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Editors --- "Opinion re : Comalco Aluminium Ltd - [2003] ALR 39 - Case Summary" [2003] AUIndigLawRpr 39; (2003) 8(3) Australian Indigenous Law Reporter 37

Court and Tribunal Decisions - Australia

Opinion re: Comalco Aluminium Ltd

Queensland Anti-Discrimination Tribunal (Sofronoff P)

14 October 2003

[2003] QADT 17

Indigenous land use agreement — Indigenous disadvantage — employment and training programs — exemption — welfare measures — positive discrimination — Anti-Discrimination Act 1991 (Qld) ss 103–4

Facts:

Comalco Aluminium Limited (‘Comalco’) owns and operates the Weipa Bauxite Mine in Western Cape York Peninsula. Comalco is a large employer in the area, employing about 504 employees in Weipa and its surrounds.

An Indigenous Land Use Agreement called the Western Cape Communities Co-Existence Agreement (‘the Agreement’) was entered into between Comalco, 11 Aboriginal peoples, certain other native title parties, four Aboriginal Councils, the State of Queensland and the Cape York Land Council Aboriginal Corporation.

The Agreement attempts to address some of the problems identified in the Cape York Justice Study commissioned by the Queensland. The report observed that Cape York’s regional economy has a narrow base that is dominated by the mining industry which contributes more than half of the gross regional product and employs twelve percent of the workforce. Cape York Communities are marked by high levels of socio-economic disadvantage. Of people living in these Communities, 49.6% are employed under Community Development Employment Projects, 11.1% have other employment, 2.1% are unemployed and 37.2% are not in the labour force. Levels of health, education, home ownership, life expectancy and employment for indigenous residents are considerably lower than for other Queensland communities.

The economic viability of many indigenous communities is problematic; limited economic activity exists but non-indigenous workers hold the majority of jobs. A variety of economic development strategies have been proposed but substantial establishment work and considerable infrastructure development would be required. In addition, the nature of the existing skills base, given the high demand for initial competencies in literacy and numeracy, make high levels of involvement in paid work in the short term unlikely.

Clauses 16 and 17 of the Agreement provide for the development of employment and training programs which are intended to increase employment and to improve employment conditions for ‘local Aboriginal persons’ as defined in the Agreement.

Clause 16 provides as follows:

16. Employment and Youth Education

16.1 Basic Principle

The Parties acknowledge that Comalco employs and treats employees on the basis of ability, performance and qualifications and Comalco’s needs.

16.2 Development of Employment and Training Programs

Comalco will, in consultation with the Co-ordinating Committee, develop and adopt as soon as practicable but in any event within 12 months from the Commencement Date, employment and training policies, strategies and programs in respect of the Weipa Operations aimed at:

• Developing employment for Local Aboriginal Persons;
• Having Local Aboriginal Persons in positions of management;
• The introduction of more female Local Aboriginal Persons as employees; and
• Increasing the number of employees who are Local Aboriginal Persons,

In a manner consistent with clause 16.1, provided those policies, strategies and programs are endorsed by the Co-ordinating Committee. The Employment and Training Programs will be applicable to persons from all of the Communities and will not discriminate on the basis of where the Communities are located.

Clause 16 in its terms discriminates in favour of Aboriginal people.

In Kerala v Thomas [1975] INSC 224; [1976] 1 SCR 906, Mathew J of the Supreme Court of India stated that ‘[i]t is obvious that equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations’: 951. Similarly, Ray CJ said ‘[e]quality of opportunity for unequals can only mean aggravation of inequality’: 933.

These dicta were approved in Gerhardy v Brown (1984–[1985] HCA 11; 1985) 159 CLR 70, 128–9 (Brennan J).

Held:

1. It is plain that the purpose of the matters addressed by clause 16 of the Agreement is to benefit local Aboriginal people who suffer from the severe disadvantages described in the Cape York Justice Study. The positive discrimination contemplated by clause 16 does not involve any contravention of or inconsistency with the Anti-Discrimination Act (‘the Act’).

2. Section 104 of the Act contemplates that a discriminatory act may be not inconsistent with the Act if it involves doing an act for the benefit of the members of a group of people with an attribute for whose welfare the act was designed.

3. Clause 16 of the Agreement falls within s 104 of the Act and, by reason of s 103, notwithstanding it is discriminatory, it will not involve a contravention of the Act.

4. In fulfilling its obligations under the Agreement, Comalco’s conduct would not involve a contravention of the Act because its actions involve discrimination in favour of persons of Aboriginal descent.