The application is struck out under section 75(1)(a) of the VCAT Act.

Mr R Fitzgerald, Chief Executive and Ms L McCourt, Primary Care Manager

1. The applicant has applied for an exemption under section 89 of the Equal Opportunity Act 2010 (EO Act) to enable it to advertise for and employ only an Aboriginal or Torres Strait Islander person as an Allied Health Assistant Trainee (the conduct).

1. The Tribunal, on receiving the application, determined that it may fall within the special measure provision of the EO Act such that no exemption was required because the conduct would not be discriminatory.[1] The Tribunal sent a copy of the application to the Victorian Equal Opportunity & Human Rights Commission (VEOHRC). The Commission told the Tribunal that it did not seek leave to intervene in and be joined as a party to the proceeding under section 159 of the EO Act_._

1. A hearing was held on 14 December 2011 and evidence was given on behalf of the applicant by Mr R Fitzgerald, Chief Executive and Ms L McCourt, Primary Care Manager. The Order set out above was made. These are the reasons for that decision.

1. The EO Act is protective legislation that seeks to ensure that persons with named attributes are not discriminated against because of those attributes in relation to specified activities or classes of activities. The EO Act declares prohibited certain forms of discrimination. Included in those prohibitions is discrimination on the basis of race which is defined to include descent or ancestry.[2] Sections 16 and 18 of the EO Act prohibit discrimination on the basis of a protected attribute such as race in the context of job applicants and employees. Section 107 prohibits requesting discriminatory information. Section 182 makes an offence of discriminatory advertising.

1. Section 89 of the EO Act empowers the Tribunal to grant exemptions to enable an applicant to engage in conduct which would otherwise be prohibited. Where an exemption is granted it allows the relevant conduct to be engaged in for a specified period of time not exceeding five years.

1. Section 90 of the EO Act says that, in deciding whether to grant, renew or revoke an exemption, the Tribunal must consider:

(a) whether the proposed exemption is unnecessary because -

• (i) an exception or exemption in this Act already applies to the conduct sought to be exempted; or

• (ii) the conduct sought to be exempted would not amount to prohibited discrimination; and

(b) whether the proposed exemption is a reasonable limitation on the right to equality set out in the Charter of Human Rights and Responsibilities; and

(c) all the relevant circumstances of the case.

1. As to section 90(a)(i), there is no exception in the EO Act or current exemption which applies to the conduct.

1. Section 90(a)(ii) raises the special measure provision contained in section 12 of the EO Act. Section 12 says:

(1) A person may take a special measure for the purpose of promoting or realising substantive equality for members of a group with a particular attribute.

(2) A person does not discriminate against another person by taking a special measure.

(a) be undertaken in good faith for achieving the purpose set out in subsection (1); and

(b) be reasonably likely to achieve the purpose set out in subsection (1); and

(c) be a proportionate means of achieving the purpose set out in subsection (1); and

(d) be justified because the members of the group have a particular need for advancement or assistance.

(4) A measure is taken for the purpose set out in subsection (1) if it is taken -

(5) A person who undertakes a special measure may impose reasonable restrictions on eligibility for the measure.

(6) A person who undertakes a special measure has the burden of proving that the measure is a special measure.

(7) On achieving the purpose set out in subsection (1), the measure ceases to be a special measure.

1. The consequence of section 12(2) is that, if the conduct in issue is a special measure, it is not discriminatory. Accordingly, if the conduct is a special measure, the applicant does not require an exemption from the provisions which would otherwise render the conduct discriminatory and prohibited.

1. There is a significant body of Australian and international law regarding special measures and their nature.[3] The Objectives section of the EO Act and the part of the Explanatory Memorandum to the Equal Opportunity Bill 2010, which deals with clause 12, summarises much of it effectively. These matters have been discussed by me in three recent Tribunal decisions and I take the same approach here.[4]

1. It is convenient to note here that, following section 12(1) in the EO Act, are three examples, one of which says as follows:

A company operates in an industry in which Aboriginal and Torres Strait Islanders are under-represented. The company develops a training program to increase employment opportunities in the company for Aboriginal and Torres Strait Islanders.

1. As a consequence of section 36A of the Interpretation of Legislation Act 1984, examples are not exhaustive and may extend, but not limit, the meaning of the provision.

