Lethbridge v State Housing Commission of Wa (Homeswest) [1997] HREOCA 3 (28 January 1997)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

RACIAL DISCRIMINATION ACT 1975 (CTH)

No. H96/116

Between:

Keith Lethbridge

Complainant

And:

State Housing Commission of Western Australia (Homeswest)

Respondent

REASONS FOR DECISION

of

Sir Ronald Wilson

President

Location of Hearing: Perth

Hearing Date: 29 October 1996

Date of Decision: 28 January 1997

Appearances: The complainant appeared in person.

Richard Hooker of the Crown Solicitor's Officeappeared for the respondent.

1. INTRODUCTION

This is an inquiry pursuant to s.25A(1) of the Racial Discrimination Act 1975 (Cth) ("the Act") into a complaint by Keith Lethbridge against Homeswest. Homeswest is the trading name for the State Housing Commission of Western Australia and in keeping with common practice I will refer to the respondent as Homeswest.

Mr Lethbridge lodged his complaint with the Human Rights and Equal Opportunity Commission ("the Commission") on 18 July 1995 alleging discrimination pursuant to sections 9 and 15 of the Act.

The complainant alleges he has been discriminated against on the basis of his race in the area of employment by the respondent. He complains that, although he was a highly competitive applicant for the position of Regional Project Manager with the respondent, it did not consider that he was a genuine contender because he was not an Aborigine. The respondent states that Aboriginality was considered a genuine occupational qualification for the position in terms of s.50(d) of the Equal Opportunity Act 1984 (WA); that in accordance with that section the position was "tagged" as an "Aboriginal identified" position; that Mr Lethbridge did not meet several other essential criteria for the position; and that the exception provided by s.8(1) of the Act (the "special measures" provision) applies so as to render the alleged discriminatory act not unlawful.

Conciliation in this matter was unsuccessful. On 17 June 1996 the Race Discrimination Commissioner, being of the opinion that the nature of the matter was such that it should be referred to the Commission, referred the complaint to the Commission for public inquiry.

The inquiry was conducted by the Commission in Perth on 29 October 1996.

2. THE LAW

The relevant provisions of the Act are:

8. (1) This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10 (1) applies by virtue of subsection 10 (3).

(2) . . .

9. (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A) . . .

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

(3) . . .

(4) The succeeding provisions of this Part do not limit the generality of this section.

15. (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:

(a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;

(b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or

(c) . . . ;

by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.

(2) It is unlawful for a person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment less favourably than other persons in the same circumstances by reason of the race, colour or national or ethnic origin of the person so seeking employment or of any relative or associate of that person.

(3) . . .

18. Where:

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done for that reason.

18A. (1) Subject to subsection (2), if:

(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and

(b) the act would be unlawful under this Part if it were done by that person;

this Act applies in relation to that person as if that person had also done the act.

(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.

The International Convention on the Elimination of all forms of Racial Discrimination ("the Convention").

Article 1(4)

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

The Equal Opportunity Act 1984 (WA)

50. Nothing in this Part applies to or in respect of any work or employment where that work or employment involves any one or more of the following-

(a) . . .

(d) providing persons of a particular race with services for the purpose of promoting their welfare where those services can most effectively be provided by a person of the same race.

3. THE FACTS

3.1 The position of Regional Project Manager

Four positions of Regional Project Manager with the Aboriginal Housing section of Homeswest were advertised in the Public Service Gazette on 22 March 1995 and in the West Australian newspaper on 25 March 1995.

The advertisement stated that the position required the following qualifications and experience:

"Experience in project management and evaluating and developing housing projects, essential. Relevant experience in service delivery to remote Aboriginal and Torres Strait Island communities also essential. For this position Aboriginality is a genuine occupational qualification and is authorised under section 50(d) of the Equal Opportunity Act 1984."

The advertisement described the duties of the position in the following terms:

"Assists Aboriginal and Torres Strait Islander communities to develop housing management plans and allocates capital upgrading resources to remote and urban Aboriginal communities."

The Statement of Duties in respect of the position indicated that the position had three chief components: project management, planning, and liaison. The details of the project management duties were described in the Statement of Duties in descending order of importance as follows:

"1.1 Manages housing construction capital upgrade projects;

1.2 Maintains budget control over projects and authorises expenditure within limits of delegated authority;

1.3 Establishes evaluation program to measure performance of project outcomes;

1.4 Evaluates and develops employment strategies, time frames and critical path flows for each project;

1.5 Conducts community planning workshops to develop housing management strategies;

1.6 Develop maintenance programs with recurrent budgets;

1.7 Assists remote and urban Aboriginal and Torres Strait Islander communities in the management of housing stock;

1.8 Arranges employment of consultants within delegated authority;

1.9 Arranges calling of tenders and recommends acceptance; and

1.10 Responsible for meeting targets set by Manager, Remote Programs."

The details of the planning duties were described in descending order of importance as follows:

"2.1 Develops capital upgrade and maintenance programs to assist communities with housing management plans.

