Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nye v Nowra Local Aboriginal Land Council [2017] NSWCATAD 107 Hearing dates: 21 March 2017 Date of orders: 05 April 2017 Decision date: 05 April 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: A Scahill, Senior Member Decision: Leave granted Catchwords: Race discrimination in employment Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Coomaraswamy v University of New South Wales [2016] NSWCATAD 41 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Hayne v YMCA NSW [2016] NSWCATAD 14 Hussein v Nationwide News Pty Ltd [2016] NSWCATAD 139 Purvis v. State of NSW [2003] HCA 62; (2003) 217 CLR 92 Category: Procedural and other rulings Parties: Natalie Nye (Applicant) Nowra Local Aboriginal Land Council (Respondent) Representation: Solicitors: In Person (Applicant) In Person (Respondent) File Number(s): 2017/00036370 Publication restriction: N/A Reasons for decision Background The Application 1. Ms Nye, ("the Applicant") brought proceedings for leave pursuant to section 96 of the Anti-Discrimination Act 1977 ("the Act") arising out of the Acting President of the Anti-Discrimination Board declining her complaint to the Anti-Discrimination Board ("ADB"). 2. The Applicant's complaint, as accepted by the Acting President, was of race discrimination in employment under sections 7 and 8 of the Act. 3. The Acting President of the Anti-Discrimination Board declined the complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1) (a) on 8 December 2016. 4. On 3 January 2017, Ms Nye requested that the matter be referred to the New South Wales Civil and Administrative Tribunal ("the Tribunal") for a hearing. 5. The issue in this case is whether it is fair and just for the Tribunal to give Ms Nye permission (or "leave") for her complaint to go ahead: Anti-Discrimination Act, s 96. Ms Nye bears the onus of persuading the Tribunal that leave should be granted. 6. The Tribunal conducted a hearing of the application for leave on 21 March 2017. Ms Nye represented herself. The Respondent was represented by Ms Clarke, Chairperson and Mr Peterson CEO of NLALC. 7. The Tribunal is satisfied that it is fair and just for Ms Nye to be given leave to proceed with her complaint. The Tribunal has granted leave for the race discrimination in employment complaint to proceed against the Respondent for the following reasons. Summary of the Complaint 1. Ms Nye made a complaint to the Acting President of the ADB on 4 April 2016, alleging race discrimination in employment and in relation to her application for membership of NLALC. 2. One 24 June 2016, the President's delegate determined to accept the complaint of alleged race discrimination in employment in respect of Ms Nye's application for the position of Chief Executive Officer of NLALC for which Ms Nye was interviewed in February 2016. The relevant period of acceptance of the complaint was between 20 January 2016, the closing date for the position of CEO, and 4 April 2016, the date the complaint was lodged with the ADB. Summary of the complaint accepted for investigation 1. In summary, the Complainant alleges that the Respondent unlawfully discriminated against her on the ground of race * in the arrangements it made for determining who should be offered employment; and * in determining who should be offered employment. 1. This related to the Complainant's application for the position of Chief Executive Officer of NLALC which closed on 20 January 2016. The Complainant alleges that: 1. The position of CEO NLALC is an Aboriginal identified position, and was advertised as such, but the NLALC determined to appoint a non-Aboriginal person to the position. 2. The Chairperson of the NLALC was biased against her and had allegedly already made the decision during interview, to not appoint her to the position; and 3. There were numerous allegations of impropriety in the recruitment process including that: * Ms Nye was greeted by the Chairperson of the NLALC and the Chairperson's cousin when she presented for interview, which allegedly presented a conflict of interest. * A funeral notice or her late nephew, who had recently passed away, was placed on the desk at the NLALC office, while she was waiting to be interviewed for the position of CEO. The Complainant alleges this was done in an attempt to upset her so that she would perform poorly at interview. * An NLALC board member had been sitting on the front veranda of the office while she was being interviewed for the position of CEO and could allegedly hear the interview, which was meant to be private. * The independent person on the interview panel was a previous employer of the chairperson of NLALC. The Respondent's response 1. The Respondent replied to the complaint to the ADB on 20 September 2016. The following is a summary of the Respondent's reply to the ADB. 2. The position for which the complaint was interviewed in February 2016, was originally advertised with a closing date of 27 November 2015. However, the position was later readvertised, with a closing date of 20 January 2016, to comply with the Aboriginal Land Rights Act 1983, which required the position to be advertised in a national newspaper. All the candidates for the position were offered the opportunity to have their applications stand, or to reapply with a new application. The Complainant reapplied and was called to interview, in addition to 3 other candidates, one of whom was also Aboriginal and two of whom were non-Aboriginal. The Respondent asserted that there is nothing within its model rules or regulations as an incorporated entity, or in the Aboriginal Land Rights Act 1983, which requires its employees to be Aboriginal. The Respondent asserted that many individuals who work for NSW local land councils, NSW ALC and the Office of the Registrar ALRA 1983, are non-Aboriginal people. 