AUSTRALIAN HOUSING AND URBAN RESEARCH INSTITUTE LIMITED
[2005] WASAT 148
•7 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: AUSTRALIAN HOUSING AND URBAN RESEARCH INSTITUTE LIMITED [2005] WASAT 148
MEMBER: MS J TOOHEY (SENIOR MEMBER)
HEARD: ON THE PAPERS
DELIVERED : 7 JULY 2005
FILE NO/S: EOT 51 of 2004
BETWEEN: AUSTRALIAN HOUSING AND URBAN RESEARCH INSTITUTE LIMITED
Applicant
Catchwords:
Aboriginal and Torres Strait Islander Equal opportunity Exemption Indigenous Housing and urban research Scholarships - Tertiary institution
Legislation:
Equal Opportunity Act 1984 (WA), s 36, s 135
Equal Opportunity Act 1995 (VIC)
Equal Opportunity Regulations 1986 (WA), reg 24
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
The application is granted
Category: B
Representation:
Counsel:
Applicant: N/A
Solicitors:
Applicant: N/A
Case(s) referred to in decision(s):
Application for exemption pursuant to s 135 of the Equal Opportunity Act 1984 (WA
City of Brunswick; Re application for exemption from provisions of the Equal Opportunity Act 1984 (1992) EOC 92-450
In the matter of an application for exemption by the National Australia Bank Limited (1989) EOC 92-248
Minister for Education and Commissioner for Equal Opportunity (1987) EOC 92-198
RMIT – Exemption [2000] VCAT 409
Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782
Case(s) also cited:
Nil
MS J TOOHEY (SENIOR MEMBER):
REASONS FOR DECISION
Summary
In these proceedings the Tribunal was asked to grant an exemption from provisions in the Equal Opportunity Act 1984 (WA) which make discrimination on the ground of race unlawful. The exemption was sought to allow the applicant to offer scholarships to indigenous students to encourage them into the field of housing and urban research. The Tribunal found that the exemption would further the objects of the Act by helping to redress the lack of indigenous people in the field of social science research and granted the exemption.
Background
This is an application by the Australian Housing and Urban Research Institute Limited (AHURI) for an exemption from s 36 of the Equal Opportunity Act1984 (WA) ("the Act") which makes it unlawful to discriminate on the ground of race.
AHURI seeks the exemption so that it can advertise scholarships for indigenous students to encourage them into the fields of housing and urban research.
The application was lodged with the Equal Opportunity Tribunal on 26 October 2004. On 10 November 2004 and 22 December 2004 preliminary hearings in respect of procedural matters and the evidence required of AHURI were conducted by that Tribunal.
On 1 January 2005 the functions of the Equal Opportunity Tribunal were assumed by the State Administrative Tribunal by virtue of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA).
Evidence before the Tribunal
The application by AHURI was supported by an affidavit by Mr Christian Geyer, Company Secretary for AHURI, sworn 22 October 2004. Further information in support of the application was received by this Tribunal on 17 January 2005.
Notice of the application, as required by s 135(3) of the Act, was given in an advertisement in The West Australian newspaper on 3 December 2004. The notice invited any person wishing to appear as a party to the application to notify the Registrar of the Equal Opportunity Tribunal setting out the nature of their interest in the proceedings. No response to the notice was received.
By virtue of reg 24 of the Equal Opportunity Regulations 1986 (WA), the Commissioner for Equal Opportunity is a party to an application for exemption unless she lodges an affidavit setting out the reasons why she does not wish to be a party to the application.
By affidavit dated 12 November 2004, the Commissioner for Equal Opportunity notified the Equal Opportunity Tribunal that she did not wish to be a party to the application because, she stated, on its face it seemed to her to fall within the objects of the Act being "the elimination of all forms of discrimination".
This Tribunal is satisfied that persons who might have an interest in the application have had an opportunity to apply to be joined as parties. It is also satisfied that sufficient relevant information has been provided by AHURI by way of affidavit, submission and supporting information (referred to below), as well as in oral evidence before the Equal Opportunity Tribunal at the preliminary hearing on 10 November 2004, the transcript of which is before this Tribunal, to enable it to conduct this proceeding on the basis of the documents before it: s 60(2) State Administrative Tribunal Act2004 (WA). The application has therefore been determined on the basis of the documents before this Tribunal.
