McGhie v Aboriginal Legal Service (NSW/ACT) Limited
[2023] ACAT 27
•4 May 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
McGHIE v ABORIGINAL LEGAL SERVICE (NSW/ACT) LIMITED (Discrimination) [2023] ACAT 27
DT 59/2022
Catchwords: DISCRIMINATION – COVID-19 vaccination status and employment – where complaint was referred to the ACAT under the Human Rights Commission Act 2005 – whether the requirement to be vaccinated set by the respondent directly discriminated against the applicant on the basis of his genetic information and his political conviction and indirectly discriminated against him on the basis of his race – application dismissed
Legislation cited: Discrimination Act 1991 ss 7, 8, 10
Human Rights Commission Act 2005 s 53
Cases cited:Australian Capital Territory v Phillips [2021] ACAT 122
Bell & Robert De Castella’s Smartstart for Kids Limited [2014] ACAT 9
Duggan v South Yara Constructions Pty Ltd (1987) EOC 92-220
Ezekiel-Hart v Reis & Anor [2017] ACAT 3
Harrison v Commissioner for Social Housing in the ACT and the Minister for Community Services and Minister for Aboriginal and Torres Strait Islander Affairs [2012] ACAT 10
Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50
Kovac v the Australian Croatian Club Limited [2014] ACAT 41
List of
Texts/Papers cited: Aboriginal Legal Service NSW/ACT Ltd, Annual Report 2021-22 < Rees et al, Australian Anti-Discrimination and Equal Opportunity Law (Federation Press, 3rd ed, 2018)
Review of the Discrimination Act 1991 (ACT) [2015] ACTLRAC 3
Rice et al Australian Anti-Discrimination and Equal Opportunity Law 3rd ed.Thurber et al, ‘Risk of serve illness from COVID-19 among Aboriginal and Torres Strait Islander adults: the construct of ‘vulnerable populations’ obscured the root causes of health inequities’ (2021) 45(6) Australian and New Zealand Journal of Public Health 535-674
Tribunal:Presidential Member H Robinson
Member D Lucas
Date of Orders: 4 May 2023
Date of Reasons for Decision: 4 May 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 59/2022
BETWEEN:
CLEVELAND McGHIE
Applicant
AND:
ABORIGINAL LEGAL SERVICE (NSW/ACT)
Respondent
TRIBUNAL:Presidential Member H Robinson
Member D Lucas
DATE:4 May 2023
ORDER
The Tribunal orders that:
The application is dismissed.
………………………………..
Presidential Member H Robinson
For and on behalf of the Tribunal
REASONS FOR DECISION
The applicant, Mr McGhie, is a Wiradjuri man. The respondent, the Aboriginal Legal Service (NSW/ ACT) Limited (ALS), provides legal and related services to Indigenous persons.
On 8 November 2021, the applicant commenced employment with the respondent. His role required, amongst other things, the establishment and maintenance of relationships with the indigenous community, government bodies, and other Aboriginal and Torres Strait Islander stakeholders.
The applicant’s engagement coincided with part of the COVID-19 pandemic and preceded by a few weeks the introduction of measures by ALS to manage the workplace risk presented by the pandemic. These measures included a direction that staff be fully vaccinated with an approved COVID-19 vaccine, and to provide proof of that vaccination by 21 January 2022. The applicant was not vaccinated and did not wish to be vaccinated.
The applicant resigned from his employment on 14 January 2022 with effect from 21 January 2022. The applicant’s resignation was submitted following a direction to work from home until vaccinated. He says that the requirement to be vaccinated directly discriminated against him on the basis of his genetic information and his political conviction. He also says that the process around the introduction of the vaccination requirements, including reliance on an inaccurate legislative basis and the nature of the reaction to his questioning of it, indirectly discriminated against him on the basis of his race.
The application
On 7 January 2022, the applicant submitted to the ACT Human Rights Commission (HRC) alleging discrimination under the Discrimination Act 1991 (Discrimination Act).
Following an unsuccessful conciliation before the HRC, the applicant requested the HRC refer his complaint of unlawful discrimination to the ACT Civil and Administrative Tribunal (Tribunal or ACAT)[1] in accordance with section 53A of the Human Rights Commission Act 2005 (HRC Act).
[1] A reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the members who heard the application.
Where a matter is referred to ACAT under section 53A of the HRC Act, the tribunal’s jurisdiction is derived from that Act, and the matters it may consider are those properly referred by the HRC. Consequently, given the scope of its jurisdiction to decide this matter, the tribunal has not considered claims for breach of Australian Consumer Law, breach of contract, or other grounds that the applicant also raised in these proceedings.
The hearing
The matter was heard on 21 January 2023. At the hearing, the applicant represented himself, and the respondent was represented by Mr Woodbury of Ashurst Solicitors.
The applicant filed a witness statement and written submissions, as well as documentary evidence consisting largely of correspondence between himself and officers of ALS. He gave oral evidence at the hearing and was cross examined.
The respondent filed an outline of submissions and documentary evidence and relied upon the statement of Ms Nadine Miles dated 16 November 2022 (Miles Statement). Ms Miles was the acting CEO of ALS at the time of the relevant events. Ms Miles gave evidence at the hearing and was cross-examined by the applicant.
