Nye v Nowra Local Aboriginal Land Council

Nye v Nowra Local Aboriginal Land Council - [2017] NSWCATAD 107 - NSWCATAD 2017 case summary — Zoe

[4]

The Respondent's response

The Respondent replied to the complaint to the ADB on 20 September 2016. The following is a summary of the Respondent's reply to the ADB.
The position for which the complaint was interviewed in February 2016, was originally advertised with a closing date of 27 November 2015. However, the position was later readvertised, with a closing date of 20 January 2016, to comply with the Aboriginal Land Rights Act 1983, which required the position to be advertised in a national newspaper. All the candidates for the position were offered the opportunity to have their applications stand, or to reapply with a new application. The Complainant reapplied and was called to interview, in addition to 3 other candidates, one of whom was also Aboriginal and two of whom were non-Aboriginal. The Respondent asserted that there is nothing within its model rules or regulations as an incorporated entity, or in the Aboriginal Land Rights Act 1983, which requires its employees to be Aboriginal. The Respondent asserted that many individuals who work for NSW local land councils, NSW ALC and the Office of the Registrar ALRA 1983, are non-Aboriginal people.
The Respondent asserted that the position of CEO, NLALC has always been chosen on merit. The Respondent asserted that applicants were selected for interview based on an assessment of their written applications. Applicants who were interviewed were assessed based on their performance at interview. The Respondent asserted that advertising the position as Aboriginal identified was a mistake made by administrative staff at NLALC. On previous occasions, Aboriginality had been advertised as a desirable rather than an essential criterion.
The Tribunal notes that at the leave hearing, the Respondent agreed that the advertisement had said the position was Aboriginal identified but the selection criteria set out did not specify Aboriginality as an essential criterion.
The Respondent asserted that the error in relation to advertising the position as Aboriginal identified was brought to the attention of each applicant at the beginning of the interview process. The Respondent asserts that the applicants culled prior to interview included both Aboriginal and non-Aboriginal applicants, because they failed to address the selection criteria. The Respondent described the attributes of each of the four applicants who were interviewed for the position. The Respondent stated that after interviewing the applicants, the panel recommended only one individual for the position. The Board of the NLALC then determined to offer the position to the successful applicant by way of majority motion, with no votes recorded against the motion.
In conclusion, the Respondent asserted that at no time was any individual who applied for the position discriminated against based on their race. The Respondent asserted that both Aboriginal and non-Aboriginal applicants were considered and interviewed for the position and the position was awarded on merit.
The Respondent's response included numerous supporting documents including copies of panel notes regarding interviews for the position with the names of the applicants redacted to maintain confidentiality.
The Respondent denied discriminating against the Complainant on the grounds of her race.

[7]

Ms Nye's submissions at leave hearing

Ms Nye submitted that it was fair and just for her complaint to proceed. Ms Nye provided written submissions to which she spoke at the hearing. The Tribunal summarises Ms Nye's written submissions as follows.
Ms Nye maintained that she received less favourable treatment in relation to employment by NLALC on the grounds of her race. Ms Nye stated that it was an unusual complaint as the basic premise of her complaint required the Tribunal to accept that an Aboriginal organisation would discriminate against Aboriginal people based on their race. Ms Nye stated that while there is no requirement set out in the Aboriginal Land Rights Act 1983 to prohibit a non-Aboriginal person from being employed as CEO, it is normally the case that the majority (if not all) CEOs are Aboriginal persons. Advertisements for CEO positions in other areas set out that being an Aboriginal person was a genuine occupational requirement pursuant to section 14 (d) the ADA 1977. The Aboriginal Land Rights Act 1983 and Regulations set out how positions should be advertised. All three advertisements for the position had stated that the position was Aboriginal identified. Ms Nye said it had not been an administrative error to advertise the position 3 times as Aboriginal identified. Rather it had been a deliberate decision to seek out an application from a non-Aboriginal person.
The arrangements NLALC made for determining who should be offered the position were conducted in such a way that they discriminated against her based on her Aboriginal race by treating Mr Peterson, the non-Aboriginal applicant, more favourably. They did this as well by departing from the usual and accepted practices of most local Aboriginal Land Councils in New South Wales. Further the conduct of NLALC, breached codes of conduct, governance procedures and the requirements of the Aboriginal Land Rights Act 1983. This reveals NLALC had no intention of acting fairly and impartially in the selection process, to ensure that their preferred candidate, a non-Aboriginal person, was selected for the position.
Ms Nye noted that the advertisement was first published on 20 January 2016 and specified that the position was Aboriginal identified. The document provided by NLALC to the ADB was not a contemporaneous record of the recruitment process. Ms Nye stated that:

the job was advertised three times as Aboriginal identified;
it is the normal procedure for such positions to be Aboriginal identified;
the position of CEO NLALC has previously always been occupied by an Aboriginal person;
NLALC had not produced any details or minutes relating to the determination that the position be open to all applicants and that Aboriginality would not be required.