3. The Respondent asserted that the position of CEO, NLALC has always been chosen on merit. The Respondent asserted that applicants were selected for interview based on an assessment of their written applications. Applicants who were interviewed were assessed based on their performance at interview. The Respondent asserted that advertising the position as Aboriginal identified was a mistake made by administrative staff at NLALC. On previous occasions, Aboriginality had been advertised as a desirable rather than an essential criterion. 4. The Tribunal notes that at the leave hearing, the Respondent agreed that the advertisement had said the position was Aboriginal identified but the selection criteria set out did not specify Aboriginality as an essential criterion. 5. The Respondent asserted that the error in relation to advertising the position as Aboriginal identified was brought to the attention of each applicant at the beginning of the interview process. The Respondent asserts that the applicants culled prior to interview included both Aboriginal and non-Aboriginal applicants, because they failed to address the selection criteria. The Respondent described the attributes of each of the four applicants who were interviewed for the position. The Respondent stated that after interviewing the applicants, the panel recommended only one individual for the position. The Board of the NLALC then determined to offer the position to the successful applicant by way of majority motion, with no votes recorded against the motion. 6. In conclusion, the Respondent asserted that at no time was any individual who applied for the position discriminated against based on their race. The Respondent asserted that both Aboriginal and non-Aboriginal applicants were considered and interviewed for the position and the position was awarded on merit. 7. The Respondent's response included numerous supporting documents including copies of panel notes regarding interviews for the position with the names of the applicants redacted to maintain confidentiality. 8. The Respondent denied discriminating against the Complainant on the grounds of her race. Declination of the complaint by President of ADB 1. On 8 December 2016, the Acting President of the ADB wrote to Ms Nye advising that she had decided to decline the complaint under section 92 (1) (a)(i) of the ADA, because she was satisfied that it was lacking in substance. The leave hearing 1. At the leave hearing on 21 March 2017, the parties provided written and oral submissions. 2. The Tribunal summarises the submissions made by both parties below. Ms Nye's submissions at leave hearing 1. Ms Nye submitted that it was fair and just for her complaint to proceed. Ms Nye provided written submissions to which she spoke at the hearing. The Tribunal summarises Ms Nye's written submissions as follows. 2. Ms Nye maintained that she received less favourable treatment in relation to employment by NLALC on the grounds of her race. Ms Nye stated that it was an unusual complaint as the basic premise of her complaint required the Tribunal to accept that an Aboriginal organisation would discriminate against Aboriginal people based on their race. Ms Nye stated that while there is no requirement set out in the Aboriginal Land Rights Act 1983 to prohibit a non-Aboriginal person from being employed as CEO, it is normally the case that the majority (if not all) CEOs are Aboriginal persons. Advertisements for CEO positions in other areas set out that being an Aboriginal person was a genuine occupational requirement pursuant to section 14 (d) the ADA 1977. The Aboriginal Land Rights Act 1983 and Regulations set out how positions should be advertised. All three advertisements for the position had stated that the position was Aboriginal identified. Ms Nye said it had not been an administrative error to advertise the position 3 times as Aboriginal identified. Rather it had been a deliberate decision to seek out an application from a non-Aboriginal person. 3. The arrangements NLALC made for determining who should be offered the position were conducted in such a way that they discriminated against her based on her Aboriginal race by treating Mr Peterson, the non-Aboriginal applicant, more favourably. They did this as well by departing from the usual and accepted practices of most local Aboriginal Land Councils in New South Wales. Further the conduct of NLALC, breached codes of conduct, governance procedures and the requirements of the Aboriginal Land Rights Act 1983. This reveals NLALC had no intention of acting fairly and impartially in the selection process, to ensure that their preferred candidate, a non-Aboriginal person, was selected for the position. 