After the hearing, the Tribunal reserved its decision.
Factual background
The Tribunal’s findings of fact, whether contested or not, are as follows.
Prior to commencing employment with the respondent, the applicant lived with his young family in NSW. In late 2021, he applied for, and was successful in obtaining, the position of “Manager, Justice Programs” with the ALS. The primary objectives of the role were to:
(a)develop and manage ALS justice projects, including bail support;
(b)contribute to ALS policy work;
(c)achieve enhanced community networking and engagement and enhanced government relationships.[2]
[2] Position description, Miles Statement, NM-6
The respondent is a public company limited by guarantee that delivers “free, culturally appropriate legal advice, representation, information and referrals”[3] to members of the Indigenous community and participates in policy development and advocacy.
[3] Aboriginal Legal Service NSW/ACT Ltd, Annual Report 2021-22 < page 6
Approximately one third of the respondent's workforce identify as Indigenous. It has an Aboriginal membership with a board of directors elected by those members. At the time of the events the subject of this proceeding, being late 2021 to early 2022, the acting Chief Executive, Ms Miles, was not an Indigenous employee, although the Deputy Chief Executive Officer was.
In early 2020, the COVID-19 virus began to spread across the world, including into Australia. Ms Miles’ evidence to the Tribunal, which we accept, was that the virus, including the transmissibility, the health risks associated with it and its disruptive effects, were of great concern to the respondent's community, including its staff and clients. Accordingly, the respondent implemented a range of control measures designed to reduce the likelihood of its workforce and clients becoming infected with the virus. These requirements evolved over time.
The respondent had an initial COVID-19 Emergency Response Plan that was effective from 19 March 2020. This was communicated to all staff via email. It subsequently prepared another updated COVID-19 Safety Plan dated 2 June 2020. A COVID-19 Emergency Response Plan was published to all staff on the ALS intranet on 9 September 2021.
The applicant interviewed for the role on 24 September 2021. The applicant was not advised of the existing safety plans. Nonetheless, given the media coverage of the COVID-19 emergency, the applicant could not have been unaware that many employers were making similar arrangements to manage work and risk.
Between 7 and 14 October 2021, all employees of the respondent were invited to participate in a survey in relation to COVID-19 vaccines which covered issues such as the vaccination status of employees and their views on vaccination requirements in the workplace. It included multiple choice questions and free text responses. The survey results strongly favoured vaccination requirements with over 80% of employees indicating that they were concerned about other staff being unvaccinated.
On 19 October 2021, the applicant received his contract from the respondent. The contract and related documentation did not include any information about the survey, the results, or existing or future safety plans.
On 26 October 2021, the respondent emailed all employees explaining its intention to implement a mandatory vaccination requirement and requested feedback from employees, including its Aboriginal and Torres Strait Islander employees. Despite all employees having the opportunity to provide feedback, the respondent received very limited responses. The applicant had still not commenced employment at this time.
On 1 November 2021, the respondent directed all its then employees by email to an intranet document entitled “getting back to the office”. The document was unambiguous in its terms:
All ALS Offices will reopen their doors to the public on Monday 6 December 2021 (subject to any further public health advice and restrictions).
This date is also the ‘time frame’ that we would like to see that all ALS staff have been able to be vaccinated with at least two doses of a government approved COVID vaccine. From 6 December, this is a condition of employment at the ALS in order to keep our colleagues and clients safe. This condition will only be waived in exceptional circumstances.
Also linked was a copy of the “ALS Covid-19 Vaccination Information Sheet” (Information Sheet). This document was also unambiguous in its terms, stating that vaccination was a “condition of employment”. Further:
What if I have a medical exemption?
If medical reasons prevent staff from being vaccinated, those staff will need to provide medical evidence supporting their exemption. If that is the case, we will aim to redeploy those staff to other roles.What if I chose not to be vaccinated?
If staff choose not to be vaccinated, we will discuss with you your reasons for not being vaccinated and whether your reasons mean you might be exempt from this policy. If you are exempt, we will discuss other safety measures we can put in place … If you are not subject to an exemption, we will look at other arrangements which might be put in place for you to do your work. However, you will not be able to continue engaging in client-facing work. In either case, if we are unable to make suitable arrangement and you cannot perform the requirements of your role, we will need to discuss your future employment with ALS.
The respondent did not receive any requests for a medical exemption from any employee at this time.
The applicant commenced work on 8 November 2021. From that date, he could access the respondent’s vaccination policy on the workplace intranet, although it appears he did not do so.
On 17 November 2021, the respondent sent all “new starters” who had commenced after 1 November 2021, including the applicant, a personalised email advising them of the need to be vaccinated and requesting an immunisation certificate and linking to the abovementioned policy. This was, the applicant says, the first time he became aware of the vaccine mandate.
On 18 November 2021, the applicant responded to the email, asking three questions, which may be summarised as:
(a)What are “exceptional circumstances”;
(b)What is the vaccination mandate and its correlation to “ACT Government policies” cited in the email; and
(c)What liability/accountability will ALS accept in relation to illness or sickness from vaccines?
