Yorta Yorta Nation Aboriginal Corporation - special measure declaration (Human Rights) [2014] VCAT 888

The applicant has applied for an exemption under section 89 of the Equal Opportunity Act 2010 (EO Act) to enable the applicant to advertise for and employ only an Indigenous person in the role of Chief Executive Officer (the conduct).

On the material filed in support of the application, including the affidavits of Leon Atkinson, the Tribunal is satisfied that the conduct is a special measure under the EO Act. The Tribunal noted:

• A copy of the application was sent by the Tribunal to the Victorian Equal Opportunity and Human Rights Commission (the Commission). The Commission did not seek leave to intervene in the proceeding.

• The applicant is a not for profit organisation. Its primary focus is seeking to fulfil the mandate of the Yorta Yorta peoples including by improving their health and wellbeing, relieving poverty and sickness, caring for elders and advancing the education and employment prospects of the Yorta Yorta people. The applicant and the State Government signed a co-operative management agreement relating to public land and waters in north central Victoria. The applicant is a Registered Aboriginal Party under the Aboriginal Heritage Act 2006 and has a number of agreements to manage land and sites of significance.

• The Chief Executive Officer is responsible for the effective management of the activities of the applicant and will be required to work with the applicant's Board to ensure that the organisation implements its strategic business plan, has a high level of organisational accountability and transparency to stakeholders. The position holder will need to have an extremely strong understanding of the history, objectives, group dynamics and sensitivities of the Yorta Yorta community. The Chief Executive Officer is responsible for the maintenance of cultural protocols focusing on continuing the work of Yorta Yorta ancestors.

• Given the nature of the applicant organisation, its focus on the members of the Yorta Yorta community, its role in managing and protecting areas of Victoria of historical and cultural significance to Indigenous Victorians and the responsibilities of the Chief Executive Officer, it is appropriate that an Indigenous person undertake that role. This position will offer a significant employment opportunity for the individual who is appointed.

Accordingly, under section 124 of the Victorian Civil & Administrative Tribunal Act 1998 (VCAT Act), the Tribunal declares that the conduct is a special measure under section 12(1) of the EO Act.

Under section 12(2) of the EO Act, the applicant will not discriminate against another person contrary to the EO Act by taking that special measure. Having regard to the considerations in section 90 of the EO Act, the Tribunal is satisfied that no exemption under section 89 is necessary.

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 is required for the conduct, the application is misconceived and so it is struck out under section 75(1)(a).