 and 127 of the AD Act in respect of the attribute of race in section 7(g) and would apply in respect of actions or omission in relation to the advertising, recruitment, selection, appointment, and employment of or to the role.
  4. An exemption cannot be granted for a period more than five years; however, an exemption may be renewed for further periods of not more than five years.
  5. The QHRC supports the application for exemption and considers it appropriate to be decided on the papers.

Legislative framework

  1. [9]
    Section 174B(b) of the AD Act confers the Commission with the power to grant exemptions in relation to work-related matters.
  1. [10]
    Section 113(1) of the AD Act provides:

113Tribunal

  1. The tribunal, on application by—
  1. a person, on the person’s own behalf, or on behalf of the person and another person or other people; or
  1. 2 or more people, on their own behalf, or on behalf of themselves and another person or other people; or
  1. a person or people included in a class of people on behalf of the people in that class;

may grant an exemption to the person, people or class of people from the operation of a specified provision of the Act.

…

  1. [11]
    The HR Act imposes obligations on the Commission with respect to the exercise of its discretion to grant an exemption.
  1. [12]
    Section 48 of the HR Act provides:

48Interpretation

  1. All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
  1. If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
  1. International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
  1. This section does not affect the validity of—
  1. an Act or provision of an Act that is not compatible with human rights; or
  1. a statutory instrument or provision of a statutory instrument that is not compatible with human rights and is empowered to be so by the Act under which it is made.
  1. This section does not apply to a statutory provision the subject of an override declaration that is in force.
  1. [13]
    Section 58 of the HR Act provides:

58Conduct of public entities

  1. It is unlawful for a public entity—
  1. to act or make a decision in a way that is not compatible with human rights; or
  1. in making a decision, to fail to give proper consideration to a human right relevant to the decision.
  1. Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.

Example—

A public entity is acting to give effect to a statutory provision that is not compatible with human rights.

  1. Also, subsection (1) does not apply to a body established for a religious purpose if the act or decision is done or made in accordance with the doctrine of the religion concerned and is necessary to avoid offending the religious sensitivities of the people of the religion.
  1. This section does not apply to an act or decision of a private nature.
  1. For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—
  1. identifying the human rights that may be affected by the decision; and
  1. considering whether the decision would be compatible with human rights.
  1. To remove any doubt, it is declared that—
  1. an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
  1. a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).
  1. [14]
    Section 13 of the HR Act provides:

13Human rights may be limited

  1. A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  2. In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
  1. the nature of the human right;
  2. the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
  3. the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  4. whether there are any less restrictive and reasonably available ways to achieve the purpose;
  5. the importance of the purpose of the limitation;
  6. the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  7. the balance between the matters mentioned in paragraphs (e) and (f).
  1. [15]
    'Public entity' is defined in s 9 of the HR Act, with s 9(4)(b) stating that a public entity does not include a court or tribunal, except when acting in an administrative capacity.
  1. [16]
    In Re: Ipswich City Council,[1] Deputy President Merrell confirmed that the Commission, when deciding an exemption application under s 113 of the AD Act, must comply with s 58 of the HR Act.
  1. [17]
    Section 58 of the HR Act requires that the Commission must not make a decision in a way that is not compatible with human rights and, in making a decision, the Commission must not fail to give proper consideration to a human right relevant to the decision.
  1. [18]
    'Human rights' is defined under the HR Act to mean the rights stated in pt 2 divs 2 and 3. Section 15 contains the following rights -

15Recognition and equality before the law

  1. Every person has the right to recognition as a person before the law.
  1. Every person has the right to enjoy the person's human rights without discrimination.
  1. Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
  1. Every person has the right to equal and effective protection against discrimination.
  1. Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
  1. [19]
    Section 8 of the HR Act defines the meaning of the phrase 'compatible with human rights' as:

8 Meaning of compatible with human rights

An act, decision or statutory provision is compatible with human rights if the act, decision or provision—

  1. does not limit a human right; or
  1. limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.
  1. [20]
    The HR Act provides that human rights may be limited pursuant to s 13 of the HR Act:

13Human rights may be limited

  1. A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  1. In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
  1. the nature of the human right;
  1. the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
  1. the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  1. whether there are any less restrictive and reasonably available ways to achieve the purpose;
  1. the importance of the purpose of the limitation;
  1. the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  1. the balance between the matters mentioned in paragraphs (e) and (f).