AHURI's submission
According to its written submission dated 14 January 2005, AHURI is a national organisation comprising seven research centres located in universities around Australia, including in Western Australia as a joint venture between Murdoch University and Curtin University of Technology. The research centres submit proposals for, and conduct research, while AHURI is responsible for the day‑to‑day management of the institute and the research program.
AHURI describes its mission as being "to make a real difference to housing and related urban outcomes throughout Australia by the creation and dissemination of knowledge in housing markets, housing policy and programs, and the urban environment in cities, town and regions". It funds and promotes "high quality, independent research into current issues in housing and urban development. It aims to inform the policy decision making of governments, industry and the community sector and to stimulate debate on these issues".
AHURI is funded from Commonwealth, State and Territory government grants, contributions from the participating research centres, and commercial research. It is governed by a board of directors which includes independent directors and representatives of governments and universities.
The research program invests $2.6 million annually in housing and urban policy research through a range of activities including "research capacity building". This involves various collaborative research ventures as well as a postgraduate scholarship program, post‑doctoral fellowships and an annual postgraduate symposium.
Indigenous housing research
In May 2001 the Commonwealth, State and Territory Housing Ministers adopted a new policy "Building a better Future: Indigenous Housing to 2010", the objectives of which have given rise to a number of "key information and research needs". AHURI states that, in the conduct of the research "it is expected that the research process and project deliverables will explicitly and critically reflect upon the research methods in an attempt to continuously improve research efforts in accordance with Recommendation 51 of the Royal Commission into Aboriginal Deaths in Custody".
AHURI commits up to $200 000 each year specifically to indigenous research issues. Projects supported in Western Australia through the Research Centre at the University of Western Australia and Murdoch University include "investigating appropriate evaluation methods/indicators for indigenous housing; indigenous access to mainstream public and community housing; indigenous housing/governance; and lessons from remote communities in WA and NT".
The proposed indigenous scholarship program
AHURI's scholarship program aims to "attract new students to housing and urban studies, to develop the quantity and quality of research talent in the AHURI network and to continue to improve the standard of the AHURI research program". According to its submission, every AHURI Research Centre has each year access to a two‑year masters or three‑year doctorate of philosophy "top‑up" scholarship funded at $7000 each year enabling students to supplement funds available under university-funded scholarships. AHURI scholarships are awarded according to published guidelines.
AHURI states in its written submission that "there has been growing awareness and commitment by non‑indigenous research institutions undertaking social research to working better with indigenous people and communities". However, it has been concerned for some time about "the capacity to undertake appropriate research" with those people and communities. "It is concerned that indigenous communities are increasingly demanding more from researchers in terms of outcomes for individual and communities and reporting back" but that indigenous researchers, like indigenous professionals in other fields such as law and medicine, are rare.
AHURI submits that it has a role in "supporting indigenous research students, academics and practitioners interested in further [sic] their research skills and careers". It therefore wishes to offer scholarships aimed specifically at encouraging indigenous students into the housing and urban research field as a means of redressing the lack of indigenous people within the social science research profession. The program aims to "create positive role models for young Aboriginal and Torres Strait Islanders within the community and relevant tertiary institutions thereby performing a leadership role in a university in the promotion of cultural awareness and social justice for Australia's indigenous people".
The proposed scholarship program is designed to "enhance the admission, participation and retention of Aboriginal and Torres Strait Islander people within the housing and urban research disciplines so that more have opportunities to participate in the higher levels of education". It is proposed that scholarships be offered to an honours degree indigenous candidate "of exceptional promise" to undertake further study within the relevant fields. The program will also encourage graduates "to return home to communities where they will contribute to improving a range of housing and social justice issues".
According to the AHURI submission, the following indigenous research scholarships exist in Western Australian tertiary institutions:
•Murdoch University: The Aboriginal and Torres Strait Islander Scholarship;
•Curtin University of Technology: Health Promotion Indigenous Research Training Scholarship (one of six offered to indigenous students); and
•University of Notre Dame: Australian Indigenous Persons Scholarship, one of several across the Fremantle and Broome campuses.
AHURI seeks to have the exemption granted for a period of five years being the maximum period available under the Act. It proposes to offer scholarships each year for that period.
The law
Section 135 of the Act provides that the Tribunal may grant an exemption from the operation of a specified provision in the Act. The Tribunal must cause notice of the application to be given by newspaper advertisement or otherwise, in such form and manner as the Tribunal may direct. An exemption may be granted subject to such terms and conditions as the Tribunal orders; it may be varied on the application of the person to whom it is granted, or at the instance of the Tribunal; it may be expressed to apply only to such circumstances, or in relation to such activities, as are specified in the order; and it may be granted for a period not exceeding five years: s 135(1), s 135(3) and s 135(6)).
