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Indigenous rights - legal case summaries

Below are a list of legal case summaries that may be of interest.

Yorta Yorta Nation Aboriginal Corporation - special measure declaration (Human Rights) Victorian Civil Administrative Tribunal [2014]

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).

VCAT decision on special measures under the Equal Opportunity Act

A 2014 decision of the Victorian Civil and Administrative Tribunal (VCAT) involved a matter of particular relevance to the Aboriginal community and services directed specifically towards Aboriginal people.

The Application in this case was made by Zena Women’s Services Inc, a not for profit organisation which supports women and children who are or have, experienced domestic or family violence in the Barwon and Geelong region.   

The service operates an outreach program specifically directed at Aboriginal women and their children in partnership with the Wathaurong Aboriginal Co-operative Limited. They were seeking to advertise and employ an Aboriginal woman specifically into the role of outreach worker. One aspect of the role was to provide culturally appropriate support and encourage positive engagement of Aboriginal women with the service.

In order to do this, Zena Women’s Service made an application to VCAT under section 89 of the Equal Opportunity Act 2010 asking that they be exempt from complying with the Act for a specified period of time. They made this application because generally it is against the law to discriminate against a person based on their sex or race or any other personal attribute covered by the Act.

In this case, VCAT stated that it was unnecessary to grant an exemption for Zena Women’s Service because what they were seeking to do was a ‘special measure’ under the Act.

The Act specifically states that a person does not discriminate against another by taking a special measure.

A special measure is an action taken which is designed to promote substantive equality for people with a particular attribute. Special measures are often referred to as ‘affirmative action’ and the Act states that they must be undertaken in good faith and with the legitimate purpose of achieving substantive or ‘real’ equality. The activity must also be reasonably likely to achieve this purpose, be proportionate, and justified because members of the group have a particular need.

Although the facts of each case will be different, the VCAT member deciding this application found that given the nature and purpose of the service being provided, it was appropriate that the person employed be an Aboriginal woman.

This decision suggests that in circumstances where an organisation is seeking to establish culturally appropriate services which are genuinely aimed at promoting engagement with the Aboriginal community and there is a demonstrated need for the service, this will likely be a ‘special measure’ under the Act. In such circumstances, a temporary exemption from the Act is not necessary.

Cultural rights under the Charter in consideration of best interests of the child

In Secretary to the Department of Human Services v Sanding [2011] VSC 42, the Secretary had been granted custody of four Aboriginal children and the children were placed in out-of-home care.

Although the children had lived with their grandmother in the past, the Secretary had decided that this was no longer suitable because their mother lived there as well, and she was considered to create an unsafe environment for the children. Once their mother had left the grandmother’s home, the mother applied to the Children’s Court to have the children returned to the care of their grandmother. The Children’s Court ordered the children be returned to the care of their grandmother pending further consideration after six weeks.

The Secretary sought a review of the Children’s Court decision in the Supreme Court. The Supreme Court used the Charter of Human Rights and Responsibilities Act 2006 to help clarify what it meant to make a decision in accordance with the ‘best interests’ of the child, a requirement under section 10 of the Children, Youth and Families Act 2005.

The Court said that the cultural rights of the children in section 19 of the Charter were relevant to determining what protective circumstances were in the best interests needed by the children. Their cultural and spiritual identity was an important consideration, as was their connection with their Aboriginal family and wider community.

Case of interest under the federal Racial Discrimination Act

In House & Anor v Queanbeyan Community Radio Station [2008] FMCA 897, the Federal Magistrates Court accepted a claim by two Aboriginal women that their applications for “family membership” of a local community radio station were rejected on the ground of their Aboriginality, amounting to discrimination based on race under section 9 of the Racial Discrimination Act 1975. The respondents said that their membership was declined on the basis that they were deemed not to be family, as they had provided separate addresses in their applications. However, the rejection letter was sent to both applicants at one address and draft minutes of the respondent’s board meeting showed that the discussion about whether to accept their membership applications revolved around their Aboriginality.

One of the applicants gave evidence that she felt insulted, distressed, a feeling of shame as a result of the membership refusal, and that she had “lost face” in the Aboriginal community as a result. The Magistrate accepted that the applicants’ feelings of distress and concern as a result of the rejection were genuine, although noted that medical evidence would have been useful.

The Magistrate declared that the respondent’s actions in refusing membership applications constituted an act of unlawful discrimination contrary to section 9 of the Racial Discrimination Act 1975, and ordered the respondent not to repeat or continue such unlawful conduct by refusing membership to the applicants upon racial or other unlawful discrimination grounds. Further the Magistrate ordered that the Respondent accept the applicants’ membership applications and pay $6,000 in compensation to each applicant, as well their legal costs.

High Court decision to consider a persons background when determining an appropriate sentence

In Bugmy v The Queen [2013] HCA 37, the Court considered whether Aboriginality should be a factor during sentencing.  William Bugmy, a 29 year old Aboriginal man, was on remand at Broken Hill Correctional Centre when he got into an altercation with three prison officers. As a result, a prison officer was injured and Mr Bugmy was found guilty of two offences relating to this assault. 

The case reached the High Court on whether the sentence was appropriate and the factors which the trial judge and the NSW Court of Appeal considered in deciding the sentence. The Court of Appeal found that while it was true Mr Bugmy had suffered a deprived background, the impact of this had diminished over time. 

The High Court held that it was appropriate for a judge to give full weight to the background of an offender when determining an appropriate sentence, but there is no requirement in sentencing for an offender’s Aboriginality to be considered. However, where an Aboriginal person has come from a background of deprivation, these experiences must be taken into account when determining an appropriate sentence.

Special measures under the federal Racial Discrimination Act

In Maloney v The Queen [2013] HCA 28, Ms Maloney, an Aboriginal woman living on Palm Island, was charged and convicted under the Liquor Act 1992 (Qld) of being in possession of alcohol in a public place within a restricted area. Ms Maloney appealed her conviction on the basis that the law was in breach of the Racial Discrimination Act 1975 (Cth) (the RDA). 

The High Court dismissed Ms Maloney’s appeal. They said that while the law was discriminatory against Aboriginal people and in breach of the RDA, it was exempted because it was considered a special measure designed to ensure the adequate advancement of the Palm Island community towards the equal enjoyment of their human rights and fundamental freedoms.

The Court determined the aim of the legislation was to protect the community from the harm associated with excessive alcohol consumption and as such was intended to meet the statutory definition of a ‘special measure’. 

The Court rejected the arguments put by Ms Maloney that for a measure to be ‘special’ there was an implied requirement to consult with the affected peoples, and that the law was a disproportionate response to the issue of alcohol-related violence and public disorder.