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

Ms S Fitzgerald and Ms E Bateman, Senior Legal Advisors

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 Indigenous person in the role of Vizard Foundation Assistant Curator (the proposed 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 proposed conduct would not be discriminatory.[1] The Tribunal listed the application for a directions hearing so this matter could be raised. The Tribunal sent the Victorian Equal Opportunity & Human Rights Commission (VEOHRC) a copy of the application and the notice of hearing.

1. At the directions hearing, VEOHRC sought leave to intervene in and be joined as a party to the proceeding under section 159 of the EO Act_._ Leave was granted. A timetable for submissions was made. The matter returned to the Tribunal for a hearing on 26 October 2011 and the Declaration and Order set out earlier were made. These are the reasons for that decision.

2. The submissions prepared by the applicant and VEOHRC were of great assistance.

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. Those activities include employment, education, the provision of goods and services, accommodation and in relation to clubs and sports. In this way, the EO Act seeks to assist all persons to have equality of opportunity and treatment.

2. 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 proposed 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 proposed conduct is a special measure, the applicant does not require an exemption from the provisions which would otherwise render the proposed conduct discriminatory and prohibited.

1. There is a significant body of Australian and international law regarding special measures and their nature.[3] It is not necessary to traverse that law as 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.

(d) to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that -

(i) discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society;

(ii) equal application of a rule to different groups can have unequal results or outcomes;

(iii) the achievement of substantive equality may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures;

1. Relevant parts of the Explanatory Memorandum say:

Including the special measures provision within Part 2 of the Bill reflects the intention that special measures be viewed as a means of progressively realising substantive equality, rather than as an exception to discrimination. The objectives of the Bill also recognise special measures as one of the means by which equality may be progressively realised, as far as reasonably practical.

Subclause (1) requires that a special measure must have the purpose of promoting or realising substantive equality for members of a group with a particular attribute

Subclause (3) lists factors that a measure must satisfy in order to be deemed a special measure for the purposes of the Bill. These factors reflect the intention that the purpose of a special measure must be necessary, genuine, objective, and justifiable.

In addition, the measure itself must be reasonably likely to achieve its remedial purpose and be a proportionate means of achieving that purpose. These factors do not specifically require consultation with the group that is to be assisted or advanced by the measure in question. However, in practice, evidence of some consultation with the group to be assisted or advanced is likely to be necessary. It is not intended that special measures under clause 12 authorise conduct that is not wanted and not welcome by the target group.

1. Unlike many of the Federal and State legislative provisions considered in the cases, sections 12(1), (3) and (4) explicitly state the tests to be applied to decide if the relevant conduct is a special measure. Those tests arise from the case law and can be used to inform how the provisions should be read and applied. That is the approach I have taken.

2. 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.

1. The Tribunal had before it an affidavit sworn by Mr Christopher Menz, Acting Director of the applicant, and supporting documentary material. The following is a summary of the material.

2. The applicant is part of The University of Melbourne (the University). In September 2010 the Senior Executive of the University endorsed the Indigenous Employment Framework 2010-2013 (Framework). Under that Framework, a copy of which was before the Tribunal, the University recognised the contribution of Indigenous people to Australia and the past disadvantage experienced by Indigenous people. Reference was made to statistics regarding the proportion of Indigenous people within the total Australian population included in the 2006 Census undertaken by the Australian Bureau of Statistics (ABS) and, in general terms, the disadvantage experienced by Indigenous people as compared to the non-Indigenous population.

3. The University has committed to increasing the number of Indigenous employees so that they are of a number which is consistent with the proportion of Indigenous people as compared to non-Indigenous people in the wider Australian community. As at June 2009 the University employed approximately 30 Indigenous people in full time and fixed term positions in both academic and professional positions. The positions ranged from entry level roles to professors. As at August 2011, the University had 21 Indigenous staff and it is working on a five year plan to increase that number to 63 by December 2015.people. As at 30 June 2099 the University employed approximately 7,270 people.

4. Many of the current Indigenous staff are engaged within the University's Indigenous programs which work with Indigenous communities and engage in teaching and research. The University will not be able to reach its employment target only through those existing and similar future programs. It wishes to build mainstream employment opportunities across the University and at all levels. The Framework's goal is for all faculties and administrative divisions to implement policies, practices and programs to increase the representation of Indigenous people within all areas and at all levels across the University. The Framework outlines how these goals are to be implemented and achieved.