Ms Miles replied on 6 December 2021. In summary:
(a)Exceptional circumstances would be established by evidence of a relevant medical exemption;
(b)the requirement to be fully vaccinated is consistent with ALS’s obligation under the Work Health and Safety Act and was assessed by reference to the Fair Work Ombudsman Tiering system;
(c)if illness or sickness resulted from vaccination, ALS would assist the person to make a workers compensation claim.
The applicant was directed to work at home until vaccinated.
The applicant set out his concerns in a letter of on 7 December 2021, including as follow):
3. I am not sure to what level of understanding, thought or consideration has been had in relation to the experience of past sanctioned coercion, compulsion and enforcement on Aboriginal people, with minimal or no accountability or liability for impacts. What has been shared in relation to workers compensation is not ALS liability and/or accountability. As a new worker I do not have accrued leave entitlements to cover being sick, I have a family and extended family to care and provide for.
Can you confirm that if an ALS client wasn’t vaccinated, we would not be able to represent them? Can you confirm that an ALS employee will not attend and represent an ALS client at district court if that court does not have a vaccination mandate policy?
In my reflection of the provided responses, I feel it has been quite insensitive and dismissive;
• Referring to exceptional circumstances, when it appears there is only one exceptional circumstance (medical exemption) is technically an inadequate response, in my opinion.
• Referring to NSW legislation, when my position is in a different jurisdiction is an inadequate response, in my opinion.
• Referring to the Work Health and Safety Act, regarding reduce risks to others and not providing evidence of considerations to the person concerned (myself) and ways of eliminating risk, is inadequate and equivocal, in my opinion.
• Referring only to the workers compensation as the level of liability/accountability, in my opinion is equivocal and culturally insensitive. In particularly in the context of coercion, compulsion, enforcement being sanctioned on an Aboriginal person. Furthermore mainly referring to government policy, given the past impacts of trauma and oppression inflicted on Aboriginal people as a result of government policies. That of policy that also does not correlate to the jurisdiction I am employed to work in.Are you able to provide further information, adequate responses to my questions above and evidence as requested above for me to consider making an informed decision.
Thank you for adjusting the deadline to give me further time to consider my options. Are you able to provide clear indication to the result of my employment if I am not vaccinated by 21st January 2022. What will mean for my employment.[4]
[4] Errors in original
In an email in response on 8 December 2021, Ms Miles confirmed that, while the applicant was not vaccinated, he would be required to work from home. However, should he not be vaccinated by the deadline, Ms Miles would “be considering whether or not [his] employment in [his] role is able to continue.”
A more comprehensive response was provided by way of letter from Ms Miles on 14 December 2021. In that letter, Ms Miles stated, relevantly, that:
…the decision to require our employees to be fully vaccinated was not taken lightly and was determined following consultation with employees through its survey and a consideration of a range of factors, most relevantly the fact that the Aboriginal community which we serve has one of the lowest rates of vaccination and, correspondingly, one of the highest rates of infection with Covid-19, presenting an unacceptable health risk for both our employees and our clients.
In managing that risk, we took into account the fact that the vast majority of our employees had already elected to be vaccinated or indicated an intention to do so, indicating a high level of support for such a policy.
Whilst I appreciate you raising the matters in your email, you do not raise any particular reason for not being, or intending to be, vaccinated other than a health concern unsupported by any medical evidence.
You then seek to challenge the basis upon, and process by which, the decision was made and associate the requirement to be vaccinated with the "past sanctioned coercion, compulsion and enforcement on Aboriginal people".
To be clear, I was extremely disappointed to read such a provocative and misguided statement, particularly in light of the process untaken by the ALS in determining our policy, which is noted above. So that the position of the ALS is clear, I will set out it out for you:
1. The ALS deals on a daily basis with a vulnerable part of the community with higher than average risk levels to both infection and serious illness relating to Covid-19.
2. The vaccination rates of the Aboriginal community are, generally, lower than the rates of the general community.
3. The requirement to have all staff of ALS vaccinated is a measure taken to minimise the risk to the health our staff, our clients and other persons with whom our staff interact on a regular basis.
4. To confirm, the only exemption is an exemption on medical grounds. Other health grounds supported by medical evidence will, of course, be considered, but an exemption will only be granted where there is clear medical evidence of a serious risk to health arising from vaccination against Covid-19.
5. Regard has been had to reasonable adjustments for employees who may not be able to get vaccinated e.g., work from home, face masks, social distancing. Requests for alternative arrangements will, of course, be considered. However, the ALS considers that the risks to health will generally best be managed by a combination of measures including full vaccination of all staff.
6. Further, the role of most ALS employees, including your own, requires face to face interaction with clients, other members of staff and members of the community. Such interaction is expected to continue to increase as more States and Territories relax restrictions on working from the office or in holding or attending sites outside of the home. For example, in your case, whilst certain aspects of your role can be performed from home, others are likely not to be able to continue and your personal presence would be required: For example:
• Establishing and maintaining relationships with community, government bodies and other stakeholders as well as Aboriginal and Torres Strait Islander leaders
• Representing ALS in meetings, forums, committees, and seminars
• Attending and participating in ALS management and other team meetings
• Travel to interstate and regional locations for work purposes7. As the Manager ACT Justice Projects, my expectation is that you actively and personally engage with staff who report directly to you. Your role to lead, coach and manage staff would necessarily require your attendance at courts and other locations where you would also likely come into close contact with our clients.