The Tribunal had before it an affidavit sworn by Mr Fitzgerald, supporting documentary material and the evidence given by Mr Fitzgerald and Ms McCourt. The following is a summary of the relevant parts of that material.

The applicant provides health care to the residents of the Stawell District and has done so for 150 years. The applicant has a 29 bed ward and six surgery beds, a birthing suite, operating theatres and an accident and emergency department. It also has a medical imaging department, pharmacy department and pathology services. Its services include post-acute care, chemotherapy, diabetes education, dietetics, speech pathology, physiotherapy, occupational therapy, podiatry and social work. Outreach programs are offered and include home based midwifery and District Nursing. The applicant employs approximately 250 people who fill 150 full time equivalent positions.

The applicant currently employs one Aboriginal person. The Tribunal was informed that Aboriginal and Torres Strait Islander people make up approximately 0.7% of the total Shire population. Recent statistics indicated that Aboriginal or Torres Strait Islander patients made up 0.6% of the total number of patients cared for by the applicant.

The applicant works in partnership with a local Aboriginal controlled co-operative organisation called Budja Budja (the Co-Operative). That partnership leads to the applicant providing support to the Co-Operative's health related services, including its clinic, which operates three days per week. The partnership seeks to provide an avenue for local Aboriginal and Torres Strait Islander people who attend or use the Co-operative's programs to be connected to the services offered by the applicant.

Due to the demographics of the applicant's rural workforce, it employs a number of permanent part time staff in both physiotherapy and occupational therapy roles. The applicant has a long-term plan to support those health professionals through allied health staff working with them and their patients. The Allied Health Assistant Trainee role has been funded in part by a non-recurrent grant from the Medical Workforce Branch of the Department of Health under its Closing the Gap program.

The applicant seeks to employ only an Aboriginal or Torres Strait Islander to assist in increasing the use of the applicant's services by the local Aboriginal and Torres Strait Islander community. The successful position holder will be seconded to the Co-operative to work to assist that part of the local community to be made aware of and to access the applicant's services. By having a worker with the same background as those community members, the applicant believes that accessing of services will increase to the benefit of those community member's health and well-being. At present, an Aboriginal Allied Health Worker is involved in this type of liaison role, which has, from time to time, included transporting Aboriginal and Torres Strait Islander people to hospital in emergencies.

Although the position has a limited tenure of 12 months, the successful position holder will receive valuable experience and certificate training. The applicant seeks to offer a career option and pathway for members of the Aboriginal and Torres Strait Islander community.

2. In the three earlier decisions referred to above, I set out material concerning the disadvantages experienced by Indigenous people in Australia based on Australian Bureau of Statistics (ABS) information.[5] The areas of most relevance are the lower rates of employment, lower income levels, matters relating to health which impact on a person's overall well being and the rates of discrimination. I rely on that material here.

1. I will now turn to the application of this material to the requirements of section 12.

1. The attribute with which the conduct is concerned is race, which includes descent or ancestry. That attribute is protected under the EO Act.

1. I find on the evidence before me that the applicant's purpose for engaging in the conduct is to assist to increase the use of its wide range of services, particularly those offered by allied health professionals, by the local Aboriginal and Torres Strait Islander community. A further purpose is to provide employment and training to an Aboriginal or Torres Strait Islander person.

Is the purpose to promote or realise substantive equality for members of a group with a particular attribute?

1. These words in section 12(1) comprise a test for establishing a special measure. The matters set out in sub-section (3) contain further requirements for an EO Act special measure. I will consider the question raised in 12(1) in the context of the section 12(3) requirements.

Section 12(3)(a) - Is the special measure to be undertaken in good faith?

1. I find on the evidence heard that the conduct is to be undertaken in good faith for the purposes of increasing the use of the applicant's health services by the local Aboriginal and Torres Strait Islander community and to provide employment and training to an Aboriginal or Torres Strait Islander person.

Section 12(3)(b) - Is the special measure reasonably likely to achieve the purpose?

1. I am satisfied that, through the connection with the Co-Operative and through an Aboriginal or Torres Strait Islander person communicating with other Aboriginal and Torres Strait Islander people about health concerns and services, the purpose of increasing access is reasonably likely to be achieved. Further on an Aboriginal or Torres Strait Islander Australian being employed in this position, that individual will clearly benefit in the way intended. I find that the conduct is reasonably likely to achieve the applicant's purposes.