4. Ms Nye noted that the advertisement was first published on 20 January 2016 and specified that the position was Aboriginal identified. The document provided by NLALC to the ADB was not a contemporaneous record of the recruitment process. Ms Nye stated that: * the job was advertised three times as Aboriginal identified; * it is the normal procedure for such positions to be Aboriginal identified; * the position of CEO NLALC has previously always been occupied by an Aboriginal person; * NLALC had not produced any details or minutes relating to the determination that the position be open to all applicants and that Aboriginality would not be required. 1. Page 121 of the NLALC's submission to the ADB refers to NLALC seeking advice from New South Wales Aboriginal Land Council Representative Ron Lisson, after the selection committee had conducted interviews. 2. Ms Nye pointed to anomalies in the procedure adopted after interviews, to waive the requirement of Aboriginality for the position. She also questioned how a non-Aboriginal person was able to apply for the position when the position had been advertised as Aboriginal identified. Ms Nye thought that Mr Peterson had been approached and asked to apply for the position. Ms Nye then pointed to conflicts of interest for referees involved in the recruitment process. Ms Nye alleged that some of the Board of NLALC had interests that would be better served by having a non-Aboriginal person appointed as CEO, than an Aboriginal person. Ms Nye submitted that the Respondent was implying that the position could only be filled on merit, if a non-Aboriginal person were selected. 3. Ms Nye said that she had further information which could be subpoenaed to support her case, were she provided with leave to proceed. Respondent's submissions 1. The Respondent provided written submissions. The chair, Ms Clarke, CEO Mr Peterson and Ms Jannice Luland, former chair, spoke to the submissions at the hearing. 2. The Respondent denied discriminating against Ms Nye on the grounds of her race. The Respondent stated that the position was advertised as Aboriginal identified in error and this was explained to each candidate at interview. The selection panel decided to interview two Aboriginal applicants and two non-Aboriginal applicants. The Board elected before any interviews to select two Aboriginal and two non-Aboriginal people for interview. The fact that the position was offered to a non-Aboriginal person does not prove that Ms Nye was discriminated against on the grounds of her Aboriginal race. Ms Nye did not interview well. She was not the best candidate at interview for the position of CEO. There was no evidence to substantiate the allegation that the NLALC had discriminated against Ms Nye on the grounds of her race in not offering her the position. The CEO was appointed on merits. The NLALC considered Ms Nye's statements about the successful candidate were defamatory. On one view, the application for leave was an abuse of the Tribunal's processes. The Respondent sought that the Tribunal dismiss the application for leave because there was no substance to the complaint. 3. Ms Nye had applied for the CEO position on two prior occasions unsuccessfully. On the first occasion, she was not interviewed because the application did not fulfil the requirements outlined in the selection criteria. On the second occasion, the process did not proceed as the position had not been advertised in a national newspaper. The position was then advertised again and Ms Nye was interviewed on 5 February 2016. Two Aboriginal and two non-Aboriginal candidates were interviewed. 4. The Respondent submitted that it was not fair and just to grant leave relying on the cases of Hussein v Nationwide News Pty Ltd [2016] NSWCATAD 139 and Ekermawi v Administrative Decisions Tribunal of New South Wales 2009 NSW SC 143 at 28-38. The ADB had provided Ms Nye with procedural fairness throughout the complaint process, investigated the matter and made a finding that the complaint was lacking in substance. The statements by Mr Moyle and Mr Groves did not support a complaint that Ms Nye was discriminated against. The statements by Mr Moyle and Mr Groves supporting Ms Nye's complaint had been considered by the ADB when it dismissed the complaint. There had been no denial of procedural fairness to Ms Nye in the ADB's dealing with her complaints and accordingly it would not be fair and just to allow the matter now to proceed. The incident involving a photograph of Ms Nye's deceased nephew did not amount to evidence of discrimination. There was no direct evidence or evidence from which an inference could be drawn, linking the alleged treatment with the ground of discrimination presented by Ms Nye. Ms Nye had the onus of establishing a reasonable prospect of success. Statements from other parties such as Mr Moyle and Mr Groves were irrelevant and did not provide any cogent basis