Consideration

  1. [21]
    It has been determined that the purpose of s 113 of the AD Act is to allow persons the protection and security of the shield against complaints of unlawful discrimination in circumstances where their proposed actions constitute a prima facie case of unlawful discrimination, but when they are not inherently inconsistent with the AD Act.[2]
  1. [22]
    In the matter of Re: Protech Personnel Pty Ltd[3] Vice-President O'Connor outlined matters to be considered by the Commission in determining whether to grant an exemption in accordance with s 113 of the AD Act –

Section 113 of the ADA confers a broad and unfettered discretion upon the Tribunal to grant an exemption from the operation of a specific provision of the Act. However, over time various considerations have been identified to assist the Tribunal in exercising its discretion to ensure that exemptions are only granted in appropriate circumstances. Accordingly, the following matters may be considered:

  1. Whether the exemption is necessary;
  2. Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;
  3. Whether the exemption is in the community interest;
  4. Whether any other persons or bodies other than the applicant support the application;
  5. Whether it is reasonable and appropriate to grant the exemption; and
  6. The effect of not granting the exemption.
  1. [23]
    I will consider the above factors in turn below. The proposed exemption will allow the Applicant to discriminate against applicants for the role on the basis of race. Consequently, an exemption will be necessary to render the conduct lawful.
  1. [24]
    The Applicant submits that that requirement to be an Indigenous person is a genuine occupational requirement for the role and accordingly the exemption in s 25 of the AD Act applies. Sections 24 and 25 of the AD Act provide that it is not unlawful to discriminate by imposing a genuine occupational requirement for a position.
  1. [25]
    The requirements for the role include cultural competency, effective communication with Indigenous communities, engaging effectively and building trust with Indigenous communities, and serving as a representative and advocate for Indigenous issues within the Applicant.
  1. [26]
    I note the QHRC submission that although the exemption in s 25 would appear to apply, an exemption granted by this Commission would provide certainty to the Applicant and minimise the risk of defending a complaint of race discrimination. I agree with that submission.

Section 113 considerations

  1. [27]
    There is no material before the Commission indicating that there are any non‑discriminatory ways of achieving the objects or purposes for which the application is sought.
  1. [28]
    It is in the community interest to ensure that an Indigenous person be appointed to the role so as to ensure that the requirements of the role can be fulfilled appropriately and that the interests of Indigenous people are protected through the native title process.
  1. [29]
    It is noted that the QHRC supports an exemption in the terms outlined in the application and there is no material before the Commission indicating that the granting of the exemption is opposed by other persons or bodies. 
  1. [30]
    A failure to grant the exemption will result in the Applicant potentially contravening the AD Act should they proceed with a recruitment process that would discriminate on the basis of race.
  1. [31]
    As submitted by the Applicant, the culturally sensitive nature of the role and need for deep understanding and effective communication with Indigenous Australians necessitates that the person filling this position is of Aboriginal and Torres Strait Islander descent. I am satisfied that it is reasonable and appropriate to grant the exemption.

Application of the Human Rights Act

  1. [32]
    Section 48 of the HR Act must also be considered when determining the application of s 113 of the AD Act.
  1. [33]
    Section 48(1) of the HR Act does not authorise an interpretation of statutory provisions which is inconsistent with their purpose, rather, the provisions must be interpreted to the extent possible that is consistent with their purpose, in a way that is "compatible with human rights."[4]
  1. [34]
    The human rights that may be affected by granting the exemption sought are outlined in s 15 of the HR Act, which includes the rights to equality and to equal protection of the law without discrimination.
  1. [35]
    Section 15(5) provides that measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination. I accept the QHRC's submissions that whilst Indigenous people are disadvantaged by discrimination, the proposed exemption could not reasonably be considered as a measure to assist indigenous persons disadvantaged by such discrimination. Accordingly, s 15(5) does not apply to this exemption application.
  1. [36]
    Section 13 of the HR Act must be considered in order to determine if the limitation is reasonable and justifiable.
  1. [37]
    The effect of the exemption sought is that the Applicant would be permitted to restrict employment for the role to Indigenous applicants only, thereby limiting the rights to equality and equal protection of the law without discrimination.
  1. [38]
    In Re: Jet Aviation Australia Pty Ltd & Jet Aviation Australia (Qld) Pty Ltd[5] (‘Re: Jet Aviation Australia’), Deputy President Hartigan considered these human rights, stating -

In previous decisions, I have considered the equivalent right in the Victorian Charter, which was considered in Lifestyle Communities Ltd (No 3) (Anti-Discrimination) ('Lifestyle Communities') as follows:

Equality before the law is the principle of the general application of the law and the equal treatment of all persons who come before the law, whether that is before a court or tribunal applying the law or before someone administering the law. It is directed to the application and administration of the law, not to the content of the law. Equality before the law is procedural, not substantive, in character. It gives no entitlement to laws of a particular content. It is a principle of universal application. Unlike the other components of s 8(3), it is not limited to unequal treatment that constitutes discrimination. Equality before the law proscribes arbitrary treatment, ie treatment devoid of objective justification, in the application and administration of the law.

The human right to equality before the law requires the tribunal to apply and administer the laws within its responsibility equally towards every person. In doing so it must not treat people arbitrarily (without objective justification).

The human right to equal protection of the law without and against discrimination expresses the fundamental value of substantive equality in the content and operation of the law. It protects the interests that all people have, as of right, in being equally protected by the law from discrimination, including protection from laws that are discriminatory in nature.