The letter went on to set out what Ms Miles considered was the legal basis for the direction, and confirmed that the applicant had been provided with an extension until 21 January 2022 to be fully vaccinated and advised that:
The ALS will consider that matter in light of the information which is available to it at that time. You should be aware however that if you are not able to fulfil the requirements of your role because of your Covid-19 vaccination status, I will be considering whether or not your employment in your role is able to continue.
Ms Miles also asked that the applicant direct further correspondence to Ms Angela Robinson, HR Director.
On the afternoon of 17 December 2021, the applicant sent an email to Ms Robinson reiterating his concerns (per original): “I had never questioned the position or reason as to why the decision was made. I was asking for clarification and evidence on where there has been a case-by-case consideration”, noting that he had previously been informed it was under “NSW policies or the fair work position.” He went on to say that “primarily my reason for not being vaccinated is my personal decision. This is a basic human right, as outlined by the human rights commission”, but also cited health concerns arising from a family history of heart issues. Further:
With the common information present about Aboriginal people being the lowest rate of vaccination and [ALS] being an indigenous organisation. I personally find it ironic and feel that there is not an individual case by-case consideration happening. Other than working with Aboriginal community and clients being considered vulnerable people, I have not been given information on what reasonable adjustments had been considered … only ALS decision to mandate.
He noted the different statutory and policy requirements in the ACT and asked for a clear answer to what “being unvaccinated” would mean for his employment.
He noted that he had brought to the attention of management the previous coercion, compulsion, and enforcement on Indigenous people and the trauma that had caused. He noted that previous responses to him had been dismissive, evasive and equivocal, and again asked for answers to his questions.
Ms Robinson quickly proposed a meeting, which was organised for that afternoon. She agreed to a written follow up. She did not advise the applicant prior to its commencement that another person would be present at the meeting. Ms Robinson agreed to respond in writing on the following Monday.
On the morning of Monday 20 December 2022, the applicant sent his own summary of the meeting to Ms Robinson.[5] In that summary, he acknowledged that his passionate advocacy may be “recorded as aggressive”, but he was frustrated given what he saw as inadequate answers to his questions, and the impact of the present circumstances on his obligations to his family and community.
[5] Email from Mr McGhie to Ms Robinson dated 20 December 2021 at 9:50am
On that evening, Ms Robinson advised the applicant that she was unable to respond that day as she wanted to give the issues “serious thought and consideration.” She promised to respond, “in the New year.” She advised the applicant:
In the meantime, given where things are at you should not make any assumptions as to the position ALS will take concerning the matters you have raised or the matter generally.[6]
[6] Email from Ms Robinson to Mr McGhie dated 20 December 2021 at 5:30pm
The applicant lodged a complaint with the HRC on 7 January 2022.
On 10 January 2022, the applicant emailed Ms Robinson asking when he could expect a response to his queries and “a clear outcome for my employment as of 21 Jan 2022, as I will not be vaccinated.”
The applicant wrote again on 14 January 2022.
Ms Robinson responded, apologising for the delay, and said she would respond on Monday, 17 January 2022.
On 14 January 2022, the applicant resigned his employment, effective 21 January 2022.
From this chronology, a few observations can be made:
(a)At no stage prior to the commencement of the applicant’s employment was he advised of the vaccine mandate. This is despite the fact that the mandate was in place prior to his employment, and various other policies were in place prior to his interview.
(b)Nonetheless, the applicant could not have been unaware that many employers were grappling with similar issues, particularly where they were providing face-to-face services to vulnerable populations. The respondent’s clientele was considered to be a vulnerable population.
(c)The applicant did not raise any particular reason for not being, or intending to be, vaccinated, other than concerns about the vaccine generally. He described his decision as a “personal decision.” He did not apply for a medical exemption.
(d)The applicant had no intention of being vaccinated by the 21 January 2022 deadline.
(e)ALS did not clearly state that the applicant’s employment would be terminated were he not vaccinated, but this was not an unreasonable inference to draw from the language used in the correspondence between himself and Ms Miles and Ms Robinson. At the very least, he would be required to continue to work remotely, with consequences for his capacity to perform his job.
The law
The Discrimination Act prohibits an employer from discriminating against a person, amongst other things:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training or to any other benefit associated with employment; or
(c) by subjecting the employee to any other detriment.[7]
[7] Section 10(2)
“Discrimination” may take one of two forms, direct discrimination and indirect discrimination.[8]
[8] Section 8
Section 8 of the Discrimination Act also states that “…a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes”[9] which include political conviction and genetic information.
