ABORIGINAL LEGAL RIGHTS MOVEMENT (INC) - [2011] SAEOT 2

Equal Opportunity Tribunal
(Civil)
In the Matter of AN APPLICATION FOR EXEMPTION UNDER THE EQUAL OPPORTUNITY ACT 1984
ABORIGINAL LEGAL RIGHTS MOVEMENT (INC)
[2011] SAEOT 2
Judgment of His Honour Judge Costello, Member Ms A Bachmann and Member Ms H Jasinski (ex tempore)
10 May 2011
DISCRIMINATION LAW
Application for exemption on grounds of race - applicant sought authorisation to permit it to restrict its offer of employment for the position of its CEO to Aboriginal or Torres Strait Islander persons. Discussion of grounds for exemption. Application granted.
Equal Opportunity Act 1984 (SA) s 52 and s 92, referred to.
Pulteney Grammar School v Equal Opportunity Tribunal & Ors (2007) SASC 308, discussed.

ABORIGINAL LEGAL RIGHTS MOVEMENT (INC)
[2011] SAEOT 2

In this matter Aboriginal Legal Rights Movement (Inc) (ALRM) has applied, pursuant to the provisions of s 92 of the Equal Opportunity Act 1994 (SA) (“the Act”), for an exemption from the provisions of s 52 of the Act. It seeks an authorisation to enable it to restrict its offer of employment (for the position of Chief Executive Officer (“CEO”) of the ALRM) to suitably qualified Aboriginal or Torres Strait Islander persons. If not exempted this would constitute a breach of the Act.
The Acting Commissioner for Equal Opportunity has indicated by letter dated 14 April 2011 that she does not wish to be heard on this application and has not appeared.
Mr Bourne, of counsel, appeared on behalf of Mr Benzier, the current General Manager of the Aboriginal Legal Rights Movement. Mr Benzier is concerned about the breadth of the exemption sought, and particularly its potential to preclude him from acting in a role which he has occupied in the past, namely, as acting CEO when the CEO is absent. We will have more to say about this later.
S 52 of the Act relevantly provides as follows:
(1)It is unlawful for an employer to discriminate against a person on the grounds of race in determining, or in the course of determining, who should be offered employment.
S 92 of the Act, relevantly provides, as follows:
(1)The Tribunal may, on application under this section, grant exemptions from a provision of this Act in relation to -
(a)     a person, or class of persons; or
(b)     an activity, or class of activity; or
(c)     circumstances of a specified nature.
(2)     An exemption under this section -
(a)     may be granted unconditionally or on conditions;
(b)     may be revoked by the Tribunal on breach of a condition;
(c)     subject to revocation, remains in force for a period, not exceeding three years, determined by the Tribunal, but may be renewed from time to time for a further period, not exceeding three years, determined by the Tribunal.
…
(6)     In determining an application under this section, the Tribunal may—
(a)     have regard (where relevant) to the desirability of certain discriminatory actions being permitted for the purpose of redressing the effect of past discrimination; and
(b)     have regard to other factors that the Tribunal considers relevant.
In support of its application ALRM relied upon an Affidavit sworn by its current CEO, Mr Gillespie, which, in turn, relied upon the grounds (for exemption) set out in its amended application for exemption filed on 3 March 2011. Those grounds are as follows:
(1)The Aboriginal Legal Rights Movement (ALRM) is an independent Aboriginal community controlled legal aid organisation governed by an all Aboriginal Board. ALRM was incorporated as an Association in 1973. ALRM asserts that for the purposes of article 2(1)(e) of the Convention on the Elimination of all forms of Racial Discrimination (CERD) that it is a multiracial organisation or Movement. In addition, ALRM asserts that the continued funding and operation of ALRM constitutes action by the Australian State in the nature of a Special Measure, pursuant to Articles 2(2) and 1(4) of CERD, in order to ensure the adequate development and protection of Aboriginal and Torres Strait Islander people in South Australia through the protection of their legal rights and interests.
(2)ALRM promotes legal, cultural, economic, political and social rights for Aboriginal and Torres Strait Islander peoples as dispossessed peoples within South Australia.