2.2 Develops, implements, monitors and evaluates projects in relation to management support program and other initiatives.

2.3 In consultation with relevant Government departments and communities implement strategies for emerging communities for effective self management.

2.4 Develops funding submissions with communities for submission to the Aboriginal Housing Board and ATSIC regional councils."

The details of the liaison duties were described in descending order of importance as follows:

"3.1 Consults with Aboriginal and Torres Strait Islander people regarding their needs and priorities in relation to Management Support Program.

3.2 Liaises with Financial Controls Officer on development of financial controls and systems, funding arrangements, monitoring, evaluation and acquittal of project funds."

The selection criteria for the position were broken into two parts: essential and desirable.

The essential selection criteria were:

" (1) Experience in project management and evaluating and developing housing projects.

(2) Well developed written and verbal communication skills.

(3) Demonstrated interpersonal skills including ability to consult and negotiate with public and private sector personnel.

(4) Ability to work in a team environment and prioritise work.

(5) Ability to effectively communicate with Aboriginal and Torres Strait Islander people and communities.

(6) Understanding of Aboriginal culture and issues.

(7) Relevant experience in service delivery to remote Aboriginal and Torres Strait Islander communities.

(8) Willingness to travel throughout the State including by light aircraft.

(9) Knowledge of and commitment to the principle of equal opportunity from both employment and service delivery aspects.

(10) For this position Aboriginality is a genuine occupational qualification and is authorised under s.50(d) of the Equal Employment Opportunity Act 1984."

The desirable selection criteria were:

"(1) An appropriate tertiary qualification in a related field.

(2) Knowledge of public housing issues.

(3) Basic keyboard skills.

(4) Experience in liaising with State and Federal Aboriginal support agencies.

(5) Knowledge of public housing policy.

(6) Knowledge of Government purchasing procedures."

3.2 Mr Lethbridge's application for the position of Regional Project Manager

Mr Lethbridge applied for one of the positions of Regional Project Manager and on the basis of his written application was granted an interview. The application did not disclose the race of the applicant. Mr Lethbridge was one of 6 applicants who were interviewed for the position. Mr Lethbridge's interview was conducted on 23 May 1995. The selection panel was constituted by Jody Broun, Director, Aboriginal Housing; Ron Attwood, Chairperson, Aboriginal Housing Board; and Margy Dia, Manager Town Reserves Program, Aboriginal Affairs Department.

Mr Lethbridge's application was unsuccessful. The panel assessed Mr Lethbridge as having failed to meet several of the "essential" and "desirable" selection criterion. The panel considered Mr Lethbridge as unsuitable for the position due to his failure to meet several of the selection criteria.

4. THE EVIDENCE

4.1 The complainant's evidence

Mr Lethbridge asserted that Homeswest discriminated against him in its advertising and terms of reference for the positionof Regional Project Manager. He stated,

"My complaint against Homeswest is that Aboriginality was specified as a criterion for an advertised position where this was not necessary. The advertisement demanded a specific race of people for this job, and yet: the regions where successful applicants could be working covered many different language groups; these regions cover many different cultural traditions; and the Homeswest product is not a traditional Aboriginal model. It varies from region to region in accordance with varying climates and cultural requirements, but is basically a European style of accommodation."

Mr Lethbridge testified that in support of his written application he provided "details of my experience and success in work of a similar nature in most parts of the State". He stated his application included "written references from seven Aboriginal Community leaders and letters of thanks for my work with various organisations". He wrote in his application that "I was a Milunga man within the Bunjima (Hammersley Ranges/Onslow clan), and that I had relatives and contacts throughout the Pilbara, Murchison, Gascoyne and Jigalong areas. This is all true".

Mr Lethbridge stated that the interview appeared to be progressing favourably until the question was asked: "Please elaborate on your claim to Aboriginality?" He testified that he replied that he was not Aboriginal; that he acknowledged that the positions were advertised as Aboriginal identified but that having read the legislation he believed he was eligible. He said from that point on "the atmosphere deteriorated rapidly".

