Re: Mackay Regional Council - [2022] QIRC 64

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Mackay Regional Council [2022] QIRC 064
PARTY:	Mackay Regional Council (Applicant)
CASE NO.:	AD/2021/61
PROCEEDING:	Application
DELIVERED ON:	4 March 2022
MEMBER: HEARD AT:	Power IC On the papers
ORDER:	1. The Mackay Regional Council is exempt from the operation of ss 14, 15, 15A and 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(g) of the Anti-Discrimination Act 1991 (Qld). 2. The exemption applies only in respect of actions or omissions in relation to the advertising and recruitment of an apprentice/trainee position to be employed by the Mackay Regional Council. 3. The exemption shall apply to the Mackay Regional Council for a period of three years from the date of these orders.
CATCHWORDS:	EQUAL OPPORTUNITY AND DISCRIMINATION – exemptions – race discrimination – application to grant exemption under s 113(1) of the Anti‑Discrimination Act 1991 (Qld) so the Applicant can recruit only people who identify as Aboriginal and Torres Strait Islander to apprentice/trainee positions HUMAN RIGHTS – DISCRIMINATION LEGISLATION – whether granting the exemption affects a human right within the meaning of the Human Rights Act 2019 (Qld) – whether exemption is compatible with human rights within the meaning of the Human Rights Act 2019 (Qld) – exemption granted for three years
LEGISLATION:	Anti-Discrimination Act 1991 (Qld), ss 7, 14, 15, 15A, 104, 105, 113, 127 and 174B Human Rights Act 2019 (Qld), ss 5, 8, 9, 13, 15, 48 and 58
CASES:	Anglo Coal (Moranbah North Management) Pty Ltd & Anor [2018] QIRC 052 Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21 Exemption application re: Palmpoint Pty Ltd [2006] QADT 12 Lifestyle Communities Ltd (No.3) (Anti-Discrimination) [2009] VCAT 1869 Re: Ipswich City Council [2020] QIRC 194 Sunshine Coast Regional Council [No.2] [2021] QCAT 439 The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors [2020] QSC 54

Reasons for Decision

Introduction

Mackay Regional Council ('MRC'), by application filed on 10 December 2021, applies for temporary equal opportunity measure exemption pursuant to s 113 of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') on the basis of race ('exemption application') to allow MRC to recruit Aboriginal or Torres Strait Islander candidates to an identified traineeship position.
On 6 January 2022, the Commission forwarded a copy of MRC's exemption application and supporting material to the Queensland Human Rights Commission ('the QHRC'). The QHRC filed submissions on 11 January 2022 in relation to MRC's exemption application.
On 12 January 2022, a directions order was issued providing MRC the opportunity to file any further submissions and material addressing the submissions of the QHRC. Further submissions were filed by MRC on 1 February 2022.
The question for determination is whether MRC should be granted an exemption pursuant to s 113(1) of the Act. This requires consideration of the AD Act and the relevant provisions of the Human Rights Act 2019 (Qld) ('the HR Act').
MRC's exemption application
In its exemption…

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: [2022] QIRC 64
Decision Date: 4 March 2022

CaseChat Overview and Summary

Mackay Regional Council sought an exemption from certain sections of the Anti-Discrimination Act 1991 (Qld) to allow them to recruit only people who identify as Aboriginal and Torres Strait Islander for apprentice/trainee positions. This application was heard by the Queensland Civil and Administrative Tribunal (QCAT) and subsequently reviewed by the Queensland Civil and Administrative Appeals Tribunal (QCAT). The applicants were required to demonstrate that the exemption was necessary and that it was compatible with human rights as defined by the Human Rights Act 2019 (Qld).

The tribunal had to determine whether the exemption would constitute unlawful discrimination under the Anti-Discrimination Act 1991 (Qld) and whether it was compatible with human rights as defined by the Human Rights Act 2019 (Qld). The tribunal considered the evidence presented by the applicants, including the rationale for the exemption and the potential impact on human rights. The tribunal found that the exemption was necessary to address historical disadvantages faced by Aboriginal and Torres Strait Islander people in employment opportunities and that it was compatible with human rights as defined by the Human Rights Act 2019 (Qld).

The tribunal granted the exemption for a period of three years, subject to conditions that aimed to ensure that the exemption would not result in unlawful discrimination or adverse effects on human rights. The tribunal found that the exemption was necessary to address historical disadvantages faced by Aboriginal and Torres Strait Islander people in employment opportunities and that it was compatible with human rights as defined by the Human Rights Act 2019 (Qld). The tribunal also noted that the exemption was subject to review and could be revoked if it was found to be causing adverse effects on human rights or if the applicants failed to comply with the conditions imposed by the tribunal. The tribunal considered that the exemption was necessary to promote equal employment opportunities for Aboriginal and Torres Strait Islander people and that it was compatible with human rights as defined by the Human Rights Act 2019 (Qld). The tribunal was satisfied that the applicants had demonstrated that the exemption was necessary and that it would not result in unlawful discrimination or adverse effects on human rights. The tribunal therefore granted the exemption for a period of three years, subject to the conditions imposed to ensure that the exemption was used for its intended purpose and did not cause any adverse effects on human rights.

Orders

Orders of the court

1. The Mackay Regional Council is exempt from the operation of ss 14, 15, 15A and 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(g) of the Anti-Discrimination Act 1991 (Qld).

2. The exemption applies only in respect of actions or omissions in relation to the advertising and recruitment of an apprentice/trainee position to be employed by the Mackay Regional Council.

3. The exemption shall apply to the Mackay Regional Council for a period of three years from the date of these orders.

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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