1. The Vizard Foundation Assistant Curator position has been developed in the light of the Framework. The job description shows that it has been funded by the Vizard Foundation and will be a fixed position available for two years. Curatorial positions are highly contested. The applicant says that it seeks to redress the imbalance of Indigenous Australians representation within the University and within the Australian art museum profession as a whole by appointing only an Indigenous person to the position. The applicant currently has one Indigenous employee out of a staff of 15. By far the overwhelming majority of curatorial positions in Australian art museums are held by non Indigenous people.

1. The applicant stated that, at present, it is not common to hear an Indigenous curator speaking about Indigenous art and it is even more rare for non-Indigenous art to be interpreted by an Indigenous curator. Most Indigenous curators in Australian art museums look after Indigenous art only. The Vizard Foundation Assistant Curator position is unique in that the successful applicant will be trained to work with both Indigenous and non-Indigenous art and thereby receive broader training and a widening of career opportunities.

1. I accept that evidence and the applicant's submissions.

2. In the leading High Court of Australia decision on special measures, Gerhardy v Brown, Gibbs CJ said that the Court could take judicial notice of facts that are "notorious". In that case, the Court had regard to a report prepared by a working party on the Indigenous people living in a particular area and their various language or dialect groupings.[4] Under section 144 of the Evidence Act 2008 proof is not required about knowledge that is not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned. Although the Tribunal is not bound by the Evidence Act 2008, that provision is consistent with the common law concept of judicial notice. In the context of an equivalent of section 144, the Federal Court took judicial notice of the historical and persisting disadvantage of women in relation to their participation and career advancement within the legal profession.[5]

1. In my view ABS statistics and reports ought to be treated as falling within the category of material of which a court or tribunal may take judicial notice. ABS materials show:

• In the 2006 Census, Indigenous people made up approximately 2.5% of the Australian population;[6]
• In 2008, 65% of Indigenous people over the age of 15 were participating in the workforce as compared to a 79% participation rate for non-Indigenous people. In 2008, the unemployment rate for Indigenous people was 17% as compared to 5% for non-Indigenous people;[7]
• In 2006, 23% of Indigenous people aged over 15 years had completed Year 12, in comparison to 49% of non-Indigenous people.[8] In 2006 the proportion of 16 year old Indigenous students attending school was 59% as compared to 85% of 16 year old non-Indigenous students;[9]
• At the national level for 2005-2007, the gap between Indigenous and non-Indigenous life expectancy was 11.5 years for males and 9.7 years for females. Life expectancy at birth for Indigenous males is estimated to be 67.2 years, and 72.9 years for females;[10]
• In the period 2004-2005, after adjusting for differences in age structure, Indigenous people aged 15 years and over were almost twice as likely as non-Indigenous people to assess their health as fair or poor;[11]
• In 2006, the mean equivalised gross household income for Indigenous persons was 62% of that of non-Indigenous persons;[12]
• In 2006, 34% of Indigenous households were home owners as compared to 69% of non-Indigenous households;[13] and
• In 2008, 32% of Aboriginal and Torres Strait Islander people aged 15 years and over reported high to very high levels of psychological distress. Rates were particularly high among those with a disability or long-term health condition, those who had been victims of violence or who had experienced discrimination. More than one-quarter (27%) of Aboriginal and Torres Strait Islander people aged 15 years and over had experienced discrimination in the previous 12 months.[14]

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

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

1. The purpose of a special measure is to be found by considering the actual intention of the party undertaking that measure, rather than by looking to its effect.[15] Any fact which shows what the persons who promote the taking of a measure intend, points to the purpose for which it is to be taken, provided that the measure is not obviously incapable of achieving what is so intended. Those intentions must be proven on the facts.[16]

2. Under section 12(4) a measure may be taken for more than one purpose.[17] There is no requirement that it be a dominant or substantial purpose but it must be proven. It must be a real purpose.

3. The material regarding the creation of the Vizard Foundation Assistant Curator position and the fact that it requires the appointment of an Indigenous person only, points to one purpose being to provide an employment opportunity for an Indigenous person. That opportunity is in the form of the particular position and also the experience and training which may lay the foundation for a future career as a curator. The material shows that another purpose is to increase the employment of Indigenous Australians within the applicant and the University as a whole in accordance with the Framework. The Framework seeks to increase the number of Indigenous Australians it employs to better reflect the proportion of Indigenous Australians within the wider Australian population. These are the applicant's purposes for the proposed conduct.