Mr Lethbridge asserted he was discriminated against in the selection process. He said, "Despite having an excellent record of achievement in similar types of work over many years, I was rated poorly for these positions. By contrast, my rating for a position with Aboriginal Hostels Limited, which had many similar criteria, rated me quite highly". He added, "This experience has caused me great stress, making me feel like a criminal, trying to sneak into a job which I have no right to desire. By saying that I lacked an essential criteria to work with Aboriginal people, Homeswest is attempting to drive a wedge between myself and my own children and grand-children." He said, "Homeswest is saying, in effect, that the housing of Aboriginal members of my family is none of my concern, and that I would be unable to contribute. Their advertising suggests that I should not have applied. This is very hurtful and stressful especially after the many years I have worked towards improved conditions and reconciliation."

4.2 The respondent's evidence

The respondent denied that there has been unlawful discrimination. It asserted that Part II of the Act (which prescribes what constitutes unlawful discrimination) is inapplicable by virtue of s.8(1) of the Act and Article 1(4) of the Convention.

4.2.1 Bevan Beaver

Bevan Beaver, the Director of Corporate Services at Homeswest, testified that the main objective of Homeswest was the improvement of housing conditions. He stated that 20% of Homeswest's 38,000 properties were occupied by people of Aboriginal descent. He said that Homeswest recognised that Aboriginal people have a right to assistance with the provision of housing.

He testified that in 1994 Homeswest elevated the status of Aboriginal housing by establishing the Housing Directorate. Mr Beaver drew the Commission's attention to the "National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders" ("the National Commitment"). He said this agreement, which was endorsed by the Council of Australian Governments on 7 December 1992, was the impetus for the establishment of the Housing Directorate. Mr Beaver drew the Commission's attention to Principle 4.1. of the National Commitment. The National Commitment states,

"The Governments of Australia, in making this National Commitment have as guiding principles:

4.1 empowerment, self determination and self management by Aboriginal peoples and Torres Strait Islanders;

4.2 . . ."

Mr Beaver testified that the National Commitment led Homeswest to look at the employment of Aboriginal people within Homeswest. He said Homeswest has a high commitment to employing people of Aboriginal descent and that they have goals and targets they are trying to achieve. He said Homeswest has an employment plan for Aboriginal people which has a goal of 10% Aboriginal employment by 1997. That would represent an increase the number of staff members from 52 to 80. He said Homeswest has put in place traineeships, training and scholarships. He said Homeswest had won two awards in 1993 and 1995 for the employment of Aboriginal people.

4.2.2 Jody Broun

Jody Broun, the Director of Aboriginal Housing with Homeswest, testified that Aboriginality was an essential criterion for the position of Regional Project Manager because the position was highly consultative. She said Aboriginality provided a greater degree of acceptance. She said, "non-Aboriginal employees have more difficulty gaining acceptance". She stressed, however, that all of the selection criteria were important. She said, "You have to prove yourself, whatever your race". She stated that whilst the other criteria were important to gaining acceptance, Aboriginality gives an inherent advantage. She said the positions were highly consultative and that they involved spending up to two weeks at a time in the field. She described the role of Regional Project Manager as having to work with the community to determine development plans and upgrades. She said inherent in that is the principle of self management and self determination. She said it was more appropriate if that principle was reinforced by an Aboriginal person. She said that the self management principle finds expression in resolving problems - hence it is important for managers to be Aborigines. She said, "the workers don't do the work - they teach the community how to do the work".

Ms Broun acknowledged that as the successful applicants for the position came from widely different parts of Australia the communities they visited may not have the same language or culture. She said, however, "there is an inherent advantage in being Aboriginal because people see you as understanding better where they are coming from". She said because you are an Aborigine and because of your experiences as an Aborigine you have an insight into what is needed and you can get linked in by the families. She said that the feedback she had received indicated that all the Regional Project Officers had been accepted and that they communicated effectively with the communities. She contrasted this with feedback she had received "on a couple of non-Aboriginal people who do the job well but are not accepted despite one being a long time in the position". Ms Broun acknowledged during re-examination that had it been apparent on Mr Lethbridge's application that he wasn't an Aborigine he would not have been short listed for the position.

Ms Broun indicated that s.50(d) tags issued under the Equal Opportunity Act 1984 (WA) attached to six of the Directorate's twenty positions. She said those six positions are highly consultative. She said that the s.50(d) tag is important to the acceptance and visibility of self management. She testified that "we are probably a long way off" achieving the objectives referred to in Article 4(1) of the Convention. She said, "we are dealing with a race of people who have been historically denied jobs - you only have to look at the unemployment statistics". She said there is no end in sight yet for the s.50(d) tags because of "employment, quality of service delivery and the importance of self determination".