Page 121 of the NLALC's submission to the ADB refers to NLALC seeking advice from New South Wales Aboriginal Land Council Representative Ron Lisson, after the selection committee had conducted interviews.
Ms Nye pointed to anomalies in the procedure adopted after interviews, to waive the requirement of Aboriginality for the position. She also questioned how a non-Aboriginal person was able to apply for the position when the position had been advertised as Aboriginal identified. Ms Nye thought that Mr Peterson had been approached and asked to apply for the position. Ms Nye then pointed to conflicts of interest for referees involved in the recruitment process. Ms Nye alleged that some of the Board of NLALC had interests that would be better served by having a non-Aboriginal person appointed as CEO, than an Aboriginal person. Ms Nye submitted that the Respondent was implying that the position could only be filled on merit, if a non-Aboriginal person were selected.
Ms Nye said that she had further information which could be subpoenaed to support her case, were she provided with leave to proceed.

[8]

Respondent's submissions

The Respondent provided written submissions. The chair, Ms Clarke, CEO Mr Peterson and Ms Jannice Luland, former chair, spoke to the submissions at the hearing.
The Respondent denied discriminating against Ms Nye on the grounds of her race. The Respondent stated that the position was advertised as Aboriginal identified in error and this was explained to each candidate at interview. The selection panel decided to interview two Aboriginal applicants and two non-Aboriginal applicants. The Board elected before any interviews to select two Aboriginal and two non-Aboriginal people for interview. The fact that the position was offered to a non-Aboriginal person does not prove that Ms Nye was discriminated against on the grounds of her Aboriginal race. Ms Nye did not interview well. She was not the best candidate at interview for the position of CEO. There was no evidence to substantiate the allegation that the NLALC had discriminated against Ms Nye on the grounds of her race in not offering her the position. The CEO was appointed on merits. The NLALC considered Ms Nye's statements about the successful candidate were defamatory. On one view, the application for leave was an abuse of the Tribunal's processes. The Respondent sought that the Tribunal dismiss the application for leave because there was no substance to the complaint.
Ms Nye had applied for the CEO position on two prior occasions unsuccessfully. On the first occasion, she was not interviewed because the application did not fulfil the requirements outlined in the selection criteria. On the second occasion, the process did not proceed as the position had not been advertised in a national newspaper. The position was then advertised again and Ms Nye was interviewed on 5 February 2016. Two Aboriginal and two non-Aboriginal candidates were interviewed.
The Respondent submitted that it was not fair and just to grant leave relying on the cases of Hussein v Nationwide News Pty Ltd [2016] NSWCATAD 139 and Ekermawi v Administrative Decisions Tribunal of New South Wales 2009 NSW SC 143 at 28-38. The ADB had provided Ms Nye with procedural fairness throughout the complaint process, investigated the matter and made a finding that the complaint was lacking in substance. The statements by Mr Moyle and Mr Groves did not support a complaint that Ms Nye was discriminated against. The statements by Mr Moyle and Mr Groves supporting Ms Nye's complaint had been considered by the ADB when it dismissed the complaint. There had been no denial of procedural fairness to Ms Nye in the ADB's dealing with her complaints and accordingly it would not be fair and just to allow the matter now to proceed. The incident involving a photograph of Ms Nye's deceased nephew did not amount to evidence of discrimination. There was no direct evidence or evidence from which an inference could be drawn, linking the alleged treatment with the ground of discrimination presented by Ms Nye. Ms Nye had the onus of establishing a reasonable prospect of success. Statements from other parties such as Mr Moyle and Mr Groves were irrelevant and did not provide any cogent basis for a Tribunal to grant leave. Justice dictated that the Tribunal refuse leave on the basis that Ms Nye's complaint lacks substance. The Respondent submitted that Ms Nye had not articulated a complaint that met the requirements of the Anti-Discrimination Act, 1977. She had not established that she was treated less favourably than a non-Aboriginal person in similar circumstances.

[17]

Less favourable treatment

To establish this complaint of race discrimination, Ms Nye would need to show that she was treated less favourably in the recruitment process, than in the same circumstances, the NLALC treated a person of a different race. Ms Nye's complaint sets out that although the position was advertised as an Aboriginal identified position, the employer decided not to treat the position as Aboriginal identified during the recruitment process and to accept applications from non-Aboriginal people.
The Tribunal notes that even though the field was broadened, Ms Nye was successful in obtaining an interview for the positon. It is not clear that Ms Nye suffered any detriment in the field being broadened to include non-Aboriginal applicants.
On one view, broadening the field to include non-Aboriginal candidates meant that Aboriginal candidates (such as Ms Nye) and non-Aboriginal candidates were treated the same in the arrangements made for recruiting for the position. The Tribunal also notes that identifying a position for persons of a particular race is only permitted as an exception to the ADA under section 14(d). There is no obligation to advertise a position as identified for members of a particular race.
However, at the same time, the Respondent has not provided a satisfactory explanation as to why it received applications from non-Aboriginal applicants when the position had been advertised as an Aboriginal identified position. In these circumstances, there would be no reason that a non-Aboriginal person would apply for the position. It is clear that at least 2 applications were accepted from non-Aboriginal candidates. Ms Nye argues that the Board decided that it did not want an Aboriginal person in the position and solicited applications from non-Aboriginal candidates. On this basis, it is possible that Ms Nye may at hearing be able to establish that she was treated less favourably than a non-Aboriginal person in the arrangements made to determine who should be offered a position.

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