Nye v Nowra Local Aboriginal Land Council [2017] NSWCATAD 107

Nye v Nowra Local Aboriginal Land Council [2017] NSWCATAD 107

Taking Ms Nye's complaint at its highest, the unexplained receipt and consideration of non-Aboriginal applications for a CEO position advertised as Aboriginal identified meant it was possible that Ms Nye could establish that accepting non-Aboriginal applications and appointing a non-Aboriginal person amounted to less favourable treatment on the ground of her Aboriginal race. In those circumstances it was fair and just to grant leave for the complaint to proceed.

Jurisdiction
Australia
Judgment Date
05 April 2017
Procedural Posture
Application for Leave Under Section 96 of the Anti Discrimination Act 1977 to Proceed With a Race Discrimination in Employment Complaint After the Acting President of the Anti Discrimination Board Declined the Complaint as Lacking in Substance / Leave Hearing
Outcome
Leave granted
Legal Topics
['race Discrimination in Employment' 'leave to Proceed After Declined Complaint' 'aboriginal Identified Employment Position' 'recruitment and Selection Process']
['anti Discrimination Law' 'employment Law' 'administrative Law'] ['race Discrimination in Employment' 'leave to Proceed After Declined Complaint' 'aboriginal Identified Employment Position' 'recruitment and Selection Process']

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Procedural Posture

Application for Leave Under Section 96 of the Anti Discrimination Act 1977 to Proceed With a Race Discrimination in Employment Complaint After the Acting President of the Anti Discrimination Board Declined the Complaint as Lacking in Substance / Leave Hearing

Legal Issues

  1. 1 ['Whether it was fair and just to grant Ms Nye leave under section 96 of the Anti-Discrimination Act 1977 for her race discrimination in employment complaint to proceed despite the Acting President declining it as lacking in substance.' 'Whether Ms Nye could possibly establish that she was treated less favourably on the ground of her Aboriginal race in the arrangements made for determining who should be offered employment.' 'Whether Ms Nye could possibly establish that she was treated less favourably on the ground of her Aboriginal race in determining who should be offered employment, where a non-Aboriginal person was appointed to a position advertised as Aboriginal identified.']

Ratio Decidendi

Taking Ms Nye's complaint at its highest, the unexplained receipt and consideration of non-Aboriginal applications for a CEO position advertised as Aboriginal identified meant it was possible that Ms Nye could establish that accepting non-Aboriginal applications and appointing a non-Aboriginal person amounted to less favourable treatment on the ground of her Aboriginal race. In those circumstances it was fair and just to grant leave for the complaint to proceed.

Court Disposition

Leave granted

Orders

  • ['The Tribunal grants leave for Ms Nye to proceed with her complaint, pursuant to section 96 of the ADA.']