for a Tribunal to grant leave. Justice dictated that the Tribunal refuse leave on the basis that Ms Nye's complaint lacks substance. The Respondent submitted that Ms Nye had not articulated a complaint that met the requirements of the Anti-Discrimination Act, 1977. She had not established that she was treated less favourably than a non-Aboriginal person in similar circumstances. The Tribunal's consideration of whether to grant leave Principles for granting leave 1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J: ◦ * (1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; * (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the Acting President of the Anti-Discrimination Board may decline a complaint; * (3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and * (4) noted that where it is apparent that the complaint lacks substance, leave may be refused, if that is what justice dictates. 1. Accordingly, the Applicant must satisfy the Tribunal that it is fair and just for the Tribunal to grant leave for the complaint to proceed, despite the decision of the Acting President that it lacked substance. Relevant Legislation What constitutes discrimination on the ground of race? 7 What constitutes discrimination on the ground of race (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race of the perpetrator: (a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or (b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. Section 8 Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of race: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of race: (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. (3) Subsections (1) and (2) do not apply to employment for the purposes of a private household. 4A Act done because of unlawful discrimination and for other reasons If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. 53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services. Section 14 Exception-genuine occupational qualification Nothing in this Division applies to or in respect of any work or employment where that work or employment involves any one or more of the following: (a) participation in a dramatic performance or other entertainment in a capacity for which a person of a particular race is required for reasons of authenticity, (b) participation as an artist's or photographic model in the production of a work of art, visual image or sequence of visual images for which a person of a particular race is required for reasons of authenticity, (c) working in a place where food or drink is, for payment or not, provided to and consumed by persons in circumstances in which a person of a particular race is required for reasons of authenticity, or (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. Establishing a complaint of race discrimination 1. To establish a complaint of race discrimination, the Applicant must be able to show that: a. she was treated less favourably than other persons (detriment); b. that the, or one of the, reasons for the less favourable treatment was her race (causation); and c. that a comparator (a person not of the Applicant's race) would have been treated more favourably in the circumstances and that the Respondent treated her less favourably because of her race (See Purvis v. State of NSW [2003] HCA 62; (2003) 217 CLR 92 at [213] - [224]). (comparator) Tribunal's Analysis of complaint Section 8 (1) (a) – discrimination in "the arrangements the employer makes for the purpose of determining who should be offered employment," Less favourable treatment 1. To establish this complaint of race discrimination, Ms Nye would need to show that she was treated less favourably in the recruitment process, than in the same circumstances, the NLALC treated a person of a different race. Ms Nye's complaint sets out that although the position was advertised as an Aboriginal identified position, the employer decided not to treat the position as Aboriginal identified during the recruitment process and to accept applications from non-Aboriginal people. 2. The Tribunal notes that even though the field was broadened, Ms Nye was successful in obtaining an interview for the positon. It is not clear that Ms Nye suffered any detriment in the field being broadened to include non-Aboriginal applicants. 3. On one view, broadening the field to include non-Aboriginal candidates meant that Aboriginal candidates (such as Ms Nye) and non-Aboriginal candidates were treated the same in the arrangements made for recruiting for the position. The Tribunal also notes that identifying a position for persons of a particular race is only permitted as an exception to the ADA under section 14(d). There is no obligation to advertise a position as identified for members of a particular race. 4. However, at the same time, the Respondent has not provided a satisfactory explanation as to why it received applications from non-Aboriginal applicants when the position had been advertised as an Aboriginal identified position. In these circumstances, there would be no reason that a non-Aboriginal person would apply for the position. It is clear that at least 2 applications were accepted from