[9] Section 8(2)
Where a complaint is made about direct discrimination, section 53CA of the HRC Act provides that there is a rebuttable presumption that discrimination has occurred if the complainant establishes that the treatment or the proposed treatment is unfavourable[10] and presents evidence that the treatment is because of a protected attribute of the protected person.[11] The presumption is rebutted if the person complained about establishes that the treatment is not because of a protected attribute of the other person.[12]
[10] HRC Act section 53CA(2)(a)(i)
[11] HRC Act section 53CA(2)(b)(i)
[12] HRC Act section 53CA(3)(a)
A person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has one or more protected attributes,[13] including political conviction and genetic information. However, a condition or requirement does not give rise to discrimination if it is reasonable in the circumstances.[14] In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be considered include the nature and extent of any resulting disadvantage, the feasibility of overcoming or mitigating the disadvantage, and whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.[15]
[13] Discrimination Act section 8(3)
[14] Discrimination Act section 8(4)
[15] Discrimination Act section 8(5)
Where a complaint is made about indirect discrimination, section 53CA of the HRC Act provides that there is a rebuttable presumption that discrimination has occurred if the complainant establishes that the condition or requirement has, or is likely to have, an effect of disadvantaging the other person and presents evidence that would enable the ACAT to decide, in the absence of any other explanation, that the effect of disadvantaging the other person is because of a protected attribute.[16] The presumption is rebutted if the person complained about establishes that the effect of disadvantaging the other person is not because of that person’s protected attribute.[17] Where a presumption of indirect discrimination is not rebutted, the onus is on the person against whom the complaint is made to establish that the condition or requirement is reasonable in the circumstances, considering the matters referred to in section 8(5) of the Discrimination Act. The onus of establishing an exception or exemption to discrimination is always on the person seeking to rely on it.
[16] HRC Act section 53CA(2)(b)(ii)
[17] HRC Act section 53CA(3)(b)
The Discrimination Act is a complicated, technical piece of legislation, that prohibits certain forms of conduct in prescribed circumstances. It is not designed or intended to address all circumstances of unfavourable or disadvantageous treatment.
The questions before the Tribunal
The questions before the Tribunal are as follows:
(a)Did the respondent directly discriminate against the applicant by treating him unfavourably because of a protected attribute, being his genetic information?
(b)Did the respondent directly discriminate against the applicant by treating him unfavourably because of a protected attribute, being his political conviction?
(c)Did the respondent indirectly discriminate against the applicant by imposing a condition or requirement upon the applicant that had the effect of disadvantaging him because of his race?
Did the respondent directly discriminate against the applicant on the ground of his genetic information?
The applicant claimed direct discrimination based on genetic information – that information being his “vaccination status” or, more precisely, that he was not vaccinated.[18]
[18] Transcript of proceedings, 12 January 2023, page 7, line 43
The applicant cited being required to work from home as the unfavourable action,[19] although that direction itself needs to be viewed in the context of likely further adverse consequences, including potential loss of employment from being unable or unwilling to fulfill the requirements of his position.
[19] Transcript of proceedings, 12 January 2023, page 7, line 37
The Discrimination Act does not define ‘unfavourable treatment’, but the term has been held to encompass acts that cause detriment to the applicant, including acts or omissions which result in some loss, damage or injury. There is no need for a comparator as the test does not ask: “Were you treated less favourably than others?” It asks, “Were you treated unfavourably?”[20] This is an objective test. I don’t understand it to be seriously in issue that the applicant was treated “unfavourably” in the sense that he was subject to the condition that he work remotely, and the employer proposed further restrictions.
[20] Kidman v Casino CanberraLtd ACN 051 204 114 [2020] ACAT 50 at [22]
The real question is whether that unfavourable treatment was “because of his genetic information.” This is a test of causation.
First, however, it is necessary to consider whether the applicant’s “genetic information” played any role in the decision made by ALS.
There is also no definition of ‘genetic information’ in the Discrimination Act.
The ordinary meaning of the word ‘genetic’ is ‘relating or according to genetics’, with ‘genetics’ meaning: the science of heredity, dealing with resemblances and differences of related organisms flowing from the interaction of their genes and the environment. ‘Genes’ are the “unit in inheritance, a sequence of deoxyribonucleic acid (DNA) nucleotides on a chromosome.”[21]
[21] See Macquarie Dictionary
Genetic information, then, is information that pertains to one’s genes.
The provisions protecting “genetic information” were inserted into the Discrimination Act by the Discrimination Amendment Act 2016. The Explanatory Statement to the Amendment Act is not particularly illuminating, but the proposal to introduce and amend the Discrimination Act to include “genetic information” was discussed in by the ACT Law Reform Committee in the Review of the Discrimination Act 1991 (ACT) [2015] ACTLRAC 3 as follows:
There seem to be at least two aspects of genetic testing that have to be addressed. … Another aspect is what can be characterised as ‘genetic information’, when – regardless of whether a person has an actual or presumed genetic predisposition to a disability – a person is discriminated against in circumstances that relate to genetic information. Such circumstances may be an unjustifiable requirement to undergo genetic testing, or an unjustifiable reliance on genetic information that indicates not a disability but the absence or presence of some other personal characteristic.
In other words, the purpose of the provision is to protect people from discrimination based on medical or other conditions that may be affected by their genetics, identified from an analysis of their genetic makeup or assumed based on medical or other conditions that may be genetically based (e.g., chromosomal abnormalities, predilections to cancer or diabetes or heart disease).