5. SUBMISSIONS

5.1 The complainant's submissions

Mr Lethbridge submitted that the complaint should be upheld. He said the Act is aiming to give every one an equal opportunity in employment and that discrimination in favour of one group means discrimination against another group. He submitted that any exception to this would have to be based on a reasonable reason rather than an excuse.

5.2 The respondent's submissions

The respondent submits that Part II of the Act is inapplicable by virtue of s.8(1) of the Act and Article 1(4) of the Convention.

The respondent submits that in making Aboriginality an essential criterion for the position of Regional Project Manager, when seen against a background of seeking to increase the proportion of Aboriginal people in all positions within its organisation, Homeswest is taking a special measure for the sole purpose of securing the adequate advancement of the Aboriginal race.

It submits that the measures Homeswest took under s.50(d) of the Equal Opportunity Act 1984 (WA) are capable of satisfying Article 1(4). It says the exception in s.50(d) is concerned with "providing persons of a particular race with services for the purpose of promoting their welfare where those services can most effectively be provided by a person of the same race".

The respondent drew the Commission's attention to the comments of Deane J in Gerhardy -v- Brown [1985] HCA 11; (1984-1985) 159 CLR 70 at 148-149. Deane J said:

"The question whether particular actions or provisions constitute "special measures" of the type excluded from the definition of "racial discrimination" in the Convention and, by reference in s.8(1) of the Commonwealth Act [Racial Discrimination Act 1975], from the application of Part II of the Commonwealth Act is essentially a question of characterization. Such characterization must necessarily be in a factual context. It involves among other things, the identification of the particular racial or ethnic group or groups which require or whose individuals require special and positive measures to enable equal enjoyment or exercise of human rights and fundamental freedoms and the resolution of the question whether the particular actions or provisions satisfy the requirement that they be "taken for the sole purpose of securing" an objective of the kind described in Art. 1(4). . . What is necessary for characterization of legislative provisions as having been "taken" for a sole purpose" is that they can be seen, in the factual context, to be really and not colourably or fancifully referable to and explicable by the sole purpose which is said to provide their character. They will not be properly so characterized unless their provisions are capable of being reasonably considered to be appropriate and adapted to achieving that purpose. Beyond that, the Court is not concerned to determine whether the provisions are appropriate ones to achieve, or whether they will in fact achieve, the particular purpose."

The respondent submitted that the "disadvantage of indigenous Australians has gone on for a long time and cannot be cured overnight" and further that "the stage has not yet been reached where it can be said that the provision of basic housing to Aboriginal people is on an equal footing to that of the service as regards non-Aboriginal people".

6. FINDINGS

6.1 Discrimination in employment

The initial issue is whether, save for the application of s.8(1), Homeswest has acted in contravention of the Act in the recruitment process for the position of Regional Project Manager.

Ms Broun gave evidence that Mr Lethbridge failed to be awarded the position because he had not satisfied several of the selection criteria. One of the selection criteria he failed to meet was the criterion which specified that, "For this position Aboriginality is a genuine occupational qualification . .".

It is clear from the respondent's evidence that for a number of reasons it may be advantageous to have an Aboriginal person occupy the position of Regional Project Manager. In particular the respondent stresses that in the area of consultation and liaison an Aboriginal person would have inherent advantages arising from their Aboriginality. Ordinarily, they could be expected to gain the acceptance of the communities more readily. Nevertheless, unless s.8 applies, the exclusion of applicants for employment on the basis of race is in contravention of s.15 of the Act. In that regard Ms Broun acknowledged that Mr Lethbridge could gain "acceptance" and in response to a question from him she said that she "wasn't saying he couldn't do the job".

In the light of these considerations, I find that Homeswest's actions would, subject to the operation of s.8, contravene s.15. It is therefore necessary to determine whether those actions come within the defence provided by s.8.

6.2 The exception under section 8 of the Act

In essence, the National Commitment is an acknowledgement by the Governments of Australia of the inequality and disadvantage suffered by many Aboriginal and Torres Strait Islander peoples. It is also the expression of a commitment to redress that inequality and disadvantage through the provision of improved outcomes in the areas of land, culture and heritage, economic development, social well-being and government services and to do so in a manner that will promote the empowerment, self determination and self management of the intended beneficiaries.