  1. [39]
    Deputy President Hartigan proceeded to note in Re: Jet Aviation Australia that in Lifestyle Communities Ltd (No 3) it was considered that a common feature of exemption applications is that there is no particular 'victim' of the intended discrimination and that it was recognised that such applications are usually not opposed by the relevant human rights and equal opportunity commission.[6] That is also the case in this application.
  1. [40]
    In considering whether the limitation on human rights is reasonable and justifiable, s 13(2)(b) of the HR Act provides that the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom, is a matter that must be considered.
  1. [41]
    The purpose of the limitation is to ensure that an Indigenous person is employed in the role to ensure that the interests of indigenous people and communities are protected through the Native Title process.
  1. [42]
    I am satisfied that the limitation sought will help achieve the purpose of ensuring that an Indigenous person is employed and can therefore fulfill the requirements of the role. The limitation is consistent with the promotion of human dignity, equality, and freedom from discrimination and provides a reasonable means by which the purpose will be achieved.
  1. [43]
    On the material before the Commission, there does not appear to be a less restrictive and reasonably available way to achieve the purpose of the exemption.
  1. [44]
    In Lifestyle Communities Ltd (No 3)[7] the Tribunal held that the purpose of the right to recognition and equality before the law, specifically the right to equal protection of the law without discrimination and the right to equal and effective protection against discrimination, is to protect the values of substantive equality, universal humanity, autonomy and worth of the individual, and their protection for personal and social development.
  1. [45]
    I am satisfied that the purpose of the exemption in these circumstances is of sufficient importance that it will assist with the purpose of ensuring that the role is filled by an Indigenous person who can fulfill the essential requirements of the role.  The human rights affected are limited in scope and, on balance, the limitation is proportionate to achieving the stated purpose.
  1. [46]
    I am satisfied that the limitation on human rights in this matter is reasonable and justifiable.

Conclusion

  1. [47]
    The Applicant did not specify the provisions in the AD Act from which the exemption is sought. As noted by the QHRC, an exemption of this nature would typically be granted from the operation of sections 14, 15, 15A, 124 and 127 of the AD Act in respect of the attribute of race in s 7(g). The exemption would typically apply in respect of actions or omissions relating to the advertising, recruitment, selection, appointment, and employment in the position. 
  1. [48]
    Section 113(6)(c) of the AD Act provides that an exemption is to be granted for a specified period of not more than 5 years.
  1. [49]
    In the absence of any information indicating a lesser term is appropriate, the exemption will be granted for a period of 5 years from the date of the order.
  1. [50]
    For the foregoing reasons, I grant the application for exemption.

Order

  1. [51]
    I make the following Orders:
  1. The Applicant is exempt from the operation of s 14, s 15, s 15A, s 124, and s 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(g) of the Anti-Discrimination Act 1991 (Qld).
  1. The exemption applies only in respect of actions or omissions in relation to the advertising, recruitment, selection, appointment, and employment of a First Nations Engagement Officer.
  1. The exemption shall apply for a period of five years from the date of these orders.

Footnotes

[1][2020] QIRC 194.

[2]Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52, 9.

[3][2019] QIRC 175, 9.

[4]The Australian Institute for Progress Ltd v The Electoral Commission of Queensland [2020] QSC 54, 117.

[5][2024] QIRC 133, 59.

[6]Re: Jet Aviation Australia Pty Ltd & Jet Aviation Australia (Qld) Pty Ltd [2024] QIRC 133

[7]Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 [312]

Close

Editorial Notes

  • Published Case Name:

    Re: North Queensland Land Council Native Title Representative Body Aboriginal Corporation

  • Shortened Case Name:

    Re: North Queensland Land Council Native Title Representative Body Aboriginal Corporation

  • MNC:

    [2024] QIRC 221

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    06 Sep 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52
2 citations
Jump To
Cite 1 - [2018] QIRC 52
Cite 2 - [2018] QIRC 52
Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869
1 citation
Jump To
Cite 1 - [2009] VCAT 1869
Re Protech Personnel Pty Ltd [2019] QIRC 175
2 citations
Jump To
Cite 1 - [2019] QIRC 175
Cite 2 - [2019] QIRC 175
Re: Ipswich City Council [2020] QIRC 194
2 citations
Jump To
Cite 1 - [2020] QIRC 194
Cite 2 - [2020] QIRC 194
Re: Jet Aviation Australia Pty Ltd & Jet Aviation Australia (Qld) Pty Ltd [2024] QIRC 133
3 citations
Jump To
Cite 1 - [2024] QIRC 133
Cite 2 - [2024] QIRC 133
Cite 3 - [2024] QIRC 133
The Australian Institute for Progress Ltd v The Electoral Commission of Queensland(2020) 4 QR 31; [2020] QSC 54
2 citations
Jump To
Cite 1 - [2020] QSC 54
Cite 2 - [2020] QSC 54

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.