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

1. This question goes to the heart of whether the proposed conduct is a special measure. As explained in Objective (d), the measure responds to the fact that access to opportunity may not be available to all, that unequal results can arise from equal treatment and so steps may need to be taken to create true equality. In Gerhardy v Brown special measures are described as being compensatory.[18] At other times, including in the Explanatory Memorandum, they are described as being remedial.[19]

2. 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. These matters are consistent with the case law discussing whether a special measure is established and so they can be read as going to whether the purpose of the proposed conduct is to promote or realise substantive equality. To take account of that background, 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. Having found that the position of Vizard Foundation Assistant Curator has been established to provide an employment opportunity for an Indigenous person and to address the applicant and the University's intention to increase the number of Indigenous persons it employs to better reflect the proportion of Indigenous persons in the Australian population, I am satisfied that the proposed conduct is to be undertaken in good faith for those purposes.

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

1. On an Indigenous Australian being employed in this position, that individual will clearly benefit in the way intended. In addition, Indigenous Australians will benefit by another of their number being employed. The purpose of increasing the employment of Indigenous Australians within the applicant and the University as a whole is reasonably likely to be achieved.

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

1. At present, out of a staff of 15, only one employee of the applicant is Indigenous. As at June 2009, across the University as a whole Indigenous employees represented less than 0.5% of the staff. That figure is dramatically less than the number required to represent the proportion of Indigenous people in the wider population. In these circumstances, the proposed 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 words of section 12(1) contain an inference that the members of the group in issue do not experience substantive equality and that leads to the need for advancement or assistance referred to in 12(3)(d). It is not necessary for the whole group to be disadvantaged. It is sufficient if the overwhelming majority are disadvantaged.[20]

2. A measure cannot be said to be for the purpose of promoting or realising substantive equality if it is not needed as there would be nothing to compensate for or remedy. Similarly, a measure would not meet that description if it were not wanted by the persons to whom it is addressed.[21] The need must match the purpose and the measure must go no further than securing the advancement or assistance.[22]

1. The ABS information set out above makes clear that Indigenous Australians as a group suffer many forms of disadvantage. Of most relevance here 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 am satisfied that material establishes the need for advancement and assistance so that Indigenous people have greater opportunities for employment and that an appropriate way to achieve that end is, from time to time, to reserve positions for Indigenous applicants only. Taking into account the applicant's evidence, the ABS information and the terms of section 12, I am satisfied that the measure represented by the proposed conduct is justified.

1. When the purpose of reaching population parity between Indigenous and non-Indigenous staff is considered in the context of the matters discussed above, it is apparent that one of the purposes of the proposed conduct is to realise substantive equality for Indigenous applicants for the curator position. I am satisfied that the proposed 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 proposed conduct is a reasonable limitation on the right to equality set out in the Charter of Human Rights and Responsibilities Act 2006 (the Charter). This requirement is consistent with the obligation on the Tribunal, as a public authority bound by the Charter, to have regard to relevant human rights when making decisions about exemptions to ensure that those decisions are compatible with those rights.[23]

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. Two matters arise from this definition. Firstly, the reference to section 6 indicates that, for the purposes of the Charter, the reference to discrimination is more limited than discrimination under the EO Act. The EO Act prohibits direct and indirect discrimination on the basis of an attribute or as a result of a contravention of one of the obligations to make accommodations or adjustments.[24] The Charter definition only refers to the former.

3. Secondly, because a special measure under the EO Act is not discrimination, arguably where a special measure applies, the rights which turn on discrimination in section 8 of the Charter will not arise. That is, Charter right 8(2) will not be engaged when an individual's rights are being impacted or affected by a special measure because, under the EO Act, the conduct which constitutes the special measure is not discrimination. This position also extends to the right to the equal protection of the law without discrimination and the right to equal and effective protection against discrimination (section 8(3)). Where it is said that those rights are affected by discrimination, the fact that the conduct or measure is an EO Act special measure means the Charter right may be put to one side. The section 8(3) Charter right that everyone is equal before the law is not necessarily only connected to the concept of discrimination and so it may arise where the claimed breach does not arise from discrimination on the basis of an attribute.

4. These comments are made because the EO Act special measures provision is new and its interrelationship with section 8 of the Charter is necessarily also new. This potential limitation may not have been intended. In my view, given the expansive and important objects of the Charter, it would be inappropriate to exclude consideration of the protected rights on an overly technical reading of the legislation. Further, it may be that there are circumstances where a Charter right, other than under section 8, arises and requires consideration by the Tribunal to meet its obligation under section 38(1) of the Charter. On that basis I have proceeded to consider the whole of the terms of section 8. I am satisfied that the proposed conduct does not raise any other Charter right which requires separate consideration.