The Introduction to the National Commitment states:

"Heads of Government at the Special Premiers' Conference in October 1990 called for a report on the means of achieving greater co-ordination of the delivery of programs and services by all levels of government to Aboriginal peoples and Torres Strait Islanders. The Heads of Government in May 1992 endorsed the development of a multilateral national commitment to improved outcomes for Aboriginal peoples and Torres Strait Islanders and have agreed on the need to achieve greater co-ordination of the delivery of programs and services by all levels of government to Aboriginal peoples and Torres Strait Islanders."

The National Commitment states its Purpose as follows:

"The Governments of Australia:

2.1 recognise the expressed wish of Aboriginal peoples and Torres Strait Islanders for a commitment to change, and an acknowledgement of their rightful place in and right to contribute to Australian society and to share in Australia's land, wealth and resources;

2.2 recognise that a National Commitment to improved outcomes in the delivery of programs and services for Aboriginal peoples and Torres Strait Islanders is required to:

(a) redress the underlying and fundamental causes of Aboriginal peoples and Torres Strait Islander inequality and disadvantage including those identified by the Royal Commission into Aboriginal Deaths in custody;

(b) confirm that the planning and provision of government programs and services to Aboriginal peoples and Torres Strait Islanders is a shared responsibility and a legitimate policy interest of all spheres of government;

(c) agree upon key principles and national objectives; and

(d) provide a framework for bilateral agreements to be entered into between governments for the delivery of specific programs and services."

The National Objectives of the National Commitment include:

"The Governments of Australia agree to:

. . .

3.3 promote and encourage the development of greater economic independence and self reliance within Aboriginal and Torres Strait Islander communities

3.4 improve the health and social well being of Aboriginal peoples and Torres Strait Islanders, with particular attention to:

(a) . . .

(b) community housing and infrastructure;

(c) education and training;

(d) employment;

(e) community development;

(f) municipal services and infrastructure;

(g) . . .

3.5 ensure that Aboriginal peoples and Torres Strait Islanders receive no less a provision of services than other Australian citizens and in so doing aim to provide:

(a) . . .

(e) Aboriginal peoples and Torres Strait Islanders and communities with the opportunity to negotiate, manage or provide their own services."

The Principles of the National Commitment include:

"The Government of Australia, in making this National Commitment have as guiding principles:

4.1 empowerment, self determination and self management by Aboriginal peoples and Torres Strait Islanders."

It is readily apparent from reviewing the contents of the National Commitment that, in terms of Article 1(4) of the Convention, the practices or measures for which the National Commitment provides constitute "Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms . . .". In particular I refer to the Purpose, Objectives and Principles set out above.

I accept the evidence of Mr Beaver that the National Commitment was the impetus for the establishment of the Housing Directorate by Homeswest and led it to look at the employment of Aboriginal people within Homeswest. The initiative taken by Homeswest to recruit and train Aboriginal staff and the practice of the Housing Directorate to have, where appropriate, Aboriginal people participate in the delivery of services to Aboriginal communities were clearly measures intending to give effect to the National Commitment. In particular these measures relate to those parts of the National Commitment dealing with employment, self management and self determination.

Mr Lethbridge challenges the appropriateness of the measures taken by Homeswest in this particular case. However, whilst there may be a question as to whether a particular project intended as a special measure will be effective or appropriate to achieve the intended result that is not the test of a valid special measure. Success, or achievement of the intended result is not an essential ingredient. Nor must the special measure adopted be shown to have been the only way of achieving the intended result; the availability of alternative measures is immaterial.

The test is whether the measure in question is "capable of being reasonably considered to be appropriate and adapted to achieving the stated sole purpose": Gerhardy -v- Brown, ibid, at p.149.

Having considered the evidence of Mr Beaver in relation to the issue of employment within Homeswest and Ms Broun in relation to the delivery of services to Aboriginal communities I am of the view that making Aboriginality an essential criterion for the position of Regional Project Manager is a valid special measure within the meaning of s.8(1) of the Act, subject to the proviso mentioned in Article 1(4) of the Convention.

The exception provided by Article 1(4) is subject to a proviso that " . . such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved". I accept the evidence of Ms Broun that inequality and disadvantage continues and may continue for some time. Accordingly, in my opinion the proviso to Article 1(4) is satisfied and s. 8 operates to exclude the impugned measure from the application of Part II of the Act.

7. CONCLUSION

In accordance with s.25Z(1)(a) of the Act, I dismiss the complaint.

Dated this 28th day of January 1997.

Ronald Wilson

President