The medical consensus is that vaccination, including the use of mRNA vaccines, does not alter a person’s DNA.[22] The applicant presented no evidence that would suggest that a person’s vaccination status could be determined from their genes or would be “genetic information” of the kind protected by this provision.
[22] See for example: >
Accordingly, the applicant has not established that his “genetic information” was a causal basis for any unfavourable treatment by the respondent.
There is insufficient information before the Tribunal to conclude that the onus has shifted to the respondent as per section 53CA of the HRC Act. This means that the claim must rise and fall on whether the applicant had established his case.
The Tribunal is not satisfied that the applicant was treated unfavourably because of his genetic information.
Was the applicant treated unfavourably because of his political conviction?
The applicant alleges that the unfavourable treatment was the direction that he works from home. This direction was given because he was not vaccinated, a decision he made because, he says “due to my political decisions or I guess affiliation, [I] didn’t want to be vaccinated.”[23]
[23] Transcript of proceedings, 12 January 2023, page 7, lines 41-42
Whether being directed to work from home was “unfavourable treatment” was not strongly contested by the respondent. Rather, the question for the Tribunal was whether the treatment was because of the applicant’s “political conviction.” This is a protected attributed under section 7(n) of the Discrimination Act.
The first question for the Tribunal is whether the actions taken were because of a “political conviction” or something else.
The question of what is “political” can be a contentious one. This Tribunal has broadly taken the view that political beliefs must be those “that have a connection to government, or to being governed by the body politic.”[24]or a desire for alteration of the law[25] or “changing or influencing government.”[26] However:
because the definition in the ACT Discrimination Act only encompasses political belief and does not refer to political activity, it is sufficient if a person holds a political belief. The ‘political activity’ test was relied upon extensively in the respondent’s submissions in the present case. Clearly the political belief must be proved, but it is not necessary in the Tribunal’s view that the applicant holds the belief with a view to changing or influencing government, which implies action or activity or pursuing a course of action. It is sufficient if the belief is one that ‘bears on government’ or involves the processes, policies or obligations of government.[27]
[24] Harrison v Commissioner for Social Housing in the ACT and the Minister for Community Services and Minister for Aboriginal and Torres Strait Islander Affairs [2012] ACAT 10 at [52]
[25] See Bell & Robert De Castella’s Smartstart for Kids Limited [2014] ACAT 9
[26] Ezekiel-Hart v Reis & Anor [2017] ACAT 3 at [21], [32] and [80]
[27] Kovac v the Australian Croatian Club Limited [2014] ACAT 41 at [80]
Adopting these definitions, it appears that a political conviction must be a view about government or its power, but need not necessarily extend to trying to, or even wanting to, change the law. It is a provision that protects individual conscience, freedom of thought, and engagement with public discourse about how society should be governed.
Whether a belief is a “political conviction” must be determined objectively, taking into account the nature of the belief and the mores of society.[28] A belief is not political simply because someone says it is.[29] Hence, in Bell & De Castella and Rob De Castella’s Smartstart for Kids Limited, which concerned the appropriate use of the Aboriginal Flag in a sporting event, the Tribunal observed that:
The Aboriginal flag has been recognised as an official flag in Australia since 14 July 1995. Therefore, the belief that the flag should be flown at particular times and in relation to particular occasions is not a political conviction in the sense that it does not concern a desire for alteration of the law or, a need for recognition of the flag by the Australian government. Mr Bell’s personal belief is not a political belief or conviction.[30]
[28] Bell & De Castella and Rob De Castella’s Smartstart for Kids Limited [2013] ACAT 27; Duggan v South Yara Constructions Pty Ltd (1987) EOC 92-220; see Rice et al Australian Anti-Discrimination and Equal Opportunity Law 3rd ed., page 541
[29] Bell & De Castella and Rob De Castella’s Smartstart for Kids Limited [2013] ACAT 27 at [44]
[30] Bell & De Castella and Rob De Castella’s Smartstart for Kids Limited [2013] ACAT 27 at [44]
Turning to the facts of this matter, the issue of how to manage the COVID-19 crisis, including policy issues about vaccination and vaccination mandates were, without doubt, the subject of political discussions. Such discussions were playing out in the public sphere throughout 2021 and 2022. However, just because a subject has a political context does not mean that a person responding to it is acting out a “political conviction.”
The applicant initially described his motivation to question the vaccination mandates as: “Personal belief and my political conviction which is part of my personal belief, so my political conviction which is a makeup of part of my cultural identity” However, under cross examination, this was later clarified to mean a personal view about vaccination:
MR McGHIE: Personal belief and my political conviction which is part of my personal belief, so my political conviction which is a makeup of part of my cultural identity.
MR WOODBURY: Right, okay. When you say your cultural identity, do you mean the cultural identity of all Aboriginal people or just you personally?
MR McGHIE: The cultural identity of me personally.
MR WOODBURY: I see.
