Re: Mackay Regional Council

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 application, MRC submits that:
(a)MRC aims for its workforce to reflect the community in which it serves;
(b)MRC seeks to improve the under-representation of apprentice and trainee persons who identify as Aboriginal and/or Torres Strait Islander;
(c)MRC maintains an active number of between 26 to 29 apprentices and trainees across the organisation and allows MRC to attract a diverse group of applicants;
(d)MRC has had some previous success in recruiting apprentices/trainees from Aboriginal or Torres Strait Islander descent, however, has identified an opportunity and commitment under the QI2020/004 Yuwlbara People Interim Indigenous Land Use Agreement ('ILUA') registered on 2 July 2020 to allocate an identified traineeship role within the organisation. This will enable MRC to provide a more targeted recruitment and learning and development support for the applicant;
(e)in addition to the ILUA, MRC has made a commitment in the Stretch Reconciliation Action Plan for the year May 2019 to May 2022 to increase Aboriginal and Torres Strait Islander recruitment and selection through the increase of Aboriginal and Torres Strait Islander employment to a minimum of 4% and increase MRC's Aboriginal and Torres Strait Islander trainee target;

(f)MRC strives for employee workforce to be an accurate representation of the community that it represents. In accordance with the Australian Bureau of Statistics 2016 Census of Population and Housing, MRC's Indigenous employment target is for approximately 5% of MRC's workforce to identify as Aboriginal and Torres Strait Islander;

(g)the current Aboriginal and Torres Strait Islander figures in the organisation include:[1]
[1] The figures only represent the employees who chose to disclose.

(i) a total number of 1080 current full time equivalent employees;
(ii) a total number of 39 employees that identified as Aboriginal or Torres Strait Islander; and

(iii) two currently employed trainees/apprentices that identify as Aboriginal or Torres Strait Islander;

indicating a shortfall of 15 employees based on MRC's target of 5%;

(h)this application will enable MRC to strengthen MRC's commitment to promoting and offering a targeted position for an apprentice and trainee who identify as Aboriginal and/or Torres Strait Islander and believe will assist the organisation to provide additional support and create an opportunity to improve under-representation; and

(i)MRC will liaise with members of Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships ('the Department') and local Job Trial provider to assist in the recruitment and selection process of this position and will continue to work with these members to ensure the appropriate support is built into the program. The intention is to support a part time traineeship over two years to ensure an easier transition into the workplace for the successful applicant.

QHRC submissions

The QHRC submissions refer to the obligations the Commission has under the HR Act in considering MRC's exemption application. In particular, the QHRC submits that the terms of any exemption granted should consider whether MRC is exempt from the operations of ss 14, 15, 15A and 127 of the AD Act in relation to the attribute in s 7(g).[2]
[2] Section 14 of the Anti-Discrimination Act 1991 (Qld) ('AD Act') provides for discrimination in the pre-work area; section 15 of the AD Act provides from discrimination in work area; section 15A of the AD Act provides for discrimination by principals; and section 127 of the AD Act provides for discriminatory advertisements.
The QHRC submits that a consideration of whether an exemption under s 113 of the AD Act would engage human rights can be determined by reference to the effect of the exemption.
The QHRC submits that the exemption application engages the rights to equality and to equal protection of the law without discrimination pursuant to s 15(3) of the HR Act.
The QHRC also submits that the purpose of s 15(5) of the HR Act is to promote substantive equality and if the activity, the subject of the exemption sought by MRC, is a special measure within s 15(5), the activity would be human rights compatible, and if it was not a special measure, then the justification text in s 13 of the HR Act is to be applied.[3]
[3] Lifestyle Communities Ltd (No.3) (Anti-Discrimination) [2009] VCAT 1869.
The QHRC submits that it does not oppose the principle of targeting recruitment to groups such as Aboriginal and Torres Strait Islander people who are under-represented in particular industries when it can be justified as a special measure, also noting that the exemptions for welfare measure and equal opportunity measures in ss 104 and 105 of the AD Act may apply in this situation.
MRC submissions
MRC submits that the exemption application engages the rights to equality and to equal protection of the law without and against discrimination set out in s 15(5) of the HR Act, in that:
(a)MRC continues to implement multiple recruitment methodologies using non-discriminatory practices to encourage members of the Aboriginal and Torres Strait Islander community to apply for vacancies. The following methodologies are currently utilised:
(i) promotion of vacancy opportunities through Indigenous networking groups with the Department;
(ii) promotion of vacancy opportunities through local JobActive networks;