non-Aboriginal candidates. Ms Nye argues that the Board decided that it did not want an Aboriginal person in the position and solicited applications from non-Aboriginal candidates. On this basis, it is possible that Ms Nye may at hearing be able to establish that she was treated less favourably than a non-Aboriginal person in the arrangements made to determine who should be offered a position. Causation 1. Section 4A provides that the protected attribute - race - need only be one of the reasons for the behaviour complained of. In relation to causation, the Tribunal refers to the matters of Hayne v YMCA NSW [2016] NSWCATAD 14 at [17] which refers to the matter of Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. In those matters, dealing with causation in direct discrimination matters, the issue is whether the protected reason, here race, is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. 2. The Tribunal must then determine whether Ms Nye's race was one of the real, genuine or true reasons for the broadening of the recruitment process to include non-Aboriginal people. Ms Nye's evidence was that the employer determined to broaden the recruitment process to include non-Aboriginal people as it did not wish to appoint a non-Aboriginal person. As observed, the Tribunal does not have evidence before it which explains why applications were forthcoming from non-Aboriginal people for a position advertised as being for an Aboriginal person. In these circumstances, it is possible that Ms Nye's Aboriginal race was at least one of the reasons for broadening the recruitment process. Section 8 (1) (b) offering the position to a non- Aboriginal person 1. The Tribunal notes that a non-Aboriginal person was successful in obtaining a position which was advertised as Aboriginal identified. The Tribunal notes that there has not been a satisfactory explanation as to how non-Aboriginal candidates might have applied for a position which had been advertised for an Aboriginal person. Less favourable treatment 1. In relation to determining to offer the position to a non-Aboriginal person, in terms of section 8 (1) (b), the Tribunal accepts that this can be characterised as less favourable treatment to Ms Nye. 2. In these circumstances, it is possible that Ms Nye may be able to substantiate her complaint at hearing that she was treated less favourably on the grounds of her race, in that the employer preferred to appoint a non-Aboriginal person to the position. Comparator 1. Ms Nye was treated less favourably than a non-Aboriginal person in the same circumstances, in that she was not offered the job, while a non-Aboriginal person was offered the job. Causation 1. Ms Nye asserts that the non-Aboriginal person was preferred, because of Ms Nye's Aboriginal race. 2. The Respondent stated that the non-Aboriginal person had been selected on merit and provided outlines of the experience and qualifications of the four candidates interviewed. This does not explain however how the Respondent came to receive applications from non-Aboriginal candidates for a position advertised to the public as being Aboriginal identified. 3. The fact that the successful candidate was non-Aboriginal and that Ms Nye is Aboriginal does not mean that this difference is the basis of the preference of the non-Aboriginal person - without further evidence. 4. Given the as yet unexplained anomaly about how there came to be non-Aboriginal interviewees, it is possible that Ms Nye could establish at hearing that she was unsuccessful in obtaining the position because of her race. Taking the Complaint at its highest 1. In determining whether to grant leave to Ms Nye to proceed with her complaint, the Tribunal takes the approach of accepting Ms Nye's complaint at its highest. The complaint accepted for investigation by the Acting President of the ADB and ultimately declined, was that Ms Nye had been discriminated against on the ground of her race in the arrangements made for determining who should be offered employment and in determining who should be offered employment. There is no satisfactory explanation before the Tribunal about how non-Aboriginal candidates came to apply for an Aboriginal identified position. Ms Nye's claim is that the Board specifically did not wish to employ an Aboriginal person. 2. Accordingly, putting Ms Nye's complaint at its highest, the decision to accept applications from non-Aboriginal persons for an Aboriginal identified position could amount to race discrimination on the ground of Ms Nye's Aboriginal race. 3. It would appear to be unusual to advertise a position as Aboriginal identified while relying on selection criteria which did not specify Aboriginality as essential. It also leaves a process open to question when it is changed after it has commenced. This no doubt would, at least, have caused confusion. 4. In these circumstances, the Tribunal considers it is fair and just for Ms Nye to be given leave to proceed to argue her case before the Tribunal. Decision 1. The Tribunal grants leave for Ms Nye to proceed with her complaint, pursuant to section 96 of the ADA. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2017