MR McGHIE: My ...[not transcribable]... identity, my - not Aboriginal, my - - -
MR WOODBURY: Your personal identity, yes, individual. Is that correct?MR McGHIE: Yes, my political conviction. That is my personal beliefs. That is my culture's history.[31]
[31] Transcript of proceedings, 12 January 2023, page 17, lines 40-43
The correspondence between the applicant and the respondent supports the view that the applicant’s objection to vaccination was less a political conviction than a personal one – albeit one shaped by personal and cultural background. Those personal views led him to question industrial and workplace decisions made by his employer. However, there is nothing in the correspondence that suggests his concerns are with government policy or even ideology. They were not, as articulated, political views or indicative of a political conviction. Moreover, there nothing to suggest that either Ms Miles or Ms Robinson thought that they were.
In reaching that conclusion, we are mindful that a sharp separation of “political” from “personal” beliefs is a difficult one. The applicant’s culture is very much one where history, and government policy and political decisions have had significant detrimental consequences. However, the applicant’s position in relation to vaccination, as articulated, was not one that bore upon government policy or political decisions; his criticism lay with decisions by his employer.
In summary, therefore, while the applicant has strongly held personal concerns about vaccination, and about the actions taken by his employer, as expressed and acted on for the purposes of these proceedings, these are not political convictions protected by the Discrimination Act.
Even setting aside the question of whether the applicant’s actions were “political”, there is a further element of the cause of action that the applicant cannot make out on the present evidence. He has claimed direct discrimination, and therefore, he must establish that the treatment complained of – the imposition of a vaccination mandate, the requirement that he work from home – was imposed upon the applicant because of his political beliefs. This requires actual evidence of a causative link. The applicant presented no such evidence. Indeed, what evidence there is makes it very clear that the mandate was not imposed upon him because of his political belief; rather the made was a risk minimisation policy applied to all relevant ALS personnel in public facing roles. The policy was developments and implemented before the applicant was employed by the ALS and could not have been imposed because of any of his protected attributes.
Consequently, even if the Tribunal were satisfied that the applicant held a relevant political conviction, there is no evidence before the Tribunal to conclude that any action was taken in relation to him because of that belief. The onus has not shifted to the respondent as per section 53CA of the HRC Act. Consequently, the Tribunal is not satisfied that the applicant was treated unfavourably because of his political convictions.
Was the applicant subjected to a condition or requirement that had or was likely to have, the effect of disadvantaging the other person because the other person has one or more protected attributes?
In his written application, the applicant described the basis for the discrimination as being “ALS white fragility response to my request to accountability”. When questioned further by the Tribunal, he explained more fully that his concerns were with “the process and … not the vaccination.”[32], and that his “request for information to make an informed decision due to my beliefs” was responded to in a manner where:
the narrative of disadvantage … for my race … was used against me to persuade or force me into putting a foreign substance into my biological makeup. This is a form of fragmentation by isolation by separating an issue relating to people of colour from the main body of content which was my right, my voice, and the legislation govern[ing] the jurisdiction that I work in.[33]
[32] Transcript of proceedings, 12 January 2023, page 8, lines 16-17
[33] Noting that some of the transcription at this part of the transcript was inaudible and has been omitted.
What we understand the applicant to be arguing is that ALS management, which at that time was led by a non-Indigenous CEO, used a “narrative of disadvantage” or stereotyped assumptions about Indigenous people, to impose a condition upon its workforce (including the complainant) a policy that was not supported by the cited legislation[34] and did not have appropriate regard to his cultural heritage or personal circumstances. In his submission, when the ALS was questioned about this approach, management reacted – or overreacted – with “fragility” or defensiveness rather than genuine consideration or consultation. This defensiveness could be demonstrated by, for example, the tone of Ms Miles’ letter of 14 December 2021. This, the applicant says, led to both his unwillingness to comply with the vaccine mandate, and also caused him feelings of distress, humiliation and segregation, which were disadvantageous to him.
[34] We note that we do not need to consider, for the purposes of this decision, whether the legislative framework relied upon by the respondent was actually correct.
Setting aside whether the facts of this allegation can be made out, the applicant did not clearly articulate how this argument met the provisions of the Discrimination Act, and particularly the elements of indirect discrimination. Noting that the applicant is self-represented, the Tribunal has done its best to characterise the claim but has struggled to do so.
In some other jurisdictions, indirect discrimination will cover a rule or conduct that when universally applied has un unfair or adverse effect on a group of people because of a protected attribute. This may require evidence of how the rule or conduct affects a group, collectively. The wording of the Discrimination Act is different – an applicant need only show that they have been disadvantaged because of a protected attribute that they have.[35] Hence, in this case, the applicant need only show that he has been disadvantaged because of his race; he does not need to establish that Indigenous people more broadly have been disadvantaged. To this end, his personal experiences are relevant, where there is an evidenced causal link between those experiences and his race.
[35] See Neil Rees et al, Australian Anti-Discrimination and Equal Opportunity Law (Federation Press, 3rd ed, 2018) at [3.8.37]
In a recent case,[36] the Appeal Tribunal confirmed that there is no requirement for applicant to identify precisely which actions caused the applicant to suffer disadvantage – the actions can be taken as a whole.[37] Hence, there is no need for the applicant to identify what particular action caused disadvantage, so long as he can establish the ALS’s process of engagement, taken as whole, caused him disadvantage because of his race.
