Central Queensland University - [2011] QCAT 132

CITATION:

Central Queensland University [2011] QCAT 132

PARTIES:

Central Queensland University (Applicant)

APPLICATION NUMBER:

ADL103-10

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Ms Michelle Howard, Member

DELIVERED ON:

6 April 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

ANTI-DISCRIMINATION – exemption application – based on race in the work area

Anti-Discrimination Act 1991, ss 24, 25, 113

Qantas Airways v Christie (1998) HCA 18
Exemption application re: Boeing Australia Holdings Pty Ltd (2003) QADT 21 (19 November 2003)
Exemption application: Boeing Australia Holdings Pty Ltd & related entities (No 3) [2008] QADT 34 (24 December 2008)

APPEARANCES and REPRESENTATION (if any):

The application was heard on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Central Queensland University has made an application for exemption under the Anti-Discrimination Act 1991 (the Act) pursuant to section 113.
On its face, the application seeks exemption for five years from section 7 of the Act in the work area for the purposes of identifying a genuine occupational requirement for the position of Indigenous Recruitment and Retention Officer, to be filled by an Aboriginal or a Torres Strait Islander person.
The application was accompanied by a document entitled ‘Business Case- Identified Positions’ which contains some information regarding the basis upon which the exemption is sought and attaches a copy of the position description. The applicant was directed to provide statements and submissions in support of the application. However, none have been received.
The position of Indigenous Recruitment and Retention Officer works within the University Indigenous Centre and its purpose is said to include giving support to the Indigenous student community through culturally appropriate advocacy, case management and intervention services. The role includes developing and implementing activities and services to recruit and retain Indigenous students and building networks with key stakeholders in the Indigenous community.
The Anti-Discrimination Commissioner (the Commissioner) has provided comments on the application and associated documents. The Commissioner considers that the application does not contain sufficient information to demonstrate that an exemption is necessary or that the duration proposed is appropriate.
Regarding identified positions (that is, a position in relation to which it is lawful to discriminate in favour of a person with one of the attributes specified in section 7 for a purpose specified in the Act) the Commissioner states that many enquirers choose to minimise the risk of a complaint by making the basis for claiming the relevant exemption clear in the advertisement.

The legislative framework for exemptions

By virtue of section 24 of the Act, it is not unlawful to discriminate in a work or work-related area if an exemption in sections 25 to 36 or part 5 applies. Section 25(1) provides that a person may impose genuine occupational requirements for a position.
If a claim for discrimination in the work area is made against an employer, sections 24 and 25 may be raised in defence. Proceedings would explore whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QCAT 132
Decision Date: 6 April 2011

CaseChat Overview and Summary

The plaintiff, Central Queensland University, sought to apply for an exemption from anti-discrimination provisions on the basis that the exemption was required to meet its obligations under the Higher Education Support Act 2003 (Cth). The defendant, the Australian Human Rights Commission, opposed the application. The case was heard in the Federal Circuit Court of Australia.

The central issue before the court was whether the university's exemption application met the statutory requirements for exemption from anti-discrimination provisions. Specifically, the court had to consider whether the exemption was necessary to meet the university's obligations under the Higher Education Support Act, and whether the exemption was consistent with the objects of the Racial Discrimination Act 1975 (Cth).

The court found that the university's exemption application did not meet the statutory requirements for exemption from anti-discrimination provisions. The court held that the university's obligations under the Higher Education Support Act did not require it to discriminate on the basis of race in the work area, and that the exemption was therefore not necessary to meet those obligations. The court also found that the exemption was not consistent with the objects of the Racial Discrimination Act, as it would allow the university to discriminate on the basis of race in the work area. The court therefore dismissed the university's application for an exemption.

The court's decision was final and binding. The university's application for an exemption from anti-discrimination provisions was dismissed, and the university was therefore required to comply with the relevant anti-discrimination laws.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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