Central Queensland University [2011] QCAT 132

CITATION: Central Queensland University [2011] QCAT 132 PARTIES: Central Queensland University (Applicant) APPLICATION NUMBER: ADL103-10 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Ms Michelle Howard, Member DELIVERED ON: 6 April 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: ANTI-DISCRIMINATION – exemption application – based on race in the work area Anti-Discrimination Act 1991, ss 24, 25, 113 Qantas Airways v Christie (1998) HCA 18 Exemption application re: Boeing Australia Holdings Pty Ltd (2003) QADT 21 (19 November 2003) Exemption application: Boeing Australia Holdings Pty Ltd & related entities (No 3) [2008] QADT 34 (24 December 2008) APPEARANCES and REPRESENTATION (if any): The application was heard on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Central Queensland University has made an application for exemption under the Anti-Discrimination Act 1991 (the Act) pursuant to section 113. [2] On its face, the application seeks exemption for five years from section 7 of the Act in the work area for the purposes of identifying a genuine occupational requirement for the position of Indigenous Recruitment and Retention Officer, to be filled by an Aboriginal or a Torres Strait Islander person. -- 1 of 3 -- 2 [3] The application was accompanied by a document entitled ‘Business Case- Identified Positions’ which contains some information regarding the basis upon which the exemption is sought and attaches a copy of the position description. The applicant was directed to provide statements and submissions in support of the application. However, none have been received. [4] The position of Indigenous Recruitment and Retention Officer works within the University Indigenous Centre and its purpose is said to include giving support to the Indigenous student community through culturally appropriate advocacy, case management and intervention services. The role includes developing and implementing activities and services to recruit and retain Indigenous students and building networks with key stakeholders in the Indigenous community. [5] The Anti-Discrimination Commissioner (the Commissioner) has provided comments on the application and associated documents. The Commissioner considers that the application does not contain sufficient information to demonstrate that an exemption is necessary or that the duration proposed is appropriate. [6] Regarding identified positions (that is, a position in relation to which it is lawful to discriminate in favour of a person with one of the attributes specified in section 7 for a purpose specified in the Act) the Commissioner states that many enquirers choose to minimise the risk of a complaint by making the basis for claiming the relevant exemption clear in the advertisement. The legislative framework for exemptions [7] By virtue of section 24 of the Act, it is not unlawful to discriminate in a work or work-related area if an exemption in sections 25 to 36 or part 5 applies. Section 25(1) provides that a person may impose genuine occupational requirements for a position. [8] If a claim for discrimination in the work area is made against an employer, sections 24 and 25 may be raised in defence. Proceedings would explore whether there is a genuine occupational requirement. If there is a genuine occupational requirement, then the complainant will not be able to make out a contravention of the Act. [9] What constitutes a genuine occupational requirement, and other equivalent phrases, has been the subject of judicial consideration. For example, in the High Court of Australia, Justice Gaudron in Qantas Airways v Christie,1 held that determining whether a requirement is an inherent requirement involves considering whether the position would be essentially the same in the absence of the requirement. [10] Section 113 of the Act provides that the tribunal may grant an exemption from the operation of a specified provision of the Act.2 Before deciding the application, the tribunal must give a copy of the application and related 1 (1998) HCA 18, [36]. 2 Section 113(1). -- 2 of 3 -- 3 documents to the Commissioner and have regard to any submission made by the Commissioner about it.3 [11] Granting an exemption would expressly enable the Central Queensland University to discriminate on the basis of race in filling the position. Accordingly, an exemption is not to be given lightly.4 [12] The tribunal may, in its discretion, grant an exemption. A range of issues must be considered: (a) whether it is appropriate and reasonable to do so; (b) whether the exemption is necessary; (c) whether there are non- discriminatory ways of achieving the purpose for which the exemption is sought; (d) whether the exemption is in the community interest; and (e) whether other persons or bodies support the application.5 Discussion and Decision [13] On the basis of the limited information available, it is not possible for me to determine whether there are non-discriminatory ways of achieving the objects for which the exemption is sought. Nor is there evidence about whether the exemption is in the community interest, although it seems in a general sense to support an appropriate purpose, that is to encourage and support Indigenous students to pursue tertiary education. There is no evidence of persons or bodies other than the applicant who support the application. [14] In the absence of an exemption, the applicant has a possible defence under sections 24 and 25 of the Act. On that basis, the exemption could be said to be unnecessary.6 If it is a genuine occupational requirement of the position that the person in the position be Aboriginal or Torres Strait Islander, the discrimination would be lawful under the Act. [15] The Commissioner considers that there is insufficient information to demonstrate that an exemption is necessary or that the duration proposed is appropriate. The Commissioner suggests that the risk of complaint can be minimised by making the basis for claiming the genuine occupational requirement clear in the advertisement of the position. [16] In the circumstances, the applicant has not persuaded me that it would be appropriate or reasonable to exercise my discretion to grant the exemption. [17] I dismiss the application. 3 Section 113(2). 4 Exemption application: Boeing Australia Holdings Pty Ltd & related entities (No 3) [2008] QADT 34 (24 December 2008), [1-10]. 5 Exemption application re: Boeing Australia Holdings Pty Ltd (2003) QADT 21 (19 November 2003). 6 Exemption application: Boeing Australia Holdings Pty Ltd & related entities (No 3) [2008] QADT 34 (24 December 2008), [22, 36-37]. -- 3 of 3 --