The Act itself offers no further guidance to the exercise of the exemption power. However, the principles to be applied have been considered in a number of cases.
Firstly, the exemption must be necessary. Unless the conduct sought to be exempted would constitute discrimination within the meaning of the Act, an exemption is not necessary, and the matter need be taken no further: Stevens v Fernwood Fitness Centres Pty Ltd(1996) EOC 92-782.
Decisions about applications for exemptions have been made in a number of courts and tribunals. According to their facts, applications have been refused where there was another means of achieving the same end without offending the legislation: City of Brunswick; Re application for exemption from provisions of the Equal Opportunity Act 1984 (1992) EOC 92-450; and where the exemption had the appearance of promoting recognition of the achievements of a particular ethnic group but where financial gain was found to be its main purpose: In the matter of an application for exemption by the National Australia Bank Limited (1989) EOC 92-248.
Exemptions have been granted in the following circumstances:
In Minister for Education and Commissioner for Equal Opportunity (1987) EOC 92-198, an exemption was granted to allow provisions favouring the promotion of women. There was substantial evidence before the Western Australian Equal Opportunity Tribunal that, despite various measures to improve their prospects of promotion, women teachers continued to be seriously disadvantaged in comparison with men. The applicant argued that the exemption was necessary to redress imbalances based on sex that would persist were the exemption not granted. The Tribunal found that it was to the benefit of all students, and the community generally, that women hold, and be seen to hold, positions of authority within the Education Department. The Tribunal took into account, and found it significant, that the Commissioner for Equal Opportunity supported the exemption.
In the matter of an application for exemption pursuant to s 135 of the Equal Opportunity Act 1984 (WA), unreported; Equal Opportunity Tribunal of WA; 10 November 2004 the Western Australian Equal Opportunity Tribunal granted an exemption where the applicant proposed to offer self‑defence classes for women only, designed around special techniques for women, and so they could train without the rigorous physical contact with men which some women preferred to avoid. The Tribunal found that there was no logical or common sense reason why men should be admitted to the classes; there were many similar facilities for men; and women as a class are particularly susceptible to attack by men.
In RMIT – Exemption [2000] VCAT 409, an exemption was granted to enable the Royal Melbourne Institute of Technology to offer two out of ten post‑graduate scholarships for women only and to state in the advertisements for those positions that women were encouraged to apply. The Victorian Civil and Administrative Tribunal was satisfied that the exemption would promote one of the objectives of the Victorian Equal Opportunity Act 1995 (VIC) by promoting "the acceptance and recognition of everyone's rights to equality of opportunity" (per Deputy President McKenzie at [30]).
Findings and reasons
It is not necessary here to consider the reach and scope of the exemption power: courts and tribunals have consistently granted an exemption where the purpose of the act that would otherwise be unlawful is, in effect, to further the objects of equal opportunity legislation. The Tribunal is satisfied that the purpose of the acts which the applicant seeks to have exempted is to redress the effects of past discrimination and promote equality of opportunity.
The Tribunal is satisfied that the proposal by AHURI to offer a scholarship program to indigenous students, thereby in effect discriminating against others on the ground of their race, would, in the absence of an exemption, amount to unlawful discrimination.
AHURI has provided ample evidence, which the Tribunal accepts, that its scholarship program aims to redress the lack of indigenous people within the social science research profession by creating positive role models for young Aboriginal and Torres Strait Islanders. In doing so, it aims to offer leadership in promoting cultural awareness and social justice for indigenous Australians.
The Tribunal is satisfied that the proposed scholarship program has as its aim the promotion of equality of opportunity for persons who would otherwise face disadvantage on the ground of race. It has taken into account the position taken by the Commissioner for Equal Opportunity that she does not wish to be a party to the application because it seemed to her to fall within the objects of the Act being the elimination of all forms of discrimination. The Tribunal is satisfied that the exemption will further the objects of the Act.
The Tribunal is satisfied that the exemption should be granted and remain in force for the period of five years sought by the applicant.
Decision
The applicant is granted an exemption from the operation of s 36 of the Equal Opportunity Act 1984 (WA) for a period of five years from the date of this order for the purpose of advertising scholarships for indigenous students to encourage them into the fields of housing and urban research.
I certify that this and the preceding 36 paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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