(iii) sharing and posting vacancies in social media groups (i.e. LinkedIn); and

(iv) inclusive language included in job adverts including an equal employment opportunity statement;

(b)these targeted marketing methodologies have supported minor increases in diverse background candidate pools;
(c)these practices have been in place for approximately four years and has resulted in attraction of predominantly unskilled labouring and lower-level candidates. As of 1 February 2021, MRC has nil identified Aboriginal or Torres Strait islander representation in leadership roles;
(d)the internal career development programs are underway to promote and upskill existing workforce for potential leadership opportunities, however it has highlighted the need to offer specialised career pathways for aspiring leaders to local candidates who struggle to see remodelling of senior positions in community;
(e)MRC is committed to supporting the newly determined Yuwi Aboriginal Corporation with a targeted trainee pathway that supports local candidates to build skills across MRC and the Yuwi Aboriginal Corporation in accordance with the ILUA; and
(f)the proposed traineeship program focuses on reconnecting the local Aboriginal and Torres Strait Islander community with its lost heritage and language while obtaining national accredited qualifications. The program further aims to bolster the profile of candidates to become role models for other aspiring leaders in the region.

Legislative framework

Section 174B(b) of the AD Act confers the Commission with the power to grant exemptions in relation to work-related matters.
Section 113(1) of the AD Act provides:
113 Tribunal
(1)The tribunal, on application by—
(a)a person, on the person’s own behalf, or on behalf of the person and another person or other people; or
(b)2 or more people, on their own behalf, or on behalf of themselves and another person or other people; or
(c)a person or people included in a class of people on behalf of the people in that class;
may grant an exemption to the person, people or class of people from the operation of a specified provision of the Act.
…
Section 105 of the AD Act provides:
105 Equal opportunity measures
(1)A person may do an act to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with this Act.

(2)Subsection (1) applies only until the purpose of equal opportunity has been achieved.