1. Section 8(4) is a special measures provision. The immediate consequence 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. Section 8(4) is framed in the more common short form version of special measures provisions. It includes a requirement that the disadvantage which the measure seeks to remedy is because of discrimination. This is an important difference from the EO Act section 12 special measure. The latter is focussed on the purpose of the measure and how it relates to the group who share an attribute. As it does not require the need for the special measure to arise as a result of discrimination, it is broader than the Charter special measure provision.

1. The meaning and effect of section 8(4) was discussed by Bell J in Lifestyles Communities Ltd (No 3). His Honour drew on the same jurisprudence which has informed the drafting of section 12 of the EO Act. He found that, in addition to proving the purpose of the measure, why it is needed and the nature of the disadvantage the measure seeks to remedy, the discrimination which is the cause of the disadvantage must be proven. That last task can be readily addressed here because of the ABS information set out above.

1. In another case it may be more difficult to prove on the facts that the relevant disadvantage is due to discrimination. That could mean that, although the specific conduct or measure is a special measure under the EO Act, it may not be such a measure under the Charter. If that were the case, it would be necessary to have recourse to the justification test in the Charter. One could expect that, if there were sufficient reasons to conclude that the conduct or measure was a special measure under the EO Act, it would be able to be justified under the Charter on the same material.

1. Returning to the present matter, applying the available material and reasoning set out above to section 8(4), I am satisfied that the proposed conduct is a special measure of the kind discussed by Bell J and that the disadvantage that the measure seeks to remedy has been caused by past and continuing direct and indirect discrimination. Accordingly the Charter right in section 8 will not be limited by the proposed conduct.

1. Using the words of Wilson J in Gerhardy v Brown,[25] in my opinion the proposed conduct bears upon its face the clear stamp of 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 proposed 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 proposed 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] At [20] and 87-88 after referring to Breen v Sneddon [1961] HCA 67; (1961) 106 CLR 406 and Commonwealth Freighters Pty Ltd v Sneddon [1959] HCA 11; (1959) 102 CLR 280; See also Mason J's comments in Gerhardy v Brown regarding matters of general public knowledge at [46] and 105;see also Jacomb v Australian Municipal Administrative Clerical and Services Union per Crennan J at [34] and 160-161

[5] Victorian Women Lawyers Association Inc v Commissioner of Taxation [2008] FCA 983 at [116]; [2008] FCA 983; (2008) 250 ALR 516 at 543-544

[6] 2006 Census - A Picture of the Nation p 16

[7] The Health and Welfare of Australian Aboriginal and Torres Strait Islander Peoples 2010

[8] The Health and Welfare of Australian Aboriginal and Torres Strait Islander Peoples 2008 p 249

[9] 2006 Census - A Picture of the Nation p 117

[10] The Health and Welfare of Australian Aboriginal and Torres Strait Islander Peoples 2010

[11] 2008 National Aboriginal and Torres Strait Islander Social Survey

[12] Population Characteristics of Aboriginal and Torres Strait Islander Australians p 103

[13] The Health and Welfare of Australian Aboriginal and Torres Strait Islander Peoples 2008 p 12

[14]The Health and Welfare of Australian Aboriginal and Torres Strait Islander Peoples 2010

[15] Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250; (2004) 140 FCR 149, per Crennan J at [47] and 165; Lifestyle Communities (No 3) [2009] VCAT 1869 per Bell J at [262]

[16] Gerhardy v Brown per Brennan J at [36] and 135

[17] Compare the Commonwealth Racial Discrimination Act 1975, with which Gerhardy v Brown was concerned, which contained a sole purpose test; see also section 7D of the Commonwealth Sex Discrimination Act 1984 which refers to the dominant or substantial purpose of the measure

[18] See Brennan J's decision at [27] and 130 quoting McKean Equality and Discrimination Under International Law (1983) at page 288

[19] Lifestyle Communities Ltd (No 3) at [262] - [263]

[20] Lifestyle Communities Ltd (No 3) at [273]

[21] Gerhardy v Brown per Brennan J at [37] and 135; further discussed by Bell J in Lifestyle Communities Ltd (No 3) [239]

[22] Gerhardy v Brown per Brennan J at [40] and 137

[23] See section 38(1) of the Charter

[24] See section 7(1)(a) and (b) of the EO Act

[25] At [10] and 113 of Wilson J's judgment