Section 12(3)(c) - Is the measure a proportionate means of achieving the purpose?

1. Given that there is currently only one Aboriginal staff member out of a total workforce of 250 and the applicant's intention that the successful position holder will seek to engage mainly with other Aboriginal and Torres Strait Islander people, I find that the conduct is a proportionate means of achieving the applicant's purposes.

Section 12(3)(d) - Is the measure justified because there is a particular need for advancement or assistance?

1. The ABS information referred to in previous decisions and adopted here, makes clear that Aboriginal and Torres Strait Islander Australians as a group suffer many forms of disadvantage. I am satisfied that the statistical material establishes the need for advancement and assistance so that Aboriginal and Torres Strait Islander people have greater opportunities to receive appropriate health care and for employment. Taking into account the applicant's evidence, the ABS information and the terms of section 12, I find that the measure represented by the conduct is justified.

1. When the purposes of increasing the use of its health services by the local Aboriginal and Torres Strait Islander community and to provide employment and training to an Aboriginal or Torres Strait Islander person are considered in the context of the matters discussed above, it is apparent that the purpose of the applicant's conduct is to realise substantive equality for Aboriginal and Torres Strait Islander people. I find that the conduct is a special measure under section 12(1) and that it has been shown to be necessary, genuine, objective, and justifiable.

1. Section 90(b) of the EO Act requires that, in considering exemption applications, the Tribunal must consider whether the conduct is a reasonable limitation on the right to equality set out in the Charter of Human Rights and Responsibilities Act 2006 (the Charter).

2. The Charter right to equality is found in section 8 and says:

(1) Every person has the right to recognition as a person before the law.

(2) Every person has the right to enjoy his or her human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

1. The Charter defines discrimination to mean "discrimination (within the meaning of the Equal Opportunity Act 2010) on the basis of an attribute set out in section 6 of that Act."

2. Section 8(4) is a special measures provision. The meaning and effect of the section was discussed by Bell J in Lifestyles Communities Ltd (No 3).[6] The immediate consequence of it being a special measure provision is that, even if a measure or conduct would limit a person's enjoyment of the right to recognition and equality, it would not be necessary to establish that the limitation is justified under the test applied by section 7 of the Charter. That is because there is no issue of incompatibility and so the measure would not limit the section 8 right.

1. Applying the evidence and reasoning set out above to section 8(4), I am satisfied that the conduct is a special measure of the kind discussed by Bell J and that, having regard to the ABS statistical information, the disadvantage that the measure seeks to remedy has been caused by past and continuing direct and indirect discrimination. Accordingly, I find that the Charter right in section 8 will not be limited by the conduct.

1. The material before the Tribunal supports a conclusion that the conduct is a special measure. That conclusion is supported by the example referred to earlier, which was placed in the EO Act by the legislature.

2. For these reasons, the Tribunal was satisfied that it was appropriate to make a declaration under section 124 of the Victorian Civil & Administrative Tribunal Act 1998 (VCAT Act) that the conduct is a special measure under section 12 of the EO Act. Accordingly, under section 12(2) of the EO Act the applicant would not discriminate against another person contrary to the EO Act by taking that special measure. In those circumstances, section 90(a)(ii) of the EO Act has the effect that, as the conduct would not amount to discrimination, no exemption under section 89 was required.

3. Section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1988 allows the Tribunal to strike out an application where it is misconceived. To the extent that no exemption was required, the application was misconceived and so an order was made striking it out.

[2] See section 6 which sets out the list of attributes on the basis of which discrimination is prohibited and the definition of "race" contained in section 4 of the EO Act

[3] In particular see Gerhardy v Brown [1985] HCA 11; 159 CLR 70; Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250; (2004) 140 FCR 149; Lifestyle Communities (No 3) [2009] VCAT 1869 which includes a detailed discussion of special measures provisions and Australian and international decisions in the context of the Charter of Human Rights and Responsibilities Act 2006; the International Convention on the Elimination of All Forms of Racial Discrimination and like conventions

[4] The Ian Potter Museum of Art, The University of Melbourne [2011] VCAT 2236; Cummeragunja Housing & Development Aboriginal Corporation [2011] VCAT 2237; Parks Victoria [2011] VCAT 2238

[5] See for example The Ian Potter Museum of Art, The University of Melbourne at para [26]

[6] [2009] VCAT 1869