(3)The Constitution of ALRM is annexed as exhibit ‘A’ to the Affidavit of Neil E. Gillespie filed in this matter. In clause 6, the central object of the ALRM is stated to be, to assist Aboriginal persons to relieve their poverty, the consequences of their dispossession and social misfortune and to assist further in removing destitution and helplessness amongst Aboriginal people through the use of the legal system of the State of South Australia and the Commonwealth of Australia.
(4)ALRM recognises that the low participation rate of Aboriginal people in the general workforce requires remedial action and accordingly, ALRM has a policy of actively encouraging the employment of Aboriginal people into all positions.
(5) Being an Aboriginal organisation intended to provide legal services to Aboriginal people, and to remedy the disadvantage mentioned in paragraphs 2 and 3 hereof ALRM relies upon its Aboriginal employees to provide a culturally sensitive environment for Aboriginal clients to interact with non-Aboriginal solicitors and other employed officers and volunteers. It is appropriate in the circumstances that the Chief Executive, to whom all employees are responsible, be an Aboriginal person.
(6)ALRM requires the employment of a Chief Executive Officer who is able to understand the wishes of the Aboriginal community who are members of the association, and to put those wishes into effect through the activities of the organisation and through the proper implementation of the policy of the ALRM as decided by the Board. It is also the policy of the Board that the Chief Executive who reports to the Board on the day to day operation and administration of the ALRM be an Aboriginal person. ALRM Constitution clause 19, annexed to the Affidavit of Mr Gillespie refers to the relevant powers and duties of the Chief Executive Officer with respect to the Board. The effective operation of ALRM as an Aboriginal and Torres Strait Islander Legal Service requires that the position of Chief Executive Officer be filled by an Aboriginal person.
(7)The position of Chief Executive Officer of ALRM has been filled, only by Aboriginal persons since at least the year 1984.
As we have said, s 92(6) permits the Tribunal to (a) have regard, where relevant, to the desirability of certain discriminatory actions being permitted for the purpose of redressing the effect of past discrimination, and (b) other factors it considers relevant.
In Pulteney Grammar School v Equal Opportunity Tribunal & Ors (2007) SASC 308, White J said at paragraph 14:
The grounds for an exemption will usually be found in one or more of three circumstances: the exemption is desirable, if not necessary, to achieve a purpose of the EOA; the general prohibition would be unreasonably harsh or burdensome in the applicant’s particular circumstances; or there is some wider public interest (perhaps to be found in other legislation) which the grant of the exemption will serve. The redress of the effects of past discrimination is an example of the first purpose. I do not intend by this to state exhaustively the circumstances in which the grant of an exemption maybe appropriate. The circumstances of particular cases may reveal other occasions in which the grant of an exemption will be appropriate. It is to be expected, however, that an applicant for an exemption will need to establish more than that compliance with the relevant prohibition is inconvenient or irksome.
In his submissions, Mr Charles, general counsel for the ALRM, submitted that the grounds relied upon effectively encompassed the express purpose of the Act, namely: “An Act to promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, race, disability, age or various other grounds; to facilitate the participation of citizens in the economic and social life of the community; and to deal with other related matters.”
We are satisfied that compliance with the relevant prohibition is more than merely inconvenient or irksome and that an exemption is necessary to achieve the broad purpose of the Act referred to above.
We are therefore prepared to grant the exemption sought, but accept that, in its current form, it could potentially fetter the ability of the General Manager to act in the position of CEO during the absence of the CEO, a situation that we regard as undesirable.
We therefore order that pursuant to s 92 of the Equal Opportunity Act, the ALRM is exempted from the provisions of s 52 of the Act so as to authorise it to offer employment, for the substantive (but not acting) position of CEO of the ALRM (when the position of CEO falls to be filled), only to suitably qualified Aboriginal or Torres Strait Islander persons.
We further order that the period of exemption is for a period of three years from 10 May 2011.