Re: Mackay Regional Council [2022] QIRC 064

Date: 4 March 2022
Court/Tribunal: Queensland Industrial Relations Commission
Judicial Officer/Tribunal Member: Power IC
Human Rights Act 2019 (Qld) Sections: ss 5, 8, 9, 13, 15, 48 and 58
Rights Considered: N/A
Other Legislation: Anti-Discrimination Act 1991 (Qld) ss 7, 14, 15, 15A, 104, 105, 113, 127 and 174B
Keywords: Education, Training and Employment; Discrimination

This case concerned an application by the Mackay Regional Council to receive an exemption under s 113(1) of the Anti-Discrimination Act 1991 (Qld) in order to recruit only people who identify as Aboriginal and Torres Strait Islander to apprentice/trainee positions. The Commission held that the exemption sought was a measure within the meaning of section 15(5) of the Human Rights Act 2019 (Qld) and thus granted the exemption.

This case concerned an application by the Mackay Regional Council to receive an exemption under s 113(1) of the Anti-Discrimination Act 1991 (Qld) in order to recruit only people who identify as Aboriginal and Torres Strait Islander to apprentice/trainee positions.

The Queensland Human Rights Commission made submissions highlighting that the terms of any exemption granted should consider the right to recognition and equality before the law under section 15(3) of the Human Rights Act 2019 (Qld). The Commission highlighted that any exemption granted would either constitute a special measure that did not limit human rights (under section 15(5) of the Human Rights Act 2019 (Qld)) or, if it did limit human rights, would require an assessment under section 13 of whether those limits were justifiable: at [9]. The Commission did not oppose the principle of targeting recruitment to groups who are under-represented in particular industries where it can be justified as a special measure under section 15(5): at [10].

In its decision, the Queensland Industrial Relations Commission noted its obligation to interpret the Anti-Discrimination Act 1991 (Qld) in accordance with human rights under section 48 of the Human Rights Act 2019 (Qld). Citing The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors [2020] QSC 54, the Commission interpreted this obligation as requiring that ‘the provisions must be interpreted, to the extent possible that is consistent with their purpose, in a way that is “compatible with human rights”’: at [34]. It further noted that the Commission acts in an administrative capacity when deciding exemption applications under the Anti-Discrimination Act 1991 (Qld), thus is obligated under section 58 of the Human Rights Act 2019 (Qld) not to make a decision that is not compatible with human rights and must not fail to give proper consideration to human rights relevant to the decision: at [21].

The Commission noted that the exemption would engage the human rights outlined in sections 15(3) and 15(4) of the Human Rights Act 2019 (Qld), in that ‘it would allow discriminatory conduct to take place affecting a person's entitlement to equal protection of the law without discrimination and a person's right to equal and effective protection against discrimination’: at [28].

However, the Commission considered that the exemption sought could be a measure within the meaning of section 15(5) of the Human Rights Act 2019 (Qld), which provides ‘that measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination’: at [30]. Referring to Lifestyle Communities Ltd (No 3) (Anti-discrimination) [2009] VCAT 1869, the Commission held that the measure ‘must be for the purpose of ameliorating disadvantage caused by discrimination and the persons or groups to be assisted or advanced must be suffering disadvantage from that cause’: at [31]. The Commission was satisfied that Aboriginal and Torres Strait Islander people are disadvantaged because of discrimination: at [33]. Thus, the exemption sought by Mackay Regional Council was a measure within the meaning of section 15(5), did not constitute discrimination, and would not limit a human right: at [36]. For these reasons, the exemption was granted.

Visit the judgment: Re: Mackay Regional Council [2022] QIRC 064