The HR Act imposes obligations on the Commission with respect to the exercise of its discretion to grant an exemption.
Section 48 of the HR Act provides:
48 Interpretation
(1)All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
(2)If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
(3)International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
(4)This section does not affect the validity of—
(a)an Act or provision of an Act that is not compatible with human rights; or
(b)a statutory instrument or provision of a statutory instrument that is not compatible with human rights and is empowered to be so by the Act under which it is made.
(5)This section does not apply to a statutory provision the subject of an override declaration that is in force.
In Re: Ipswich City Council,[4] Deputy President Merrell confirmed that the combined effect of ss 5(2)(a) and 48 of the HR Act is that the Commission, when interpreting s 113 of the AD Act, must comply with s 48 of the HR Act. Specifically, in this matter, ss 48(1) and 48(2) of the HR Act.
[4] [2020] QIRC 194.
Section 58 of the HR Act provides:
58 Conduct of public entities
(1)It is unlawful for a public entity—
(a)to act or make a decision in a way that is not compatible with human rights; or
(b)in making a decision, to fail to give proper consideration to a human right relevant to the decision.
(2)Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.
Example—
A public entity is acting to give effect to a statutory provision that is not compatible with human rights.
(3)Also, subsection (1) does not apply to a body established for a religious purpose if the act or decision is done or made in accordance with the doctrine of the religion concerned and is necessary to avoid offending the religious sensitivities of the people of the religion.
(4)This section does not apply to an act or decision of a private nature.
(5)For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—
(a)identifying the human rights that may be affected by the decision; and
(b)considering whether the decision would be compatible with human rights.
(6)To remove any doubt, it is declared that—
(a)an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
(b)a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).
'Public entity' is defined in s 9 of the HR Act, with s 9(4)(b) stating that a public entity does not include a court or tribunal, except when acting in an administrative capacity.
As determined in Re: Ipswich City Council, the Commission is acting in an administrative capacity when deciding an exemption application under s 113 of the AD Act and consequently must observe the relevant provisions of s 58 of the HR Act.
Application of s 58 of the HR Act requires that the Commission must not act to make a decision in a way that is not compatible with human rights and, in making a decision, the Commission must not fail to give proper consideration to a human right relevant to the decision.
'Human rights' is defined under the HR Act to mean the rights stated in pt 2 divs 2 and 3. Part 2, division 2 deals with particular civil and political rights, with the first found in s 15:
15 Recognition and equality before the law
(1)Every person has the right to recognition as a person before the law.
(2)Every person has the right to enjoy the person's human rights without discrimination.
(3)Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
(4)Every person has the right to equal and effective protection against discrimination.
(5)Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
Section 8 of the HR Act defines the meaning of the phrase 'compatible with human rights' as:
8 Meaning of compatible with human rights
An act, decision or statutory provision is compatible with human rights if the act, decision or provision—
(a)does not limit a human right; or
(b)limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.
The HR Act provides that human rights may be limited pursuant to s 13 of the HR Act:
13 Human rights may be limited
(1)A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
(2)In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
(a)the nature of the human right;
(b)the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
(c)the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
(d)whether there are any less restrictive and reasonably available ways to achieve the purpose;
(e)the importance of the purpose of the limitation;
(f)the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
(g)the balance between the matters mentioned in paragraphs (e) and (f).
Consideration
I have considered ss 104 and 105 of the AD Act along with the decision in Sunshine Coast Regional Council [No.2][5] in which the Queensland Civil and Administrative Tribunal ('the Tribunal') dismissed an exemption application on the basis that no exemption was necessary as s 104 applied. In Sunshine Coast Regional Council [No.2], the Tribunal considered a proposal to establish a policy allowing Sunshine Coast Regional Council to grant permits to conduct certain tourism business on Council land solely to Aboriginal and Torres Strait Islander people. The Tribunal determined that the purpose of the policy was not to discriminate against non-Indigenous people on the ground of race, but instead to introduce a benefit to a group of people by reference to the attribute of race. The policy would also allow non-Indigenous people to apply for the other four categories of permit.
[5] [2021] QCAT 439.
The purpose of this application in this matter is different to that of Sunshine Coast Regional Council [No.2] in that the measure sought to be employed cannot solely be characterised as providing a welfare benefit to a group of people. The exemption application sought by MRC will have the effect of preventing a group of people from applying for and obtaining employment in a particular position and so cannot, in my view, be considered a welfare measure pursuant to s 104 of the AD Act nor an equal opportunity measure pursuant to s 105 of the AD Act.
The effect of the exemption application would be to allow MRC to advertise and employ an Aboriginal and Torres Strait Islander person in an apprenticeship or traineeship role. The effect of the exemption would be to allow MRC to lawfully discriminate on the basis of race in the pre-work and work areas for recruitment to this particular role.
The human rights outlined in ss 15(3) and 15(4) of the HR Act would be affected by the proposed exemption in that it would allow discriminatory conduct to take place affecting a person's entitlement to equal protection of the law without discrimination and a person's right to equal and effective protection against discrimination. The human right outlined in s 15(5) would also be affected by the proposed exemption.

If an applicant is able to demonstrate that s 15(5) of the HR Act applies, the measure undertaken is not discrimination within the meaning of ss 15(3) and 15(4) of the HR Act. In these circumstances, the measure does not have to be justified under s 13(2) as no discrimination will have occurred.
Is the exemption sought a measure within the meaning of s 15(5) of the HR Act?
Section 15(5) of the HR Act provide that measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
To satisfy s 15(5), the purpose of the measure must be established by positive proof, the persons or groups must be properly identified and the cause of the disadvantage must be discrimination within the meaning of the AD Act. As outlined in Lifestyle Communities Ltd (No 3) (Anti-discrimination),[6] the measure must be for the purpose of ameliorating disadvantage caused by discrimination and the persons or groups to be assisted or advanced must be suffering disadvantage from that cause.
[6] [2009] VCAT 1869.
Consideration must be given to whether the proposed subject of the exemption, Aboriginal and Torres Strait Islander people, are persons who have been disadvantaged within the meaning of s 15(5) of the HR Act.
Having regard to the material submitted by MRC, I am satisfied that Aboriginal and Torres Strait Islander people are disadvantaged and that such disadvantage is because of discrimination within the meaning of s 15(5) of the HR Act.