[36] Australian Capital Territory v Phillips [2021] ACAT 122
[37] Australian Capital Territory v Phillips [2021] ACAT 122 at [106]
Nonetheless, even allowing for these broader concepts, the applicant must still present cogent evidence to establish a causative, factual link between the disadvantage, or potential disadvantage, the condition and his race. This requires more than a statement as to the applicant’s personal experiences and consequent frustration and disappointment in relation to a human resources issue (even a sensitive one). There must be an objective link between that disadvantageous treatment and his Aboriginality.
In relation to the vaccination mandate itself, the applicant does not suggest that the requirement to be vaccinated has the effect of disadvantaging people of Indigenous race generally.[38] The Tribunal is prepared to accept, as a matter of judicial notice, that past government practices on other issues have made some Indigenous Australians more sceptical of vaccines, but it is not apparent that this is a motivating factor for the applicant himself. Accordingly, we cannot conclude that a vaccination mandate disadvantaged the applicant because of his race.
[38] There is no evidence that, for example, the applicant’s race would make him more susceptible to side effects, or that it affects his ability to access vaccination (the situation may be different were he living in a remote community).
Even if the Tribunal were to accept that that there was a link between the applicant’s vaccine hesitancy and his race, the question would then turn to whether the condition to be vaccinated was nonetheless reasonable. The ALS has presented evidence that its workforce, which is over one-third Indigenous, overwhelmingly supported the vaccine mandate, and indeed were worried about non-vaccinated colleagues. The ALS also pointed to medical studies[39] and previous court and tribunal decisions identifying the vulnerability of indigenous people to COVID‑19[40] and the importance of employers taking steps to minimise the spread of the virus in workforces through vaccination.[41] The respondent has discharged the burden of establishing the defence of “reasonableness”, having regard to the risks posed to its personnel and stakeholders, and the mitigation options available.
[39] Thurber et al, ‘Risk of serve illness from COVID-19 among Aboriginal and Torres Strait Islander adults: the construct of ‘vulnerable populations’ obscured the root causes of health inequities’ (2021) 45(6) Australian and New Zealand Journal of Public Health 535-674
[40] E.g., Palmer v WA [2021] HCA 5 [16]-[18]
[41] E.g., Staurt Tewen v Qantas Airways Ltd [2022] FWC 1594, [20]-[23] and [103]-[104]
In any case, the applicant’s true complaint appears to lie more with the process itself. In this regard, the applicant made a number of assertions about the motivations of certain persons involved in the decision-making process and allegations of the consequences of those decisions for culturally inappropriate actions taken.
The only evidence going to whether the process adopted had a disadvantageous effect on the applicant because of his race was the evidence of the applicant. The applicant writes and speaks with some passion of his personal experiences in reading the policies and the correspondence from Ms Miles and Ms Robinson and responding to it. While this evidence is of some weight, it must be weighed against the respondents’ evidence that no other person in the organisation’s workforce, including none of its Indigenous employees, raised any concerns about either the mandate or the policy. Other than the applicant’s assertions of his personal experience, there is nothing that would entitle the Tribunal to conclude that the process adopted by the ALS to implement the vaccine mandate, or to address the applicant’s concerns about it, was disadvantageous to the applicant because of his race, as opposed to his opposition to the vaccination process and mode of engagement over it.
Having regard to these considerations, the Tribunal cannot be satisfied that there is any evidence that the vaccination mandate, the implementation process, or the response from management when he questioned it, are actions that disadvantaged the applicant because of his race.
Accordingly, the claim for indirect discrimination is not established.
Concluding comments
The applicant has strong views about vaccination. These are his personal views. He left a job where he was not required to be vaccinated and moved interstate to take up one that, unknown to him, did. He then found himself in the difficult position of having to choose between his personal beliefs and his continuing employment. He attempted to negotiate an alternative outcome, but his employer stood firm in the approach it had taken to managing risks to its other staff and clients. In the end, the applicant resigned his job.
It is an unfortunate series of events. We appreciate that the applicant is frustrated and that his life has been disrupted. He spoke passionately about his culture, his beliefs, and the affect the episode has had on his personal and family life. The Tribunal accepts he feels genuinely aggrieved by his experiences with the respondent. However, this alone does not make out a case under the Discrimination Act
When asked what ALS should have done, Mr McGhie said, “Communicated openly with someone who they were seeking to employ or would be working for them with what is happening with their staff.” We agree that it is unfortunate that ALS’s position on vaccination was not communicated to him before he moved to Canberra, as these proceedings may well have been avoided. It may also be that some other aspects of this process could have been done better or even in a culturally appropriate manner, although the applicant did not detail what this would involve in practice. However, whether things could have been done better is not a matter before the Tribunal. We acknowledge that the respondent, like many other employers, was balancing competing interests in very challenging times.
The Discrimination Act is a technical, prescriptive Act, that offers a form of protection to people on prescribed grounds, in prescribed circumstances, subject to certain defences. Because it is so technical, making out a case under the Act can be very challenging for many self-represented litigants, and indeed many lawyers. The applicant in this case has not made out a claim of discrimination.
The application is dismissed.
………………………………..
Presidential Member H Robinson
For and on behalf of the TribunalDate of hearing: 12 January 2023 Applicant: In person Solicitor for Respondent: Mr S Woodbury, Ashurst
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