Queensland South Native Title Services Ltd
[2010] QCAT 413
•25 August 2010
| CITATION: | Queensland South Native Title Services Ltd [2010] QCAT 413 |
| PARTY: | Queensland South Native Title Services Ltd |
| APPLICATION NUMBER: | ADL034-10 |
| MATTER TYPE: | Anti-Discrimination Matter |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Ann Fitzpatrick |
| DELIVERED ON: | 25 August 2010 |
| DELIVERED AT: | Brisbane |
ORDER MADE: | The application be dismissed |
| CATCHWORDS : | Exemption application based on race; section 113 Anti-Discrimination Act 1991. |
APPEARANCES and REPRESENTATION:
On the papers
REASONS FOR DECISION
This is an application for exemption from the Anti-Discrimination Act 1991 (the Act), made by Queensland South Native Title Services Ltd.
The application is made pursuant to section 113 of the Act. The application does not on its face say which sections of the Act it wishes to be exempted from.
The applicant was directed to make submissions in support of its application. The written submissions, dated 30 July, 2010 are very general and lack any supporting evidence for the assertions made in the submissions.
However, it appears that the applicant seeks an exemption from the Act for its benefit and the benefit of its employees as a consequence of advertising positions vacant within its Community Relations Team, to be filled only by an aboriginal or Torres Strait Islander person.
It is said that it is a genuine occupational requirement for all positions within the Community Relations Team to be filled by an Aboriginal or Torres Strait Islander person. A function of the Community Relations Team is liaison between native title claimants and the relevant legal team. It is also submitted that team provides community members with training and support to facilitate capacity development. Capacity development is said to be enhancing clients’ capacity to be autonomous in pursuing their rights and interests. Beyond that, the Tribunal does not have before it any more detailed job description.
It is submitted that it is not feasible and is impractical for a non indigenous person, regardless of background and/or training, to effectively carry out the functions of this role, because of the need to gain the trust and respect of native title claimants and to understand and relate to “indigenous people’s emotions, the history of social injustice and the consequences, the intricate and diverse culture, the language and other communication idiosyncrasies of Indigenous people”.
Legal position
Section 24 of the Act provides that it is not unlawful to discriminate in the work or work-related area if an exemption in sections 25 to 36 or part 5 applies.
Section 25(1) of the Act provides that a person may impose genuine occupational requirements for a position. If a claim of discrimination in the work area is brought against an employer, that person may raise sections 24 and 25 as a defence. The proceedings will explore whether the employer is in fact correct in claiming that the discriminatory requirement is a genuine occupational requirement. “Genuine occupational requirement” has been interpreted in a number of cases arising in Queensland and in other jurisdictions where that same or a similar phrase is used in anti-discrimination legislation. For example, Gaudron J held in Qantas Airways Ltd v Christie (1998) HCA 18, that a practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with.
If, as the applicant contends, it is a genuine occupation requirement that the position of Community Relations team member be an aboriginal or Torres Strait Islander person, then a complainant will not be able to make out a contravention of the Act.
Without an exemption made by the Tribunal under section 113 of the Act, complainants may lodge a complaint about the requirement as to racial status for the role of Community Relations Team member. It will be determined on a case by case basis whether the defence of genuine occupational requirement is successful.
This application seeks a more general exemption, which if granted would mean that a complaint to the Anti-Discrimination Commission about the requirement imposed by the applicant could never be accepted for the duration of the exemption. The exemption, if granted by the Tribunal pursuant to section 113 of the Act, is a very powerful order, which stops the operation of specific provisions of the Act.
The making of such an order is discretionary. Before making a section 113 exemption order, I must consider whether:
(a)it would be appropriate and reasonable to do so;
(b)the exemption is necessary;
(c)there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;
(d)the exemption is in the community interest; and
(e)any other persons or bodies other than the applicant support the application.[1]
[1] Exemption application re: Boeing Australia Holdings Pty Ltd & related entities (2003) QADT 21 (19 November,2003)
I have determined not to grant the exemption on the basis that it is not necessary, because of the availability to the applicant of a possible defence to any breach of the Act, in terms of section 24 of the Act. A similar course was adopted by President Savage SC in Exemption application re: Boeing Australia Holdings Pty Ltd & related entities (No.3) (2008) QADT 34 (24 December,2008).
Even if it was clear that the applicant’s racial requirement for the Community Team Member role was not a genuine occupational requirement so that the defence was not available to it, I cannot grant the exemption because I do not have sufficient information before me about the full extent of the Community Team Member role in terms of what work is to be performed, where it is performed and how it is performed to say whether the exemption sought is appropriate and reasonable or in the community interest. Nor can I determine if there are non-discriminatory ways of achieving the objects for which the exemption is sought.
Section 113(2) of the Act requires the Tribunal to have regard to any submission made by the Anti-Discrimination Commissioner on the application. By letter, dated 4 June, 2010, which has been provided to the applicant, the Commissioner stated that the application does not show that an exemption is necessary. The Commissioner made the comment that a practical option for the applicant, to minimize the risk of a complaint, may be to make it clear in the advertisement for the position the basis for claiming that the “genuine occupational requirement” exemption applies to the position. I have taken the Commissioner’s submissions into account in arriving at my decision.
Order
I order that the application be dismissed.
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