Section 48 of the HR Act

As outlined in The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors,[7] s 48(1) of the HR Act does not authorise an interpretation of statutory provisions which is inconsistent with their purpose, rather, the provisions must be interpreted, to the extent possible that is consistent with their purpose, in a way that is 'compatible with human rights'.
[7] [2020] QSC 54.

In Anglo Coal (Moranbah North Management) Pty Ltd & Anor,[8] Deputy President Swan[9] considered that the purpose of s 113 of the AD Act is to allow persons the protection and security of a shield against complaints of unlawful discrimination in circumstances where their proposed actions constitute a prima facie case of unlawful discrimination, but where they are not inherently inconsistent with the AD Act.
[8] [2018] QIRC 052.
[9] citing Exemption application re: Palmpoint Pty Ltd [2006] QADT 12.

As outlined above, the exemption sought by MRC is a measure within the meaning of s 15(5) of the HR Act. Pursuant to s 15(5), the measure does not constitute discrimination. The granting of the exemption does not limit a human right in these circumstances and consequently s 113(1) of the AD Act is compatible with human rights.
Section 113 does not provide the criteria for the exercise of the discretion to grant an exemption. The then President of the then Anti-Discrimination Tribunal outlined in Exemption application re: Boeing Australia Holdings Pty Ltd and Ors[10] several criteria to be applied when considering an exemption application pursuant to s 113.[11] I will address these criteria below.
[10] [2003] QADT 21 [12].
[11] Sunshine Coast Regional Council [No.2] [2021] QCAT 439.

Is the exemption necessary?

The exemption is necessary to assist Aboriginal and Torres Strait Islander persons who have been disadvantaged because of discrimination to gain access to employment positions within MRC.

Are there any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought?

MRC submits that despite consistent and varied efforts to attract and retain Aboriginal and Torres Strait Islander applicants, they have experienced a higher dropout rate of apprentices/trainees due to poor family support and difficulty in transitioning into the work environment. MRC submits that this measure will allow them to provide additional support and create an opportunity to improve under-representation.

I am satisfied that there are no non-discriminatory ways of achieving the purpose for which the exemption is sought.

Is the exemption in the community interest?

I am satisfied that it is in the community interest for persons who identify as Aboriginal and Torres Strait Islander to be able to fully participate in employment at their local council and for MRC's workforce to reflect the people they represent.
Are there any other persons or bodies, other than MRC, supporting the exemption application?

The documents filed do not indicate if any other persons or bodies supports the exemption, although I note that MRC's evidence is that they will liaise with the Department and the local Job Trial provider to assist with recruitment and selection process of this position and to ensure that appropriate support is built into the program.
It is noted that the QHRC raised no objection to the exemption being granted.

Is it reasonable and appropriate to grant the exemption?

For the reasons outlined above, it is reasonable and appropriate to grant the exemption sought by MRC.

What is the effect of not granting the exemption?

The effect of not granting the exemption would be to perpetuate the disadvantage endured by Aboriginal and Torres Strait Islander people in securing and completing apprenticeships and traineeships.

The terms of the exemption sought

The terms of the exemption sought by MRC are that it applies to the advertising and recruitment of an Aboriginal and Torres Strait Islander person to be employed by MRC for an identified apprenticeship or traineeship position.

The terms of the exemption are reasonable having regard to the purpose for which the exemption is sought.

Conclusion

For the reasons outlined above, the exemption should be granted to MRC from the operation of ss 14, 15, 15A and 127 of the AD Act.

Order

I make the following orders:
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.

[2022] QIRC 64

4 March 2022